FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. R. WILKERSON, AKA Adonai El- No. 11-17911
Shaddai, AKA James Wilkerson,
Plaintiff-Appellant, D.C. No.
2:06-cv-01898-
v. KJM-EFB
B. WHEELER; N. ALBONICO; D. L.
THOMPSON; G. TURNER, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
September 9, 2014—San Francisco, California
Filed November 18, 2014
Before: Stephen Reinhardt, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Gould
2 WILKERSON V. WHEELER
SUMMARY*
Prisoner Civil Rights
The panel reversed the district court’s summary judgment
and vacated a judgment, entered following a jury trial, in an
action brought under 42 U.S.C. § 1983 alleging that
correctional officers used excessive force in restraining
plaintiff while he was incarcerated at High Desert State
Prison in California.
Rejecting the government’s argument that plaintiff
waived his right to appeal the magistrate judge’s findings
regarding exhaustion of administrative remedies, the panel
held that plaintiff exhausted his administrative remedies
against defendant Sergeant Gary Turner. The panel held that
plaintiff’s grievance alerted the prison to the nature of the
wrong for which redress was sought by (1) describing the use
of force; (2) identifying Turner as one of the responding
officers; and, (3) specifically describing Turner’s use of
force.
The panel held that plaintiff was prejudiced by the district
court’s jury instructions that plaintiff had been disciplined for
resisting the officers. The panel concluded that Heck v.
Humphrey, 512 U.S. 477 (1994), did not require the
challenged jury instruction because the duration of plaintiff’s
indefinite life sentence was not at stake. The panel further
held that the instruction was misleading and prejudicial
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILKERSON V. WHEELER 3
because it contradicted plaintiff’s testimony that he had not
resisted the prison guards.
The panel reversed the award of summary judgment to
Turner, vacated the judgment as to the other officers, and
remanded for a new trial. Because the panel vacated the
judgment on the basis that the jury instructions were
improper, it did not reach any of plaintiff’s other arguments.
COUNSEL
Su-Han Wang (argued), Mark R.S. Foster, and Samuel S.
Song, Morrison & Foerster LLP, San Francisco, California,
for Plaintiff-Appellant Adonai El-Shaddai.
Jaime M. Ganson (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Jonathan
L. Wolff, Senior Assistant Attorney General; and Thomas S.
Patterson, Supervising Deputy Attorney General, Sacramento,
California, for Defendants-Appellees B. Wheeler, N.
Albonico, and G. Turner.
4 WILKERSON V. WHEELER
OPINION
GOULD, Circuit Judge:
Adonai El-Shaddai1 (“El-Shaddai”) alleges that
correctional officers used excessive force in restraining him
while he was incarcerated at High Desert State Prison in
California. El-Shaddai sued the officers and the prison
librarian under 42 U.S.C. § 1983, claiming that they violated
his federal constitutional rights. Defendants prevailed at trial.
El-Shaddai appeals, contending that: (1) the district court
erred by instructing the jury that it was established that El-
Shaddai resisted the correctional officers; (2) the district court
abused its discretion in excluding certain witnesses and
evidence; (3) the failure to appoint counsel for El-Shaddai
was an abuse of discretion; and (4) the order granting
summary judgment to Sergeant Turner, one of the
correctional officers, for El-Shaddai’s failure to exhaust
administrative remedies was error.2 We have jurisdiction
under 28 U.S.C. § 1291. Because the district court erred in
granting summary judgment to Turner, and because the jury
instructions were misleading, we reverse the award of
summary judgment to Turner, vacate the judgment as to the
other officers, and remand for a new trial. Because we vacate
the judgment on the basis that the jury instructions were
1
The appellant’s legal name is James Wilkerson. But to maintain
consistency with the practice of the district court, we use his chosen name
throughout this opinion.
2
The same order also dismissed the prison librarian for failure to
exhaust administrative remedies, but El-Shaddai does not challenge that
ruling on appeal and we do not address it.
WILKERSON V. WHEELER 5
improper, we do not reach any of El-Shaddai’s other
arguments.
I
El-Shaddai alleges that while incarcerated at High Desert
State Prison in California, three prison guards used excessive
force to restrain him. According to El-Shaddai, he was in the
prison law library under the escort of two guards, Officer
Bobby Wheeler (“Wheeler”) and Lieutenant Nickolus
Albonico (“Albonico”). El-Shaddai gave his legal documents
to the prison librarian to copy. When Wheeler and Albonico
attempted to bring El-Shaddai back to his cell, El-Shaddai
said that he would not leave without his documents and that
he needed to use a stapler located in another office, and began
to walk away from the officers. The officers viewed this as
resistance, and tackled and restrained El-Shaddai. A third
officer, Sergeant Gary Turner (“Turner”), assisted in
restraining El-Shaddai. The officers testified that, while
restrained, El-Shaddai kicked and twisted. During the
struggle, El-Shaddai yelled that his leg was broken. As a
result of this incident, El-Shaddai received a Prison
Disciplinary Rules Violation Report for willfully resisting an
officer, and was found guilty in a prison disciplinary hearing.
The outcome of the hearing was upheld in state habeas corpus
proceedings.
El-Shaddai filed suit against the three correctional officers
and the prison librarian. On June 7, 2007, defendants filed a
motion to dismiss, arguing that El-Shaddai failed to exhaust
his administrative remedies. The magistrate judge construed
the motion as one for summary judgment, and, on February
12, 2008, recommended that the motion be granted as to
Turner, based on the contents of El-Shaddai’s prison
6 WILKERSON V. WHEELER
grievance. The district court adopted the magistrate judge’s
recommendations in their entirety. El-Shaddai’s grievance
had stated that he suffered injuries “[a]s a result of the assault
on my person by C/O Wheeler and C/O Albonico and
responding officers.” He specifically identifies Turner as a
responding officer, saying that Turner aided the other officers
by “continuing to apply pressure on [El-Shaddai’s] ankle
despite [his] screams of pain.” In records from the grievance
and prison discipline process, El-Shaddai says that Turner
“assisted C/O Albonico in taking control of [his] feet” and
“maintained control of [his] legs utilizing [his] hands and
lower leg to apply pressure to knowingly and deliberately
inflict pain with full knowledge that [El-Shaddai] was in
pain”. The district court held that the grievance did not
suggest that officers other than Wheeler and Albonico joined
in the alleged abuse, thereby failing to put Turner and the
librarian on notice of their need to defend against El-
Shaddai’s claims.
After the case was set for trial, El-Shaddai filed a motion
requesting appointment of counsel on the grounds that he was
an indigent prisoner and his incarcerated status made it
difficult or impossible to locate or compel testimony from
witnesses who were incarcerated in other facilities. The
magistrate judge denied the motion, stating that no
exceptional circumstances warranting a request for volunteer
counsel existed in this case. El-Shaddai raised similar
concerns shortly before trial about his ability to locate and
subpoena incarcerated witnesses, in a request that the district
court construed as a motion for appointment of counsel. It
found that these circumstances warranted appointment of
counsel if volunteer counsel were available, but no such
counsel came forward.
WILKERSON V. WHEELER 7
During pre-trial proceedings, the district court excluded
several of El-Shaddai’s incarcerated witnesses, as well as
certain documents on which El-Shaddai wanted to rely, from
use at trial.
After the evidence was in, the judge instructed the jury
that “[i]t is established that plaintiff resisted defendant
Wheeler, and that plaintiff was disciplined by prison officials
for that resistance. Plaintiff does not seek to expunge that
disciplinary record and you are directed to assume that
disciplinary record will remain unchanged.” The court gave
this instruction after defendants made a motion for judgment
as a matter of law under Federal Rule of Civil Procedure 50,
arguing that a jury finding of excessive force would
undermine the prison disciplinary decision and thereby
violate Heck v. Humphrey, 512 U.S. 477 (1994). Although
the district court declined to take the case away from the jury,
it agreed to the instruction. The instruction was refined after
objections from defense counsel, who were concerned that it
potentially violated Simpson v. Thomas, 528 F.3d 685 (9th
Cir. 2008), which holds that Heck may not be used to exclude
relevant evidence. The dispute on the instruction was
resolved by stating that El-Shaddai was found guilty of
“resisting” without specifying the conduct in the prison
disciplinary report, and without highlighting any
inconsistencies between El-Shaddai’s testimony and that
report.
The jury returned a verdict in favor of defendants on all
claims. El-Shaddai filed a timely notice of appeal, and this
appeal followed.
8 WILKERSON V. WHEELER
II
We review questions of law related to exhaustion de novo,
but we accept the judge’s factual findings on disputed issues
of material fact absent clear error. Albino v. Baca, 747 F.3d
1162, 1171 (9th Cir. 2014) (en banc).
We review a district court’s denial of counsel to indigent
civil plaintiffs under 28 U.S.C. § 1915 for an abuse of
discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir. 1986).
Evidentiary rulings are reviewed for abuse of discretion.
Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1008 (9th Cir.
2007). Errors will only support reversal if the error was
prejudicial, or in the civil context, “more probably than not
tainted the verdict.” Id. at 1009.
We review a district court’s formulation of civil jury
instructions for an abuse of discretion, but we consider de
novo whether the challenged instruction correctly states the
law. “Jury instructions must be supported by the evidence,
fairly and adequately cover the issues presented, correctly
state the law, and not be misleading.” Peralta v. Dillard, 744
F.3d 1076, 1082 (9th Cir. 2014) (en banc). But if any error
relating to the jury instructions was harmless, we do not
reverse. “In evaluating jury instructions, prejudicial error
results when, looking to the instructions as a whole, the
substance of the applicable law was not fairly and correctly
covered. Harmless error review for a civil jury trial . . . shifts
[the burden] to the defendant to demonstrate that it is more
probable than not that the jury would have reached the same
verdict had it been properly instructed.” Gantt v. City of L.A.,
WILKERSON V. WHEELER 9
717 F.3d 702, 707 (9th Cir. 2013) (internal quotation marks,
citations, and alterations omitted).
III
A. Granting Summary Judgment to Turner Was
Error
At the outset, we reject the government’s argument that
El-Shaddai waived his right to appeal the magistrate’s
findings on exhaustion because El-Shaddai did not
specifically object to them.3 “[P]arties who do not object to
a magistrate’s report waive their right to challenge the
magistrate’s factual findings but retain their right to appeal
the magistrate’s conclusions of law.” Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991). Here, El-Shaddai does not
challenge the magistrate’s factual findings on whether he
filed the grievance or its contents. Rather, he challenges the
legal conclusion as to whether the grievance gave adequate
notice with regard to Turner, which we review de novo. See
Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006); cf.
Vinieratos v. U.S., Dep’t of Air Force Through Aldridge, 939
F.2d 762, 768 (9th Cir. 1991). The question of whether the
district court erred in granting summary judgment in favor of
Turner is properly before us.
As to the merits of the issue, the Prison Litigation Reform
Act (“PLRA”) requires inmates to both substantively and
3
On April 9, 2008, nearly two months after the magistrate judge issued
his proposed Findings and Recommendations, and nine days after the
district court adopted them in full, El-Shaddai filed an objection to the
magistrate judge’s Findings and Recommendations stating only that
“Plaintiff make[s] this objection in order to preserve his right to appeal.”
10 WILKERSON V. WHEELER
procedurally exhaust all claims through administrative
avenues before filing a suit in court. 42 U.S.C. § 1997e(a);
Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). The scope of
this requirement depends on the scope of administrative
remedies that the state provides. Jones v. Bock, 549 U.S. 199,
218 (2007) (“[I]t is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.”).
In California, inmate grievances must “describe the
problem and the action requested.” Cal. Code Reg., tit. 15
§ 3084.2. We have said that “when a prison’s grievance
procedures do not specify the requisite level of detail” needed
to exhaust a claim, the standard enunciated in the Seventh
Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
Cir. 2009). That standard provides:
[w]hen the administrative rulebook is silent, a
grievance suffices if it alerts the prison to the
nature of the wrong for which redress is
sought. As in a notice-pleading system, the
grievant need not lay out the facts, articulate
legal theories, or demand particular relief. All
the grievance need do is object intelligibly to
some asserted shortcoming.
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).
In recent decisions, we have applied the Strong standard
to California prisoner claims. Sapp v. Kimbrell held that a
prisoner who alleged that eye problems and denials of his
requests for surgery or medical appointments exhausted his
claim against a prison doctor, even though the prisoner never
specifically identified the doctor in his grievance. 623 F.3d
813 (9th Cir. 2010). We reasoned that “Sapp was not
WILKERSON V. WHEELER 11
required to identify [the doctor] by name to exhaust the
grievance against him. Neither the PLRA itself nor the
California regulations require an inmate to identify
responsible parties or otherwise to signal who ultimately may
be sued.” Id. at 824.
Here, El-Shaddai’s grievance gave greater notice than
Sapp’s grievances. El-Shaddai described not only the nature
of the wrong but also identified Turner by name. El-
Shaddai’s grievance states that he suffered injuries “[a]s a
result of the assault on my person by C/O Wheeler and C/O
Albonico and responding officers.” It names Turner as a
responding officer and says that Turner applied pressure to
his ankle despite his screams of pain and that Turner acted
deliberately to inflict pain. Because El-Shaddai’s grievance
describes the use of force against El-Shaddai by Wheeler,
Albonico, and “responding officers,” identifies Turner as one
of those responding officers and specifically describes
Turner’s use of force, it “alerts the prison to the nature of the
wrong for which redress is sought.” Sapp, 623 F.3d at 824.
We conclude that El-Shaddai exhausted his administrative
remedies against Turner.
B. The Jury Instructions Were Erroneous
El-Shaddai raises two arguments against the challenged
jury instruction.4 First, he contends that, although the district
4
We reject the officers’ argument that the jury instructions should be
reviewed for plain error because, the officers claim, El-Shaddai failed to
properly object to the instruction. El-Shaddai, who was without counsel,
did object at other points in the proceedings that Heck v. Humphrey did
not bar his claim because it would not affect his sentence. Also, the
officers’ own counsel’s contemporaneous objection to the instruction,
12 WILKERSON V. WHEELER
court thought the instruction was required by Heck v.
Humphrey, that case does not apply where, as here, the
duration of an inmate’s sentence is not at stake. Second, he
contends that the instruction “had the effect of barring
relevant testimony in violation of Simpson v. Thomas, 528
F.3d 685 (9th Cir. 2008),” because it contradicted El-
Shaddai’s testimony that he had not resisted the prison
guards.
As to El-Shaddai’s first contention, we conclude that
Heck did not require the jury instruction given here. In Heck,
the Supreme Court ruled that an inmate may not seek
damages in a § 1983 claim when establishing the basis for the
claim necessarily involves demonstrating that the conviction,
sentence, or length of incarceration is invalid. 512 U.S. at
480–82; see also Edwards v. Balisok, 520 U.S. 641, 643–47
(1997) (extending Heck rule to § 1983 claims that, if
successful, would imply the invalidity of deprivations of
good-time credits provided for by prison disciplinary
proceedings). But the Supreme Court has clarified that Heck
does not bar a § 1983 claim that “threatens no consequence
for [an inmate’s] conviction or the duration of [his or her
sentence.]” Muhammad v. Close, 540 U.S. 749, 751 (2004).
We have also held that application of Heck “turns solely on
whether a successful § 1983 action would necessarily render
invalid a conviction, sentence, or administrative sanction that
affected the length of the prisoner’s confinement.” Ramirez
v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003).
Here, El-Shaddai is serving an indefinite life sentence.
Any loss of good-time credits could not extend his potential
arguing that it would violate Simpson v. Thomas, put the district court on
notice of potential error.
WILKERSON V. WHEELER 13
term, which is life in prison. Further, as the California
Attorney General’s office argued in El-Shaddai’s habeas
corpus proceedings challenging the prison disciplinary action,
the loss of good-time credits for a prisoner, such as El-
Shaddai, whose date at which he is initially eligible for parole
has already passed, does not affect the length of sentence.
We conclude that Heck v. Humphrey did not require the
challenged jury instruction.
Of course, even if Heck did not require the district court
to give the instruction, it would not be error for the district
court to do so unless the instruction contained some other
error of fact or law. So long as an instruction correctly states
the law and is not misleading or inadequate, a district court’s
decision to give an instruction is reviewed for abuse of
discretion. Oglesby v. S. Pac. Transp. Co., 6 F.3d 603, 606
(9th Cir. 1993). But the instruction here was misleading, and
defendants have not carried their burden to show that any
error was harmless.
In Simpson v. Thomas, we reversed a district court’s
exclusion of a § 1983 plaintiff’s testimony. 528 F.3d at 696.
The district court had held that, because Heck barred the use
of § 1983 suits to collaterally attack prison disciplinary
proceedings, and a disciplinary proceeding had found inmate
Simpson responsible for instigating the use of force
challenged in the § 1983 suit, Simpson was not permitted to
testify that a guard had punched him first. Id. at 688–89.
However, we held that Heck is not an evidentiary bar, but a
claims bar, and so long as the § 1983 suit did not impact the
disciplinary proceedings, the plaintiff was “entitled to tell the
jury the entire story.” Id. at 696.
14 WILKERSON V. WHEELER
Here, the district court’s instruction, though it did not
directly exclude any testimony, was in tension with El-
Shaddai’s trial testimony in a way that likely confused the
jury. El-Shaddai testified: “I didn’t refuse to comply with
him. I just told him I’m getting my legal stuff first. I never
said that I was—I’m not leaving the law library. I just said
let me—I’m not leaving without my material.” Even if, as
defendants contend, El-Shaddai’s statements that he did not
immediately obey the officer constitute resistance under the
relevant California penal regulations, the instruction that El-
Shaddai did resist and was disciplined for that resistance,
without clarifying for the jury that resistance need not be
physical, posed a severe risk of prejudice. In light of the
instruction, the jurors may well have understood that they
were to disbelieve El-Shaddai’s testimony in whole or in part.
Even if such an instruction did not actually bar testimony
within the meaning of Simpson, we conclude that it was
misleading and therefore error.
We conclude that El-Shaddai was prejudiced by the
instruction that he had resisted the officers. Because his own
testimony was the central component of El-Shaddai’s case,
the likelihood of prejudice here is difficult to overcome. El-
Shaddai testified that he was handcuffed and in waist
restraints in the library. There was no evidence that El-
Shaddai tried to assault any of the officers or posed a similar
physical threat. The jury, without the instruction that El-
Shadai resisted the officers, or even with that instruction if it
had been adequately clarified on the nature of his
“resistance,” might well have decided that the force used
against El-Shaddai was excessive.
WILKERSON V. WHEELER 15
The crux of this appeal is this: The district court gave a
general instruction on excessive force telling the jury to
consider:
the need to use force, the relationship between
that need and the amount of force used,
whether defendants applied the force in a
good faith effort to maintain or restore
discipline, any threat reasonably perceived by
the defendants, any efforts made to temper the
severity of a forceful response, and the extent
of the injury suffered. In considering these
factors, you should give deference to prison
officials in the adoption and execution of
policies and practices that in their judgment
are needed to preserve discipline and to
maintain internal security in a prison.
Being told that El-Shaddai had resisted the officers without
more clarification would probably lead a reasonable jury to
think that his resistance had a physical component, and that
in turn would justify the use of physical force by the officers
to restrain him. But if in fact, as he testified, his only
resistance was briefly to delay complying with a command to
come back to his cell and to say that he would await his legal
papers from the copier, a jury would not necessarily have
determined that physical force used against him was not
excessive. The instruction that El-Shaddai had resisted the
officers, as determined in a prison discipline proceeding that
wasn’t appealed, was likely to lead the jury to conclude that
he had used physical force in resisting, rendering use of
physical force against him not excessive. Yet, if El-Shaddai’s
testimony was credited by a jury, the jurors might have
concluded that the officers did use excessive force, as El-
16 WILKERSON V. WHEELER
Shaddai had not physically resisted. To level the playing
field in a fair way required either not giving the instruction
that he had resisted the officers, or giving an adequate
explanation of the nature of his resistance consistent with his
testimony.
We hold that the challenged instruction was misleading
and that there was resulting prejudice. Because we vacate the
district court’s judgment and remand for a new trial on the
basis of the flawed jury instructions, we do not address El-
Shaddai’s arguments about his first request for appointed
counsel or the evidentiary issues. We note, however, that at
oral argument, El-Shaddai’s pro bono attorneys indicated that
they would continue to represent him on remand.
IV
The judgment is vacated and this case is remanded to
the district court for new trial and proceedings consistent
with this opinion.
REVERSED as to Summary Judgment for Turner,
VACATED and REMANDED.