Marlon Blacher v. S. Johnson

FILED
NOT FOR PUBLICATION JUN 02 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLON BLACHER, No. 14-15586

Plaintiff - Appellant, D.C. No. 1:12-cv-01159-GSA

v.
MEMORANDUM*
S. JOHNSON, Chief Deputy Warden; R.
DAVIS, Appeals Examiner,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**

Submitted May 24, 2016***

Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

Marlon Blacher, a California state prisoner, appeals pro se from the district

court’s judgment dismissing for failure to exhaust administrative remedies his 42

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1983 action alleging constitutional violations arising out of prison strip

searches. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc), and we vacate and

remand.

The district court dismissed Blacher’s action because it found that Blacher

did not complete the “administrative review process in accordance with the

applicable procedural rules” and thus failed to exhaust properly. Jones v. Bock,

549 U.S. 199, 218 (2007) (citation and internal quotation marks omitted).

However, we recently held that “a prisoner exhausts such administrative remedies

as are available, under the PLRA despite failing to comply with a procedural rule if

prison officials ignore the procedural problem and render a decision on the merits

of the grievance at each available step of the administrative process.” Reyes v.

Smith, 810 F.3d 654, 658 (9th Cir. 2016) (citation and internal quotation marks

omitted). Therefore, although Blacher did not comply with prison regulations, his

administrative appeals alleging unreasonable searches and a failure to remedy the

problem received a response at the third and final level informing him that his

administrative remedies were exhausted. Accordingly, we vacate and remand for

further proceedings.

VACATED and REMANDED.

2 14-15586