Charlie Jackson v. R. Fong

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHARLIE DAVID JACKSON, No. 15-15547
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-02516-
CRB
R. FONG; K. FREIHA; P. BURTON,
Defendants-Appellees. OPINION

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding

Argued and Submitted May 17, 2017
San Francisco, California

Filed August 31, 2017

Before: Sidney R. Thomas, Chief Judge, Mary H.
Murguia, Circuit Judge, and Jon P. McCalla, *
District Judge.

Opinion by Judge Murguia;
Concurrence by Judge McCalla

*
The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
2 JACKSON V. FONG

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s summary
judgment dismissal of a prisoner’s action under 42 U.S.C.
§ 1983, and remanded for further proceedings.

Plaintiff filed his lawsuit while a prisoner at San Quentin
State Prison in California. After his release, he amended his
complaint with leave of court. The district court then
granted summary judgment to the defendants based on
plaintiff’s failure to exhaust his administrative remedies as
a “prisoner” under the Prison Litigation Reform Act of 1995,
42 U.S.C. § 1997e(a).

The panel held that a plaintiff who was in custody at the
time he initiated his suit but was released from custody when
he filed his amended operative complaint is not a “prisoner”
subject to a Prison Litigation Reform Act’s exhaustion
defense. Accordingly, in this case plaintiff was not a
prisoner when he filed his operative third amended
complaint, and the district court erred in granting summary
judgment to defendants.

Concurring in the judgment, Judge McCalla stated that
the district court improperly determined that plaintiff had not
exhausted his claims, not because the Prison Litigation
Reform Act was inapplicable to his post-release third
amended complaint, but because plaintiff’s failure to exhaust
was excusable under § 1997e(a). Judge McCalla would find

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 JACKSON V. FONG 3

that plaintiff exhausted his available administrative remedies
when the California Department of Corrections and
Rehabilitation closed his still-pending appeal due to his
release.

COUNSEL

Gregory S. Bok (argued), Carolyn S. Small, Jessica R.
Culpepper, Daniel R. Adler, and Blaine H. Evanson, Gibson
Dunn & Crutcher LLP, Los Angeles, California, for
Plaintiff-Appellant.

Alicia A. Bower (argued), Deputy Attorney General;
Thomas S. Patterson, Supervising Deputy Attorney General;
Jonathan L. Wolff, Senior Assistant Attorney General;
Office of the Attorney General, San Francisco, California,
for Defendants-Appellees.

OPINION

MURGUIA, Circuit Judge:

This appeal arises from a prison’s alleged indifference to
an inmate’s medical needs. The plaintiff, Charles “Charlie”
Jackson, first filed suit while a prisoner at San Quentin State
Prison in California. After his release, Jackson amended his
complaint with leave of court. The district court then
granted summary judgment to the defendants based on
Jackson’s failure to exhaust his administrative remedies as a
“prisoner” under the Prison Litigation Reform Act of 1995
(PLRA), 42 U.S.C. § 1997e(a). The question on appeal is
whether Jackson is subject to the PLRA’s exhaustion
requirement because he initiated his suit when he was a
4 JACKSON V. FONG

prisoner, or if instead Jackson is not subject to the exhaustion
requirement because he filed the operative complaint after
his release from custody. We hold that a plaintiff who was
in custody at the time he initiated his suit but was free when
he filed his amended operative complaint is not a “prisoner”
subject to a PLRA exhaustion defense. We therefore reverse
and remand.

I.

In May 2010, Jackson became a prisoner at San Quentin
State Prison (San Quentin) in San Quentin, California. He
was serving a term for second-degree burglary. On June 11,
2012, while still incarcerated in San Quentin, Jackson filed
a pro se prisoner complaint in federal district court
challenging the conditions of his confinement under
42 U.S.C. § 1983. Unless otherwise stated, the following
facts assume the truth of the allegations in Jackson’s
operative third amended complaint, construed liberally.

In 2010, suffering from mental health problems, 1
Jackson met with a series of prison doctors (the Doctors).
On June 15, he met with Dr. R. Fong, who told Jackson that
he did not qualify for the prison’s mental health program.
On June 24, Jackson sent a health services request.
Responding to that request on June 30, Dr. K. Freiha also
met with Jackson and denied his request for treatment,
stating that Jackson could not “dictate the program and
would not be provided treatment.”

1
Jackson has suffered from mental illness since age four. He has
spent time in hospitals since he was seven years old, and he has a history
of major depressive disorder, panic disorder, social phobia, and anti-
social personality disorder.
 JACKSON V. FONG 5

On August 27, 2010, Jackson met with Dr. P. Burton,
and requested administrative segregation (solitary
confinement) to help address his mental health issues. After
Burton denied his request, Jackson threatened violence
unless prison officials placed him in solitary confinement.
Subsequently, prison officials placed Jackson in solitary
confinement from August 27, 2010 to November 5, 2011.
During that time, Jackson’s physical and mental health
“deteriorated significantly.” He “would often miss
numerous medical appointments and classification hearings
. . . because he could not leave his cell [due] to severe social
phobia, panic attacks, and depression.” He lost good-time
credits and spent “unnecessary time in prison” because of his
time in solitary confinement.

II.

The California Department of Corrections and
Rehabilitation (CDCR) has an administrative review process
with well-established procedures and three levels of review.
On-site staff process health care appeals at the first and
second level. Third level appeals go to staff in the Inmate
Correspondence and Appeals Branch within the
headquarters of the California Correctional Health Care
Services.

In March 2012, Jackson filed an inmate health care
appeal for review of the Doctors’ decisions and their alleged
denial of mental health treatment. San Quentin’s Health
Care Appeals Office dismissed Jackson’s appeal as
untimely. Jackson concedes his administrative appeal was
untimely.

Jackson then submitted an appeal—effectively to the
second level of review—arguing that officials should excuse
his untimeliness in light of the mental health issues he had
6 JACKSON V. FONG

experienced. The Health Care Appeals Office received the
second-level appeal on May 10, 2012, and denied it on May
30, 2012.

At this point, Jackson began to pursue review
simultaneously in the CDCR and in federal district court.
His appeal to the third and final level of review within
CDCR’s administrative scheme reached that office in July
2012. CDCR took no immediate action. In the meantime,
while still in prison and awaiting the third-level
administrative decision, Jackson filed suit in federal district
court. Jackson subsequently filed a first amended complaint
in September 2012.

In December 2012, while Jackson’s first amended
complaint was pending before the district court, CDCR
released him from custody. At the time of Jackson’s release,
his administrative appeal remained pending at the third level
of review. In January 2013, CDCR closed Jackson’s still-
pending appeal because of his release.

Within three days of his release, Jackson notified the
district court that he was no longer in custody and withdrew
his pending request for injunctive relief. The district court
dismissed Jackson’s first amended complaint with leave to
amend. Jackson then filed a second amended complaint on
March 7, 2013, when he was no longer in custody.

In response, one of the named defendants moved to
dismiss the second amended complaint, arguing that Jackson
improperly asserted unrelated claims against numerous
defendants in one suit, and failed to allege the participation
of the defendants in a common event or set of events. The
district court granted the motion to dismiss with partial leave
to amend, effectively giving Jackson a choice about which
set of claims to pursue:
 JACKSON V. FONG 7

The dismissal is with partial leave to amend to bring one
of plaintiff’s three claims—deprivation of mental health
treatment, food contamination or use of excessive force (as
well as supervisory liability claim connected to underlying
claim)—in an amended complaint within 30 days of this
order. (Plaintiff is free to bring the other two claims in two
separate new suits.)

Jackson then filed his third amended complaint. It was,
compared to his previous filings, succinct. Jackson named
the Doctors as defendants, alleging that they “denied him
treatment for his mental illnesses (including depression and
anxiety) despite his asking them for treatment.”
Specifically, Jackson alleged that the Doctors showed
deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. At the screening stage,
the district court concluded that these allegations stated a
cognizable claim.

The remaining three defendants—Fong, Burton, and
Freiha—then moved for summary judgment. They argued
that Jackson’s failure to exhaust administrative remedies
before filing suit violated the PLRA. In February 2015, the
district court granted the motion. By this time, Jackson was
an inmate at a state correctional facility in Nevada. Jackson
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291, and now reverse.

III.

When the district court grants summary judgment for
failure to exhaust remedies under the PLRA, we review the
district court’s legal conclusions de novo, and its factual
findings for clear error. Talamantes v. Leyva, 575 F.3d
1021, 1023 (9th Cir. 2009). “Interpretation of the PLRA is
a question of law” reviewed de novo. Id.
8 JACKSON V. FONG

Applying this standard, we review de novo whether a
prisoner who first raises unexhausted claims while
incarcerated, but is subsequently granted leave to file an
amended complaint for damages after his release from
prison, may be subject to an exhaustion defense under the
PLRA.

A.

The PLRA “requires that a prisoner challenging prison
conditions exhaust available administrative remedies before
filing suit.” Albino v. Baca, 747 F.3d 1162, 1165 (9th Cir.
2014) (en banc) (citing 42 U.S.C. § 1997e(a)); see 42 U.S.C.
§ 1997e(a) (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.”). Administrative
exhaustion within California requires the completion of the
third level of administrative review. Harvey v. Jordan,
605 F.3d 681, 683 (9th Cir. 2010); see Cal. Code Regs. tit.
15, § 3084.1(b). “Failure to exhaust under the PLRA is ‘an
affirmative defense the defendant must plead and prove.’”
Albino, 747 F.3d at 1166 (quoting Jones v. Bock, 549 U.S.
199, 204, 216 (2007)). In most circumstances, the
appropriate procedural mechanism is a motion for summary
judgment under Federal Rule of Civil Procedure 56, with the
defendant attaching the evidence necessary to demonstrate a
failure to exhaust. Id.

In this case, Jackson did not exhaust his administrative
remedies prior to initiating his federal suit. 2 The exhaustion

2
In practice, Jackson could not exhaust his administrative remedies
because the CDCR cancelled his appeal at the third level of review after
 JACKSON V. FONG 9

requirement, however, does not apply to non-prisoners.
Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000)
(holding that the PLRA exhaustion requirement only applies
to “prisoners,” and that to be a prisoner “the individual in
question must be currently detained as a result of accusation,
conviction, or sentence for a criminal offense”) (emphasis
added)); see Talamantes, 575 F.3d at 1023 (“The language
of the statute is plain and unambiguous—the exhaustion
requirement applies only to ‘prisoners.’”).

The only question on appeal is whether the
administrative exhaustion requirement applies to Jackson.
The answer depends on whether the court should look to the
initiation of the suit (when Jackson was a prisoner, and had
not exhausted his remedies), or to Jackson’s operative third
amended complaint (filed when Jackson was not a prisoner,
and the exhaustion requirement did not apply).

The Supreme Court has acknowledged the “challenges
faced by the lower federal courts in managing their dockets
and attempting to separate, when it comes to prisoner suits,
not so much wheat from chaff as needles from haystacks.”
Jones, 549 U.S. at 224. But “adopting different and more

Jackson’s release. Cancellation is not equivalent to exhaustion, CAL.
CODE REGS. tit. 15, § 3084.1(b), and “the PLRA exhaustion requirement
requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).
The Ninth Circuit, however, reads the PLRA to allow equitable
considerations. See, e.g., Andres v. Marshall, 854 F.3d 1103, 1105 (9th
Cir. 2017) (“When prison officials improperly fail to process a prisoner’s
grievance, the prisoner is deemed to have exhausted available
administrative remedies.”). It was impossible for Jackson to exhaust his
remedies under the circumstances, and equitable considerations might
allow a different result in this case if Jackson did not otherwise prevail
on the legal merits. Nonetheless, Jackson does not argue for an equitable
exception, and we do not rely on equitable considerations in reversing
summary judgment.
10 JACKSON V. FONG

onerous pleading rules to deal with particular categories of
cases should be done through established rulemaking
procedures, and not on a case-by-case basis by the courts.”
Id. Interpreting Jones, we have concluded that “we should
treat an exhaustion defense under the PLRA within the
framework of the Federal Rules of Civil Procedure.” Albino,
747 F.3d at 1169. So we now look to the Federal Rules of
Civil Procedure to answer the question posed.

B.

In Rhodes v. Robinson, also applying Jones, we
concluded that the amended complaint controlled the PLRA
exhaustion analysis. 621 F.3d 1002, 1005 (9th Cir. 2010).
There, new claims in appellant’s second amended complaint
(SAC)

were “brought” within the meaning of
§ 1997e on March 20, 2006, when he
tendered that complaint for filing with his
motion for leave to file an amended
complaint. The SAC alleged that, at the time
of filing, all of the claims within it had been
properly exhausted. Defendants’ argument
that the PLRA requires the newly-added
claims in the SAC to have been exhausted
before the original complaint was “brought”
on January 4, 2002, fails because it ignores
the general rule of pleading that the SAC
completely super[s]edes any earlier
complaint, rendering the original complaint
non-existent and, thus, its filing date
irrelevant.

Id. The appellant’s SAC “was, in fact, a supplemental
complaint, regardless of the label attached to it by the pro se
 JACKSON V. FONG 11

prisoner-plaintiff, permitted under Federal Rule of Civil
Procedure 15(d).” Id. at 1006. “Congress has never
indicated . . . that it intended to do away with Rule 15(d) and
supplemental pleadings in PLRA actions.” Id. at 1007.

In this case, there is no dispute that we analyze Jackson’s
third amended complaint as a supplemental complaint within
the meaning of Rule 15(d). Rhodes reminds that a
supplemental complaint “completely super[s]edes any
earlier complaint, rendering the original complaint non-
existent and, thus, its filing date irrelevant.” 621 F.3d at
1005. A supplemental complaint also can defeat an
affirmative defense applicable to an earlier complaint, even
when that affirmative defense is jurisdictional. See Mathews
v. Diaz, 426 U.S. 67, 75 (1976); Northstar Fin. Advisors Inc.
v. Schwab Invs., 779 F.3d 1036, 1044 (9th Cir. 2015). In
PLRA cases, amended pleadings may supersede earlier
pleadings.

Even though the Supreme Court squarely rejected
relying on the distinction between “action” and “claim” in
the PLRA, Jones, 549 U.S. at 222–23, the Doctors
nonetheless argue that this distinction resolves Jackson’s
case by requiring that exhaustion apply to the filing of the
action, rather than the claims in Jackson’s third amended
complaint. But that distinction “creates its own
inconsistencies.” Id. at 222–23; see 28 U.S.C. §§ 1915A(b),
42 U.S.C. § 1997e(c)(1), (2). The Jones Court expressly
determined that courts should not read the word “action” to
be dispositive because “[t]his statutory phrasing—‘no action
shall be brought’—is boilerplate language.” Id. at 220.
There can be no “total exhaustion rule.” Id. at 220–24.
Jones therefore forecloses any argument that the statutory
reference to an “action” precludes Jackson from curing a
deficiency in his claim by amendment. Jackson can cure
12 JACKSON V. FONG

deficiencies through later filings, regardless of when he filed
the original “action.” Here, his amended complaint, filed
when he was no longer a prisoner, obviates an exhaustion
defense.

C.

The Doctors cite several out-of-circuit decisions that
predate Jones to argue against the result we adopt here. See
Cox v. Mayer, 332 F.3d 422, 425 (6th Cir. 2003) (holding
that “plaintiff was required to exhaust any available
administrative remedies before he filed suit” and “his suit
must be dismissed” even though plaintiff was no longer
incarcerated); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d
Cir. 2002) (suggesting in dicta that post-release amendment
might be futile when the plaintiff was a prisoner subject to
an exhaustion defense on the first filing date); Harris v.
Garner, 216 F.3d 970, 974 (11th Cir. 2000) (en banc)
(holding that the term “brought” in 42 U.S.C. § 1997e
referred to the filing of the action). 3 We find those
arguments unpersuasive. Not only do these decisions
predate Jones, our own court’s authorities have since
interpreted applications of the PLRA and provide better
guidance. See, e.g., Albino, 747 F.3d at 1168–69; Rhodes,
621 F.3d at 1005, 1007. In any case, the Cox and Ahmed
courts did not squarely address Rule 15(d) arguments, Cox,
332 F.3d at 428; Ahmed, 297 F.3d at 210, and the Harris

3
Our sister circuits might well decide these cases differently today.
Compare Mitchell v. Dodrill, 696 F. Supp. 2d 454, 465 (M.D. Pa. 2010)
(looking to amended complaint rather than original complaint to
conclude that a prisoner who had exhausted his claims by the time of his
amended complaint was not subject to exhaustion defense), with Jackson
v. Gandy, 877 F. Supp 2d 159, 175 (D.N.J. 2012) (finding plaintiff who
was a prisoner when he filed his original complaint was subject to an
exhaustion defense even after amending complaint post-release).
 JACKSON V. FONG 13

decision did not directly interpret the exhaustion provision
relevant here, Harris, 216 F.3d at 972 (interpreting
42 U.S.C. § 1997e(e), not the exhaustion requirement
codified at § 1997e(a)).

Since Jones, the Sixth Circuit has commented that it
found our treatment of Rule 15 in Rhodes and other cases
“compelling.” Mattox v. Edelman, 852 F.3d 583, 592 (6th
Cir. 2017) reh’g denied (Apr. 6, 2017). Even so, in Mattox,
the Sixth Circuit held that the “PLRA and Federal Rule of
Civil Procedure 15 permit a plaintiff to amend his complaint
to add claims that were exhausted after the commencement
of the lawsuit, provided that the plaintiff’s original
complaint contained at least one fully exhausted claim.” Id.
at 595. This judge-made rule requiring prisoners to file suit
with at least one exhausted claim to avoid a later exhaustion
defense is likely “in tension with the Court’s admonition in
Jones against deviating from ‘the usual practice under the
Federal Rules’” in PLRA cases. See Albino, 747 F.3d at
1166 (quoting Jones, 549 U.S. at 212).

Exhaustion requirements apply based on when a plaintiff
files the operative complaint, in accordance with the Federal
Rules of Civil Procedure. See Jones, 549 U.S. at 212; see
also Barnes v. Briley, 420 F.3d 673, 678 (7th Cir. 2005)
(finding that “[t]he filing of the amended complaint was the
functional equivalent of filing a new complaint, and it was
only at that time that it became necessary to have exhausted
the administrative remedies against the state defendants”);
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005)
(allowing a prisoner to raise fully exhausted claims by
amending complaint in pending civil rights litigation);
Martinez v. Guadalupe County, 200 F. Supp. 3d 1216, 1260
(D.N.M. 2016) (concluding that the plaintiff’s status at the
time of the amended complaint governs whether the PLRA
14 JACKSON V. FONG

exhaustion requirement applies) (citing Rhodes, 621 F.3d at
1005). 4

D.

The Doctors also argue that allowing Jackson’s suit to
proceed “would reward prisoners who neglect their
exhaustion obligations and discourage prisoners from using
the prison appeal process.” The Doctors overstate any policy
concerns.

District court discretion is critical to assessing the
fairness of amended pleadings. See Fed. R. Civ. P. 15(a)(2)
(stating that “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave”).
District courts play an especially vital gatekeeping role in
administering the PLRA and screening prisoner complaints.
We recognize that “a district court’s discretion to allow the
addition of a new claim in an amended complaint should not
be curtailed where it is not required by law or statute.” Cano
v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014). A district
court, however, need not give leave to amend a complaint
where a plaintiff appears to be gaming the courts, or

4
The Doctors argue that several district courts within the Ninth
Circuit appear to have applied the PLRA’s exhaustion requirement “to
claims first asserted while the plaintiff was still a prisoner, regardless of
the operative, amended complaint being filed after the plaintiff’s
release.” See, e.g., VanValkenburg v. Oregon Dep’t of Corr., No. 3:14-
CV-00916, 2016 WL 2337892, at *12 (D. Or. May 2, 2016); Anderson
v. Deleon, No. C 12-6055, 2014 WL 3595020, at *6 (N.D. Cal. July 21,
2014); Seward v. Persson, No. 6:12-CV-01073, 2014 WL 494879, at *2
(D. Or. Feb. 5, 2014); Dixon v. Triesch, No. 1:12-CV-01449, 2013 WL
6670436, at *3 (E.D. Cal. Dec. 18, 2013); Smedley v. Reid, No. 08-CV-
1602, 2010 WL 391831, at *4 (S.D. Cal. Jan. 27, 2010). To the extent
that these district court decisions are inconsistent with the result or
reasoning in this appeal, they are not binding.
 JACKSON V. FONG 15

otherwise exploiting an impending release from custody.
See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting “bad
faith” as one reason justifying denial of leave to amend).
Here, the district court carefully handled Jackson’s
complaint and unique situation.

Moreover, once a prisoner is no longer in custody, there
is nothing to gain by forcing the prisoner through the
administrative process. Many PLRA provisions do not
apply to former prisoners. See, e.g., Olivas v. Nevada ex rel.
Dep’t of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (finding
screening procedures of PLRA apply only to plaintiffs in
custody). The PLRA expresses Congress’ preference for
prison officials to have a fair chance to address matters
internally before a prisoner may turn to the courts. See
Woodford v. Ngo, 548 U.S. 81, 93 (2006). Exhaustion serves
these goals directly. Id. at 94. But after a prisoner’s release,
there is no internal process left to undermine.

The Doctors do not argue that a statute of limitations
should have barred Jackson’s claims at any stage, and there
is no indication that a statute of limitations would have
applied had Jackson chosen to file anew rather than amend.
The statute of limitations relevant to Jackson’s § 1983
claims was California’s two-year limit for personal injuries.
See Cal. Code Civ. Proc. § 335.1, Butler v. Nat’l Cmty.
Renaissance of California, 766 F.3d 1191, 1198 (9th Cir.
2014) (discussing statute of limitations for § 1983 actions).
Jackson was well within its limits. See Cal. Civ. Proc. Code
§ 352.1 (allowing up to two years of tolling of the statute of
limitations for plaintiffs incarcerated at the time their cause
of action accrues). Jackson could have initiated a new
action, rather than seeking to amend his complaint. That he
chose to inform the district court promptly of his change in
status and continue within the same proceeding did not
16 JACKSON V. FONG

benefit him strategically, but did promote judicial economy.
In other words, the record here does not suggest
gamesmanship on Jackson’s part. It advances no purpose of
the PLRA to deprive such a plaintiff the opportunity to have
his complaint heard. See Greig v. Goord, 169 F.3d 165, 167
(2d Cir. 1999) (per curiam) (noting that the PLRA’s
justifications, including preventing frivolous litigation by
prisoners, “simply do not apply to individuals who were
formerly incarcerated”); see also Kerr v. Puckett, 138 F.3d
321, 323 (7th Cir. 1998) (noting less need to take “special
precautions against weak suits” after a plaintiff leaves
prison).

Finally, policy decisions regarding prisoner incentives
and litigation requirements are for Congress, not the courts,
to weigh and impose. As the Supreme Court has stated,
“courts should generally not depart from the usual practice
under the Federal Rules on the basis of perceived policy
concerns.” Jones, 549 U.S. at 212. Thus, even if we found
the Doctors’ policy arguments convincing, we do not have
license to rely on policy considerations to carve out
exceptions to the Federal Rules in the context of the PLRA.

IV.

A plaintiff who was a prisoner at the time of filing his
suit but was not a prisoner at the time of his operative
complaint is not subject to a PLRA exhaustion defense.
Jackson was not a prisoner when he filed his operative third
amended complaint, and therefore cannot be subject to an
exhaustion defense. Page, 201 F.3d at 1139. As a result, the
 JACKSON V. FONG 17

district court erred in granting summary judgment to the
Doctors. 5

REVERSED and REMANDED.

McCALLA, District Court Judge, concurring in judgment:

I concur in the judgment alone. The district court
improperly determined Jackson had not exhausted his
claims, not because the PLRA was inapplicable to his post-
release third amended complaint, but because Jackson’s
failure to exhaust is excusable under § 1997e(a).

Exhaustion under the PLRA is measured at the time the
action is filed. McKinney v. Carey, 311 F.3d 1199 (9th Cir.
2002); Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014)
(“[E]xhaustion is analogous to subject-matter jurisdiction,
personal jurisdiction, venue, and abstention, in that all these
matters are typically decided at the outset of the litigation
. . . . [But unlike personal jurisdiction and venue] a failure to
exhaust . . . concern[s] a prerequisite to bringing suit in any
court.”) Since the Supreme Court’s decision in Jones,
several circuits now permit plaintiffs to litigate claims newly
included in an amended complaint, so long as those claims
are fully exhausted by the time the plaintiffs filed the
amended complaint. Cano v. Taylor, 739 F.3d 1214, 1221
(9th Cir. 2014); Rhodes v. Robinson, 621 F.3d 1002 (9th Cir.
2010); Barnes v. Briley, 420 F.3d 673 (7th Cir. 2005);

5
The district court granted summary judgment to the Doctors solely
based on the exhaustion defense. We leave issues of qualified immunity
for the district court to resolve in the first instance. Schneider v. Cty. of
San Diego, 28 F.3d 89, 93 (9th Cir. 1994). We express no opinion on
the merits of Jackson’s claims or of any other defenses.
18 JACKSON V. FONG

Mattox v. Edelman, 851 F.3d 583, 591 (6th Cir. 2017), reh’g
denied (Apr. 6, 2017) (distinguishing itself from Cox v.
Mayer, 332 F.3d 422, 428 (6th Cir. 2003) where the plaintiff
“had not exhausted any of his claims before filing suit in
federal court,” and thus “Rule 15(d) could not save an action
that did not comply with the PLRA’s exhaustion requirement
in any way.”); see also Mitchell v. Dodrill, 696 F.Supp.2d
454, 465 (M.D. Pa. 2010) (finding incarcerated plaintiff had
“exhausted his administrative remedies related to his claims
prior to filing the amended complaint,” but only after the
district court highlighted that plaintiff filed two separate
actions, the later-filed second action was exhausted, and the
district court consolidated the cases and itself directed
plaintiff to file an “amended complaint”).

The ability to amend a complaint with fully exhausted
claims, however, does not permit plaintiffs to override the
substantive requirement contained in the PLRA. See Mattox,
851 F.3d at 591. Accordingly, our sister courts have held
that if a plaintiff fails to exhaust any of his claims prior to
filing, his later release and subsequent amended pleading do
not relieve him of the PLRA’s exhaustion requirement.
Bulter v. Suffolk Cty., 289 F.R.D. 80, 93 n.6 (E.D.N.Y. 2013)
(“That Plaintiff King filed the [Consolidated Amended
Complaint] after being released from custody does not
relieve him of the PLRA’s exhaustion requirement.”);
Jackson v. Gandy, 877 F. Supp. 2d 159, 175 (D.N.J. 2012);
Banks v. York, 515 F.Supp.2d 89, 106 n.7 (D.D.C. 2007)
(“Notwithstanding his release, plaintiff was still incarcerated
[when the action was filed], and he is therefore subject to the
requirements of the PLRA.”). I, therefore, respectfully
disagree with the majority and would find that the PLRA
remained applicable to Jackson despite his post-release
amended complaint. I nevertheless agree with the majority’s
judgment because Jackson effectively exhausted his claims,
 JACKSON V. FONG 19

and thus he is excused from the PLRA exhaustion
requirement.

Prisoners who are functionally unable to exhaust their
claims through no fault of their own may be excused from
the PLRA exhaustion requirement. See, e.g., Reyes v. Smith,
810 F.3d 654, 658 (9th Cir. 2016); Williams v. Paramo,
775 F.3d 1182 (9th Cir. 2015); Nunez v. Duncan, 591 F.3d
1217, 1224–26 (9th Cir. 2010) (“We hold that Nunez’s
failure to timely exhaust his administrative remedies is
excused because he took reasonable and appropriate steps to
exhaust his Fourth Amendment claim and was precluded
from exhausting, not through his own fault . . . .”). In other
words, we have recognized that the PLRA does not require
exhaustion when circumstances render administrative
remedies “effectively unavailable.” Nunez, 591 F.3d at
1226.

In Ross v. Blake, the Supreme Court held that § 1997e(a)
requires an inmate to exhaust only those “grievance
procedures that are capable of use to obtain some relief for
the action complained of.” — U.S. —, 136 S.Ct. 1850, 1859,
195 L.Ed.2d 117 (2016) (citation and internal quotation
marks omitted). The Court set out three examples of
circumstances in which an administrative remedy was not
capable of use to obtain relief despite being officially
available to the inmate: (1) when the administrative
procedure “operates as a simple dead end” because officers
are “unable or consistently unwilling to provide any relief to
aggrieved inmates”; (2) when the administrative scheme is
“so opaque that it becomes, practically speaking, incapable
of use” because “no ordinary prisoner can discern or
navigate it”; and (3) when prison administrators “thwart
inmates from taking advantage of a grievance process
20 JACKSON V. FONG

through machination, misrepresentation, or intimidation.”
Id. at 1859–60.

Under the circumstances present here, I would find
Jackson exhausted his available administrative remedies
prior to filing his March 7, 2013 second amended complaint
in January 2013, when CDCR closed Jackson’s still-pending
appeal due to his release.

As I would find the PLRA still applied to Jackson and
that he is excused from the exhaustion requirement under
§ 1997e(a), I concur in the judgment only.