FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIKEB SADDOZAI, No. 20-17519
Plaintiff-Appellant,
D.C. No.
v. 5:18-cv-05558-
BLF
RON DAVIS, Warden of San Quentin
State Prison; CLAWSON, Correctional
Officer, San Quentin State Prison; OPINION
MALIKIAN, Correctional Officer, San
Quentin State Prison; C. SMITH,
Correctional Officer, San Quentin
State Prison; SERRINTINO,
Correctional Officer, San Quentin
State Prison; PRIETO, Correctional
Officer, San Quentin State Prison;
HERRERA, Sergeant Correctional
Officer, San Quentin State Prison;
M. GAITAN, CDCR Correctional
Officer, Sergeant; DIRECTOR,
California Department of
Corrections and Rehabilitation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted April 15, 2022
San Francisco, California
2 SADDOZAI V. DAVIS
Filed May 23, 2022
Before: EUGENE E. SILER, * A. WALLACE TASHIMA,
and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Civil Rights
The panel reversed the district court’s dismissal of a
prisoner civil rights complaint for lack of exhaustion under
the Prison Litigation Reform Act and remanded.
Plaintiff alleged excessive force after being shot by a
correctional officer during an incident that occurred while
Plaintiff was incarcerated at California’s San Quentin State
Prison. Defendants moved to dismiss Plaintiff’s third
amended complaint against Defendant Clawson for failure
to state a claim and because Plaintiff had not exhausted
administrative remedies under the Prison Litigation Reform
Act (“PLRA”) before he filed his original complaint. The
district court agreed that Plaintiff failed to exhaust his claim
against Defendant Clawson at the time he filed his original
complaint and dismissed the third amended complaint for
lack of exhaustion under the PLRA.
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SADDOZAI V. DAVIS 3
The panel clarified the underlying principle in Jackson
v. Fong, 870 F.3d 928 (9th Cir. 2017), which controlled the
outcome here. Jackson made clear that the PLRA does not
supplant or modify Federal Rule of Civil Procedure 15. Rule
15 allows plaintiffs, regardless of their incarceration status,
to supplement pleadings with leave of court “even though
the original pleading is defective in stating a claim or
defense.” Fed. R. Civ. P. 15(d). A prisoner who has fully
complied with the PLRA’s exhaustion requirement need not
file an entirely new federal case simply because he had not
exhausted when he filed his original federal complaint. The
parties agreed that Plaintiff had fully exhausted by the time
he filed his third amended complaint, which the district court
deemed the “operative complaint.” Plaintiff’s operative third
amended complaint was the only relevant pleading for
purposes of the PLRA exhaustion analysis. The district
court therefore erred in dismissing Plaintiff’s operative
complaint for lack of exhaustion.
COUNSEL
Katherine Cion (argued) and Christina Davis, Roderick &
Solange MacArthur Justice Center, Washington, D.C.;
Easha Anand, Roderick & Solange MacArthur Justice
Center, San Francisco, California; for Plaintiff-Appellant.
Oliver C. Wu (argued) and Kevin A. Voth, Deputy Attorneys
General; Alicia A. Bower, Supervising Deputy Attorney
General; Monica N. Anderson, Senior Assistant Attorney
General; Rob Bonta, Attorney General; Office of the
Attorney General, San Francisco, California; for
Defendants-Appellees.
4 SADDOZAI V. DAVIS
Eugene M. Gelernter and Abigail E. Marion, Patterson
Belknap Webb & Tyler LLP, New York, New York, for
Amici Curiae American Civil Liberties Union, American
Civil Liberties Union of Northern California; Brennan
Center for Justice at NYU School of Law, Florida Justice
Institute, Human Rights Defense Center, Prison Law Office,
Southern Center for Human Rights, and Southern Poverty
Law Center.
OPINION
M. SMITH, Circuit Judge:
In this case we clarify the underlying principle in
Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), which
controls the outcome here. Jackson made clear that the
Prison Litigation Reform Act (PLRA) does not supplant or
modify Federal Rule of Civil Procedure 15. Rule 15 allows
plaintiffs, regardless of their incarceration status, to
supplement pleadings with leave of court “even though the
original pleading is defective in stating a claim or defense.”
Fed. R. Civ. P. 15(d). A prisoner who has fully complied
with the PLRA’s exhaustion requirement need not file an
entirely new federal case simply because he had not
exhausted when he filed his original federal complaint. We
reverse the district court’s dismissal of Plaintiff’s complaint
for lack of exhaustion and remand the case.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Shikeb Saddozai, appeals the district court’s
dismissal of his complaint alleging excessive force after
being shot by Defendant, correctional officer Clawson,
during an incident that occurred while Plaintiff was
incarcerated at California’s San Quentin State Prison. The
SADDOZAI V. DAVIS 5
district court held that Plaintiff did not meet the PLRA’s
mandatory exhaustion requirement before filing suit. See
42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211
(2007) (holding that PLRA exhaustion is mandatory, and
prisoners cannot bring unexhausted claims into federal
court).
To comply with the PLRA’s exhaustion requirement in
California, Plaintiff was required to follow a three-step
grievance process: first submit a grievance Form 602 to the
prison appeals office and then, depending on the response,
appeal that decision to a second and third level. On August
25, 2018, Plaintiff filed a first-level grievance regarding the
excessive force incident. The prison appeals office rejected
the grievance as procedurally improper because Plaintiff
exceeded the regulatory limit on filing grievances during a
fourteen-day period. He was instructed to refile after
September 12, 2018. The record is not clear as to when, but
at some point after September 12, Plaintiff resubmitted his
grievance. On September 26, 2018, the prison appeals office
again rejected Plaintiff’s grievance on procedural grounds
for being “obscured by pointless verbiage or voluminous
unrelated documentation” and instructed him to resubmit.
Meanwhile, Plaintiff had also filed a pro se complaint in
federal court, docketed on September 11, 2018. On October
2, 2018, as his federal complaint was pending review,
Plaintiff filed a procedurally compliant prison grievance
about the excessive force incident. The prison denied
Plaintiff’s requested relief at the first level of review, and so
he appealed to the second level on October 28, 2018. On
November 6, 2018, the prison issued a second-level response
to Plaintiff’s grievance. Plaintiff appealed to the third level,
and on February 5, 2019, he received a final administrative
6 SADDOZAI V. DAVIS
decision. Both parties agree that as of February 5, 2019,
Plaintiff had fully exhausted.
On January 16, 2019, the district court first screened
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a) and
dismissed it with leave to amend. Plaintiff’s complaint
contained several claims about various issues, including the
excessive force incident, requests for religious
accommodations, and denial of access to the prison law
library. In dismissing the complaint, the district court
concluded that Plaintiff improperly asserted claims against
unrelated defendants for unrelated incidents. Plaintiff filed
a first amended complaint on February 19, 2019. By the
time he filed this first amended complaint, he had fully
exhausted his administrative remedies. The district court
again dismissed the complaint without prejudice because the
claims were insufficiently related to one another. The
district court noted that a second amended complaint would
“supersede[] all previous complaints, which are treated
thereafter as non-existent.”
Plaintiff then filed a second amended complaint on
August 15, 2019, raising claims against Defendant Clawson
related only to the excessive force incident. The district
court found that Plaintiff’s second amended complaint
“stated a cognizable claim” against Defendant Clawson “for
failure to protect under the Eighth Amendment.” Plaintiff
then supplemented his complaint “as a matter of course.”
The district court declared that Plaintiff’s third amended
complaint filed on March 6, 2020, was the “operative
complaint.”
Defendant and other prison officials moved to dismiss
Plaintiff’s third amended complaint for failure to state a
claim and because Plaintiff had not exhausted administrative
remedies before he filed his original complaint. The district
SADDOZAI V. DAVIS 7
court dismissed the other prison defendants but again held
that Plaintiff stated a cognizable Eighth Amendment
deliberate indifference claim against Defendant Clawson.
The district court agreed that Plaintiff failed to exhaust the
claim against Defendant Clawson at the time he filed his
original complaint and dismissed it for lack of exhaustion
under the PLRA. This appeal followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s interpretation of the
PLRA because it “is a question of law.” Talamantes v.
Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009).
ANALYSIS
This is a simple case. Both parties agree that Plaintiff
had not exhausted his administrative remedies at the time he
filed his initial complaint in federal court. The parties also
agree that Plaintiff had fully exhausted by the time he filed
his third amended complaint, which the district court
deemed the “operative complaint.” In Jackson, 870 F.3d
928, we held that a prisoner “can cure deficiencies through
later filings, regardless of when he filed the original
‘action.’” Id. at 934. We made clear that “[e]xhaustion
requirements apply based on when a plaintiff files the
operative complaint, in accordance with the Federal Rules of
Civil Procedure.” Id. at 935. Therefore, Plaintiff’s operative
third amended complaint controls the PLRA exhaustion
analysis, and the district court erred in dismissing it for lack
of exhaustion.
Defendant describes Jackson as “an outlier” and as
having “departed from” earlier cases. He argues that
Jackson’s reasoning was wrong and that the case “should be
8 SADDOZAI V. DAVIS
limited to that particular factual setting.” Jackson is not
distinguishable from this case, as Defendant implicitly
acknowledges. Jackson involved a prisoner who also filed a
federal complaint prior to exhausting his administrative
remedies. Id. at 931–32. As his federal complaint was
pending review, the plaintiff was released from prison. Id.
at 932. The plaintiff in Jackson amended his complaint after
release, and our court concluded that the “amended
complaint,” not the original complaint, “controlled the
PLRA exhaustion analysis.” Id. at 934. Because PLRA
exhaustion requirements do not apply to non-prisoners,
when Jackson filed his third amended complaint, the
exhaustion requirement did not apply to him. Id.
Defendant asks us to distinguish this case because of
Jackson’s change in prisoner status. This fact is irrelevant.
Because Jackson was a non-prisoner at the time he filed his
amended complaint, he no longer had to comply with the
PLRA’s requirements. Yet, it was not his status as a non-
prisoner that cured the initial lack of exhaustion. Rather, it
was because Jackson filed a new operative complaint at a
time when the PLRA exhaustion requirement no longer
applied to him. Just as in Jackson, this case turns on whether
the court should look to the initiation of the suit (when
Plaintiff had not exhausted his remedies), or to Plaintiff’s
operative third amended complaint (filed when Plaintiff had
fully exhausted his administrative remedies). Id. at 934.
Jackson answered with the latter.
“In PLRA cases, amended pleadings may supersede
earlier pleadings.” Id. The Federal Rules of Civil Procedure
make clear that, with leave of court, plaintiffs can
supplement their pleadings, “even though the original
pleading is defective in stating a claim or defense.” Fed. R.
Civ. P. 15(d). Courts have found that “[a] supplemental
SADDOZAI V. DAVIS 9
complaint also can defeat an affirmative defense applicable
to an earlier complaint, even when that affirmative defense
is jurisdictional.” Jackson, 870 F.3d at 934 (citing Mathews
v. Diaz, 426 U.S. 67, 75 (1976); Northstar Fin. Advisors Inc.
v. Schwab Invs., 779 F.3d 1036, 1044 (9th Cir. 2015)). A
lack of PLRA exhaustion is a non-jurisdictional affirmative
defense. Federal Rule of Civil Procedure 15 allows
prisoners to supplement a complaint to add facts regarding
administrative exhaustion.
In a legal Hail Mary, Defendant argues that even if
Jackson applies, we should decline to follow it because it is
irreconcilable with the Supreme Court’s intervening
authority in Ross v. Blake, 578 U.S. 632 (2016). Nothing in
Jackson, however, is inconsistent with Ross. In Ross, the
Supreme Court explained the narrow availability exception
to the PLRA’s mandatory exhaustion requirement. 578 U.S.
at 635, 643–45. Jackson has nothing to do with exceptions
to the exhaustion requirement, and neither does the case
here. On the contrary, Plaintiff has—on the admission of
Defendant—fully exhausted his administrative remedies and
has no use for an exception. Moreover, if we had any doubts,
we note that as this case was pending on appeal, the Supreme
Court cited our Ninth Circuit precedent favorably in positing
that “[t]he original defect” of lack of exhaustion in a
prisoner’s complaint “was arguably cured by . . . subsequent
filings.” Ramirez v. Collier, 142 S. Ct. 1264, 1276 (2022)
(citing Rhodes v. Robinson, 621 F. 3d 1002, 1005 (9th Cir.
2010)). Although the discussion in Ramirez is dicta because
the prison defendants failed to raise the exhaustion
argument, the fact that the Supreme Court favorably cited
our precedent undercuts Defendant’s position that our
precedent is unlawful.
10 SADDOZAI V. DAVIS
We are equally unmoved by Defendant’s policy
arguments, which are similar to those advanced by the
defendants in Jackson. See 870 F.3d at 934. Defendant
contends that prisoners will now have a green light to file
simultaneous federal complaints and prison grievances,
knowing they can later cure through amendment. This
position ignores the realities of prison litigation and, in
particular, the operation of the “three strikes” rule. See
28 U.S.C. § 1915(g) (prohibiting in forma pauperis actions
or appeals “if the prisoner has, on 3 or more prior occasions,
. . . brought an action or appeal in a court of the United States
that was dismissed.”). Pursuant to the PLRA, prisoners still
pay full filing fees, even if they qualify for in forma pauperis
status. If a prisoner has three prior dismissals for a complaint
being frivolous, malicious, or failing to state a claim, the
prisoner must pay the whole filing fee up front before
bringing another lawsuit. See O’Neal v. Price, 531 F.3d
1146, 1154 (9th Cir. 2008); El-Shaddai v. Zamora, 833 F.3d
1036, 1043–44 (9th Cir. 2016). Prisoners have significant
incentive to ensure compliance with the PLRA exhaustion
requirement before filing suit. It would be a gamble to
knowingly file a complaint before exhaustion, hoping that
the prison completes its multi-step administrative review
process all before the district court screens the complaint “as
soon as is practicable after docketing,” 28 U.S.C.
§ 1915A(a), and before the prison asserts its affirmative
defense.
We find that “forcing the plaintiff to file a separate suit
regarding his . . . claims would not further the policy goals
of the PLRA, because plaintiff could proceed to file those
claims as a separate action.” Cano v. Taylor, 739 F.3d 1214,
1220–21 (9th Cir. 2014). “Such a requirement would
promote the precise inefficiency the PLRA was designed to
avoid—requiring courts to docket, assign and process two
SADDOZAI V. DAVIS 11
cases where one would do.” Lira v. Herrera, 427 F.3d 1164,
1174 (9th Cir. 2005).
CONCLUSION
This case is controlled by our decision in Jackson, and
we agree with the result. Plaintiff’s operative third amended
complaint is the only relevant pleading for purposes of the
PLRA exhaustion analysis. The district court therefore erred
in dismissing Plaintiff’s operative complaint for lack of
exhaustion.
REVERSED and REMANDED.