concurring:
I concur in the majority’s determination that Ngo did not exhaust his administrative remedies because Ngo did not challenge the decision by prison authorities until three months after the decision was made. I write separately, however, to note my serious concerns about the constitutionality of California’s prisoner grievance process. As Justice Stevens noted in his dissent, the Supreme Court’s majority opinion in this case “le[ft] open the question whether a prisoner’s failure to comply properly with procedural requirements that do not provide a ‘meaningful opportunity for prisoners to raise meritorious grievances’ would bar the later filing of a suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 120, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (Stevens, J., dissenting). It is not clear to me that California’s system provides a meaningful opportunity for prisoners to raise meritorious grievances.
In particular, I write to address two problems with the grievance process: (1) the requirement that appeals must be filed within fifteen days; and (2) the lack of clarity about how appeals should be filed.
1.
The statute of limitations for § 1983 claims in California is two years. Ngo v. Woodford, 403 F.3d 620, 630 n. 4 (9th Cir.2005). California regulations, however, require an inmate to appeal a decision made by prison authorities “within 15 working days of the event or decision being appealed.” Cal.Code Regs. tit. 15, § 3084.6(c). There does not appear to be any justification for such a short filing deadline. The Supreme Court has noted that shortened timelines for filing prisoner suits may be appropriate for instances of urgency. See McCarthy v. Madigan, 503 U.S. 140, 152, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). However, there does not appear any urgency or exigency justifying such draconian timetables for filing prisoners’ § 1983 claims.
While a fifteen day statute of limitations would be extremely short under any circumstances, it is especially problematic in the prison context. One issue with such a short timeline is the informal nature of the prison discipline process. In this case, for example, Ngo never received a written explanation of the restrictions imposed on him. In such a situation, fifteen days could pass before a prisoner is able to clarify the scope of the sanction against him.1 This fifteen day timeline might also prove insufficient where a decision made by prison authorities does not even affect the prisoner in the first fifteen days. Further, even if prisoners are aware of the scope of the sanction against them, it may take more than fifteen days to formulate a grievance. If a prisoner researches his rights before filing the grievance, the short time frame might not allow for enough time in the prison library. Prison officials, meanwhile, have significant incentive to find that claims are procedurally barred, given the large number of prisoner grievances.
In sum, it is difficult to see how due process would allow such a draconian time-line to prevent a prisoner from vindicating important constitutional rights.
*11122.
The rule that prisoners must properly exhaust their administrative remedies also raises difficult questions about what constitutes compliance with the confusing California prisoner grievance system. I do not believe that California regulations adequately inform prisoners of the required process. The regulations explain that prisoners are to complete a Form 602 when making a grievance. CaLCode Regs, tit. 15 § 3084.2(a). The regulations also indicate, though, that, there is an informal attempt prerequisite. Id. § 3084.2(b). Section 3084.5(a), explains that “[t]he informal level is that at which the appellant and staff involved in the action or decision attempt to resolve the grievance informally.” Read together, these code subsections indicate that the informal process does not involve the filing of a Form 602, especially given that filing forms with prison officials is not logically an “informal” process.2 Other code sections, however, belie the assumption that a Form 602 is not necessary for an informal appeal. For example § 3084.5(a)(2) explains that when a petitioner attempts to obtain review at the informal level, the prison employee involved “shall review and if practical resolve the grievance. The employee shall report the action taken in the response space provided on the appeal form, and shall sign and date the form.” This implies that Form 602 is part of the informal review process.
Given these contradictory provisions, a prisoner could hardly know from the regulations whether a Form 602 is required for an informal appeal. It is also not clear whether the prisoner has exhausted his administrative remedies by filing an informal appeal in cases where the informal step could be waived under the regulations. The regulations provide that the informal level of appeal is waived for certain types of appeals, including classification committee actions. CaLCode Regs tit. 15 § 3084.5(a)(3)(A). Here, Ngo could have bypassed the informal appeal stage because he was challenging a classification committee action, but he chose to first approach the warden in an informal capacity. The regulations offer no clarity as to whether, in such circumstances, a prisoner is required, or simply allowed, to skip the informal appeal step.
Given the Supreme Court’s directive that prisoners must properly exhaust state administrative remedies, the lack of clarity in the California regulations is troublesome. The constitutional rights of prisoners should not be taken away based on a confusing administrative process with such a short timeline.
. In this case, for example, the duration of the restriction against Ngo was not clear. If Ngo had attempted to clarify the restriction, it could easily have consumed a significant portion of the fifteen days.
. The summary of the process used by many California district courts appears to assume that the informal stage does not require a Form 602. See, e.g., Cockcroft v. Kirkland, 548 F.Supp.2d 767 (N.D.Cal.2008) (citing Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal.1997)) (describing the four levels of appeal as "(1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections.”).