Larry King v. M. Biter ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY DONNELL KING, No. 18-15743
Plaintiff-Appellant, D.C. No. 1:15-cv-00414-LJO-SAB
v.
MEMORANDUM*
M. D. BITER, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Larry Donnell King, a California state prisoner, appeals pro se from the
district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging an Eighth Amendment failure-to-protect
claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We reverse and remand.
Summary judgment for failure to exhaust administrative remedies was
improper where King’s grievances and appeals put prison officials on notice of the
nature of the wrong alleged in this action. See Griffin v. Arpaio, 557 F.3d 1117,
1120 (9th Cir. 2009) (primary purpose of a grievance is to alert the prison to a
problem and facilitate its resolution, and a grievance suffices if it alerts the prison
to the nature of the wrong for which redress is sought). In Grievance No. KVSP-0-
14-00456, King informed the prison that he had been assaulted by his cellmate
while handcuffed in his cell, and sought removal of the gang affiliation from his
file and to no longer be housed with gang members, which is the same relief that
he seeks in this action. Although King did not identify defendants by name, his
grievance put prison officials on notice that he was attacked as a result of
information in his file, referenced his prior grievances where he sought to have this
information removed, and included his request for a classification hearing. See
Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (“The grievance process is only
required to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued.” (citation and internal quotation marks
omitted)). We reverse the judgment, and remand for further proceedings.
REVERSED and REMANDED.
2 18-15743