Nunez v. Dr. Duncan ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERSON NUNEZ, 
Plaintiff-Appellant,
v.
DR. DUNCAN, Officer at FCI; GARY
L. ANGUS, Ex-Counselor at FPC-
Sheridan, now FCI; MIKE SANDELS,
Camp-Administrator at FPC-
Sheridan; JOHNSON, Lieutenant at No. 04-36146
FCI; GENDREAU, Lieutenant at FCI;
EX-CAPTAIN SMITH, at FCI; ROBERT  D.C. No.
CV-03-01359-ALA
HOOD, Ex-Warden at FCI; CHARLES
OPINION
A. DANIELS, at FCI; ROBERT M.
HARO, Central Regional; HARREL
WATTS, Central Office
Washington, DC; WANDA M.
HUNT, Chief, FOIA; PRISCILLA
JONES, Administrative Specialist
FOIA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
May 6, 2009—Portland, Oregon
Filed January 11, 2010
751
752 NUNEZ v. DR. DUNCAN
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Michael Seabright,* District Judge.
Opinion by Judge William A. Fletcher;
Dissent by Judge Ikuta
*The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
NUNEZ v. DR. DUNCAN 755
COUNSEL
Banurekha Ramachandran, PERKINS COIE, LLP, Portland,
Oregon, Gerson Nunez, Pro se, Anchorage, Alaska, for the
appellant.
Margaret M. Ogden, FEDERAL BUREAU OF PRISONS,
SeaTac, Washington, Amy Potter, Suzanne Bratis, Adrian Lee
Brown, OFFICE OF THE US ATTORNEY, Portland, Ore-
gon, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Federal prisoner Gerson Nunez filed a pro se Bivens com-
plaint alleging various constitutional claims arising out of an
unconsented strip search. The district court granted summary
judgment for defendants. Nunez contends on appeal that his
Fourth and First Amendment claims were improperly dis-
missed.
The district court recognized that Nunez had asserted a
Fourth Amendment claim but dismissed it for failure to
exhaust administrative remedies under the Prison Litigation
Reform Act (“PLRA”). In the alternative, the district court
held that the claim failed on the merits. We hold that Nunez’s
failure to exhaust his administrative remedies is excused. We
hold that Nunez’s Fourth Amendment claim fails on the mer-
its.
The district court read Nunez’s complaint as not alleging a
First Amendment claim. Nunez’s appointed counsel on appeal
contends that, read fairly, his complaint contains such a claim.
We assume without deciding that Nunez alleged a First
Amendment claim, but we hold that he failed to exhaust his
administrative remedies with respect to that claim.
756 NUNEZ v. DR. DUNCAN
I. Background
A. Events Giving Rise to the Complaint
The federal prison in Sheridan, Oregon consists of three
separate facilities: the Federal Detention Center, an adminis-
trative facility primarily housing pretrial inmates; the Federal
Prison Camp (“FPC”), a minimum security satellite prison
camp; and the Federal Correctional Institution (“FCI”), a
medium security prison. At the times relevant to this suit,
Nunez was housed in the FPC.
Beginning in October 2001, Nunez was assigned to work
the night shift of an orderly work crew. Nunez presented evi-
dence showing that in May 2002, when he and three other
inmates were returning to the FPC from a work detail at the
FCI, he was subjected to a strip search by Correctional Offi-
cer Eric Duncan. Duncan asked the returning inmates to
choose a number between one and ten. Nunez chose four.
Duncan said that his number was five, that Nunez’s number
was closest, and that Nunez was the winner of the “raffle strip
search.” Nunez was then subjected to a strip search in the
men’s bathroom two feet away from the urinals, during which
he was obliged to stand barefoot on the dirty floor.
B. Exhaustion of Administrative Remedies
Before filing his Bivens suit, Nunez took steps to exhaust
his administrative remedies. We first describe the grievance
procedures established by the federal Bureau of Prisons
(“BOP”). We then describe Nunez’s attempts to follow those
procedures.
1. Governing Regulations
The BOP grievance process is set forth at 28 C.F.R.
§ 542.13-.15. As a first step in this process, an inmate nor-
mally must present his complaint informally to prison staff
NUNEZ v. DR. DUNCAN 757
using a BP-8 form. If the informal complaint does not resolve
the dispute, the inmate may make an “Administrative Remedy
Request” concerning the dispute to the prison Warden using
a BP-9 form.1 The BP-8 and BP-9 are linked. Both forms
involve a complaint arising out of the same incident, and both
forms must be submitted within 20 calendar days of the date
of that incident. 28 C.F.R. § 542.14(a). An extension of time
is available upon a showing of valid reason for delay. Section
542.14(b) provides a non-exhaustive list of reasons that jus-
tify an extension of time. Valid reasons “include . . . an
extended period in-transit during which the inmate was sepa-
rated from documents needed to prepare the Request or
Appeal.” Id.
If the Warden renders an adverse decision on the BP-9, the
inmate may appeal to the Regional Director using a BP-10
form. 28 C.F.R. § 542.15(a). The BP-10 must be submitted to
the Regional Director within 20 calendar days of the date of
the Warden’s decision. Id. As with the time period for filing
a BP-9, an extension of time is available upon a showing of
a valid reason. Id. Section 542.15(a) provides that “[v]alid
reasons for delay include those situations described in
§ 542.14(b).” Id.
The inmate may appeal an adverse decision by the
Regional Director to the Central Office (also called the Gen-
eral Counsel) of the BOP using a BP-11 form. Id. The BP-11
must be submitted to the Central Office within 30 calendar
days from the date of the Regional Director’s decision. Id. As
with the time period for filing a BP-9 and a BP-10, an exten-
sion is available upon the showing of a valid reason as
described in § 542.14(b). Id.
1
If a complaint is “sensitive,” such that “the inmate’s safety or well-
being would be placed in danger if the Request became known at the insti-
tution,” the inmate may bypass the Warden and file a BP-9 directly with
the BOP Regional Director. 28 C.F.R. § 542.14(d).
758 NUNEZ v. DR. DUNCAN
2. Nunez’s Attempts to Exhaust His Administrative
Remedies
a. Fourth Amendment Claim
The strip search to which Nunez objected took place on
May 13, 2002. Nunez filed an informal complaint using a BP-
8 the next day, alleging that Duncan had violated his Fourth
Amendment rights in conducting a raffle strip search. After
describing the strip search, Nunez wrote:
The interest in human dignity and privacy which
the Fourth Amendment protects forbid any searches
involving intrusions beyond the body’s surface on
the mere chance of a lottery amusement; in the
absence of a clear indication that the inmates had
any contact with an outsider, nor any clear indication
that in fact any evidence will be found. These funda-
mental human interests require Officer Dunkin [sic]
to suffer the risk to be liable in his personal capacity
under Bivens Act; and, because Officer Dunkin [sic]
claimed to be following superior order, his superiors
would also be liable in their personal capacities.
Nunez also wrote that he was requesting “which law or statu-
tory rule [Correctional Officer Duncan] was acting under”
when he conducted the search.
On May 16, Correctional Counselor Gary Angus denied
Nunez’s BP-8. He wrote:
Inmates who pass through the lobby are subject to
pat searches and random visual (strip) search[e]s.
This is in the Post Orders for all officers who work
this post to follow. [Duncan] choose [sic] to make it
fair to the inmates present to select random numbers
so all there would share a chance at being searched.
NUNEZ v. DR. DUNCAN 759
On May 23, Nunez filed a follow-on BP-9 with the War-
den. Nunez wrote:
[I]nmate Nunez filed a BP-8 requesting proper
notice of the law and BOP’s regulations under which
Sheridan’s Lieutenants enforce strip searches with-
out violating the constitutional limits. The BP-8’s
response is out of the subject matter of inmate
Nunez’s request. One more time, inmate Nunez
wants the staff’s proper notification under which law
or statutory rule officers Duncan, Gendreau were
acting under while performing strip searches under
color of federal law.
The Warden responded on June 7. He characterized
Nunez’s BP-9 as merely a request for a citation to the regula-
tion under which Duncan had been acting, even though the
prison was clearly on notice that Nunez was also questioning
the constitutionality of the search under the Fourth Amend-
ment. The Warden wrote:
Sheridan staff are following Bureau of Prisons pol-
icy as outlined in Program Statement 5500.09, chap-
ter 6, page 5, paragraph D. This policy mandates
searching inmates entering or leaving the front
entrance of institutions. This policy also mandates
that visual searches be conducted periodically.
At the bottom of the form on which the Warden responded
was printed a notice informing Nunez that, “If dissatisfied
with this response, you may appeal to the Regional Director.”
The government concedes that the Warden cited the wrong
BOP Program Statement. Program Statement 5500.09, cited
by the Warden, is unrelated to strip searches and is unavail-
able to inmates. Program Statement 5521.05 governs searches
of inmates.
760 NUNEZ v. DR. DUNCAN
Not knowing of the Warden’s mistake, Nunez attempted to
obtain Program Statement 5500.09, to which he had been
referred by the Warden. On June 11, four days after the War-
den’s response, Nunez filed a BP-8 requesting a copy of Pro-
gram Statement 5500.09. He wrote:
I received the response of my BP-9. However I went
to the law library and I do not find Program Sta-
[te]ment 5500.09, Chapter 6, page 5, paragraph D.
Would you please supply me with a copy for me to
read.
FPC administrator Mike Sandels denied this request on June
13, writing that Program Statement 5500.09 was “restricted”
and not available to inmates. Sandels did not indicate to
Nunez that the Warden had cited the wrong Program State-
ment.
On June 25, Nunez filed another BP-8 requesting a copy of
Program Statement 5500.09. On August 13, Nunez filed yet
another BP-8, this time requesting a response to his June 25
BP-8. Correctional Counselor Angus responded on August
15, writing that Nunez would need to file a Freedom of Infor-
mation Act (“FOIA”) request to obtain Program Statement
5500.09. Angus did not indicate in his response that the Pro-
gram Statement was unavailable to inmates. Nor did Angus
provide the number of the Program Statement relevant to strip
searches.
Five days later, on August 20, Nunez made a request for
Program Statement 5500.09 to the FOIA office of the BOP,
as Angus had suggested. On September 4, the FOIA office
denied Nunez’s request, stating that this Program Statement
“relates to internal security practices of the agency” and that
its release “could risk circumvention of agency regulations.”
On October 14, Nunez wrote a letter to the Department of Jus-
tice’s Office of Information and Privacy (“OIP”) appealing
the BOP’s denial of his FOIA request. On November 13, OIP
NUNEZ v. DR. DUNCAN 761
notified Nunez that it had a “substantial backlog of pending
appeals received prior to” his letter. After not hearing any-
thing further from OIP, Nunez sent another letter to OIP on
January 26, 2003. After receiving no reply, he sent yet
another letter to OIP on February 13. After receiving no reply
to either his January 26 or February 13 letter, he sent a final
letter to OIP on April 8, stating “I consider my appeal as
denied.”
On March 27, just before he sent his letter to the OIP stat-
ing that he considered his FOIA appeal denied, Nunez filed
a BP-10 with the Regional Director. He wrote:
After the Bureau of Prisons grant inmate Nunez BP-
9’s, inmate Nunez has exhausting his administrative
remedies regarding the copy of the PS 5500.09
Chapter 6, Page 5, Paragraph D. (SEE
ATTACHED). Before Nunez file his [B]ivens act.
The Regional Director rejected Nunez’s BP-10 the next day
on the ground that it was untimely. He wrote that a BP-10
appealing a Warden’s adverse decision on a BP-9 must be
received within 20 days of the Warden’s decision. As
recounted above, the Warden’s response to Nunez’s BP-9 (in
which he had cited the wrong Program Statement) had been
signed on June 7, 2002.
On April 22, 2003, Nunez filed a BP-11 appealing the
Regional Director’s denial of his March 27 BP-10 to the Cen-
tral Office. The Central Office denied Nunez’s BP-11 on
April 30, on the ground that his BP-10 had been untimely.
The Central Office wrote that Nunez had had 20 days from
June 10, 2002, to submit his BP-10, and that he had not done
so within that time period. (The Central Office erred in citing
June 10 rather than June 7.)
Finally, on August 19, 2003, OIP sent Nunez a letter deny-
ing his FOIA request for Program Statement 5500.09. OIP
762 NUNEZ v. DR. DUNCAN
attached Program Statement 5521.05 to its letter. This was the
Program Statement that the Warden should have cited, but did
not, in his June 7, 2002 response to Nunez’s BP-9 filed on
May 23, 2002. This was the first time Nunez was informed
that Program Statement 5500.09 had nothing to do with strip
searches.
b. First Amendment Claim
On June 6, Nunez was transferred from his orderly job at
the FCI to a job on the FPC food service crew. Nunez filed
a BP-8 on the same day, alleging that he was fired from his
FCI orderly job because he had filed complaints about the
strip search. Nunez requested that he be assigned to his previ-
ous job in the recreation department or to an FPC administra-
tion or orderly crew. He stated that to “[b]e placed in the
kitchen would be considered a punishment.” Nunez never
received a response to this BP-8, and he did not pursue the
claim further.
On June 10, Nunez filed a “sensitive” BP-9 with the
Regional Director. Nunez wrote on the form:
On May 30 at 7:20 AM Nunez was called by lieuten-
ant Johnson who requested clarification over the
legal language used in Nunez BP-9 form. At that
time, Nunez was verbally notified that the BP-9 was
denied, and that Nunez was fired from my orderly
job. Later, the same day, at 7:35 AM, Nunez was
called again by Captain M. Smith who contradicted
lieutenant’s assertion over the denial of Nunez BP-9.
The Captain stated, that if Nunez wanted the BP-9
answered, that Nunez better be clean.
Nunez stated that Smith’s statements on May 30 were meant
to intimidate him and indicated “potential retaliation.” He also
stated that he was fired from his orderly job as retaliation for
not withdrawing his earlier BP-9. The Regional Director
NUNEZ v. DR. DUNCAN 763
rejected the “sensitive” BP-9 the next day, stating that it was
not in fact sensitive and that Nunez “should file a request or
appeal at the appropriate level via regular procedures.” Nunez
did not appeal the Regional Director’s adverse decision.
C. Nunez’s Suit in District Court
On October 3, 2003, Nunez filed a pro se action in federal
district court under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). He alleged that prison officials (collec-
tively, “defendants”) had subjected him to an unlawful strip
search in violation of the Fourth Amendment, had obstructed
his efforts to complain of the search in violation of his right
to due process, and had retaliated against him for his com-
plaints. Nunez characterized the defendants’ alleged retalia-
tion as a violation of the Eighth Amendment.
The district court granted summary judgment in favor of
defendants. It first held that Nunez failed to exhaust his
administrative remedies as required by the PLRA. In the alter-
native, it held that defendants were entitled to summary judg-
ment on the merits.
Nunez timely appealed.
II. Standard of Review
We review de novo the district court’s interpretation of the
PLRA’s exhaustion requirement and the court’s determination
that a prisoner failed to exhaust administrative remedies. See
Vaden v. Summerhill, 449 F.3d 1047, 1049 (9th Cir. 2006).
We review de novo the district court’s grant of summary
judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004); see also Moore v. Glickman, 113 F.3d 988, 989 (9th
Cir. 1997) (reviewing a district court’s grant of summary
judgment in a Bivens civil rights action de novo). We “view
the evidence . . . in the light most favorable to the non-moving
764 NUNEZ v. DR. DUNCAN
party and draw all reasonable inferences in favor of that
party.” Bank of New York v. Fremont Gen. Corp., 523 F.3d
902, 909 (9th Cir. 2008). We then determine “whether there
are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.”
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en
banc).
III. Discussion
A. Fourth Amendment Claim
For the reasons that follow, we hold with respect to
Nunez’s Fourth Amendment claim that his failure to exhaust
his administrative remedies is excused. However, we hold that
the district court correctly granted summary judgment against
Nunez on the merits of the claim.
1. Exhaustion of Administrative Remedies
a. Background
[1] The PLRA provides that no suit may be brought under
federal law concerning prison conditions until available
administrative remedies have been exhausted:
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 . . .
correctional facility until such administrative reme-
dies as are available are exhausted.
42 U.S.C. § 1997e(a).
[2] In Woodford v. Ngo, 548 U.S. 81, 93 (2006), the
Supreme Court held that the PLRA requires “proper” exhaus-
tion of administrative remedies. It wrote, “Proper exhaustion
demands compliance with an agency’s deadlines and other
NUNEZ v. DR. DUNCAN 765
critical procedural rules.” Id. at 90. This is so “because no
adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Id.
at 90-91.
The Court held that the exhaustion requirement of the
PLRA is based on administrative law rather than federal
habeas corpus. Id. at 93. It wrote that exhaustion of adminis-
trative remedies serves two important purposes. First, exhaus-
tion “gives an agency ‘an opportunity to correct its own
mistakes with respect to the programs it administers before it
is haled into federal court,’ and it discourages ‘disregard of
[the agency’s] procedures.’ ” Id. at 89 (citation omitted)
(bracketed material in original). “Second, exhaustion pro-
motes efficiency” because “[c]laims generally can be resolved
much more quickly and economically in proceedings before
an agency than in litigation in federal court.” Id.
Justice Breyer concurred in the judgment. He wrote, “I
agree with the Court that . . . Congress intended the term
‘exhausted’ to ‘mean what the term means in administrative
law, where exhaustion means proper exhaustion.’ . . . Admin-
istrative law, however, contains well-established exceptions to
exhaustion.” Id. at 103 (Breyer, J., concurring). “At least two
Circuits that have interpreted the statute in a manner similar
to that which the Court today adopts have concluded that the
PLRA’s proper exhaustion requirement is not absolute. In my
view, on remand, the lower court should similarly consider
any challenges that respondent may have concerning whether
his case falls into a traditional exception that the statute
implicitly incorporates.” Id. at 104 (citations omitted).
In Jones v. Bock, 549 U.S. 199 (2007), decided a year after
Ngo, the Court refused to read the PLRA’s exhaustion
requirement in a draconian manner. The Court rejected three
strict versions of exhaustion that some lower federal courts
had read into the PLRA. First, the Court held that the PLRA
does not require that a prisoner’s federal court complaint
766 NUNEZ v. DR. DUNCAN
affirmatively plead exhaustion; rather, lack of exhaustion
must be asserted as a defense. Id. at 211-17. Second, the
Court held that the PLRA does not require that a prisoner
identify in his initial prison grievance each of the defendants
later sued in federal court; rather, to the extent that any such
requirement may exist, it must come from prison regulations
prescribing the grievance process for that prison. Id. at
217-19. Third, the Court held that the PLRA does not require
that a prisoner include only exhausted claims in his federal
court complaint, on pain of having his entire complaint dis-
missed if he includes an unexhausted claim; rather, if a pris-
oner includes both exhausted and unexhausted claims, the
court should dismiss only the unexhausted claim or claims. Id.
at 219-24.
On remand from the Supreme Court in Ngo, a year after the
Court’s decision in Jones v. Bock, we noted that the Court had
left “unclear whether we can read exceptions into the PLRA’s
exhaustion requirement.” Ngo v. Woodford, 539 F.3d 1108,
1110 (9th Cir. 2008). We noted several potentially applicable
exceptions but concluded that we did not need to decide
whether they were available because Ngo could not satisfy
them in any event: “Ngo hasn’t shown that administrative
procedures were unavailable, that prison officials obstructed
his attempt to exhaust or that he was prevented from exhaust-
ing because procedures for processing grievances weren’t fol-
lowed.” Id.
Several of our sister circuits have allowed exceptions to the
PLRA’s exhaustion requirement in the wake of the Court’s
decision in Ngo. For example, in Kaba v. Stepp, 458 F.3d 678,
684-86 (7th Cir. 2006), the Seventh Circuit remanded to the
district court to determine whether prison officials’ threats
had effectively prevented the prisoner from exhausting his
administrative remedies. The court wrote approvingly of a
decision in which the Third Circuit had “held that administra-
tive remedies were unavailable where the prison officials
erroneously told the prisoner that he must wait until the inves-
NUNEZ v. DR. DUNCAN 767
tigation was complete before filing a grievance.” Id. at 684
(citing Brown v. Croak, 312 F.3d 109, 111-12 (3d Cir. 2002)).
In Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008),
the Eleventh Circuit held that a prisoner who had been threat-
ened with retaliation by prison officials if he filed a grievance
was excused from complying with the PLRA’s exhaustion
requirements. The court wrote: “[T]o be ‘available’ a remedy
must be ‘capable of use for the accomplishment of [its] pur-
pose.’ Remedies that rational inmates cannot be expected to
use are not capable of accomplishing their purposes and so are
not available.” Id. at 1084 (citation omitted). In Macias v.
Zenk, 495 F.3d 37, 45 (2d Cir. 2007), the Second Circuit
remanded for a determination whether a prison official’s
threats had deterred the prisoner from exhausting his adminis-
trative remedies, rendering those remedies effectively
unavailable, and whether the defendants should therefore be
estopped from asserting lack of exhaustion as a defense.
b. Application to Nunez
We hold that Nunez’s failure to timely exhaust his adminis-
trative 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 but
by the Warden’s mistake.
[3] Nunez took various steps to exhaust his administrative
remedies with respect to his Fourth Amendment claim. He
filed both his BP-8 informal complaint, and then his formal
BP-9 with the Warden, within 20 days of the incident, as
required by 28 C.F.R. § 542.14(a). Nunez clearly stated his
Fourth Amendment claim in his BP-8, writing that, “The
interest in human dignity and privacy which the Fourth
Amendment protects forbid any searches involving intrusions
beyond the body’s surface on the mere chance of a lottery
amusement.”
[4] The BP-8 put prison officials on notice of Nunez’s
Fourth Amendment claim. The response rejecting his BP-8 is
768 NUNEZ v. DR. DUNCAN
signed by both a Correctional Counselor and a Unit Manager.
Nunez again put the Warden on notice of his Fourth Amend-
ment claim in his BP-9, questioning how the strip search
could be justified by a statute or regulation “without violating
the constitutional limits.” Nunez’s grievance sufficed to state
his Fourth Amendment claim by “ ‘alert[ing] the prison to the
nature of the wrong for which redress [was] sought.’ ” Griffin
v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
[5] The Warden dealt with Nunez’s BP-9 by citing Chapter
6, page 5, paragraph D, of Program Statement 5500.09. Nunez
thought, as would any reasonable prisoner in his situation,
that he needed to read Program Statement 5500.09—indeed,
a very specific portion of Program Statement 5500.09—in
order to pursue his grievance. Contrary to the contention of
our dissenting colleague, we do not hold that exhaustion is
excused because “Nunez could not obtain information that he
subjectively believed would be useful in preparing his
appeal.” Dissent at 779. Instead, we hold that exhaustion is
excused because Nunez could not reasonably be expected to
exhaust his administrative remedies without the Program
Statement that the Warden claimed to mandate the strip
search, and because Nunez timely took reasonable and appro-
priate steps to obtain it.
Immediately, upon receiving the Warden’s response, Nunez
set out to obtain a copy of Program Statement 5500.09. When
Nunez could not find it in the prison library, he filed three
successive BP-8s attempting to obtain it. Correctional Officer
Angus responded to his third BP-8 by telling him that he
needed to file a FOIA request. Nunez then filed a request with
the FOIA office of the BOP, which was denied. He appealed
that decision to OIP in the Justice Department in October
2002. OIP replied in November, saying that it had a substan-
tial backlog. Nunez then wrote letters to OIP in January and
February 2003, to which he received no response. Finally, in
NUNEZ v. DR. DUNCAN 769
early April, Nunez wrote to OIP stating that he construed its
silence as a denial.
On March 27, just before he sent his final letter to OIP,
Nunez filed a BP-10 with the Regional Director, appealing the
Warden’s denial of his BP-9. In his BP-10, Nunez stated that
he had “exhaust[ed] his administrative remedies regarding the
copy of the PS 550[0].09, Chapter 6, Page 5, Paragraph D.”
The clear import of this statement is that Nunez had thought
that he needed to obtain the Program Statement to which the
Warden had referred him before pursuing his appeal of the
Warden’s decision. When Nunez inferred that OIP, by its
silence, had denied his FOIA request, he concluded that he
had exhausted his administrative remedies with respect to
seeking the Program Statement. He then filed his BP-10 with
the Regional Director.
Nunez believed in good faith that Program Statement
5500.09 was necessary, not merely useful, for preparing his
appeal. He could hardly believe otherwise once the Warden
told him that the challenged strip search was authorized by
that Program Statement. After Nunez despaired of getting
Program Statement 5500.09 and filed his BP-10 with the
Regional Director, he was finally told by the FOIA office that
the Program Statement 5500.09 did not relate to strip
searches. But up until that time, Nunez reasonably believed,
based on the Warden’s written response to his BP-9, that he
needed to see Program Statement 5500.09 before he could
prepare an effective appeal.
[6] There is nothing in the record to suggest bad faith or
deliberate obstruction by the Warden or other prison officials.
So far as the record shows, the Warden’s erroneous citation
of Program Statement 5500.09 was an innocent mistake. But
innocent or otherwise, the mistake led Nunez on an almost
ten-month wild goose chase. When Nunez finally concluded
that his FOIA request to OIP had been denied, having done
everything he could do to obtain a document that the Warden
770 NUNEZ v. DR. DUNCAN
had led him to believe he needed, he promptly filed his BP-
10. Rational inmates cannot be expected to use grievance pro-
cedures to achieve the procedures’ purpose when they are
misled into believing they must respond to a particular docu-
ment in order to effectively pursue their administrative reme-
dies and that document is then not available. See Brown v.
Croak, 312 F.3d at 111-12 (administrative remedies unavail-
able where prison officials erroneously told prisoner he must
wait until investigation was complete); Turner, 541 F.3d at
1084.
[7] Just as the PLRA’s exhaustion requirement gives pris-
oners the proper incentive to pursue their complaints effi-
ciently, excusing that requirement under the circumstances of
this case gives prison officials the same incentive to address
prisoners’ complaints. Allowing an excuse for failure to
exhaust under the circumstances of this case furthers the
PLRA’s goal of efficiency by “ ‘reduc[ing] the quantity and
improv[ing] the quality of prisoner suits.’ ” Ngo, 548 U.S. at
94 (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). As
the Supreme Court explained in Ngo, the PLRA’s exhaustion
requirement advances this goal by: (1) “giv[ing] prisoners an
effective incentive to make full use of the prison grievance
process;” (2) reducing prisoner suits as some prisoners are
“persuaded by the proceedings not to file an action in federal
court;” and (3) improving the quality of any remaining pris-
oner suits “because proper exhaustion often results in the cre-
ation of an administrative record that is helpful to the court.”
Ngo, 548 U.S. at 94-95. The Warden’s mistake and the BOP’s
subsequent failure to correct that mistake undermined all three
benefits of the proper exhaustion requirement. Nunez made
every effort to make full use of the prison grievance process,
but was stymied by the error. Had Nunez or someone in his
position been provided with the correct program statement
upon his initial request, he may have been satisfied and
dropped his complaint, thus reducing the quantity of suits.
Alternatively, armed with the correct program statement,
Nunez or someone in his position may have still believed that
NUNEZ v. DR. DUNCAN 771
his Fourth Amendment rights were violated, but the quality of
his suit would have been enhanced.
[8] We therefore hold, under the circumstances of this case,
that the Warden’s mistake rendered Nunez’s administrative
remedies effectively unavailable, and that his failure to
exhaust them is excused.
2. Merits
Nunez contends that a material question of fact exists
regarding whether his Fourth Amendment rights were vio-
lated by the strip search. We disagree and affirm the district
court’s grant of summary judgment to defendants.
[9] Turner v. Safley, 482 U.S. 78 (1987), provides the stan-
dard for reviewing alleged infringements of prisoners’ consti-
tutional rights. See Washington v. Harper, 494 U.S. 210, 224
(1990) (stating that Turner applies whenever “the needs of
prison administration implicate constitutional rights”); Mic-
henfelder v. Sumner, 860 F.2d 328, 331 (9th Cir. 1988)
(applying the Turner standard to prisoners’ allegations of
Fourth Amendment violations). Turner provides that “when a
prison regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89.
[10] Searches of prisoners must be reasonable to be consti-
tutional. See Michenfelder, 860 F.2d at 332. The reasonable-
ness of a particular search of a prisoner is determined by
applying the balancing test the Supreme Court announced in
Bell v. Wolfish, 441 U.S. 520 (1979). See Michenfelder, 860
F.2d at 332. In Bell, the Court wrote:
The test of reasonableness under the Fourth Amend-
ment is not capable of precise definition or mechani-
cal application. In each case it requires a balancing
of the need for the particular search against the inva-
772 NUNEZ v. DR. DUNCAN
sion of personal rights that the search entails. Courts
must consider the scope of the particular intrusion,
the manner in which it is conducted, the justification
for initiating it, and the place in which it is con-
ducted.
441 U.S. at 559 (emphasis added).
[11] The BOP has a policy authorizing periodic strip
searches of inmates returning from outside work details. This
policy is stated in 28 C.F.R. § 552.11 and BOP Program
Statement 5521.05. Section 552.11(c)(1) allows prison staff to
conduct a visual search where there is reasonable
belief that contraband may be concealed on the per-
son, or a good opportunity for concealment has
occurred. For example, placement in a special hous-
ing unit (see 28 CFR part 541, subpart B), leaving
the institution, or re-entry into an institution after
contact with the public (after a community trip, court
transfer, or after a “contact” visit in a visiting room)
is sufficient to justify a visual search. The visual
search shall be made in a manner designed to assure
as much privacy to the inmate as practicable.
A “visual search” is defined as “a visual inspection of all
body surfaces and body cavities.” 28 C.F.R. § 552.11(c). Pro-
gram Statement 5521.05, which includes “implementing
information” on 28 C.F.R. § 552.11(c), states that prison offi-
cials are required to “conduct[ ] periodic visual searches of
inmates returning from outside work details.”
[12] Nunez does not contend that the BOP policy is unrea-
sonable, and that it therefore violates the Fourth Amendment.
Instead, Nunez contends that the particular strip search to
which he was subjected was unreasonable. He contends that
a material question of fact exists regarding whether there was
sufficient justification for the search, and therefore whether it
NUNEZ v. DR. DUNCAN 773
was “excessive, vindictive, harassing, and unrelated to any
legitimate penological interest.” See Michenfelder, 860 F.2d
at 332. In particular, he contends further that the “raffle” Dun-
can used to select Nunez for the strip search was the exercise
of “standardless and unconstrained discretion.” We disagree.
First, the prison regulation allowing for visual searches, 28
C.F.R. § 552.11 as implemented by Program Statement
5521.05, is valid under Turner as it is “reasonably related to
legitimate penological interests.” Controlling contraband
within a prison is a legitimate penological interest, see Bell,
441 U.S. at 550-51, and the policy is reasonably related to this
interest.
[13] Second, whether Duncan targeted Nunez for the search
for non-penological reasons is irrelevant under the Fourth
Amendment. In Whren v. United States, 517 U.S. 806, 813
(1996), the Supreme Court held that, in evaluating the reason-
ableness of a traffic stop, “[s]ubjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis.”
The Court subsequently expanded the holding of Whren to
other Fourth Amendment cases, clarifying that “[a]n action is
‘reasonable’ under the Fourth Amendment, regardless of the
individual officer’s state of mind, ‘as long as the circum-
stances, viewed objectively, justify [the] action.’ ” Brigham
City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott
v. United States, 436 U.S. 128, 138 (1978)). The evidence
Nunez presented that Duncan was motivated to search him for
non-penological reasons is therefore irrelevant to the reason-
ableness of the search.
B. First Amendment Claim
[14] We hold that Nunez failed to properly exhaust his
other claims, which have collectively been labeled a single
First Amendment claim for the first time on appeal. We
assume without deciding that Nunez properly asserted a First
Amendment claim in his complaint in the district court.
774 NUNEZ v. DR. DUNCAN
[15] Nunez first mentioned retaliation and intimidation in
the sensitive BP-9, which he filed with the Regional Director
on June 10, 2002. Nunez followed the proper procedure for a
complaint he deemed sensitive. 28 C.F.R. § 542.14(d)(1) pro-
vides:
If the inmate reasonably believes the issue is sensi-
tive and the inmate’s safety or well-being would be
placed in danger if the Request became known at the
institution, the inmate may submit the Request
directly to the appropriate Regional Director. The
inmate shall clearly mark “Sensitive” upon the
Request and explain, in writing, the reason for not
submitting the Request at the institution.
The Regional Director responded one day later, stating that
the complaint was not sensitive, directing him to “file a
request or appeal at the appropriate level via regular proce-
dures.” See 28 C.F.R. § 542.14(d)(1) (If the Regional Director
does not agree that the request is sensitive, “the inmate shall
be advised in writing of that determination . . . . The inmate
may pursue the matter by submitting an Administrative Rem-
edy Request locally to the Warden.”). Nunez did not pursue
the matter further, either by appealing the Regional Director’s
decision that his retaliation claim was not sensitive or by fil-
ing a request with the Warden.
Nunez had filed a BP-8 on June 6, 2002, protesting his
transfer from the orderly work crew to the food service crew
and requesting a different work assignment. However, this
BP-8 was filed before he received a response from the
Regional Director deeming his BP-9 not sensitive. Therefore,
it could not have been a response to the Regional Director’s
instruction that he file a request under the normal procedures.
Even if it was, Nunez pursued no other administrative reme-
dies when he received no response to his BP-8.
NUNEZ v. DR. DUNCAN 775
Conclusion
[16] We hold that Nunez’s failure to exhaust his Fourth
Amendment claim through the BOP grievance process is
excused. However, we affirm the district court’s grant of sum-
mary judgment to defendants on Nunez’s Fourth Amendment
claim on the merits. We affirm the district court’s grant of
summary judgment to defendants on Nunez’s First Amend-
ment claim for failure to exhaust his administrative remedies.
AFFIRMED.
IKUTA, Circuit Judge, dissenting in part:
The Prison Litigation Reform Act of 1995 (“PLRA”), 42
U.S.C. § 1997e(a), commands that, “No action shall be
brought with respect to prison conditions under . . . Federal
law, by a prisoner confined in any jail, prison, or other correc-
tional facility until such administrative remedies as are avail-
able are exhausted.” Today, the majority creates a new
exception to this exhaustion requirement, one that will free
prisoners from exhausting available remedies merely because
the prison failed to provide information requested by the pris-
oners to support their claims. Because this new exception is
untethered to the statutory language of the PLRA and lacks
any basis in case law, I respectfully dissent from the majori-
ty’s reasoning in part III.A.1.1
Though neither the PLRA nor our case law has explicitly
defined the term “available,” we have indicated that an
administrative remedy is available if a prisoner has “the
opportunity and ability” to file a grievance on a timely basis.
See Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009)
1
I agree that Nunez failed to exhaust his First Amendment claim, and
so I join the majority’s opinion as to part III.B.
776 NUNEZ v. DR. DUNCAN
(per curiam). Because the prisoner must “complete the admin-
istrative review process in accordance with the applicable pro-
cedural rules,” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006),
the exhaustion requirement is not satisfied when grievances
are dismissed because prisoners missed deadlines or other-
wise failed to comply with the grievance policy. See Jones v.
Bock, 549 U.S. 199, 217-18 (2007); see also Moore v. Ben-
nette, 517 F.3d 717, 725 (4th Cir. 2008) (“[A] prisoner does
not exhaust all available remedies simply by failing to follow
the required steps so that remedies that once were available to
him no longer are.”); Kaba v. Stepp, 458 F.3d 678, 684 (7th
Cir. 2006) (“[W]hen the prisoner causes the unavailability of
the grievance process by simply not filing a grievance in a
timely manner, the process is not unavailable but rather for-
feited.”)
Where prison officials have effectively prevented a pris-
oner from using the available procedures, for example by lit-
erally denying the prisoner access to the process, falsely
claiming that the prisoner could not use the process, or threat-
ening reprisals if the prisoner used the process, courts have
held that administrative remedies were not “available” for
purposes of the PLRA. See, e.g., Turner v. Burnside, 541 F.3d
1077, 1081, 1085 (11th Cir. 2008) (holding that administra-
tive remedies were unavailable where the warden tore up the
prisoner’s initial grievance in front of the prisoner and threat-
ened to transfer the prisoner away from his family if the pris-
oner continued to file such grievances); Kaba, 458 F.3d at 686
(holding that administrative remedies were not available
where the prison official warned the prisoner not to file a
grievance and successfully pressured other inmates to assault
the prisoner in order to prevent the prisoner from pursuing the
grievance); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.
2002) (holding that a complaint was sufficient to survive a
motion to dismiss for failure to exhaust where prisoner
alleged that prison officials told him he could not file a formal
grievance until the completion of an investigation, but failed
to tell him when that event occurred); Miller v. Norris, 247
NUNEZ v. DR. DUNCAN 777
F.3d 736, 738, 740 (8th Cir. 2001) (holding that the prisoner’s
allegation and evidence that prison officials refused to mail
the prisoner the required administrative forms was sufficient
to raise an inference that he had exhausted available reme-
dies); cf. Panaro v. City of N. Las Vegas, 432 F.3d 949,
952-53 (9th Cir. 2005) (holding that pretrial detainee must
allege that the detention center’s grievance process was “sys-
tematically unavailable to him”).
Here, the prison’s clerical error created no such barrier to
Nunez’s ability to use administrative procedures. Nunez’s
original BP-8 raised his complaint that Duncan’s use of a raf-
fle to determine who would be subject to a strip search vio-
lated Nunez’s Fourth Amendment rights. See Maj. Op. at 758.
Angus’s response to Nunez’s BP-8 directly addressed
Nunez’s Fourth Amendment concerns by explaining that
Duncan’s lottery system was a fair method to conduct random
searches. See Maj. Op. at 758. Nunez did not carry this claim
to the next stage of administrative review, but instead sought
from prison officials a copy of the program statement that
authorized the search. See Maj. Op. at 758-62. The prison
officials inadvertently miscited the program statement Nunez
requested, see Maj. Op. at 759, but did not deny Nunez access
to the grievance process. The majority recognizes this point
when it states “[w]hen Nunez could not find [Program State-
ment 5500.09] in the prison library, he filed three successive
BP-8s attempting to obtain it.” Maj. Op. at 768. Nor is there
any evidence in the record that prison officials told Nunez that
he could not administratively pursue his Fourth Amendment
claim without a copy of the program statement. Instead, the
record shows that the prison officials accurately informed
Nunez of the substance of the applicable program statement
in response to Nunez’s initial BP-9, and also informed Nunez
that if he was “dissatisfied with this response, [he] may appeal
to the Regional Director.” Maj. Op. at 759. Not only did
Nunez have the “opportunity and ability,” Marella, 568 F.3d
at 1028, to use the prison’s grievance procedure, he actually
778 NUNEZ v. DR. DUNCAN
used the process after the event that ostensibly rendered his
remedies “unavailable.”
The majority attempts to skirt the significance of Nunez’s
vigorous use of the prison’s administrative procedures by
claiming that Nunez “believed in good faith that Program
Statement 5500.09 was necessary, not merely useful, for pre-
paring his appeal,” Maj. Op. at 769, although there is no sup-
port in the record for this speculation about Nunez’s
subjective belief. The majority infers that Nunez must have
believed the program statement was necessary because “the
Warden told him that the challenged strip search was autho-
rized by that Program Statement.” Maj. Op. at 769. But it
does not follow from the Warden’s statement that Nunez
needed a copy of the program statement for his appeal.
Nunez, for one, clearly concluded that the program statement
was not necessary to his appeal given that his Fourth Amend-
ment claim in his district court complaint does not even men-
tion, let alone rely on, the program statement.
Accordingly, the prison officials’ conceded miscitation of
the program statement did not make the administrative griev-
ance process “unavailable” to Nunez under any fair reading of
that term. Like any missed deadline or procedural default,
Nunez’s failure to comply with the regulations, where he
faced no obstruction to doing so, is nothing more than a for-
feiture of the prison’s grievance procedure. See Jones, 549
U.S. at 218; Moore, 517 F.3d at 725. Under these circum-
stances, our case law is clear: Because Nunez had the “oppor-
tunity and ability” to file his grievance in a timely manner, but
failed to do so, his case should be dismissed. Marella, 568
F.3d at 1028.
By holding that Nunez is excused from the PLRA’s
exhaustion requirement, despite the availability of administra-
tive remedies, the majority’s opinion creates a new exception
to the PLRA that is untethered from the language of
§ 1997e(a). According to the majority, exhaustion is excused
NUNEZ v. DR. DUNCAN 779
so long as a prisoner (1) takes “reasonable and appropriate
steps” to exhaust a claim, and (2) “was precluded from
exhausting, not through his own fault but by the Warden’s
mistake.” Maj. Op. at 767. Given the record in this case, the
majority apparently understands “precluded” to mean that
Nunez could not obtain information that he subjectively
believed would be useful in preparing his appeal. Therefore,
the majority’s lenient new rule eliminates the PLRA’s exhaus-
tion requirement when a prison’s clerical error delays the pris-
oner in obtaining helpful information.2
The majority’s new exception is far afield from the lan-
guage of the PLRA and is unsupported by case law. We are
“bound by the literal command of the PLRA, which precludes
an action by a prisoner ‘until such available administrative
remedies as are available have been exhausted,’ ” Panaro,
432 F.3d at 953 (quoting § 1997e(a)), and there is no statutory
basis for the majority’s conclusion that if the prison officials
are insufficiently helpful in the prisoner’s efforts to litigate a
grievance, the PLRA’s exhaustion requirement is excused.
The Supreme Court has been clear that administrative proce-
dures must be properly exhausted, even where it may appear
futile. See Booth, 532 U.S. at 741. By the same token, Nunez
should not be excused from exhausting his administrative
remedies even if he thought his claim would be less effective
without a copy of the prison’s written policy. Contrary to the
2
In discussing the PLRA’s exhaustion requirement, the majority cites
Justice Breyer’s concurrence in Ngo for his view that the PLRA exhaus-
tion requirement incorporated “well-established exceptions to exhaustion”
contained in administrative law. Maj. Op. at 765 (citing and quoting Ngo,
548 U.S. at 103-04 (Breyer, J., concurring)). However, the Supreme Court
has not adopted this analysis. Indeed, a unanimous Supreme Court previ-
ously rejected this very idea, stating that “we will not read futility or other
exceptions into [the PLRA’s] statutory exhaustion requirements where
Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731, 741
n.6 (2001); see Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008)
(recognizing the tension between Booth and Justice Breyer’s Ngo concur-
rence).
780 NUNEZ v. DR. DUNCAN
majority’s analysis, see Maj. Op. at 767-68, the question
whether Nunez was reasonable in pursuing the program state-
ment before exhausting administrative remedies is irrelevant
under the PLRA.
The majority’s effort to support its new exception by rely-
ing on policy considerations is also unpersuasive. The major-
ity claims that its new rule serves the PLRA’s dual goals of
“reduc[ing] the quantity and improv[ing] the quality of pris-
oner suits,” Ngo, 548 U.S. at 94 (quotation marks omitted),
because:
Had Nunez or someone in his position been provided
with the correct program statement upon his initial
request, he may have been satisfied and dropped his
complaint, thus reducing the quantity of suits. Alter-
natively, armed with the correct program statement,
Nunez or someone in his position may have still
believed that his Fourth Amendment rights were vio-
lated, but the quality of his suit would have been
enhanced.
Maj. Op. at 770. Yet the facts of this case directly contradict
these suppositions. We know that Nunez would not have been
satisfied upon receiving the program statement because he
pursued his claim even after he received it. Likewise, we
know exactly how the program statement enhanced the qual-
ity of Nunez’s suit, which is to say not at all, because when
Nunez actually filed his complaint he did not use the program
statement in making his Fourth Amendment claim. The
majority conjectures that a person “in [Nunez’s] position”
might have dropped his claim or improved his claim had the
prison provided the program statement, but fails to explain
why such a person would have behaved differently than
Nunez did. Rather than supporting the goals of the PLRA, the
majority’s new exception to the PLRA’s exhaustion require-
ment will defeat those goals by increasing the number of
suits, reducing the quality of the administrative record, and
NUNEZ v. DR. DUNCAN 781
preventing prisons from addressing complaints at the adminis-
trative stage. Cf. Jones, 549 U.S. at 219 (listing the benefits
of exhaustion). Moreover, policy considerations cannot
detract from our obligation to apply the language of the stat-
ute. As the Supreme Court warned us in this very context:
“Whatever temptations the statesmanship of policy-making
might wisely suggest, the judge’s job is to construe the statute
—not make it better.” Jones, 549 U.S. at 216 (quotation
marks omitted).
Because there is no basis to hold that administrative reme-
dies for Nunez’s Fourth Amendment challenge were unavail-
able, and because we have no authority to create a new
exception to the PLRA, we should affirm the district court’s
dismissal of Nunez’s claim.3 The majority’s new exhaustion
exception will open the door to “excuses” that prisoners need
not comply with the exhaustion requirement based solely on
prison officials’ clerical errors. I respectfully dissent.
3
Accordingly, I would not reach the merits of Nunez’s Fourth Amend-
ment claim, as the majority does in part III.A.2.