Juan Albino v. Lee Baca , 697 F.3d 1023 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ROBERTO ALBINO,  No. 10-55702
Plaintiff-Appellant,
D.C. No.
v.
 2:08-cv-03790-
LEE BACA, Los Angeles County GAF-MLG
Sheriff; LOS ANGELES COUNTY,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
July 12, 2012—Pasadena, California
Filed September 21, 2012
Before: Ronald Lee Gilman,* Richard C. Tallman, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge Gilman
*The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
11677
11680 ALBINO v. BACA
COUNSEL
Andrea R. St. Julian, San Diego, California, for the plaintiff-
appellant.
Christian E. Foy, Nagy and James C. Jardin (argued), Collins
Collins Muir + Stewart, LLP, South Pasadena, California, for
the defendant-appellee.
OPINION
N.R. Smith, Circuit Judge:
An inmate’s lack of awareness of a correctional institu-
tion’s grievance procedure does not make the administrative
remedy “unavailable” for purposes of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), unless the
inmate meets his or her burden of proving the grievance pro-
cedure to be unknowable. See Hilao v. Estate of Marcos, 103
F.3d 767, 778 n.5 (9th Cir. 1996); Goebert v. Lee Cnty., 510
ALBINO v. BACA 11681
F.3d 1312, 1322-24 (11th Cir. 2007). Because Albino has not
met his burden of proof, we affirm the district court’s grant
of summary judgment.
I. BACKGROUND
A. Facts
No party disputes that, during all relevant periods at issue
in this case, the Los Angeles County jails had a grievance pro-
cedure outlined in the Custody Division Manual § 5-
12/010.00. According to the grievance procedure, inmates
could file grievances (or complaints) regarding the conditions
of confinement, including grievances related to classifica-
tions. All inmates were permitted to submit a written com-
plaint; formal Inmate Complaint Forms were supplied to
facilitate complaint filings. Each housing unit in the jail was
required to have an adequate supply of Inmate Complaint
Forms, and inmates were required to have unrestricted access
to these forms. However, inmates were not required to use the
formal Inmate Complaint Forms; they could make a com-
plaint on any medium as long as it was written. Further, each
housing area also maintained a locked repository box accessi-
ble to inmates so that they could deposit their written com-
plaints unhindered.
On May 11, 2006, Juan Albino was arrested for rape and
incarcerated in the Los Angeles County Sheriff’s Depart-
ment’s main jail (“LASD Jail” or the “jail”). Upon arriving at
the LASD Jail, Albino was booked into the jail. As part of
that processing, jail staff determine the appropriate custody
and security level classification for inmates based on a num-
ber of factors, including the nature of their charge. After eval-
uation of the factors for Albino, especially Albino’s charge of
rape, Albino was assigned a custody and security level consis-
tent with placing him with the general inmate population.1
1
Albino was not charged under California Penal Code § 288 (lewd and
lascivious acts with a minor). Therefore, it is undisputed that Albino did
not require protective custody under Custody Division Manual
§ 5-02/060.00.
11682 ALBINO v. BACA
After he was assigned to the general population, Albino
alleges that he orally asked to be placed in protective custody.
However, sheriff’s deputies refused and instead assigned him
to the general population, consistent with the custody and
security level classification calculated during processing.
In June 2006, Albino claims that he was physically
assaulted and raped by fellow inmates after the inmates were
allegedly informed by deputies that Albino was a sex
offender. Albino was taken to the county hospital for treat-
ment of the injuries he sustained. After returning from the
hospital, Albino claims to have again orally asked for protec-
tive custody. Though his request was rejected, deputies told
Albino to contact his public defender for assistance (Albino
alleges specifically that the deputies stated, “it is your attor-
neys [sic] job to protect [you]”). However, without any writ-
ten request from Albino or his attorney, the jail relocated him
to another housing location for his safety.
Albino alleges that he was subsequently assaulted on two
separate occasions, once in July 2006 and once in September
2006. He acknowledges that he was taken to the jail clinic for
treatment after each of these incidents. Albino claims to have
orally asked for protective custody after each incident. While
the oral requests were denied, he was again relocated to a dif-
ferent housing unit for his safety after the July 2006 incident.
The record includes incident reports created by LASD Jail
personnel for the June and July incidents. The incident reports
indicate that Albino was rehoused for his safety, and the
reports provide no indication that Albino was dissatisfied with
this action. There is no evidence that Albino filed (or made
any effort to file) a written request for protective custody or
any sort of written complaint. Instead, Albino made only oral
requests for protective custody, and jail staff directed him to
talk to his public defender. No evidence suggests he ever
talked to his public defender about protective custody or com-
plaining of his situation. The incident reports also provide no
ALBINO v. BACA 11683
information concerning whether Albino was informed of the
grievance procedure. Therefore, in reviewing this motion, we
conclude that he was personally unaware of the grievance
procedure and he was not expressly informed of the LASD
Jail’s grievance procedure by the jail.
B. Procedural History
Albino filed suit against Los Angeles County, Sheriff Lee
Baca (“Baca”), and other John Doe defendants (collectively
“Defendants”) under 42 U.S.C. § 1983.2 Albino “allege[d]
that his Constitutional rights were violated by Defendants’
failure to protect him from other inmates and by Defendants’
deliberate indifference to his serious medical needs.” In addi-
tion, Albino claimed that Baca failed to adequately train and
supervise his deputies. Lastly, Albino alleged the state law
claims of intentional infliction of emotional distress and gross
negligence.
On August 7, 2009, Baca filed a motion for summary judg-
ment. Baca claimed that Albino’s lawsuit must be dismissed,
because Albino failed to exhaust his administrative remedies
as required by 42 U.S.C. § 1997e(a). Albino did not dispute
that he failed to file a written complaint. Instead, Albino
argued that the grievance procedure was “unavailable.” Spe-
cifically, Albino argued that (1) he was never given an orien-
tation by jail staff; (2) he never saw Custody Division Manual
§ 5-12/010.00, or, if he did, it was not in Spanish and he did
not understand what it was; (3) he has never spoken to anyone
who has heard of Custody Division Manual § 5-12/010.00; (4)
he has never seen or heard of a complaint form; (5) he never
noticed any complaint box and no one ever mentioned such
a box; and (6) he was locked down to such a degree that he
2
Baca is the only remaining named defendant. The district court granted
Defendant’s motion to dismiss the County of Los Angeles as a defendant,
D.C. Dkt. No. 26, and the magistrate judge denied a motion to add the
names of the John Doe defendants. Albino does not appeal these rulings.
11684 ALBINO v. BACA
never learned of the procedures. In essence, Albino “contend-
[ed] that even if a grievance procedure existed, the failure to
explicitly inform him of it obviates his need to exhaust,”
because the failure to inform him of the grievance procedure
(even though he never asked) rendered it unavailable.
The magistrate judge agreed with Baca and recommended
granting the motion for summary judgment. First, the magis-
trate judge found “no genuine issue of material fact as to the
existence of a grievance procedure at the jail, its accessibility
to inmates, or [Albino’s] failure to avail himself of it.” Specif-
ically, based on the evidence regarding the LASD Jail’s griev-
ance procedure, the magistrate judge found that the LASD Jail
“had an accessible administrative procedure for seeking
redress of grievances at the time of the incidents.”
Second, the magistrate judge assumed that Albino was not
aware of the grievance procedure and that the jail failed to
inform him of such procedure. The magistrate judge noted
that the Ninth Circuit has not yet addressed whether an
inmate’s lack of awareness of a jail’s grievance procedure and
a jail’s failure to inform an inmate together excuse exhaus-
tion. The magistrate judge also noted that “other Circuit
Courts of Appeals have held that neither a lack of awareness
of available grievance procedures nor a prison’s failure to
inform an inmate of them excuses his failure to exhaust.” The
magistrate judge then adopted the out-of-circuit approach.
Therefore, the magistrate judge concluded that Albino’s “lack
of awareness of jail grievance procedures does not excuse his
admitted failure to exhaust administrative remedies prior to
bringing suit.”3
3
In the magistrate judge’s report and recommendation, the magistrate
judge noted that if LASD Jail officials had actively prevented Albino from
availing himself of the jail grievance procedure, his failure to exhaust may
have been excused. Here, the record does not demonstrate (and the magis-
trate judge did not find) that Albino was prevented from availing himself
of the available procedures.
ALBINO v. BACA 11685
The district court accepted and adopted the magistrate
judge’s findings and recommendations in full. Hence, the dis-
trict court agreed that Albino had failed to exhaust his admin-
istrative remedies, because administrative remedies were
“available” within the meaning of 42 U.S.C. § 1997e(a), not-
withstanding Albino’s lack of awareness of the grievance pro-
cedure and LASD Jail’s failure to inform Albino of such a
procedure.
Albino timely filed this appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s decision to grant summary
judgment. Universal Health Servs., Inc. v. Thompson, 363
F.3d 1013, 1019 (9th Cir. 2004). On summary judgment
“[w]e must determine, viewing the evidence in the light most
favorable to the nonmoving party, whether there are any gen-
uine issues of material fact and whether the district court cor-
rectly applied the relevant substantive law.” Id. (quoting
EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742,
746 (9th Cir. 2003)) (internal quotation marks omitted).
Here, Baca asserted the affirmative defense of nonexhaus-
tion in his answer. Later, he filed a motion for summary judg-
ment, and the magistrate judge reviewed the case under the
summary judgment standard. However, this was error. “[W]e
have held that the failure to exhaust nonjudicial remedies that
are not jurisdictional [such as a prison’s grievance proce-
dures] should be treated as a matter in abatement, which is
subject to an unenumerated Rule 12(b) motion rather than a
motion for summary judgment.” Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003); accord Ritza v. Int’l Longshore-
men’s & Warehousemen’s Union, 837 F.2d 365, 368-69 (9th
Cir. 1988) (per curiam) (“[F]ailure to exhaust nonjudicial
remedies should be raised in a motion to dismiss, or be treated
as such if raised in a motion for summary judgment.”). There-
11686 ALBINO v. BACA
fore, the magistrate judge should have treated the summary
judgment motion as an unenumerated Rule 12(b) motion.4
If the magistrate judge had treated the motion for summary
judgment as an unenumerated Rule 12(b) motion, then our
review of the district court’s dismissal based on a failure to
exhaust would be de novo under a slightly different standard
than in a motion for summary judgment review. Sapp v. Kim-
brell, 623 F.3d 813, 821 (9th Cir. 2010). “[I]n deciding a
motion to dismiss for failure to exhaust, a [district] court may
‘look beyond the pleadings and decide disputed issues of
fact.’ ” Id. (quoting Wyatt, 315 F.3d at 1119-20). Thus, unlike
our review under a summary judgment standard, the district
court’s factual findings are reviewed for clear error. Id. A dis-
trict court’s factual findings are clearly erroneous if they are
illogical, implausible, or without support from inferences that
may be drawn from the record. United States v. Hinkson, 585
F.3d 1247, 1259-61 (9th Cir. 2009) (en banc).
Notwithstanding the magistrate judge’s error, because there
are no real factual disputes in this case, the net effect is that
the de novo standard is applied effectively the same under
either an unenumerated Rule 12(b) motion or a summary
judgment motion. In sum, the error does not affect the out-
come. See Sussman v. Am. Broad. Cos., 186 F.3d 1200, 1203
(9th Cir. 1999) (“We may affirm the district court on any
basis supported by the record.”).
4
Albino argues that the Ninth Circuit rule in Wyatt has been abrogated
or overruled by Jones v. Bock, 549 U.S. 199 (2007), so the district court’s
decision should be reviewed de novo under a summary judgment standard.
However, Sapp v. Kimbrell reaffirmed the validity of Wyatt. Sapp v. Kim-
brell, 623 F.3d 813, 821 (9th Cir. 2010) (“In deciding a motion to dismiss
for failure to exhaust, a court may ‘look beyond the pleadings and decide
disputed issues of fact.’ ” (quoting Wyatt, 315 F.3d at 1119-20)); see also
Jensen v. Knowles, 621 F. Supp. 2d 921, 925 (E.D. Cal. 2008) (explaining
why Jones v. Bock does not alter Wyatt). Therefore, Wyatt continues to be
the law of this Circuit.
ALBINO v. BACA 11687
III. DISCUSSION
A. General Requirement of Exhaustion Under the PLRA
and Its Purpose
Congress “placed a series of controls on prisoner suits, con-
straints designed to prevent sportive filings in federal court.”
Skinner v. Switzer, 131 S. Ct. 1289, 1299 (2011). One of these
constraints is the mandatory exhaustion of the correctional
facilities’ administrative remedies. See 42 U.S.C. § 1997e(a);
Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no ques-
tion that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”).
Exhaustion serves two purposes. Woodford v. Ngo, 548
U.S. 81, 89 (2006).
First, exhaustion protects administrative agency
authority. Exhaustion gives an agency an opportu-
nity 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.
Second, exhaustion promotes efficiency. Claims
generally can be resolved much more quickly and
economically in proceedings before an agency than
in litigation in federal court.
Id. (internal quotation marks, alteration, and citations omit-
ted).
[1] The PLRA mandates that “[n]o action shall be brought
with respect to prison conditions under section 1983 . . . , 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.” 42 U.S.C.
§ 1997e(a) (emphasis added). Although “the PLRA’s exhaus-
11688 ALBINO v. BACA
tion requirement applies to all inmate suits about prison life,”
Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement
for exhaustion under the PLRA is not absolute. As explicitly
stated in the PLRA, “[t]he PLRA requires that an inmate
exhaust only those administrative remedies ‘as are avail-
able.’ ” Sapp, 623 F.3d at 822 (quoting 42 U.S.C. § 1997e(a));
see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.
2010) (“Remedies that rational inmates cannot be expected to
use are not capable of accomplishing their purposes and so are
not available.” (quoting Turner v. Burnside, 541 F.3d 1077,
1084 (11th Cir. 2008)) (internal quotation mark omitted)).
“We have recognized that the PLRA therefore does not
require exhaustion when circumstances render administrative
remedies ‘effectively unavailable.’ ” Sapp, 623 F.3d at 822
(citing Nunez, 591 F.3d at 1226); accord Brown v. Valoff, 422
F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust
‘available’ remedies persists as long as some remedy remains
‘available.’ Once that is no longer the case, then there are no
‘remedies . . . available,’ and the prisoner need not further
pursue the grievance.” (alteration in original)).
B. Burden of Proof
Exhaustion, under the PLRA, is an affirmative defense.
Jones, 549 U.S. at 216. Because exhaustion under the PLRA
is an affirmative defense, “[t]he burden of establishing nonex-
haustion therefore falls on defendants.” Wyatt, 315 F.3d at
1112; accord Brown, 422 F.3d at 936 (“[D]efendants have the
burden of raising and proving the absence of exhaustion.”)
(quoting Wyatt, 315 F.3d at 1119) (internal quotation marks
omitted). Once the defense meets its burden, the burden shifts
to the plaintiff to show that the administrative remedies were
unavailable. See Hilao, 103 F.3d at 778 n.5; Tuckel v. Grover,
660 F.3d 1249, 1254 (10th Cir. 2011) (“Once a defendant
proves that a plaintiff failed to exhaust, however, the onus
falls on the plaintiff to show that remedies were unavailable
. . . .”).
ALBINO v. BACA 11689
1. Defendant Met His Burden of Proving Administrative
Remedies Existed and Were Not Followed
A defendant’s burden of establishing an inmate’s failure to
exhaust is very low. See Brown, 422 F.3d at 945 (Reinhardt,
J., dissenting) (“Given that the mere existence of an additional
hearing or process may be sufficient to constitute an available
administrative remedy under [Supreme Court precedent], any
question as to whether there are in fact other types of avail-
able relief is inconsequential.”). The exact extent of a defen-
dant’s burden of proof is articulated in Hilao, 103 F.3d at 778
n.5, and Brown, 422 F.3d at 936-37.
In Hilao, while interpreting almost identical text as that in
the PLRA, we outlined the burden of a defendant when rais-
ing the failure to exhaust administrative remedies as an affir-
mative defense. 103 F.3d at 778 n.5. A defendant need only
show the existence of remedies that the plaintiff did not use.
Id. In Hilao, we dealt with the failure to exhaust (affirmative
defense) under the Torture Victim Protection Act of 1991
(“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350.
The TVRA states that “[a] court shall decline to hear a claim
under this section if the claimant has not exhausted adequate
and available remedies in the place in which the conduct giv-
ing rise to the claim occurred.” 28 U.S.C. § 1350, note, § 2(b)
(emphasis added). Like the TVRA, the PLRA requires the
administrative remedies to be available. We determined that
the respondent “has the burden of raising the nonexhaustion
of remedies as an affirmative defense and must show that
domestic remedies exist that the claimant did not use.”5 Hilao,
103 F.3d at 778 n.5 (quoting S. Rep. No. 249 at 9-10).
5
“Once the defendant makes a showing of remedies abroad which have
not been exhausted, the burden shifts to the plaintiff to rebut by showing
that the local remedies were ineffective, unobtainable, unduly prolonged,
inadequate, or obviously futile.” Hilao, 103 F.3d at 778 n.5 (quoting S.
Rep. No. 249 at 9-10).
11690 ALBINO v. BACA
In Brown, we stated that, because “there can be no ‘absence
of exhaustion’ unless some relief remains ‘available,’ a defen-
dant must demonstrate that pertinent relief remained avail-
able, whether at unexhausted levels of the grievance process
or through awaiting the results of the relief already granted as
a result of that process.” 422 F.3d at 936-37. To understand
the extent of the defendant’s burden to show that the “perti-
nent relief remained available,” we stated that “[r]elevant evi-
dence in so demonstrating would include statutes, regulations,
and other official directives that explain the scope of the
administrative review process.” Id. at 937. This indicates that
a defendant, under the PLRA, must show that some adminis-
trative relief existed to meet his or her burden of proof. Thus,
for Baca to meet his burden, he must show that (1) a griev-
ance procedure existed and (2) Albino did not exhaust the
grievance procedure. See Hilao, 103 F.3d at 778 n.5; Tuckel,
660 F.3d at 1254 (“Defendants thus bear the burden of assert-
ing and proving that the plaintiff did not utilize administrative
remedies.”).
[2] Baca met his burden. He presented evidence that
LASD Jail had a formal grievance procedure through attach-
ing Custody Division Manual § 5-12/010.00, which describes
the procedure, and through a declaration of a sheriff’s deputy.
He provided evidence that inmates could submit written
grievances regarding any prison condition, whether or not the
inmate utilized the formal Inmate Complaint Forms; that unit
commanders were required to ensure that each housing facil-
ity had adequate Inmate Complaint Forms available and that
inmates had unrestricted access to the forms; and that each
housing unit was required to have locked repository boxes
accessible to inmates so that inmates could deposit complaints
without hindrance, or inmates could give complaints to jail
staff. Further, Baca claims that Albino did not submit any
written grievance. Importantly, Albino concedes that a griev-
ance procedure existed and that he did not follow the proce-
dure. Thus, Baca has met his burden of showing a grievance
procedure existed, and it was not followed.
ALBINO v. BACA 11691
2. Plaintiff Has Not Met His Burden of Proving that the
Administrative Remedies Were Unavailable
Because Baca has met his burden of showing the absence
of exhaustion, the burden shifts to Albino to demonstrate that
the grievance procedure was unavailable.6 See Hilao, 103
F.3d at 778 n.5 (“Once the defendant makes a showing of
remedies abroad which have not been exhausted, the burden
shifts to the plaintiff to rebut by showing that the local reme-
dies were ineffective, unobtainable, unduly prolonged, inade-
quate, or obviously futile.”) (quoting S. Rep. No. 249 at 9-10).
Albino argues that he could not have complied with the griev-
ance procedure, because (1) he was unaware of the procedure,
(2) the LASD Jail failed to inform him of the procedure, and
(3) the jail had no method in place to inform inmates of the
procedure. We therefore must determine whether Albino has
met his burden of showing that LASD Jail’s grievance proce-
dure was “unavailable” (within the meaning of the PLRA)
where LASD Jail officials did not inform Albino of the griev-
ance procedure and he was unaware of the existence of the
jail’s procedure. Because Albino has not shown (1) that jail
staff affirmatively interfered with his ability to exhaust
administrative remedies or (2) that the remedies were
unknowable, he has not met his burden of showing that the
jail grievance procedure was “unavailable.”
6
See Tuckel, 660 F.3d at 1254 (“Once a defendant proves that a plaintiff
failed to exhaust, however, the onus falls on the plaintiff to show that rem-
edies were unavailable . . . .”); Nunez, 591 F.3d at 1224 (“Ngo hasn’t
shown that administrative procedures were unavailable, that prison offi-
cials obstructed his attempt to exhaust or that he was prevented from
exhausting because procedures for processing grievances weren’t fol-
lowed.” (quoting Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008))
(internal quotation marks omitted)); Johnson v. Dist. of Columbia, CIV.A.,
No. 11-1445 JEB, 2012 WL 2355577, at *3 (D.D.C. June 21, 2012)
(“Once Defendant has shown that Plaintiff failed to exhaust his adminis-
trative remedies, the burden shifts to Plaintiff to establish that a failure to
exhaust was due to the unavailability of remedies.”).
11692 ALBINO v. BACA
i. Case Law Finding Administrative Remedies
Effectively Unavailable Because of Affirmative Acts
Preventing or Disrupting Exhaustion
In Sapp v. Kimbrell, we determined “that improper screen-
ing of an inmate’s administrative grievances render[ed]
administrative remedies ‘effectively unavailable’ such that
exhaustion [was] not required under the PLRA.” 623 F.3d at
823. We found that “[i]f prison officials screen out an
inmate’s appeals for improper reasons, the inmate cannot pur-
sue the necessary sequence of appeals, and administrative
remedies are therefore plainly unavailable.” Id. We noted that
our holding
promote[d] exhaustion’s benefits by removing any
incentive prison officials might otherwise have to
avoid meaningfully considering inmates’ grievances
by screening them for improper reasons. Excusing a
failure to exhaust when prison officials improperly
screen an inmate’s administrative appeals helps
ensure that prison officials will consider and resolve
grievances internally and helps encourage use of
administrative proceedings in which a record can be
developed that will improve the quality of decision-
making in any eventual lawsuit. At the same time,
this exception does not alter prisoners’ incentive to
pursue administrative remedies to the extent possi-
ble.
Id. While the exception recognized in Sapp promotes the pur-
poses of exhaustion, “[t]o fall within this exception, a prisoner
must show that he attempted to exhaust his administrative
remedies but was thwarted by improper screening.” Id.
In Nunez we determined that Nunez’s failure to exhaust his
administrative remedies was excused, “because he took rea-
sonable and appropriate steps to exhaust his . . . claim and
was precluded from exhausting, not through his own fault but
ALBINO v. BACA 11693
by the Warden’s mistake.” 591 F.3d at 1224. Nunez took
many steps to exhaust his administrative remedies. Id. at
1220-22, 1224-25. However, Nunez requested a citation to the
law or regulation under which the conduct at issue was autho-
rized, and the warden mistakenly provided the wrong citation.
Id. at 1220. Because of the erroneous citation, Nunez ulti-
mately failed to properly follow the grievance procedures. Id.
at 1221-23. Importantly, we did not excuse exhaustion,
because “Nunez could not obtain information that he subjec-
tively believed would be useful in preparing his appeal.” Id.
at 1225 (quoting the dissent) (internal quotation marks omit-
ted). Instead, we held “that exhaustion [was] excused because
Nunez could not [have] reasonably be[en] 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 appropriate steps
to obtain it.” Id. “Nunez believed in good faith that [the erro-
neous] Program Statement . . . was necessary, not merely use-
ful, 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.” Id. “[H]e
was finally told . . . that the Program Statement . . . did not
relate to strip searches. But up until that time, Nunez reason-
ably believed, based on the Warden’s written response . . .
that he needed to see [the] Program Statement . . . before he
could prepare an effective appeal.” Id. at 1226. Even though
the Warden’s mistake was innocent, “the mistake led Nunez
on an almost ten-month wild goose chase.” Id. “[H]aving
done everything he could do to obtain a document that the
Warden had led him to believe he needed, [Nunez] promptly
filed his [grievance form]. Rational inmates cannot be
expected to use grievance procedures to achieve the proce-
dures’ purpose when they are misled into believing they
must” perform an impossible action “in order to effectively
pursue their administrative remedies . . . .” Id.
[3] Sapp and Nunez are not controlling for this issue. In
those cases, we determined that affirmative actions by jail
11694 ALBINO v. BACA
staff preventing proper exhaustion, even if done innocently,
make administrative remedies effectively unavailable.7 Here,
there is no evidence that any jail official engaged in any mis-
conduct that prohibited Albino from learning of or following
the grievance procedure. The jail officials did not state that
there were no available remedies. See Brown, 422 F.3d at 946
(Reinhardt, J., dissenting) (“[R]elief would be unavailable . . .
when the prisoner is explicitly told, or the regulations make
it plain, that there is no further relief available to him.”).
Unlike Nunez, LASD Jail officials did nothing to direct
Albino in a direction that would cause him not to exhaust his
remedies. Further, unlike Sapp, there is no evidence that
LASD Jail staff improperly handled a complaint by Albino,
because Albino never attempted to file a written complaint. In
sum, Sapp and Nunez are inapplicable here, because there is
no evidence that the LASD officials took any action to delay
or thwart Albino’s efforts to utilize or exhaust its grievance pro-
cedure.8
7
Our sister circuits also hold that exhaustion is not required when affir-
mative actions of prison officials make administrative remedies effectively
unavailable. Sapp, 623 F.3d at 822-23 (compiling cases); Nunez, 591 F.3d
at 1224 (same). For example, according to our sister circuits, exhaustion
is excused when prison officials refuse to provide the required grievance
forms upon request or ignore such a request. See, e.g., Dale v. Lappin, 376
F.3d 652, 656 (7th Cir. 2004); Miller v. Norris, 247 F.3d 736, 738, 740
(8th Cir. 2001). Similarly, exhaustion is excused when prison officials fail
to respond to a properly filed grievance. Dole v. Chandler, 438 F.3d 804,
809, 811 (7th Cir. 2006). Exhaustion is also excused when prison staff
erroneously informs the inmate that he must await the termination of an
investigation before filing a grievance. Brown v. Croak, 312 F.3d 109,
111-12 (3d Cir. 2002). Lastly, threats of retaliation for filing a grievance
excuse exhaustion. Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.
2008); Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007); Kaba v. Stepp, 458
F.3d 678, 685-86 (7th Cir. 2006).
8
The dissent would conclude that the deputies’ failure to inform Albino
of the jail’s grievance procedures after he complained orally constitutes a
“mistake” by the jail that prevented Albino from exhausting his claims.
There is no precedent for this premise and the dissent cites none. In Sapp
and Nunez, it was the jails’ own conduct, even if accidental, that prevented
ALBINO v. BACA 11695
Albino argues that deputies affirmatively acted to mislead
him about the grievance procedure, because deputies told
Albino to contact his attorney for help. However, no evidence
suggests that he contacted his public defender about his clas-
sification or about protective custody. We presume that the
public defender would have advised him of the grievance pro-
cedure process and how to comply. Instead of making the
jail’s grievance procedure unavailable, like providing the
wrong regulation citation in Nunez, telling Albino to contact
his attorney actually led Albino in the direction of learning of
the grievance procedure and how to comply. The statement
did not prevent Albino from discovering or complying with
the grievance procedure. Lastly, our decision should not, by
determining that they erred here, discourage custodians from
advising detainees to speak with their lawyers should the
detainees have concerns about the conditions of their confine-
ment.
ii. Subjective Lack of Awareness Does Not Make an
Administrative Remedy Unavailable When the Remedy is
Knowable
[4] Albino has the burden to show that the grievance pro-
cedure was unavailable based on his unawareness of the
grievance procedure and the LASD Jail’s failure to inform
him of the procedure. We hold that he has failed to meet his
burden.
[5] In Hilao, because we held that the defense must only
show that administrative remedies were available and unused,
the detainees from exhausting their remedies. The dissent’s view would
dramatically extend those cases by allowing a detainee to, in essence, trig-
ger a “mistake” that will then place the burden on the jail to assure that
a prisoner is subjectively aware of grievance procedures. However, the
defense has already met its burden under our precedent by evidencing the
existence of administrative remedies. See Brown, 422 F.3d at 936-37.
Albino has failed to meet his burden to show that the remedies were
unavailable.
11696 ALBINO v. BACA
it follows that an inmate’s subjective unawareness of an
administrative remedy and a prison’s failure to expressly
inform the inmate of the remedy are not alone sufficient to
excuse exhaustion. See 103 F.3d at 778 n.5. We have previ-
ously required a good-faith effort on the part of inmates to
exhaust a prison’s administrative remedies as a prerequisite to
finding remedies effectively unavailable. See Sapp, 623 F.3d
at 823; (“[A] prisoner must show that he attempted to exhaust
his administrative remedies but was thwarted by improper
screening.”); Nunez, 591 F.3d at 1224 (“[Nunez] took reason-
able and appropriate steps to exhaust his Fourth Amendment
claim and was precluded from exhausting . . . .”). This princi-
ple logically extends to the current situation to obligate an
inmate to make reasonable, good-faith efforts to discover the
appropriate procedure for complaining about prison condi-
tions before unawareness may possibly make a procedure
unavailable.
Other circuits have addressed this issue. The Second Cir-
cuit has articulated that “[t]he test for deciding whether the
ordinary grievance procedures were available must be an
objective one: that is, would ‘a similarly situated individual of
ordinary firmness’ have deemed them available.” Hemphill v.
New York, 380 F.3d 680, 688 (2d Cir. 2004) (quoting Davis
v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Similarly, the
Eleventh Circuit, in Goebert v. Lee County, applied an objec-
tive standard. 510 F.3d at 1322-24. An objective standard is
consistent with how we have articulated the test regarding
whether administrative remedies are unavailable in terms of
whether “[r]ational inmates can[ ] be expected to use [the]
grievance procedures . . . .” See Nunez, 591 F.3d at 1226.
Goebert is of particular importance because it involved an
inmate’s unawareness of the administrative procedure. In
Goebert, Goebert did not know and could not have found out
that she could or should have appealed a denial of her admin-
istrative complaint. 510 F.3d at 1322. The parties agreed (1)
that the Inmate Handbook contained “nothing . . . about any
ALBINO v. BACA 11697
procedure for appealing the denial of a complaint” and (2)
that, although the appeal procedure was laid out in the jail’s
General Operating Procedures, “no inmate was ever permitted
to see those procedures . . . .” Id. Thus, there was nothing in
the record leading a reasonable inmate to believe there was an
appeal procedure or indicating that an inmate could have dis-
covered the appeal procedure upon a reasonable effort. See id.
Under these circumstances, Goebert held that the failure to
exhaust is excused when an inmate does not know of the
grievance procedure and could not have reasonably discov-
ered the procedure. Id. at 1322-24; see also Bryant v. Rich,
530 F.3d 1368, 1373 n.6 (11th Cir. 2008) (“We have said that
an administrative remedy is not ‘available’ if it is unknown
and unknowable to the inmate.” (citing Goebert, 510 F.3d at
1323)). Simply put, “[t]hat which is unknown and unknow-
able is unavailable; it is not ‘capable of use for the accom-
plishment of a purpose.’ ” Goebert, 510 F.3d at 1323 (quoting
Booth v. Churner, 532 U.S. 731, 738 (2001)). Applying its
test to the facts in Goebert, the Eleventh Circuit held that the
grievance procedures were not “available,” because Goebert
was unaware of the appeal procedures and could not have dis-
covered them through reasonable effort. Id. at 1322-23. The
Eleventh Circuit articulated its objective standard in the con-
text of an inmate lacking knowledge of the grievance proce-
dure.
Other out-of-circuit cases support an “unknowable,” objec-
tive standard by rejecting an inmate’s subjective unawareness
alone as sufficient to make a prison’s administrative proce-
dure unavailable. For example, in Chelette v. Harris, the
Eighth Circuit held that the inmate failed to exhaust his
administrative remedies even though the warden had “stated
he would take care of the matter.” 229 F.3d 684, 686 (8th Cir.
2000). The Eighth Circuit rejected the district court’s finding
that the inmate “could logically have believed that he had
exhausted such administrative remedies as were available to
him . . . .” Id. at 688. It stated:
11698 ALBINO v. BACA
If it is “likely” that Chelette could have filed a griev-
ance over the alleged lack of medical care, it can
hardly be said that he exhausted such administrative
remedies as were available to him. Section 1997e(a)
says nothing about a prisoner’s subjective beliefs,
logical or otherwise, about the administrative reme-
dies that might be available to him. The statute’s
requirements are clear: If administrative remedies
are available, the prisoner must exhaust them.
Id. Admittedly Chelette is distinguishable from the present
case, because the inmate knew about the grievance procedures
but chose not to pursue them given the warden’s representa-
tion. Nevertheless, Chelette is instructive because of the
court’s holding that the prisoner’s subjective belief was not
determinative of whether a grievance procedure was “unavail-
able.”
Construing Chelette, several circuit courts of appeal and
district courts have concluded that a plaintiff’s lack of knowl-
edge of the administrative procedures does not make those
procedures unavailable. E.g., Twitty v. McCoskey, 226 F.
App’x 595, 595-96 (7th Cir. 2007) (unpublished) (rejecting
inmate’s argument that his failure to exhaust should have
been excused, because he was unaware of the procedure and
the prison failed to inform him of it); Brock v. Kenton Cnty.,
93 F. App’x 793 (6th Cir. 2004) (unpublished) (the Sixth Cir-
cuit has rejected an inmate’s argument that exhaustion was
unavailable to him because he was unaware of the system);
Gonzales-Liranza v. Naranjo, 76 F. App’x 270, 273 (10th Cir.
2003) (unpublished) (“Thus, even accepting plaintiff’s allega-
tion that he was unaware of the grievance procedures, there
is no authority for waiving or excusing compliance with
PLRA’s exhaustion requirement.”); Johnson, 2012 WL
2355577, at *6 (“While th[e D.C.] Circuit has not yet weighed
in on the issue, the majority of courts to have done so have
held that an inmate’s subjective lack of information about his
administrative remedies does not excuse a failure to
ALBINO v. BACA 11699
exhaust.”). None of the plaintiffs in the foregoing cases chal-
lenged the existence of the procedure nor did any of the plain-
tiffs suggest that they could not have discovered the
administrative procedure through reasonable effort. In short,
the plaintiffs’ ignorance of the administrative remedies alone
did not excuse exhaustion. Cf. Fisher v. Johnson, 174 F.3d
710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse
prompt filing.”); Cooper v. Bell, 628 F.2d 1208, 1212 n.6 (9th
Cir. 1980) (“mere ignorance of one’s legal rights does not jus-
tify extension of a filing period”), overruled on other grounds
as recognized in Valenzuela v. Kraft, Inc., 801 F.2d 1170,
1174 (9th Cir. 1986)); Marrero Morales v. Bull Steamship
Co., 279 F.2d 299, 301 (1st Cir. 1960) (“[M]any cases have
held that ignorance of one’s legal rights does not excuse a
failure to institute suit.”). Furthermore, a prison’s failure to
inform an inmate of its grievance procedure does not automat-
ically make a grievance procedure unavailable. See Hilao, 103
F.3d at 778 n.5; Yousef v. Reno, 254 F.3d 1214, 1221 (10th
Cir. 2001) (holding that the Assistant Attorney General
(“AAG”) had no duty to inform the prisoner of the prison’s
formal grievance procedures when the AAG responded to an
inmate’s informal complaint).
[6] Therefore, for an inmate to claim that a prison’s griev-
ance procedure was effectively unavailable due to the
inmate’s unawareness of the procedure, the inmate must show
that the procedure was not known and unknowable with rea-
sonable effort. Such a standard mitigates the concern raised in
Goebert that jails and prisons should not be allowed “to play
hide-and-seek with administrative remedies,” Goebert, 510
F.3d at 1323, because Albino has failed to show that LASD
Jail hid the procedure and failed to show that Albino could
not discover it if he would have sought to pursue it. Further,
the standard is consistent with the ordinary meaning of “avail-
able.” See Hilao, 103 F.3d at 778 n.5 (indicating that an exist-
ing administrative remedy is available unless it is somehow
“ineffective, unobtainable, unduly prolonged, inadequate, or
11700 ALBINO v. BACA
obviously futile”); cf. Mohamad v. Palestinian Auth., 132 S.
Ct. 1702, 1706 (2012) (reading the word “individual” based
on its natural, ordinary meaning); Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 175 (2009) (“Statutory construction must
begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accu-
rately expresses the legislative purpose.” (internal quotation
marks omitted)). The definition of “available” is “capable of
use for the accomplishment of a purpose,” and that which “is
accessible or may be obtained.” Booth, 532 U.S. at 737 (quot-
ing Webster’s Third New International Dictionary 150
(1993)) (internal quotation marks omitted). With these consid-
erations in mind we explain why Albino fails to meet his bur-
den of proof.
[7] To meet his burden of proving the unavailability of the
grievance procedure, Albino submitted his declaration. How-
ever, Albino’s assertions in his declaration alone do not meet
his burden of proof, because the assertions simply prove that
Albino was subjectively unaware of the grievance procedure.
[8] Here, while Albino claims ignorance of LASD Jail’s
grievance procedure, the LASD Jail had a formal grievance
procedure that was accessible and such facts were undisputed.
The grievance procedure was accessible for a number of rea-
sons: (1) the procedure was outlined in Custody Division
Manual § 5-12/010.00; (2) inmates could submit written
grievances regarding any prison condition, whether or not the
inmate utilized the formal Inmate Complaint Forms; (3) unit
commanders were required to ensure that each housing facil-
ity had adequate Inmate Complaint Forms available and that
inmates had unrestricted access to the forms; and (4) each
housing unit was required to have locked repository boxes
accessible to inmates so that inmates could deposit complaints
without hindrance, or inmates could give complaints to jail
staff. The magistrate judge also found no genuine issue of
material fact that the LASD Jail’s grievance procedure was
accessible, and thus, by inference, knowledge of the grievance
ALBINO v. BACA 11701
procedure could have been obtained. Therefore, simply
because Albino was unaware of the grievance procedure does
not mean that the procedure was unknowable.
Anticipating the problem that subjective unawareness
would not be enough, Albino contends that his subjective
unawareness was objectively reasonable, because he says the
jail had no formal method for informing the inmates of the
grievance procedure.9 Notwithstanding, Albino’s declaration
only proves that he was subjectively unaware of the grievance
procedures and does not support his theory that his unaware-
ness was objectively reasonable. He provides no evidence to
show that he could not have discovered the grievance proce-
dure with reasonable effort.
For example, he asserts that (1) he never had an orientation;
(2) he never saw the Custody Division Manual § 5-12/010.00,
or if he did, it was not in Spanish; (3) he has never spoken to
an inmate aware of § 5-12/010.00; and (4) he had never seen
or heard of a complaint box. Each of these assertions only
shows Albino’s lack of subjective awareness. Unlike Goebert,
where the inmate could not have discovered the procedure
with reasonable effort because the inmate handbook did not
explain the procedure, 510 F.3d at 1323, Albino does not
show that he was foreclosed from discovering the procedure
with reasonable effort. In Goebert, the parties agreed that the
inmate manual did not describe the procedure at issue and that
the jail never permitted inmates to see the General Operating
Procedures manual that actually did describe the procedure.
Id. at 1322. Here, Albino fails to dispute that the Custody
Division Manual described the grievance procedure in § 5-
12/010.00, that jail policies required every housing unit to
9
On summary judgment, Baca may have been at a disadvantage as to
this argument. If he would have presented evidence of a method of
informing inmates, this would have created an issue of material fact and
could have derailed Baca’s chances of winning on summary judgment. In
any event the record is silent on this point.
11702 ALBINO v. BACA
have an adequate supply of Inmate Complaint Forms, or that
locked grievance repositories existed in each housing unit.
Albino fails to satisfy his burden of showing why these facts
do not indicate that an inmate could have discovered the
LASD Jail’s grievance procedure with reasonable effort.10
[9] Furthermore, there is no evidence in the record that
Albino would not have been able to discover the grievance
procedure. Instead, the record indicates that (with some effort)
he likely could have become aware of the grievance proce-
dure. As counsel for defendant aptly noted in oral argument,
this case boils down to an inmate that alleges “I didn’t see”
rather than “I looked and couldn’t find” and “no one told me”
rather than “I asked and wasn’t told or was told misinforma-
tion.”
Although on summary judgment the jail has not offered
evidence of a proscribed method for informing inmates of the
procedure, this was not the jail’s burden. Moreover, a subjec-
tive lack of awareness, without (a) some affirmative actions
preventing discovery or (b) objective circumstances showing
that efforts to discover would be fruitless, does nothing to
suggest that the procedure was unavailable when “available”
is defined as “accessible or may be obtained.” This is consis-
tent with Goebert’s articulated rule that “[t]hat which is
unknown and unknowable is unavailable.” 510 F.3d at 1323.
It is also consistent with Nunez and Sapp, because in those
10
The dissent asks what more Albino should have done. Though the
question seems rhetorical, the answer supports our conclusion. Albino
should have followed the procedures outlined in Custody Division Manual
§ 5-12/010.00. He should have taken advantage of the complaint boxes
that were accessible to him. Instead, Albino has not met his burden to
show that he took any of the steps that were reasonably available to him
as a detainee. Thus, Albino fails to demonstrate that the grievance proce-
dure was objectively unknowable (and, therefore, the remedy unavailable).
Accordingly, while the dissent raises the issue of what more Albino could
have done, this case resolves on the burden that Albino failed to carry by
alleging no more than “I didn’t know.”
ALBINO v. BACA 11703
cases the inmates made reasonable, good faith efforts to com-
ply with the grievance procedures and affirmative actions
impeded their exhaustion, making access to or the ability to
obtain the grievance procedures unreasonable.
[10] Lastly, Albino’s evidence regarding his oral com-
plaints does not overcome his failure to meet his burden of
proof. Although he orally complained, Albino never
attempted to make a written complaint to any jail official or
staff member. The jail’s grievance procedure, as articulated in
Custody Division Manual § 5-12/010.00, does not indicate
that any action should be taken with regard to oral complaints.
This seems especially relevant, because the jail processed
Albino and calculated an appropriate custody and security
level classification (based on a number of factors) that indi-
cated that Albino should be housed with the general popula-
tion. Further, Albino’s oral complaints did not put the jail on
some sort of constructive notice that would excuse exhaus-
tion. Cf. Macias, 495 F.3d at 43-44 (holding that, even if
informal complaints and administrative tort claims put the
prison on notice of the grievance, that does not satisfy the
requirement to procedurally exhaust; further, notice alone is
insufficient because the benefits of exhaustion can be realized
only if the prison grievance system is followed).
IV. CONCLUSION
[11] Because Albino has failed to meet his burden of
showing that the LASD Jail’s grievance procedure was
unavailable, we AFFIRM the district court.
11704 ALBINO v. BACA
GILMAN, Circuit Judge, dissenting:
I agree with the majority that an inmate must do more than
simply claim that he was unaware of the jail’s grievance pro-
cedure in order to show that administrative remedies were
unavailable to him under the PLRA’s exhaustion requirement.
In the present case, however, Albino orally complained on
several occasions to deputies at the jail about being raped and
brutally assaulted by his fellow inmates, and about the jail’s
failure to transfer him to protective custody following each
assault. I believe that Albino’s actions were sufficient to trig-
ger an obligation on the part of the jail to notify him of the
existence of its grievance procedure. Because the jail in this
case instead “stonewalled” Albino by not advising him of the
procedures necessary for him to seek redress for his com-
plaints, I would hold that Albino has demonstrated that the
administrative remedies were effectively unavailable to him
and that he has therefore satisfied the PLRA’s exhaustion
requirement. For this reason, I respectfully dissent.
I begin with what I believe is common ground between my
view and the majority’s view regarding when a jail’s remedy
is unavailable for purposes of the PLRA’s exhaustion require-
ment. As stated above, I agree with the majority that an
inmate’s unawareness of the jail’s grievance procedure, on its
own, is insufficient to make that procedure effectively
unavailable to him. Otherwise, courts would constantly have
to “inquir[e] into an individual inmate’s knowledge of the
grievance process”—“a time-consuming task fraught with
uncertainty, as any inmate could create a triable issue of fact
merely by averring he did not know of the process.” Johnson
v. District of Columbia, ___ F. Supp. 2d ___, 2012 WL
2355577, at *8 (D.D.C. June 21, 2012) (brackets, citation, and
internal quotation marks omitted). Such a rule would encour-
age the ignorance of (rather than the use of) administrative
remedies and would clog the courts, thereby thwarting the
purposes underlying the exhaustion requirement. Cf. Arnold v.
Goetz, 245 F. Supp. 2d 527, 537 (S.D.N.Y. 2003) (noting that
ALBINO v. BACA 11705
“an inmate may not close his eyes to what he reasonably
should have known”) (internal quotation marks omitted)).
I also agree with the majority that, at the other end of the
spectrum, “affirmative actions by jail staff preventing proper
exhaustion, even if done innocently, make administrative
remedies effectively unavailable.” (Maj. Op. at 11693-94)
Were this not the rule, a jail would be able to “have it both
ways”: it could “obstruct an inmate’s pursuit of administrative
exhaustion on the one hand and then claim the inmate did not
properly exhaust these remedies on the other.” Goetz, 245 F.
Supp. 2d at 537. This outcome is antithetical to the notion of
due process.
What makes the present case a close one is that it falls in
between these two extremes. Albino is not alleging that the
Los Angeles County Jail affirmatively interfered with his abil-
ity to exhaust his administrative remedies. But he is alleging
a good bit more than subjective unawareness. His claim is that
the jail had no policy of informing its inmates about its griev-
ance procedure, that a typical inmate such as himself would
have no clear basis to discover the procedure’s existence, and
that he repeatedly made efforts to grieve by orally notifying
the sheriff’s deputies of his complaint and his desire to be
placed in protective custody. This brings us to the two critical
questions: (1) what should the rule be under such circum-
stances, and (2) how should that rule be applied to the facts
of this case?
With respect to the first question, the majority holds that,
when a jail has in place a procedure for complaining about the
conditions of confinement, an inmate must “make reasonable,
good-faith efforts to discover [that procedure] before
unawareness may possibly make [it] unavailable.” (Maj. Op.
at 11696; see also id. at 11699 (“Therefore, for an inmate to
claim that a prison’s grievance procedure was effectively
unavailable due to the inmate’s unawareness of the procedure,
the inmate must show that the procedure was not known and
11706 ALBINO v. BACA
[was] unknowable with reasonable effort.”)) I will not quibble
with this formulation of the proper rule. As set forth by the
majority, the rule is consistent with that adopted by the Elev-
enth Circuit, which held that the phrase “such remedies as are
available” does not include “remedies or requirements for
remedies that an inmate does not know about, and cannot dis-
cover through reasonable effort, by the time they are needed.”
See Goebert v. Lee Cnty., 510 F.3d 1312, 1322 (11th Cir.
2007).
Where I part ways with the majority is on the second
question—whether, in construing the facts in the light most
favorable to him, Albino actually made a reasonable, good-
faith effort to discover the jail’s grievance procedure. In
answering this question in the negative, the majority first con-
cludes that “[t]he grievance procedure was accessible”
because
(1) the procedure was outlined in Custody Division
Manual § 5-12/010.00; (2) inmates could submit
written grievances regarding any prison condition,
whether or not the inmate utilized the formal Inmate
Complaint Forms; (3) unit commanders were
required to ensure that each housing facility had ade-
quate Inmate Complaint Forms available and that
inmates had unrestricted access to the forms; and (4)
each housing unit was required to have locked repos-
itory boxes accessible to inmates so that inmates
could deposit complaints without hindrance, or
inmates could give complaints to jail staff.
(Maj. Op. at 11700 (citations omitted))
The majority is certainly right that these facts demonstrate
that a grievance procedure actually existed. (See Maj. Op. at
11690) But that is all they show. The enumerated facts tell us
nothing about whether an inmate such as Albino could have
reasonably discovered that the procedure existed and was
ALBINO v. BACA 11707
available to him. There is simply no evidence that inmates
received copies of the Custody Division Manual or were oth-
erwise made aware of the grievance procedure. Nor is there
any evidence that the locked repository boxes or grievance
forms were noticeable to or identifiable by the inmates (even
if the inmates technically had access to both).
Yet the majority ultimately concludes that Albino has “pro-
vide[d] no evidence to show that he could not have discovered
the grievance procedure with reasonable effort.” (Maj. Op. at
11701) In support of this conclusion, the majority contrasts
the facts of Albino’s case with the facts of Goebert, in which
the Eleventh Circuit held that the inmate had met her burden
of showing that the administrative remedies were not avail-
able with reasonable effort.
I am puzzled by the majority’s reliance on Goebert. That
case involved an inmate who failed to file an appeal of an
adverse administrative response to her complaint, as required
under the jail’s grievance procedure. The court excused her
failure because, as the majority here points out, “the parties
agreed that the inmate manual did not describe the procedure
at issue and that the jail never permitted inmates to see the
General Operating Procedures manual that actually did
describe the procedure.” (Maj. Op. at 11701) On these facts,
as even the majority acknowledges, “there was nothing in the
record leading a reasonable inmate to believe there was an
appeal procedure or indicating that an inmate could have dis-
covered the appeal procedure upon a reasonable effort.” (Maj.
Op. at 11697)
In attempting to distinguish Goebert from the present case,
the majority recites the previously mentioned facts, reasoning
that “Albino fails to dispute that the Custody Division Manual
described the grievance procedure in § 5-12/010.00, that jail
policies required every housing unit to have an adequate sup-
ply of Inmate Complaint Forms, or that locked grievance
repositories existed in each housing unit.” (Maj. Op. at
11708 ALBINO v. BACA
11701-02) But again, these facts show only that the grievance
procedure exists. They do not suggest that Albino should have
been aware of the procedure any more than the existence of
the appellate procedure in Goebert suggested that Goebert
should have been aware of it.
To the contrary, when the facts are construed in the light
most favorable to Albino, they show that he persistently com-
plained to deputies at the jail about his repeated assaults and
about the jail’s failure to transfer him to protective custody
following each assault. Not once, however, was he ever told
that he could submit a written complaint in one of the locked
boxes apparently located in each housing unit.
The majority disregards these complaints because they
were made orally as opposed to in writing, the latter being
required by the jail’s grievance procedure. But Albino had not
been made aware of this procedure and had not received a
copy of the Custody Division Manual. In my opinion, these
facts satisfy the “good-faith effort” standard announced by the
majority and should have triggered on the part of the jail an
obligation to alert Albino to the existence of the jail’s griev-
ance procedure.
Instead, the deputies at various times (a) did nothing, (b)
disclosed the nature of his charges to the other inmates (which
precipitated the assaults), and (c) told him that only his attor-
ney could help him. Albino deserved better. Under the cir-
cumstances, his repeated attempts to inform the deputies of
his complaints should be considered “reasonable and appro-
priate steps to exhaust his . . . claim[s].” Cf. Nunez v. Duncan,
591 F.3d 1217, 1224, 1226 (9th Cir. 2010) (holding that
exhaustion is satisfied when the prisoner “took reasonable and
appropriate steps to exhaust his . . . . claim and was precluded
from exhausting, not through his own fault but by the War-
den’s mistake,” or by the Warden’s “bad faith or deliberate
obstruction”). I believe that the deputies’ silence in the face
ALBINO v. BACA 11709
of Albino’s complaints constitutes a “mistake” by the jail that
precluded Albino from exhausting his claims.
As the Eleventh Circuit in Goebert explained:
That which is unknown and unknowable is unavail-
able; it is not “capable of use for the accomplishment
of a purpose.” Booth [v. Churner], 532 U.S. [731,]
738 [(2001)]. If we allowed jails and prisons to play
hide-and-seek with administrative remedies, they
could keep all remedies under wraps until after a
lawsuit is filed and then uncover them and proclaim
that the remedies were available all along. The
Queen [of Hearts in Alice’s Adventures in Wonder-
land] would be proud.
Goebert, 510 F.3d at 1323. This policy concern should apply
with equal force here.
In sum, although the majority adopts a rule that is formally
consistent with Goebert, the majority’s application of that rule
is anything but. I am frankly at a loss to determine what the
majority thinks would have constituted a “good-faith effort”
to discover the grievance procedure in this case. Put more
simply: What more should Albino have done? In my view,
once an inmate engages in a sincere effort to complain about
the conditions of his confinement to someone with authority
at the jail, that assertion should trigger on the part of the jail
an obligation to inform the inmate about the proper procedure
to pursue his complaint. Because the jail in this case “kept
[Albino] in the dark about the path [he] was required to fol-
low,” see id., I would reverse the judgment of the district
court in favor of the sheriff.