Submitted December 14, 2016 [*]
from the United States District Court for the Southern
District of California, D.C. No. 3:13-cv-01733-DMS-BGS Dana
M. Sabraw, District Judge, Presiding
Lamarr Andres, Imperial, California, pro se
P. Snyder and Neah Huynh, Deputy Attorneys General; Jonathan
L. Wolff, Senior Assistant Attorney General; Office of the
Attorney General, San Diego, California; for
Before: J. Clifford Wallace, Edward Leavy, and Raymond C.
Fisher, Circuit Judges.
panel reversed the district court's dismissal of a pro se
prisoner's excessive force claim for failure to exhaust
administrative remedies under the Prison Litigation Reform
Act, vacated the judgment, and remanded for further
prison staff failed to respond to plaintiff's grievance
alleging excessive force, plaintiff filed a petition for writ
of habeas corpus in state court regarding his attempt to
exhaust the claim. While the state court action was pending,
plaintiff filed the instant action alleging that
administrative remedies were unavailable because officials
failed to process his grievance. Subsequently, the state
habeas court held an evidentiary hearing and granted the
habeas petition, finding that plaintiff had timely filed a
grievance and ordering that the grievance be accepted and
processed. The district court subsequently dismissed the
excessive force claim, finding that exhaustion was not
complete at the time plaintiff filed the instant action.
panel held that under the circumstances, plaintiff exhausted
his available administrative remedies prior to filing suit,
thereby satisfying Ross v. Blake, 136 S.Ct. 1850,
1859 (2016), and McKinney v. Carey, 311 F.3d 1198
(9th Cir. 2002). The panel held that when prison officials
fail to respond to a prisoner's grievance within a
reasonable time, the prisoner is deemed to have exhausted
available administrative remedies within the meaning of the
Prison Litigation Reform Act.
state prisoner Kevin Lamarr Andres appeals pro se from the
district court's summary judgment in his 42 U.S.C. §
1983 action alleging excessive force. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo legal rulings on exhaustion.
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014).
We vacate and remand.
action arises from Andres' allegations that defendant
Marshall used excessive force against him on January 23,
2013, while Andres was incarcerated at the Donovan
Correctional Facility ("DCF"). Two days after the
incident, Andres filed a 602 grievance regarding the alleged
excessive force, but never received a response from DCF
April 4, 2013, Andres filed a petition for writ of habeas
corpus in state court regarding his attempt to exhaust his
excessive force claim. On July 24, 2013, Andres filed his
original complaint in the instant action, alleging, in part,
an excessive force claim and arguing that his administrative
remedies were effectively unavailable because DCF failed to
process his 602 grievance. On August 22, 2014, the state
habeas court held an evidentiary hearing and granted