Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andres v. Marshall

United States Court of Appeals, Ninth Circuit

April 21, 2017

Kevin Lamarr Andres, Plaintiff-Appellant,
v.
Marshall, Correctional Officer at RJ Donovan; R. Olson, CCII Appeals Coordinator; J. Ramirez, CCII Appeals Coordinator; Briggs, Chief of Appeals, Defendants-Appellees.

          Submitted December 14, 2016 [*]

         Appeal 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

          Kevin Lamarr Andres, Imperial, California, pro se Plaintiff-Appellant.

          Sylvie P. Snyder and Neah Huynh, Deputy Attorneys General; Jonathan L. Wolff, Senior Assistant Attorney General; Office of the Attorney General, San Diego, California; for Defendants-Appellees.

          Before: J. Clifford Wallace, Edward Leavy, and Raymond C. Fisher, Circuit Judges.

         SUMMARY[**]

         Prisoner Civil Rights

         The 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 proceedings.

         After 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.

         The 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.

          OPINION

          PER CURIAM

         California 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.[1] 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.

         This 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 staff.

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.