Macias v. Zenk, No. 04-6131 (2d Cir. 2007)

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04-6131-pr Macias v. Zenk 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Submitted March 8, 2007 5 Decided July 26, 2007) Docket No. 04-6131-pr 6 7 -----------------------------------JUAN EDGAR LOERA MACIAS, 8 Plaintiff-Appellant, 9 v. 10 11 MICHAEL ZENK, JOHN ANNESA, STEPHANIE MIDDLETON and JOSEPH PARKER, 12 13 Defendants-Appellees. ------------------------------------ 14 B e f o r e: MESKILL, WINTER and STRAUB, Circuit Judges. 15 16 Appeal from a judgment of the United States District 17 Court for the Eastern District of New York, Trager, J., entered 18 on July 26, 2004, dismissing pro se prisoner s Eighth Amendment 19 medical indifference claims against prison officials for failure 20 to exhaust administrative remedies under the Prison Litigation 21 Reform Act, 42 U.S.C. § 1997e(a). 22 Affirmed in part, and vacated and remanded in part. 23 24 Juan Edgar Loera Macias, Brooklyn, NY, Appellant Pro Se. 25 26 27 Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Varuni Nelson, Edward Newman, Assistant 1 2 3 4 5 United States Attorneys, Brooklyn, New York, on the brief, for Appellees. MESKILL, Circuit Judge: Appeal from a judgment of the United States District 6 Court for the Eastern District of New York, Trager, J., entered 7 on July 26, 2004, dismissing pro se prisoner s Eighth Amendment 8 medical indifference claims against prison officials for failure 9 to exhaust administrative remedies under the Prison Litigation 10 Reform Act(PLRA), 42 U.S.C. § 1997e(a). 11 Affirmed in part, and vacated and remanded in part. 12 This appeal examines the scope of the PLRA exhaustion 13 requirement. Plaintiff Juan Edgar Loera Macias is a pro se 14 federal prisoner who alleges that Metropolitan Detention Center 15 (MDC) defendants Warden Michael Zenk, Health Service 16 Administrator Stephanie Middleton, Physician Assistant John 17 Annessa, and Corrections Officer Joseph Parker, were negligent 18 and deliberately indifferent to his medical needs in violation of 19 the Eighth Amendment s proscription on cruel and unusual 20 punishment. 21 action in the United States District Court for the Southern 22 District of New York. 23 District of New York where Judge Trager dismissed Macias state 24 law tort and Eighth Amendment claims for failure to exhaust his 25 administrative remedies under the Federal Tort Claims Act (FTCA), Macias filed his pro se 42 U.S.C. § 1983 civil His case was transferred to the Eastern -2- 1 28 U.S.C. § 2671 et seq., and the PLRA. 2 The district court s judgment was entered before we 3 decided a series of cases examining the PLRA s exhaustion 4 requirement. 5 district court to consider whether the threats Macias alleges he 6 received rendered the United States Bureau of Prisons (BOP) 7 administrative grievance procedures unavailable to him, or 8 whether those threats estop defendants from raising Macias 9 failure to exhaust as an affirmative defense. 10 We vacate that judgment in part and remand to the We affirm the district court s judgment in all other respects. 11 BACKGROUND 12 For the purposes of this appeal, we discuss the facts 13 as alleged by Macias. Macias entered the MDC on February 16, 14 2002 as a pre-trial detainee. 15 on March 15, 2002, March 19, 2002, April 5, 2002 and July 29, 16 2002. 17 in 2001 he had undergone arthroscopic surgery on his right knee. 18 On October 8, 2002, while picking up his food tray in his housing 19 unit, Macias slipped and fell on a wet floor resulting in 20 injuries to his right knee, back and head. 21 defendant Annessa examined Macias and prescribed medication and 22 bed rest and ordered an X-ray of his back, hip and right knee. 23 In early December 2002 Macias approached Annessa to request 24 additional pain medication. MDC medical personnel examined him At these appointments Macias informed MDC personnel that That same day Annessa refused him and told him -3- 1 that there was nothing further he could do to help him. 2 filed an administrative tort claim shortly thereafter, numbered 3 TRT-NER-2003-00954 and received by the BOP on December 12, 2002, 4 alleging that his injuries were caused by defendants negligence, 5 and that 57 days had passed since his injury and he still had not 6 received proper medical care. 7 Macias On January 3, 2003 an MDC physician diagnosed Macias 8 with a right medial collateral ligament tear and ordered an MRI. 9 The results of the MRI indicated that Macias knee had a lateral 10 and medial meniscal tear, an anterior collateral ligament tear 11 and degenerative arthritis. 12 several more times by MDC medical personnel. 13 medication was intermittently discontinued and he had difficulty 14 obtaining additional treatment. After his MRI, Macias was seen Macias pain 15 On January 24, 2003 defendant Parker denied Macias 16 access to his medication during a cell search causing him to 17 collapse. 18 ask other inmates to help him with his lunch tray and by telling 19 him that if he could go to the law library on crutches, he could 20 carry his food tray on crutches. 21 tort claim against Parker on March 13, 2003, numbered TRT-NER- 22 2003-01619, alleging emotional damages as a result of Parker s 23 mistreatment. 24 Parker also denied Macias food by ordering him not to Macias filed an administrative Macias then filed this pro se action in the United -4- 1 States District Court for the Southern District of New York, 2 alleging that defendants were deliberately indifferent to his 3 medical needs and negligent in causing his injuries and emotional 4 distress. 5 United States District Court for the Eastern District of New 6 York. 7 temporary restraining order claiming that the MDC had again 8 discontinued his pain medication, that he reinjured his right 9 knee when his wheelchair collapsed, and that he had not been On May 27, 2003 Macias lawsuit was transferred to the While his case was pending Macias filed a motion for a 10 provided with prescribed rehabilitative physical therapy. Macias 11 asked the district court to order the MDC to reissue his 12 medication and to enjoin the defendants from retaliating against 13 him. 14 The district court construed Macias 42 U.S.C. § 1983 15 lawsuit liberally, see McEachin v. McGuinnis, 357 F.3d 197, 200 16 (2d Cir. 2004) ( when [a] plaintiff proceeds pro se . . . a court 17 is obliged to construe his pleadings liberally, particularly when 18 they allege civil rights violations ), and found that Macias had 19 stated Eighth Amendment claims under Bivens v. Six Unknown Named 20 Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and tort 21 claims under the FTCA. 22 pursuant to Fed. R. Civ. P. 12(b)(6) because, inter alia, Macias 23 had failed to comply with the PLRA s exhaustion requirement 24 before filing both his Bivens claims and his motion for a Defendants moved to dismiss the lawsuit -5- 1 temporary restraining order, and because he had failed to comply 2 with the FTCA s exhaustion requirement before filing his tort 3 claims. 4 In a decision entered on July 26, 2004 the district 5 court granted defendants motion and dismissed the lawsuit in 6 full. 7 without prejudice because Macias filed his complaint while his 8 two administrative tort claims were pending. 9 Macias Eighth Amendment Bivens claims and his motion for a 10 temporary restraining order because Macias had never availed 11 himself of the BOP s administrative remedy system. 12 Judge Trager dismissed Macias state law tort claims The court dismissed On appeal, Macias contends that his Bivens claims 13 should not have been dismissed for failing to comply with the 14 PLRA s exhaustion requirement because (1) he did not need to use 15 the BOP s administrative remedy system because the BOP is not 16 authorized to provide some of the relief he seeks, (2) his 17 administrative tort claims and other informal complaints put the 18 prison officials on notice of the nature of his grievance, and 19 (3) defendant Parker s alleged threats rendered the BOP s 20 administrative remedy system unavailable to him, or in the 21 alternative, those threats estop defendants from raising his 22 failure to exhaust as an affirmative defense. 23 challenge either the dismissal of his tort claims pursuant to the 24 FTCA or the dismissal of his motion for a temporary restraining -6- Macias does not 1 order. Therefore, our review is limited to the district court s 2 decision to dismiss Macias Bivens claims. 3 reasons, we affirm in part, and vacate and remand in part. 4 5 For the following DISCUSSION Federal jurisdiction is based on this Bivens action 6 arising under the Eighth Amendment to the United States 7 Constitution. 8 under 28 U.S.C. § 1291. 9 28 U.S.C. § 1331. We have appellate jurisdiction We review the district court s dismissal of Macias 10 complaint for failure to state a claim de novo accepting as true 11 all facts alleged in the complaint and drawing all inferences in 12 favor of the plaintiff. 13 Cir. 2006) (internal quotation marks omitted). 14 Faulkner v. Beer, 463 F.3d 130, 133 (2d The PLRA provides that a prisoner may not bring an 15 action under federal law with respect to prison conditions . . . 16 until such administrative remedies as are available are 17 exhausted. 18 that the PLRA's exhaustion requirement applies to all inmate 19 suits about prison life, whether they involve general 20 circumstances or particular episodes, and whether they allege 21 excessive force or some other wrong. 22 516, 532 (2002). 23 24 42 U.S.C. § 1997e(a). The Supreme Court has held Porter v. Nussle, 534 U.S. We recently decided a series of cases examining the scope of the PLRA's exhaustion requirement. -7- See Giano v. Goord, 1 380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d 2 Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); 3 Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004); Ziemba v. Wezner, 4 366 F.3d 161 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680 5 (2d Cir. 2004). 6 Johnson, Ortiz and Ziemba and formulated a three-part test: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 In Hemphill we "read together" Giano, Abney, Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements. 25 Hemphill, 380 F.3d at 686 (internal quotation marks and citations 26 omitted). 27 ordered supplemental briefing in this appeal. 28 by reiterating his argument that he did not need to use the BOP s 29 administrative remedy system because the BOP was only authorized 30 to provide some of the relief he seeks. 31 argued for the first time that under Hemphill he had exhausted 32 his claims by putting prison officials on notice of the nature of 33 his grievance, that the BOP s administrative remedy system was Because the parties did not address Hemphill, we -8- Macias responded In addition, Macias 1 not available to him, and that defendants should be estopped from 2 raising his failure to exhaust as an affirmative defense. 3 After we received the parties supplemental briefs, the 4 Supreme Court decided Woodford v. Ngo, 126 S.Ct. 2378 (2006). In 5 Woodford, a prisoner argued that his lawsuit was improperly 6 dismissed under the PLRA because the administrative grievance he 7 filed was rejected by the prison authorities as untimely. 8 S.Ct. at 2384. 9 administrative remedies because after the prison rejected his 126 The prisoner claimed that he had exhausted his 10 grievance, no other administrative remedies were available. 11 The Supreme Court rejected this argument explaining that the PLRA 12 requires proper exhaustion, meaning that a prisoner must 13 compl[y] with the system's critical procedural rules because 14 [a] prisoner who does not want to participate in the prison 15 grievance system will have little incentive to comply with the 16 system's procedural rules unless noncompliance carries a 17 sanction and [t]he benefits of exhaustion can be realized only 18 if the prison grievance system is given a fair opportunity to 19 consider the grievance. 20 Macias arguments and, when necessary, we examine Woodford s 21 effect on our PLRA decisions. 22 23 A. 24 25 Id. at 2387-88. Id. We now turn to each of Whether Macias Failure to Exhaust is Excused by the BOP s Inability to Provide All of the Relief He Seeks. Macias seeks $4 million in damages as well as his immediate and unco[n]ditional . . . release from prison. -9- In 1 addition, in his motion for a temporary restraining order and in 2 other requests for relief submitted to the district court, Macias 3 asked for various forms of injunctive relief, including more 4 responsive medical care and continuous administration of pain 5 medication. 6 BOP s administrative remedy system to exhaust these claims 7 because the BOP is not authorized to award $4 million in response 8 to an administrative grievance. 9 argument that exhaustion is not required. 10 Macias argues that he was not required to use the We do not agree with his The BOP has a three-tiered administrative remedy system 11 with the stated purpose of allow[ing] an inmate to seek formal 12 review of an issue relating to any aspect of his/her own 13 confinement. 14 the inmate to report informally the issue to the staff, the 15 second tier requires the inmate to file a written remedy request 16 with the Warden, and the third tier requires the inmate to file 17 appeals with the appropriate Regional Director and then with the 18 General Counsel. 19 at 693 (discussing the BOP s administrative remedy system). 20 28 C.F.R. § 542.10(a). The first tier requires See 28 C.F.R. §§ 542.13-.15; Johnson, 380 F.3d It is undisputed that Macias never proceeded beyond the 21 first tier of the BOP s administrative remedy system. 22 Nevertheless, Macias argues that because the BOP s administrative 23 remedy system was authorized to provide only some of the relief 24 he sought, he did not need to file a grievance. -10- The Supreme 1 Court squarely addressed and rejected Macias argument in Booth 2 v. Churner, 532 U.S. 731 (2001). 3 brought a 42 U.S.C. § 1983 lawsuit alleging that corrections 4 officers had violated his Eighth Amendment rights by using 5 excessive force and failing to provide adequate medical care. 6 532 U.S. at 734. 7 damages. 8 provide for recovery of money damages. 9 Supreme Court held that under the PLRA the prisoner was still Id. In Booth, a state prisoner The prisoner sought injunctive relief and money The state administrative grievance system did not Id. at 741. However, the 10 required to file a grievance and complete all three stages of the 11 state s grievance system before proceeding to federal court. 12 Id. Macias seeks both injunctive relief and money damages. 13 There is no question that the BOP could have provided the 14 additional medical care and some of the other relief he seeks by 15 responding to a properly filed administrative grievance. 16 However, like the prisoner in Booth, Macias cannot skip the 17 administrative process simply by limiting prayers for relief to 18 money damages regardless of whether the BOP was authorized to 19 provide them. 20 F.3d 170, 177 (2d Cir. 2006) ( [Booth] make[s] plain [that under 21 the PLRA] so long as some remedy remains available, failure to 22 exhaust is not excused. ). Id.; see also Ruggiero v. County of Orange, 467 -11- 1 2 3 B. Whether Macias Procedurally Exhausted His Claims By Filing Administrative Tort Claims and Making Informal Complaints to Prison Officials. 4 Macias filed two administrative tort claims before he 5 filed his complaint in federal court. Taken together, Macias 6 tort claims allege that he repeatedly requested medical care for 7 his injuries but the MDC did not provide any, that defendant 8 Annessa refused to provide him with pain medication, that his 9 injuries were getting worse because of the lack of medical care, 10 and that defendant Parker caused him to collapse during a cell 11 search by refusing to allow Macias access to his medication. 12 Macias also alleges that he sent more than 20 sick calls 13 complaining about his lack of medical treatment. 14 that under Johnson, his two administrative tort claims and his 15 informal requests for medical attention excuse his failure to 16 exhaust because, although he did not use the BOP s administrative 17 remedy system, his actions provide[d] enough information about 18 the conduct of which [he] complain[ed] to allow prison officials 19 to take appropriate responsive measures. 20 697. Macias argues Johnson, 380 F.3d at Macias reliance on Johnson is misplaced. 21 In Johnson we considered whether a prisoner could 22 satisfy the PLRA s exhaustion requirement by raising his 23 grievance in the BOP s disciplinary proceedings and appeals 24 process. 25 district court could consider (1) whether under Hemphill, 380 380 F.3d at 694. We remanded the case so that the -12- 1 F.3d 680, and Giano, 380 F.3d 670, the prisoner was justified in 2 believing that his complaints in the disciplinary appeal 3 procedurally exhausted his administrative remedies because the 4 prison s remedial system was confusing, and (2) whether the 5 prisoner s submissions in the disciplinary appeals process 6 exhausted his remedies in a substantive sense by afford[ing] 7 corrections officials time and opportunity to address complaints 8 internally. 9 alteration omitted). Johnson, 380 F.3d at 696-98 (emphasis added; Thus, in Johnson we saw the prisoner s 10 argument as raising two distinct questions -- the former 11 addressed whether the prisoner procedurally exhausted his claims 12 while the latter addressed whether the prisoner substantively 13 exhausted his claims. 14 Macias does not argue that the BOP s administrative 15 remedy system was so confusing that he reasonably believed he had 16 satisfied the PLRA s exhaustion requirement by filing tort claims 17 and by complaining informally to prison staff.1 18 argues that he procedurally exhausted his claims because his 19 informal complaints and administrative tort claims put the prison 20 on notice of the nature of his grievance. 21 conflates Johnson s distinction between procedural exhaustion and 1 Instead, Macias Macias argument For this reason, we need not decide what effect Woodford has on Hemphill s holding that where administrative procedures are confusing a reasonable interpretation of prison grievance regulations may justify an inmate s failure to follow procedural rules to the letter. Hemphill, 380 F.3d at 690 (citing Giano). -13- 1 substantive exhaustion. Regardless of whether his tort claims or 2 informal complaints put the prison officials on notice of his 3 grievance in a substantive sense, Johnson makes clear that to 4 satisfy the PLRA a prisoner must also procedurally exhaust his 5 available administrative remedies. 6 (emphasis added). 7 administrative remedy system was so confusing that he justifiably 8 believed his administrative tort claims and informal complaints 9 were his only available remedies, Macias has no ground to argue Johnson, 380 F.3d at 697-98 Because Macias does not argue that the BOP s 10 that he procedurally exhausted his claims under Johnson. 11 also Woodford, 126 S.Ct. at 2388 (holding that a prisoner must 12 procedurally exhaust his claims by compl[ying] with the system's 13 critical procedural rules ). 14 See Furthermore, while our decision in Braham v. Clancy, 15 425 F.3d 177, 183 (2d Cir. 2005), might have provided some 16 support for Macias argument that he procedurally exhausted his 17 claims by providing enough information about his grievance to 18 allow prison officials to take responsive measures, we conclude 19 that Braham does not survive Woodford. 20 prisoner alleged that prison officials violated his Eighth 21 Amendment rights by refusing to grant his request for a cell 22 change. 23 prisoner s lawsuit under the PLRA for failure to exhaust 24 administrative remedies. 425 F.3d at 179. In Braham, a pro se The district court dismissed the Id. at 181. -14- On appeal, the prisoner 1 admitted that he had never filed a formal administrative 2 grievance, but argued that he had satisfied the PLRA s exhaustion 3 requirement by submitting several inmate request forms and by 4 complaining informally to prison staff during a disciplinary 5 proceeding. 6 court to consider whether the prisoner s inmate request forms or 7 the complaints he made during the disciplinary proceeding 8 provided sufficient notice to the prison officials to allow 9 [them] to take appropriate responsive measures. 10 Id. at 183. We remanded the case for the district Id. at 183 (quoting Johnson, 380 F.3d at 697) (alteration omitted). 11 Braham expanded Johnson by allowing prisoners to 12 procedurally exhaust their claims by taking enough informal 13 steps to put prison officials on notice of their concerns, 14 regardless of whether they utilize the prison s formal grievance 15 procedures. 16 at 696). 17 because [t]he benefits of exhaustion can be realized only if the 18 prison grievance system is given a fair opportunity to consider 19 the grievance and [t]he prison grievance system will not have 20 such an opportunity unless the grievant complies with the 21 system's critical procedural rules. 22 2388. 23 rules, and under Woodford, he cannot satisfy the PLRA s 24 exhaustion requirement solely by filing two administrative tort Braham, 425 F.3d at 183 (quoting Johnson, 380 F.3d However, after Woodford, notice alone is insufficient Woodford, 126 S.Ct. at Macias did not comply with the BOP s critical procedural -15- 1 claims, or by making informal complaints to the MDC s staff. 2 [A]lert[ing] the prison officials as to the nature of the wrong 3 for which redress is sought, Braham, 425 F.3d at 184 (internal 4 quotation marks omitted), does not constitute proper exhaustion 5 under Woodford. 6 the extent that Braham allowed for less than proper exhaustion 7 of claims under the PLRA, Braham has been overruled. 8 9 10 11 12 C. See Woodford, 126 S.Ct. at 2388. Therefore, to Whether the Threats Macias Alleges He Received Rendered the BOP s Administrative Remedies Unavailable, or Whether Those Threats Should Estop Defendants From Raising the Affirmative Defense of Non-exhaustion. Macias alleges in his complaint that on January 24, 13 2003 defendant Parker denied Macias access to his medication 14 during a cell search causing him to collapse. 15 alleges that Parker denied him food by ordering him not to ask 16 other inmates to help him with his lunch tray and by telling him 17 that if he could go to the law library on crutches, he could 18 carry his food tray on crutches. 19 provide supplemental briefing discussing the impact Hemphill and 20 Johnson had on his case, Macias argued for the first time that 21 Parker threatened him during the course of the January 24 22 incident and that these threats, under Hemphill, rendered his 23 administrative remedies unavailable, or in the alternative, that 24 those threats estop defendants from raising the affirmative Macias also In response to our order to -16- 1 defense of non-exhaustion.2 2 When the district court dismissed Macias suit we had 3 not decided Hemphill, 380 F.3d 680, and we had only recently 4 decided Ziemba, 366 F.3d 161. 5 effect that prison officials threats might have on the PLRA s 6 exhaustion requirement. 7 under 42 U.S.C. § 1983 alleging that prison administrators denied 8 him medical attention in violation of the Eighth Amendment. 9 F.3d at 681. These two cases considered the In Hemphill, the prisoner filed suit 380 The prisoner also claimed that he had been 10 threatened by corrections officers and beaten prior to filing his 11 complaint. 12 prisoner's suit in its entirety for failure to procedurally 13 exhaust his medical indifference claim. 14 the prisoner argued that his failure to exhaust should be excused 15 because the threats he endured rendered "procedures that would 16 ordinarily be available . . . effectively unavailable." 17 687. 18 dealing with a limited record we could not say whether some 19 seemingly available remedies were rendered unavailable by the 20 threats Hemphill received. Id. at 684. The district court dismissed the Id. at 682. On appeal, Id. at We remanded the case because [a]s a court of appeals Id. at 688. 2 We consider Macias argument regarding Parker s alleged threats, which he did not raise before the district court, because we decided Hemphill after the district court issued its decision, and in the proceedings below Macias justifiably tried to counter the arguments defendants made and did so on the basis of the law as it was then established. Hemphill, 380 F.3d at 688. -17- 1 As in Hemphill, here we also cannot determine whether 2 the remedies offered to Macias were rendered unavailable by 3 Parker s alleged threats, or whether some of the MDC defendants 4 should be estopped from asserting non-exhaustion as a defense. 5 Hemphill, 380 F.3d at 688-89; see also Ziemba, 366 F.3d at 163 6 (holding that a defendant s exhaustion defense is subject to 7 estoppel where a prisoner claimed that he was beaten, threatened, 8 and denied grievance forms and writing materials). 9 because Macias alleges that Parker did not threaten him until However, 10 January 24, 2003, even if Macias can establish that he was 11 threatened, those threats are only relevant to events that 12 occurred after January 4, 2003. 13 deterred, and defendants should not be estopped, for earlier 14 conduct that did not impact his ability to file a timely 15 grievance. 16 remedy must be submitted to the warden within 20 days of the 17 event complained of). 18 19 20 D. 21 Macias could not have been See 28 C.F.R. § 542.14(a) (a formal administrative Whether the District Court s Judgment Should be Affirmed on Alternative Grounds Presented to But Not Reached by the District Court. Defendants contend that we should affirm the district 22 court s judgment on grounds that were presented to but not 23 reached by the district court, arguing that Macias failed to 24 state an Eighth Amendment claim for medical indifference and that 25 some defendants are entitled to qualified immunity or absolute -18- 1 immunity. However, at this stage in the proceedings, and taking 2 all of Macias factual allegations as true and drawing all 3 reasonable inferences in his favor, see Faulkner, 463 F.3d at 4 133, we cannot say at this time that defendants were immune from 5 suit or that Macias has failed to state a Bivens claim. 6 Therefore, we must leave the resolution of these issues in the 7 first instance to the district court on remand. 8 9 CONCLUSION For the foregoing reasons, the judgment of the district 10 court is affirmed in part, vacated in part, and the case is 11 remanded for further proceedings. 12 should consider whether the BOP s administrative procedures were 13 rendered unavailable by Parker s allegedly threatening behavior. 14 The test for deciding whether the ordinary grievance procedures 15 were available must be an objective one: that is, would a 16 similarly situated individual of ordinary firmness have deemed 17 them available. Hemphill, 380 F.3d at 688 (internal quotation 18 marks omitted). The district court should also consider whether 19 the MDC defendants non-exhaustion defense is barred by equitable 20 estoppel and depending on the facts pertaining to each 21 defendant, it is possible that some individual defendants may be 22 estopped, while others may not be. 23 position on whether Macias can establish that his remedies were 24 rendered unavailable or whether some of the MDC defendants should -19- On remand the district court Id. Of course, we take no 1 be estopped from asserting non-exhaustion. 2 district court s judgment in all other respects. -20- We affirm the

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