McBride v. Lopez, No. 12-17682 (9th Cir. 2015)
Annotate this CasePlaintiff filed a pro se complaint under 42 U.S.C. 1983, claiming violation of his Eighth Amendment rights by use of excessive force by prison guards. At issue was a claim that a threat of retaliatory action by a prison guard had the effect of rendering the prison grievance system unavailable so as to excuse the prisoner’s failure to meet the time limitation for filing a grievance. As a preliminary matter, the court held that exhaustion issues must instead generally be decided on a motion for summary judgment pursuant to Rule 56. The court joined other circuits in holding that fear of retaliation may be sufficient to render the inmate grievance procedure unavailable, and the court approved the test applied in the Eleventh Circuit that requires both a subjective and objective basis for the fear. In this case, the court held that plaintiff failed to show an objective basis for his belief that prison officials would retaliate against him for filing a grievance. Therefore, the court affirmed the district court's dismissal of the complaint.
Court Description: Prisoner Civil Rights. The panel affirmed the district court’s order granting defendants’ motion to dismiss a prisoner civil rights action for failure to exhaust administrative remedies under the Prison Litigation Reform Act. The panel held preliminarily that although exhaustion issues must generally be decided on a motion for summary judgment pursuant to Fed. R. Civ. P. 56, in this case there was no need for further factual development. The panel held that fear of retaliation may be sufficient to render an inmate grievance procedure effectively unavailable and thereby excuse the prisoner’s failure to exhaust administrative remedies. To determine whether failure to exhaust is excusable, the panel approved the test applied by the Eleventh Circuit in Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008). Under the test, a prisoner must provide both a subjective and objective basis for the fear of retaliation. The panel held that in this case, plaintiff failed to show an objective basis for his belief that prison officials would retaliate against him for filing a grievance. The panel determined that there was no objective indication that the officials’ statements were aimed at deterring plaintiff from filing a grievance and there was no allegation or evidence that officials believed that plaintiff was contemplating filing a grievance. MCBRIDE V. LOPEZ 3
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