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McBride v. Lopez

United States Court of Appeals, Ninth Circuit

June 30, 2015

JAMES JOHN MCBRIDE, Plaintiff-Appellant,
v.
S. LOPEZ; R. RUGGLES; M. PEREZ; D. LOPEZ; S. KOCH; R. ATHEY, Sgt., Defendants-Appellees

Argued and Submitted, San Francisco, California: April 13, 2015.

Page 1116

Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:10-cv-02229-AWI-BAM. Anthony W. Ishii, Senior District Judge, Presiding.

SUMMARY[**]

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.

Tom Wyrwich (argued), Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant.

Kamala D. Harris, Attorney General of California, Thomas S. Patterson, Supervising Deputy Attorney General, Suzanne Antley (argued) and Neah Huynh, Deputy Attorneys General, San Diego, California, for Defendants-Appellees.

Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges and Roger T. Benitez,[*] District Judge. Opinion by Judge Schroeder.

OPINION BY: Mary M. Schroeder

OPINION


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