United States v. 2010-03-12 | 07-55574 | MORTON V. HALL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BRUCE ALAN MORTON,
Plaintiff-Appellant, No. 07-55574
v. D.C. No.
 JAMES HALL, e/s/a Jim Hall; CV-04-00831-SVW
VINCENT ANDERSON; CHRISTY HALE; OPINION
RICHARD HOWELL; ALBERT LUNA,
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 1, 2010*
Pasadena, California
Filed March 12, 2010
Before: Ronald M. Gould and Sandra S. Ikuta,
Circuit Judges, and Lloyd D. George, District Judge.**
Opinion by Judge Gould
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Lloyd D. George, Senior United States District Judge
for the District of Nevada, sitting by designation.
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COUNSEL
Konrad L. Trope, Novo Law Group, P.C., Los Angeles, Cali-
fornia, for the plaintiff-appellant.
Kenneth G. Lake, Deputy Attorney General for the State of
California, Los Angeles, California, for the defendants-
appellees.
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OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Bruce Alan Morton (“Morton”) appeals
the dismissal of his Eighth Amendment 42 U.S.C. § 1983
claim against prison officials alleging that their deliberate
indifference contributed to a violent assault on him by
inmates on June 18, 2003. The district court found that Mor-
ton had failed to exhaust prison administrative remedies with
regard to this claim as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We have juris-
diction under 28 U.S.C. § 1291. We affirm.
I
On June 18, 2003, Morton was assaulted by unknown
inmates in the prison yard at Ironwood State Prison in Blythe,
California (“Ironwood”). It is not clear why he was assaulted,
although he alleges it was because inmates gained access to
his prison central file (“C-file”) and learned facts relating to
his commitment offense (assault and murder of his five-year-
old step-daughter) that stigmatized him as a sex-offender. Fol-
lowing the assault, Morton was moved to protective adminis-
trative segregation pending investigation of the assault.
Morton was later transferred to a protective housing unit at
Corcoran State Prison (“Corcoran”).
On July 13, 2003, following the assault, Ironwood denied
Morton visitation rights with minors. The grounds for doing
so were based on Section 3173.1, title 15 of the California
Code of Regulations, which imposes visiting restrictions on
inmates arrested for or convicted of offenses involving
minors, including sex offenses and homicide. Morton filed a
grievance with the prison administration regarding this
restriction on a standard California Department of Corrections
(“CDC”) “Form 602,” as required by governing regulations,
see Cal. Code Regs. tit. 15, § 3084.2(a), and eventually
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exhausted his administrative remedies as to the denial of his
visitation rights, see Cal. Code Regs. tit. 15 § 3084.5(e).
Morton filed the present action in district court against
Ironwood’s warden, associate warden, three corrections coun-
selors, and two corrections officers (collectively “Defen-
dants”). He alleged four state-law causes of action and an
Eighth Amendment violation under 42 U.S.C. § 1983. His
§ 1983 claim was premised on three discrete theories: (1) the
deliberate indifference of prison staff contributed to his June
2003 assault, (2) his confinement to administrative segrega-
tion following the assault was unlawful, and (3) denial of visi-
tation rights with minors was a serious deprivation of his
rights. Defendants subsequently moved for summary judg-
ment and argued, inter alia, the affirmative defenses of failure
to exhaust administrative remedies under the PLRA and quali-
fied immunity.
The district court held an evidentiary hearing on September
18, 2006, on Defendants’ exhaustion argument. Morton pre-
sented no evidence of exhaustion as to his claims of assault
and improper administrative segregation. Defendants submit-
ted the testimony of Robert Hall, the Inmate Appeals Coordi-
nator at Corcoran, and Patrick Tonra, the Inmate Appeals
Coordinator at Ironwood. Both men provided a detailed over-
view of the record-keeping system for administrative appeals
at each prison. Both men declared that they had reviewed
hard-copy and electronic records and had found no evidence
that Morton had ever filed a grievance pertaining to his
assault. They testified that the only grievance for which
records existed was Morton’s complaint relating to denial of
visitations with minors.
The district court found that Morton had failed to exhaust
administrative remedies on his § 1983 claims regarding the
assault and administrative segregation, and dismissed those
claims without prejudice. The district court found that Morton
had exhausted his § 1983 claim regarding the denial of visita-
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tion rights, but the district court granted summary judgment
for Defendants on the grounds that Morton had failed to state
a constitutional or statutory violation and Defendants were
protected by qualified immunity and the Eleventh Amend-
ment. The district court denied Morton’s request for addi-
tional discovery under Federal Rule of Civil Procedure 56(f)
on the grounds that it was rendered irrelevant in light of the
partial dismissal and grant of summary judgment. The district
court then declined to exercise supplemental jurisdiction on
the remaining state-law claims and entered final judgment for
Defendants on Morton’s federal-law claims.
Morton timely appealed. On appeal, Morton challenges
only the dismissal of his § 1983 claim alleging that the delib-
erate indifference of prison officials contributed to his assault
(the “§ 1983 assault claim”). He argues that he was not
required to exhaust the claim, that he did in fact exhaust the
claim, and that the district court abused its discretion by deny-
ing his request for additional discovery under Federal Rule of
Civil Procedure 56(f).
II
In reviewing a dismissal for failure to exhaust administra-
tive remedies, we review the district court’s legal conclusions
de novo and factual findings for clear error. Griffin v. Arpaio,
557 F.3d 1117, 1119 (9th Cir. 2009). We review the decision
not to permit additional discovery under Rule 56(f) for abuse
of discretion. Burlington N. Santa Fe R.R. Co. v. Assiniboine
& Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767,
773 (9th Cir. 2003).
[1] According to the PLRA:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
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administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a). In his opening brief, Morton argues that
he was not required to exhaust administrative remedies under
the PLRA with respect to his § 1983 assault claim because
internal CDC grievance procedures do not provide a remedy
in the form of money damages. This is an incorrect statement
of law. Morton relies on outdated authority from this circuit
overruled by the Supreme Court in Booth v. Churner, 532
U.S. 731 (2001).1 “The question is whether an inmate seeking
only money damages must complete a prison administrative
process that could provide some sort of relief on the com-
plaint stated, but no money. We hold that he must.” Id. at 733.
[2] In his reply brief, Morton concedes that Booth requires
that he exhaust his administrative remedies, but argues instead
that he did in fact exhaust administrative remedies on his
§ 1983 assault claim. In deciding a motion to dismiss for fail-
ure to exhaust nonjudicial remedies under the PLRA, a district
court “may look beyond the pleadings and decide disputed
issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th
Cir. 2003). At the hearing before the district court on exhaus-
tion, Morton presented no evidence that he had exhausted this
claim. On the other hand, Defendants presented the testimony
of persons charged with administrative-appeals record keep-
ing at both Ironwood and Corcoran, who both testified that
neither prison had a record of any such grievance ever being
filed. Moreover, Morton’s C-file contained no record of such
a grievance. On this record, the district court did not commit
clear error by finding that Morton had failed to exhaust
administrative remedies on his § 1983 assault claim.
Morton also argues that he exhausted his § 1983 assault
1The authorities relied on by Morton were Rumbles v. Hill, 182 F.3d
1064 (9th Cir. 1999), and Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.
1998) (order).
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claim by exhausting his challenge to the CDC’s decision to
deny him visitation with minors. According to Morton, the
denial of visitation with minors “arose out of the same facts
and circumstances” as his § 1983 assault claim and therefore
exhausted both claims.
[3] The level of detail in an administrative grievance nec-
essary to properly exhaust a claim is determined by the pris-
on’s applicable grievance procedures. Jones v. Bock, 549 U.S.
199, 218 (2007). However, “when a prison’s grievance proce-
dures are silent or incomplete as to factual specificity, a griev-
ance suffices if it alerts the prison to the nature of the wrong
for which redress is sought.” Griffin, 557 F.3d at 1120 (inter-
nal quotation marks omitted). “A grievance need not include
legal terminology or legal theories unless they are in some
way needed to provide notice of the harm being grieved.” Id.
[4] In this case, California regulations required Morton to
lodge his administrative complaint on CDC Form 602 and “to
describe the problem and action requested.” Cal. Code Regs.
tit. 15, § 3084.2(a). The Form 602 Morton filed relating to the
visitation restriction does not even mention the assault or the-
orize that the visitation restriction imposed was related to the
assault. Rather, Morton stated his problem as follows:
Sometime on or near June 30, 2003 the visiting staff
at Ironwood State Prison permanently restricted me
from having visits from anyone under 18 years of
age, whether they are a relative or not. Upon my
family and I inquiring as to why, the response they
and I receive is I was convicted of PC 273d. I have
a list of all the PC restricting visits from minors and
I was never charged with nor convicted with 273d or
any of . . . the PC listed on the visiting regulations
sheet.
This was insufficient to put prison officials on notice of Mor-
ton’s complaint that prison-staff conduct contributed to his
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June 2003 assault. Accordingly, Morton did not exhaust
administrative remedies on his § 1983 assault claim.
The district court was required to dismiss Morton’s com-
plaint because he did not exhaust administrative remedies,
and therefore it did not abuse its discretion by denying Mor-
ton’s request for additional discovery under Federal Rule of
Civil Procedure 56(f).
III
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.
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