Ninth Circuit: If Prison Officials Don’t Respond to a Grievance, Inmate Need Not Exhaust

In Andres v. Marshall, 15-56057, 2017 WL 1416497 (9th Cir. Apr. 21, 2017), an inmate filed a grievance. Three months later, having never received a response, the inmate filed a petition in state court regarding his attempt to exhaust. While that petition was pending, the inmate filed his federal lawsuit. The state court subsequently ordered the prison to accept and process the grievance. The district court then dismissed the federal lawsuit for failing to complete exhaustion before filing suit. See McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The Ninth Circuit reversed, holding that when prison officials fail to respond to a grievance within a reasonable time, the prisoner is deemed to have exhausted “available” administrative remedies under the Prison Litigation Reform Act. The court relied on the Supreme Court’s decision in Ross v. Blake, 136 S. Ct. 1850 (2016), in concluding that the prison’s failure to respond rendered administrative remedies effectively unavailable. This is the first time the Ninth Circuit, in a published decision, has applied Ross to deny a non-exhaustion defense.