NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON HARMON, No. 22-55396

Plaintiff-Appellant, D.C. No. 2:20-cv-09437-MEMF-MRW v.

LEWANDOWSKI; et al., MEMORANDUM*

Defendants-Appellees,

and

VAUGHN; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Maame Ewusi-Mensah Frimpong, District Judge, Presiding

Argued and Submitted February 14, 2023 Pasadena, California

Before: O’SCANNLAIN, HURWITZ, and BADE, Circuit Judges. Partial Concurrence and Partial Dissent by Judge HURWITZ.

Jason Harmon appeals from the district court’s entry of summary judgment

in this 42 U.S.C. § 1983 action in favor of three prison officials based on Harmon’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1. The district court correctly concluded that Harmon failed to exhaust

any claims against Bridgeforth in Grievance 0896. The Prison Litigation Reform

Act “requires inmates to both substantively and procedurally exhaust all claims

through administrative avenues before filing a suit in court.” Wilkerson v.

Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). “[T]he prison’s

requirements . . . define the boundaries of proper exhaustion.” Jones v. Bock, 549

U.S. 199, 218 (2007). Therefore, an inmate must comply with the prison’s

grievance process to satisfy the exhaustion requirement. See id. (“Compliance

with prison grievance procedures, therefore, is all that is required by the [Prison

Litigation Reform Act] to ‘properly exhaust.’”).

California regulations in effect at the time required inmates to “list all staff

member(s) involved” in an issue, including “the staff member’s last name, first

initial, title or position, if known, and the dates of the staff member’s involvement

in the issue under appeal.” Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2018). If

inmates did not have this information, they were to “provide any other available

information that would assist the appeals coordinator in making a reasonable

attempt to identify the staff member(s) in question.” Id.

Harmon’s Grievance 0896 did not refer to Bridgeforth by name or provide

2 any other information from which the prison could identify Bridgeforth, such as

the date or time of the incident, or Bridgeforth’s race, gender, or physical

attributes. Instead, Harmon identified another prison employee by name in

Grievance 0896, Vaughn, but did not identify Bridgeforth and included only a

vague statement about complaints to “floor staff.” This reference to “floor staff,”

without any other identifying information, did not comply with the regulation’s

requirements to exhaust a claim against Bridgeforth (or any other prison employee

besides Vaughn). See Jones, 549 U.S. at 218; see also Sapp v. Kimbrell, 623 F.3d

813, 824 (9th Cir. 2010) (stating that “[t]o provide adequate notice” of an issue, an

inmate must “provide the level of detail required by the prison’s regulations”).

Further, the prison did not ignore procedural defects in order to process

Grievance 0896 on the merits as a claim against Bridgeforth. See Reyes v. Smith,

810 F.3d 654, 658 (9th Cir. 2016) (holding that an inmate exhausts administrative

remedies “despite failing to comply with a procedural rule if prison officials ignore

the procedural problem and render a decision on the merits of the grievance”).

Rather, the prison’s conclusion that “staff did not violate policy” referred to the

staff that the prison was on notice to investigate based on Harmon’s grievance—

Vaughn. With no information from which to identify Bridgeforth (or any other

employee), the prison had no reason to investigate her conduct, and it was not

required to speculate about the identities of any additional prison employees whose

3 alleged conduct might be at issue, or to assume that Harmon intended to assert a

grievance against additional unidentified employees and thus reject the grievance

on procedural grounds. Accordingly, Harmon’s claims against Bridgeforth were

not exhausted.

2. The district court correctly concluded that Harmon failed to exhaust

any claims against Lewandowski in Grievance 1244. The prison rejected

Harmon’s grievance against Lewandowski for reasons consistent with and

supported by applicable regulations. See Sapp, 623 F.3d at 824 (explaining that

exhaustion may be excused when, among other things, prison officials screened the

grievance “for reasons inconsistent with or unsupported by applicable

regulations”); Cal. Code Regs. tit. 15, § 3084.3(c) (2018).

Although we have left open “the possibility” that exhaustion might be

excused “where repeated rejections of an inmate’s grievances at the screening

stage give rise to a reasonable good faith belief that administrative remedies are

effectively unavailable,” Sapp, 623 F.3d at 826, Harmon did not have “a

reasonable good faith belief” that administrative remedies were unavailable.

Harmon claims not to have received the second notice rejecting Grievance 1244.

If true, then Harmon could not reasonably have believed that the grievance was

“repeatedly rejected” so as to render administrative remedies unavailable.

Alternatively, if Harmon did receive the notice, the notice included instructions to

4 correct and resubmit the grievance and, if it were again rejected, separately appeal

that decision. See Cal. Code Regs. tit. 15, § 3084.6(e) (2018); Sapp, 623 F.3d at

826 (concluding inmate could not have a reasonable belief that remedies were

unavailable because he was “specifically instructed” on how to seek medical care

and “on how to appeal any denial of care” but “did not follow those instructions”).

Therefore, there is no dispute that remedies were available, but Harmon failed to

exhaust them.

3. The district court correctly concluded that Harmon failed to exhaust

any claims against Rosales. Harmon never filed a grievance with respect to

Rosales. Although “the threat of retaliation for reporting an incident” can “excuse

a prisoner’s failure to exhaust,” Harmon lacked a subjective fear of retaliation by

Rosales after transferring to another prison. McBride v. Lopez, 807 F.3d 982, 987–

89 (9th Cir. 2015). After the transfer, Harmon filed similar grievances against

other officers from Los Angeles County and stated that “[t]he only reason”

Harmon felt comfortable doing so was because Harmon “had been transferred out

of” Los Angeles County. Harmon’s willingness to file similar grievances post-

transfer defeats any claim that Harmon “was actually deterred from filing a

grievance.” Id. at 988.

AFFIRMED.

5

FILED

Jason Harmon v. Lewandowski, No. 22-55396 MAR 20 2023

MOLLY C. DWYER, CLERK

HURWITZ, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I concur in the memorandum disposition’s conclusion that Harmon failed to

exhaust their claims against Lewandowski and Rosales.

I respectfully dissent, however, from the disposition’s holding that Harmon’s

claims against Bridgeforth were not exhausted. A prison grievance is exhausted if

“prison officials ignore [a] procedural problem and render a decision on the merits

. . . at each available step of the administrative process.” Reyes v. Smith, 810 F.3d

654, 658 (9th Cir. 2016). It is undisputed that prison officials rendered merits

decisions on Grievance 0896 at all available levels.

Although Grievance 0896 did not identify Bridgeforth by name, it “plainly

put prison officials on notice of the nature of the wrong alleged in [the] federal

suit”—the failure to properly respond to threats of sexual violence by Harmon’s

cellmate. Id. at 659. It also clearly accused members of the “floor staff” of that

failure to respond. Had prison authorities needed additional information to process

Grievance 0896, they could have requested it. Indeed, that is exactly what occurred

with Grievance 1244. But “instead of enforcing a procedural bar,” the prison

“address[ed] the merits” of Grievance 0896. Id. at 657. Therefore, “the state's

interests in administrative exhaustion have been served.” Id.