1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PHILLIP RICKER, Case No.: 19-CV-807 TWR (LL)

12 Plaintiff,

ORDER DENYING DEFENDANTS’

13 vs. MOTION FOR SUMMARY

JUDGMENT

14

15 CORRECTIONAL OFFICER SALAS, et (ECF No. 29) al., 16

17 Defendants. 18 19 20 Plaintiff Phillip Ricker, a former inmate at Richard J. Donovan Correctional Facility 21 (“RJD”) in San Diego, California, brought suit alleging federal constitutional and state 22 statutory claims stemming from an alleged assault on Plaintiff by several correctional 23 officers and a subsequent incident in which correctional officers failed to protect Plaintiff 24 from attack by two other inmates. (See generally First Am. Compl. (“FAC,” ECF No. 21- 25 2).) 26 Currently before the Court is Defendants E. Savala, F. Salas, A. Danial, F. Aviles, 27 D. Paramo, S. Ramirez, and A. Gonzalez’s Motion for Summary Judgment (“Mot.,” ECF 28 No. 29). Plaintiff filed an opposition (“Opp’n,” ECF No. 36) to and Defendants filed a 1 reply in support of (“Reply,” ECF No. 40) the Motion. Although Defendants’ Motion 2 raised several issues when filed, the Parties have since narrowed their dispute to a single 3 question: Must Plaintiff’s Fourth Cause of Action, an Eighth and Fourteenth Amendment 4 failure to protect claim against two correctional officers, be dismissed under 42 U.S.C. 5 Section 1997e(a) for failure to exhaust administrative remedies prior to filing suit? (See 6 ECF No. 35 (joint motion to dismiss some of the claims and one Defendant); ECF No. 37 7 (order granting joint motion to dismiss).) For the reasons set forth below, the Court 8 concludes that the answer is “No” and, consequently, DENIES Defendants’ Motion. 9 BACKGROUND 10 Plaintiff alleges that four correctional officers at RJD attacked and injured him on 11 April 5, 2018. (See FAC ¶¶ 5–13 (recounting the incident).) Despite sustaining injuries to 12 his face and hip, Plaintiff alleges that he received only a cursory examination by a prison 13 nurse that day, that he did not receive substantive medical care until the next day, and that 14 a correctional sergeant failed to respond when Plaintiff reported the attack. (See id. 15 ¶¶ 16–18, 24–25, 32–34.) 16 On April 7, 2018, two days after the initial incident, Plaintiff alleges that he was 17 attacked again, this time by two inmates. (See id. ¶ 42.) Prior to the assault, Plaintiff saw 18 his attackers speaking to two of the correctional officers involved in the April 5, 2018 19 incident—Defendants Danial and Aviles—and, according to Plaintiff, the officers 20 “instructed the two (2) inmates whom they were talking with to rough up Plaintiff.” (See 21 id. ¶¶ 42, 45.) The inmates kicked Plaintiff and chased him. (See id. ¶¶ 46–47.) The 22 assault ended after Defendants Danial and Aviles intervened.1 (See id. ¶ 48.) 23 Plaintiff filed an administrative grievance regarding the April 5, 2018 incident and 24 exhausted his administrative appeals on November 6, 2018. (See id. ¶ 55; see also ECF 25

26 1 Although Defendants broadly dispute these factual allegations, the Parties’ precise factual disputes fall 27 outside the scope of this Order, which addresses a legal question implicating only undisputed facts regarding the administrative grievance process. (See ECF No. 23 (answering and denying the bulk of the 28 1 No. 29-6 (“Moseley Decl.”) ¶ 8; ECF No. 29-7 Ex. B (Third Level Appeal Decision on 2 Plaintiff’s grievance dated November 6, 2018).) Plaintiff also filed a claim with the State 3 of California as required by the California Tort Claims Act. (See FAC ¶ 56.) It is 4 undisputed that Plaintiff did not file an administrative grievance or otherwise exhaust his 5 administrative remedies for the April 7, 2018 incident underlying his Fourth Cause of 6 Action. (See Opp’n at 5 (explaining that Plaintiff “did not file either [an administrative 7 grievance or state tort claim] for the [April 7, 2018] incident”).) 8 Plaintiff filed suit on May 1, 2019, alleging a variety of constitutional and state 9 statutory claims arising out of both the April 5, 2018 and April 7, 2018 incidents. (See 10 generally ECF No. 1.) Among the claims in Plaintiff’s initial Complaint was the Fourth 11 Cause of Action, an Eighth and Fourteenth Amendment failure-to-protect claim against 12 Defendants Danial and Aviles alleging that they “acted with deliberate indifference in 13 failing to provide reasonable safety for Plaintiff when they instructed two inmates to attack 14 Plaintiff” on April 7, 2018. (See id. ¶ 76.) 15 At the time the initial Complaint was filed, Plaintiff was a prisoner proceeding in 16 forma pauperis (“IFP”) and, as a result, the Court conducted the pre-answer screening 17 required by 28 U.S.C. Sections 1915(e)(2) and 1915A(b), concluding that Plaintiff’s initial 18 Complaint stated claims sufficient to survive screening under those statutes. (See ECF No. 19 5 at 5.2) As a result, the Court directed the U.S. Marshal to effect service on Plaintiff’s 20 behalf. (See id. at 5–6; see also ECF Nos. 8–18 (waiving service as to Defendants).) 21 Plaintiff was released from prison after filing the initial Complaint but before the 22 Court’s Order granting his motion to proceed IFP. (See ECF No. 7 at 1.) After Plaintiff’s 23 release from custody, Defendants moved to dismiss Plaintiff’s initial Complaint. (See ECF 24 No. 19.) Subsequently, the Parties reached an agreement whereby Plaintiff would dismiss 25 certain claims and individual Defendants and file an amended complaint including some 26

27 2 This case was previously assigned to the Honorable Dana M. Sabraw. On October 6, 2020, the case was 28 1 additional allegations and certain corrections. (See ECF No. 21 at 1–2.) The Parties 2 memorialized this agreement in a joint motion for leave to file the First Amended 3 Complaint, (see id.), which the Court granted on October 28, 2019. (See ECF No. 22 at 1.) 4 Aside from renumbering paragraphs and one cross reference, Plaintiff’s Fourth Cause of 5 Action remained unchanged from his initial Complaint. (See ECF No. 21-1 at 10–11 6 (redline showing changes from initial Complaint).) After Defendants answered Plaintiff’s 7 First Amended Complaint, (see ECF No. 23), the Court denied Defendants’ motion to 8 dismiss as moot. (See ECF No. 26, at 1-2.) 9 Shortly after the Parties completed fact discovery (see generally ECF No. 25 10 (scheduling order setting forth, among other things, discovery deadlines)), Defendants 11 moved for summary judgment. (See generally ECF No. 29 (motion for summary 12 judgment).) Although Plaintiff is represented by counsel, the Court nevertheless notified 13 Plaintiff of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 14 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 15 1998), after Defendants filed their Motion. (ECF No. 32.) 16 LEGAL STANDARD 17 Summary judgment is proper if the movant shows that “there is no genuine dispute 18 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a); see also Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 20 2011). “Failure to exhaust under the [Prison Litigation Reform Act (“PLRA”)] is ‘an 21 affirmative defense the defendant must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 22 1166 (9th Cir. 2014) (en banc) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). “If 23 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 24 exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. 25 ANALYSIS 26 As mentioned previously, the only unresolved issue posed by Defendants’ Motion 27 is whether Plaintiff’s Fourth Cause of Action must be dismissed for failure to exhaust 28 administrative remedies under a part of the PLRA, 42 U.S.C. Section 1997e(a). Section 1 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under 2 section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, 3 or other correctional facility until such administrative remedies as are available are 4 exhausted.” 5 This provision requires “that an inmate exhaust ‘such administrative remedies as are 6 available’ before bringing suit to challenge prison conditions.” Ross v. Blake, 578 U.S. 7 ___, 136 S. Ct. 1850, 1854–55 (2016) (quoting 42 U.S.C. § 1997e(a)). Exhaustion is 8 mandatory under the PLRA, see Jones, 549 U.S. at 211 (citation omitted), and “it is the 9 prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” 10 Id. at 218. The “exhaustion requirement does not allow a prisoner to file a complaint 11 addressing non-exhausted claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010); but see Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (explaining that the 13 PLRA does not require exhaustion when administrative remedies are “effectively 14 unavailable” under the circumstances). If a court concludes that administrative remedies 15 have not been properly exhausted prior to filing suit, the unexhausted claims should be 16 dismissed without prejudice, generally on a motion for summary judgment. See Wyatt v. 17 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 18 F.3d at 1168; see also Jones, 549 U.S. at 221; Albino, 747 F.3d at 1166. 19 It is undisputed that Plaintiff did not exhaust his remedies through the CDCR’s 20 administrative review process prior to filing his Fourth Cause of Action. (Compare Mot. 21 at 14–15 (asserting that Plaintiff’s administrative appeals did not “contain[] allegations 22 regarding officers setting up Plaintiff to be attacked by other inmates”), with Opp’n at 3, 5 23 (stating that “no dispute of material fact exists here” and that “[Plaintiff] did not file either 24 [an administrative grievance or state tort claim] for the [April 7, 2018 incident]”).) The 25 parties do, however, dispute whether Plaintiff’s operative pleading—the First Amended 26 Complaint he filed after he was released from prison—is subject to the PLRA’s exhaustion 27 requirements as a matter of law. 28 / / / 1 Plaintiff argues that the PLRA’s exhaustion requirements apply only to “prisoner[s]” 2 and defines a “prisoner” as someone “incarcerated or detained in any facility who is 3 accused of, convicted or, sentenced for, or adjudicated delinquent for, violations of 4 criminal law.” See 49 U.S.C. § 1997e(h); see also Talamantes v. Levya, 575 F.3d 1021, 5 1024 (9th Cir. 2009) (holding that a former prisoner “released from custody over a year 6 before filing his action” was not required to exhaust administrative remedies prior to filing 7 suit); Page v. Torrey, 201 F.3d 1136, 1040 (9th Cir. 2000) (“[O]nly individuals who, at the 8 time they seek to file their civil actions, are detained as a result of being accused of, 9 convicted of, or sentenced for criminal offenses are ‘prisoners’ within the definition of 42 10 U.S.C. § 1997e and 28 U.S.C. § 1915.”). Because Plaintiff was released from custody 11 before he filed the operative pleading, he asserts that Section 1997e(a) does not bar his 12 Fourth Cause of Action. Defendants disagree, arguing that “an inmate is required to 13 exhaust [administrative remedies] if he was a prisoner when he filed the complaint; even 14 if he is later released.” (See Reply at 3 (citations omitted).) 15 In sum, Plaintiff falls into a narrow and somewhat unusual category. Although he 16 was indisputably a “prisoner,” and therefore subject to the PLRA’s exhaustion 17 requirements, at the time his case was filed, he was released during the pendency of this 18 case and filed his operative pleading, the First Amended Complaint, after his release from 19 custody. (See ECF No. 7 at 1 (notifying the Court of Plaintiff’s release); see also generally 20 FAC.) Therefore, the central question posed by Defendants’ Motion is whether the 21 application of Section 1997e(a)’s exhaustion requirement is determined by Plaintiff’s 22 status at the time he filed the initial Complaint, which first asserted the Fourth Cause of 23 Action, or his status at the time he filed the operative complaint, the First Amended 24 Complaint. 25 Although the Parties’ arguments and the outcome of this case ultimately hinge on 26 the application of the Ninth Circuit’s most recent decision regarding Section 1997e(a), 27 Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), it is useful first to review the United States 28 Supreme Court’s decision in Jones v. Bock, 549 U.S. 199 (2007), and two subsequent Ninth 1 Circuit decisions, Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), and Cano v. Taylor, 2 739 F.3d 1214 (9th Cir. 2014). In Jones, the Supreme Court reviewed a variety of 3 procedural requirements the Sixth Circuit imposed on PLRA cases, including requirements 4 that a prisoner’s complaint include affirmative proof of exhaustion, that the prisoner’s 5 grievances identify every individual who is named in the suit, and that no part of a 6 complaint could proceed if any individual claim was not properly exhausted. See id. at 7 204–06. Most relevant here was the Sixth Circuit’s view that dismissing the entire 8 complaint was the proper remedy when a prisoner’s case included some exhausted and 9 some unexhausted claims, which rested on the language in Section 1997e(a) that “no action 10 shall be brought” unless a prisoner first exhausts available administrative remedies. See 11 id. at 220. The Supreme Court rejected the Sixth Circuit’s practice, noting that Section 12 1997e(a)’s language—“‘no action shall be brought’—is boilerplate.” Id. (quoting Section 13 1997e(a)). In so doing, the Court emphasized that the Federal Rules of Civil Procedure, 14 not judge-made rules specific to prisoner cases, should govern in the PLRA context. See 15 id. at 224 (“[A]dopting different and more onerous pleading rules to deal with particular 16 categories of cases should be done through established rulemaking procedures, and not on 17 a case-by-case basis by the courts.”). 18 The Ninth Circuit built on these conclusions in Rhodes and Cano, both of which 19 involved circumstances similar to, but ultimately distinct from, those at issue in this case. 20 In Rhodes, the district court held that a prior Ninth Circuit decision, McKinney v. Carey, 21 311 F.3d 1198 (9th Cir. 2002) (en banc), “required that claim exhaustion must occur prior 22 to the filing of the original complaint,” even where the plaintiff filed a supplemental 23 complaint during the pendency of the case alleging claims that were exhausted after the 24 original complaint was filed. See Rhodes, 621 F.3d at 1004, 1006–07. The Ninth Circuit 25 rejected that conclusion, explaining that the PLRA and the Court’s pre-Jones case law on 26 exhaustion “must be read and applied in the larger context of the pleading framework 27 established by the Federal Rules of Civil Procedure” and that, “[a]s a general rule, when a 28 plaintiff files an amended complaint, ‘[t]he amended complaint super[s]edes the original, 1 the latter being treated thereafter as non-existent.’” Id. at 1005 (second alteration in 2 original). As a result, the court in Rhodes concluded that neither the PLRA nor the Ninth 3 Circuit’s prior decisions justified dismissal of the supplemental complaint for failure to 4 exhaust administrative remedies prior to the filing of the initial complaint. See id. at 1007 5 (“This result is necessary to harmonize the PLRA with the requirements of the Federal 6 Rules of Civil Procedure, as the Supreme Court has instructed; it is also consistent with our 7 holdings in Vaden and McKinney.”) 8 In Cano, the Ninth Circuit concluded that similar reasoning applied to claims that 9 “arose as causes of action prior to the filing of the initial complaint but were (allegedly 10 properly) exhausted between the filing of the initial complaint and the [first amended 11 complaint], when they were added.” Cano, 739 F.3d at 1220; see also Akhtar v. Mesa, 698 12 F.3d 1202, 1210 (9th Cir. 2012) (“If . . . a plaintiff files an amended complaint adding new 13 claims based on conduct that occurred after the filing of the initial complaint, the plaintiff 14 need only show that the new claims were exhausted before tendering the amended 15 complaint to the clerk for filing.” (citing Rhodes, 621 F.3d at 1007; McKinney, 311 F.3d at 16 1199)). Simply put, “for purposes of the exhaustion requirement, the date of the [first 17 amended complaint]’s filing is the proper yardstick” and requiring otherwise would not 18 serve the PLRA’s purpose of reducing frivolous prisoner lawsuits “because plaintiff could 19 proceed to file those claims as a separate action (the district court having dismissed them 20 without prejudice [for failure to exhaust]).” See Cano, 739 F.3d at 1220. 21 As mentioned, both Parties argue that the Ninth Circuit’s decision in Jackson v. Fong 22 supports their positions in this case. In Jackson, the plaintiff filed a Section 1983 suit while 23 he was a state prisoner. 870 F.3d at 930. It was undisputed that the plaintiff in Jackson 24 had not exhausted his administrative remedies as to the claim at issue in that case prior to 25 filing suit. See id. at 933 & n.2. After his release from custody, the plaintiff filed his 26 second amended complaint, which the Court “analyze[d] . . . as a supplemental complaint 27 within the meaning of Rule 15(d).” Id. at 933–34. The Ninth Circuit noted the Supreme 28 Court’s conclusion in Jones that “‘adopting different and more onerous pleading rules to 1 deal with particular categories of cases should be done through established rulemaking 2 procedures, and not on a case-by-case basis by the courts.’” Jackson, 870 F.3d at 933–34 3 (quoting Jones, 549 U.S. at 224). As a result, the court in Jackson “look[ed] to the Federal 4 Rules of Civil Procedure to answer the question posed.” Id. at 934. The Court observed 5 that “a supplemental complaint ‘completely super[s]edes any earlier complaint, rendering 6 the original complaint non-existent and, thus, its filing date irrelevant’” and can “defeat an 7 affirmative defense applicable to an earlier complaint, even when that affirmative defense 8 is jurisdictional.” Id. (alteration in original) (quoting Rhodes, 621 F.3d at 1005) (citing 9 Mathews v. Diaz, 426 U.S. 67, 75 (1976); Northstar Fin. Advisors, Inc. v. Schwab Invs., 10 779 F.3d 1036, 1044 (9th Cir. 2015)). As a result, the court concluded that “[e]xhaustion 11 requirements apply based on when a plaintiff files the operative complaint, in accordance 12 with the Federal Rules of Civil Procedure,” and that an “amended complaint, filed when 13 [the plaintiff] was no longer a prisoner, obviates an exhaustion defense.” Id. at 934–35 14 (citations omitted). 15 Despite this seemingly clear language in favor of Plaintiff’s position, Defendants 16 argue that Jackson is distinguishable for two reasons. First, Defendants note that Plaintiff’s 17 First Amended Complaint is a true amended complaint brought under Federal Rule of Civil 18 Procedure 15(a)(2), not a supplemental complaint under Rule 15(d) like the one at issue in 19 Jackson. See Jackson, 870 F.3d at 934. This distinction is meaningful, in Defendants’ 20 view, because allegations contained in supplemental complaints must, by definition, have 21 arisen after a plaintiff’s initial complaint was filed. See Fed. R. Civ. P. 15(d) (allowing 22 supplemental complaints setting out “any transaction, occurrence, or event that happened 23 after the date of the pleading to be supplemented” (emphasis added)). Second and 24 relatedly, Defendants argue that Plaintiff’s First Amended Complaint was merely a 25 “procedural amendment that [did] not change the underlying claims” in his Fourth Cause 26 of Action, which he asserted in virtually identical fashion in his initial Complaint. (See 27 Reply at 6.) Consequently, the Fourth Cause of Action was unambiguously subject to 28 dismissal under Section 1997e(a) prior to Plaintiff’s release from custody and subsequent 1 amendment. See McKinney, 311 F.3d at 1199 (joining “eight other courts of appeals in 2 holding that dismissal is required under 42 U.S.C. § 1997(e)(a)” when a prisoner files suit 3 challenging prison conditions prior to exhausting administrative remedies); see also Vaden 4 v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation 5 in federal court only after the administrative process ends and leaves his grievances 6 unredressed.”). Defendants conclude that, if Plaintiff’s claims are allowed to proceed 7 based on the timing of filing his First Amended Complaint, that “would allow prisoner- 8 plaintiffs to do exactly what McKinney forbids, file a lawsuit based on unexhausted claims, 9 and then simply amend once the claims are exhausted.” (Reply at 4 (citing McKinney, 311 10 F.3d at 1199).) 11 Applying Jackson and the Federal Rules of Civil Procedure make clear that these 12 are distinctions without difference and that any exhaustion defense that might have applied 13 to Plaintiff’s initial Complaint was “obviate[d]” by filing the First Amended Complaint 14 after his release from prison. See Jackson, 870 F.3d at 934. “It is well-established in [the 15 Ninth C]ircuit that an ‘amended complaint supersedes the original, the latter being treated 16 thereafter as non-existent.’” Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th 17 Cir. 2015) (citations omitted). In this respect, an amended complaint under Rule 15(a)(2) 18 is identical to a supplemental complaint under Rule 15(d). See Jackson, 870 F.3d at 934; 19 cf. Rhodes, 621 F.3d at 1005 (concluding, in the context of a supplemental complaint, that 20 “[n]othing in the PLRA’s exhaustion requirement creates an exception to this basic premise 21 of our jurisprudence on pleadings”). An amended complaint is also identical to a 22 supplemental complaint in that it may “defeat an affirmative defense applicable to an 23 earlier complaint, even when that affirmative defense is jurisdictional.” See Jackson, 870 24 F.3d at 934; see also Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007) 25 (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the 26 complaint, courts look to the amended complaint to determine jurisdiction.” (citations 27 omitted)). These two baseline rules were the only elements of “the Federal Rules of Civil 28 / / / 1 Procedure” that the Ninth Circuit “look[ed] to . . . to answer the question posed” in Jackson 2 and, as in Jackson, weigh in Plaintiff’s favor. See Jackson, 870 F.3d at 934. 3 Further, and contrary to Defendants’ arguments, there is no basis in the PLRA or the 4 Federal Rules for not applying these general rules to so-called “procedural amendment[s],” 5 a category of Defendants’ invention not reflected in the Rules. (See Reply at 6.) The Ninth 6 Circuit in Jackson addressed a similar concern, emphasizing that the decision of whether 7 to grant leave to amend under Federal Rule of Civil Procedure 15(a)(2) is discretionary and 8 that a district court “need not give leave to amend a complaint where a plaintiff appears to 9 be gaming the courts, or otherwise exploiting an impending release from custody.” 870 10 F.3d at 936 (citation omitted). Plaintiff’s First Amended Complaint was filed pursuant to 11 a joint motion to amend signed by counsel for both parties. (See ECF No. 22.) If 12 Defendants felt that Plaintiff’s motion for leave to amend was an effort to “gain the benefit 13 of escaping the exhaustion requirement under Jackson,” they could have opposed the 14 motion on that ground. See Olmos v. Path, No. CV-19-08036-PCT-GMS (JFM), 2020 WL 15 4188042, at *2 (D. Ariz. July 21, 2020) (analyzing whether motion for leave to amend was 16 bad faith attempt to avoid summary judgment on exhaustion grounds). Having chosen not 17 to do so, the Court will not impute bad faith on Plaintiff’s part after the fact. 18 Additionally, Defendants overstate the degree to which this conclusion diverges 19 from Jackson or previous case law. For one thing, Defendants repeatedly assert that “an 20 inmate is required to exhaust if he was a prisoner when he filed the complaint; even if he 21 is later released.” (Reply at 3; see also id. at 5–6 (arguing that this assertion is supported 22 by district court cases from within the Ninth Circuit predating Jackson).) But Jackson was 23 clear that “[e]xhaustion requirements apply based on when a plaintiff files the operative 24 complaint, in accordance with the Federal Rules of Civil Procedure,” and no aspect of the 25 PLRA or Federal Rules of Civil Procedure suggest that a different outcome is required in 26 the factual situation at issue in this case. Jackson, 870 F.3d at 935; see also Olmos v. Well 27 Path, CV-19-8036-PCT-GMS (JFM), 2020 WL 4550465, at *5 n.2 (D. Ariz. Feb. 5) 28 (“[T]he holding in Jackson was not limited to supplemental pleadings, but generally 1 applied to any new ‘operative complaint.’” (citing Jackson, 870 F.3d at 937)), report & 2 recommendation adopted in part & rejected in part on other grounds, 2020 WL 4188042 3 (D. Ariz. July 21, 2020). Likewise, Jackson explicitly rejected several district court 4 decisions, including the only factually analogous case cited by Defendants, Vanvalkenberg 5 v. Oregon Department of Corrections, No. 3:14-cv-00916-BR, 2016 WL 2337892, at *14– 6 15 (D. Or. May 2, 2016), on the grounds that it “appear[s] to have applied the PLRA’s 7 exhaustion requirement ‘to claims first asserted while the plaintiff was still a prisoner, 8 regardless of the operative amended complaint being filed after the plaintiff’s release.” 9 Jackson, 870 F.3d at 935 n.4. In urging the Court to apply Section 1997e(a) to bar 10 Plaintiff’s claims, Defendants ask the Court to focus on the fact that Plaintiff first asserted 11 the Fourth Cause of Action while he was a prisoner, an approach that the Ninth Circuit 12 specifically rejected in Jackson. See id. 13 The remaining district court decisions cited by Defendants predate Jackson and 14 involved amended complaints filed by then-prisoners, not individuals like Plaintiff who 15 were released from custody prior to amending their claims. See, e.g., Gibbs v. Sanchez, 16 No. CV 15-4954-RGK (PLA), 2016 WL 6127649, at *7 (C.D. Cal. Aug. 25, 2016) 17 (concluding that the then-incarcerated plaintiff could not “cure his failure to complete the 18 administrative review process prior to initiating a federal court action by filing an amended 19 complaint raising the same claims that were unexhausted at the time that he initiated the 20 action” (citations omitted)); Giles v. Felker, No. 2:11-cv-1825-WBS-EFB P, 2016 WL 21 758729, at *5 n.1 (E.D. Cal. Feb. 26, 2016) (explaining that, as applied to a plaintiff who 22 remained incarcerated through the pendency of the case, “only new claims may be 23 exhausted after suit and then be added to amended complaint” (citations omitted)); O’Neal 24 v. Peterson, No. 2:13-cv-1054-KJN P, 2015 WL 1183593, at *7 n.2 (E.D. Cal. Mar. 13) 25 (concluding that amendment by a prisoner after exhaustion did not obviate an exhaustion 26 defense since the “plaintiff raised his failure to protect claims against defendants in the 27 original complaint, i.e., these are not ‘new’ claims”), report & recommendation adopted 28 by 2015 WL 3488290, at *1 (E.D. Cal. June 2, 2015); Ricks v. Doe, 1:10-cv-02256-LJO- 1 SKO (PC), 2015 WL 673035, at *5 (E.D. Cal. Feb. 17, 2015) (holding that “[s]ubsequent 2 exhaustion during the pendency of this action” by a prisoner “does not cure [the plaintiff’s 3 failure to exhaust prior to filing suit],” even where the plaintiff filed an amended complaint 4 after exhaustion (citing McKinney, 311 F.3d at 1200)). As a result, these cases are 5 inapposite. 6 To the extent any tension exists between these earlier cases and the Ninth Circuit’s 7 decision in Jackson, the Court need not resolve that tension because both Jackson and the 8 Federal Rules of Civil Procedure make clear that an amended complaint filed by a former 9 inmate after release from custody is not subject to an exhaustion defense under Section 10 1997e(a). Nevertheless, the Court briefly addresses Defendants’ concern that a ruling in 11 Plaintiff’s favor would “eviscerate the requirement in Mc[K]inney requiring exhaustion 12 before filing suit. It would allow prisoner-plaintiffs to do exactly what McKinney forbids, 13 file a lawsuit based on unexhausted claims, and then simply amend once the claims are 14 exhausted.” (Reply at 4.) But as the Court has explained, Plaintiff falls into the narrow 15 category of inmates who are released from custody during the pendency of their cases and 16 who amend their claims after release. Other district courts since Jackson have 17 distinguished that situation from the far more common scenario in which prisoner-plaintiffs 18 remain in custody throughout the pendency of their cases, holding that such claims are 19 subject to an exhaustion defense under Section 1997e(a) despite an amendment alleging 20 exhaustion after filing the initial complaint. See, e.g., Bosworth v. United States, No. CV 21 14-0498 DMG (SS), 2019 WL 4777334, at *3 n.9 (C.D. Cal. Sept. 3, 2019) (noting that 22 because the plaintiff was incarcerated at the time he filed each amended complaint, 23 including the operative complaint, the PLRA’s exhaustion requirement applied); 24 Washington v. Stark, No. 1:18-cv-00564-LJO-SAB (PC), 2019 WL 343133, at *6 n.1 (E.D. 25 Cal. Jan. 28, 2019) (distinguishing Jackson on the grounds that the “[p]laintiff remained in 26 custody at the time he filed his amended complaint and currently remains in custody”). 27 The Third Circuit has also distinguished between these situations, relying in part on 28 Jackson in holding that a supplemental or amended complaint filed after a prisoner’s 1 ||release from custody cures the earlier failure to exhaust administrative remedies.’ See 2 || Garrett v. Wexford Health, 938 F.3d 69, 91 (3d Cir. 2019) (“[W]e conclude that there is 3 |/nothing in the PLRA to indicate that a plaintiff cannot employ Rule 15 to file a 4 ||supplemental pleading to cure an initial filing defect. Because [plaintiff] filed the [third 5 ||amended complaint] as a non-prisoner, administrative exhaustion was not an appropriate 6 || basis for its dismissal.’’), cert. denied, 140 S. Ct. 1611 (2020); see also Downey v. Pa. Dep’t 7 || of Corrs., 968 F.3d 299, 309 (3d Cir. 2020) (holding that a second amended complaint filed 8 ||one day after plaintiff was released from custody rendered “[t]he fact that [plaintiff] did 9 || not file an initial grievance ... irrelevant’). These cases allay any practical concerns raised 10 ||/by Defendants about the implications of applying the Ninth Circuit’s rule in Jackson to 11 || Plaintiff?s Fourth Cause of Action. 12 CONCLUSION 13 In light of the foregoing, the Court DENIES Defendants’ Motion for Summary 14 || Judgment as to Plaintiff’s Fourth Cause of Action. 15 IT IS SO ORDERED. 16 17 ||Dated: November 3, 2020 —_—— (2 18 | 59) \ 0 (re 19 Honorable Todd W. Robinson United States District Court 20 21 22 |} 23 This view is not universally shared among the other federal courts of appeals. See, e.g., Harris v. Garner, 216 F.3d 970, 981, 987 (11th Cir. 2000) (en banc) (holding that Section 1997e(e) applied to claims brought 24 by prisoners even if they were subsequently released from custody prior to judgment and amended or 25 ||Supplemented their complaints after release); Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (applying Harris to failure to exhaust under Section 1997e(a)); see also May v. Segovia, 929 F.3d 1223, 26 || 1229 (10th Cir. 2019) (“The question under the PLRA is the timing of the claim alleged, not the sufficiency of the allegations. Because superseding allegations cannot change the status of the prisoner at the time he 27 ‘brought’ the relevant unexhausted claim .. . the PLRA required [the plaintiff] to exhaust that claim.”). 28 As explained, however, the Ninth Circuit has clearly spoken to the contrary, and the Court is bound by its decision. 14