David Edwards v. Gary Swarthout

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2022
• Docket: 17-16019
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID E. EDWARDS, No. 17-16019

Plaintiff-Appellant, D.C. No. 2:13-cv-02218-JAM-DB v.

GARY SWARTHOUT, Warden, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted February 7, 2022 San Francisco, California

Before: WARDLAW, IKUTA, and BADE, Circuit Judges.

California state prisoner David Edwards appeals from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging that Warden Gary

Swarthout violated his constitutional rights by temporarily imposing restrictions on

white inmates in July 2010 and February 2011. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s grant of summary judgment de novo,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), and affirm in part,

vacate in part, and remand.

1. The district court properly granted summary judgment on Edwards’s claims

related to the February 2011 restrictions because Edwards did not exhaust available

administrative remedies and failed to raise a genuine dispute of material fact as to

whether administrative remedies were effectively unavailable to him. See 42

U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85, 90–91 (2006); Ross v.

Blake, 578 U.S. 632, 639–40 (2016). Edwards argues that filing a separate

administrative appeal regarding the February 2011 restrictions would have resulted

in summary dismissal. But that argument is foreclosed by the principle that “as

long as some action can be ordered in response” to a prisoner’s grievance, he has

not yet exhausted administrative remedies. Brown v. Valoff, 422 F.3d 926, 934

(9th Cir. 2005). We will not read futility or other exceptions into the exhaustion

requirements of § 1997e(a). Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).1

2. The district court properly granted summary judgment on Edwards’s Eighth

Amendment claim because Edwards failed to raise a genuine dispute of material

fact regarding whether Swarthout was deliberately indifferent to Edwards’s health

1 We decline to consider Swarthout’s argument that Edwards’s claims are barred by claim preclusion, as he did not raise that argument before the district court and the district court did not consider it. See CarePartners, LLC v. Lashway, 545 F.3d 867, 879 n.8 (9th Cir. 2008); Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (as amended).

2 or safety. See Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980); Noble v.

Adams, 646 F.3d 1138, 1147–48 (9th Cir. 2011) (as amended); see also May v.

Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (“[A] temporary denial of outdoor

exercise with no medical effects is not a substantial deprivation.”).

3. The district court properly granted summary judgment on Edwards’s due

process claim because Edwards failed to raise a genuine dispute of material fact

concerning whether the restrictions imposed an “atypical and significant hardship

on [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515

U.S. 472, 483–86 (1995); see Hayward, 629 F.2d at 601–03.

4. The district court improperly granted summary judgment on Edwards’s

equal protection claim. An “express racial classification,” like the one here, “is

immediately suspect” and subject to strict scrutiny. Johnson v. California, 543

U.S. 499, 509 (2005). Swarthout was therefore required to “demonstrate that any

race-based policies are narrowly tailored” to “address the compelling interest in

prison safety.” Id. at 514. That is, Swarthout “had to show that reasonable men

and women could not differ regarding the necessity of a racial classification in

response to prison disturbances and that the racial classification was the least

restrictive alternative (i.e., that any race-based policies are narrowly tailored to

legitimate prison goals).” Richardson v. Runnels, 594 F.3d 666, 671 (9th Cir.

2010) (as amended).

3 Swarthout presented insufficient evidence to establish a link between the

individuals who perpetrated the incidents at issue and the risk of violence from all

white inmates. Swarthout’s statement in his declaration that other white inmates

could “potentially” have been involved in the incident does not constitute evidence

of a linkage between the two white inmates who perpetrated the assault and all

other white inmates. See id. at 671–72 (concluding that it was insufficient “for

prison officials simply to believe there to be a link between an individual incident

perpetrated by one or two inmates, and the risk of violence from all the [prisoners

of one race] in Facility D, with no evidentiary basis whatever indicated for that

belief”). Therefore, Swarthout did not carry his burden for summary judgment on

Edwards’s equal protection claim. We decline to reach qualified immunity

because the issue was not addressed by the district court. See id. at 672.

We therefore vacate the judgment in part and remand for further proceedings

on the equal protection claim only. On remand, the district court may consider

alternate bases for summary judgment and order supplemental briefing.

Each party shall bear its own costs on appeal.

AFFIRMED in part; VACATED in part; and REMANDED.