Ngo v. Woodford

539 F.3d 1108, 2008 U.S. App. LEXIS 17819, 2008 WL 3863859
Court of Appeals for the Ninth Circuit·Decided August 21, 2008·No. 03-16042·Published·Cited by 37 cases

Opinions

[1109]*1109Opinion by Chief Judge KOZINSKI; Concurrence by Judge PREGERSON.

KOZINSKI, Chief Judge:

On remand from the Supreme Court, Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), we consider whether a prisoner exhausted his administrative remedies for purposes of the Prison Litigation Reform Act (PLRA).

Facts

Ngo, a prison inmate serving a life sentence, was placed in administrative segregation on October 26, 2000, for inappropriate activity with a prison church volunteer. At a December 22, 2000, hearing, the prison classification committee informed Ngo that he would be released from administrative segregation the next day, but that he could not participate in prison “special programs.” Three months later, on March 20, 2001, Ngo wrote to Deputy Warden Kane, asking whether he could play on the prison’s baseball team and whether he was “entitled to participate in any and all special programs.” Kane explained that Ngo could participate in “any recreational programs,” and that the prison’s community resources manager was authorized “to review [Ngo’s] request to participate in any other program.” On June 18, 2001, Ngo submitted a formal appeal to the prison’s Appeals Coordinator. This appeal was denied as untimely under Cal.Code Regs. tit. 15, § 3084.6(c), which requires prisoners to “appeal within 15 working days of the event or decision being appealed.” Ngo resubmitted his appeal one week later, arguing that his exclusion from special programs was a continuing violation of his constitutional rights. The next day the appeal was again rejected as untimely.

Ngo sued in federal district court under 42 U.S.C. § 1983, alleging First Amendment and due process violations. The district court dismissed for failure to exhaust administrative remedies. We reversed, holding that Ngo was not required to exhaust administrative remedies. Ngo v. Woodford, 403 F.3d 620, 626 (9th Cir.2005). The Supreme Court then reversed us, explaining that the PLRA requires “proper exhaustion of administrative remedies,” Woodford v. Ngo, 126 S.Ct. at 2382, so “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court,” id. at 2384. We now consider whether Ngo exhausted his administrative remedies.

Analysis

1. It was the December 22, 2000, order that barred Ngo from participating in prison special programs. Pursuant to Cal. Code Regs. tit. 15, § 3084.6(c), Ngo was required to appeal within 15 working days of that order, or about January 16, 2001. Ngo didn’t appeal until June 18, 2001, long after the limitations period expired.

Ngo argues that the December 22 determination resulted in a continuing denial of his constitutional rights, so the 15-day limitations period restarts each day he is unable to participate in prison special programs. We rejected this argument in Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001). Knox held that a limitations period began running on the date of a prison board’s initial determination, when a prisoner “had notice of all of the wrongful acts she wished to challenge at the time of the [initial determination].” Id. at 1014. Rejecting a continuing violation theory, we explained that any continuing effects are “nothing more than the delayed, but inevitable, consequence of the [initial determination].” Id. And in the context of employment discrimination, the Supreme Court recently emphasized that limitations periods begin to run when the “discrete act” adverse to the plaintiff oecurs-“not from [1110]*1110the date when the effects of [that act] were felt.” Ledbetter v. Goodyear Tire & Rubber Co., — U.S. -, 127 S.Ct. 2162, 2168, 167 L.Ed.2d 982 (2007). Here, the December 22 determination is the discrete act adverse to Ngo, so the 15-working-day limitations period began running against him on that date rather than on the date he actually felt the effects of the order.

Ngo had ample notice: At the December 22 hearing, he was informed that he would be barred from all special programs after being released from administrative segregation. This restriction was presumptively permanent. If a warden bars a prisoner from activities and doesn’t set a date when this restriction will lapse, the restriction remains in force until the prisoner is transferred or the warden reconsiders. Here, neither Deputy Warden Kane nor the prison classification committee told Ngo that the restriction was temporary. Indeed, Ngo’s March 20, 2001, letter recognized that the restriction was still in effect when he asked for permission to play on the prison’s baseball team and participate in special programs. Deputy Warden Kane partially rescinded the restriction and allowed Ngo to participate in recreational activities, but this doesn’t change the fact that Ngo had notice on December 22 that he was subject to an indefinite restriction. If Ngo wanted to challenge this restriction, he needed to appeal within 15 working days of the date he learned of it. Cal. Code Regs. tit. 15, § 3084.6(c). Having failed to do so, Ngo has not exhausted his administrative remedies and so cannot sue in federal court. See Woodford v. Ngo, 126 S.Ct. at 2384.

2. Ngo argues that 15 working days does not give him a “meaningful opportunity,” id. at 2392, to exhaust. But see id. at 2393 (recognizing “the informality and relative simplicity of prison grievance systems like California’s”). We need not determine whether California’s 15-working-day limitations period for prisoner administrative appeals amounts to a meaningful opportunity to exhaust, because Ngo waited months after that period elapsed to challenge the restriction. Even if we were to double or triple the 15-day period, Ngo would still come nowhere close to meeting the deadline. Ngo didn’t even question the restriction until three months after it was imposed, and didn’t formally appeal it until five months after the limitations period had elapsed. And Ngo had every opportunity to appeal earlier because he knew the restriction’s scope and duration as soon as the prison classification committee imposed it. See pp. 11359-60 supra. This is therefore not a case where the plaintiff lacked a meaningful opportunity to exhaust on the grounds that he “fail[ed] to appreciate the ... nature of [his] injuries.” Felder v. Casey, 487 U.S. 131, 146, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). Ngo sat on his grievance for months, so it is irrelevant here whether California’s 15-working-day limitations period provides a meaningful opportunity to exhaust.

3. It is unclear whether we can read exceptions into the PLRA’s exhaustion requirement. Compare Woodford v. Ngo, 126 S.Ct. at 2393 (Breyer, J., concurring in the judgment), with Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even if we could, no such exception applies here.

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Ngo v. Woodford, 539 F.3d 1108, 2008 U.S. App. LEXIS 17819, 2008 WL 3863859 (9th Cir. 2008).

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