Metropolitan News-Enterprise


Friday, April 4, 2014


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Ninth Circuit Rules En Banc That Inmate Can Sue Baca Over Brutality

Lack of Exhaustion Excused, Absent Showing That Internal Remedies Were Available, Court Says




A jail inmate’s failure to exhaust administrative remedies after he was allegedly beaten by fellow inmates on several occasions does not bar his suit against Los Angeles County and former Sheriff Lee Baca, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an 8-3 decision by a limited en banc panel, the court overturned a summary judgment in favor of the defendants and ordered that summary judgment—limited to the exhaustion issue—be entered in favor of plaintiff Juan Roberto Albino.

Judge William Fletcher, writing for the court, said it was undisputed that the 5-foot-3, 123-pound Albino was booked on suspicion of rape in 2006, was beaten on three separate occasions in three separate housing units at the jail, asked to be placed in protective custody, and was told by jailers that protective custody wasn’t necessary and he should talk to his lawyer.

He was beaten, cut and raped by fellow inmates under the allegedly mistaken belief that he had raped a 16-year-old girl. Though charged with rape, Albino had not been arrested for abusing a minor.

He now has nerve damage on the right side of his face, uses a cane, and can’t hear with his right ear or see with his right eye. He claims he was not treated until he was convicted and transferred to the state prison system.

His U.S. District Court complaint alleges that the county, the former sheriff, who resigned at the end of January against the backdrop of multiple investigations into brutalization of inmates, and unnamed others were deliberately indifferent to the beatings and to his medical needs.

Motion for Summary Judgment

In moving for summary judgment, the county claimed that Albino failed to state a cause of action because he did not comply with the exhaustion-of-remedies provision of the Prison Litigation Reform Act. It cited regulations establishing an internal complaint process, as well as the availability of complaint forms and of boxes throughout the facility where inmates could deposit the forms.

Albino responded that he never saw any such forms or boxes, and that when he complained to the jailers, he was never told about any internal complaint process. District Judge Gary Feess and a three-judge panel of the Ninth Circuit sided with the defendants, saying there was no factual dispute that the internal complaint process existed and that Albino was not prevented from availing himself of it.

Fletcher, however, said the defendants failed to carry their burden of proving that the process was actually available to the plaintiff.

He explained:

“The jail had a manual describing a procedure for handling inmate complaints, but this manual was for staff use only and was not made available to inmates. An ‘adequate supply’ of Inmate Complaint Forms was kept ‘at various locations’ within the jail. But such forms had to be requested by an inmate and were never provided to Albino, despite his repeated complaints. Nor was Albino told that he could write a complaint on an ordinary piece of paper and hand it to one of the deputies. Instead, Albino was told that it was his criminal defense attorney’s job to protect him from attacks in the jail.”

Under the PLRA, “failure to exhaust administrative remedies is an affirmative defense that the defendant must plead and prove,” Fletcher wrote. “Viewing all of the evidence in the light most favorable to Albino, we conclude as a matter of law that defendants have failed to carry their initial burden of proving their affirmative defense that there was an available administrative remedy that Albino failed to exhaust.”

Fletcher was joined by Chief Judge Alex Kozinski and Judges Stephen Reinhardt, Kim McLane Wardlaw, Jay S. Bybee, Milan D. Smith, Jr., Mary H. Murguia and Paul J. Watford.

‘Sympathetic Plaintiff’

 While acknowledging that Albino makes a “sympathetic plaintiff,” Judge N. Randy Smith, joined by Judges Sandra Ikuta and Richard Tallman, wrote in dissent that the majority opinion was flawed in several respects, in particular because it “mandates the production of unprecedented evidence in order for the defendants to meet their burden of proof on exhaustion.”

Given the district judge’s finding that administrative remedies were “capable of use,” Smith wrote, “Albino had the obligation to exhaust these remedies before he could bring an action.” Noting the plaintiff’s concession that he never asked for a complaint form, Smith said the majority was imposing on jail officials an unprecedented duty to affirmatively inform inmates of the administrative remedies available to them.

The majority also erred, he argued, in granting sua sponte summary judgment in favor of the plaintiff.

Andrea Renee St. Julian of San Diego argued the appeal for the plaintiff, while James C. Jardin of the South Pasadena office of Collins Collins Muir & Stewart LLP argued for the defendants.

The case is Albino v. Baca, 10-55702.


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