Wyatt v. Cal A. Terhune; Suzan Hubbard

Appellant Earl Wayne Wyatt, a Rastafarian inmate, filed
this § 1983 action challenging the California Department of
Corrections’ hair length regulations as a violation of his constitutional
and statutory rights to free exercise of religion and
equal protection of the laws. This appeal concerns three procedural
issues rather than the merits of Wyatt’s claims.

In addressing Wyatt’s First Amendment claim, the magistrate
judge assigned to the case served on the parties a copy
of his findings of fact from a different case challenging the
grooming regulations and directed defendants to file a summary
judgment motion. He did not explain to Wyatt, a pro se
prisoner, the significance of the findings, that he intended to
take judicial notice of the findings in Wyatt’s case or whether
or how Wyatt could dispute the findings in the summary judgment
process. Once defendants filed their summary judgment
motion, the magistrate judge indeed took extensive judicial
notice of his prior findings and recommended that the district
court grant defendants summary judgment; the district court
adopted the findings and recommendation of the magistrate
judge in full. On appeal, Wyatt challenges the magistrate
judge’s novel procedure as an improper use of judicial notice.
We do not decide whether use of the prior findings — at least
in some fashion — was improper use of judicial notice.
Rather, we conclude the procedure adopted here was flawed
because it did not meet the requirements of our fair notice
doctrine, under which the district court bears the responsibility
of assuring that a pro se prisoner litigant receives meaningful
notice of summary judgment procedures and requirements.
We therefore reverse the summary judgment on that ground.

The district court also dismissed Wyatt’s religious discrimination
claim under a provision of the Religious Freedom Restoration
Act (RFRA) that had been declared unconstitutional.While appeal of that dismissal was pending, Congress enacted
the Religious Land Use and Institutionalized Persons Act
(RLUIPA), which replaces the void provisions of RFRA. We
have discretion to remand a case to the district court for further
consideration when new laws likely to influence a decision
have become effective during the pendency of an appeal.
On remand, the district court should grant Wyatt leave to
amend his complaint to include a claim under RLUIPA.

The district court also granted defendants’ motion to dismiss
Wyatt’s equal protection claim under Rule 12(b) of the
Federal Rules of Civil Procedure, ruling that Wyatt had failed
to demonstrate exhaustion of the inmate appeals process
before filing suit, as required by the Prison Litigation Reform
Act (PLRA). Whether the PLRA exhaustion requirement is a
defense or a pleading requirement is an issue of first impression
in this Circuit. We adopt the rule of the majority of circuits
and hold that it is a defense that must be raised and
proved by the defendant. The burden of establishing nonexhaustion
therefore falls on defendants. Because defendants did
not meet this burden, we also reverse the dismissal of Wyatt’s
equal protection claim.

By way of an order dated February 4, 2000, the magistrate
judge served a copy of his findings and recommendations in
Toyebo v. Terhune, No. S-98-0292 (E.D. Cal. Aug. 28, 1990),on the parties and directed defendants to file a motion for
summary judgment with respect to Wyatt’s First Amendment
claim.3 Toyebo, which the magistrate judge previously had
decided, involved an unsuccessful challenge to the grooming
regulations by a group of Native American inmates. The magistrate
judge’s order did not say anything about taking judicial
notice of the Toyebo findings or how they might otherwise be
relevant to a summary judgment motion. The February 4
order did, however, refer the parties to a June 14, 1999, order
of the magistrate judge that included an explanation of how
Wyatt, a pro se prisoner, could oppose summary judgment
and stated that facts that were not disputed would be accepted
as true.

Under the right circumstances and with a proper regard for
the fairness of the proceedings, a district court is not barred
from utilizing fair and proper procedures that may economize
judicial resources. Pro se prison litigants, however, should not
be saddled with findings from prior cases where they had no
say in the development of the record or in the strategic decisions
from which that record sprang. Because the magistrate
judge did not take the steps required by Rand, we hold that
the summary judgment procedure was in error and reversal is
required.7

In his complaint, Wyatt alleged a violation of the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1. The
district court dismissed the claim because City of Boerne v.
Flores, 521 U.S. 507 (1997), had declared RFRA unconstitutional
as applied to the states. Subsequently, Congress enacted
the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc-1, which provides rights similar
to those delineated in RFRA. Wyatt contends that his
RFRA claim should be construed as a RLUIPA claim andreinstated. Defendants argue that RLUIPA was not pled or
argued below and, therefore, is not before this court.

Although we construe a pro se prisoner’s pleadings liberally,
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), we
decline to construe Wyatt’s RFRA claim as a RLUIPA claim
or to consider the merits of Wyatt’s RLUIPA claim for the
first time on appeal. Nonetheless, the district court on remand
should grant Wyatt leave to amend his complaint to plead a
claim under RLUIPA. “This court may remand a case to the
district court for further consideration when new cases or laws
that are likely to influence the decision have become effective
after the initial consideration.” White Mountain Apache Tribe
v. Arizona, 649 F.2d 1274, 1285-86 (9th Cir. 1980).

In his § 1983 complaint, Wyatt alleged that the prison
grooming regulations violate the Equal Protection Clause of
the Fourteenth Amendment because they apply to men but not
to women. The district court dismissed this claim for failure
to satisfy the exhaustion requirement of the Prison Litigation
Reform Act (PLRA), which states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).

It is not clear that the district court dismissed Wyatt’s
equal protection claim employing the proper legal standard or
reached a factual finding that was not clearly erroneous.
Defendants argued in the district court, consistent with the
Sixth Circuit’s position, that the burden of establishing
exhaustion fell on Wyatt and that Wyatt failed to attach documents
establishing exhaustion to his complaint. We have
rejected treating PLRA exhaustion as a pleading requirement
or requiring exhaustion to be established by the complaint.
Accordingly, if the district court dismissed Wyatt’s claim on
this ground, we must reverse.

Assuming in the alternative that the district court relied on
the documentary evidence produced by defendants, the
court’s factual finding that Wyatt failed to exhaust nonjudicial
remedies was clearly erroneous. See Ritza, 837 F.2d at 369
(holding that we will review the district court’s factual determinations
for clear error and its application of substantive law
de novo). The documents produced by defendants are inadequate
to establish that Wyatt failed to exhaust California’s
administrative review process. The affidavit, although
describing the inmate appeals process, does not state whether
or not Wyatt has exhausted his appeals. There is no evidence
in the record establishing that the “Appeal Record” is what
defendants say it is. We cannot tell from the record whether
that document is a complete record of Wyatt’s Director’s
Level appeals. Nor does the record establish that the one
appeal shown on the document relates to a subject other than
the prison grooming regulations challenged here. Defendants
have failed to meet their burden of establishing that Wyatt did
not exhaust administrative remedies.15

A third possibility is that the district court inferred from
Wyatt’s making a futility argument that he conceded nonexhaustion.
A prisoner’s concession to nonexhaustion is a valid
ground for dismissal, so long as no exception to exhaustion
applies. The record is not clear, however, that Wyatt has conceded
that he did not exhaust administrative remedies.

We therefore vacate the order dismissing Wyatt’s equal
protection claim and remand for further proceedings.