     04-6131-pr
     Macias v. Zenk


1                           UNITED STATES COURT OF APPEALS
2                               FOR THE SECOND CIRCUIT

3                                  August Term, 2006

4    (Submitted March 8, 2007                            Decided July 26, 2007)

5                                Docket No. 04-6131-pr

6    ------------------------------------
7    JUAN EDGAR LOERA MACIAS,

8                          Plaintiff-Appellant,

9                     v.

10   MICHAEL ZENK, JOHN ANNESA, STEPHANIE
11   MIDDLETON and JOSEPH PARKER,


12                  Defendants-Appellees.
13   ------------------------------------


14   B e f o r e: MESKILL, WINTER and STRAUB, Circuit Judges.

15
16                Appeal from a judgment of the United States District

17   Court for the Eastern District of New York, Trager, J., entered

18   on July 26, 2004, dismissing pro se prisoner’s Eighth Amendment

19   medical indifference claims against prison officials for failure

20   to exhaust administrative remedies under the Prison Litigation

21   Reform Act, 42 U.S.C. § 1997e(a).

22                Affirmed in part, and vacated and remanded in part.

23                                  Juan Edgar Loera Macias, Brooklyn, NY,
24                                  Appellant Pro Se.

25                                  Roslynn R. Mauskopf, United States
26                                  Attorney, Eastern District of New York,
27                                  Varuni Nelson, Edward Newman, Assistant
1                               United States Attorneys, Brooklyn, New
2                               York, on the brief,
3                               for Appellees.

4    MESKILL, Circuit Judge:

5              Appeal from a judgment of the United States District

6    Court for the Eastern District of New York, Trager, J., entered

7    on July 26, 2004, dismissing pro se prisoner’s Eighth Amendment

8    medical indifference claims against prison officials for failure

9    to exhaust administrative remedies under the Prison Litigation

10   Reform Act(PLRA), 42 U.S.C. § 1997e(a).

11             Affirmed in part, and vacated and remanded in part.

12             This appeal examines the scope of the PLRA exhaustion

13   requirement.   Plaintiff Juan Edgar Loera Macias is a pro se

14   federal prisoner who alleges that Metropolitan Detention Center

15   (MDC) defendants Warden Michael Zenk, Health Service

16   Administrator Stephanie Middleton, Physician Assistant John

17   Annessa, and Corrections Officer Joseph Parker, were negligent

18   and deliberately indifferent to his medical needs in violation of

19   the Eighth Amendment’s proscription on cruel and unusual

20   punishment.    Macias filed his pro se 42 U.S.C. § 1983 civil

21   action in the United States District Court for the Southern

22   District of New York.   His case was transferred to the Eastern

23   District of New York where Judge Trager dismissed Macias’ state

24   law tort and Eighth Amendment claims for failure to exhaust his

25   administrative remedies under the Federal Tort Claims Act (FTCA),



                                      -2-
1    28 U.S.C. § 2671 et seq., and the PLRA.

2              The district court’s judgment was entered before we

3    decided a series of cases examining the PLRA’s exhaustion

4    requirement.   We vacate that judgment in part and remand to the

5    district court to consider whether the threats Macias alleges he

6    received rendered the United States Bureau of Prisons’ (BOP)

7    administrative grievance procedures unavailable to him, or

8    whether those threats estop defendants from raising Macias’

9    failure to exhaust as an affirmative defense.    We affirm the

10   district court’s judgment in all other respects.

11                                 BACKGROUND

12             For the purposes of this appeal, we discuss the facts

13   as alleged by Macias.   Macias entered the MDC on February 16,

14   2002 as a pre-trial detainee.    MDC medical personnel examined him

15   on March 15, 2002, March 19, 2002, April 5, 2002 and July 29,

16   2002.   At these appointments Macias informed MDC personnel that

17   in 2001 he had undergone arthroscopic surgery on his right knee.

18   On October 8, 2002, while picking up his food tray in his housing

19   unit, Macias slipped and fell on a wet floor resulting in

20   injuries to his right knee, back and head.    That same day

21   defendant Annessa examined Macias and prescribed medication and

22   bed rest and ordered an X-ray of his back, hip and right knee.

23   In early December 2002 Macias approached Annessa to request

24   additional pain medication.    Annessa refused him and told him



                                       -3-
1    that there was nothing further he could do to help him.       Macias

2    filed an administrative tort claim shortly thereafter, numbered

3    TRT-NER-2003-00954 and received by the BOP on December 12, 2002,

4    alleging that his injuries were caused by defendants’ negligence,

5    and that 57 days had passed since his injury and he still had not

6    received proper medical care.

7                On January 3, 2003 an MDC physician diagnosed Macias

8    with a right medial collateral ligament tear and ordered an MRI.

9    The results of the MRI indicated that Macias’ knee had a lateral

10   and medial meniscal tear, an anterior collateral ligament tear

11   and degenerative arthritis.    After his MRI, Macias was seen

12   several more times by MDC medical personnel.       Macias’ pain

13   medication was intermittently discontinued and he had difficulty

14   obtaining additional treatment.

15               On January 24, 2003 defendant Parker denied Macias

16   access to his medication during a cell search causing him to

17   collapse.    Parker also denied Macias food by ordering him not to

18   ask other inmates to help him with his lunch tray and by telling

19   him that if he could go to the law library on crutches, he could

20   carry his food tray on crutches.        Macias filed an administrative

21   tort claim against Parker on March 13, 2003, numbered TRT-NER-

22   2003-01619, alleging emotional damages as a result of Parker’s

23   mistreatment.

24               Macias then filed this pro se action in the United



                                       -4-
1    States District Court for the Southern District of New York,

2    alleging that defendants were deliberately indifferent to his

3    medical needs and negligent in causing his injuries and emotional

4    distress.    On May 27, 2003 Macias’ lawsuit was transferred to the

5    United States District Court for the Eastern District of New

6    York.   While his case was pending Macias filed a motion for a

7    temporary restraining order claiming that the MDC had again

8    discontinued his pain medication, that he reinjured his right

9    knee when his wheelchair collapsed, and that he had not been

10   provided with prescribed rehabilitative physical therapy.    Macias

11   asked the district court to order the MDC to reissue his

12   medication and to enjoin the defendants from retaliating against

13   him.

14               The district court construed Macias’ 42 U.S.C. § 1983

15   lawsuit liberally, see McEachin v. McGuinnis, 357 F.3d 197, 200

16   (2d Cir. 2004) (“when [a] plaintiff proceeds pro se . . . a court

17   is obliged to construe his pleadings liberally, particularly when

18   they allege civil rights violations”), and found that Macias had

19   stated Eighth Amendment claims under Bivens v. Six Unknown Named

20   Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and tort

21   claims under the FTCA.    Defendants moved to dismiss the lawsuit

22   pursuant to Fed. R. Civ. P. 12(b)(6) because, inter alia, Macias

23   had failed to comply with the PLRA’s exhaustion requirement

24   before filing both his Bivens claims and his motion for a



                                      -5-
1    temporary restraining order, and because he had failed to comply

2    with the FTCA’s exhaustion requirement before filing his tort

3    claims.

4              In a decision entered on July 26, 2004 the district

5    court granted defendants’ motion and dismissed the lawsuit in

6    full.   Judge Trager dismissed Macias’ state law tort claims

7    without prejudice because Macias filed his complaint while his

8    two administrative tort claims were pending.    The court dismissed

9    Macias’ Eighth Amendment Bivens claims and his motion for a

10   temporary restraining order because Macias had never availed

11   himself of the BOP’s administrative remedy system.

12             On appeal, Macias contends that his Bivens claims

13   should not have been dismissed for failing to comply with the

14   PLRA’s exhaustion requirement because (1) he did not need to use

15   the BOP’s administrative remedy system because the BOP is not

16   authorized to provide some of the relief he seeks, (2) his

17   administrative tort claims and other informal complaints put the

18   prison officials on notice of the nature of his grievance, and

19   (3) defendant Parker’s alleged threats rendered the BOP’s

20   administrative remedy system unavailable to him, or in the

21   alternative, those threats estop defendants from raising his

22   failure to exhaust as an affirmative defense.   Macias does not

23   challenge either the dismissal of his tort claims pursuant to the

24   FTCA or the dismissal of his motion for a temporary restraining



                                     -6-
1    order.   Therefore, our review is limited to the district court’s

2    decision to dismiss Macias’ Bivens claims.      For the following

3    reasons, we affirm in part, and vacate and remand in part.

4                                DISCUSSION

5              Federal jurisdiction is based on this Bivens action

6    arising under the Eighth Amendment to the United States

7    Constitution.   28 U.S.C. § 1331.     We have appellate jurisdiction

8    under 28 U.S.C. § 1291.

9              We review the district court’s dismissal of Macias’

10   complaint for failure to state a claim de novo “accepting as true

11   all facts alleged in the complaint and drawing all inferences in

12   favor of the plaintiff.”   Faulkner v. Beer, 463 F.3d 130, 133 (2d

13   Cir. 2006) (internal quotation marks omitted).

14             The PLRA provides that a prisoner may not bring an

15   action under federal law “with respect to prison conditions . . .

16   until such administrative remedies as are available are

17   exhausted.”   42 U.S.C. § 1997e(a).    The Supreme Court has held

18   that “the PLRA's exhaustion requirement applies to all inmate

19   suits about prison life, whether they involve general

20   circumstances or particular episodes, and whether they allege

21   excessive force or some other wrong.”      Porter v. Nussle, 534 U.S.

22   516, 532 (2002).

23             We recently decided a series of cases examining the

24   scope of the PLRA's exhaustion requirement.      See Giano v. Goord,



                                     -7-
1    380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d

2    Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);

3    Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004); Ziemba v. Wezner,

4    366 F.3d 161 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680

5    (2d Cir. 2004).   In Hemphill we "read together" Giano, Abney,

6    Johnson, Ortiz and Ziemba and formulated a three-part test:

 7        Depending on the inmate's explanation for the alleged
 8        failure to exhaust, the court must ask whether
 9        administrative remedies were in fact available to the
10        prisoner. The court should also inquire as to whether
11        the defendants may have forfeited the affirmative defense
12        of non-exhaustion by failing to raise or preserve it, or
13        whether the defendants' own actions inhibiting the
14        inmate's exhaustion of remedies may estop one or more of
15        the defendants from raising the plaintiff's failure to
16        exhaust as a defense.        If the court finds that
17        administrative remedies were available to the plaintiff,
18        and that the defendants are not estopped and have not
19        forfeited their non-exhaustion defense, but that the
20        plaintiff nevertheless did not exhaust available
21        remedies, the court should consider whether special
22        circumstances have been plausibly alleged that justify
23        the prisoner's failure to comply with administrative
24        procedural requirements.

25   Hemphill, 380 F.3d at 686 (internal quotation marks and citations

26   omitted).   Because the parties did not address Hemphill, we

27   ordered supplemental briefing in this appeal.   Macias responded

28   by reiterating his argument that he did not need to use the BOP’s

29   administrative remedy system because the BOP was only authorized

30   to provide some of the relief he seeks.   In addition, Macias

31   argued for the first time that under Hemphill he had exhausted

32   his claims by putting prison officials on notice of the nature of

33   his grievance, that the BOP’s administrative remedy system was


                                     -8-
1    not available to him, and that defendants should be estopped from

2    raising his failure to exhaust as an affirmative defense.

3              After we received the parties’ supplemental briefs, the

4    Supreme Court decided Woodford v. Ngo, 126 S.Ct. 2378 (2006).       In

5    Woodford, a prisoner argued that his lawsuit was improperly

6    dismissed under the PLRA because the administrative grievance he

7    filed was rejected by the prison authorities as untimely.     126

8    S.Ct. at 2384.   The prisoner claimed that he had exhausted his

9    administrative remedies because after the prison rejected his

10   grievance, no other administrative remedies were available.     Id.

11   The Supreme Court rejected this argument explaining that the PLRA

12   requires “proper exhaustion,” meaning that a prisoner must

13   “compl[y] with the system's critical procedural rules” because

14   “[a] prisoner who does not want to participate in the prison

15   grievance system will have little incentive to comply with the

16   system's procedural rules unless noncompliance carries a

17   sanction” and “[t]he benefits of exhaustion can be realized only

18   if the prison grievance system is given a fair opportunity to

19   consider the grievance.”   Id. at 2387-88.   We now turn to each of

20   Macias’ arguments and, when necessary, we examine Woodford’s

21   effect on our PLRA decisions.

22   A.   Whether Macias’ Failure to Exhaust is Excused by the BOP’s
23        Inability to Provide All of the Relief He Seeks.

24             Macias seeks $4 million in damages as well as his

25   “immediate and unco[n]ditional . . . release” from prison.     In


                                     -9-
1    addition, in his motion for a temporary restraining order and in

2    other requests for relief submitted to the district court, Macias

3    asked for various forms of injunctive relief, including more

4    responsive medical care and continuous administration of pain

5    medication.   Macias argues that he was not required to use the

6    BOP’s administrative remedy system to exhaust these claims

7    because the BOP is not authorized to award $4 million in response

8    to an administrative grievance.     We do not agree with his

9    argument that exhaustion is not required.

10             The BOP has a three-tiered administrative remedy system

11   with the stated purpose of “allow[ing] an inmate to seek formal

12   review of an issue relating to any aspect of his/her own

13   confinement.”   28 C.F.R. § 542.10(a).    The first tier requires

14   the inmate to report informally the issue to the staff, the

15   second tier requires the inmate to file a written remedy request

16   with the Warden, and the third tier requires the inmate to file

17   appeals with the appropriate Regional Director and then with the

18   General Counsel.   See 28 C.F.R. §§ 542.13-.15; Johnson, 380 F.3d

19   at 693 (discussing the BOP’s administrative remedy system).

20             It is undisputed that Macias never proceeded beyond the

21   first tier of the BOP’s administrative remedy system.

22   Nevertheless, Macias argues that because the BOP’s administrative

23   remedy system was authorized to provide only some of the relief

24   he sought, he did not need to file a grievance.     The Supreme



                                       -10-
1    Court squarely addressed and rejected Macias’ argument in Booth

2    v. Churner, 532 U.S. 731 (2001).    In Booth, a state prisoner

3    brought a 42 U.S.C. § 1983 lawsuit alleging that corrections

4    officers had violated his Eighth Amendment rights by using

5    excessive force and failing to provide adequate medical care.

6    532 U.S. at 734.   The prisoner sought injunctive relief and money

7    damages.   Id.   The state administrative grievance system did not

8    provide for recovery of money damages.    Id. at 741.   However, the

9    Supreme Court held that under the PLRA the prisoner was still

10   required to file a grievance and complete all three stages of the

11   state’s grievance system before proceeding to federal court.     Id.

12              Macias seeks both injunctive relief and money damages.

13   There is no question that the BOP could have provided the

14   additional medical care and some of the other relief he seeks by

15   responding to a properly filed administrative grievance.

16   However, like the prisoner in Booth, Macias cannot “skip the

17   administrative process simply by limiting prayers for relief to

18   money damages” regardless of whether the BOP was authorized to

19   provide them.    Id.; see also Ruggiero v. County of Orange, 467

20   F.3d 170, 177 (2d Cir. 2006) (“[Booth] make[s] plain [that under

21   the PLRA] so long as some remedy remains available, failure to

22   exhaust is not excused.”).




                                      -11-
1    B.     Whether Macias Procedurally Exhausted His Claims By Filing
2           Administrative Tort Claims and Making Informal Complaints to
3           Prison Officials.

4                Macias filed two administrative tort claims before he

5    filed his complaint in federal court.     Taken together, Macias’

6    tort claims allege that he repeatedly requested medical care for

7    his injuries but the MDC did not provide any, that defendant

8    Annessa refused to provide him with pain medication, that his

9    injuries were getting worse because of the lack of medical care,

10   and that defendant Parker caused him to collapse during a cell

11   search by refusing to allow Macias access to his medication.

12   Macias also alleges that he sent more than 20 sick calls

13   complaining about his lack of medical treatment.     Macias argues

14   that under Johnson, his two administrative tort claims and his

15   informal requests for medical attention excuse his failure to

16   exhaust because, although he did not use the BOP’s administrative

17   remedy system, his actions “provide[d] enough information about

18   the conduct of which [he] complain[ed] to allow prison officials

19   to take appropriate responsive measures.”     Johnson, 380 F.3d at

20   697.    Macias’ reliance on Johnson is misplaced.

21               In Johnson we considered whether a prisoner could

22   satisfy the PLRA’s exhaustion requirement by raising his

23   grievance in the BOP’s disciplinary proceedings and appeals

24   process.    380 F.3d at 694.   We remanded the case so that the

25   district court could consider (1) whether under Hemphill, 380



                                       -12-
1    F.3d 680, and Giano, 380 F.3d 670, the prisoner was justified in

2    believing that his complaints in the disciplinary appeal

3    procedurally exhausted his administrative remedies because the

4    prison’s remedial system was confusing, and (2) whether the

5    prisoner’s submissions in the disciplinary appeals process

6    exhausted his remedies “in a substantive sense” by “afford[ing]

7    corrections officials time and opportunity to address complaints

8    internally.”   Johnson, 380 F.3d at 696-98 (emphasis added;

9    alteration omitted).    Thus, in Johnson we saw the prisoner’s

10   argument as raising two distinct questions -- the former

11   addressed whether the prisoner procedurally exhausted his claims

12   while the latter addressed whether the prisoner substantively

13   exhausted his claims.

14             Macias does not argue that the BOP’s administrative

15   remedy system was so confusing that he reasonably believed he had

16   satisfied the PLRA’s exhaustion requirement by filing tort claims

17   and by complaining informally to prison staff.1   Instead, Macias

18   argues that he procedurally exhausted his claims because his

19   informal complaints and administrative tort claims put the prison

20   on notice of the nature of his grievance.   Macias’ argument

21   conflates Johnson’s distinction between procedural exhaustion and


          1
             For this reason, we need not decide what effect Woodford
     has on Hemphill’s holding that where administrative procedures
     are confusing “a reasonable interpretation of prison grievance
     regulations may justify an inmate’s failure to follow procedural
     rules to the letter.” Hemphill, 380 F.3d at 690 (citing Giano).

                                      -13-
1    substantive exhaustion.    Regardless of whether his tort claims or

2    informal complaints put the prison officials on notice of his

3    grievance “in a substantive sense,” Johnson makes clear that to

4    satisfy the PLRA a prisoner must also procedurally exhaust his

5    available administrative remedies.       Johnson, 380 F.3d at 697-98

6    (emphasis added).   Because Macias does not argue that the BOP’s

7    administrative remedy system was so confusing that he justifiably

8    believed his administrative tort claims and informal complaints

9    were his only available remedies, Macias has no ground to argue

10   that he procedurally exhausted his claims under Johnson.       See

11   also Woodford, 126 S.Ct. at 2388 (holding that a prisoner must

12   procedurally exhaust his claims by “compl[ying] with the system's

13   critical procedural rules”).

14             Furthermore, while our decision in Braham v. Clancy,

15   425 F.3d 177, 183 (2d Cir. 2005), might have provided some

16   support for Macias’ argument that he procedurally exhausted his

17   claims by providing enough information about his grievance to

18   allow prison officials to take responsive measures, we conclude

19   that Braham does not survive Woodford.      In Braham, a pro se

20   prisoner alleged that prison officials violated his Eighth

21   Amendment rights by refusing to grant his request for a cell

22   change.   425 F.3d at 179.   The district court dismissed the

23   prisoner’s lawsuit under the PLRA for failure to exhaust

24   administrative remedies.     Id. at 181.   On appeal, the prisoner



                                       -14-
1    admitted that he had never filed a formal administrative

2    grievance, but argued that he had satisfied the PLRA’s exhaustion

3    requirement by submitting several inmate request forms and by

4    complaining informally to prison staff during a disciplinary

5    proceeding.   Id. at 183.   We remanded the case for the district

6    court to consider whether the prisoner’s inmate request forms or

7    the complaints he made during the disciplinary proceeding

8    “provided sufficient notice to the prison officials ‘to allow

9    [them] to take appropriate responsive measures.’”    Id. at 183

10   (quoting Johnson, 380 F.3d at 697) (alteration omitted).

11              Braham expanded Johnson by allowing prisoners to

12   procedurally exhaust their claims by taking “‘enough’” informal

13   steps “‘to put prison officials on notice’” of their concerns,

14   regardless of whether they utilize the prison’s formal grievance

15   procedures.   Braham, 425 F.3d at 183 (quoting Johnson, 380 F.3d

16   at 696).   However, after Woodford, notice alone is insufficient

17   because “[t]he benefits of exhaustion can be realized only if the

18   prison grievance system is given a fair opportunity to consider

19   the grievance” and “[t]he prison grievance system will not have

20   such an opportunity unless the grievant complies with the

21   system's critical procedural rules.”    Woodford, 126 S.Ct. at

22   2388.   Macias did not comply with the BOP’s critical procedural

23   rules, and under Woodford, he cannot satisfy the PLRA’s

24   exhaustion requirement solely by filing two administrative tort



                                      -15-
1    claims, or by making informal complaints to the MDC’s staff.

2    “[A]lert[ing] the prison officials as to the nature of the wrong

3    for which redress is sought,” Braham, 425 F.3d at 184 (internal

4    quotation marks omitted), does not constitute “proper exhaustion”

5    under Woodford.   See Woodford, 126 S.Ct. at 2388.   Therefore, to

6    the extent that Braham allowed for less than “proper exhaustion”

7    of claims under the PLRA, Braham has been overruled.

 8   C.   Whether the Threats Macias Alleges He Received Rendered the
 9        BOP’s Administrative Remedies Unavailable, or Whether Those
10        Threats Should Estop Defendants From Raising the Affirmative
11        Defense of Non-exhaustion.

12             Macias alleges in his complaint that on January 24,

13   2003 defendant Parker denied Macias access to his medication

14   during a cell search causing him to collapse.   Macias also

15   alleges that Parker denied him food by ordering him not to ask

16   other inmates to help him with his lunch tray and by telling him

17   that if he could go to the law library on crutches, he could

18   carry his food tray on crutches.   In response to our order to

19   provide supplemental briefing discussing the impact Hemphill and

20   Johnson had on his case, Macias argued for the first time that

21   Parker threatened him during the course of the January 24

22   incident and that these threats, under Hemphill, rendered his

23   administrative remedies unavailable, or in the alternative, that

24   those threats estop defendants from raising the affirmative




                                     -16-
1    defense of non-exhaustion.2

2               When the district court dismissed Macias’ suit we had

3    not decided Hemphill, 380 F.3d 680, and we had only recently

4    decided Ziemba, 366 F.3d 161.    These two cases considered the

5    effect that prison officials’ threats might have on the PLRA’s

6    exhaustion requirement.    In Hemphill, the prisoner filed suit

7    under 42 U.S.C. § 1983 alleging that prison administrators denied

8    him medical attention in violation of the Eighth Amendment.       380

9    F.3d at 681.   The prisoner also claimed that he had been

10   threatened by corrections officers and beaten prior to filing his

11   complaint.   Id. at 684.   The district court dismissed the

12   prisoner's suit in its entirety for failure to procedurally

13   exhaust his medical indifference claim.       Id. at 682.   On appeal,

14   the prisoner argued that his failure to exhaust should be excused

15   because the threats he endured rendered "procedures that would

16   ordinarily be available . . . effectively unavailable."        Id. at

17   687.   We remanded the case because “[a]s a court of appeals

18   dealing with a limited record” we could not say “whether some

19   seemingly available remedies were rendered unavailable by the

20   threats Hemphill received.”     Id. at 688.


            2
             We consider Macias’ argument regarding Parker’s alleged
     threats, which he did not raise before the district court,
     because we decided Hemphill after the district court issued its
     decision, and in the proceedings below Macias “justifiably tried
     to counter the arguments defendants made and did so on the basis
     of the law as it was then established.” Hemphill, 380 F.3d at
     688.

                                       -17-
1              As in Hemphill, here we also cannot determine whether

2    the remedies offered to Macias were rendered unavailable by

3    Parker’s alleged threats, or whether some of the MDC defendants

4    should be estopped from asserting non-exhaustion as a defense.

5    Hemphill, 380 F.3d at 688-89; see also Ziemba, 366 F.3d at 163

6    (holding that a defendant’s exhaustion defense is subject to

7    estoppel where a prisoner claimed that he was beaten, threatened,

8    and denied grievance forms and writing materials).     However,

9    because Macias alleges that Parker did not threaten him until

10   January 24, 2003, even if Macias can establish that he was

11   threatened, those threats are only relevant to events that

12   occurred after January 4, 2003.     Macias could not have been

13   deterred, and defendants should not be estopped, for earlier

14   conduct that did not impact his ability to file a timely

15   grievance.   See 28 C.F.R. § 542.14(a) (a formal administrative

16   remedy must be submitted to the warden within 20 days of the

17   event complained of).

18   D.   Whether the District Court’s Judgment Should be Affirmed on
19        Alternative Grounds Presented to But Not Reached by the
20        District Court.

21             Defendants contend that we should affirm the district

22   court’s judgment on grounds that were presented to but not

23   reached by the district court, arguing that Macias failed to

24   state an Eighth Amendment claim for medical indifference and that

25   some defendants are entitled to qualified immunity or absolute


                                       -18-
1    immunity.    However, at this stage in the proceedings, and taking

2    all of Macias’ factual allegations as true and drawing all

3    reasonable inferences in his favor, see Faulkner, 463 F.3d at

4    133, we cannot say at this time that defendants were immune from

5    suit or that Macias has failed to state a Bivens claim.

6    Therefore, we must leave the resolution of these issues in the

7    first instance to the district court on remand.

8                                CONCLUSION

9                For the foregoing reasons, the judgment of the district

10   court is affirmed in part, vacated in part, and the case is

11   remanded for further proceedings.       On remand the district court

12   should consider whether the BOP’s administrative procedures were

13   rendered unavailable by Parker’s allegedly threatening behavior.

14   “The test for deciding whether the ordinary grievance procedures

15   were available must be an objective one: that is, would a

16   similarly situated individual of ordinary firmness have deemed

17   them available.”    Hemphill, 380 F.3d at 688 (internal quotation

18   marks omitted).    The district court should also consider whether

19   the MDC defendants’ non-exhaustion defense is barred by equitable

20   estoppel and “depending on the facts pertaining to each

21   defendant, it is possible that some individual defendants may be

22   estopped, while others may not be.”       Id.   Of course, we take no

23   position on whether Macias can establish that his remedies were

24   rendered unavailable or whether some of the MDC defendants should


                                      -19-
1   be estopped from asserting non-exhaustion.   We affirm the

2   district court’s judgment in all other respects.




                                   -20-
