                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JAMES JOHN MCBRIDE,                               No. 12-17682
               Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          1:10-cv-02229-
                                                    AWI-BAM
 S. LOPEZ; R. RUGGLES; M. PEREZ; D.
 LOPEZ; S. KOCH; R. ATHEY, Sgt.,
               Defendants-Appellees.                  OPINION


       Appeal from the United States District Court
           for the Eastern District of California
     Anthony W. Ishii, Senior District Judge, Presiding

                    Argued and Submitted
          April 13, 2015—San Francisco, California

                       Filed June 30, 2015

 Before: Mary M. Schroeder and N. Randy Smith, Circuit
      Judges and Roger T. Benitez,* District Judge.

                  Opinion by Judge Schroeder




 *
   The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2                       MCBRIDE V. LOPEZ

                           SUMMARY**


                      Prisoner Civil Rights

    The panel affirmed the district court’s order granting
defendants’ motion to dismiss a prisoner civil rights action
for failure to exhaust administrative remedies under the
Prison Litigation Reform Act.

    The panel held preliminarily that although exhaustion
issues must generally be decided on a motion for summary
judgment pursuant to Fed. R. Civ. P. 56, in this case there
was no need for further factual development.

     The panel held that fear of retaliation may be sufficient to
render an inmate grievance procedure effectively unavailable
and thereby excuse the prisoner’s failure to exhaust
administrative remedies. To determine whether failure to
exhaust is excusable, the panel approved the test applied by
the Eleventh Circuit in Turner v. Burnside, 541 F.3d 1077,
1084–85 (11th Cir. 2008). Under the test, a prisoner must
provide both a subjective and objective basis for the fear of
retaliation. The panel held that in this case, plaintiff failed to
show an objective basis for his belief that prison officials
would retaliate against him for filing a grievance. The panel
determined that there was no objective indication that the
officials’ statements were aimed at deterring plaintiff from
filing a grievance and there was no allegation or evidence that
officials believed that plaintiff was contemplating filing a
grievance.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     MCBRIDE V. LOPEZ                         3

                         COUNSEL

Tom Wyrwich (argued), Davis Wright Tremaine LLP,
Seattle, Washington, for Plaintiff-Appellant.

Kamala D. Harris, Attorney General of California, Thomas S.
Patterson, Supervising Deputy Attorney General, Suzanne
Antley (argued) and Neah Huynh, Deputy Attorneys General,
San Diego, California, for Defendants-Appellees.


                          OPINION

SCHROEDER, Circuit Judge:

     The Prison Litigation Reform Act (“PLRA”) requires the
exhaustion of available prison administrative remedies before
a prisoner may file suit in federal district court. The
requirement may, however, be excused under certain limited
circumstances where the intervening actions or conduct by
prison officials render the inmate grievance procedure
unavailable. In this case, for the first time in our circuit, we
consider a claim that a threat of retaliatory action by a prison
guard had the effect of rendering the prison grievance system
unavailable so as to excuse the prisoner’s failure to meet the
time limitation for filing a grievance. We join other circuits
in holding that fear of retaliation may be sufficient to render
the inmate grievance procedure unavailable, and we approve
the test applied in the Eleventh Circuit that requires both a
subjective and objective basis for the fear. We hold in this
case that McBride failed to show an objective basis for his
belief that prison officials would retaliate against him for
filing a grievance. We therefore affirm the district court’s
dismissal of the complaint.
4                    MCBRIDE V. LOPEZ

    We observe as a preliminary matter that we decide this
appeal after our court’s decision in Albino v. Baca, 747 F.3d
1162 (9th Cir. 2014) (en banc), which overruled our prior
circuit practice of deciding exhaustion issues on the basis of
an “unenumerated motion” to dismiss pursuant to Federal
Rule of Civil Procedure 12(b). Id. at 1168. We held that
exhaustion issues must instead generally be decided on a
motion for summary judgment pursuant to Rule 56. Id.
Albino does not affect our decision in this case because there
is no need for further factual development.

                     BACKGROUND

    The case arises out of an incident at Pleasant Valley State
Prison in California, where the plaintiff-appellant James
McBride was an inmate. On July 4, 2010, McBride allegedly
began an altercation with guards by throwing an unknown
“burning liquid” in the eyes of one guard, Lopez, after
McBride was told that he and other inmates were to be
housed in a different building. According to McBride,
several guards, including defendants Lopez and Ruggles, then
punched and kicked him repeatedly in the head, causing
bleeding and swelling. The guards stated in their reports of
the incident that they were using appropriate force to subdue
McBride, while McBride claims the force the guards used
was excessive. After the incident, McBride was placed in
administrative segregation or “ad-seg.”

    McBride alleges that while he was in ad-seg, defendants
Ruggles and Lopez came by his cell and told him that he was
“lucky” because his injuries “could have been much worse.”
According to McBride, the guards visited him with similar
comments on a number of occasions. He alleges he
interpreted these statements as threats and did not
                    MCBRIDE V. LOPEZ                        5

immediately file a grievance against the defendants for
excessive force because he feared retaliation.

    McBride further alleges that after over two months had
passed he began to fear that if he did not report the earlier
incident he might suffer harm, so he initiated the grievance
process by filing the Inmate/Parolee Appeal Form required
for grievances within the California state prison system.
McBride filed the form on September 16, 2010,
approximately ten weeks after the incident. The filing was
therefore approximately two months late, since California
prison regulations then required grievances to be initiated
within fifteen days.

    The prison’s appeals coordinator denied McBride’s
grievance on October 6, informing him that it was not timely
and that McBride needed to provide an explanation for why
he could not file in a timely fashion. McBride responded on
October 20, explaining that he did not file on time because he
was afraid of retaliation for reporting the incident, due to
threats he had received from Lopez and Ruggles. On October
25, the appeals coordinator again rejected McBride’s
grievance, stating that McBride had failed to provide an
adequate explanation for why he could not timely file.

    McBride filed his pro se complaint in federal district
court, pursuant to 42 U.S.C. § 1983, in December 2010,
claiming violation of his Eighth Amendment rights by use of
excessive force in connection with the original altercation.
He also attached the record of his grievances, including the
explanation he had submitted to the appeals coordinator as to
why he could not timely file.
6                     MCBRIDE V. LOPEZ

    The district court granted defendants’ motion to dismiss.
The magistrate judge (in an order adopted by the district
court) first noted that while our court had not considered the
issue, a number of district courts in this circuit have ruled that
threats cannot excuse a failure to exhaust. The order then
reviewed the decisions of other circuits recognizing that
threats can excuse a failure to exhaust. The district court
concluded that even if it were to agree that threats can excuse
a failure to exhaust, the statements by Lopez and Ruggles
were not overtly threatening, but merely stating a fact when
they described McBride as being “lucky” that his injuries
were not worse. McBride appealed, and we appointed
counsel to represent him.

                        DISCUSSION

    The Prison Litigation Reform Act states that “[n]o action
shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). This court
has previously emphasized that the PLRA requires only that
a prisoner exhaust available remedies, and that a failure to
exhaust a remedy that is effectively unavailable does not bar
a claim from being heard in federal court. In Nunez v.
Duncan, 591 F.3d 1217, 1225–26 (9th Cir. 2010), the official
rejecting the prisoner’s grievance mistakenly relied on a
particular regulation, and the prison obstructed the prisoner’s
efforts to obtain the regulation, resulting in delay. We held
that the mistake of the prison Warden “rendered [the
prisoner’s] administrative remedies effectively unavailable”
and that the prisoner’s failure to exhaust was therefore
“excused.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813,
823 (9th Cir. 2010), we held that a prison’s improper
                     MCBRIDE V. LOPEZ                          7

screening of a grievance can also render administrative
remedies “‘effectively unavailable’ such that exhaustion is
not required under the PLRA.” Finally, in Albino, 747 F.3d
at 1177, we held that where a jail did not inform a prisoner of
the process for filing a complaint even after repeated
requests, the jail did not prove that there was any realistically
“available” remedy for the prisoner to exhaust.

    While we have not yet explicitly addressed whether a
threat of retaliation may be sufficient to render an
administrative remedy “effectively unavailable,” other
circuits have. At least four have recognized that when a
prisoner reasonably fears retaliation for filing a grievance, the
administrative remedy is effectively rendered unavailable and
the prisoner’s failure to exhaust excused. See, e.g., Hemphill
v. New York, 380 F.3d 680, 688 (2d. Cir. 2004) (holding that
threats render ordinary grievance procedures effectively
unavailable when they are serious enough to deter “a
similarly situated individual of ordinary firmness”); Kaba v.
Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006) (citing with
approval the objective “ordinary firmness” test from
Hemphill); Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th
Cir. 2008) (holding that remedies “that rational inmates
cannot be expected to use” because of threats are not
available, and adopting a two-part test); Tuckel v. Grover,
660 F.3d 1249, 1254 (10th Cir. 2011) (adopting the two-part
test from Turner).

    Our recognition of such an exception today flows from
our prior cases, since we have previously cited with approval
the leading cases from the other circuits. See Sapp, 623 F.3d
at 823 (citing Turner, Kaba, and a case from the Second
Circuit that followed Hemphill); Nunez, 591 F.3d at 1224
8                    MCBRIDE V. LOPEZ

(same). Recognizing such an exception therefore is fully
supported by our precedent.

     There are important reasons for recognizing such an
exception. The PLRA imposes an exhaustion requirement in
order to give an agency the opportunity to correct its own
mistakes before being dragged into federal court and in order
to promote greater efficiency and economy in resolving
claims. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Requiring
inmates to first exhaust through the prison’s own process
gives inmates an incentive to use the available remedies, i.e.,
to “pursue administrative proceedings that they might
otherwise prefer to skip.” Sapp, 623 F.3d at 823 (citing Ngo,
548 U.S. at 90). At the same time, we must discourage
prisons from actions that might deter prisoners from using
grievance procedures. We therefore allow prison inmates to
bring these claims in federal court when prison officials have
rendered the grievance process effectively unavailable. This
provides an important incentive for the prison: to allow
prisoners to file grievances freely, and without fear of
retaliation. See Turner, 541 F.3d at 1085 (“[Recognizing that
threats can render administrative remedies unavailable] is
beneficial because it reduces any incentive that prison
officials otherwise might have to use threats to prevent
inmates from exhausting their administrative remedies, and
it thereby safeguards the benefits of the administrative review
process for everyone.”).

    For these reasons it is now appropriate for our court to
recognize expressly that the threat of retaliation for reporting
an incident can render the prison grievance process
effectively unavailable and thereby excuse a prisoner’s failure
to exhaust administrative remedies. Such recognition is
consistent with the overall aim of the PLRA, and with
                     MCBRIDE V. LOPEZ                          9

providing efficient administration of the prison grievance
system.

    When we turn to the question of how to determine when
a failure to exhaust is excusable, we find that the formulation
of the test to determine excusability is not the same for all
circuits. The Tenth and Eleventh Circuits apply a test that has
both subjective and objective components, while the Second
and the Seventh have a more generalized one-part test. The
Eleventh Circuit test, later adopted by the Tenth, requires that
two conditions be met: “(1) the threat [of retaliation] actually
did deter the plaintiff inmate from lodging a grievance or
pursuing a particular part of the process; and (2) the threat is
one that would deter a reasonable inmate of ordinary firmness
and fortitude from lodging a grievance or pursuing the part of
the grievance process that the inmate failed to exhaust.” Id.
By contrast, the Second and Seventh Circuits hold that threats
of retaliation may excuse a failure to exhaust when the threats
are serious enough to deter “a similarly situated individual of
ordinary firmness.” Hemphill, 380 F.3d at 688 (internal
quotation marks omitted).

     The Eleventh Circuit’s test is straightforward and
conceptually simple to apply. To show that a threat rendered
the prison grievance system unavailable, a prisoner must
provide a basis for the court to find that he actually believed
prison officials would retaliate against him if he filed a
grievance. If the prisoner makes this showing, he must then
demonstrate that his belief was objectively reasonable. That
is, there must be some basis in the record for the district court
to conclude that a reasonable prisoner of ordinary firmness
would have believed that the prison official’s action
communicated a threat not to use the prison’s grievance
procedure and that the threatened retaliation was of sufficient
10                   MCBRIDE V. LOPEZ

severity to deter a reasonable prisoner from filing a
grievance. In oral argument, both parties in the case before
us indicated their satisfaction with the application of the
Eleventh Circuit’s a test. We therefore adopt it.

    Applying the subjective prong of the test to McBride’s
case, we consider whether McBride has sufficiently alleged
that he was actually deterred from filing a grievance by the
guards’ threats. Construing the facts in the light most
favorable to McBride, his allegation that he perceived the
statement that he was “lucky,” in that his injuries “could have
been much worse,” to be a threat not to use the prison
grievance system is sufficient to satisfy the subjective prong.
Given the circumstance that McBride had recently been
beaten by the same guards making the statements, McBride
could have believed the guards bore him considerable
hostility and therefore the statements could be interpreted as
threatening. To the extent the district court ruled to the
contrary, we disagree.

    Turning to the objective prong, we conclude that McBride
failed to make the requisite showing. Even if McBride
actually viewed the statements as threatening, the issue before
us is whether the guards’ statements could reasonably be
viewed as threats of retaliation if McBride filed a grievance.
As the district court recognized, the statements themselves
make no reference to a grievance or to anything else, beyond
the preexisting hostility, that might trigger a future attack on
the part of the guards. McBride’s case stands in stark contrast
to the threats made to prisoners in Turner and Hemphill,
which explicitly threatened retaliation if the prisoner used the
prison’s grievance system. See Turner, 541 F.3d at 1081;
Hemphill, 380 F.3d at 684. Although the threat need not
explicitly reference the grievance system in order to deter a
                      MCBRIDE V. LOPEZ                         11

reasonable inmate from filing a grievance, c.f. Brodheim v.
Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), there must be some
basis in the record from which the district court could
determine that a reasonable prisoner of ordinary firmness
would have understood the prison official’s actions to
threaten retaliation if the prisoner chose to utilize the prison’s
grievance system. Only then will the threat render the prison
grievance system effectively unavailable.

     There was no objective indication the guards’ statements
were aimed at deterring McBride from filing a grievance.
There is no allegation or evidence that the guards believed
McBride was contemplating filing a grievance. McBride had
not asked for materials necessary to file a grievance or given
any indication to prison officials that he intended to file a
grievance. The only potentially relevant fact McBride alleges
is that he was beaten, and that the guards (who beat him)
made the statements. If this fact, standing alone, were
sufficient, any hostile interaction between a prisoner and
prison officials would render the prison’s grievance system
unavailable. There is no reason to allow inmates to avoid
filing requirements on the basis of hostile interactions with
guards when the interaction has no apparent relation to the
use of the grievance system. Hostile interaction, even when
it includes a threat of violence, does not necessarily render
the grievance system “unavailable.”

    Accordingly, McBride has failed to demonstrate that the
prison’s grievance system was rendered effectively
unavailable by the conduct of prison officials. Thus, he was
required to exhaust his administrative remedies. By failing to
timely file a grievance, McBride failed to satisfy this
threshold requirement to review of his claims in federal court.
The district court did not err by dismissing his complaint.
12               MCBRIDE V. LOPEZ

     AFFIRMED.
