UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHAWN SHELTRA, No. 21-35374

Plaintiff-Appellant, D.C. No. 1:20-cv- 00215-DCN v. JAY CHRISTENSEN, Warden; D.W. OPINION MCKAY; D. W. DIETZ; TAYLOR, Sgt.; FRAHS, Cpl.; CRAIG, C/O,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Argued and Submitted May 8, 2024 Pasadena, California

Filed December 31, 2024

Before: Richard C. Tallman, Danielle J. Forrest, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Forrest; Dissent by Judge Bumatay 2 SHELTRA V. CHRISTENSEN

SUMMARY *

Prisoner Civil Rights/Exhaustion of Administrative Remedies

The panel reversed the district court’s grant of summary judgment for Idaho prison officials based on Idaho Department of Corrections inmate Shawn Sheltra’s failure to exhaust his administrative remedies, and affirmed the district court’s grant of summary judgment for defendants as to Sheltra’s claims brought against defendants in their official capacity. Sheltra filed a formal grievance in March identifying safety concerns from other inmates in his housing unit, including that he would be attacked in April if he did not make a demanded extortion payment. After being shortly isolated, Sheltra was returned to his housing unit, and in April, he was attacked by another inmate. Sheltra filed suit thereafter, asserting violations of the Eighth and Fourteenth Amendments based on defendants’ failure to protect him from a known harm. The district court dismissed the action for failure to exhaust administrative remedies because Sheltra did not file a formal grievance after the April attack. The panel adopted the continuing-violations doctrine for purposes of administrative exhaustion under the Prison Litigation Reform Act (PLRA). Under the doctrine, a properly exhausted prison grievance asserting one continuing harm or a single course of conduct can exhaust events arising out of the same alleged violation that occur * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SHELTRA V. CHRISTENSEN 3

after the grievance was made. The panel joined sister circuits who have held that an inmate need not file repeated grievances if the inmate has identified one continuing harm or a single course of conduct of which later events are a part. The doctrine applied here because Sheltra’s attack was part of the same continuing harm or course of conduct that he described in his prison grievance before the attack. The panel, therefore, reversed the district court’s summary judgment on Sheltra’s individual-capacity claims against defendants. The panel affirmed the district court’s grant of summary judgment for defendants on Sheltra’s official-capacity claims because, as Sheltra conceded, these claims are barred by the Eleventh Amendment. Dissenting, Judge Bumatay wrote that although he agreed with the majority that the continuing violation doctrine could apply to PLRA exhaustion, it did not apply in this case. The continuing violation doctrine only applies to longstanding prison policies or conditions and recurring incidents of the same harm. It has never meant that one incident automatically satisfies exhaustion for any future related claims. Had Sheltra filed a grievance after the attack, the substance of that grievance would have been markedly different than his earlier submissions. But because Sheltra filed suit before filing another grievance, he deprived officials of the time and opportunity to address his attack. He, therefore, could not

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