Raped Inmate Has a Case Against LA County

     (CN) - Los Angeles County jail officials ignored an accused rapist's pleas for protective custody after inmates mistook him for a child abuser and brutalized him, the full 9th Circuit ruled Thursday.
     Jailers housed the 5-foot-3, 123-pound Juan Roberto Albino in the general population of a high-medium security housing unit after booking him into the county's Central Jail on suspicion of rape in 2006.
     He was soon 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.
     Albino allegedly requested protective custody before and after he was attacked, but he said the guards always told him to talk to his lawyer.
     The detainee suffered two more attacks in general population after a stay in the hospital. 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.
     A federal judge awarded the county summary judgment on Albino's pro se complaint after finding that he had failed to exhaust his administrative options through the jail's formal complaint process.
     Though a three-judge appeals panel affirmed, the 9th Circuit agreed later to consider the issue en banc.
     The court revived Albino's civil rights claims against the county and its sheriff, 9-3, Thursday, finding that guards had neglected to inform him how to file an official complaint
     Albino deserves summary judgment on the issue of whether he had done all he could to request help before filing his lawsuit, according to the ruling.
     "Albino was beaten several times and repeatedly complained orally to deputies in the jail, asking repeatedly to be placed in protective custody," Judge William Fletcher wrote for the majority. "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 federal prison litigation reform law, a "failure to exhaust administrative remedies is an affirmative defense that the defendant must plead and prove," the ruling states.
     In this case, the defense failed to do so.
     While calling Albino a "sympathetic plaintiff," Judge N.R. Smith, joined by Judges Sandra Ikuta and Richard Tallman, wrote in dissent that the majority opinion, among other missteps, "mandates the production of unprecedented evidence in order for the defendants to meet their burden of proof on exhaustion."
     "Here, the district court found administrative remedies that the County of Los Angeles offered in the jail were 'capable of use' and could be obtained," Smith wrote. "Therefore, Albino had the obligation to exhaust these remedies before he could bring an action. The majority excuses Albino from that duty and instead places an affirmative duty on prison officials to inform inmates about the administrative remedies available."
     The ruling also had a more procedural element in which the majority found that an "unenumerated motion under Rule 12(b) is not the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted under the Prison Litigation Reform Act." Instead, the panel found, a motion for summary judgment is the "appropriate device" for such a determination.