En Banc Rehearing for Rapist’s Jail Abuse Suit

(CN) - The 9th Circuit will reconsider the case of a California inmate who claims guards repeatedly ignored his requests for protection after he was beaten and raped.

Juan Albino was arrested for rape in 2006 and booked into the main jail of the Los Angeles County Sheriff's Department. He was placed in general inmate population, where he claims he endured several assaults and rapes by inmates who had allegedly been told that he was a sex offender.

Albino allegedly lodged several oral complaints and asked guards to place him in protective custody. The guards told him to talk to a lawyer, but also twice relocated him to a different housing unit for his protection.

A federal judge ultimately dismissed Albino's claims of failure to protect and deliberate indifference against Los Angeles County and Sheriff Lee Baca.

The court found Albino had failed to exhaust administrative remedies, which could only be done through the jail's official grievance procedure.

Albino claimed that he was not aware of the procedural requirement that he write his complaint out, rather than deliver it orally. Nonetheless, a divided three-judge panel of the 9th Circuit affirmed dismissal in September 2012, finding that Albino had failed to prove that the grievance procedure was "unknowable."

"Albino's oral complaints did not put the jail on some sort of constructive notice that would excuse exhaustion," Judge N. Randy Smith wrote for the Pasadena-based panel.

The panel also found no evidence to suggest that Albino "ever talked to his public defender about protective custody or complaining of his situation," while at the same time concluding that "he was personally unaware of the grievance procedure and he was not expressly informed of the LASD Jail's grievance procedure by the jail."

Judge Ronald Gilman, sitting on the panel by designation from the 6th Circuit, wrote in dissent that Albino's oral complaints should have inspired the guards to inform him of the proper procedures for filing a grievance.

"Albino orally complained on several occasions to deputies at the jail about being raped and brutally assaulted by his fellow inmates, and about the jail's failure to transfer him to protective custody following each assault," Gilman wrote. "I believe that Albino's actions were sufficient to trigger an obligation on the part of the jail to notify him of the existence of its grievance procedure. Because the jail in this case instead 'stonewalled' Albino by not advising him of the procedures necessary for him to seek redress for his complaints, I would hold that Albino has demonstrated that the administrative remedies were effectively unavailable to him."

In a brief order published Tuesday, Chief Judge Alex Kozinski wrote that a majority of nonrecused active judges had voted to rehear the case before an en banc, 11-judge panel. This order vacates the three-judge panel's opinion.

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