Opinion
20-17169
10-25-2022
JAMES A. CRAMER, Plaintiff-Appellant, v. LAURIE SMITH, Sheriff Santa Clara County; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 17, 2022 San Francisco, California
Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding D.C. No. 3:18-cv-01700-VC
Before: CLIFTON, NGUYEN, and OWENS, Circuit Judges.
MEMORANDUM
James Cramer appeals from the district court's summary judgment regarding his due process claim against former prison officials under 42 U.S.C. § 1983. The district court granted judgment solely on the basis that Cramer failed to properly exhaust administrative remedies pursuant to the Prison Litigation Reform Act. Cramer argues for the first time on appeal that he is not required to exhaust administrative remedies because his relevant administrative grievance was improperly denied. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). As the parties are familiar with the facts, we do not recount them here. We vacate and remand.
The district court did not have an opportunity to consider Cramer's argument that his relevant grievance was improperly canceled and that he is therefore excused from exhausting administrative remedies. We remand to permit the district court to consider this issue in the first instance.
We exercise our discretion to allow Cramer to present his exhaustion argument on remand, even though he did not previously raise it in the district court. Typically, a litigant forfeits an argument by not raising it in the district court, but this general rule is discretionary. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). By permitting Cramer to raise the argument on remand, we fulfill the purpose of the forfeiture doctrine by "accord[ing] . . . the district court the opportunity to reconsider its ruling[]." Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992); see also United States v. Shelby, 939 F.3d 975, 981 n.4 (9th Cir. 2019) (allowing a litigant to make a forfeited argument on remand). Defendants will not be prejudiced because they can fully present their responsive arguments on remand.
The district court may also consider any other arguments the parties choose to raise. We offer no view regarding the merits of any issues presented in this case.
Each party shall bear its own costs.
VACATED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.