concluding that prison official’s misstatement about the prison’s grievance procedure, combined with the fact that plaintiff was denied access to the library, which contained the only copy of the grievance procedure, rendered that procedure “unavailable” under § 1997
How later courts described this case
- concluding that prison official’s misstatement about the prison’s grievance procedure, combined with the fact that plaintiff was denied access to the library, which contained the only copy of the grievance procedure, rendered that procedure “unavailable” under § 1997
- holding an officer misleading an inmate into believing he should not file a formal grievance until receiving a response on his informal complaint, even though this was not the process under the applicable grievance procedure, rendered the grievance procedure unavailable to the inmate
- finding that a misrepresentation by a prison official as to an appeal coupled with the denial of access to the law library to review the administrative directive rendered the grievance procedure “unavailable”
- holding prisoner failed to exhaust administrative remedies as to two defendants when grievance did not name the defendants nor describe any of the specific factual allegations involving those defendants
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2783
___________________________
Jacob James Townsend
lllllllllllllllllllllPlaintiff - Appellant
v.
Terry Murphy, Water Treatment Supervisor, ADC Tucker Unit; Richard Romine,
Water Treatment/Outside Maintenance Supervisor; David White, Warden, Tucker
Unit
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: April 11, 2018
Filed: July 31, 2018
____________
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Jacob Townsend, an inmate at Arkansas’s Tucker Unit prison, sued three
prison officials for requiring him to work with deadly chlorine gas without proper
training and safety gear. The district court granted summary judgment to the
officials based on Townsend’s failure to exhaust his administrative remedies.
Because an administrative remedy was unavailable against one of the officials, we
affirm in part, reverse in part, and remand.
I.
To comply with the first step of the prison’s administrative procedures,
Townsend submitted an informal written complaint to Sergeant Jeavon Perry, one
of the prison’s assigned “problem solvers.” Townsend alleged that Terry Murphy,
his supervisor at the prison’s water-treatment plant, had required him to work with
chlorine gas without safety training and equipment. Six weeks later, after having
not received a response to his informal complaint, Townsend filed a formal
grievance.
The prison rejected Townsend’s filing, which according to an administrative
directive was due six business days after he submitted his informal complaint.
Because Townsend missed the six-day deadline by over five weeks, the prison
refused to consider the merits of his grievance.
After failing to obtain administrative relief, Townsend filed a lawsuit under
42 U.S.C. § 1983 alleging that prison officials had violated his constitutional rights
by requiring him to work under dangerous conditions. The three officials he
named as defendants were Murphy, his direct supervisor; Richard Romine, the
plant’s outside maintenance supervisor; and David White, the warden. The
defendants moved for summary judgment on the theory that Townsend failed to
exhaust his administrative remedies because he filed his grievance after the six-day
deadline had expired. In addition, Romine and White argued that Townsend’s
failure to specifically identify them in his informal written complaint required
dismissal of the claims against them, separate and apart from Townsend’s delay in
filing a formal grievance.
In response to the defendants’ summary-judgment motion, Townsend
submitted a sworn declaration stating that Sergeant Perry repeatedly told him,
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including just three days after he filed his informal complaint, not to file a formal
grievance until he received a response to his informal complaint. According to the
declaration, the prison also ignored his serial requests to visit the prison’s library to
review the only available copy of the administrative directive, the contents of
which were not “common knowledge.” Townsend claimed that his inability to
access the prison’s library and Perry’s misleading advice rendered the formal-
grievance procedure “unavailable.” The defendants did not respond to Townsend’s
declaration with their own evidence.
The district court granted summary judgment to all three defendants,
concluding that Townsend’s failure to follow the administrative directive was fatal
to his lawsuit. Townsend appeals the court’s summary-judgment ruling,
specifically the conclusion that he failed to exhaust his administrative remedies.
II.
We review a grant of summary judgment de novo. See Porter v. Sturm, 781
F.3d 448, 451 (8th Cir. 2015). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A.
Under the Prison Litigation Reform Act (PLRA), a prisoner who wishes to
challenge his conditions of confinement typically must exhaust administrative
remedies “in accordance with the [prison’s] applicable procedural rules, including
deadlines,” before bringing a lawsuit. Woodford v. Ngo, 548 U.S. 81, 88, 93
(2006); see also 42 U.S.C. § 1997e(a). The PLRA, however, requires exhaustion
of only “such administrative remedies as are available.” 42 U.S.C. § 1997e(a).
The availability of a remedy, according to the Supreme Court, is about more than
just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S.
Ct. 1850, 1859 (2016). An administrative remedy is “not capable of use,” and
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therefore unavailable, for example, “when prison administrators thwart inmates
from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1859–60.
This is exactly what Townsend says happened. According to Townsend’s
sworn declaration, Sergeant Perry misled him by advising him not to file a formal
grievance, the second step in the prison’s administrative process, without first
receiving a response to his informal complaint. Accord Davis v. Fernandez, 798
F.3d 290, 296 (5th Cir. 2015) (“Davis testifies that jail staff told him that the
grievance process [did not have an] option to appeal—and he, relying on that
misrepresentation, did not file an appeal. . . . [W]e conclude that the second step of
the jail’s grievance process was unavailable to him.”); Pavey v. Conley, 663 F.3d
899, 906 (7th Cir. 2011). The denial of access to the library, which contained the
only available copy of the administrative directive, magnified the impact of
Sergeant Perry’s misstatements, which Townsend had no way to verify.
Townsend’s declaration, if accepted as true, would establish that the prison’s
formal-grievance procedure was unavailable. We accordingly reverse the grant of
summary judgment to Murphy, who prevailed below only because Townsend did
not file his formal grievance in time.
B.
The appeal is not over for Romine and White, however, who are still entitled
to summary judgment if Townsend was required to name them in his informal
complaint, something he indisputably did not do. Townsend, for his part, is silent
on the availability of the informal-complaint process, except to argue that the
unavailability of the formal-grievance procedure somehow draws into question
whether he was required to separately comply with the requirements for filing an
informal complaint.
A prisoner cannot opt out of all administrative remedies even when some are
unavailable. Ross makes clear that a prisoner must “exhaust available remedies,”
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including “grievance procedures that are ‘capable of use’ to obtain ‘some relief,’”
but “need not exhaust unavailable ones.” 136 S. Ct. at 1858–59 (quoting Booth v.
Churner, 532 U.S. 731, 738 (2001)). Here, the prison’s informal-complaint
process provided Townsend with an avenue for relief. As an assigned problem
solver, Sergeant Perry’s role was to informally resolve disputes and eliminate the
need for the formal-grievance process. But by failing to mention Romine and
White in his informal complaint, Townsend limited Perry’s ability to investigate
his claim and provide relief, and consequently, failed to exhaust an available
administrative remedy. Because the informal-complaint process was “capable of
use” and could have provided “some relief,” the administrative-exhaustion
requirement applied regardless of whether the formal-grievance procedure was
later available to Townsend.
Alternatively, Townsend argues that he fully exhausted his remedies against
Romine and White by filing an informal complaint with Sergeant Perry. As the
Supreme Court has explained, “the boundaries of proper exhaustion” depend on
the prison’s specific administrative requirements. Jones v. Bock, 549 U.S. 199,
218 (2007). Here, the preprinted informal-complaint form instructed Townsend to
“be specific as to the complaint, date, place, [and] name of personnel involved.”
Despite these instructions, Townsend made no mention of Romine or White, nor of
the specific factual allegations that would later appear in his federal complaint. He
did not even hint that anyone other than Murphy was responsible for his exposure
to chlorine gas. Having failed to include any information about Romine or White
in his informal complaint, Townsend did not exhaust his remedies against them.
See Burns v. Eaton, 752 F.3d 1136, 1141–42 (8th Cir. 2014).
III.
We affirm the grant of summary judgment to Romine and White, reverse as
to Murphy, and remand to the district court for further proceedings consistent with
this opinion.
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