Huskey v. Jones

Case: 19-60588 Document: 00516434030 Page: 1 Date Filed: 08/16/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 16, 2022

No. 19-60588

Lyle W. Cayce

Clerk

Matthew Huskey,

Plaintiff—Appellant,

versus

Mary Jones, Captain (Unit 29); Derrick Munford,

Captain (Unit 29); “John Doe” Griffin, Lieutenant (Key

Control); Donovan Clark, Officer (Unit 29); Tommy

Herring, Officer (K-9 Unit),

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:17-CV-140

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

Plaintiff-Appellant Matthew Huskey brought suit against Defendants-

Appellees for conduct that occurred during his incarceration at the

Mississippi State Penitentiary. The district court granted summary judgment

in favor of Appellees, and Huskey appealed. We remanded to the district

court for a factual inquiry into the timeliness of Huskey’s Motion to Alter or

Amend Judgment under Rule 59(e). See Fed. R. Civ. P. 59(e). The district

Case: 19-60588 Document: 00516434030 Page: 2 Date Filed: 08/16/2022

No. 19-60588

court determined that Huskey’s appeal was not time-barred; thus, we have

jurisdiction. Because Huskey established a genuine dispute of material fact as

to whether administrative remedies were available to him, we REVERSE.

I. Facts & Procedural History 1

Huskey alleged that on September 8, 2016, while seeking care at a

medical clinic, officers forced his face into a wall, yelled that he had a knife,

took his shoes and pants off, and took turns slapping him in the face and head

while he was restrained. According to Huskey, after the incident, Captain

Mary Jones left him in flex cuffs for about an hour, refused to let him see a

nurse, and then refused to transport him to the hospital after the doctor

informed her that it was prison policy to do so. He further alleged than when

he was taken to the hospital for an x-ray six days later, a doctor informed him

that his arm was broken.

Huskey described his efforts to exhaust prison administrative

remedies as follows. On September 12, 2016, he filed three grievances

relating to the incident and requesting that the officers involved be punished.

On September 23, 2016, the director of the Administrative Remedies

Program (“ARP”) rejected each grievance by marking a box on the ARP-1

forms indicating that the “REQUESTED RELIEF IS BEYOND THE

POWER OF THE ARP TO GRANT.” Appellees provided records showing

that Huskey also filed a letter, dated September 21, 2016, attempting to

amend the grievance that alleged that the officers committed violence against

him, but the director responded on September 27, 2016, explaining that he

would not process the request because the grievance had already been

rejected. Huskey then filed three step two grievances, all dated October 6,

2016, requesting that his grievances be reinstated because the grievance

1

The majority of the facts and procedural history herein are drawn from our

original opinion. See Huskey v. Jones, 860 F. App’x 322, 323 (5th Cir. 2021).

2

Case: 19-60588 Document: 00516434030 Page: 3 Date Filed: 08/16/2022

No. 19-60588

procedure manual he reviewed did not list the ARP’s lack of power to grant

requested relief as an appropriate reason for rejection. In response, the

director sent him a letter dated October 20, 2016, explaining that “it is not

necessary to submit an appeal to this office requesting for Administrative

Remedy on a case which was originally already rejected for the reason listed

on the ARP-1 form(s) provided to you. Please be advised that once your

request for Administrative Remedy is rejected, you cannot proceed to the

second step on that rejection.”

Huskey brought suit under 42 U.S.C. § 1983. 2 The district court held

a hearing under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and

dismissed some of Huskey’s claims while allowing him to proceed with his

claims that Appellees used excessive force against him and denied him

adequate medical care. Appellees filed a motion for summary judgment,

arguing that Huskey’s claims should be dismissed for failure to exhaust

administrative remedies under the Prison Litigation Reform Act (“PLRA”).

See 42 U.S.C. § 1997e(a). Huskey opposed summary judgment, arguing that

he had satisfied the PLRA’s requirements by filing grievances and attempting

to appeal his rejections after being told that he was not allowed to appeal

them.

The magistrate judge granted the motion for summary judgment and

dismissed the case for failure to exhaust administrative remedies. The district

court entered judgment on April 4, 2019. Huskey filed a motion to alter or

2

“Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or declaratory relief was unavailable.”

3

Case: 19-60588 Document: 00516434030 Page: 4 Date Filed: 08/16/2022

No. 19-60588

amend the judgment under Rule 59(e) that was dated April 27, 2019, but not

post-marked until May 3, 2019. See Fed. R. Civ. P. 59(e). The magistrate

judge accepted Huskey’s motion but denied it. The magistrate judge

subsequently granted Huskey’s motion to proceed in forma pauperis on

appeal. Huskey appealed.

We remanded to the district court because it was unclear whether we

had jurisdiction over Huskey’s appeal, given that it was potentially time-

barred. The district court determined that his appeal was not time-barred

because Huskey’s Rule 59(e) was timely filed based on the prison mailbox

rule. This case now returns to use once more and we address the merits.

II. Standard of Review

“We review a district court’s grant of summary judgment de novo,

applying the same standards as the district court.” Hagen v. Aetna Ins. Co.,

808 F.3d 1022, 1026 (5th Cir. 2015). Summary judgment is appropriate if the

record evidence “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). “Moreover, all facts and inferences must be viewed in the

light most favorable to the nonmoving party.” Armstrong v. Am. Home Shield

Corp., 333 F.3d 566, 568 (5th Cir. 2003).

III. Discussion

The magistrate judge granted the motion for summary judgment and

held that Huskey failed to exhaust the prison grievance process before

bringing this lawsuit. Huskey v. Fisher, No. 1:17-CV-140, 2019 WL 1495275,

at *2 (N.D. Miss. Apr. 4, 2019). Noting that all of Huskey’s grievances were

rejected during the initial screening phase of the process, the magistrate

judge reasoned that rejection of a grievance at the screening phase terminates

the process such that it cannot proceed to exhaustion. Id. at *4. The

magistrate judge explained that if the deficiencies in a grievance are

“technical” or “matters of form,” an inmate can submit a corrected

4

Case: 19-60588 Document: 00516434030 Page: 5 Date Filed: 08/16/2022

No. 19-60588

grievance within five days, which, if accepted, may proceed through the

process to exhaustion. Id. But because Huskey attempted to file step two

grievances instead of a corrected grievance or a new grievance altogether, she

reasoned that he did not exhaust his administrative remedies. Id.

The exhaustion provision of the PLRA states:

No action shall be brought with respect to prison conditions

under [42 U.S.C. § 1983], or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.

42 U.S.C. § 1997e(a).

Huskey acknowledges that the PLRA prohibits an inmate from

bringing suit until he exhausts the administrative remedies that are available.

He argues, however, that he satisfied § 1997e(a) by exhausting the remedies

available to him because he followed the grievance policy set forth in the 2015

Mississippi Department of Corrections (“MDOC”) Standard Operating

Procedures (“2015 SOP”) and had no knowledge of or access to the revised

handbook that listed the claims ARP director’s reason for rejection. 3

The Supreme Court has held that “[a]n inmate . . . must exhaust

available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578

U.S. 632, 642 (2016). “To determine what remedies are ‘available’ and thus

must be exhausted, we look to ‘the applicable procedural rules . . . defined . .

. by the prison grievance process itself.’” Wilson v. Epps, 776 F.3d 296, 299

(5th Cir. 2015) (alteration in original) (quoting Jones v. Bock, 549 U.S. 199,

3

Relatedly, Huskey contends that the district court erred by taking judicial notice

of the MDOC website displaying the revised 2016 Inmate Handbook. We disagree. This

court has upheld taking judicial notice of the contents of a state agency’s website and we

do so again here. See Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005)

(taking judicial notice of approval by the National Mediation Board published on the

agency’s website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam)

(taking judicial notice of a Texas agency’s website).

5

Case: 19-60588 Document: 00516434030 Page: 6 Date Filed: 08/16/2022

No. 19-60588

218 (2007)). “This circuit has taken a ‘strict’ approach to § 1997e’s

exhaustion requirement, under which prisoners must not just substantially

comply with the prison’s grievance procedures, but instead must ‘exhaust

available remedies properly.’” Id. at 299–300 (quoting Dillon v. Rogers, 596

F.3d 260, 268 (5th Cir. 2010)). “[T]o properly exhaust administrative

remedies prisoners must ‘complete the administrative review process in

accordance with the applicable procedural rules,’” as defined “by the prison

grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo,

548 U.S. 81, 88 (2006)).

However, “an inmate is required to exhaust . . . only those[] grievance

procedures that are ‘capable of use’ to obtain ‘some relief for the action

complained of.’” Ross, 578 U.S. at 642 (quoting Booth v. Churner, 532 U.S.

731, 738 (2001)). The Supreme Court has identified three circumstances

under which “an administrative remedy, although officially on the books, is

not capable of use to obtain relief.” Id. at 643. These circumstances exist

“where (1) prison officials are ‘unable or consistently unwilling to provide

any relief to aggrieved inmates,’ (2) the administrative scheme is ‘so opaque

that it becomes, practically speaking, incapable of use’ by an ordinary

prisoner, or (3) prison administrators ‘thwart inmates from taking advantage

of a grievance process through machination, misrepresentation, or

intimidation.’” Hinton v. Martin, 742 F. App’x 14, 15 (5th Cir. 2018) (citing

Ross, 578 U.S. at 643–44).

The second and third circumstances are implicated here. To be sure,

“courts may not deem grievance procedures unavailable merely because an

inmate was ignorant of them, so long as the inmate had a fair, reasonable

opportunity to apprise himself of the procedures.” Davis v. Fernandez, 798

F.3d 290, 295 (5th Cir. 2015). The facts of this case raise questions as to

whether Huskey had such an opportunity.

6

Case: 19-60588 Document: 00516434030 Page: 7 Date Filed: 08/16/2022

No. 19-60588

Here, the 2015 SOP provided to Huskey and the 2016 online Inmate

Handbook on which Appellees rely differ in significant ways. For instance,

the 2016 online handbook explains that “[i]f a request is rejected for technical

reasons or matters of form, the inmate shall have five days from the date of

rejection to file his/her corrected grievance.” The 2015 SOP does not

contain this instruction. Additionally, both the 2015 SOP and the 2016 online

handbook state that if a grievance is rejected during screening, “it must be

for one of the following reasons.” But the lists that follow are different. The

2016 online handbook provides five possible reasons, including that, “[t]he

relief sought is beyond the power of MDOC to grant.” Conversely, the 2015

SOP does not include inability to grant the relief requested—the basis for the

rejection of Huskey’s grievances—in its exclusive list of ten reasons for

rejecting a grievance during screening. 4

In rejecting Huskey’s Rule 59(e) motion, the magistrate judge

determined that the discrepancies between the SOP and handbook did not

render remedies unavailable because (1) as a matter of reason, if the relief he

requested was beyond the power of the MDOC to grant, then it could not be

obtained through the grievance process; and (2) Huskey was at least on

inquiry notice that the MDOC was using a different policy than what was set

forth in the 2015 SOP. Huskey v. Fisher, No. 1:17-CV-140, 2019 WL 3082421,

at *2 (N.D. Miss. July 15, 2019). However, based on the lack of record

evidence that Huskey was aware of the 2016 online handbook or that he had

4

Appellees address Huskey’s argument that these differences created confusion

by noting that “Huskey successfully navigated to completion a grievance regarding sexual

harassment and the use of illegal cameras.” We have rejected a similar argument in the

past. See Brantner v. Freestone Cnty. Sheriffs Off., 776 F. App’x 829, 831, 834 (5th Cir. 2019)

(reversing the district court’s grant of summary judgment in favor of the sheriff’s office,

sheriff, county, and other county employees where they pointed to an inmate’s submission

of a grievance form for an unrelated incident as evidence that he knew of the grievance

process rules and had access to the relevant forms).

7

Case: 19-60588 Document: 00516434030 Page: 8 Date Filed: 08/16/2022

No. 19-60588

access to the internet at all, there is a genuine dispute of material fact as to

whether the step of filing a corrected grievance within five days was available

to him.

This court has previously reversed a district court’s grant of summary

judgment and held that there was a genuine dispute of material fact as to

whether a remedy was available to an inmate where he was given “documents

that only partially explained the prison processes.” See Brantner v. Freestone

Cnty. Sheriffs Off., 776 F. App’x 829, 834 (5th Cir. 2019). In Brantner, an

inmate appealed a district court’s grant of summary judgment based on his

failure to exhaust administrative remedies. Id. at 830. The jail asserted that

its grievance procedures were set out in three documents: the County Jail

Rules, the Grievance Plan, and the Inmate Rules Handbook. Id. at 831. It

contended that Brantner was given the County Jail Rules and Inmate Rules

Handbook when he was booked into jail. Id. at 833. However, we determined

that Brantner had presented evidence that he never received the Inmate

Rules Handbook. Id. at 834. What is more, he received the County Jail Rules,

which stated that grievance forms would be available upon request and that

“instructions would be provided,” but he never received grievance forms

despite repeated requests, nor did he receive further instruction. Id. at 830,

834. We reasoned that Brantner was “‘thwart[ed]’ from using prison

processes because he was supplied with documents that only partially

explained prison processes.” Id. at 834 (alteration in original) (quoting Ross,

578 U.S. at 644). Thus, we held that Brantner satisfied the unavailability

exception and was excused from exhausting administrative remedies. Id.

Similarly, here, Huskey asserts that he received the 2015 SOP, but not

the 2016 online handbook. The 2015 SOP stated that the grievance

“procedures will be posted in writing in areas readily accessible to all

offenders,” so he had no reason to believe its exclusive list was incorrect,

outdated, or that there were other applicable rules that could only be found

8

Case: 19-60588 Document: 00516434030 Page: 9 Date Filed: 08/16/2022

No. 19-60588

online. Moreover, Appellees do not dispute Huskey’s assertion that he did

not have internet access and was thus not made aware of the revised

handbook at the time that he filed his grievances. Instead, they contend that

Huskey was “clearly provided a copy of Chapter 8 of the inmate handbook

and was informed he could ask his case manager for a copy of the handbook.”

To support this assertion, they cite the MDOC’s April 2019 response to

Huskey’s request for legal assistance from the Inmate Legal Assistance

Program (“ILAP”). But because Huskey’s grievances were filed and rejected

between September and October of 2016, the ILAP staff’s 2019 response

does not demonstrate that Huskey knew of the 2016 online handbook at the

time that he filed his grievances.

Huskey has presented evidence that he, like Brantner, was given

documents “that only partially explained prison processes.” Viewed in the

light most favorable to Huskey, this evidence satisfies the unavailability

exception under Ross because the “administrative scheme [was] so opaque

that it bec[ame], practically speaking, incapable of use” by an “ordinary

prisoner.” Ross, 578 U.S. at 644. Accordingly, we hold that Appellees are not

entitled to summary judgment because there is a genuine dispute of material

fact as to whether administrative remedies were made available to Huskey. 5

IV. Conclusion

The district court’s summary judgment is REVERSED and this case

is REMANDED for further proceedings consistent with this opinion.

5

For purposes of completeness, we note that Huskey’s Notice of Appeal states

that he is also appealing the denial of his Rule 59(e) motion. We need not address this issue,

however, given our reversal of summary judgment.

9