Amicus Curiae Brief — Ross v. Blake, 136 S. Ct. 614 (2015) (No. 15-339)

Tome C our ,, us.

FILED

MAR - 8 2016

No. 15-339 | OFFICE OF THE CLERK

In the Supreme Court of the United States

MICHAEL Ross,

Petitioner,

Vv.

SHAIDON BLAKE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICI CURIAE LEGAL AID

SOCIETY OF NEW YORK AND MORNINGSIDE

HEIGHTS LEGAL SERVICES, INC.

IN SUPPORT OF RESPONDENT

JOHN BOSTON BRETT DIGNAM

Counsel of Record Morningside Heights

The Legal Aid Society Legal Services, Inc.

199 Water Street 435 West 116th Street

New York, N.Y. 10038 New York, N.Y. 10027

(212) 577-3530 (212) 854-4291

J Boston@legal-aid.org bdigna@law.columbia.edu

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................:cccccssssessecssssesees li

INTEREST OF AMICI CURIAE ...............ccccccceesseeeeees 1

SUMMARY OF ARGUMENT....................cccccceeeeeeeeeees 2

ET Sa 3

I. ADMINISTRATIVE LAW PRINCIPLES

SUPPORT APPROPRIATELY LIMITED

EXCEPTIONS TO THE “PROPER

EXHAUSTION” REQUIREMENT OF THE

iTtidieiliietathiaindiainttpatpathenienidnsiiasesteneencsasoes 3

Il. PRISON GRIEVANCE SYSTEMS

PRESENT DIFFICULTIES IN

EXHAUSTION DIFFERENT FROM

THOSE IN OTHER ADMINISTRATIVE

a 10

Ill. THERE ARE CIRCUMSTANCES THAT

MAY THWART EXHAUSTION OF

PRISON GRIEVANCE SYSTEMS BY

i a errmiae 15

A. Hyper-Technical Errors....................... 16

B. Interference by Prison Officials .......... 17

C. Complex and Ambiguous Procedures . 20

D. Mental and Physical Incapacity.......... 24

ESS Se 26

il

TABLE OF AUTHORITIES

Page(s)

Cases

Amador v. Andrews,

I ce ciniitmependines 1

Anderson v. XYZ Corr. Health Servs., Inc.,

407 F.3d 674 (40h Cir. BOOG) ..........0cccccccccscesscccccces. 6

Benjamin v. Jacobson,

eee 1

Bowen v. City of New York,

Tae eR TT 10

Brooks v. Roy,

er i ciceere 20

Brownell v. Krom,

446 F.3d 305 (2d Cir. 2006) ....................ccccceeeeeeees 18

Cahill v. Arpaio,

2006 WL 3201018 (D. Ariz. Nov. 2, 2006) ............. 9

Castellanos v. Pfister,

2014 WL 377742 (C.D. Ill. Feb. 3, 2014).............. 15

Cleavinger v. Saxner,

i es 11, 12, 13, 18

Davis v. Corr. Corp. of Am.,

463 F App’x. 748 (10th Cir. 2012) ............0... 14, 15

DeBrew v. Atwood,

ts | | od. EE eeeenen 4

Dillon v. Rogers,

i eg 5 eee 5

Dole v. Chandler,

438 F.3d 804 (7th Cir. BOOG) ............0...0..00000000..2000. 5

Elliott v. Jones,

2008 WL 420051 (N.D. Fla. Feb. 12, 2008) ... 16, 17

Ferguson v. Bizzario,

2010 WL 4227298 (S.D.N.Y. Oct. 19, 2010)......... 22

Fischer v. Smith,

2011 WL 3876944, (E.D. Wis. Aug. 31, 2011) ..... 16

iii

Frasier v. McNeil,

2015 WL 1000047 (S.D.N.Y. Mar. 5, 2015) ......... 20

Garcia v. Heath,

2013 WL 3237445 (S.D.N.Y June 25, 2013)....... 15

Giano v. Goord,

380 F.3d 670 (2d Cir. 2004)................0000.. 7, 8, 9, 23

Gibson v. Rosati,

2014 WL 3809162 (N.D.N.Y. Aug. 1, 2014)... 19, 20

Gomez v. Vernon,

255 F.3d 1118 (9th Cir. 2001) .............................. 19

Hairston v. LaMarche,

2006 WL 2309592 (S.D.N.Y. Aug. 10, 2006)........ 20

Haynes v. Stephenson,

588 F.3d 1152 (8th Cir. 2009) .....000.... cece 19

Heckler v. Day,

I ariel 11

Hettinga v. U.S.,

560 F.3d 498 (D.C. Cir. 2009).....................cccseeeeeees 6

Himmelreich v. Fed. Bureau of Prisons,

766 F.3d 576 (6th Cir. 2014) ................ccccccceeeeeeees 19

Hurst v. Hantke,

634 F.34 4080 (7th Cir. 3011) .............................. 4,5

Johnson v. Testman,

eS Ee 1

Jones v. Fed. Bureau of Prisons,

2013 WL 5300721 (E.D.N.Y. Sept. 19, 2013) ...... 18

Kaba v. Stepp,

458 F.3d 678 (7th Cir. 2006) ...................ccceeeeeceeee 19

King v. Zamiara,

680 F.3d 686 (6th Cir. 2012) .............. cee 19

Larkins v. Selsky,

2006 WL 3548959 (S.D.N.Y. Dec. 6, 2006) ............ 8

Lemons v. Dragmister,

2010 WL 530073 (N.D. Ind. Feb. 9, 2010)........... 23

1V

Love v. Pullman,

ET a eae 20

Mann v. Scott,

2015 WL 5165198 (D.S.C. Sept. 1, 2015)............. 15

Marshall v. Knight,

2006 WL 3714713 (N.D. Ind. Dec. 14, 2006) ....... 23

Maurer v. Patterson,

197 F.R.D. 244 (S.D.N.Y. 2000) ........................... 19

McKart v. U.S.,

EERE STi ee 3

Mitchell v. Horn,

i Fs Ff. Le eee 5

Nassar v. Warden, Butler Cnty. Jail,

2011 WL 7268004 (S.D. Ohio Sept. 1, 2011) ....... 15

Ngo v. Woodford,

539 F.3d 1108 (9th Cir. 2008) ......................00000 6, 7

Ortego v. Forcht Wade Corr. Center,

2010 WL 2985830 (W.D. La. Apr. 29, 2010).......... i]

Parker v. Robinson,

2006 WL 2904780 (D. Maine Oct. 10, 2006)...... 6, 7

Parsi v. Davidson,

I linia haan 3

Pavey v. Conley,

663 F.3d 899 (7th Cir. 2011) ..................sssceeseeeeeeees 4

Perry v. Rupert,

2013 WL 6816795 (N.D.N.Y Dec. 20, 2013) .24, 25

Petty v. Goord,

2007 WL 724648 (S.D.N.Y. Mar. 5, 2007) ........... 24

Rahim v. Holden,

882 F Supp. 2d 638 (D. Del. 2012)...................... 22

Ramsey v. McGee,

2007 WL 2744272 (E.D. Okla. Sept. 19, 2007)....17

Raybon v. Totten,

2013 WL 3456968 (E.D. Cal. July 9, 2013) ......... 15

Riggs v. Valdez,

2010 WL 4117085 (D. Idaho Oct. 18, 2010)........... 9

Salcedo- Vazquez v. Nwaobasi,

2014 WL 2580517 (S.D. Ill. June 9, 2014)........... 15

Shaw v. Jahnke,

607 F. Supp. 2d 1005 (W.D. Wis. 2009)................. 9

Silvagnoli v. Figueroa,

2014 WL 4160213 (S.D.N.Y. Aug. 19, 2014).......... 5

Small v. Camden Cnty.,

728 F.3d 265 (3d Cir. 2013)..............cccceceeeeseeeeeeeee 14

Smith v. Maypes-Rhynders,

2011 WL 4448944 (S.D.N.Y. July 28, 2011) ..22, 23

Thomas v. Hernandez,

2012 WL 4496826 (E.D. Cal. Sept. 28, 2012)...... 22

Thomas v. Parker,

2008 WL 2894842 (W.D. Okla. July 25, 2008) .... 17

Warren v. Purcell,

2004 WL 1970642 (S.D.N.Y. Sept. 3, 2004)......... 23

Weinberger v. Salfi,

ESE RC eae ee 3, 5,6

Whitney v. Simonson,

2007 WL 3274373 (E.D. Cal. Nov. 5, 2007)......... 17

Williams v. Doe,

2015 WL 1567498 (W.D.N.Y. Apr. 8, 2015)........... 8

Williams v. McGrath,

2007 WL 3010577 (N.D. Cal. Oct. 12, 2007)..23, 24

Woodford v. Ngo,

aici lala passim

Statutes

ES ERC EMT TT eT 11

li atildenealial 2,13

I ssa cenricicienstenenibncinsianininn passim

Ds ey GU GUID crcseccnnnsunosscsmserecececsnveecenenease 11

Other Authorities

141 Cong. Rec.

kai acacia tei eee cea aaaatcialiaiadl 4

SE ae ene ee NEE TE ne 4

EEE ESSE eee me ener a meee Ere tao 4

FS en nee ee eee Ter 4

Br. of Amici Curiae Am. Civil Liberties Union, The

Legal Aid Soc'y et al. in Supp. of Pet., Jones v.

Bock,

549 U.S. 199 (2007) (Nos. 05-7058, 05-7142) ......... 1

Br. of Amici Curiae Am. Civil Liberties Union, The

Legal Aid Soc'y et al. in Supp. of Resp., Woodford

v. Ngo,

548 U.S. 81 (2006) (No. 05-416) .0............. cece cece eeeeees 1

Br. of Amicus Curiae Jerome N. Frank Legal Servs

Org. of the Yale Law Sch., in Supp. of Resp.,

Woodford v. Ngo,

548 U.S. 81 (2006) (No. 05-416) ..0........0......c ce eeeeeee 14

Council of State Gov'ts,

Criminal Justice/Mental Health Consensus Project

TEST ae eee EE Tan Nene NTO e 21

Doris J. James & Lauren E. Glazem, U.S. Dep't of

Justice,

Mental Health Problems of Prison and Jail

EAE LSE eae eer 21

Human Rights Watch,

Barred from Treatment: Punishment of Drug Users

in New York State Prisons (2009) ............cccc00ece000 21

Jennifer Bronson et al., U.S. Dep't of Justice,

Disabilities Among Prison and Jail Inmates, 2011-

I TTainiieiatinaechaseitcceiiimataidliaietenieeentemmenies 21

Karl O. Haigler et al., U.S. Dep't of Educ.,

Literacy Behind Prison Walls: Profiles of the Prison

Population from the National Adult Literacy

ITE ciinciintceiansscehinetitncnintnebetingesustiiabisiil 20, 21

vii

Michigan Law Prison Information Project,

Prison and Jail Grievance Policies: Lessons from a

Fifty-State Survey (2015)..............ccccccccceeeeeeeees 11, 12

Richard J. Pierce, Jr.,

Administrative Law Treatise (2010).............00.000.... 5

1

INTEREST OF AMICI CURIAE!

The Legal Aid Society of the City of New York is

a private, non-profit organization that has provided

free legal assistance to indigent persons in New York

City for over 125 years. It is the largest provider of

criminal defense services in New York City, and

large numbers of its clients are held in City jails. In

addition, through its Prisoners’ Rights Project (PRP),

established in 1971, the Society seeks to ensure the

protection of prisoners’ constitutional and statutory

rights through litigation and advocacy on behalf of

prisoners in the New York State prisons and the

New York City jails. PRP has been involved in

litigation concerning the interpretation of the Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a)

virtually since the statute’s enactment, both as

counsel and as amicus curiae.”

1 All parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than Amici, its members, or its counsel made a monetary

contribution to its preparation or submission.

2 See, e.g., Amador v. Andrews, 655 F.3d 89 (2d Cir. 2011)

(interpreting PLRA exhaustion requirement in PRP case):

Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004) (same);

Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) (en banc)

(interpreting PLRA prospective relief provisions in PRP case),

cert. denied sub nom. Benjamin v. Kerik, 528 U.S. 824 (1999):

Brief for American Civil Liberties Union, The Legal Aid Society,

et al. as Amici Curiae Supporting Petitioners, Jones v. Bock,

549 U.S. 199 (2007) (Nos. 05-7058, 05-7142), 2006 WL 2364683

(amici brief in Supreme Court concerning PLRA exhaustion

requirement); Brief for American Civil Liberties Union, The

Legal Aid Society, et al. as Amici Curiae Supporting

Respondent, Woodford v. Ngo, 548 U.S. 81 (2006) (No. 05-416),

2006 WL 284226 (same).

2

Morningside Heights Legal Services, Inc.

(MHLS) is a private, non-profit organization located

at Columbia University School of Law. Lawyers and

law student interns at MHLS perform legal services

in the public interest, provide legal assistance, and

assist legal services programs in representation of

their clients. MHLS has regularly provided legal

representation to prisoners at state and federal

prisons and jails for more than twenty-five years.

MHLS lawyers accept appointment by federal courts

in civil cases challenging conditions of confinement,

including actions brought under 42 U.S.C. § 1983,

where prisoners are subject to the exhaustion

requirements of the PLRA.

SUMMARY OF ARGUMENT

The Prison Litigation Reform Act (PLRA), 42

U.S.C. § 1997e(a), requires exhaustion of available

remedies. However, as this Court has held,

administrative law principles govern PLRA

exhaustion. Administrative law allows exceptions to

exhaustion requirements under appropriate, limited

circumstances, and lower courts have recognized the

applicability of that principle to the PLRA.

The doctrine of administrative exhaustion must

be applied with a regard for the particular

administrative scheme at issue. Characteristics of

the prison environment, coupled with the complexity

of many grievance procedures and the distinct

disadvantages faced by many prisoners in navigating

such systems, mandate that failure to exhaust be

excused under certain circumstances, i.e. where the

prisoner acted objectively reasonably rather than

simply failing or refusing to use the administrative

procedure. Those circumstances include a case like

3

this one, where the requirements of exhaustion were

not clear but the prisoner gave ample notice to

officials of his claim. The purposes of exhaustion are

not served by forfeiture of the prisoner’s claim under

these circumstances.

ARGUMENT

I. ADMINISTRATIVE LAW PRINCIPLES

SUPPORT APPROPRIATELY LIMITED

EXCEPTIONS TO THE “PROPER

EXHAUSTION” REQUIREMENT OF THE

PLRA.

The PLRA provides that no prisoner may file suit

in federal court “until such administrative remedies

as are available are exhausted.” 42 U.S.C. §

1997e(a). This Court found in Woodford v. Ngo, 548

U.S. 81, 93 (2006), that Congress intended the

PLRA’s requirement of administrative exhaustion “to

mean what the term means in administrative law,

where exhaustion means proper exhaustion.” Proper

exhaustion, however, is not an absolute requirement:

administrative law allows for some exceptions where

appropriate. Woodford, 548 U.S. at 103 (Breyer, J.,

concurring). This Court has further acknowledged

that “the doctrine of administrative exhaustion

should be applied with a regard for the particular

administrative scheme at issue.” Weinberger v. Salfi,

422 U.S. 749, 765 (1975) (citing Parsi v. Davidson,

405 U.S. 34 (1972); McKart v. U.S., 395 U.S. 185

(1969)). As lower courts have recognized, within the

PLRA context, it is consistent with administrative

law to allow limited exceptions in cases where the

prisoners actions were reasonable under the

circumstances. In such cases, dismissal for non-

exhaustion would not serve the statutory purpose of

4

allowing prison officials a chance to resolve problems

before litigation while preserving meritorious

claims.* Barring such claims would be

fundamentally unfair.

While the PLRA mandates only that prisoners

exhaust “remedies [that] are available,” § 1997e(a),

and courts have denied dismissal for non-exhaustion

on the ground that the remedy was not available

under specified factual circumstances,‘ some

3 The legislative history is replete with statements that the

PLRA would not impede but would, in fact, promote legitimate

and meritorious clanme by prisoners. 141 Cong. Rec. 1480

(1995) (statement of Rep. Charles Canady) (“These reasonable

requirements will not impede meritorious claims by inmates.”);

141 Cong. Rec. 7526 (1995) (statement of Sen. Jon Kyl) (“[WJe

will free up judicial resources for claims with merit by both

prisoners and nonprisoners.”); 141 Cong. Rec. 14626—27 (1995)

(statement of Sen. Orrin Hatch) (introducing an amendment

“virtually identical” to the PLRA) (“Indeed, I do not want to

prevent inmates from raising legitimate claims. This

legislation will not prevent those claims from being raised.”);

141 Cong. Rec. 14628 (1995) (statement of Sen. Harry Reid

discussing amendment identical to entire PLRA) (“If [prison

inmates] have a meritorious lawsuit, of course they should be

able to file.”); 141 Cong. Rec. 14628 (1995) (statement of Sen.

Strom Thurmond) (discussing amendment identical to entire

PLRA) (“This amendment will allow meritorious claims to be

filed.”).

4 Courts have found remedies unavailable for a variety of

reasons. See, e.g., DeBrew v. Atwood, 792 F.3d 118, 132 (D.C.

Cir. 2015) (holding remedy was not available where officials

required prisoner to attach to his grievance a document that

other officials failed to provide to him); Pavey v. Conley, 663

F.3d 899, 906 (7th Cir. 2011) (“An administrative remedy is not

‘available, and therefore need not be exhausted, if prison

officials erroneously inform an inmate that the remedy does not

exist or inaccurately describe the steps he needs to take to

pursue it.”); Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir.

2011) (holding remedy would be unavailable if prisoner was

5)

scenarios do not fit comfortably within the rubric of

availability and unavailability, at least as those

words are ordinarily understood.'

Within administrative law, courts have identified

various strains of exhaustion. Exhaustion

requirements may be imposed by federal common

law or statute. II Richard J. Pierce, Jr.,

Administrative Law Treatise § 15.3, at 1241 (Wolters

Kluwer 2010). Where exhaustion is required by

statute, this Court has distinguished between

exhaustion requirements that are “simply a

codification of the judicially developed doctrine of

incapacitated by stroke during time when he was required to

file grievance, and he was not allowed to file a late grievance),

cert. denied, 132 S. Ct. 168 (2011); Dole v. Chandler, 438 F.3d

804, 809 (7th Cir. 2006) (“Prison officials may not take unfair

advantage of the exhaustion requirement and a remedy

becomes ‘unavailable’ if prison employees do not respond to a

properly filed grievance or otherwise use affirmative

misconduct to prevent a prisoner from exhausting.”); Mitchell v.

Horn, 318 F.3d 523, 529 (3d Cir. 2003) (noting defendants’

concession that denial of grievance forms, in a system that

required using the form, made the remedy unavailable to the

plaintiff).

5 Some courts have held prison officials estopped to claim non-

exhaustion where their actions or omissions prevented or

contributed to preventing a prisoner from properly exhausting.

However, estoppel is usually thought of as a personal defense,

which would not be applicable to instances where the persons

who interfered with exhaustion are not the named defendants

in the case. See, e.g., Dillon v. Rogers, 596 F.3d 260, 270 (5th

Cir. 2010) (reasoning that statements by prison captain and

inmate counsel could not estop appellees because the former

were not defendants in this case, and appellees were being sued

in their individual capacities); Silvagnoli v. Figueroa, No. 12

Civ. 7761 (AT), 2014 WL 4160213, at *5 (S.D.N.Y. Aug. 19.

2014) (“The actions of a non-defendant do not estop the

defendants from asserting the non-exhaustion defense.’).

6

exhaustion” and exhaustion requirements that are

“jurisdictional,” which deprive federal courts of

jurisdiction to hear cases stemming from

administrative action in the absence of exhaustion.

Weinberger v. Salfi, 422 U.S. 749, 766 (1975).

Accordingly, when a statute requires exhaustion, it

may create either an exhaustion requirement that is

“jurisdictional, and thus non-waivable, or non-

jurisdictional,” and thus waivable. Hettinga v. U.S.,

560 F.3d 498, 503 (D.C. Cir. 2009).

This Court affirmed in Woodford what the lower

courts had already agreed upon: that the PLRA

exhaustion requirement is not _ jurisdictional.

Woodford, 548 U.S. at 101, see also Anderson v. XYZ

Corr. Health Servs., Inc., 407 F.3d 674, 677-78 (4th

Cir. 2005) (“Every court to have considered the

question has concluded that [PLRA] § 1997(e)(a)’s

exhaustion requirement is not a _ jurisdictional

requirement.”) (collecting cases). Thus the PLRA

exhaustion requirement does not deprive the federal

courts of jurisdiction to hear un-exhausted claims.

Rather, the non-jurisdictional exhaustion

requirement of the PLRA allows courts to excuse

failure to exhaust where circumstances so warrant.

As has been acknowledged in this Court,

administrative law “contains well established

exceptions to exhaustion.” Woodford, 548 U.S. at 103

(Breyer, J., concurring). Amici do not argue that

6 Woodford has generated confusion among the lower courts as

to what, if any, exceptions may apply to the PLRA’s exhaustion

requirement. As noted by Judge Kozinski on Woodford’s

remand, “(i]t is unclear whether we can read exceptions into the

PLRA's exhaustion requirement.” Ngo v. Woodford, 539 F.3d

1108, 1110 (9th Cir. 2008); see also Parker v. Robinson, Civil

No. 04-214-B-W. 2006 WL 2904780, at *9—10 (D. Maine Oct. 10,

2006) (“the [Ngo] majority never mention[ed] [the]

7

any a priori list of exceptions, well-established or

otherwise, should be imported wholesale into the

PLRA context. Indeed, the Court noted in Woodford

that one of the well-established exceptions—that for

constitutional claims—was grossly inappropriate for

the PLRA: “we fail to see how such a carve-out would

serve Congress’ purpose of addressing a flood of

prisoner litigation in the federal courts, when the

overwhelming majority of prisoner civil rights and

prison condition suits are based on the Constitution.”

Woodford, 548 U.S. at 91 n.2 (internal citations

omitted).

However, prisoners’ failure to exhaust should be

excused where it is objectively reasonable. The

PLRA exhaustion requirement’s purpose would not

be served by extinguishing prisoners’ claims under

such circumstances.

As the Second Circuit stated in the case that the

court below relied upon, justification for failure to

exhaust in the prescribed fashion “must be

determined by looking at the circumstances which

might understandably lead usually uncounseled

prisoners to fail to grieve in the normally required

way.” Guano v. Goord, 380 F.3d 670, 678 (2d Cir.

2004). That is, the Court must consider the

concurrence by Justice Breyer {iJn a post-Ngo universe it

may still be possible for an incarcerated plaintiff to overcome an

admitted procedural misstep in the grievance process and

survive the assertion of a 42 U.S.C. §1997e(a) defense.”).

Courts have also noted that a severe interpretation of the

PLRA’s’ exhaustion requirement might well create

constitutional concerns. See Ngo v. Woodford, 539 F.3d 1108,

1112 (9th Cir. 2008) (Pregerson, J., concurring) (“The

constitutional rights of prisoners should not be taken away

based on a confusing administrative process with such a short

timeline.”).

8

characteristics of the prison environment and prison

administrative process, along with the purposes of

the PLRA exhaustion requirement, in determining

when, if ever, prisoners may be allowed to proceed

without proper completion of the administrative

process.

In Giano v. Goord, the plaintiff pursued his claim

in an administrative appeal of the disciplinary

conviction; the defendants argued he should have

filed a grievance instead. Jd. The court noted that

there are some cases in which remedies may be

available, but non-exhaustion is justified by “special

circumstances’—in Mr. Giano’s case, the fact that

his misreading of the relevant regulations was

“hardly unreasonable” because they did _ not

differentiate clearly between grievable and non-

grievable matters concerning disciplinary

proceedings. Jd. at 677-79. Indeed, a “learned

federal district court judge” had only recently

interpreted the same regulations similarly to Mr.

Giano. /d. at 679.7 Other jurisdictions display a

7 The lack of clarity in these rules is further demonstrated by

the fact that, some years later, New York prison officials made

precisely the opposite argument as in Giano on similar facts,

asserting that a prisoner who had filed a grievance claiming

retaliatory false discipline should instead have filed a

disciplinary appeal. Larkins v. Selsky, No. 04 Civ. 5900

(RMB)(DF), 2006 WL 3548959, at *9 (S.D.N.Y. Dec. 6, 2006)

(stating that Giano “nearly mirrors this [case] on all fours”).

More recently, the Giano scenario was reprised in Williams v.

Doe, No. 12-CV-1147S (SR), 2015 WL 1567498, at *3 (W.D.NLY.

Apr. 8, 2015), showing that prison authorities had done nothing

in the eleven years since Giano to clarify their ambiguous rule.

9

similar lack of clarity in rules governing disciplinary

and grievance proceedings.®

The Giano decision represents a judgment,

equally applicable here, that the dismissal of a

prisoners claim because he guessed wrong about

unclear regulations does not serve the purpose of the

PLRA exhaustion requirement to ensure that

prisoners give prison authorities a chance to address

their problems before suit is filed. Mr. Giano did his

best as he reasonably understood matters, and for

that reason it was consistent with the PLRA’s

purposes to allow him to go forward rather than

forfeit his claim.®

8 See, e.g., Riggs v. Valdez, No. 09-CV-010-BLW. 2010 WL

4117085, at *10 (D. Idaho Oct. 18, 2010) (noting lack of clarity

in rule barring grievances about disciplinary “hearing process

including findings and sanctions,” and prison officials

rebuffing of those prisoners who tried to grieve), on

reconsideration in part, 2010 WL 5391313 (D. Idaho Dec. 22,

2010); Ortego v. Forcht Wade Corr. Center, No. 09-cv-0199, 2010

WL 2985830, at *3 (W.D. La. Apr. 29, 2010) (noting conflict over

whether retaliatory discipline should be pursued via grievance

or disciplinary appeal), report and recommendation adopted in

part, rejected in part, 2010 WL 2990067 (W.D. La. July 27,

2010); Cahill v. Arpaio, No. CV 05-0741-PHX-MHM (JCG),

2006 WL 3201018, at *2 (D. Ariz. Nov. 2, 2006) (stating jail

rules concerning what aspects of a disciplinary incident can be

grieved are “sufficiently confusing such that Plaintiffs

interpretation that he could not grieve his excessive force claim

is reasonable”); Shaw v. Jahnke, 607 F Supp. 2d 1005, 1011

(W.D. Wis. 2009) (noting confusion of grievance personnel and

state lawyers about the relation of exhaustion to disciplinary

appeals, suggesting state clarify its rules).

® Dismissal for non-exhaustion generally will be the death knell

of the prisoner's claim because of the very short time limits that

are prevalent in prison grievance systems. See Woodford v.

Ngo, 548 U.S. 81, 118 (2006) (Stevens, J., dissenting) (noting

“strict time requirements [in grievance systems] that are

10

This judgment is consistent with this Court's

holding that non-exhaustion should be excused in a

case where the agency was operating under an

undisclosed policy so that affected persons literally

did not know what they should be appealing. See

Bowen v. City of New York, 476 U.S. 467 (1986).

That decision did not refer to “special

circumstances,” but did cite the “unique

circumstances” under which exhaustion would have

served no useful purpose. Jd. at 485. Bowen

illustrates the need for a degree of case-by-case play

in the joints in exhaustion schemes to respond to

unusual situations where strict enforcement of

exhaustion rules neither serves the purposes of

exhaustion nor respects justice to the individuals

involved. Amici urge the same result in this case.

II. PRISON GRIEVANCE SYSTEMS

PRESENT DIFFICULTIES IN

EXHAUSTION DIFFERENT FROM

THOSE IN OTHER ADMINISTRATIVE

AGENCIES.

There are _ characteristics of the prison

environment and of prison administrative systems

that differ sharply from those of the administrative

agencies that this Court has more often dealt with,

such as the Environmental Protection Agency,

National Labor Relations Board, and others. These

differences are sometimes not conducive to the fair

processing (or in some cases, any processing) of

prisoner complaints. Thus they support the

recognition of a narrow exception to the exhaustion

generally no more than 15 days, and that, in nine States, are

between 2 and 5 days” (footnote omitted)).

11

requirement, consistent with the Fourth Circuit’s

holding.

Under most statutory schemes and agency

regulations, parties bring their complaints before an

independent Administrative Law Judge (ALJ) who

adjudicates disputes either between two separate

parties (e.g., the Federal Mediation and Conciliation

Service, see 29 U.S.C. §§ 171-72 (creating an

independent agency with the power to intervene and

settle labor disputes between parties)), or between a

claimant and an agency (e.g., the Social Security

Administration, see Heckler v. Day, 467 U.S. 104

(1984) (describing the Social Security

Administration’s adjudicative and _ investigative

process for disability claims)). In most of these

proceedings, parties and claimants are entitled to the

central features of a trial proceeding, including

representation by counsel, cross-examination of

witnesses, presentation of evidence, and sometimes

even limited discovery. See Administrative

Procedure Act, 5 U.S.C. §§ 554, 556, 557 (providing

uniform rules for adjudication proceedings in most

federal agencies and guaranteeing the right to

counsel, present evidence, cross-examine, etc., in

most formal adjudication proceedings).

Most of these features are missing in prison. In

prison administrative proceedings, the adverse party

and the judge are prison officials; there is no

independent ALJ equivalent. See Cleavinger v.

Saxner, 474 U.S. 193, 203-04 (1985). Even appeals

from first-level decisions are generally brought

before higher-ranking officials of the prison system

that the prisoner is alleging wronged him or her.!°

10 See Michigan Law Prison Information Project, Prison and

Jail Grievance Policies: Lessons from a Fifty-State Survev 18

12

The Court has recognized the problems this lack of

independence can cause in the context of prison

disciplinary proceedings:

Surely, the members of _ the

[disciplinary] committee, unlike a

federal or state judge, are not

“independent”; to say that they are is to

ignore reality. They are not

professional hearing officers, as are

administrative law judges. They are,

instead, prison officials albeit no longer

of the rank and file, temporarily

diverted from their usual duties. They

are employees of the [prison] and they

are the direct subordinates of the

warden who reviews their decisions.

They work with the fellow employees

who lodges the charge against the

inmate upon whom they sit in

judgment. The credibility

determination they make often is one

(2015), available at

http://www.law.umich.edu/special/policyclearinghouse/Site%20

Documents/FOI]AReport10.18.15.2.pdf (“The appeal stage

typically involves review by a higher level of administration

When appeals are decided by someone inside the relevant

Department of Corrections, that obviously risks bias.”). For

example, this lack of independent review is present in the state

of Maryland's grievance process. The warden, who is ultimately

responsible for all misconduct committed by correctional

officials under his or her supervision, is also the first person to

review a prisoner's grievance—not an ALJ or equivalently

independent official. Pet. Br. at 6-7. If the warden denies

relief, the prisoner can appeal the decision to the State

Commissioner of Correction, who oversees Maryland’s entire

prison system, and who is also not independent from the prison.

Id. at 7.

13

between a co-worker and an inmate.

They thus are under obvious pressure to

resolve the disciplinary dispute in favor

of the institution and their fellow

employee. It is the old situational

problem between the keeper and the

kept, a relationship that hardly is

conducive to a truly adjudicative

performance.

Cleavinger, 474 U.S. at 203—04 (internal citations

omitted). This risk of abuse by prison staff is likely

to be even greater in the case of grievance systems

that must be exhausted before filing civil litigation,

since that litigation—usually actions under 42

U.S.C. § 1983 or Bivens actions—typically seeks

findings of liability and awards of damages against

prison employees and officials in their personal

capacities. Even where the litigation is purely

injunctive in nature, it seeks orders forcing those

employees and officials to change their rules,

procedures, or practices.

Thus, unlike typical federal agency systems, the

incentives surrounding prison grievance systems do

not weigh in favor of fair and efficient decision-

making on the merits of grievances. Instead, they

weigh in favor of procedural dismissals, which,

twenty years after the PLRA was enacted, everyone

in prison is likely to know will insulate the prison

and its personnel from liability and _ judicial

interference. They weigh in favor of unclear rules,

over-complicated procedures, and _ inconsistent

administration that favors the prison and its

personnel. Even if prison officials do not consciously

“create procedural requirements for the purpose of

tripping up all but the most skillful prisoners,”

Woodford v. Ngo, 548 U.S. 81, 102-03 (2006), they

14

have little reason to correct procedural requirements

that have that effect. See, eg., supra note 7

(discussing how New York prison officials did not

clarify an ambiguous rule eleven years after the

Second Circuit found it ambiguous).

Furthermore, unlike typical federal agency

systems, which contain centralized and routine

adjudicative safeguards and rights, there are dozens

of independent prison systems on the city and state

levels, each with its own internal procedures and

rules for exhausting claims.'' Such fragmentation

heightens the risk of defective procedures,

proliferating and increasing the need for a safety

valve exception to prisons’ exhaustion requirement,

as the court below recognized.

Lastly, experience with prison grievance systems

generally shows that they are considerably less

orderly and _ reliable than most _ non-prison

administrative systems. The clearest indication of

this point is the very large number of cases in which

it appears that a prisoner received no response at all

to a grievance or a grievance appeal. !?

1) See Brief for the Jerome N. Frank Legal Services

Organization of the Yale Law School as Amicus Curiae in

Support of Respondent, Woodford v. Ngo, 548 U.S. 81 (2006)

(No. 05-416), 2006 WL 304573 (providing a table in the

appendix illustrating the different rules and procedures for

filing grievances 7nd appeals in the various city and state

correctional agencies).

12 The collection in this note identifies only cases where

multiple grievances were ignored. See, e.g., Small v. Camden

Cnty., 728 F.3d 265, 273 (3d Cir. 2013) (observing that “[t}here

is no dispute” that prisoner received no response to multiple

grievances); Davis v. Corr. Corp. of Am., 463 F App’x. 748, 749-

50 (10th Cir. 2012) (noting concession that prison staff did not

respond to five informal complaints about prisoner’s housing

15

Ill. THERE ARE CIRCUMSTANCES THAT

MAY THWART EXHAUSTION OF

PRISON GRIEVANCE SYSTEMS BY

PRISONERS.

Nearly two decades after enactment of the PLRA,

there is an extensive body of federal case law—

reflecting a large amount of experience with prison

administrative systems—-that demonstrates that

prisoners are unable to raise meritorious claims in

federal court despite their efforts to exhaust. Those

cases demonstrate the need for a narrowly tailored

assignment, as prison rules required); Mann v. Scott, Civ. No.

14-3474-RMG, 2015 WL 5165198, at *4—5 (D.S.C. Sept. 1, 2015)

(finding non-responses to more than six “requests to staff,

which are prerequisites to filing grievances); Salcedo- Vazquez v.

Nwaobasi, No. 3:13-CV-00606-NJR-DGW, 2014 WL 2580517, at

*5 (S.D. Ill. June 9, 2014) (finding it “clear that Plaintiff

complained about his medical condition throughout the relevant

time period” based on his prison counselor's notes and stating

the “Court is not convinced that he ever received a response

such that he could then take the next step of submitting the

matter to a grievance officer.”); Castellanos v. Pfister, No. 12-

1452, 2014 WL 377742, at *3 (C.D. Ill. Feb. 3, 2014) (observing

that defendants “have presented no arguments or evidence in

opposition to Plaintiffs position regarding [two] August

emergency grievances that named Defendant Durbin and that

went unanswered.”); Raybon v. Totten, No. 2:12-cv-1008 EFB P,

2013 WL 3456968, at *3—4 (E.D. Cal. July 9, 2013) (declining to

dismiss for non-exhaustion where it was undisputed there was

no response to plaintiffs second and third level grievance

appeals), report and recommendation adopted, 2013 WL

4407268 (E.D. Cal. Aug. 14, 2013); Garcia v. Heath, No. 12 CV

4695 (CM), 2013 WL 3237445, at *1-2 (S.D.N.Y. June 25, 2013)

(dismissing for non-exhaustion although the prisoner's two

grievances and five follow-up letters had all gone unanswered);

Nassar v. Warden, Butler Cnty. Jail, No. 1:10-cv-031, 2011 WL

7268004, at *5 (S.D. Ohio Sept. 1, 2011) (finding that prisoner

properly pursued grievance at two stages but did not receive

responses consistently with policy at either stage).

16

exception to exhaustion. Amici set forth below a

sampling of circumstances where non-exhaustion of

arguably available remedies may be justified and

non-exhaustion may appropriately be excused.

A. Hyper-Technical Errors

There are numerous district court decisions that

declare a prisoner failed to properly exhaust because

of minor, hyper-technical deviations from _ the

complicated and stringent procedures required by

prison systems to grieve properly.

For instance, in Fischer v. Smith, a prisoner's

claim alleging inadequate medical care in violation of

the Eighth Amendment was dismissed because the

prisoner submitted a carbon copy of his grievance

form instead of the original form. No. 10-C-870, 2011

WL 3876944, at *2 (E.D. Wis. Aug. 31, 2011).

Although the prisoner promptly submitted the

original form after his initial carbon copy grievance

was denied, it was then deemed _ untimely,

permanently preventing the prisoner from grieving

through either the prison administrative system or

the federal courts. Id.

In another case, a prisoner pursued multiple

grievances and appeals complaining of inadequate

medical care, which were procedurally denied.

Elliott v. Jones, No. 4:06-cv-00089-MP-AK, 2008 WL

420051 (N.D. Fla. Feb. 12, 2008). They were denied

because the prisoner “wrote outside the boundaries

of the form” and filed the medical grievances as

emergency grievances, rather than non-emergency

grievances. Jd. at *5. In denying the defendant’s

motion to dismiss for failure to properly exhaust

administrative remedies, the district judge stated

that “[p]laintiff gave fair notice of his claims and

provided sufficient detail to the corrections staff to

17

facilitate some relief for his circumstances, if such

was warranted. He was not attempting to flout the

system or improperly bypass procedural rules

This[], in the opinion of the undersigned, constitutes

an attempt to complete, i. exhaust his

administrative remedies.” Jd. Had it not been for

this judge’s understanding of the core principles

behind the doctrine of exhaustion, this potentially

meritorious complaint would likely have been

dismissed on minor technicalities. !*

B. Interference by Prison Officials

Courts have been presented with a range of

institutional conduct that has interfered with a

prisoner's ability to exhaust available remedies.

That conduct has run the gamut from failing to

provide necessary forms and providing erroneous

information about available remedies and procedures

to overt threats and hostility.

13 Other scenarios which could result or have resulted in

meritorious complaints being dismissed on hyper-technicalities

include: submitting a statement under penalty of perjury,

rather than by notarized affidavit, Thomas v. Parker, No. CIV-

07-599-W. 2008 WL 2894842, at *12 (W.D. Okla. July 25, 2008)

(dismissing claim), affd, 318 F. App’x. 626 (10th Cir. 2009).

cert. denied, 558 U.S. 899 (2009): filing a new grievance rather

than seeking reinstatement of an already filed grievance.

Whitney v. Simonson, No. CIV-S-06-1488 FCD GGH P, 2007

WL 3274373, at *2 (E.D. Cal. Nov. 5, 2007) (dismissing for non-

exhaustion; admitting defendants’ approach is “hypertechnical”

but holding Woodford requires dismissal nonetheless). report

and recommendation adopted, 2007 WL 4591593 (E.D. Cal. Dec.

28, 2007), affd, 317 F. App’x. 690 (9th Cir. 2009); and writing in

pink ink instead of blue or black ink, Ramsey v. McGee, No. Civ

06-313-RAW-SPS, 2007 WL 2744272, at *2 (E.D. Okla. Sept. 19,

2007) (noting grievance returned unprocessed).

18

For example, erroneous direction by prison staff

was found to justify non-exhaustion in Brownell v.

Krom, 446 F.3d 305 (2d Cir. 2006). In that case, a

prisoner claimed that corrections officers hindered

his right of access to the courts by losing eleven of his

fourteen bags of property. Id. at 307-08.

Misinformed by prison staff, the prisoner decided to

abandon his lost property claim and file a grievance

instead, and was later time-barred from appealing

his lost property claim. Jd. at 308—09. Recognizing

the role that prison staff played in misguiding the

prisoner, the Second Circuit found that special

circumstances excused the prisoner's failure to

exhaust. Jd. at 312. And relevant grievance forms

were not provided in Jones v. Fed. Bureau of Prisons,

No. 11-CV-4733 (KAM)(MDG), 2013 WL 5300721, at

*8 (E.D.N.Y. Sept. 19, 2013). There, in addition to

refusing to supply grievance forms, prison officials

also placed a prisoner in solitary confinement for

demanding those forms. Jd. Fortunately for Jones,

the district court and magistrate judges found that

special circumstances may justify his failure to

exhaust, and accordingly denied defendants’ motion

for summary judgment for non-exhaustion. Id.

Prison grievance systems are poorly insulated

from what this Court has acknowledged as “the old

situational problem of the relationship between the

keeper and the kept, a relationship that hardly is

conducive to a truly adjudicatory performance.”

Cleavinger v. Saxner, 474 U.S. 193, 204 (1985). In

many instances the filing of grievances, or the

anticipation of them, has led to threats, and the

19

actuality, of violent confrontation and retaliation by

prison staff against the complaining prisoners. '4

Explicit and egregious staff misconduct excused

non-exhaustion in Gibson v. Rosati, No. 9:13-cv-503

(GLS/TWD), 2014 WL 3809162 (N.D.N.Y. Aug. 1,

2014). There, a prisoner—in retaliation for prior

civil rights litigation—was placed in a choke hold,

told that officers would kill him, forced to the ground,

repeatedly kicked, handcuffed and chained, and

punched, “for taking [defendants] to court.” Jd. at

*2. Recognizing that “an individual of ordinary

firmness” might have acted in the same way as the

prisoner under the circumstances, the district court

14 See, e.g., Himmelreich v. Fed. Bureau of Prisons, 766 F.3d

576, 577 (6th Cir. 2014) (noting allegation on summary

judgment that a captain told plaintiff that if he continued with

his grievances about an attack she would have him “transferred

to a penitentiary and [he would] more than likely be attacked

and not just beat up,” and said that she transferred him to the

Security Housing Unit “because of the fuckin’ Tort Claim [he]

filed'”), cert granted on other grounds sub nom. Simmons v.

Himmelreich, 136 S. Ct. 445 (2015); King v. Zamiara, 680 F.3d

686 (6th Cir. 2012) (directing entry of judgment against officials

who increased prisoner's security classification based on his

pursuit and instigation of complaints and grievances), cert.

denied, 133 S. Ct. 985 (2013); Haynes v. Stephenson, 588 F.3d

1152 (8th Cir. 2009) (awarding nominal and punitive damages

for disciplinary charges filed in retaliation for statements in a

grievance); Kaba v. Stepp, 458 F.3d 678, 682 (7th Cir. 2006)

(citing “specific and detailed” allegations of threats and assault

for pursuing grievances); Gomez v. Vernon, 255 F.3d 1118 (9th

Cir. 2001) (affirming injunction protecting prisoners who were

the subject of retaliation for filing grievances and for litigation),

cert. denied sub nom. Beauclair v. Gomez, 534 U.S. 1066 (2001);

Maurer v. Patterson, 197 F.R.D. 244 (S.D.N.Y. 2000) (upholding

jury verdict for plaintiff who was subjected to retaliatory

disciplinary charge for complaining about operation of

grievance program).

20

and magistrate judges denied defendants’ motion to

dismiss for failure to exhaust. Id. at *9.

C. Complex and Ambiguous Procedures

The rules and_ procedures’ of prison

administrative systems are often ambiguous and

difficult for laypersons without counsel to navigate

correctly.'5 As the Court has acknowledged in a

related context, “technicalities are particularly

inappropriate in a statutory scheme in which

laymen, unassisted by trained lawyers, initiate the

process.” Love v. Pullman, 404 U.S. 522, 527 (1972)

(addressing Title VII's requirement of filing a charge

with the Equal Employment Opportunity

Commission before filing suit). That observation is

true a fortiori for the prison population, which is

characterized by low levels of literacy,'® high levels of

‘5 A number of federal courts have so observed. See, e.g., Brooks

v. Roy, 776 F.3d 957, 961 (8th Cir. 2015) (stating “we recognize

the confusion caused to Brooks, and likely to other inmates, by

MDOC’s complex, multiple-layered grievance system y

Frasier v. McNeil, No. 13 Civ. 8548(PAE)(JCF), 2015 WL

1000047, at *8 (S.D.N.Y. Mar. 5, 2015) (court “unable to discern

the exhaustion requirements”); Hairston v. LaMarche, No. 05

Civ. 6642(KMW)(AdP), 2006 WL 2309592, at *9-10 (S.D.N.Y.

Aug. 10, 2006) (noting the lack of clarity in New York State

administrative appeal procedures in cases where a

Superintendent has referred a complaint to the Inspector

General for investigation).

16 The National Center for Education Statistics reported in 1994

that seven out of ten prisoners perform at the lowest literacy

levels. Karl O. Haigler et al., U.S. Dep't. of Educ., Literacy

Behind Prison Walls: Profiles of the Prison Population from the

National Adult Literacy Survey xviu, 17—19 (1994), available at

http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=94 102.

21

mental illness!’ and cognitive disability,'* and

limited proficiency in English.'®

17 See, e.g., Doris J. James & Lauren E. Glazem, U.S. Dep't of

Justice, Mental Health Problems of Prison and Jail Inmates 1

(2006), available at

http://www.bjs.gov/content/pub/pdf/mhppji.pdf (“At midyear

2005 more than half of all prison and jail inmates had a mental

health problem More than two-fifths of State prisoners

(43%) and more than half of jail inmates (54%) reported

symptoms that met the criteria for mania. About 23% of State

prisoners and 30% of jail inmates reported symptoms of major

depression. An estimated 15% of State prisoners and 24% of

jail inmates reported symptoms that met the criteria for a

psychotic disorder.”); Council of State Governments, Criminal

Justice/Mental Health Consensus Project xu (2002), available

at https://www.ncjrs.gov/pdffiles 1/nij/grants/197103.pdf (“Each

year, ten million people are booked into U.S. jails; studies

indicate that rates of serious mental illness among these

individuals are at least three to four times higher than the

rates of serious mental illness in the general population.”).

18 Data compiled by the Department of Justice's Bureau of

Justice Statistics shows that 20% of prison inmates and 31% of

jail inmates report having a cognitive disability, as compared

with only 5% of the general population reporting the same.

Jennifer Bronson et al., U.S. Dep't. of Justice, Disabilities

Among Prison and Jail Inmates, 2011-12, 3 (2015).

19 See Haigler et al., supra note 16, at xx (“Inmates who come

from homes where only a non-English language was spoken

demonstrate significantly lower proficiencies than those who

come fr.m homes where English was spoken. The proficiencies

of these inmates from a non-English language background

indicate that they demonstrate skills associated with only the

most basic literacy tasks.”). Cf. Human Rights Watch, Barred

from Treatment: Punishment of Drug Users in New York State

Prisons 30-31 (2009), available at

https://www.hrw.org/report/2009/03/24/barred-

treatment/punishment-drug-users-new-york-state-prisons

(noting language barriers as obstacle to medical treatment).

22

There are numerous cases in which prisoners are

found to have failed to properly exhaust their claims

because of procedural complexities created by prison

systems.

For instance, in Ferguson v. Bizzario, No. 09 Civ.

8106 (PKC), 2010 WL 4227298 (S.D.N.Y. Oct. 19,

2010), the court denied the defendants’ motion to

dismiss for non-exhaustion. There, a prisoner

alleged that he was confined with more than ten

general population inmates during a facility fire

drill, was assaulted by these inmates, and was

subsequently exposed to chemical agents excessively

discharged by prison staff, causing swelling in his

right hand and loss of sensation in his finger and

palm. Jd. at *1. The court found that special

circumstances existed to justify non-exhaustion

because the Inmate Handbook did not detail the five

day filing period within which prisoners must grieve.

Id. at *5-7 Without an objective reasonableness

exception, this potentially meritorious complaint

would have been dismissed even though the prisoner

could not have discovered the time bar.?°

20 Other examples of cases involving procedural complexities

created by prison systems are: Thomas v. Hernandez, No.

09cv1336-LAB (PCL), 2012 WL 4496826, at *3 (E.D. Cal. Sept.

28, 2012) (prison rule stating that appeal must be “forwarded to

the appeals coordinator” did not, as defendants contended,

clearly exclude giving it to other staff for forwarding); Rahim v.

Holden, 882 F Supp. 2d 638, 642-43 (D. Del. 2012)

(instructions stating that parole decisions are “non-grievable”

did not, as defendants argued, clearly distinguish between

procedural complaints against State defendants in the parole

process and substantive complaints against the Board of Parole

in making its parole decision); Smith v. Maypes-Rhynders, No.

07 Civ. 11241 (PAC)(MHD), 2011 WL 4448944, at *11 (S.D.N_Y.

July 28, 2011) (prisoner's grievance appeal was returned

without instructions as to correcting defects or other steps to be

23

As explained above, the “special circumstances”

exception at issue herein originated in Giano uv.

Goord, 380 F.3d 670 (2d Cir. 2004), a case involving a

distinction between the scope of grievances and of

disciplinary appeals so murky that judges as well as

the plaintiff had difficulty understanding it. See

supra p. 7—9 (discussing Giano).

In other cases, prisoners have not been as

fortunate as Mr. Giano, losing their claims because

they guessed wrong in interpreting grievance rules.

For example, in Marshall v. Knight, No. 3:03-CV-460

RM, 2006 WL 3714713, at *1 (N.D. Ind. Dec. 14,

2006), an Indiana prisoner alleged that he had been

retaliated against in classification and disciplinary

matters, but did not file a grievance because

classification and disciplinary matters were excluded

from the grievance system. The court held that he

had failed to exhaust because retaliation claims

might be grievable, even if their subject matter was

not. Id.

Unlike Giano, the Marshall decision gave no

consideration to the reasonableness of Mr. Marshall's

interpretation of the rules. See also Williams uv.

McGrath, No. C 04-5069 MMC (PR), 2007 WL

3010577, at *6 (N.D. Cal. Oct. 12, 2007) (holding a

taken), report and recommendation adopted, 2011 WL 4444214

(S.D.N.Y. Sept. 26, 2011); Lemons v. Dragmister, Civ. Action

No. 3:08-CV-423 JVB, 2010 WL 530073. at *2 (N.D. Ind. Feb. 9,

2010) (refusing to enforce rule requiring signing of grievances

where grievance form did not have a signature line because to

do so “would effectively sand-bag unsuspecting inmates’);

Warren v. Purcell, No. 03 Civ. 8736 (GEL), 2004 WL 1970642,

at *6 (S.D.N.Y. Sept. 3, 2004) (prisoner received “return of

grievance” form saying that prisoner's grievance “is being

returned” to him, that the grievance “needs to be investigated,”

and that “[i]t will take a minute before a response’).

24

prisoner whose grievance was rejected for failure to

provide necessary documentation, and who was then

denied access to the documentation, should have

resubmitted his appeal without the documentation,

or should have filed a new grievance, despite

prisoner's concerns that his grievance had already

been rejected once for lack of the documentation and

that if he filed a second grievance he would be in

violation of the rule against duplicative grievances),

aff'd, 320 F App’x. 728 (9th Cir. 2009).

D. Mental and Physical Incapacity

Unsurprisingly, courts have found debilitating

physical conditions or mental incapacity to present

unique circumstances. For example, transfer to a

mental hospital after filing a grievance precluded

filing a timely appeal in Petty v. Goord, No. 00 CIV

803 JSR, 2007 WL 724648, at *8 (S.D.N.Y. Mar. 5,

2007) (finding special circumstances). Multiple

medical issues that were complicated by other factors

also justified non-exhaustion in Perry v. Rupert, No.

9:10-CV-1033 (LEK/TWD), 2013 WL _ 6816795

(N.D.N.Y. Dec. 20, 2013). In that case, a prisoner

wished to file a grievance for denial of medical care

but claimed that he was unable to do so because of

multiple medical issues including: “onset of

symptoms repeated refusal of care, refusal of

access to a Sergeant, wrongful transfer to the

psychiatric ward, transfer by ambulance to Claxton

Hepburn Medical Center for emergency consultation,

transfer to multiple other hospitals for eight

surgeries, hospitalization for a total of six months,

release to a medical RNU, and finally a surgery to

have the infected mesh removed fifteen months

later.” Id. at 5. Had the judge not recognized the

prisoners struggles and found that _ special

25

circumstances might exist to justify non-exhaustion,

this seemingly meritorious claim would have been

dismissed for failure to exhaust. Id.

26

CONCLUSION

The Court should acknowledge that under the

administrative law principles that Woodford held

govern PLRA exhaustion, appropriate, limited

exceptions that are consistent with the statutory

purpose should be allowed. An _ exception is

appropriate in this case where the relevant grievance

rules were unclear,?! the prisoner's actions were

objectively reasonable and the prisoner made his

complaint well known to prison authorities. The

court below’ properly applied this “special

circumstances” exception to allow the Respondent's

meritorious claim to go forward.

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted.

JOHN BOSTON BRETT DIGNAM

Counsel of Record Morningside Heights

The Legal Aid Society Legal Services, Inc.

199 Water Street 435 West 116th Street

New York, N.Y 10038 New York, N.Y. 10027

(212) 577-3530 (212) 854-4291

J Boston@legal-aid.org bdigna@law.columbia.edu

MARCH 2016

21 Amici note that Respondent's initial claim of unclarity has

now been amplified by a showing that the prison system's

practice at the time was consistent with the Respondent's

understanding, and that even now Petitioner cannot say with

certainty what the correct course of action for Respondent was.

Resp. Br. at 34.