The Eleventh Circuit, in an amazing decision, holds that “a prison official's serious threats of substantial retaliation against an inmate for lodging in good faith a grievance make the administrative remedy ‘unavailable,’ and thus lift the exhaustion requirement” of the PLRA.
Facts:
“According to [Turner’s] complaint, a prison employee supervising inmates forced Turner to clean an oven even after Turner had protested that it was not safe to do so because the oven was sparking electricity and the floor was wet. When he touched the oven, Turner received an electrical shock that knocked him to the ground and permanently damaged his leg. Instead of turning off the power or sympathizing with Turner, the supervisor joked about what had happened, called Turner stupid, and filed a disciplinary report against him. Turner alleges that the supervisor later told him that exposing Turner to the risk of electrical shock was his way of getting back at him for being too fat. After he was shocked, a prison guard took Turner to the prison's infirmary where he contends that he received deliberately indifferent medical care…
On September 9, 2004, two days after Turner submitted his formal grievance, Warden Tydus Meadows called him ‘to security.’ When Turner arrived, Meadows was holding the formal grievance form Turner had submitted, and said, ‘Oh--you're the one that got shocked!’ The warden told him, according to Turner: ‘that if I didn't like the way they did things around here he would put my ass in the van with inmate Johnson and transfer me so far south that I would never be able to see my family again till I got out of the Georgia Prison System.’ Meadows then tore up Turner's complaint in front of him and said that he ‘had better not hear of another grievance or lawsuit pertaining to [Turner] getting shocked.’”
Analysis:
Classy stuff. The Eleventh Circuit’s decision not to hold this against Turner may seem to the logical and sane to be natural and the only just result. However, the magistrate judge actually decided against Turner because he did not follow up by filing an additional grievance or appealing the warden’s decision (to tear up the grievance). This strikes me as very akin to the courts pretending that an inmate who is retaliated against for using the grievance procedure should follow it up with another grievance…grieving the retaliation. Like that’s going to happen. The District Court, of course, followed the magistrate’s recommendation.
The Eleventh Circuit took a different stance. Acknowledging the PLRA’s exhaustion requirement, the court noted that the PLRA “does not require inmates to craft new procedures when prison officials demonstrate--and here we mean that word literally--that they will refuse to abide by the established ones.” The Georgia grievance procedure did not require inmates to grieve breakdowns in the procedure or to resubmit the same grievance to the same official who destroyed the original grievance (maybe prison officials will read this case and do a little redrafting).
Turner also argued that the warden’s threat made the appeal remedy unavailable to him. According to the court, “a remedy has to be available before it must be exhausted, and to be ‘available’ a remedy must be ‘capable of use for the accomplishment of [its] purpose.’”
“One of the purposes of administrative remedies is to give prisoners a way of attempting to improve prison conditions without having to file a lawsuit...That purpose is thwarted if the prisoner is told that lodging a grievance will result in his overall condition becoming worse instead of better. Where cost outweighs benefit a rational decision maker will forego the benefit. When an inmate foregoes administrative remedies because prison officials have made it irrational for him to pursue them, the inmate loses a benefit that Congress intended to bestow on him. The corrections and judicial systems also lose the substantial benefits that administrative remedies were intended to provide them…
Stated differently, at least some threats disrupt the operation and frustrate the purposes of the administrative remedies process enough that the PLRA's exhaustion requirement does not allow them. The construction of "availability" that we adopt is beneficial because it reduces any incentive that prison officials otherwise might have to use threats to prevent inmates from exhausting their administrative remedies, and it thereby safeguards the benefits of the administrative review process for everyone.
We conclude that a prison official's serious threats of substantial retaliation against an inmate for lodging in good faith a grievance make the administrative remedy "unavailable," and thus lift the exhaustion requirement as to the affected parts of the process if both of these conditions are met: (1) the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.”
The court’s decision opens the door to a whole host of inmate arguments as to what constitutes an “unavailable” administrative remedy. What qualifies as a threat? How to even make sense of the phrase “reasonable inmate of ordinary firmness and fortitude?” I haven’t a clue what that means, but I’m liking the direction of the court’s thinking. An appellate court is finally acknowledging the realities of inmate life rather than sticking to the law like all of life falls within its clearly-cut lines.
2008 U.S. App. LEXIS 18510
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