by: Peter J. Gallagher (LinkedIn)
Maybe it is because I was a journalism major in college, but I am a sucker for a good lede. The district court’s decision in West v. Emig has a great one. It begins:
Christopher H. West is an inmate who has frequently ingested inedible objects. During his incarceration, he has eaten the foam from inside his mattress, and he has also swallowed writing instruments, including pens. This case is about the mattress and a pen.
I was hooked, but then it got even more interesting.
Plaintiff claimed that, at two different prisons, employees removed the mattress from his cell “after he ingested foam from inside [the] mattresses.” Instead of following the grievance policy, which is typically required before an inmate can sue, West sued two former prison employees in federal court in Delaware, seeking $5 million in damages from each. He argued that he could not pursue his administrative remedies because, you guessed it, “the prisons denied him a pen needed to complete the prison grievance form – albeit for his own safety.” In other words, they removed his mattress because he ate the mattress foam, but he could not file a grievance about that because they previously removed his pen because he had a habit of eating his pens.
When plaintiff sued, defendants moved for summary judgment. They raised four defenses, including failure to exhaust administrative remedies. The district court only addressed that defense, and granted defendants’ motion based on it. Plaintiff appealed, and the Third Circuit reversed.
Under the Prison Litigation Reform Act, an inmate may not challenge the conditions of his confinement without first exhausting all available administrative remedies. When a defendant raises failure to exhaust administrative remedies as an affirmative defense, like defendants in West, a district court undertakes a two-step inquiry, asking: (1) whether the inmate failed to exhaust all “on-the-books remedies” (“on-the-books” refers to formal administrative remedies); and (2) if so, whether the inmate can show that those remedies “were in fact unavailable to him or her.”
In West, answering the first inquiry was easy. There was no question that plaintiff failed to exhaust his administrative remedies when he failed to submit a grievance form.
The second inquiry was harder. The Third Circuit observed that, ” if [plaintiff] lacked the ability to complete the required written grievance form, the prison’s administrative remedy was not within his capability to use to obtain relief, and therefore was unavailable to him.” It then held that he had “met his burden of production” on this issue. He had established a disputed issue of fact about whether he “had access to either a pen or another means of completing the written grievance form.” If he could not complete the grievance form, then that administrative remedy was unavailable to him, and he cannot be faulted for having failed to pursue it.
To be clear, the court did not hold that plaintiff had proven his case. Just that the record “lacked precise dates identifying the deprivations of the mattress and a pen,” so the court could not determine, as a mater of law, whether plaintiff had access to a pen within the time to timely file a grievance. On remand, the district court may allow defendants to develop a record on this issue, which may ultimately sink plaintiff’s claim on the merits.
The Third Circuit rejected defendants’ argument that plaintiff could have made a “verbal” grievance even without a pen. The court held that “an inmate’s duty to exhaust extends only to the official, on-the-books administrative remedies.” Therefore, whether plaintiff could have “availed himself of an official verbal grievance policy” was irrelevant.
[Note: Nothing in this post is intended to make light of plaintiff’s situation or his apparent psychological issues. As anyone who reads this blog knows, I try to write about cases with interesting or quirky facts or legal issues, and this one certainly satisfies that requirement.]