Pro se inmate wins PLRA appeal

Before they can bring lawsuits challenging the constitutionality of their prison conditions, including the use of excessive force by correction officers, inmates must file an internal grievance. That rule has exceptions. This case highlights one of them.

The case is Harvey v. Correction Officers 1 through 6, a summary order decided on May 8. Harvey says he was beaten up by officers. Since he did not exhaust internal administrative remedies, the case was dismissed. The Second Circuit reinstates the case.

Harvey wins the appeal. Sometimes the failure to file an internal grievance is excused, like when the jail prevents the inmate from filing one. Here, Harvey says he was threatened with further beatings if he complained to anyone about the assault, and that he was then placed in solitary confinement and denied any writing instruments so he could not write up a grievance. After that, Harvey was sent to another jail, Downstate, and told he could not file a grievance over something that happened at a different facility. While Harvey did tell a nurse and psychiatric staff that he had been assaulted, that does not mean the threats not to file a grievance were not enough to deter him from formally complaining.

The case returns to the district court for some additional factfinding, including whether a grievance representative at Downstate was a staff member there. So, even though Harvey wins the appeal, it does not mean he can litigate his excessive force claim. If the district court resolves these grievance issues on remand in favor of the Jail, then the lawsuit over.