Court cuts inmate a break over his failure to grieve prison beating

If an inmate wants to bring a lawsuit over the conditions of his confinement, even when he is the victim of excessive force by correction officers, he has to file an internal grievance with the jail and wait for the jail to resolve the grievance. Once he loses the grievance, he can file his lawsuit in federal court. That's the mandate of the Prisoners Litigation Reform Act, intended to reduce inmate litigation and allow the jails to resolve these disputes without judicial interference. So what happens when the inmate cannot file an internal grievance because he was sent to a mental health facility before could file the internal grievance? 

The case is Romano v. Ulrich, issued on September 15. The inmate says he was beaten up by the guards, causing some pretty serious physical injuries The district court said the inmate had time within the 21-day window to file his grievance because he was not sent to the mental health facility after 13 days without advance notice, giving him 13 days to file the grievance. 

The Court of Appeals (Livingston, Pooler and Sack) reverses and says the inmate did not waive his rights. The Court surveys the state of the law in the area of when an inmate waives his rights under the PLRA. It holds that Romano did not have an opportunity to file his grievance despite the 13-day window. As the Court of Appeals sees it, transferring him out of the prison created a "dead end" for him to file a grievance.  One he was in custody of the mental health facility, he could not file the grievance any longer, even if he was well within the 21-day window. 

Couldn't he have filed the grievance within that 13 days? The Second Circuit says that it is not clear that Romano even had 13 days, as he spent 5 days in the infirmary and eight days in an Office of Mental Heath observation cell, when he was recovering from serious physical injuries, as well as serious emotional difficulties from the beating. Moreover, the Court finds, he cannot be penalized for not filing the grievance at the earliest possible moment. Twenty-one days is 21 days, not 13 days. He still had time to file the grievance when prison officials sent him to the mental health facility.