Monday, April 19, 2021

Inmate wins appeal arising from grievance over beating

The inmate wins this appeal on a technical issue. The Court of Appeals reinstates this claim alleging that correction officers had assaulted him in violation of the Eighth Amendment. The case was dismissed because the trial court said plaintiff did not prove he had filed an internal grievance, a requirement under the Prison Litigation Reform Act, a mid-1990s law that makes it harder for inmates to proceed with their cases, imposing the grievance requirement, among other things.

The case is Smith v Dodge, a summary order issued on February 10. I am not sure an internal grievance over a prison assault will solve anything, but the Supreme Court said about a decade ago that excessive force constitute the kind of prisons conditions that are subject to the grievance requirement. 

The law does account for the possibility that an inmate will have filed a grievance but the prison will argue that no such filing occurred, and that the case should therefore be dismissed. One way for the inmate to get around this defense is to show that "prison administrators thwart[ed] inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation." The case for that is Ross v. Blake, 136 S.Ct. 1850 (2016).

Plaintiff's affidavit permits the finding that he did file a grievance but the jail did not process it. The jail denies this claim but on a motion for summary judgment, we accept non-conclusory affidavits as true. While the district court said plaintiff's affidavit was conclusory and was therefore not good enough, the Court of Appeals (Livingston, Jacobs and Lynch) disagrees, stating:

Smith alleges, inter alia, that he submitted not one but two grievances in connection with the purported assault on September 9. He further asserts that he submitted the second grievance because of his concern, after speaking with another inmate, that his first grievance would be intercepted by prison staff. Smith also claims that he contemporaneously mailed an additional copy of the second grievance to his lawyers. He specifically alleges that the second grievance was picked up by a corrections officer on September 29 and that he sent a follow up letter to prison authorities with copies of both grievances on October 15 . According to his affidavit, Smith received notice in late October that his second grievance was untimely. Smith alleges that other grievances he submitted during this period also went missing, but that he subsequently received notice that they had been received and accepted. Smith asserts that all these grievances were interfered with as a result of his repeated complaints about the September 9 incident.

While the case is remanded to the district court, we still have a factual issue on whether plaintiff filed the grievance. The district court still has to decide that issue as a factual matter. I don't want to be cynical, but the inmate has to overcome the testimony of jail officials who will deny the allegations that they had mishandled or suppressed the grievances. That's a tall order. I don't know what plaintiff did to wind up in prison, but my guess is that crime will undermine his credibility. Whether Congress took this into account when they imposed the grievance requirement under the PLRA, I know not.


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