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.