In three recent prisoners' civil rights cases, the Second and Sixth Circuits showed that they are prepared fairly to hold corrections defendants to their burdens under the rules of pleading and evidence when those defendants seek to have suits dismissed for failure to exhaust administrative remedies. Meanwhile, the Fourth Circuit struck down an unreasonable prison regulation that impinged on a Muslim inmate's freedom to exercise his religion by wearing a short beard, and the Seventh Circuit reinstated inmate claims that had been dismissed without comment by a district court that apparently overlooked them, including a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment.
As a brief background for those unfamiliar with the general issue of exhaustion, Congress in 1995 passed the Prison Litigation Reform Act, 42 U.S.C. 1997e, which, among other things, required as a pre-requisite to any prisoner's filing of a federal lawsuit complaining of "prison conditions" that the prisoner first exhaust those administrative remedies that are "available" to them within the prison system. In subsequent cases, the Supreme Court has in effect held that because Congress meant to broadly exclude inmates from the courthouse, the statute is interpreted as broadly as it can be fairly read, and thus, the Court rejected lower-courts' narrow readings that, for example, a discrete assault by a guard on an inmate is not a "prison condition" (not an ongoing circumstance), Porter v. Nussle, 534 U.S. 516 (2002), or that where a prison grievance system does not make money damages available as a remedy, so that it is not an "available" remedy and need not be exhausted, Booth v. Churner, 532 U.S. 731 (2001). Indeed, the Court has showed a united front against prisoners' rights in these cases despite strong textualist arguments for a narrower construction.
Ignorance of both the requirements of the grievance system and of the requirement to use it before going to court, the known fact that grievance systems are totally useless and farcical, and fear of retaliation for complaints directed at guards who may already have assaulted them, predictably result in frequent non-use of prison grievance systems by prisoners. The statute is thus well designed to keep legitimate constitutional violations from being addressed. Corrections officials must still, however, actually prove non-exhaustion in order to obtain dismissal of the claims against them. And they have surprisingly frequent difficulty in making effective efforts to do so, often putting in the kind of evidentiarily useless affidavits - witnesses with no personal knowledge, reliance on multiple hearsay and violations of the Best Evidence Rule - that one expects to see only in penny-ante debt collection cases. Indeed, it is surprisingly common to have corrections officials' summary-judgment motions based on an alleged failure to exhaust administrative remedies denied due to such evidentiary failures. See, e.g., Livingston v. Piskor, 215 F.R.D. 84, 85-86 (W.D.N.Y. 2003); Donahue v. Bennett, No. 02-CV-6430, 2003 U.S. Dist. LEXIS 12601, at *10 (W.D.N.Y. June 23, 2003).
In the first of the recent Sixth Circuit cases, Surles v. Anderson, No. 09-1825 (decision May 8, 2012), that is just what happened. Correction officer defendants moved for summary judgment dismissing a prisoner's civil rights action on the ground of failure to exhaust administrative remedies under the PLRA. The officers relied entirely on (a) a copy of their grievance policy, (b) copies of grievances submitted by the inmate plaintiff with his complaint, and (c) an affidavit attesting that a search of records showed that the inmate had not submitted any grievances since the dismissal of a prior federal complaint. But the grievances themselves indicated on their face that they were re-submissions of grievances previously filed, and the inmate alleged the grievance system was made unavailable to him by officers' preventing the filing of grievances. Thus, this record was patently insufficient to allow the court to grant summary judgment on the exhaustion issue. The officers' only effort to save their motion was to argue, absurdly, that they did not bear the burden to prove non-exhaustion, but that rather, the burden of showing exhaustion was on the inmate. The law is otherwise, as the court pointed out. See Jones v. Bock, 549 U.S. 199 (2007) (nonexhaustion is affirmative defense); Napier v. Laurel County, 636 F.3d 218 (6th Cir. 2011).
In the second Sixth Circuit case, Davis v. Prison Health Services, No. 10-2690 (decision May 10, 2012), the prisoner plaintiff alleged that he was removed from a program because of corrections officials' animus against him as an out gay man. The district court had accepted a magistrate's recommendation that the inmate's lawsuit be dismissed essentially because the version of events set forth in grievance denials produced by the corrections defendants did not support plaintiff's version of events and set forth a nondiscriminatory rationale for the removal. The Sixth Circuit rightly reversed the district court, explaining that it is plaintiff's allegations that control at the pleadings stage, and that plaintiff contested the version of events set forth in the defendants' self-serving documents.
The Second Circuit a few days later issued a decision in Johnson v. Killian, No. 10-4651-pr (decision May 16, 2012). In that case the Muslim inmate was, as a matter of federal Bureau of Prisons policy, denied the right to engage in daily congregational prayer. He fully exhausted the grievance process to complain of this, had his grievances and appeals denied, but the prison then ceased to enforce the policy. Two years later, a new warden took over and again began to enforce the policy. The inmate sued under the Religious Freedom Restoration Act, alleging violation of his religious free exercise rights. The court dismissed the suit, holding that the inmate had to exhaust the new warden's renewed enforcement of the policy. The Second Circuit, citing numerous decisions in accord, held that where the inmate had already exhausted the exact same issue (policy of forbidding daily congregational prayer), he need not re-exhaust that issue before filing suit over an injury that ultimately results from it. The holding is narrow, limited to situations where the exact circumstance previously grieved has germinated into an injury that is the subject of a lawsuit, and the court makes clear that the grievance must identify the precise issue sued about with some precision.
Meanwhile, on May 11, 2012, the Fourth Circuit issued a decision in Couch v. Jabe, 11-6560, in a case where an inmate challenged a prison's regulation forbidding the growth of any beard as a violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), as his Muslim faith required the wearing of a beard. Under RLUIPA, a substantial burden on religious exercise can only be upheld if it is the the least restrictive alternative to achieve a compelling governmental interest. Prison officials justified their "no beards" policy by the need to easily identify inmates and to prevent the smuggling of contraband in beards - effectively, security-based rationales. Because wearing a beard would be punished by the removal of privileges and programs within the prison system, religious exercise was substantially burdened. The court gave prison officials a pass on "compelling governmental interest," finding that an apparently factually thin affidavit asserting that beards could enable escaped inmates to avoid recognition (by shaving and changing their appearance) or that contraband could be smuggled in beards (of whatever length?) so that the prohibition served the compelling interest in prison security. The court did not require very much of a showing here, apparently deferring to the experience and expertise of the prison's affiant.
But the Court found the "least restrictive means" requirement not met. Prison officials made no showing that a religious exemption allowing growth of a one-eighth-inch long beard would not equally serve the articulated security interest. Nothing could be smuggled in such a beard and it would make little change in the inmate's appearance. Here, the Fourth Circuit, like the Second and Sixth, fairly applied the rules of evidence to reject prison officials' attempt to introduce an attorney affirmation attesting to security threats occasioned by even a short beard. Nobody with any prison administration experience apparently submitted evidence of any such threat.
Ordinarily in the prison context, restrictions on First Amendment rights are reviewed under the Turner v. Safley, 482 U.S. 78 (1987), test of "reasonable relationship to legitimate penological objectives." This is much more like a rational basis test than strict scrutiny, and so often will result in upholding prison restraints on free speech that would not stand in other institutions. Thus, the importance of RLUIPA's statutory imposition of "strict scrutiny" review with respect to religious freedom in prisons is apparent. It is one of the few areas (prison rape is now another) in which Congress has actually stepped in to protect prisoners' rights, as opposed to the usual practice of stepping in to ensure that they can be denied with impunity.
Finally, the Seventh Circuit in Gomez v. Randle, 11-2962 (decision May 14, 2012), reinstated several inmate claims that a district court apparently overlooked. The inmate was shot by a shotgun wielded by an unidentified correction officer, and then denied medical attention by several correction officers, and allegedly transferred to a different facility in retaliation for grieving all of this. The lower court had appointed counsel for the inmate, but counsel concluded that there were no viable claims and moved to withdraw. The court, apparently following counsel's lead, held that no viable claim existed and dismissed the suit. The Seventh Circuit found most of the claims to have been prematurely dismissed. First, though plaintiff had never identified and named the officer who shot him, time still remained on the statute of limitations for that claim because the statute was tolled during the administrative exhaustion process. Thus, the claim should not have been dismissed as untimely. Second,
the district court did not even address the retaliation claim, which clearly alleged protected First Amendment activity (grieving) that officials punished with a transfer. Third, plaintiff did state a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment by alleging that he made various officials aware of his shotgun wound yet went four days without treatment. Significantly, the court explicitly rejected the notion that the delay in treatment could be actionable only if it exacerbated the injury, explaining:
"[E]ven though this delay did not exacerbate Gomez’s injury, he experienced prolonged, unnecessary pain as a result of a readily treatable condition." (Slip op. at 11.)