A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

grievance about retaliatory false discipline, and the defendants argued he should have
pursued a disciplinary appeal. 263 In some cases, prison personnel appear to have stretched
the rules to reject grievances that were related to disciplinary proceedings even though the
rules did not actually require such rejection. 264 In some prison systems, the rules do bar
grievances that have any relationship to a disciplinary incident. 265 The bottom line is that
you must read the rules very carefully to determine whether a particular issue (the actions of
the hearing officer, the bringing of charges or the evidence behind them, or the underlying
incident) calls for a grievance or a disciplinary appeal. In some cases both will be required if
you wish to raise multiple issues. 266 If the rules are not absolutely clear, it may be wise to file
both to protect yourself from an argument later that whatever you did was wrong. If prison
officials reject your use of a particular remedy, it is harder for them to argue later that you
should have used it.
A remedy may not be available because of circumstances peculiar to a particular case.
For example, a prisoner may be unable to file a grievance because of a medical condition. 267
however, does not deal with the situation addressed in Giano where the prisoner reasonably believes
the issue is not grievable.
263. Larkins v. Selsky, No. 04 Civ. 5900 (RMB) (DF), 2006 U.S. Dist. LEXIS 89057, at *24
(S.D.N.Y. Dec. 6, 2006) (unpublished) (stating that Giano “nearly mirrors this case”).
264 . Woods v. Lozer, No. 3:05-1080, 2007 WL 173704, at *3 (M.D. Tenn. Jan. 18, 2007)
(unpublished) (holding a prisoner exhausted when he appealed a decision that his use of force claim
was not grievable because it was mistakenly said to seek review of disciplinary procedures and
punishments); Livingston v. Piskor, 215 F.R.D. 84, 86–87 (W.D.N.Y. 2003) (holding that evidence of
grievance personnel refusal to process grievances where a disciplinary report had been filed covering
the same events created a factual issue preventing summary judgment).
The above cited cases involved misapplication of prison policy or staff’s making up an unauthorized
rule. In some prison systems, it is in fact the rule that any overlap with a disciplinary proceeding
makes the matter non-grievable or not immediately grievable.
265. See Vasquez v. Hilbert, No. 07-cv-00723-bbc, 2008 U.S. Dist. LEXIS 42011, at *9 (W.D. Wis.
May 28, 2008) (unpublished) (citing rule that a grievance raising “any issue related to the conduct
report” must await completion of the disciplinary process); James v. McCall, No. 9:06-1897-DCN-GCK,
2007 WL 752161, at *5 (D.S.C. Mar. 8, 2007) (unpublished) (citing rule stating “[w]hen an inmate is
involved in an incident that results in a disciplinary [proceeding], that issue/complaint becomes nongrievable”);
Lindell v. O’Donnell, No. 05-C-04-C, 2005 U.S. Dist. LEXIS 24767, at *76, 86 (W.D. Wis.
Oct. 21, 2005) (unpublished) (rejecting argument that plaintiff should have filed an inmate complaint
where the relevant policy forbade using inmate complaints for “any issue related to a conduct report”).
266. For example, in some prison systems, appealing a disciplinary conviction and challenging
the rule under which you were convicted require, respectively, a disciplinary appeal and a separate
grievance. See Singh v. Goord, 520 F. Supp. 2d 487, 497–98 (S.D.N.Y. 2007) (holding successful
disciplinary appeal challenging discipline for refusing work contrary to religious beliefs did not exhaust
plaintiff’s challenge to the underlying disciplinary rule; a separate grievance was required); Hattie v.
Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998) (holding that to challenge a prison rule, the prisoner
must both appeal from the disciplinary conviction for breaking it and also grieve the rule’s validity),
judgment amended, 16 F. Supp. 2d 834 (N.D. Ohio 1998) (ruling in favor of prison official’s claim to
dismiss prisoner’s action).
267. Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (noting that “one’s personal ability to
access the grievance system could render the system unavailable”); Macahilas v. Taylor, No. No. CIV S-
06-0502 GEB KJM P, 2008 U.S. Dist. LEXIS 5652, at *11 (E.D. Cal. Jan. 25, 2008) (unpublished)
(denying summary judgment to defendants where prisoner said “his mind was too clouded” by a
physical illness to grieve timely), report and recommendation adopted, No. 2:06-cv-0502-GEB-KJM-P,
2008 U.S. Dist. LEXIS 13314 (E.D. Cal. Feb. 22, 2008) (unpublished); Ricketts v. AW of Unicor, No.
1:CV-07-0049, 2008 U.S. Dist. LEXIS 37058, at *5–6 (M.D. Pa. May 6, 2008) (unpublished) (denying
dismissal for non-exhaustion where prisoner said he was in the hospital paralyzed throughout the
period for filing a grievance); Holcomb v. Dir. of Corr., No. C-03-02765 RMW, 2006 U.S. Dist. LEXIS
85683, at *19 (N.D. Cal. Nov. 14, 2006) (unpublished) (holding a prisoner rendered quadriplegic and
never returned to prison after his injury did not have an opportunity to file in a timely way). But see