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

etaliation for First Amendment-protected activity: “[whether] ‘a similarly situated
individual of ordinary firmness’ [would] have deemed [the remedy] available.” 279
Remedies may be made unavailable by other forms of obstruction by prison staff,
purposeful 280 or otherwise. 281 For example, a rule denying postage to indigents to mail a
279. Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004) (stating that it is possible for the
threat of retaliation to make administrative remedies unavailable); accord Turner v. Burnside, 541
F.3d 1077, 1084 (11th Cir. 2008) (“Remedies that rational inmates cannot be expected to use are not
capable of accomplishing their purposes, and so are not available”; following Hemphill and Kaba); Kaba
v. Stepp, 458 F.3d 678, 684–85 (7th Cir. 2006) (adopting Hemphill analysis and stating that if
administrative remedies are not "available" to a prisoner, then the prisoner cannot be required to
exhaust); Baker v. Schriro, No. CV 07-0353-PHX-SMM (JRI), 2008 U.S. Dist. LEXIS 19892, at *19–23
(D.Ariz., Mar. 4, 2008) (unpublished) (holding plaintiffs’ allegations of threats by staff and of practice of
requiring grievances to be screened by gang members satisfied “ordinary firmness” standard), review
denied, No. CV 07-0353-PHX-SMM (JRI), 2008 U.S. Dist. LEXIS 40341 (D. Ariz., May 8, 2008);
Mitchell v. Adams, No. CIV S-06-2321 GEB GGH P, 2008 U.S. Dist. LEXIS 8014, at *26–45 (E.D. Cal.
Feb. 1, 2008) (unpublished) (citing course of threatening conduct affecting multiple grievances), report
and recommendation adopted, No. 2:06-cv-2321-GEB-GGH-P, 2008 U.S. Dist. LEXIS 16202 (E.D. Cal.
Mar. 3, 2008); Harcum v. Shaffer, Civil Action No. 06-5326, 2007 U.S. Dist. LEXIS 86089, at *14–15
(E.D. Pa. Nov. 21, 2007) (unpublished) (holding that threats causing the prisoner to withdraw his
grievance “removed the availability of further administrative remedies”); Stanley v. Rich, No. CV 605-
075, 2006 U.S. Dist. LEXIS 35916, at *5 (S.D. Ga. June 1, 2006) (unpublished) (stating “threats of
violent reprisal may, in some circumstances, render administrative remedies ‘unavailable’ or otherwise
justify a prisoner’s failure to pursue them” (citing Hemphill); Larry v. Byno, No. 9:01-cv-1574, 2006
U.S. Dist. LEXIS 28920, at *9–12 (N.D.N.Y. May 11, 2006) (unpublished) (applying Hemphill and
stating that the present circumstances are similar to the special circumstances in Hemphill).
Hemphill noted that threats or intimidation “may well deter a prisoner of ‘ordinary firmness’ from
filing an internal grievance, but not from appealing directly to individuals in positions of greater
authority within the prison system, or to external structures of authority such as state or federal
courts.” Accord Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008). Thus, the fact that a
prisoner has, for example, written a letter of complaint to the Superintendent (as in Hemphill) does not
establish that he was not deterred from filing an ordinary grievance. A few lower courts have rejected
the notion that threats or fear can excuse non-exhaustion. See, e.g., Ware v. Tappin, No. 06-0869, 2006
U.S. Dist. LEXIS 91685, at *15–17 (W.D. La. Nov. 3, 2006) (unpublished) (holding fear of retaliation is
“no valid defense for failing to exhaust”); Broom v. Engler, No. 4:05-cv-123, 2005 U.S. Dist. LEXIS
36824, at *8–9 (W.D. Mich. Dec. 16, 2005) (unpublished) (stating “[t]he PLRA does not excuse
exhaustion for a prisoner ... who is afraid to complain”).
280. Dole v. Chandler, 438 F.3d 804, 809, 812 (7th Cir. 2006) (“Prison officials may not take
unfair advantage of the exhaustion requirement, ... and a remedy becomes ‘unavailable’ if prison
employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to
prevent a prisoner from exhausting”; prisoner whose properly filed grievance simply vanished, and who
received no instructions what to do about it, did “all that was reasonable to exhaust”); Miller v. Norris,
247 F.3d 736, 740 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a prisoner
from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a) ...”); Ponton v. Bailey, No. 02-138J, 2006
U.S. Dist. LEXIS 87561, at *10 (W.D. Pa. Dec. 4, 2006) (unpublished) (same as Dole v. Chandler;
finding the prisoner sufficiently pursued his administrative remedie, as the prisoner received no
response to his initial grievance ); Alwood v. Randt, No. 3:05-CV-619 RM, 2006 U.S. Dist. LEXIS 65115,
at *6–10 (N.D. Ind. Sept. 12, 2006) (unpublished) (denying summary judgment where prisoner’s sworn
statement said a prison official came to his cell and “ripped up his grievance, thereby refusing to allow
it to be processed”); Labounty v. Johnson, 253 F. Supp. 2d 496, 502–04 (W.D.N.Y. 2003) (holding
grievance supervisor’s alleged failure to follow procedures, preventing plaintiff’s appeal, barred
summary judgment for non-exhaustion); Johnson v. True, 125 F. Supp. 2d 186, 188–89 (W.D. Va. 2000)
(holding allegation that efforts to exhaust were frustrated by officials raised an issue of material fact
whether plaintiff exhausted “available” remedies), appeal dismissed, 32 F. App’x 692 (4th Cir. 2002);
Bullock v. Horn, No. 3:CV-99-1402, 2000 U.S. Dist. LEXIS 20212, at *6–7 (M.D. Pa. Oct. 31, 2000)
(unpublished) (holding allegation that prison officials returned grievances unprocessed, without
grievance numbers, making appeal impossible was sufficient to defeat a motion to dismiss).