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

“modified grievance access,” which requires prior permission to file a grievance, makes the
remedy unavailable if permission is not granted. 286 Remedies may also be made available by
actions by supervisors or grievance staff with respect to particular grievances or grievants, 287
purposeful misconduct, 288 neglect or accident, 289 or events that are merely unexplained. 290
(D. Idaho Mar. 16, 2006) (unpublished) (holding that a prisoner whose grievance was returned because
he was only allowed to have three pending at one time had exhausted, since he had done what he could
do to exhaust). But see Moore v. Bennette, 517 F.3d 717, 729–30 (4th Cir. 2008) (where rules allowed
only one grievance at a time except for emergencies, and plaintiff labelled his second grievance an
emergency but it did not meet the criteria in the grievance rules for an emergency and was dismissed,
plaintiff’s failure to resubmit it when his first grievance was decided was a failure to exhaust).
286. Dawson v. Norwood, No. 1:06-cv-914, 2007 WL 3302102, at *9 (W.D. Mich. Nov. 6, 2007)
(unpublished) (“If a prisoner has been placed on modified access to the grievance procedure and
attempts to file a grievance which is deemed to be non-meritorious, he has exhausted his ‘available’
administrative remedies as required by § 1997e(a).”) (citation omitted); Hahn v. Tarnow, No. 5:06CV74,
2006 WL 1705128, at *2 n.4 (W.D. Mich. June 16, 2006) (unpublished) (holding that a plaintiff on
“modified grievance restriction” who was denied grievance forms did not have an available remedy). A
rule requiring prisoners on modified grievance status to submit a notarized affidavit with a grievance
may make the remedy unavailable if the prisoner cannot get access to a notary. Thomas v. Guffy, No.
CIV-07-823-W, 2008 U.S. Dist. LEXIS 56901, at *7 (W.D. Okla. July 25, 2008) (unpublished).
287. Howard v. Hill, 156 F. App’x 886, 886 (9th Cir. Nov. 21, 2005) (unpublished) (holding that a
prisoner who had been told he would not receive responses to his grievances had no remedy available);
Woods v. Carey, No. CIV S-04-1225 LKK GGH P, 2008 WL 447553 (E.D. Cal. Feb 15, 2008)
(unpublished) (where grievance official directed plaintiff to the medical appeals analyst, but that
person said plaintiff’s grievance must first be processed by the grievance office, plaintiff had exhausted;
court refers to “runaround”); Bradley v. McVay, No. 1:04-cv-06128-AWI DLB PC, 2008 WL 495732, at
*3 (E.D. Cal. Feb. 21, 2008) (unpublished) (if prison officials required plaintiff to go to an interview
room for an investigation, and he could not do so without the cane he had been deprived of, the
grievance process would not be available to him), report and recommendation adopted, No. 1:04-cv-
6128-AWI-DLB-P, 2008 WL 669858 (E.D. Cal. Mar. 7, 2008) (unpublished); Baylis v. Taylor, 475 F.
Supp. 2d 484, 488 (D. Del. 2007) (holding officials’ withdrawal of plaintiff’s grievances because of
litigation meant that he had exhausted, since no further remedies were available). But see Howard v.
Smith, No. CV606-062, 2008 WL 816685, (S.D. Ga. Feb. 28, 2008) (unpublished), report and
recommendation rejected in pertinent part, No. 606CV062, 2008 WL 816684 (S.D. Ga. Mar 26, 2008)
(unpublished), on reconsideration on other grounds, No. 6:06CV062, 2008 WL 2316718 (S.D. Ga. June 4,
2008) (unpublished). In Howard, the prison system introduced a rule newly requiring an additional
“informal” step in the grievance process, and plaintiff’s pending grievances were all canceled; the
magistrate judge said he was deemed to have exhausted his claims, but the district judge rejected that
conclusion without explanation.
288. Allen v. City of Saint Louis, No. 4:06-CV-00810 SNL, 2008 WL 695393, at *4–5 (E.D. Mo.
Mar. 12, 2008) (unpublished) (finding remedies unavailable where plaintiff’s requests for forms and
information about how to file were ignored, denied, or “pacified with promises” of an investigation, and
he was improperly segregated to prevent access to the grievance procedure and third parties); Miller v.
Berkebile, No. 3:07-CV-0712-B ECF, 2008 WL 635552, at *7–9 (N.D. Tex. Mar. 10, 2008) (unpublished)
(where official refused to process first-stage grievances contrary to policy, remedy was unavailable;
prisoners need not take steps not prescribed in the policy to get around him; PLRA law applied in §
2241 case); Smith v. Westchester County Dep’t of Corr., No. 07 Civ. 1803(SAS), 2008 U.S. Dist. LEXIS
11049, at *10 (S.D.N.Y. Feb. 7, 2008) (unpublished) (remedies were unavailable if supervisors refused
to accept plaintiff’s grievance); Collins v. Goord, 438 F. Supp. 2d 399, 415 (S.D.N.Y. 2006) (holding
allegations that facility personnel invented a screening procedure and did not allow him to file his
grievance raised a material issue under “an exception to the PLRA’s exhaustion requirement where
prison authorities actively obstruct an inmate’s ability to ‘properly’ file a prison grievance”); Carter v.
Newland, 441 F. Supp. 2d 208, 211 (D. Mass. 2006) (declining to dismiss for non-exhaustion in view of
allegations that a prison counselor tore up the plaintiff’s grievances).
289. Pavey v. Conley, 170 F. App’x 4, 9 (7th Cir. Mar. 3, 2006) (unpublished) (holding that
isolating and failing to assist a prisoner who couldn’t write could render the remedy unavailable);
Monroe v. Beard, No. 05-04937, 2007 WL 2359833, at *12–13 (E.D. Pa. Aug. 16, 2007) (unpublished)
(holding the grievance process unavailable where prisoners were told to object to certain searches