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

not supported by facts, if there is no evidence that the prisoner tried to get the forms, 293 or if
the prisoner filed other grievances around the same time. 294
Remedies are unavailable if officials failed to tell prisoners that certain remedies 295 or
rules, 296 existed. If a prisoner is misinformed about the availability or operation of a remedy,
that may make them unavailable as well. 297 Some courts have not dismissed for non-
293. See, e.g., Lomas v. U.S., No. CIV-06-869-C, 2008 WL 819459, at *3 (W.D. Okla. Mar. 25,
2008) (unpublished) (citing plaintiff’s failure to state “to whom or when the requests were made or to
explain his access to certain forms and not others”); Dye v. Bartow, No. 06-C-0634, 2007 WL 3306771,
at *6 (E.D. Wis. Nov. 6, 2007) (unpublished) (citing plaintiff’s failure to identify the forms he requested
and the date of request, to supply a copy of his request, or to submit evidence detailing officials’
response to his requests), aff’d, No. 07-3836, 2008 WL 2420991 (7th Cir. 2008) (unpublished); Beasley v.
Kontek, No. 3:05CV7262, 2007 WL 3306637, at *2 (N.D. Ohio Nov. 5, 2007) (unpublished) (“A prisoner
may not be excused from exhausting internal remedies if his failure resulted from a form not being
provided to him, unless he alleges that there was no other source for the form or that he can prove that
he made other attempts to ‘obtain a form or file a grievance.’”), quoting Jones v. Smith, 266 F.3d 399,
400 (6th Cir.2001).
294. See, e.g., Guel v. Larkin, No. 06-5091, 2008 WL 1994942, at *5–6 (W.D. Ark. May 6, 2008)
(unpublished).
295. Goebert v. Lee County, 510 F.3d 1312, 1322–23 (11th Cir. 2007) (holding that an appeal
procedure not described in the inmate handbook but only in the operating procedures the inmates did
not have access to, was not an available remedy); Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005)
(holding that defendants did not show remedies were available where there was no “clear route” for
challenging certain decisions); Sadler v. Rowland, No. 3:01CV1786(CFD)(WIG), 2004 WL 2061518, at
*7 (D. Conn. Sept. 13, 2004) (unpublished) (refusing to dismiss claim of Connecticut prisoner
transferred to Virginia who attempted to grieve in Virginia and was not told to file separate grievances
in Connecticut); Burgess v. Garvin, No. 01 Civ. 10994(GEL), 2004 WL 527053, at *5 (S.D.N.Y. Mar. 16,
2004) (unpublished) (holding that “procedural channels ... not made known to prisoners ... are not an
‘available’ remedy in any meaningful sense... . [Congress] cannot have meant that prisoners would be
expected to exhaust remedies of which they were kept entirely ignorant.”); Arnold v. Goetz, 245 F.
Supp. 2d 527, 537 (S.D.N.Y. Feb. 4, 2003) (holding defendants required to make a “reasonable, good
faith effort to make the grievance procedure available to inmates”); Alvarez v. United States, No. 98
Civ. 3179, 2000 WL 557328, at *2 (S.D.N.Y. May 8, 2000) (unpublished) (stating that a showing that
prisoner was not “meaningfully informed” about administrative remedies could establish that they
were not available), on reconsideration, No. 98 CIV. 3179(WK), 2000 WL 679009 (S.D.N.Y. May 24,
2000) (unpublished).
In Davis v. Milwaukee County, 225 F. Supp. 2d 967, 975–76 (E.D. Wis. 2002), the court held that
the plaintiff had been denied access to courts by defendants’ hindering his ability to exhaust by failing
to make available materials concerning the grievance procedure.
296. Jackson v. Ivens, 244 F. App’x 508, 514 (3d Cir. 2007) (unpublished) (“We will not condition
exhaustion on unwritten or ‘implied’ requirements.”), citing Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir.
2004); Sims v. Rewerts, No. 07-12646, 2008 WL 2224132, at *5–6 (E.D. Mich. May 29, 2008)
(unpublished) (declining to dismiss where plaintiff failed to comply with a time limit that had been
changed without notice); Cabrera v. LeVierge, No. 07-cv-40-SM, 2008 WL 215720, at *6 (D.N.H. Jan.
24, 2008) (unpublished) (“inmates cannot be expected to meet procedural requirements that are
undisclosed”); Lampkins v. Roberts, No. 1:06-cv-639-DFH-TAB, 2007 WL 924746, at *3 (S.D. Ind. Mar.
27, 2007) (unpublished) (refusing to dismiss for missing a five-day time deadline which was not made
known in the materials made available to prisoners).
297. Pavey v. Conley, 170 F. App’x 4, 8–9, 2006 WL 509447, at *4–5 (7th Cir. Mar. 3, 2006)
(unpublished) (stating that “inmates may rely on the assurances of prison officials when they are led to
believe that satisfactory steps have been taken to exhaust administrative remedies ... . [P]rison officials
will be bound by their oral representations to inmates concerning compliance with the grievance
process”; plaintiff, who could not write, could reasonably rely on assurances that his oral complaint
would be investigated); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002) (holding that if security
officials told the plaintiff to wait for completion of an investigation before grieving, and then never
informed him of its completion, the grievance system was unavailable to him); Miller v. Tanner, 196
F.3d 1190 (11th Cir. 1999) (holding that grievance decision that stated it was non-appealable need not
have been appealed); Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *5 (D. Vt. Aug. 12,