Opinion
Civil Action Number 98-11277-RGS, Appeals Court No. 99-1838
July 22, 2002
SPECIAL FINDINGS AFTER REMAND FROM THE COURT OF APPEALS
This case is before the district court on a remand from the Court of Appeals. The underlying complaint, brought by seven inmates at the Massachusetts Correctional Institution-Cedar Junction State Prison (MCI-Cedar Junction) in Walpole, Massachusetts, alleges an excessive use of force and inhumane treatment by prison guards during and following a cellblock disturbance on April 3, 1995. The complaint was formally docketed (after two failed attempts) on July 1, 1998. On January 15, 1999, the district court ordered plaintiffs to show cause why the case should not be dismissed on statute of limitations grounds. On May 7, 1999, after receiving some, but apparently not all of the plaintiffs' responses, the district court dismissed the case, holding that almost all of plaintiffs' claims were time-barred, and that the one timely claim, the alleged deprivation of yard exercise, did not rise to a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. Plaintiff Casanova duly appealed the dismissal, in which he was eventually joined by the remaining plaintiffs.
At the argument of the appeal, the defendant prison officials contended that, notwithstanding the statute of limitations, plaintiffs' suit was precluded by a failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e(a) (prisoners must exhaust "such administrative remedies as are available" before bringing an action involving prison conditions). The Court of Appeals, in a decision issued May 6, 2002, held that, while the exhaustion requirement does not deprive a district court of jurisdiction to consider a prisoner's case, it is a condition precedent of federal relief. Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002). Observing that the record "is devoid of any evidence whatsoever on the issue of exhaustion," the Court concluded that
This argument was not raised in the district court.
[w]e believe that it would not be prudent to proceed further until the matter of exhaustion has been resolved. Therefore, we remand this case to the district court for development of the record with regard to the issue of exhaustion of administrative remedies. After eliciting from the parties whatever information it deems necessary to making this determination, the district court shall transmit its written findings to the Clerk of this Court no later than sixty days from the date of this opinion. Although we remand for this limited purpose, we retain jurisdiction over this appeal so that we may consider, if required, the remaining arguments raised by the parties in this appeal.
At this court's request, the deadline was extended by twenty days.
On May 7, 2002, this court directed the parties to file any materials they wished to be considered on remand. Defendants did so on May 21, 2002, followed by the plaintiffs on June 10, 2002. These consist, in the defendants' case, of the affidavits of Mark Powers, the Deputy Superintendent at MCI-Cedar Junction and Cheryl A. Miller, an MCI-Cedar Junction paralegal, together with supporting documents. Plaintiffs filed a responsive memorandum of law together with affidavits from the plaintiffs. A hearing was held on July 3, 2002. Following the hearing, the parties were given the opportunity to submit additional materials on the issue of plaintiffs' obligation to exhaust their administrative remedies under pre-PLRA law. The court received the last of these submissions on July 16, 2002.
As the court reads the directive of the Court of Appeals, its task is limited to the making of such factual findings as are necessary to supplement the record on the issue of exhaustion, while the Court of Appeals has retained jurisdiction over any related rulings of law. Consequently, I have limited myself to identifying issues of law that may be relevant to the ultimate disposition of the appeal, but without making formal rulings. I have had to make a necessary exception with regard to the issue of the allocation of the burden of proof. While the First Circuit has not spoken on this issue, a lopsided majority of the Circuit Courts have concluded that the PLRA's exhaustion requirement is an affirmative defense, and that as a result, a defendant bears the burden of establishing non-exhaustion. See Ray v. Kertes, 285 F.3d 287, 293-295 (3d Cir. 2002) (aligning the Third, Second, Fifth (in dicta), Seventh, D.C., and possibly the Eighth Circuit, against the Sixth Circuit on this issue). See also Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999) (Easterbrook, J.) (drawing a convincing analogy between the exhaustion requirement and a statute of limitations defense). I have thus proceeded on what I believe is the reasonable assumption that the First Circuit will adopt the majority rule.
FINDINGS
The court makes the following findings.
1. On October 3, 1991, Michael Maloney, then the Acting Commissioner of the Massachusetts Department of Correction (DOC), signed into effect an Inmate Grievances Policy (Policy) to "provide all inmates access to an administrative remedy for redress of legitimate complaints." 103 DOC § 491.01. The Policy was issued pursuant to M.G.L. c. 124, § 1(c), (i) and (q).
While § 491.02 of the Policy references M.G.L. c. 258 (the Massachusetts Tort Claims Act), it is evident from the subsections cited — (c), (i) and (q) — that the reference is a typographical error and that the intended citation was to M.G.L. c. 124. As appearing in section one of Chapter 124, these subsections refer to the authority of the Commissioner of Correction to promulgate standards, rules, and regulations for the state prison system, as well as to investigate inmate grievances and complaints of staff misconduct. The Policy was reissued on January 5, 2001, pursuant to M.G.L. c. 127, § 38E, with changes that are not relevant to this case. The Policy is codified at 103 CMR 491.00 et seq.
2. Subsequent to the adoption of the Policy, a brief description of its procedures and purposes was incorporated into the MCI-Cedar Junction Inmate Orientation Handbook. The Handbook advised inmates that the full text of the policy could be consulted in the prison library. All MCI-Cedar Junction inmates were required to attend a one day inmate orientation program, which included a review of the Handbook and an oral presentation on the Policy. At the conclusion of the orientation program, inmates signed a form, witnessed by a staff member, acknowledging their attendance and review of the Handbook. The DOC has been able to locate and produce copies of the attendance forms signed by plaintiffs Casanova, Bush, Pridgett, and Hicks.
3. The Policy defines a grievance as "a written complaint by an inmate concerning an incident, a condition of confinement, or the application of any Department of Correction [or] institutional policy, rule or regulation for which redress is sought." § 491.06(4). The Policy cautions that it is not intended to function as an adjudicatory process, but is meant to facilitate internal "problem solving." § 491.07. Inmates are consequently encouraged to attempt to resolve complaints informally before invoking the grievance procedure. The Policy excepts classification and disciplinary decisions and medical decisions from the universe of complaints subject to grievance. Id. § 491.07.
Citations are to the Policy as it appeared in 1995 and 1996. I will, however, generally refer to the Policy as it may or may not have applied to plaintiffs in the present tense.
4. Inmates must file a formal grievance within ten working days of the "incident of complaint." § 491.09(1). The Inmate Grievance Coordinator (IGC), may, however, extend the filing period for an additional thirty working days, "if it is determined that it was not feasible for the inmate to file" within the prescribed period. Id. The IGC is required to investigate the complaint and make a determination resolving or denying the complaint within ten days of its filing. § 491.10(6). The IGC's decision must be delivered to the inmate in writing. § 491.10(7). An inmate dissatisfied with the IGC's resolution of the grievance may appeal within ten working days of the receipt of the decision to the Superintendent. § 491.11(1). The Superintendent in turn must respond to the appeal in writing within thirty working days. § 491.11(3). The time periods for filing a grievance or appeal or a response to a grievance "may be extended for a like period if the reviewer determines that the initial period is insufficient to make an appropriate decision or if the inmate presents a legitimate reason for requesting an extension." § 491.15. The failure of an inmate to comply with the time restrictions may be waived by the reviewer; otherwise an untimely filing terminates the grievance. § 491.16. The policy permits the award of money damages. § 491.12.
5. The IGC is required to maintain a record of all inmate grievances and appeals. § 491.09(5); § 491.11(5). From April 3, 1995 (the date of the initial incident), through March 18, 1998 (the date plaintiffs first mailed their complaint), the IGC for MCI-Cedar Junction maintained the required record by means of a log recording the date of the grievance, the name of the grievant, the IGC's decision, the result of any appeal, and a shorthand comment on the disposition of the grievance. The log indicates that plaintiffs Hicks, Williams and Bush filed no grievances during the relevant period. The remaining plaintiffs, Casanova, Pridgett, Bon and Carter, filed a total of ten grievances. Casanova's grievances concerned an allegation of possession of contraband, the curtailment of mail privileges, and alleged damage to his personal property. Pridgett filed grievances regarding a missing newspaper and a purported overcharge on his inmate account. Bon complained about visiting privileges and lack of access to postage stamps. Carter complained about damage to his personal property. None of the plaintiffs filed grievances directly related to the April 3, 1995 incident.
In an affidavit, plaintiff Casanova states that he did file a grievance regarding personal property that had been allegedly damaged during the disturbance, but claims that he was told by an unidentified "caseworker" that his allegations of physical assault were not grievable. Plaintiffs Hicks and Bon state that they complained directly to the Superintendent about physical mistreatment but received no response.
6. While the abbreviated entries in the log are not terribly revealing, it is evident that, despite the broad subject matter wording of § 491.06(4), the DOC's practice during the relevant time period was to treat complaints of alleged civil rights abuses by staff as "not grievable." Plaintiffs' analysis of the log, confirmed by the court's own examination (and not disputed by the DOC), indicates that the three complaints recorded from April 3, 1995, to the end of 1995, that arguably involved allegations of physical mistreatment were not processed for that reason. Plaintiffs also accurately point out that seventy-nine of eighty-two complaints of staff harassment filed between January 1, 1996, and April 3, 1998, were also determined by the IGC to be not grievable, while the other three were not formally processed for indeterminate reasons.
DISCUSSION
Plaintiffs make two principal arguments: (1) that the PLRA's exhaustion requirement should not be given retroactive effect in the circumstances of their case; and (2) that any attempt to exhaust remedies on their part would have been futile because the Policy, as implemented by the DOC, did not provide a remedy for complaints of the "use of excessive force, intentional harassment, denial of access to medical care, intentional deprivation of essentials and denial of out-of-cell exercise for excessive periods of time."
The Circuit Courts that have considered the issue have almost uniformly held that inmates who file suit after the PLRA's effective date of April 26, 1996, involving events occurring prior to that date, are bound by the PLRA's exhaustion requirement, unless the "ability to exhaust for the event that gave rise to the action expired before enactment of [the PLRA]." Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). Plaintiffs maintain that under what the DOC itself describes as "strict procedures," an inmate had only ten days from the date of an incident to file a grievance. Assuming that a grievant was granted the thirty day extension permitted by § 491.09(1), and the additional thirty days permitted by § 491.15, the seventy days tacked onto the period in which the plaintiffs allege they incurred harm (April 3 to August of 1995), the grace period would still fall short of the April 26, 1996 date of the PLRA's taking effect.
While the Court of Appeals in this case stated that "[u]nless [plaintiffs] have have satisfied the PLRA's exhaustion requirement, their case must be dismissed," see Casanova, 289 F.3d at 147, that statement seems to have been based on an understanding that the state administrative grievance procedure remained open to plaintiffs after the date of the PLRA's enactment. Thus, I do not read the Court's opinion as foreclosing further consideration of the viability of plaintiff's complaint on a finding of a failure to invoke administrative remedies, as was the case here.
While plaintiffs uniformly complain that their lockdown in isolation in the aftermath of the April 3, 1995 incident made it impossible to comply with the ten day deadline, that circumstance would seem likely to have justified the granting of an extension.
To this seventy days, if one adds the ten days permitted by 491.11(1) for an appeal, and the maximum of sixty days permitted by 491.11(3) and § 491.15 for a response to the appeal, the cut-off date still falls short of April 26, 1996, even for the last occurring event cited in the complaint.
Plaintiffs' argument does overlook the apparently unlimited discretion granted by § 491.16 to a grievance "reviewer" to waive the time restrictions altogether. The case most helpful to the DOC in this regard is McCoy v. Gilbert, 270 F.3d 503 (7th Cir. 2002). In McCoy, a federal inmate at FCI-Greenville, Illinois, alleged that he had been beaten and left naked in a cell by prison guards who had retaliated against inmates whom they believed (mistakenly in McCoy's case) to have participated in a violent uprising. The beating occurred on October 26, 1995. On September 11, 1996, McCoy filed a § 1983 complaint alleging, inter alia, assault and the excessive use of force by prison guards. Like MCI-Cedar Junction, MCI-Greenville's grievance resolution policy had a strict requirement that an inmate present a formal, written complaint within twenty days of an incident unless he could provide a "valid reason" for failing to do so. Like the plaintiffs here, McCoy argued that the twenty day period had expired well before the PLRA's enactment date and that he was therefore not bound by its exhaustion requirement. The Seventh Circuit's response bears quoting at length.
The "reviewers," according to § 491.06(8), are the IGC and the Superintendent.
McCoy overlooks the crucial fact that, although an inmate must normally submit a formal grievance within twenty days of the complained-of events, there is a hardship exception for inmates who are able to demonstrate a valid reason for not meeting the deadline. The pertinent regulations read as follows:
Where the inmate demonstrates a valid reason for delay, an extension in filing time may be allowed. In general, valid reason for delay means a situation which prevented the inmate from submitting the request within the established time frame. Valid reasons for delay include the following: an extended period in transit during which the inmate was separated from documents needed to prepare the Request or Appeal; an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal; an unusually long period taken for informal resolution attempts; indication by an inmate, verified by staff, that a response *511 to the inmate's request for copies of dispositions requested under § 542.19 of this part was delayed.28 C.F.R. § 542.14(b).
McCoy speculates that Greenville would not have excused his failure to file before November 15, 1995. However, the record is devoid of any evidence to substantiate McCoy's assertion, and we cannot imagine why the institution would have construed the regulations in this fashion. The regulations plainly grant Greenville the discretion to excuse untimely grievances if serious aggravating factors or forces substantially influence a reasonable prisoner's ability or incentive to comply. On the one hand, the prisoner's grievance will be permanently waived, and the exception will not be available in the ordinary case of strategic delay, negligence, ignorance or mistake. But on the other hand, in this case, the amendment to § 1997e(a) was not reasonably foreseeable, and it made a world of difference with respect to McCoy's incentive to grieve. Our concern is not with whether Greenville would have accepted or rejected the post-PLRA grievance. Instead, we "merely need to ask whether the institution has an internal administrative grievance procedure by which prisoners can lodge complaints about prison conditions." Massey, 196 F.3d at 734. Greenville had the authority to take some sort of action with respect to a tardy complaint. Therefore, we hold that McCoy must initially have made an attempt to use Greenville's administrative process. See Perez, 182 F.3d at 536 ("[n]o one can know whether administrative requests will be futile; the only way to find out is to try.")
Id., at 510-511.
Plaintiffs' riposte is that the DOC has pointed to no instance in which it has ever invoked § 491.16 to permit the late filing of a grievance, nor did it offer to do so in this case to permit plaintiffs to exhaust whatever remedies were available to them under the Policy.
Plaintiffs' second argument is that the Policy offered no "available" remedy for their particular complaints. As a general proposition, the law does not require that an inmate exhaust remedies that do not exist. Booth v. Churner, 532 U.S. 731, 736 (2001) (exhaustion is not required "where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint"). At the same time, the law does not excuse the exhaustion requirement simply because an inmate is dissatisfied with the types of remedy that are available or because the grievance procedure does not cover every facet of his complaint. Porter v. Nussle, 122 S.Ct. 983, 988 (2002) ("All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.' . . . Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit."). See also Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002).
The DOC policy on its face does not exclude complaints of the type plaintiffs have brought here, nor does it limit the types of remedies that may be granted. The Policy defines a grievance in the broadest of possible terms as "a written complaint by an inmate concerning an incident, condition of confinement, or the application of any Department of Correction [or] institutional policy, rule or regulation for which redress is sought." § 491.06(4). The only complaints excluded from the Policy are those involving classification, disciplinary decisions, and medical treatment decisions, categories each of which has its own independent avenue of protest and appeal. See § 491.07.
Plaintiffs nonetheless point out that an examination of the Policy log recording inmate grievances confirms that the DOC had a practice of refusing to process complaints involving the use of force by prison staff by almost uniformly labeling them "not grievable." Other than citing the broad language of § 491.06(4), the DOC has provided nothing of a substantive nature to dispute the plaintiffs' assertion. The most that the DOC might be entitled to on this ground is the dismissal of plaintiffs' allegations of damage to personal property, claims that were covered by the Policy — but not dismissal of those that in practice were not. Cf. Lavista v. Beeler, 195 F.3d 254, 258 (6th Cir. 1999) (federal prisoner excused from exhausting a claim that was affirmatively barred by federal grievance regulations).
A final argument raised by the DOC at the remand hearing should also be noted. DOC's counsel suggested that, even if plaintiffs do not fall under the PLRA exhaustion requirement, they were nonetheless bound to the exhaustion requirement by pre-PLRA law. The DOC does not contend, nor could it, that pre-PLRA Massachusetts law imposed a duty of exhaustion on state prisoners. Such a duty did not exist under state law until the enactment in 1999 of M.G.L. c. 127, § 38F, and the formal codification of the Policy on January 5, 2001. While it is true that such a duty has been imposed by federal law since 1980, the pre-PLRA regime was so narrow as to have had hardly any discernible impact on prisoner litigation. See Porter, 122 S.Ct. at 988 n. 4 ("For litigation within § 1997e(a)'s compass, Congress has replaced the `general rule of non-exhaustion" with a general rule of exhaustion."). Moreover, the pre-PLRA exhaustion requirement could be enforced by a federal court only if the Attorney General certified, or the court itself determined, that a State's administrative grievance procedure complied with the minimum standards of 42 U.S.C. § 1997e(b)(2). These required inmate and employee participation in the formulation and operation of the procedure, written explanations of the disposition of grievances within specified time limits, priority processing of emergency grievances, safeguards against reprisals, and a system of independent review. Even assuming certification or substantial compliance with the standards, a court was not permitted to dismiss an inmate complaint, but merely stay its prosecution for 180 days to permit the inmate to avail himself of whatever administrative remedies were available. 42 U.S.C. § 1997e(a)(1).
The DOC has made no argument, nor does one appear in the post-hearing materials that the court requested, that the Policy, as it existed in 1995 and 1996, met the statutory standards for certification. Nor has the DOC pointed the court to any case involving a civil rights complaint by a Massachusetts inmate in which the pre-PLRA exhaustion requirement was enforced.
ORDER
The Clerk is directed to transmit forthwith the above findings to the Clerk of the Court of Appeals.
SO ORDERED.