Question as to whether administrative remedies made available to inmate


Matthew Huskey alleged that on September 8, 2016, while seeking care at a medical clinic, officers forced his face into a wall, yelled that he had a knife, took his shoes and pants off, and took turns slapping him in the face and head while he was restrained.

According to Huskey, after the incident, Captain Mary Jones left him in flex cuffs for about an hour, refused to let him see a nurse, and then refused to transport him to the hospital after the doctor informed her that it was prison policy to do so. He further alleged than when he was taken to the hospital for an x-ray six days later, a doctor informed him that his arm was broken.

Huskey described his efforts to exhaust prison administrative remedies as follows. On September 12, 2016, he filed three grievances relating to the incident and requesting that the officers involved be punished. On September 23, 2016, the director of the Administrative Remedies Program (“ARP”) rejected each grievance by marking a box on the ARP-1 forms indicating that the “REQUESTED RELIEF IS BEYOND THE POWER OF THE ARP TO GRANT.”

Appellees provided records showing that Huskey also filed a letter, dated September 21, 2016, attempting to amend the grievance that alleged that the officers committed violence against him, but the director responded on September 27, 2016, explaining that he would not process the request because the grievance had already been rejected.

Huskey then filed three step two grievances, all dated October 6, 2016, requesting that his grievances be reinstated because the grievance procedure manual he reviewed did not list the ARP’s lack of power to grant requested relief as an appropriate reason for rejection. In response, the director sent him a letter dated October 20, 2016, explaining that “it is not necessary to submit an appeal to this office requesting for Administrative Remedy on a case which was originally already rejected for the reason listed on the ARP-1 form(s) provided to you. Please be advised that once your request for Administrative Remedy is rejected, you cannot proceed to the second step on that rejection.”

Huskey brought suit under 42 U.S.C. § 1983. Appellees filed a motion for summary judgment, arguing that Huskey’s claims should be dismissed for failure to exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). The magistrate judge granted the motion for summary judgment and dismissed the case for failure to exhaust administrative remedies. The district court entered judgment on April 4, 2019. The 5th reversed.


Huskey acknowledges that the PLRA prohibits an inmate from bringing suit until he exhausts the administrative remedies that are available. He argues, however, that he satisfied § 1997e(a) by exhausting the remedies available to him because he followed the grievance policy set forth in the 2015 Mississippi Department of Corrections (“MDOC”) Standard Operating Procedures (“2015 SOP”) and had no knowledge of or access to the revised handbook that listed the claims ARP director’s reason for rejection.

The Supreme Court  held in Ross that an inmate must exhaust available remedies, but need not exhaust unavailable ones. To determine what remedies are available and thus must be exhausted, we look to the applicable procedural rules defined by the prison grievance process itself. See Wilson. This circuit has taken a strict approach to § 1997e’s exhaustion requirement, under which prisoners must not just substantially comply with the prison’s grievance procedures, but instead must exhaust available remedies properly.

The Supreme Court has identified three circumstances under which an administrative remedy, although officially on the books, is not capable of use to obtain relief. These circumstances exist where (1) prison officials are unable or consistently unwilling to provide any relief to aggrieved inmates, (2) the administrative scheme is so opaque that it becomes, practically speaking, incapable of use by an ordinary prisoner, or (3) prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.

The second and third circumstances are implicated here. To be sure, courts may not deem grievance procedures unavailable merely because an inmate was ignorant of them, so long as the inmate had a fair, reasonable opportunity to apprise himself of the procedures. The facts of this case raise questions as to whether Huskey had such an opportunity.

Here, the 2015 SOP provided to Huskey and the 2016 online Inmate Handbook on which Appellees rely differ in significant ways. For instance, the 2016 online handbook explains that if a request is rejected for technical reasons or matters of form, the inmate shall have five days from the date of rejection to file his/her corrected grievance. The 2015 SOP does not contain this instruction.

Additionally, both the 2015 SOP and the 2016 online handbook state that if a grievance is rejected during screening, it must be for one of the following reasons. But the lists that follow are different. The 2016 online handbook provides five possible reasons, including that, the relief sought is beyond the power of MDOC to grant. Conversely, the 2015 SOP does not include inability to grant the relief requested—the basis for the rejection of Huskey’s grievances—in its exclusive list of ten reasons for rejecting a grievance during screening.

In rejecting Huskey’s Rule 59(e) motion, the magistrate judge determined that the discrepancies between the SOP and handbook did not render remedies unavailable because (1) as a matter of reason, if the relief he requested was beyond the power of the MDOC to grant, then it could not be obtained through the grievance process; and (2) Huskey was at least on inquiry notice that the MDOC was using a different policy than what was set forth in the 2015 SOP. However, based on the lack of record evidence that Huskey was aware of the 2016 online handbook or that he had access to the internet at all, there is a genuine dispute of material fact as to whether the step of filing a corrected grievance within five days was available to him.

This court has previously reversed a district court’s grant of summary judgment and held that there was a genuine dispute of material fact as to whether a remedy was available to an inmate where he was given documents that only partially explained the prison processes. See Brantner.

In Brantner, an inmate appealed a district court’s grant of summary judgment based on his failure to exhaust administrative remedies. The jail asserted that its grievance procedures were set out in three documents: the County Jail Rules, the Grievance Plan, and the Inmate Rules Handbook. It contended that Brantner was given the County Jail Rules and Inmate Rules Handbook when he was booked into jail. However, we determined that Brantner had presented evidence that he never received the Inmate Rules Handbook.

What is more, he received the County Jail Rules, which stated that grievance forms would be available upon request and that instructions would be provided, but he never received grievance forms despite repeated requests, nor did he receive further instruction. We reasoned that Brantner was thwarted from using prison processes because he was supplied with documents that only partially explained prison processes. Thus, we held that Brantner satisfied the unavailability exception and was excused from exhausting administrative remedies.

Similarly, here, Huskey asserts that he received the 2015 SOP, but not the 2016 online handbook. The 2015 SOP stated that the grievance procedures will be posted in writing in areas readily accessible to all offenders, so he had no reason to believe its exclusive list was incorrect, outdated, or that there were other applicable rules that could only be found online.

Moreover, Appellees do not dispute Huskey’s assertion that he did not have internet access and was thus not made aware of the revised handbook at the time that he filed his grievances. Instead, they contend that Huskey was clearly provided a copy of Chapter 8 of the inmate handbook and was informed he could ask his case manager for a copy of the handbook. To support this assertion, they cite the MDOC’s April 2019 response to Huskey’s request for legal assistance from the Inmate Legal Assistance Program (“ILAP”).

But because Huskey’s grievances were filed and rejected between September and October of 2016, the ILAP staff’s 2019 response does not demonstrate that Huskey knew of the 2016 online handbook at the time that he filed his grievances.

Huskey has presented evidence that he, like Brantner, was given documents that only partially explained prison processes. Viewed in the light most favorable to Huskey, this evidence satisfies the unavailability exception under Ross because the administrative scheme was so opaque that it became, practically speaking, incapable of use by an ordinary prisoner.

Accordingly, we hold that Appellees are not entitled to summary judgment because there is a genuine dispute of material fact as to whether administrative remedies were made available to Huskey.

The district court’s summary judgment is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.