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Springer v. Rekoff

United States District Court, S.D. Texas, Galveston Division

May 12, 2017

UNKNOWN REKOFF, et al., Defendants.



         The plaintiff, Kyle Springer (TDCJ #01955605), is an inmate in the custody of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). He has filed this action under 42 U.S.C. § 1983, alleging that he was subjected to excessive force while held in the Galveston County Jail ("the Jail"). Springer alleges that two jail guards, Defendants Cory Rekoff and Dante Austin, threw him to the ground and repeatedly kicked and punched him after Springer had a minor verbal disagreement with Austin; Springer was shackled and handcuffed at the time (Dkt. 17 at pp. 3-4). Springer also argues that Defendant Galveston County ("the County") is liable because Rekoff and Austin were acting pursuant to an official policy or custom of the County (Dkt. 17 at pp. 6-7, 13; Dkt. 62 at pp. 16-17).

         The defendants contend that Springer failed to exhaust all available administrative remedies because he "failed to appeal his grievance regarding the incident made the basis of this suit" (Dkt. 58 at p. 11). Springer argues that the administrative appellate remedy was unavailable under governing Supreme Court and Fifth Circuit precedent, and therefore did not need to be exhausted, because "there is no coherent or consistent process involving meaningful review for handling complaints that involve serious misconduct by guards" at the Jail (Dkt. 62 at pp. 13-14; Dkt. 71 at p. 1). The Court denied the defendants' motion for summary judgment on their failure-to-exhaust defense and is now sitting as factfinder with regard to that defense (Dkt. 65). See Dillon v. Rogers, 596 F.3d 260, 272-73 (5th Cir. 2010). The parties, at the Court's request, have submitted additional briefing and evidence (Dkt. 68 and Dkt. 71).

         As explained below, the Court concludes that the defendants have not met their burden to show that Springer "had a fair, reasonable opportunity to apprise himself of the procedures" for appealing denied civil rights grievances at the Jail. Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015); cf Id. (holding that an inmate had a fair, reasonable opportunity to apprise himself of procedures when "the jail's grievance procedures [were] published in an inmate handbook . . . and explained on jail television" and "[no] circumstances precluded [the inmate] from accessing either source"). Consequently, the Defendants have not met their burden to show that those appellate procedures were "available" for purposes of the Prison Litigation Reform Act ("PLRA"). Indeed, on this record, even the Court could not say exactly what those procedures are, and it has the benefit of hundreds of pages of summary judgment evidence and briefing. And, for some reason, the handbook provided to inmates at the Jail does not even mention an appeals process for civil rights grievances, even though it outlines the process Tor appealing two other types of administrative rulings. A very recent and unanimous opinion by the Supreme Court instructs that, under such circumstances, an administrative remedy is unavailable. Ross v. Blake, 136 S.Ct. 1850, 1858-60 (2016). As the Seventh Circuit has aptly phrased it, "[p]risoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about." King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015). This case will proceed.


         The PLRA requires that an inmate exhaust all available administrative remedies before he may maintain a lawsuit in federal court. See 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all inmate suits about prison life, including lawsuits alleging excessive force. Porter v. Nussle, 534 U.S. 516, 532 (2002). "Exhaustion is defined by the prison's grievance procedures, and courts neither may add to nor subtract from them." Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015). Because exhaustion of remedies is an affirmative defense, it is the defendant's burden to establish that there were available procedures that the inmate did not exhaust, and what those procedures were. Id. Whether a prisoner has exhausted administrative remedies is a mixed question of law and fact. Dillon, 596 F.3d at 266. "Similarly, while it is a question of law whether administrative remedies qualify as being 'available' under 42 U.S.C. § 1997e(a), availability may sometimes turn on questions of fact." Id.

         The Supreme Court's recent Ross opinion sets out "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief and hence unavailable: (1) "when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates [;]" (2) when "some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it" because "no ordinary prisoner can make sense of what it demands[;]" and (3) "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross, 136 S.Ct. at 1858-60. If a remedy is unavailable, it need not be exhausted. Id.


         The Jail's policy manual describes a two-step grievance process (Dkt. 58-5 at pp. 131-33). The first step is a review by a three-member Grievance Board of the grievance; the second is an "appeal to the Sheriff or his designee" in the event the grievance is unsuccessful (Dkt. 58-5 at pp. 131-33). No deadline is given in the policy manual for inmates to initiate either step, although the Jail's step one grievance forms instruct inmates to "[p]ut this completed form in an envelope addressed to the Grievance Board the same day or the next normal workday" (Dkt. 58-4 at p. 33).[1] There is no step two grievance form in the record, and it does not appear that such a form exists. Jail officials have 15 days to respond at both steps (Dkt. 58-4 at p. 33; Dkt. 58-5 at ¶ 133).

         In moving for summary judgment on their failure-to-exhaust defense, the defendants contended that the "clear" language of the policy manual establishing a right to appeal conclusively proved their defense (Dkt. 58 at p. 11). The policy manual's language does indeed provide a right to appeal, if one governed by rather vague procedural provisions; but the manual is provided to Jail employees, not inmates, and there is no evidence that Springer ever saw it. Moreover, Springer was, Like all other Jail inmates, provided with an "Inmate Handbook" that says not one word about an appeals process for civil rights grievances:[2]


You are allowed to file a grievance at any time you are subjected to a prohibited act by a staff member, constitutional rights violation, criminal act or denied privileges (without just cause) specified in this handbook.
To file a grievance, you must send a written statement directly to the grievance review board. The statement must contain the time, date, names of deputies and/or staff members involved and all pertinent details of the incident and names of any witnesses. All grievances will be investigated, appropriate corrective action taken, and a report issued to the inmate. Do not file a grievance on behalf of another inmate. Dkt. 58-4 at p. 53.

         To further confuse the issue, the inmate handbook thoroughly outlines the steps by which inmates can appeal two other types of administrative rulings: (1) a finding by a disciplinary committee that the inmate is guilty of violating jail rules (Dkt. 58-4 at pp. 51-53);[3] and (2) the rejection of a grievance alleging discrimination in violation of the Americans with Disabilities Act ("ADA") (Dkt. 58-4 at p. 53).[4] The sections of the handbook that spell out how to appeal disciplinary proceedings and ADA grievances bookend the section discussing civil rights grievances, which does not so much as say the word "appeal." The ...

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