Risher v. Lappin
2011 U.S. App. LEXIS 8253
| 6th Cir. | 2011Background
- Risher, a federal prisoner with a cane, fell at a construction trench outside his housing unit, injuring his knee, shoulder, and back.
- He sought medical evaluation and treatment, including MRI and pain meds, which were denied at various points by Dr. Naimey and others at FCI-Memphis.
- Risher pursued the Bureau of Prisons Administrative Remedy Program through three tiers (BP-9, BP-10) and claimed a lack of timely responses at each level.
- Regional Director failed to respond by the time limits, leading Risher to treat the lack of response as a denial and file to the Central Office via BP-11.
- The Central Office rejected his BP-11 due to missing copies of prior filings, and Risher did not resubmit; he filed a Bivens action in district court.
- The district court granted summary judgment for defendants on non-exhaustion grounds, which the Sixth Circuit later reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Risher exhaust under the PLRA given delays in Regional Director response? | Risher exhausted by treating no timely response as denial per 542.18 and appealing onward. | Risher failed to obtain and resubmit required Central Office documentation; thus non-exhaustion. | Yes; exhaustion sufficient under circumstances; denial treated due to no timely response. |
| May failure to timely receive a response constitute a denial sufficient for exhaustion? | Yes, under 542.18 absence of response counts as denial. | No, procedural rule enforcement requires actual receipt and resubmission if possible. | Yes; absence of timely response equates to denial and permits forwarding to Central Office. |
| Did the district court err in granting summary judgment based on non-exhaustion? | Risher followed Bureau procedure and exhausted under the circumstances. | Regularly, missing documents and potential alternative steps show non-exhaustion. | No; court reversed and remanded to address merits. |
Key Cases Cited
- Woodford v. Ngo, 548 U.S. 81 (Supreme Court, 2006) (proper exhaustion requires compliance with deadlines and rules)
- Boyd v. Corr. Corp. of Am., 380 F.3d 989 (6th Cir. 2004) (non-exhaustion is an affirmative defense; burden on the Bureau)
- Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002) (absence of timely response can count as denial for exhaustion)
- Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002) (timeliness and response requirements govern exhaustion)
- Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) (administrative remedies exhausted when agency fails to timely respond)
- Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999) (timely processing of grievances is required for exhaustion)