Tuckel v. Grover
2011 U.S. App. LEXIS 22535
| 10th Cir. | 2011Background
- Tuckel, an inmate at AVCF, alleged retaliation for filing a prison grievance, resulting in a severe eye injury from inmate assault.
- District court granted summary judgment for defendants, holding PLRA exhaustion was required regardless of fear of retaliation.
- Plaintiff conceded he did not exhaust CDOC remedies; he argued retaliation rendered remedies unavailable.
- The court analyzed whether intimidation by prison officials can render administrative remedies unavailable under the PLRA.
- Panel held that threats/intimidation can make administrative remedies unavailable, thus excusing exhaustion in appropriate cases.
- Case remanded for further proceedings to develop whether Tuckel’s fear was subjectively deterred and objectively reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PLRA exhaustion can be excused when retaliation makes remedies unavailable | Tuckel argues retaliation rendered remedies unavailable. | Exhaustion required regardless of fear of retaliation. | Remanded; exhaustion may be unavailable due to intimidation. |
| What standard governs whether remedies are 'available' under the PLRA when retaliation is alleged | Remedies should be unavailable if retaliation exists. | Remedies remain available; exhaustion required. | The PLRA allows unavailable remedies when intimidation interferes with access. |
| What showing is needed to prove remedies were unavailable due to intimidation | Two-prong test: subjective deterrence plus objective foreseeability. | Plaintiff must show failure to exhaust was not his fault. | Adopts Turner two-prong approach: actual deterrence and a reasonable-person standard. |
| Relation to emergency grievance procedures and retaliation | Emergency procedures could bypass retaliation concerns. | Emergency procedures relieve no fear of retaliation. | Emergency procedures do not cure fear; not controlling for availability. |
Key Cases Cited
- Woodford v. Ngo, 548 U.S. 81 (U.S. Supreme Court 2006) (exhaustion mandatory for available remedies)
- Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008) (two-prong test combining subjective deterrence and objective reasonableness)
- Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) (objective approach to availability of remedies)
- Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) (availability of remedies under PLRA)
- Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002) (timeliness/response timing affects availability)
- Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007) (defects in exhaustion not procured by prison officials)