TOBY LAMB, II, Plaintiff-Appellant, v. BRANT KENDRICK, SHANE CAREY, JUSTIN REECE, BRITANY MAXWELL, JUSTIN CROWDER, and SYDNEY HENSLEY, Correctional Officers, Defendants-Appellees.
No. 21-3390
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
October 26, 2022
22a0232p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) Argued: December 8, 2021 Decided and Filed: October 26, 2022 Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Lori H. Duckworth, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, Sarah Gelsomino, FRIEDMAN, GILBERT + GERHARDSTEIN, Cleveland, Ohio, for Appellant. Lori H. Duckworth, Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
DONALD, J., delivered the opinion of the court in which CLAY, J., joined. NALBANDIAN, J. (pp. 16-22), delivered a separate dissenting opinion.
BERNICE BOUIE DONALD, Circuit Judge. Inmate Toby Lamb II alleges that several correctional officers at the Warren Correctional Institution in Lebanon, Ohio (“WCI“) brutally beat and pepper sprayed him while he was handcuffed, immediately placed him in solitary confinement, and prevented him from accessing the requisite grievance forms to report the incident properly. When Lamb sought judicial intervention by bringing this excessive force action under
I
On April 6, 2018, Lamb was involved in a physical altercation with a nonparty correctional officer at WCI. Lamb alleges that officers Justin Reece, Justin Crowder, Shane Carey, Britany Maxwell, and Sydney Hensley, and Lieutenant Brant Kendrick (collectively, “defendants“) retaliated against him later that day by beating him and deploying pepper spray against him while he was handcuffed outside the presence of surveillance cameras. The beating caused Lamb‘s eyes to swell shut, and he suffered several other serious temporary and permanent injuries. Later that night, Lamb was transferred from WCI to the Lebanon Correctional Institution (“LeCI“), where he was placed in restrictive housing comparable to solitary confinement.
When Lamb first arrived at WCI in the spring of 2017, he received orientation training and written materials about Ohio‘s inmate grievance procedures. On April 9, 2018, Lamb initiated these procedures at LeCI by filing the following internal informal complaint (also known as an “ICR“):
WCI shift supervisor lied on 4/6/18 stating that I refused my “use of force” statement. The nurse treating me at that time could attest to that. My hands were cuffed behind my back and I couldn‘t even see after officers kicked me in the eye and maced me on the way to the infirmary.
The “WCI shift supervisor” allegedly referred to Lieutenant Kendrick, who submitted an Inmate Use of Force Statement shortly after the April 6 incident indicating that Lamb refused to provide a written statement and instead orally “stated ‘I can‘t write y‘all seen what happened.‘” On April 17, 2018, WCI Inspector Casey Barr responded to Lamb‘s informal complaint with a computer entry on the prison‘s internal JPay Securus System, stating “[y]ou will be able to give your statement during the use of force investigation. I will make sure that your statement is obtained.” Lamb asserts that he did not receive this response until March 2020 because he did not have access to the JPay system while in restrictive housing.
Lamb also alleges that he filed a second informal complaint in April 2018, “explain[ing] that force was [applied] against [him] for no reason” and that correctional officers destroyed his property in retaliation. Defendants contend that there is no record of Lamb filing a second informal complaint, which may explain why Lamb never received an associated response.
Having been at LeCI “for some time” and receiving no response to his informal complaints, Lamb alleges that he began asking correctional officers at LeCI for the requisite forms to escalate his grievance, but they repeatedly told him that the prison did not have any. One of those staff members, Inspector Lora Austin, also allegedly told him “that it would be a waste of time” to file an appeal because the appeal deadline had passed. Lamb asserts in his affidavit that because he lacked access to the JPay system or the necessary grievance forms, he did not know how to proceed with his grievance properly and relied exclusively (to his detriment) on prison staff members for assistance. There is no further evidence in the record about how many times he asked for these forms or the dates of his requests.
In November 2018, Lamb was transferred from LeCI to the Southern Ohio Correctional Facility (“SOCF“). There, Lamb allegedly sent an appeal letter directly to the Chief Inspector of the Ohio Department of Rehabilitation and Correction (“ODRC“) at his Ohio address, describing the April 6, 2018 incident and his grievance. Again, defendants claim that there is no copy or record of this letter, and Lamb alleges that he never received a response.
Last, Lamb submitted evidence of a third informal complaint that he allegedly sent on November 29, 2018, to the inspector of institutional services at SOCF, Linnea Mahlman, stating as follows:
I was beat in handcuffs at WCI and had most of my property destroyed. I wrote ICR‘s and never received a response. Would you let me know what‘s going on? Thank you.
Inspector Mahlman asserted in a sworn affidavit that he never received this correspondence.
On April 4, 2020, Lamb brought his grievance to federal court by filing this
I have reviewed the entire grievance file of inmate Toby Lamb, II, A734-060. On April 9, 2018, Inmate Lamb submitted an informal complaint resolution (ICR) concerning the “WCI shift supervisor lied on 4/6/18 stating that I refused my ‘use of force’ statement” regarding the reported use of force occurring on April 6, 2018. The WCI Institutional Inspector, Cynthia Hill, and then her replacement, Casey Barr responded to Inmate Lamb‘s grievance via the JPay system on April 17, 2018. Inmate Lamb did not file any other informal complaints, grievances or appeals concerning this April 6, 2018 reported use of force.
In their reply, defendants submitted two additional declarations, one from the correctional grievance officer at WCI, Isaac Bullock, and one from Inspector Mahlman. Bullock explained that “[c]ontrary to Lamb‘s assertions, ODRC‘s grievance process was available to all inmates, at all institutions, in the normal course of business, without delay.” Inspector Mahlman further asserted that “[t]here does not appear to be a notice of grievance or an appeal to the Chief Inspector regarding” Lamb‘s April 9, 2018 informal complaint. Lamb submitted a competing affidavit describing his version of events.
The magistrate judge eventually issued a Report and Recommendation (“R&R“) recommending that the district court grant defendants’ motion for summary judgment. The magistrate judge concluded that Lamb‘s April 9, 2018 informal complaint was improper because it did not provide “physical descriptions” of the unnamed officers, and it was undisputed that Lamb failed to comply with the second and third steps of the applicable grievance procedures. The magistrate judge also determined that Lamb‘s “vague assertions” in his affidavit were insufficient to establish a genuine issue of fact as to whether prison officials rendered his administrative remedies effectively unavailable. Accordingly, the magistrate judge held that “defendants have carried their burden to show that [Lamb] did not exhaust his administrative remedies for his claim based on defendants’ alleged use of force on April 6, 2018.”
The district court adopted the magistrate judge‘s R&R over Lamb‘s objections and dismissed this case without prejudice. This timely appeal followed.
II.
This Court reviews de novo a district court‘s dismissal of a prisoner‘s civil rights claim for failure to exhaust administrative remedies under the PLRA. Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011). This Court also reviews de novo a district court‘s grant of summary judgment. Siggers v. Campbell, 652 F.3d 681, 691 (6th Cir. 2011). Summary judgment is proper where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Congress enacted the PLRA in 1996 to “reduce the quantity and improve the quality of prisoner suits” that were flooding federal district courts nationwide and to reduce the need for federal courts to intervene in prison management. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999). To help achieve these objectives, the PLRA requires that “[n]o action shall be brought with respect to prison conditions under
The PLRA does not provide a uniform federal exhaustion standard; rather, the inmate‘s correctional institution defines the applicable procedural rules that the inmate must follow to exhaust his administrative remedies. Jones, 549 U.S. at 218. Thus, to comply with the PLRA‘s exhaustion requirement, an inmate must take “advantage of each step the prison holds out for resolving the claim internally and by following the ‘critical procedural rules’ of the prison‘s grievance process to permit prison officials to review and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey, 603 F.3d at 324 (citing Woodford, 548 U.S. at 90, 95); Risher, 639 F.3d at 240.
Although the PLRA‘s exhaustion requirement is strictly construed, the statute “contains its own, textual exception to mandatory exhaustion” that applies when remedies are not “available.” Ross v. Blake, 578 U.S. 632, 642 (2016). That is, an inmate must only exhaust available remedies, not unavailable ones. Id. (citing
Even if an inmate has evidence to show that an administrative procedure was unavailable, he is not automatically absolved from the PLRA‘s exhaustion requirement because this Circuit requires inmates to make “affirmative efforts to comply with the administrative procedures before analyzing whether the facility rendered these remedies unavailable.” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (quoting Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir. 2011)). “When a prisoner makes affirmative efforts to comply but does not succeed, we analyze whether those efforts to exhaust were sufficient under the circumstances.” Id. (quoting Risher, 639 F.3d at 240) (internal quotation marks omitted).
III.
The parties agree that Lamb needed to follow Ohio‘s three-step “inmate grievance procedure” to exhaust his administrative remedies properly under the PLRA. See
Under step one, the inmate must, within fourteen calendar days of the incident, file with an appropriate staff member an informal complaint that is “specific as to dates, times, places, physical descriptions of any unidentified personnel and the actions of said personnel giving rise to the complaint.”
Second, “[i]f the inmate is dissatisfied with the informal complaint response, or the informal complaint process has been waived, the inmate may file a notification of grievance with the inspector of institutional services,” which must be filed “by the inmate no later than fourteen calendar days from the date of the informal complaint response or waiver of the informal complaint step.”
Third, “[i]f the inmate is dissatisfied with the disposition of grievance, the inmate may file an appeal with the office of the chief inspector.”
Here, there is no dispute that Lamb failed to exhaust his administrative remedies properly under Ohio‘s three-step grievance process. Regardless of whether Lamb filed a proper informal complaint under step one (which is disputed and will be discussed below), he did not comply with step two because he never filed a notification of grievance with the inspector of institutional services. See
Our analysis does not end there, however, because Lamb argues in the alternative that he should be excused from the PLRA‘s exhaustion requirement because his administrative remedies were unavailable. Given that the district court dismissed this case on summary judgment before the parties had a meaningful opportunity to conduct discovery, we must therefore examine the limited evidence before us, including Lamb‘s sworn affidavit, to determine whether there is at least a genuine issue of material fact that his efforts to comply with Ohio‘s grievance process were sufficient under the circumstances. Napier, 636 F.3d at 224 (noting that “the only way to determine if the process was available, or futile, was to try“). If so, we may then analyze whether those remedies were in fact available to Lamb.
Before continuing with the merits of this appeal, we take a slight detour to address defendants’ argument that we should adopt the burden-shifting approach that several sister circuits have used when considering whether an inmate has exhausted his administrative remedies. For example, the Second Circuit holds that “defendants bear the initial burden of establishing, by pointing to ‘legally sufficient source[s]’ such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute,” after which the burden shifts to the plaintiff to “demonstrate that other factors—for example, threats from correction officers—rendered a nominally available procedure unavailable as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff‘s Dept., 788 F.3d 54, 59 (2d Cir. 2015) (citations omitted).
Other circuits have adopted nearly identical approaches, although they sometimes apply different tests for how plaintiffs can satisfy their burden. See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011); Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020).
The Sixth Circuit has never adopted a burden-shifting approach for the affirmative defense of PLRA exhaustion, holding instead that “if the plaintiff contends that he was prevented from exhausting his remedies,” the defendant must “present evidence showing that the plaintiff‘s ability to exhaust was not hindered.” Surles v. Andison, 678 F.3d 452, 457 n.10 (6th Cir. 2012). There are good reasons for this rule. As one magistrate judge in our Circuit aptly noted: “While proving a negative certainly gives pause, it is important to remember the relative positions of the parties in these cases.” Lawson v. LMDC, No. 3:16-CV-00728-GNS-RSE, 2019 WL 8953354, at *5 (W.D. Ky. Oct. 10, 2019). On one side, we may have a prisoner who, like Lamb, is confined in restrictive settings without even “rudimentary resources” to investigate and explain to the court how prison officials may have rendered his administrative remedies unavailable. Id. (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (applying this reasoning to the issue of whether PLRA exhaustion is an affirmative defense or a pleading requirement)).3 On the other side, we have prison officials who “are likely to have greater legal expertise and . . . superior access to prison administrative records in comparison to prisoners,” as well as access to attorneys who can “readily provide the court with clear, typed explanations, including photocopies of relevant administrative regulations.” Kertes, 285 F.3d at 295 (citation omitted). At the end of the day, someone must carry the burden, and “it appears that it is considerably easier for a prison administrator to show a failure to exhaust than it is for a prisoner to demonstrate exhaustion.” Id. We also find comfort that we are not the sole outlier on this issue, as the Seventh Circuit similarly holds that “[f]ailure to exhaust is an affirmative defense, so the defendants bear the burden of proof and cannot shift it to require [the plaintiff] to show that administrative remedies were unavailable.” Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022) (citation omitted); see also Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018) (holding that “[i]t was not [plaintiff‘s] burden to establish that the grievance process was unavailable“).
With this framework in mind, we turn to whether Lamb made sufficient affirmative efforts to comply with step one of Ohio‘s grievance process, which requires inmates to file an informal complaint that is “specific as to dates, times, places, physical descriptions of any unidentified personnel and the actions of said personnel giving rise to the complaint.”
True, Lamb‘s April 9, 2018 informal complaint did not provide specific physical descriptions of his then-unknown attackers and therefore did not properly comply with step one of the grievance process. But in faulting Lamb for not describing what those unknown officers looked like, the district court apparently turned a blind eye to the alleged circumstances surrounding the attack. Lamb‘s informal complaint stated that he had been “kicked . . . in the eye and maced” by multiple officers and “couldn‘t even see” following the incident. He also submitted pictures of his injuries, substantiating his claim that the beating was severe and caused his eyes to swell shut. Viewing this evidence in the light most favorable to Lamb, as we are required to do on summary judgment, we may infer that he was physically unable to see the unknown officers who attacked him. We further find that it would be unreasonable under these circumstances to require Lamb to provide physical descriptions of unknown prison staff members he could not see. See Hernandez v. Hernandez, 2015 WL 2374262, at *5-*6 (E.D. Cal. May 18, 2015), report and recommendation adopted, 2015 WL 3545630 (E.D. Cal. June 4, 2015); Abney v. Younker, No. 1:13-cv-1418, 2018 WL 398323, at *4 (M.D. Pa. Jan. 12, 2018). Based on the record before us, we conclude that Lamb‘s affirmative efforts to file an informal complaint that complied with step one of Ohio‘s grievance procedure were reasonable, but prison officials rendered that process unavailable to him by severely damaging his vision.
There is also a genuine dispute of fact regarding whether Lamb corrected any deficiencies in his first informal complaint by filing a second one within fourteen days of the incident. Lamb asserts in his affidavit that he filed a second complaint “about the use of force in approx. 4/2018” explaining that “force was [used] against me for no reason[.]” The district court and magistrate judge appeared to discount Lamb‘s evidence about this second informal complaint because it was uncorroborated and because WCI grievance officer Bullock stated in his declaration that he reviewed Lamb‘s grievance file and only found the April 9, 2018 complaint. This was improper because a party may rely on an affidavit to establish a genuine dispute of fact, so long as the affidavit is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.”
According to Lamb‘s affidavit, the ODRC transferred him to LeCI immediately after the April 6, 2018 incident and placed him in restrictive housing, where he did not have access to the prison‘s JPay system or forms for filing a proper notification of grievance or appeal. He instead relied solely on correctional officers at LeCI to provide him the necessary grievance forms. Grievance officer Bullock agreed that inmates in restrictive housing may access exhaustion forms by request and that prison officials should provide forms to inmates without delay. However, despite the consensus about how the grievance process should ideally work, Lamb‘s affidavit states that correctional officers denied his repeated requests for grievance forms and told him that the prison did not have any available. Lamb even identified Inspector Austin by name and asserts that she misleadingly advised him that it would be a waste of time to appeal his informal complaint because the deadline had passed.5 We agree with many of our sister circuits that administrative remedies are not “available” if prison officials refuse to provide inmates with necessary grievance forms when requested. See Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir. 2001). Therefore, if the assertions in Lamb‘s sworn affidavit are true, they would at least create a dispute of fact regarding whether prison officials at LeCI failed to follow their own procedures and thwarted his affirmative efforts to comply with step two. See Ross, 578 U.S. at 644; see also Risher, 639 F.3d at 241 (“When pro se inmates are required to follow agency procedures to the letter in order to preserve their federal claims, we see no reason to exempt the agency from similar compliance with its own rules.“).
Again, the magistrate judge and district court improperly discredited Lamb‘s affidavit and testimony about these issues.
We must also keep in mind that defendants moved for summary judgment on the issue of exhaustion before discovery, and they bore the burden of production and persuasion on that affirmative defense. Jones, 549 U.S. at 216; Surles, 678 F.3d at 458. They have not met that burden here because they have not presented any evidence, let alone any irrefutable evidence, demonstrating that prison officials did in fact provide Lamb with grievance forms when he requested them. Defendants’ sole evidence in the form of competing declarations—none of which came from Inspector Austin or another officer that spoke to Lamb about his grievance—describes the grievance process in general and how it should work, but those declarations do not demonstrate the absence of a factual dispute regarding whether proper grievance forms were made available to Lamb “on certain occasions or as to particular claims.” Surles, 678 F.3d at 457-58. As a result, we do not find that defendants presented significant probative evidence “so powerful that no reasonable jury would be free to disbelieve” Lamb‘s allegations that his administrative remedies were unavailable. Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001) (citation omitted). Therefore, defendants were not entitled to summary judgment on the issue of exhaustion.
Given our conclusion above, it is irrelevant whether Lamb made affirmative efforts to file an appeal with the chief inspector because “inmates are foreclosed from proceeding to step three until they receive a response to their step two grievance.” Troche, 814 F.3d at 800-01. Obviously, Lamb never received a response to a notification of grievance because he never filed one, and we previously held that it “does not make sense” to require inmates to appeal the disposition of their notification of grievance before that disposition is rendered.
As a final note, we acknowledge that defendants may ultimately prevail on the exhaustion issue later in the case or at trial (where they will have the benefit of discovery and a more substantial factual record) by showing that the entire grievance process was fully available to Lamb. But taking the allegations in Lamb‘s affidavit as true and drawing all reasonable inferences in his favor, a jury could conclude that Lamb‘s efforts to comply with steps one and two were sufficient under the circumstances and that prison officials rendered those steps unavailable. See Troche, 814 F.3d at 800. That is enough to survive summary judgment at this stage of the case.
IV.
For the foregoing reasons, the district court‘s order granting defendants’ motion for summary judgment is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion.
DISSENT
NALBANDIAN, Circuit Judge, dissenting. The Ohio Department of Rehabilitation and Correction (ODRC) has a three-step grievance process. Our precedent says that even if Lamb was ultimately prevented from exhausting his administrative remedies, he had to show that he made some affirmative efforts to comply with ODRC‘s grievance process that were sufficient under the circumstances. In my view, Lamb‘s affirmative efforts weren‘t. So I would affirm the district court‘s judgment.
I.
The majority and I agree on the basic framework for an exhaustion defense in a Prison Litigation Reform Act (PLRA) case. To recap, the rules of the road are: (1) A prisoner can generally only bring a PLRA action in federal court after exhausting his administrative remedies; (2) Exhaustion means that a prisoner has followed the state‘s grievance process before filing in state court; (3) When a prisoner fails to exhaust, the defendants can raise that failure as an affirmative defense under the PLRA; (4) If the defendants raise an exhaustion affirmative defense, it‘s their burden to show that a prisoner failed to exhaust; and (5) At times, we excuse exhaustion, like when the defendants were the ones who prevented the plaintiff from exhausting his administrative remedies. See Surles v. Andison, 678 F.3d 452, 455-57 & n.10 (6th Cir. 2012) (citations omitted). So far, so good.
The tricky part of this analysis, especially at summary judgment, relates to step (4)—namely, understanding the defendant‘s burden on a failure-to-exhaust affirmative defense on summary judgment. We‘ve said that on summary judgment the defendants “must show that the record contains evidence satisfying their burden of persuasion [on the exhaustion defense] and that no reasonable jury would be free to disbelieve it.” Doe v. Snyder, 945 F.3d 951, 961 (6th Cir. 2019) (altered) (internal citation and quotation marks omitted). And that makes sense. If we‘re going to cut the plaintiff‘s case off at the summary judgment stage based on an affirmative defense, it stands to reason that the defendants must show not only that “no genuine dispute” of material fact exists but also that they would win on an exhaustion defense at trial.
Our circuit has a burden-shifting analysis that goes like this. Once the defendants have raised an affirmative defense of failure to exhaust, we analyze whether the plaintiff has “contend[ed] that he was prevented from exhausting his [administrative] remedies . . . .” Surles, 678 F.3d at 457 n.10. If a plaintiff has “allege[d]” that the defendants somehow blocked his access to administrative remedies,
If the plaintiff contended that administrative remedies were unavailable and produced evidence that he made affirmative efforts to comply with the grievance process, the burden shifts back to the defendants, who must “show that [they] did not interfere with a plaintiff‘s ability to exhaust his administrative remedies.” Surles, 678 F.3d at 457 n.10. If the defendant meets that burden, the plaintiff then must “rebut” that evidence with evidence that those administrative remedies were in fact unavailable to him. Napier, 636 F.3d at 226. Then, it‘s the district court‘s call as to whether the defendants proved their exhaustion affirmative defense by the preponderance of the evidence. See Lee, 789 F.3d at 677.
The majority says that we have not adopted a burden-shifting approach to the exhaustion affirmative defense under the PLRA. (Majority Op. at 10.) But I don‘t think that‘s right. After the defendants provide evidence that the plaintiff has failed to exhaust, the plaintiff must provide evidence that he took “affirmative efforts” to comply with administrative procedures, even if he didn‘t use them. Lee, 789 F.3d at 677. And that seems like a burden shift to me.
II.
Although we differ in our characterization of the exhaustion framework under the PLRA, the majority and I both agree that it requires that the plaintiff show that he took affirmative efforts to comply with the grievance process. (See Majority Op. at 11-13, 15.) I disagree with the majority that Lamb‘s affirmative efforts were sufficient here.
We look at a state‘s grievance procedure to determine whether a plaintiff took sufficient affirmative steps under the circumstances. If Lamb establishes affirmative efforts through his presentation of the evidence, we look at the defendants’ evidence to see if there is a genuine dispute of material fact on whether the affirmative acts were sufficient.
The ODRC grievance process has three steps. See
Here, Lamb exerted no affirmative efforts on step two of the grievance process. Lamb explains that he submitted his first
But the record reflects that in the over four years since the incident giving rise to this lawsuit occurred Lamb never filed a formal complaint under step two of the ODRC grievance process. In other words, he took no affirmative steps on this front. He gives several reasons why that‘s so. He says he was transferred to restrictive housing at Lebanon Correctional Institution the day after the incident occurred and he didn‘t have access to the online grievance portal or ODRC policy manual there. He says that after he had been at Lebanon Correctional Institution “for some time and received no response from ODRC” he “began asking correctional officers for grievance forms so that” he could “appeal ODRC‘s lack of response.” (R. 19-2, Lamb Affidavit, at 3.) He says that one of the prison officials “told [him] that it would be a waste of time [to appeal] because the time had already passed for [him] to submit an appeal, and because the prison did not have any forms.” (Id. at 4.) He says that no correctional staff gave him the grievance forms when he asked because they said the forms were unavailable. These contentions all go to the ultimate question of whether Lamb was prevented from exhausting his administrative remedies. But they don‘t solve the affirmative efforts problem that he never says anywhere in his affidavit that he ever tried to file a formal complaint in compliance with step two.
So we‘re left with the fact that he filed an informal complaint. He didn‘t receive a response. He didn‘t file a formal complaint. So he didn‘t make affirmative efforts to follow ODRC grievance procedure. See
Further, his affidavit never specifies the months and years when he asked for any forms from the officers to establish that he had tried to comply with the mandatory grievance timeline. His allegations are vague and not time-specific, spanning the course of over two years, not at all tied to the filing of a formal complaint.
The statements in his affidavit don‘t show that he did his part in complying with the policy. He never showed that he tried to follow step two but admits that he received the grievance policy when he arrived at the prison in 2017. That policy explained the grievance process deadlines. “[A] prisoner must do what is required by the grievance policy” even when a prisoner is not able to “utilize every conceivable channel to grieve their case.” Napier, 636 F.3d at 224. And Lamb‘s affidavit didn‘t establish that he did what was required.
Even when he asked for forms from different prison officials, it was so that he could appeal his case, the third step of the grievance process, not so that he could file a formal complaint under step two. In my view, the filing of a single (or maybe two) informal complaints is not the kind of affirmative effort that is sufficient under a three-step grievance process with a tight timeline.
Lamb may have in the end been prevented from complying with step two, but he could have shown that he tried to comply by asking for forms within the relevant time window under the grievance procedure.
III.
As a final matter, I‘d like to address a point the majority touched on. Our circuit has departed from other circuits in how we approach the burden-shifting analysis for exhaustion. And I think that was an error on our part. All the circuits agree, as they must per the Supreme Court, that the defendants have the ultimate burden of persuasion to establish an exhaustion affirmative defense under the PLRA at the summary judgment phase. See Jones v. Bock, 549 U.S. 199, 212 (2007). Where the circuits disagree is when the burden of production shifts to the plaintiff within that analysis.
I‘ve catalogued our approach above. But there‘s another way, the path several other circuits take. Under their view, the initial burden is on the defendants to establish that a grievance process exists that would have been generally available to people in the plaintiff‘s position. See Mojias v. Johnson, 351 F.3d 606, 609-10 (2d Cir. 2003). If the defendants establish this, then the burden of production shifts to the plaintiff to establish by evidence that, although a grievance process was available on paper, it still was unavailable in practice because of other factors, like harassment or threats or abuse from officers. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). And from this evidence, and any other evidence provided by the defendants, other circuits hold, the district court must determine whether the defendants met their ultimate burden of proof. See, e.g., Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
There is a key distinction between that approach and our current one. We put the entire burden on the defendants to prove that they did not hinder an inmate‘s exhaustion of administrative remedies, albeit after the plaintiff shows his affirmative efforts to take advantage of the remedies. Other circuits put a burden of production on the plaintiff to show that the defendants prevented him from exhausting his administrative remedies. In my view, our approach is problematic because we ultimately require defendants to prove the negative, that they did not hinder an inmate‘s ability use the grievance process. See Piedmont & Arlington Life Ins. v. Ewing, 92 U.S. 377, 378 (1875) (“While it may be easy enough to prove the affirmative . . . it is next to impossible to prove the negative.“); Boykin v. Fam. Dollar Stores of Mich., LLC, 3 F.4th 832, 842 (6th Cir. 2021) (“The summary judgment standard does not require [a party] to prove a negative.” (quotation omitted)).
The text of the PLRA and common sense support my view that the other circuits got this one right. If we instead required a plaintiff to provide evidence at summary judgment that he was prevented from complying with the grievance process, he could point to concrete actions of the defendants that led to his inability to exhaust. The plaintiff in that situation would only have to prove a positive—some external circumstance made administrative remedies unavailable—that is statutorily baked into the PLRA. See Ross v. Blake, 578 U.S. 632, 642 (2016) (explaining that the only “textual exception to mandatory exhaustion” is when administrative remedies are “unavailable“).
As a beneficial side effect, adopting the other circuits’ approach would eliminate our odd, initial inquiry into whether a plaintiff has made “affirmative efforts” to comply with the grievance process that are “sufficient under the circumstances . . . .” Napier, 636 F.3d at 223-24 (quotation omitted). We‘ve never really explained what that standard means. It‘s opaque at least. And it doesn‘t contemplate that a plaintiff may be unable to take affirmative efforts at all because of threats, intimidation, or fear of other officers.
IV.
For these reasons, I would adopt the approach of other circuits in the burden-shifting analysis if this were a matter of first impression. But, because I don‘t write on a blank slate, I acknowledge that our circuit has already set the standard we must apply in this case. In doing so, I don‘t think Lamb‘s affirmative efforts were sufficient under the circumstances. So I respectfully dissent.