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Failure to Exhaust Administrative Remedies Not Absolute Bar Suit

The United States District Court for the District Court for the District
of Columbia has held that although a D.C. prisoner failed to exhaust
administrative remedies prior to filing suit under 42 U.S.C. §1983, the
failure may not bar the suit.

Eudon Barnard was a prisoner at the now-closed Lorton Correctional
Complex's Central Facility in July 1997 when he was assaulted by several
other prisoners at a time when guards were absent from their posts and
were unable to prevent or stop the assault. Barnard was hospitalized for
several days. Thereafter, he spent several days in hearings before being
transferred to a maximum security facility. As a result of the assault he
suffered serious, permanent injuries.

Barnard sued the District of Columbia and various officials of the
District and the D.C. Department of Corrections (DCDOC). The defendants
moved to dismiss for failure to exhaust administrative remedies as
required by 42 U.S.C. §1997e(a), as amended by the Prison Litigation
Reform Act (PLRA). In support of their motion, the defendants submitted an
affidavit from a DCDOC Deputy Warden, and former Lorton warden, who
reviewed Barnard's file and concluded that "upon information and belief
Eudon Barnard did not exhaust his administrative remedies in connection
with the July 19, 1997, incident." Barnard did not challenge the
affidavit's conclusion. Instead, he argued, citing DCDOC's grievance
procedure as it existed at the time of the assault, that the grievance
procedure did not cover assaults. Further, he argued that there is now no
procedure to exhaust since Lorton was closed.

The court rejected Barnard's argument that the grievance procedure did not
apply. The court did note, however, that in light of Barnard's post-
assault circumstances, he may have been unable to file a grievance within
the time period required by the grievance procedure. Moreover, the record
lacked any information as to what, if any, administrative remedies were
available to Barnard currently. If no remedies were now available, "it
would be futile to dismiss this case without prejudice to allow plaintiff
to exhaust his non-existent administrative remedies."

The court declined to dismiss the suit. Instead, defense counsel
was ordered to advise the court and Barnard's counsel whether and what
administrative remedies existed for a former Lorton prisoner, the
procedure for exhausting such remedies as they exist, and "if
administrative remedies are not currently available, what if any impact
this has on plaintiff's ability to pursue this lawsuit." Defense counsel
was given 21 days to provide the information. The court dismissed one
defendant with prejudice for lack of personal knowledge of the assault.
The court also scheduled a status conference. See: Barnard v. District of
Columbia, 223 F.Supp.2d 211 (D.D.C. 2002).

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