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Jury Must Determine Whether Prisoner’s Failure to Exhaust Administrative Remedies was Based on Threats / Retaliation

by David M. Reutter

The Seventh Circuit Court of Appeals has held that when there are material facts in dispute about whether prison officials threatened or intimidated a prisoner into not exhausting administrative remedies, a jury must resolve that question.

The ruling came in an action filed by former Bureau of Prisons (BOP) prisoner Karamo B. Kaba, who brought a Bivens action that also claimed Eighth Amendment violations. The facts related to incidents that occurred at the BOP’s Marion, Illinois facility from November 2000 through March 2001. The Illinois federal district court dismissed Kaba’s suit without prejudice for failure to exhaust administrative remedies.

The Seventh Circuit found Kaba had presented evidence that detailed a series of events – including the withholding of grievance forms, direct threats, and a prisoner assault – that Kaba contended made it impossible for him to file grievances about the administrative remedy system itself and retaliatory actions by a guard and prison officials.

That evidence consisted of three affidavits from Kaba, one of which was corroborated by a lie detector test administered by prison investigators. Kaba’s complaint stemmed from BOP guard Michael E. Laird’s repeated threats against Kaba. Those threats started after Laird seized Kaba’s tennis shoes and Kaba asked an associate warden to have them returned.

Two other prisoners, James Barnett and Homes Richards, provided affidavits stating that Laird had pressured them to stab Kaba or take action to get him off Laird’s “back.” Kaba tried to deal with the situation by specifically warning Warden Stepp and Captain Dave Benson. Stepp said he would take care of it. Meanwhile, Benson told him to stop filing grievances or he would end up in Puerto Rico, where he would be beaten. Stepp told Kaba that if he filed a grievance about Laird’s actions, he would not initiate an investigation.

In April 2001, Kaba was attacked in his cell and beaten severely enough to leave him unconscious from blunt trauma to the head, requiring hospitalization. After he was transferred to a federal prison in Springfield, Missouri, a doctor documented that Kaba feared being returned to Marion because a guard was paying other prisoners to assault him.

Meanwhile, Kaba had been filing grievances on other issues, but not in relation to Laird. The defendants argued that this refuted Kaba’s position that the grievance process was not available to him. The court said that “[s]ometimes grievances are clearly available; sometimes they are not; and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain topics.”

While the grievance procedure may have been available to Kaba when he first arrived at Marion, it progressively became less available until it became unavailable, if Kaba’s evidence is taken in a light most favorable to him. The court held that “threats or other intimidation by prison officials may well deter a prison of ‘ordinary firmness’” from filing an internal grievance, but not an external one because the latter might avoid “threatened retaliatory conduct from prison officials.” The Court also noted that as Kaba was no longer in prison, he could no longer exhaust administrative remedies.

Accordingly, the Court of Appeals reversed the district court’s order and remanded the case, allowing a jury to determine the factual dispute on exhaustion. See: Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006), rehearing and hearing en banc denied.

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Related legal case

Kaba v. Stepp