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Prisoner Education Guide

“Special Circumstances” Justify Non-Exhaustion in Second Circuit

The Second Circuit Court of Appeals has excused a New York prisoner’s failure to exhaust available administrative remedies under the Prison Litigation Reform Act (PLRA). The court found that prison officials’ erroneous refusal to investigate a claim, and frustration of administrative review of the error, constituted “special circumstances” justifying non-compliance with the PLRA.

On June 9, 2000, New York prisoner Hardy Brownell was found in possession of photographs, social security numbers and identification cards of several guards. Brownell’s photo was on three of the identification cards.

Brownell was transferred to another prison that same day. He was again transferred on July 14, 2000 and September 16, 2000. At the time of the initial transfer Brownell had fourteen bags of property, but by September 16, 2000 he had only three bags. He claimed that his missing property included legal materials.

On September 18, 2000, Brownell filed a claim related to the missing property; a claim number was assigned and an investigation was conducted. On November 14, 2000, a Deputy Superintendent denied the claim for lack of documentation.

Brownell could have appealed the denial of the claim. Instead of appealing, however, at the direction of an Inmate Grievance Program Supervisor, on December 10, 2000 Brownell filed a grievance seeking an investigation into the lost property. Brownell pursued his grievance through all three steps of the DOC’s grievance process. The grievance was denied, citing the November 14, 2000 denial of his property claim and his failure to appeal that decision.

Brownell subsequently brought suit in federal court, alleging the defendants had intentionally failed to document and account for his property in retaliation for his cooperation with the Inspector General’s Office and his possession of unauthorized documents. He asserted a denial of access to the courts claim.

While the action was pending in the district court, on August 18, 2004, the Second Circuit “fashioned a three-part inquiry ‘appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA.’” See: Hemphill v. New York, 380 F.3d 680 (2nd Cir. 2004). That inquiry recognizes that “in some cases ‘special circumstances’ may justify a prisoner’s failure to comply with administrative procedural requirements.” Giano v. Goord, 380 F.3d 670 (2nd Cir. 2004). The dissenting Justices in Woodford v. Ngo, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) recently cited the Giano inquiry as the proper framework to apply in exhaustion cases.

On November 8, 2004, the district court granted the defendants’ motion for summary judgment, finding that Brownell had failed to exhaust as required by 42 U.S.C. § 1997e (a) of the PLRA. The Second Circuit reversed, noting that it had “drawn an analogy between the contents of an administrative grievance and notice pleading.” The court explained that “‘the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.’” Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). That being said, “the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally.”

The appellate court had “little difficultly concluding that Brownell’s grievance did not sufficiently allege intentional misconduct.” However, applying Hemphill, the court agreed that “special circumstances justified” Brownell’s non-exhaustion. The Second Circuit found that “no efforts were made to locate Brownell’s property,” and his “decision to abandon his reimbursement claim and pursue a grievance instead is directly traced to a prison official’s advice to Brownell to follow that course.”

Therefore, under those special circumstances, the appeals court concluded that it could “hardly impute the frustration of administrative review to Brownell,” and reversed the lower court’s order. See: Brownell v. Krom, 446 F.3d 305 (2nd Cir. 2006).

Upon remand, on June 6, 2007 the district court denied the defendants’ motion for summary judgment on other asserted grounds, including qualified immunity and a claim that Brownell was not prejudiced by the loss of legal materials in his property. The district court noted that “an explanation of what did happen to plaintiff’s lost property would go a long way towards the resolution of this case.” See: Brownell v. Krom, USDC SD NY, Case No. 01-cv-6568-LMM (2007), 2007 WL 1670168.

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Brownell v. Krom

Brownell v. Krom


 

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