Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Tenth Circuit: Cornell Corrections’ Procedural Defense To Federal Prisoner’s ETS Suit Fails On Inadequate Grievance Recordkeeping

by John E. Dannenberg

The Tenth Circuit U.S. Court of Appeals reversed the dismissal on summary judgment below and remanded to the U.S. District Court (D. N.Mex.) a pro per federal prisoner’s Environmental Tobacco Smoke (ETS) suit against private prison contractor Cornell Corrections, Inc. because Cornell’s grievance recordkeeping process was so inadequate that the question of administrative exhaustion could not be determined. In reversing, the Tenth Circuit noted that the intervening U.S. Supreme Court decision in Jones v. Bock, 127 S.Ct. 910 (2007) [see PLN, May, 2007, p. 36] now makes the burden of proving exhaustion an affirmative defense (overruling prior Tenth Circuit precedent).

Federal prisoner Ethan Roberts was housed in Cornell Corrections’ Santa Fe [New Mexico] County Adult Detention Center from April 1999 to June 8, 2000. He sued Cornell on June 9, 2003 in U.S. District Court under 42 U.S.C. § 1983 for irreparable lung damage caused by being exposed to saturated ETS 14-20 hours per day. Cornell defended on two grounds: that the statute of limitations had expired and that Roberts had not exhausted administrative remedies. The district court dismissed the case on summary judgment.

The Tenth Circuit found Roberts’ 3-year-and-one-day filing timely under controlling New Mexico tolling statute § 37-1-8, which provides three years for filing, not counting the day of release. Robert’s claim that while he was yet incarcerated, Cornell did not provide him with law library access to even research his filing deadlines, evaporated when the court observed that Roberts nonetheless had two years after his release to conduct legal research.

The crucial remaining question revolved around Roberts’ claim that he had exhausted administrative remedies with 14 grievances, versus Cornell’s claim that he never did so. Roberts did not have copies because he was denied access to the law library while incarcerated. But he did have affidavits from numerous prisoner witnesses who observed him filling out and mailing these grievances. Moreover, he submitted copies of federal Bureau of Justice investigative reports on Cornell’s Santa Fe facility reprimanding Cornell for repeated “fail[ure] to document its actions in response to inmates’ complaints and fail[ure] to let the inmate know how it has responded.” From this, the court concluded that the defendants “virtually admit

that the institution’s record-keeping is so incomplete that it cannot conclusively deny that Mr. Roberts filed the grievances.”

To make matters worse, Roberts was never provided with any Cornell grievance policy, but used a form that appeared to the court to belong to an earlier procedure that had been revised in November 1999. The court found that the applicable grievance process was so unclear as to defeat any defense that Roberts had used the wrong one.

Noting that under Bock, Roberts had no affirmative duty to prove exhaustion, the Tenth Circuit allowed the defendants to yet raise exhaustion as an affirmative defense on remand. But meeting their burden may prove elusive. Cornell’s grievance records search turned up only six of Roberts’ grievances, none of which were among the 14 he claimed were related to ETS. The Bureau of Justice reports stand out as compelling evidence that Cornell’s record-keeping was facially inadequate. If Roberts survives this challenge back in district court, he may then proceed to the merits of his ETS damage claims. See: Roberts v. Barreras, 484 F.3d 1236(10th Cir. 2007).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Roberts v. Barreras