The Tenth Circuit Court of Appeals has held “that when a prison official inhibits a prisoner from utilizing an administrative process through threats or intimidation, that process can no longer be said to be ‘available’” under the Prison Litigation Reform Act (PLRA). The appellate court set forth a two-prong test to establish whether administrative remedies are unavailable in such circumstances.

Colorado state prisoner Mark Tuckel was assigned to work in vehicle maintenance at the Arkansas Valley Correctional Facility. Unsatisfied with his job position, he reached an agreement with Scott Grover, a prison official, that would result in Tuckel being transferred to a vocational program if he completed a welding project. However, Grover reneged on the deal once the project was finished, claiming the agreement never existed.

Consequently, Tuckel filed a grievance. After filing the grievance he was approached by several other prisoners who told him that Steve Keys, a prison program manager, had advised them that as a result of his grievance they were losing their incentive pay. “At the apparent recommendation of Grover and other officials,” the prisoners assaulted Tuckel, injuring one of his eyes.

Rather than file another grievance, Tuckel filed a 42 U.S.C. § 1983 complaint that raised claims under the First and Eighth Amendments. The Colorado federal district court granted summary judgment to the defendant prison officials based on its “determination that the PLRA requires exhaustion regardless of a prisoner’s legitimate fear of retaliation.”

Tuckel appealed and the Tenth Circuit reversed, stating it would join the holdings of the Second, Seventh and Eleventh Circuits. See: Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008) [PLN, March 2010, p.40]; Kaba v. Step, 458 F.3d 678 (7th Cir. 2006); Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004).

Those appellate courts have uniformly held that “some threats disrupt the operation and frustrate the purposes of the administrative remedies process enough that the PLRA’s exhaustion requirement does not allow them.” The Tenth Circuit agreed with the holding in Turner that when “an inmate forgoes administrative remedies because prison officials have made it irrational for him to pursue them, the inmate loses a benefit that Congress intended to bestow upon him.”

The appellate court further noted that “An inmate who has been threatened or beaten for using administrative procedures has no reason to expect that an emergency grievance procedure, by virtue of being expedited, is somehow different and will not result in retaliation. If anything, an expedited procedure could be construed as hastening the retaliation an inmate might suffer.”

The Court of Appeals established a two-prong test for what a prisoner must show to defeat a failure-to-exhaust defense: 1) that the threat or intimidation actually did deter the prisoner from filing a grievance or pursuing part of the administrative remedy process, and 2) that the threat or intimidation would deter a reasonable prisoner of ordinary firmness and fortitude from filing a grievance or pursuing the part of the administrative remedy process that the prisoner failed to exhaust.

The first showing is objective, as it requires actual deterrence be shown. The second is subjective, requiring the district court to consider the context of the alleged threat or intimidation by prison officials. “Only threats that are sufficiently serious and retaliatory acts that are severe enough to deter a reasonable inmate will result in an administration remedy becoming unavailable for PLRA purposes,” the Tenth Circuit said, noting that the test will filter out frivolous claims.

The appellate court wrote that once prison officials raise a failure-to-exhaust defense under the PLRA, “the onus falls on the plaintiff to show that remedies were unavailable to him as a result of intimidation by prison officials. Plaintiffs should be afforded an opportunity to counter the exhaustion defense in this manner regardless of whether the issue is asserted by defendants or raised by the court sua sponte.”

Accordingly, the district court’s order was reversed and the case remanded for further proceedings. Tuckel was represented on appeal by appointed counsel. See: Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011).

Following remand, on November 19, 2012 the district court denied the defendants’ motion for summary judgment, in which they again asserted that Tuckel had “failed to exhaust the available administrative remedies.”

The court found that Tuckel “has shown a genuine issue of material fact regarding the unavailability of administrative remedies. Plaintiff has presented evidence that ... Defendant Keys told inmates who work in the program that their incentive pay was being dis-continued because of Plaintiff’s grievance regarding his job assignment.... Plaintiff also presents evidence that he was assaulted within days after Keys’ statements to the inmates. Plaintiff asserts that the assailants were angry about the discontinuation of incentive pay. The Court finds that these facts are sufficient to at least create genuine issues of material fact as to whether Plaintiff was subjectively deterred from filing a grievance regarding his claims in this action and whether a reasonable inmate of ordinary firmness and fortitude would be deterred from lodging a grievance under these circumstances.”

The case remains pending before the district court. See: Tuckel v. Grover, U.S.D.C. (D. Col.), Case No. 1:10-cv-00215-KLM-MEH; 2012 WL 5904209.

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