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Judge May Resolve Exhaustion Issue; No Policy on Grievance Non-decisions Means Remedies Unavailable

Judge May Resolve Exhaustion Issue; No Policy on Grievance Non-decisions Means Remedies Unavailable

by David Reutter

The Third Circuit Court of Appeals held on August 26, 2013 that a judge may resolve factual disputes relevant to the exhaustion of administrative remedies without the participation of a jury. It also held the district court had erred in finding a failure to exhaust where a prisoner did not receive a response to his grievances and appeals were not required in such circumstances.

Robert L. Small, a pretrial detainee at New Jersey’s Camden County Correctional Facility (CCCF) and a paraplegic, filed a civil rights complaint alleging excessive force, denial of medical treatment, and confiscation of his wheelchair and its replacement with one without leg rests. The suit concerned events during two stints that Small served at CCCF between June and September 2004 and again between May 2005 and January 2008.

The lawsuit, originally filed in 2006, was amended by pro bono counsel in January 2008. The defendants moved for summary judgment in late 2009, claiming Small had failed to exhaust administrative remedies under CCCF’s grievance policy. The district court dismissed all but one of Small’s claims following an evidentiary hearing, and he appealed.

Small argued the Prison Litigation Reform Act requires that a jury, not a judge, determine factual disputes related to administrative exhaustion issues because Seventh Amendment rights are implicated.

The Third Circuit disagreed, joining the Second, Fifth, Seventh, Ninth and Eleventh Circuits in concluding “that judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury.”

The appellate court then turned to the exhaustion issue itself. First, it found “Small knew of, and was able to access, CCCF’s grievance procedures.” Having concluded that administrative remedies were available to him, the Court of Appeals considered whether he had substantially complied with the jail’s grievance process.

Small argued he had complied by submitting sick call requests and letters of complaint, some of which were sent to people outside CCCF. The Third Circuit held those efforts were not substantially compliant with CCCF’s grievance procedure.

However, as to two grievances that Small filed concerning incidents in 2005, the Court of Appeals held the district court had erred in finding Small did not comply with CCCF’s grievance policy because he failed to appeal.

It was undisputed that neither of the grievances had resulted in a decision by jail staff, and the appellate court said it disagreed “that substantial compliance with CCCF’s procedures requires appealing non-decisions.” Rather, the jail’s grievance policy addressed “only the appeal of a decision with which the inmate is not satisfied,” and did not “mention what must be done or even could be done by the inmate when a decision is never made.”

As CCCF’s grievance procedure “did not contemplate an appeal from a non-decision ... the appeals process was unavailable” to Small. The Third Circuit thus affirmed in part and reversed and remanded as to claims related to the two grievances that did not result in decisions by jail staff. See: Small v. Camden County, 728 F.3d 265 (3d Cir. 2013).

Following remand, the district court appointed counsel to represent Small on February 21, 2014. This case, now eight years old, remains pending.


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Related legal case

Small v. Camden County