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Fifth Circuit: Staff Misleading Prisoner about Grievance Process Excuses Failure to Exhaust

On August 17, 2015, the Fifth Circuit Court of Appeals held that a Texas prisoner’s failure to fully exhaust administrative remedies was excused because jail staff had misled him about grievance procedures.

Grady Allen Davis was being held at the Dallas County Jail when guards allegedly used excessive force against him. He filed a first-step grievance but did not file the second-step grievance after the first step was denied. Davis claimed jail staff had misled him by falsely telling him there was no second step to the grievance procedure.

He then filed a civil rights action against Sheriff’s Department employees F. Hernandez and Cody Hill pursuant to 42 U.S.C. § 1983. The defendants moved for summary judgment, alleging Davis failed to exhaust administrative remedies. The magistrate judge recommended dismissal of the case.

Davis’ complaint argued that jail staff had misled him by telling him there was no second step in the grievance process. However, the complaint was not signed under penalty of perjury and thus the magistrate judge did not consider it. When Davis filed objections to the magistrate’s report and recommendation, he reasserted the same factual allegations, this time declaring them under penalty of perjury. Apparently without considering those allegations, the district court overruled the objections and dismissed the case. Davis appealed.

The Fifth Circuit held the district court had abused its discretion by failing to consider the factual allegations in the objections, as signing them under penalty of perjury rendered them competent summary judgment evidence. In reaching this conclusion, the appellate court emphasized that the facts were unchanged from Davis’ original, unverified complaint, and pro se litigants should not be held to the same standard as lawyers.

The Court of Appeals then addressed whether the jail staff misleading Davis excused his failure to exhaust administrative remedies. The Court noted the jail’s grievance procedures were available to prisoners in the jail handbook; therefore, his ignorance of the procedures would not excuse the failure to exhaust. However, “Grievance procedures are unavailable to an inmate if the correctional facility’s staff mislead the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust administrative remedies,” the appellate court wrote.

The Fifth Circuit found “no reason that Davis should not be entitled to rely on the representations of his jailers.... Therefore, Davis was not required to exhaust the unavailable second step, and the defendants were not entitled to summary judgment on their exhaustion defense.” The judgment of the district court was reversed and the case remanded for further proceedings. See: Davis v. Hernandez, 798 F.3d 290 (5th Cir. 2015).

Following remand, the district court dismissed the lawsuit in early 2016 for failure to prosecute and comply with the court’s orders; apparently, Davis had been moved or released and failed to update his mailing address or proceed with the litigation. 


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Related legal case

Davis v. Hernandez