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Fourth Circuit Vacates Sua Sponte Dismissal Due to Non-exhaustion

The Fourth Circuit Court of Appeals has vacated a district court’s sua sponte dismissal of a prisoner’s lawsuit for failure to exhaust available administrative remedies.

The Virginia Department of Corrections’ (VDOC) grievance procedure requires prisoners to first submit an informal complaint. Staff must respond within 15 days. If the informal complaint does not resolve the issue, the prisoner may submit a regular grievance “within 30 calendar days” of the “occurrence/incident.” The prisoner is responsible for submitting an informal complaint early enough for it to be resolved within the time limit for filing a regular grievance.

If the regular grievance fails to meet the criteria for acceptance, it must be returned to the prisoner “within two working days.” The denial may then be appealed to the Regional Ombudsman within five days.

Virginia prisoner Ryricka Nikita Custis was assigned to a bottom bunk in a bottom-tier cell at Sussex I State Prison because he is missing toes on his right foot. On August 18, 2014, however, Custis was temporarily moved to an upper-tier cell. While ascending the stairs to his cell in early September 2014, Custis fell and injured his neck and back.

Custis filed an informal complaint on September 11, 2014, which was denied six days later. He then filed a regular grievance, which was denied a week later due to insufficient information about when he was assigned to the upper tier.

On October 1, 2014, Custis amended his regular grievance. It was denied as untimely the same day, as the grievance office concluded his complaint was due by September 17, 2014, since he had been moved to an upper-tier cell on August 18.

Custis attempted to appeal the decision to the Regional Ombudsman. He mailed his appeal to the Richmond Ombudsman Services Unit, which was the only address found in the Offender Grievance Procedures. However, the Regional Ombudsman was located at a different address not listed in the grievance procedures.

The Richmond Ombudsman Services Unit received the appeal on October 6, 2014 and returned it to Custis the next day with the correct mailing address. Custis immediately re-mailed his appeal, which was received by the Regional Ombudsman on October 15, 2014. It was then rejected as being untimely.

Custis filed suit and the federal district court sua sponte ordered him to submit proof of administrative exhaustion. After he complied, the court dismissed his claim for failure to exhaust the VDOC’s grievance process. Custis appealed.

The Fourth Circuit reversed on March 23, 2017, holding that the dismissal was improper. Noting that the Supreme Court held in Jones v. Bock, 549 U.S. 199 (2007) [PLN, May 2007, p.36] that failure-to-exhaust is an affirmative defense that must be raised by the defendant, the appellate court found “the district court erred when it sua sponte examined Custis’s exhaustion of available administrative remedies.”

The Court of Appeals rejected the defendants’ argument that dismissal was proper under Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674 (4th Cir. 2005). “To the extent that Anderson allows courts to sua sponte dismiss complaints where exhaustion is unclear ... it is irreconcilable with Jones and cannot survive,” the Court held.

Although it did not decide whether Custis had properly exhausted his administrative remedies “because the record is incomplete and the inquiry premature,” the Fourth Circuit noted its concern with the VDOC’s grievance procedure. “For example, it is unclear to us – and would likely be unclear to Custis – whether Custis had to submit his Regular Grievance within thirty days of his cell-transfer or his injury; the rules are silent on the point,” the appellate court observed. “Moreover, Custis’s appeal was rejected as untimely, in part because the rules required him to mail his appeal to an address nowhere to be found in the Offender Grievance Procedures. We hope that further fact-finding in the district court will shed light on this process.”

The case was remanded for further proceedings, where it remains pending.

See: Custis v. Davis, 851 F.3d 358 (4th Cir. 2017). 

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