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Arkansas Prisoner Prevails on Grievance Exhaustion Issue

by Ed Lyon

Arkansas state prisoner Jacob J. Townsend was working at the Tucker Unit’s water treatment plant when his supervisor, Terry Murphy, ordered him to work with chlorine gas. Townsend was not given training or equipment for using the dangerous chemical.

Arkansas prisons employ an informal resolution process prior to filing formal grievances. Townsend filed an informal complaint with “one of the prison’s assigned ‘problem solvers,’” Sergeant Jeavon Perry. Perry advised Townsend not to file a formal grievance until after the informal process was complete, even though formal grievances have to be filed within six business days after an informal complaint is submitted.

Townsend’s many requests for law library access to review the grievance policy were ignored. He filed a formal grievance six weeks later, more than five weeks after the six-day period following his informal complaint. As a result, the merits of his grievance were never addressed.

Townsend then filed a 42 U.S.C. § 1983 suit in federal district court naming Murphy, Richard Romaine, the plant maintenance supervisor, and unit warden David White as defendants. The defendants moved for and were granted summary judgment due to the late filing of the formal grievance and because Romaine and White were not mentioned in Townsend’s informal complaint. Townsend’s sworn declaration – that Perry had instructed him several times not to file a formal grievance until the informal complaint had been resolved – was not addressed by the defendants.

In an April 11, 2018 decision, based on Townsend’s unrefuted declaration, the Eighth Circuit relied on the holding in Ross v. Blake, 136 S.Ct. 1850 (2016) [PLN, July 2016, p.22] that an administrative remedy had to be “available” for use and not merely “on the books.” For example, the Court of Appeals wrote, such remedies are not available “When prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”

The Court found this applied to the instructions that Perry gave Townsend, as well as the prison’s denial of Townsend’s law library requests so he could review the grievance policy.

“The denial of access to the library, which contained the only available copy of the administrative directive, magnified the impact of Sergeant Perry’s misstatements, which Townsend had no way to verify,” the Eighth Circuit noted.

The district court’s grant of summary judgment to Romaine and White was affirmed because they had not been named in Townsend’s informal complaint. The lower court’s order was therefore affirmed in part and reversed in part; following remand, Townsend was appointed counsel on October 25, 2018. See: Townsend v. Murphy, 898 F.3d 780 (8th Cir. 2018). 

 

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Townsend v. Murphy


 

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