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Fifth Circuit Finds “Opaque” Mississippi Prison Grievance System “Incapable of Use”

by Matt Clarke

On August 16, 2022, the U.S. Court of Appeals for the Fifth Circuit held that grievance procedure rules which the Mississippi Department of Corrections (DOC) published online – but which were not given to prisoners – cannot trigger a failure to exhaust administrative remedies that would justify dismissal of a prisoner’s lawsuit under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

Matthew Huskey was held by DOC at Wilkinson County Correctional Facility (WCCF) on September 8, 2016, when he “went to the clinic for sick call,” as the federal court for the Northern District of Mississippi later recalled. There he encountered guard Lt. Griffin, who allegedly pulled in Lt. Scott to assault the compliant prisoner, leaving Huskey handcuffed and with a broken arm. Cpt. Derrick Munford and guard Donovan Clark then arrived, patted Huskey down and accused him of having a knife. That triggered another assault, Huskey alleged, during which “Munford said that he would teach Huskey’s ‘white ass’ about hitting … one of his officers and having a knife,” the district court continued.

Though Huskey’s complaint recalled the allegation he had a knife, it neither confirmed nor denied it. But the complaint alleged he was denied medical care. When Dr. Juan Santos finally arrived many hours later, he told Cpt. Mary Jones “that [DOC] policy required that inmates visit the hospital after an altercation with staff,” but Jones refused and allegedly told Santos, “If you don’t see him, he won’t be seen.” Allegedly, due to the interference of Dr. Henry Kuiper, it wasn’t until eight months later, in April of 2017, that Huskey finally had surgery to repair his arm.

Huskey filed three grievances about the incident, requesting the guards be punished. All were rejected by the director of the Administrative Remedies Program (ARP). Huskey then filed three step-two grievances to reinstate each of his original complaints, but they were denied as well.

On September 1, 2017, Huskey filed his pro se federal civil rights action in the district court, pursuant to 42 U.S.C. § 1983, accusing prison guards of excessive force and prison officials and medical personnel of denying him medical treatment. A magistrate judge recommended dismissal of all claims except those against Cpt. Jones and Dr. Kuiper on February 12, 2018, adding that “claims regarding monitoring his actions with cameras should be dismissed as delusional”; the district court adopted those recommendations on February 27, 2018. See: Huskey v. Fisher, 2018 U.S. Dist. LEXIS 31655 (N.D. Miss.); and 2018 U.S. Dist. LEXIS 31048 (N.D. Miss.).

Defendants then moved for summary judgment, arguing that Huskey had failed to exhaust his administrative remedies as required by PLRA. The district court agreed and granted the motion on April 4, 2019, saying Huskey should have resubmitted corrected step one grievances within five days instead of proceeding to step two. Huskey appealed. But Defendants said the appeal wasn’t timely filed. The Fifth Circuit said it wasn’t sure, and it remanded the case on June 15, 2021, for the district court to make a determination. See: Huskey v. Jones, 860 F. App’x 322 (5th Cir. 2021).

At that point, the district court appointed Huskey counsel from attorney Cliff Johnson of the MacArthur Justice Center. On April 29, 2022, the district court determined that “Huskey complied with [DOC] and WCCF legal mail procedures.”

“The issue in this case arose solely from an unusual and extenuating circumstance: No one was present at the Inmate Legal Assistance Program (ILAP) office during the days leading up to [the filing] deadline, and no one processed his request on the deadline … As such, the ILAP procedure was simply unavailable to him during that time.” See: Huskey v. Fisher, 601 F. Supp. 3d 66 (N.D. Miss. 2022).

At last, the Fifth Circuit was able to hear Huskey’s appeal. It began with the fact that the 2016 Inmate Handbook posted on DOC’s website explained how grievances could be rejected for requesting relief beyond the power of the ARP to grant. As Huskey argued, he had no internet access to find this – he didn’t even know it existed. All he had was a copy of the 2015 Inmate Handbook he was given, which listed neither the five days he had to correct technical errors in grievances nor notice that requesting relief beyond the power of the ARP to grant was a valid technical reason to reject a grievance.

But a prisoner is required to exhaust only administrative remedies that are actually available, the Court said. Quoting Ross v. Blake, 578 U.S. 632 (2016), it recalled that unavailability may be demonstrated when “the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use’ by an ordinary prisoner.’”

Here the record contained no evidence that Huskey knew about the 2016 Inmate Handbook and its changes in grievance procedure. Moreover, in Brantner v. Freestone Cnty. Sheriffs Off., 776 F.App’x 829 (5th Cir. 2019), the Court reversed summary judgment when “there was a genuine dispute of material fact as to whether a remedy was available to an inmate where he was given ‘documents that only partially explained the prison [grievance] process.’” Since that was the case here, summary judgment was reversed and the case remanded. See: Huskey v. Jones, 45 F.4th 827 (5th Cir. 2022).

The case has now returned to the district court, where jury trial is set for June 2024. PLN will update developments as they are available. See: Huskey v. Fisher, USDC (N.D. Miss.), Case No. 1:17-cv-00140.

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