“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Sixth Circuit judge Amul Thapar tried in dissent to uphold a lower court ruling dismissing a prisoner’s claim of excessive use of force on summary judgment because of failure to exhaust administrative remedies. The majority rejected Thapar’s argument and ruled that there was a genuine issue of material fact as to whether administrative remedies were truly available in its August 2020 order in Wiley v. Kentucky Dept. of Corr., 2020 U.S.App. Lexis 27030 (6th Cir., Aug. 25, 2020).
Allen Wiley, who is in prison in Kentucky, filed a lawsuit on his own against the state department of corrections and individual officers, claiming that officers had improperly used excessive force against him. Wiley contends that while he was waiting in line to be searched before dinner, with no provocation by him, one guard grabbed him and “pushed him against a concrete wall,” while another placed metal restraints “excessively tight” around his wrists and hands, which “swelled up instantly.” He further maintained that he was forced to walk “bent over with a baton under his shoulders and his arms raised as high as they could go.” When he fell “face first to the ground,” Wiley continued, a guard “started twisting” his ankle and forced him to walk. When he fell another time, he stated, another guard “shot Wiley” with a taser, after which the first guard grabbed him by the shirt and “dragged him across the concrete floor.”
A week later, Wiley filed a grievance, asking that the officers be ”held accountable” and be “removed from their positions.” The grievance was rejected, and Wiley filed suit. The lower court granted summary judgment and dismissed the complaint, based on the defendants’’ contention that Wiley had failed to properly exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA). This was because Wiley had violated a Corrections’ Department policy providing that a grievance “shall not suggest a specific form of disciplinary action” against an officer. Again acting on his own, Wiley appealed.
In an unsigned order, the Sixth Circuit majority, including George W. Bush nominee Helene White, reversed and sent the case back to the lower court, where they suggested the court consider appointing counsel to help Wiley in light of the “serious, substantial allegations” he had made about violation of his Eighth Amendment rights against cruel and unusual punishment.
The majority explained that under the PLRA as interpreted by the courts, a prisoner is not required to fully exhaust administrative remedies if they are not “available.” This can include a situation where prison officials have devised grievance procedures that “trip[] up all but the most skillful prisoners,” and where the failure to fully inform a prisoner of “disqualifying aspects of the grievance process” renders the process “so opaque as to be unavailable.” Although the defendants claimed that there was evidence that Wiley was aware of the restrictive grievance policy, the majority concluded that a “reasonable jury” could well believe that the grievance process was “unavailable” to Wiley because officials ”sought to reject grievances based only on mere technicalities.”
Trump judge Thapar dissented. Starting out by sarcastically accusing the majority of attempting to “sally forth” looking for “wrongs to right,” Thapar maintained that it was “incumbent on Wiley” to learn the rules. He argued that the grievance process was properly “available” to Wiley, that he did not specifically raise the concerns in the majority opinion about the process, and that the majority was improperly trying to permit “partial compliance” with the grievance process under the PLRA.
The majority strongly disagreed. Apart from the fact that Wiley was acting as his own lawyer in the case, they pointed out that Thapar’s argument about “partial compliance” was a “strawman.” They went on to explain that “[p]erfect compliance” with grievance procedures is required “only if the grievance process is otherwise available,” and that was precisely the issue on which it was inappropriate for the lower court to grant summary judgment.
As a result of the majority’s ruling, therefore, Wiley will be able to try to prove his “serious” and “substantial” claims that prison officials improperly used excessive force against him. If it had been up to Thapar, however, he would not have that opportunity.