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Does v. Snyder

United States Court of Appeals, Sixth Circuit

December 18, 2019

John Does 8-10, Plaintiffs-Appellants,
Rick Snyder; Heidi E. Washington; Daniel H. Heyns; Thomas Finco; Dennis Straub; Randy Treacher;Mary Berghuis; David Bergh; Jeffrey Woods; Carmen Denise Palmer; Thomas Winn; Duncan MacLaren; Mitch Perry; Kenneth T. McKee, Defendants-Appellees.

          Argued: December 6, 2018

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-11181-Robert H. Cleland, District Judge.


          Deborah A. LaBelle, Ann Arbor, Michigan, for Appellants.

          Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

         ON BRIEF:

          Deborah A. LaBelle, Ann Arbor, Michigan, Michael L. Pitt, Cary S. McGehee, PITT MCGEHEE PALMER RIVERS & GOLDEN PC, Royal Oak, Michigan, for Appellants.

          Heather S. Meingast, Mark E. Donnelly, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

          Before: MOORE, GIBBONS, and COOK, Circuit Judges.



         The Prison Litigation Reform Act ("PLRA") requires inmates to exhaust available administrative remedies. See 42 U.S.C. § 1997e(a). The Supreme Court has explained that "the PLRA contains its own, textual exception to mandatory exhaustion. Under § 1997e(a), the exhaustion requirement hinges on the 'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). The question here is whether the administrative remedies provided to inmates by the State of Michigan are "available." In the case before us, they are not. As the experiences of John Doe 8 and John Doe 10 show, the Michigan Department of Corrections ("MDOC") administrative process is, in practice, filled with contradictions-so much so that we hold that it is unavailable.

         John Doe 9's situation is slightly different. Doe 9 did not file a grievance, but he claims that he should be excused from doing so because he experienced retaliation after a prior attempt to submit a grievance. Doe 9's allegations, if true, would deter a person of ordinary firmness from continuing with the grievance process. The district court failed to address this issue on the merits, but it should have.

         Accordingly, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.

         I. BACKGROUND

         The Plaintiffs, John Does 8-10, are inmates in various Michigan prison facilities. At one time, the Does were juveniles housed with adult inmates, a policy that Michigan has since abandoned. The Plaintiffs bring § 1983 claims that stem from alleged sexual abuse by adult inmates, which occurred when the policy of housing juveniles with adults was in place. This is a putative class action, and the class seeks monetary, injunctive, and declaratory relief. (The district court, however, has not yet addressed class certification.) The Defendants are former-Governor Rick Snyder and a host of other state officials and prison wardens. Before turning to the experiences of each John Doe, some procedural and legal background is helpful.

         A. Prior Litigation

         Does 8-10 are making a second appearance in federal court. In a previous case, a separate set of plaintiffs filed a motion to amend their complaint to add Does 8-10, which the district court granted on March 11, 2016. The district court later dismissed these Does on the ground that they failed to exhaust administrative remedies. See Does 1-12 v. Mich. Dep't of Corr., No. 13-14356, 2017 WL 993184 (E.D. Mich. Mar. 14, 2017). At that time, Does 8-10 had not filed any grievances. Id. at *4-5. Further, the district court noted that Doe 9 cited no record evidence to support the argument that Doe 9 should be excused from the exhaustion requirement because of potential retaliation. Id. at *5. The district court dismissed Does 8-10 without prejudice. Id. at *7; see also Snider v. Melindez, 199 F.3d 108, 111-12 (2nd Cir. 1999) ("Failure to exhaust administrative remedies is often a temporary, curable, procedural flaw. . . . [A] prisoner who brings suit without having exhausted [his] remedies can cure the defect simply by exhausting them and then reinstituting his suit (in the event the administrative claim fails to afford him the desired relief).").

         B. The Prison Rape Elimination Act & MDOC's PREA Grievance Process

         On April 27, 2016, MDOC adopted a grievance process pursuant to the Prison Rape Elimination Act ("PREA"). Approximately one month later, Doe 8 and 10 filed grievances, which MDOC channeled through the PREA process. See infra Section I.C. Notably, these events occurred after Does 8-10 were added to the prior litigation but before the district court dismissed them from that case-but neither PREA issues nor Doe 8's and Doe 10's grievances were before the district court during that prior litigation. This case is the first instance in which these points will be addressed.

         1. PREA

         Congress enacted PREA with the purpose of implementing standards and policies to prevent prison rape and to "protect the Eighth Amendment rights of Federal, State, and local prisoners." 34 U.S.C. § 30302 (formerly 42 U.S.C. § 15602). Congress found that juvenile "offenders are at increased risk of sexual victimization" and "are 5 times more likely to be sexually assaulted in adult rather than juvenile facilities-often within the first 48 hours of incarceration." Id. at § 30301(4); see also id. at § 30301(6) ("Prison rape often goes unreported, and inmate victims often receive inadequate treatment for the severe physical and psychological effects of sexual assault-if they receive treatment at all.").

         PREA generally left intact the PLRA's exhaustion requirement, 42 U.S.C. § 1997e(a), but regulations promulgated pursuant to PREA modified one aspect of exhaustion. On June 20, 2012, the Department of Justice issued a final rule mandating that an "agency shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse." 28 C.F.R. § 115.52(b)(1); National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37106-01 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115); see also 28 C.F.R. § 115.5 (defining "Agency" as "the unit of a State, local, corporate, or nonprofit authority, or of the Department of Justice, with direct responsibility for the operation of any facility that confines inmates . . . ."). As to time limits that apply to inmate lawsuits, however, § 115.52(b)(4) of the regulations provide: "Nothing in this section shall restrict the agency's ability to defend against an inmate lawsuit on the ground that the applicable statute of limitations has expired." See also 77 Fed. Reg. 37106-01 at 37159 ("Importantly, one key time limit will still apply . . . . The statute of limitations provides a backstop against the filing of stale claims . . . ."). By its own terms, the regulation went into effect on August 20, 2012. 28 C.F.R. § 115.52; 77 Fed. Reg. 37106-01 at 37106. Thus, an inmate's failure to exhaust can no longer result from an untimely grievance if that grievance involved an allegation of sexual abuse.

         2. MDOC's PREA Grievance Process

         On April 27, 2016, Michigan instituted a two-step PREA grievance process for sexual-abuse claims. At Step I, an inmate must submit a grievance form to the PREA coordinator or inspector at the facility at which the inmate is housed. R. 27-2 (MDOC PREA Grievance Process) (Page ID #334). All PREA grievances are also referred to an "Internal Affairs Division" for investigation. Id. (Page ID #335). MDOC requires the PREA coordinator or inspector to "ensure a written response is provided to the prisoner within 60 calendar days of receipt of the Step I PREA grievance unless an extension [of up to seventy days] has been approved by the Internal Affairs Division in order to conduct an appropriate investigation." Id. But if an extension is approved, an inmate must "be informed in writing . . . and provided a date by which a decision will be made." Id.; see also 28 C.F.R. § 115.52(d)(3) ("The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.").

         Then, an inmate "may only file a Step II administrative appeal to the PREA Administrator if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response at Step I." R. 27-2 (MDOC PREA Grievance Process) (Page ID #335). To appeal to Step II:

[T]he prisoner must request a [Step II form] from the facility PREA coordinator or inspector and send the completed form to the PREA Administrator within 10 calendar days after receiving the initial response. If no response was received, the prisoner shall submit the appeal within 10 calendar days after the date the response was due, including any extension.

Id. Accordingly, whether or not the coordinator or inspector complies with MDOC's sixty-day response requirement, an inmate must file a Step II appeal.

         Regarding Step II, we further observe that, at oral argument, counsel for the State represented that "the only reason a prisoner would go to Step II on the PREA grievance is that if we did not investigate." Oral Argument at 21:51-22:00; see also id. at 22:23-29 ("The only time you [i.e., an inmate] would ask for a Step II response is if you were not being investigated"). First, state counsel's description does not appear anywhere in MDOC's regulations. See R. 27-2 (MDOC PREA Grievance Process). Second, we also observe that counsel for the State admitted that Doe 8's and Doe 10's grievances were being investigated. See Oral Argument at 21:19-23, 22:40-52. This fact, of course, implies that these Does would not need to go to Step II (at least according to state counsel's statements).

         Ultimately, under the grievance process, the PREA Administrator must provide a "final agency determination on the merits . . . within 90 calendar days from the original filing of the grievance. Computation of the 90 days does not include the 10 days allowed for the prisoner to file an administrative appeal." R. 27-2 (MDOC PREA Grievance Process) (Page ID #335). MDOC's regulations state that a ...

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