Sixth Circuit Says Ohio Prisoner’s Lack of Tablet Access May Have Prevented Grievance Exhaustion
by David M. Reutter
Technology giveth and technology taketh away – even in prison. That was the conclusion of the U.S. Court of Appeals for the Sixth Circuit on October 26, 2022, when it reversed dismissal of an Ohio prisoner’s civil rights action, finding a viable dispute regarding exhaustion of administrative remedies. The case was remanded to the U.S. District Court for the Southern District of Ohio “because there remain material disputes of fact about whether prison officials rendered administrative remedies unavailable,” the Court said.
Prisoner Toby Lamb was involved in a physical altercation with a guard at Warren Correctional Institution (WCI) on April 6, 2018. He alleged in his civil rights complaint that guards Justin Reece, Justin Crowder, Shane Carey, Britney Maxwell and Sydney Hensley, along with Lt. Brent Kendrick, retaliated against him later that day by beating and pepper-spraying him while he was handcuffed and outside the view of surveillance cameras.
The beating caused Lamb’s eyes to swell shut, he said, leaving serious temporary and permanent injuries. Later that evening, he was transferred to Lebanon Correctional Institution (LeCI) and placed in solitary confinement conditions.
Lamb filed an informal complaint on April 9, 2018, saying Kendrick lied when he filed a report accusing Lamb of refusing to cooperate in the guard’s “use of force” statement. WCI Inspector Casey Barr responded to the complaint via JPay Securus messaging on April 17, 2018, stating he would assure Lamb was able to give a statement during the investigation. But Lamb did not receive that response until March 2020 because he did not have access to the LeCi JPay kiosk while confined in isolation.
Lamb filed a second informal complaint alleging improper use of force and retaliation against him, but Defendants contended there was no record of that complaint. After “some time” passed without a response, Lamb began asking for the requisite forms to escalate his grievance. He was allegedly told no forms were available. Inspector Lora Austin also allegedly told Lamb that a grievance would be a waste of time because his appeal deadline had passed.
In November 2018, Lamb was transferred to Southern Ohio Correctional Facility. Once there, he sent a letter to the Chief Inspector describing the incident on April 6, 2018, as well as his grievance. Lamb alleges he never received a response to that letter, nor to a third grievance he sent on November 29, 2018.
With the aid of attorneys from Friedman, Gilbert & Gerhardstein, LLC, in Cincinnati, Lamb filed his civil rights complaint in 2020. Defendants moved for summary judgment, which the district court granted, agreeing that Lamb had failed to exhaust administrative remedies. Lamb appealed.
The Sixth Circuit began by finding that Lamb indeed failed to exhaust Ohio’s three-step grievance process. However, its analysis did not end there. First, the Court noted, Lamb’s failure to identify any guards in his grievance – as required by prison procedure – was reasonable because he was pepper-sprayed and couldn’t see. Thus the guards’ action made the grievance procedure unavailable. The Court then found a genuine issue of fact as to whether Lamb corrected that deficiency in his second grievance.
Defendants argued that Lamb’s statement alone could not prove that he filed that grievance. But the Court rejected that argument, saying “there is no rule of procedure that allows federal courts to disregard the plaintiff’s testimony simply because it is self-serving.”
Lamb also plausibly alleged that officials thwarted the grievance process by placing him in isolated confinement at a new prison, where he couldn’t access the electronic messaging system used to process grievances, as well as refusing to provide grievance forms and misleading him that his claim was futile. Thus the district court’s decision was vacated and the case remanded to resolve these factual disputes. See: Lamb v. Kendrick, 52 F.4th 286 (6th Cir. 2022).
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