Tenth Circuit: Procedural Defense to Federal Prisoner’s ETS Suit Fails on Inadequate Grievance Record-Keeping

by John E. Dannenberg

The Tenth Circuit U.S. Court of Appeals reversed a summary judgment order in a federal prisoner’s pro se Environmental Tobacco Smoke (ETS) suit against private prison contractor Cornell Corrections, Inc., because Cornell’s grievance record-keeping was so inadequate that the question of administrative exhaustion could not be resolved.

In reversing the lower court, the Tenth Circuit noted that the intervening U.S. Supreme Court decision in Jones v. Bock, 127 S.Ct. 910 (2007) [PLN, May 2007, p.36] made the burden of proving exhaustion an affirmative defense, which overruled prior Tenth Circuit precedent.

Federal prisoner Ethan Roberts was housed in Cornell Corrections’ Santa Fe [New Mexico] County Adult Detention Center from April 1999 to June 8, 2000. He sued Cornell on June 9, 2003 in U.S. District Court under 42 U.S.C. § 1983 for irreparable lung damage caused by his exposure to saturated ETS 14-20 hours per day. Cornell defended on two grounds: That the statute of limitations had expired and Roberts had not exhausted administrative remedies. The district court dismissed the case on Cornell’s motion for summary judgment.

The Tenth Circuit found Roberts’ 3-year-and-one-day filing was timely under New Mexico’s controlling tolling statute, § 37-1-8, which provides three years to file suit, not counting the day of release. Robert’s claim that while incarcerated Cornell had not provided him with law library access to research his filing deadlines was discounted by the Court when it observed that Roberts nonetheless had two years after his release to conduct legal research.

The crucial remaining question revolved around Roberts’ claim that he had exhausted administrative remedies by filing 14 grievances, versus Cornell’s claim that he never did so. Roberts did not have copies because he was denied access to the law library while incarcerated, but he did have affidavits from numerous prisoner witnesses who observed him filling out and mailing the grievances. Moreover, he submitted copies of federal Bureau of Justice investigative reports on Cornell’s Santa Fe facility, which had reprimanded Cornell for repeated “failure to document its actions in response to inmates’ complaints and failure to let the inmate know how it has responded.”

From this, the Court of Appeals concluded that the defendants “virtually admit that the institution’s record-keeping is so incomplete that it cannot conclusively deny that Mr. Roberts filed the grievances.”

To make matters worse, Roberts was never provided with any Cornell grievance policy, but used a form that appeared to the Court to correspond to an earlier procedure that had been revised in November 1999. The Tenth Circuit found the applicable grievance process was so unclear as to defeat any defense claiming that Roberts had used the wrong procedure.

Noting that Roberts had no affirmative duty to prove exhaustion under Bock, the appellate court allowed the defendants to raise exhaustion as an affirmative defense on remand. But meeting that burden would prove difficult. Cornell’s grievance records search turned up only six of Roberts’ grievances, none of which were among the 14 he claimed were related to ETS. Moreover, the Bureau of Justice reports provided compelling evidence that Cornell’s record-keeping was facially inadequate. Following remand, the case settled on July 29, 2008 for an unknown amount to be used by Roberts “for law school or college.” See: Roberts v. Barreras, 484 F.3d 1236 (10th Cir. 2007).