John J. Smith v. Jeremy Andrews, Warden, EARU, ADC

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3356
___________________________
John J. Smith
lllllllllllllllllllllPlaintiff - Appellant
v.
Jeremy Andrews, Warden, EARU, ADC; James Dycus, Warden, EARU, ADC;
Emmer Branch, Deputy Warden, EARU, ADC; Tiffany Munn, Captain, EARU,
ADC; Dexter Payne, Arkansas Department of Correction; Leroy Golatt,
Lieutenant, EARU, ADC; Paul Harris, Sergeant, EARU, ADC; Williams,
Corporal, EARU, ADC; Asa Hutchison, Governor, State of Arkansas; Keith
Turner, Inmate ADC #147564
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Delta
____________
Submitted: February 16, 2023
Filed: July 26, 2023
____________
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
____________
SMITH, Chief Judge.
John J. Smith appeals the dismissal of his claims against various Arkansas
Department of Corrections staff members for damages stemming from injuries that

-- 1 of 6 --

he received when he was beaten by another inmate. Smith alleges that the defendants
failed to protect him from the beating. The district court dismissed Smith’s claim on
summary judgment, finding that he had failed to exhaust his administrative remedies
even though he remained hospitalized from his injuries until the time for filing
expired. We are asked to decide whether the district court erred in dismissing Smith’s
complaint for failure to exhaust administrative remedies. Upon review, we conclude
that the district court’s grant of summary judgment was premature. We reverse and
remand for further proceedings.
I. Background
Smith, an Arkansas prison inmate, alleged that he suffered a brutal assault at
the hands of another inmate with a sock containing a metal lock. Smith’s injuries
required emergency services. He was airlifted to the nearest trauma-capable hospital
and remained there, initially comatose, for approximately three weeks. Afterward, he
was returned to the prison’s ICU for 11 months before reentering the general prison
population. Smith alleges that the brain trauma he suffered from the attack was so
severe that he had to relearn basic functions like walking, talking, and writing.
Approximately four months after his return to the general prison population, Smith
filed a grievance with the prison about the incident. Smith alleges that the prison and
its employees are responsible for the extent of his injuries—that legally mandated
care and supervision would have prevented or at least mitigated the injuries he
suffered in the attack.
Smith’s grievance, subsequent appeals, and further grievances were all denied
as untimely. The prison’s rules require that grievances be filed within 15 days of the
underlying incident. R. Doc. 33, at 2. Administrative remedies are forfeited if an
inmate does not do so. Id. at 4.
Denied relief in the prison’s grievance process, Smith turned to federal court
and filed suit pro se. Smith’s claims are subject to the Prison Litigation Reform Act
-2-

-- 2 of 6 --

(PLRA), which requires that inmates exhaust available administrative remedies before
filing suit in federal court. See 42 U.S.C. § 1997e. The defendants moved for
summary judgment, arguing that Smith had failed to exhaust his administrative
remedies by failing to timely file.
In considering whether to grant summary judgment, the district court applied
the Supreme Court’s decision in Ross v. Blake, 578 U.S. 632 (2016). The district
court concluded that
the United States Supreme Court narrowly defined administrative
remedies as being unavailable when: (1) the prison’s grievance process
operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates; (2) the
administrative scheme is so opaque that it becomes, practically
speaking, incapable of use because some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it; or (3) prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.
Smith v. Andrews, No. 2:20-cv-00009-KGB-JJV, 2021 WL 4501864, at *4 (E.D. Ark.
Jan. 6, 2021) (internal quotation marks omitted), findings and recommendation
adopted, 2021 WL 4502132 (E.D. Ark. Sept. 30, 2021). The district court analyzed
those three kinds of unavailability and determined that it was unclear if any applied
to Smith’s situation. Smith argued that his medical incapacity—although not among
those three categories—made the prison’s administrative remedies unavailable to
him. The district court held that it did “not need to decide whether mental and
physical infirmities made administrative remedies ‘unavailable’ to [Smith] for two
reasons.” Id. at *5. First, it found that the untimely-filed grievances were
insufficiently specific as to the names of the defendants and the claims being pursued
and that one grievance was not properly appealed. Id. Second, it found that the first
filed grievance was more than four months after Smith’s return to the general prison
-3-

-- 3 of 6 --

population. Id. The district court declined to find whether administrative remedies
were unavailable to Smith and instead concluded that these two procedural defects
indicated a failure on his part to exhaust. Id. The district court concluded that the
PLRA’s exhaustion requirement thus barred Smith’s claim and granted summary
judgment in favor of the defendant. Id. Smith appeals from the district court’s grant
of summary judgment. After filing his appeal and briefing it pro se, Smith was
appointed counsel and new briefs were filed.
II. Discussion
We review the district court’s grant of summary judgment de novo, Spirtas Co.
v. Nautilus Ins. Co., 715 F.3d 667, 670 (8th Cir. 2013), taking care to construe pro se
filings liberally, “however inartfully pleaded,” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
The PLRA states that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
In Ross, the Supreme Court ended a judge-made exception (the “special
circumstances” exception) to the PLRA’s exhaustion requirement. Ross, 578 U.S. at
638–39. In doing so, the Court emphasized the PLRA’s mandatory language. Id. at
638 (“As we have often observed, that language is ‘mandatory’: An inmate ‘shall’
bring ‘no action’ (or said more conversationally, may not bring any action) absent
exhaustion of available administrative remedies.” (quoting Woodford v. Ngo, 548
U.S. 81, 85 (2006))). However, the Court also explained that the PLRA contains “its
own, textual exception”: “[A]n inmate is required to exhaust those, but only those,
grievance procedures that are [available, i.e.,] ‘capable of use’ to obtain ‘some relief
for the action complained of.’” Id. at 642 (quoting Booth v. Churner, 532 U.S. 731,
738 (2001)). But “[t]o state that standard, of course, is just to begin; courts in this and
-4-

-- 4 of 6 --

other cases must apply it to the real-world workings of prison grievance systems.” Id.
The Supreme Court then noted “as relevant here three kinds of circumstances in
which an administrative remedy” may be unavailable. Id. at 643 (emphasis added).
Those situations are (1) when the procedure “operates as a simple dead end”; (2)
when the administrative scheme is “so opaque that it becomes, practically speaking,
incapable of use”; and (3) when prison administrators deliberately thwart prisoner
attempts to use the process. Id. at 643–44.
The district court legally erred in declining to decide whether administrative
remedies were “unavailable” to Smith. As the Supreme Court stressed in Ross, the
PLRA “contains its own, textual exception to mandatory exhaustion.” Id. at 642.
“Under [the PLRA], the exhaustion requirement hinges on the ‘availab[ility]’ of
administrative remedies. An inmate . . . must exhaust available remedies, but need not
exhaust unavailable ones.” Id. (second alteration in original). As such, the PLRA
provides a threshold question that the district court must answer before proceeding:
What remedies were available to Smith? Smith must only exhaust those and no more.
If the prison’s administrative remedies were unavailable to him, then any procedural
defects are immaterial. Under the PLRA, only a plaintiff’s failure to exhaust an
available remedy can bar his claim. Because the district court declined to decide
whether the prison’s grievance procedure was unavailable to Smith, we must reverse
the grant of summary judgment and remand the case for further proceedings.1
On remand, the district court must determine whether the prison’s
administrative remedies were “available” to Smith. 42 U.S.C. § 1997e(a). As the
1Smith’s appeal presents the legal question of when administrative remedies are
unavailable to an inmate due to a medical condition and requests that we adopt a
standard, find that Smith meets it, reverse the grant of summary judgment, and
remand. Due to the fact-intensive nature of the inquiry, we decline to find that
administrative remedies were unavailable to Smith and remand for the district court
to determine that question in the first instance.
-5-

-- 5 of 6 --

Supreme Court has explained, “available” means “capable of use to obtain some relief
for the action complained of.” Ross, 578 U.S. at 642 (internal quotation marks
omitted). It follows that administrative remedies are “unavailable” to an inmate under
the PLRA when (1) the inmate was unable to file a timely grievance due to physical
or mental incapacity; and (2) the administrative system’s rules do not accommodate
the condition by allowing a late filing. See Rucker v. Giffen, 997 F.3d 88, 94 (2d Cir.
2021) (concluding that “grievance procedures were ‘incapable of use’” because the
plaintiff was hospitalized “for over a month,” but “any failure to file a grievance
within five days . . . would render it untimely” (quoting Ross, 578 U.S. at 643)); see
also Smallwood v. Williams, 59 F.4th 306, 314 (7th Cir. 2023) (noting that
administrative remedies may be unavailable “to an inmate incapacitated by a stroke”);
Ross, 578 U.S. at 648 (contemplating whether “procedures [were] knowable by an
ordinary prisoner in [the plaintiff’s] situation”).2
III. Conclusion
Accordingly, the judgment of the district court is reversed, the grant of
summary judgment is vacated, and the case is remanded for further proceedings
consistent with this opinion.
______________________________
2We note and disagree with Mason v. Corizon, Inc., No. 6:13-cv-06110-SOH-
MEF, 2015 WL 10434528 (W.D. Ark. Dec. 17, 2015), report and recommendations
adopted, No. 6:13-cv-6110, 2016 WL 868835 (W.D. Ark. Mar. 7, 2016). The district
court in Mason found that the plaintiff was entitled to an “exhaustion exception” on
the basis of his physical incapacity. Id. at *7. In order to provide this exception, the
court determined when the plaintiff was physically capable of filing a grievance, and
checked his timeliness from that date. Id. In our view, Mason crafted a judicial
remedy for a policy that provided no recourse for an inmate who failed to file and in
doing so deviated from the text of both the PLRA and the prison’s grievance
procedure.
-6-

-- 6 of 6 --