New opinion: prison’s misleading excuses prisoner’s administrative exhaustion, plus two other reversals yesterday

Hardy v. Shaikh—prisoner rights—reversal—Krause

The introduction says it more clearly than I can:

This case presents the question of whether and under what circumstances a misrepresentation renders a grievance process “unavailable” within the meaning of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We conclude that the District Court erred in finding that the second step of the grievance process here was available to the plaintiff, Steven Patrick Hardy, even though a prison counselor misled him into believing that after his grievance was rejected he should file a new one rather than appeal the rejection. Because that misrepresentation thwarted Hardy’s use of the grievance process, we find that he exhausted his available administrative remedies. Accordingly, we will reverse the District Court’s grant of summary judgment and remand for further proceedings.

The prisoner was battling to get treatment for his festering leg wound that ultimately required two partial amputations, but the prison deflected every attempt. It rejected one pro se grievance because it was not “legible, understandable, and presented in a courteous manner.” In an unusual-for-the-Third-Circuit footnote, the opinion observed:

Here, in the face of confusing and evolving grounds for rejection, Hardy repeatedly requested relief for a manifestly serious medical complaint. To put it mildly, the present record does not reflect well on the prison’s handling of it.

The court adopted a two-part test for whether an inmate’s use of the prison grievance process is thwarted by misrepresentation: (1) whether the instruction was the sort that a reasonable inmate would rely on, and (2) whether it was misleading enough to a reasonable inmate to interfere with use of the grievance process. Finding both prongs satisfied here, the court reversed.

Joining Krause were Jordan and Greenaway, Jr. Arguing counsel were Leticia Chavez-Freed of Chavez-Freed Law for the prisoner, Tiffany Temas of Weber Gallagher for the defendant prison employees, and Howard Hopkirk for the state DOC.


In addition to today’s lone precedential opinion , the Court also issued two others yesterday:

Wayne Land & Mineral Grp. v. Del. River Basin Comm’n—civil—reversal—Fisher

The Third Circuit vacated a district court’s ruling on the merits on three Pa. Republican state senators’ motion to intervene in a long-running fracking lawsuit, holding that the court was required to consider fully whether the senators need to establish Article III standing.

Joining Fisher were Restrepo and Roth. Arguing counsel were Matthew Haverstick of Kleinbard for the senators, Kenneth Warren of Warren Environmental Counsel for one appellee, and Jordan Yeager (formerly of Curtin & Heefner, now a county judge) for other appellees.

U.S. v. Reyes-Romero—criminal—reversal—Krause

Defendants who prevail against their federal criminal prosecution are eligible by statute to recover attorney’s fees and costs if the government’s position was “vexatious, frivolous, or in bad faith.” Here, the Third Circuit reversed a district court’s award under this  provision, acknowledging “faulty processes” by the government overall but concluding that this “was not based on the type of pervasive prosecutorial misconduct” required. The court rejected the defendant’s threshold arguments that (a) the government’s failure to appeal the underlying dismissal barred it from challenging its factual rulings in the fee litigation, and (b) the government’s failure to raise issues in the fee litigation that it had litigated in the underlying dismissal barred it from raising them on appeal from the fee award.

Joining Krause were Smith and Hardiman. Arguing counsel were Donovan Cocas of the WDPA US Attorney’s office for the government and Adrian Roe of Roe & Simon for the erstwhile defendant.