Napier v. Laurel County

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0040p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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LESTER NAPIER,
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Plaintiff-Appellant,
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No. 09-6239
v.
,
>
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LAUREL COUNTY, KENTUCKY; JACK
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SIZEMORE, Individually and in his official
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capacity as the Laurel County Jailer; JOHN
and JANE DOES, Nos. 1, 2, and 3, Individually -
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and in their official capacity as medical
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professionals, officers and employees of the
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Laurel County Detention Center,
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 06-00368—Amul R. Thapar, District Judge.
Argued: October 20, 2010
Decided and Filed: February 9, 2011
Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

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COUNSEL
ARGUED: Andrew J. Horne, ANDERSON & HORNE PLLC, Louisville, Kentucky,
for Appellants. Leslie Patterson Vose, LANDRUM & SHOUSE, LLP, Lexington,
Kentucky, for Appellees. ON BRIEF: Andrew J. Horne, ANDERSON & HORNE
PLLC, Louisville, Kentucky, Gregory A. Belzley, Prospect, Kentucky, for Appellants.
Leslie Patterson Vose, Bradley C. Hooks, LANDRUM & SHOUSE, LLP, Lexington,
Kentucky, for Appellees.
McKEAGUE, J., delivered the opinion of the court, in which LUDINGTON,
District Judge, joined. MARTIN, J. (pp. 12–15), delivered a separate dissenting opinion.

*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 2

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OPINION
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McKEAGUE, Circuit Judge. This case is a simple application of the exhaustion
requirement of the Prison Litigation Reform Act. Plaintiff Lester Napier contracted an
infection of Methicillin-resistant Staphylococcus aureus (“MRSA”) while in jail at the
Laurel County Detention Center (“LCDC”). After the condition worsened, he was sent
to the hospital and had to undergo a surgical scrotectomy. He spent a week in the
hospital, then returned to the jail. He was in LCDC for at least four days, then was sent
to do home care to recover from the surgery. Several months later, he was again
incarcerated in Kentucky, this time in the Marion Adjustment Center (“Marion facility”).
Alleging that the LCDC violated his Eighth Amendment rights through its negligence
and failure to provide medical care, he filed a claim under 42 U.S.C. § 1983 (2006) in
district court (along with state negligence claims). Because Napier never filed a
grievance through the jail’s administrative process, as required by the Prisoner Litigation
Reform Act (“PLRA”), the district court dismissed the federal claim. The court also
dismissed the state law claims for lack of supplemental jurisdiction, though it
acknowledged that he could pursue those claims in state court. Napier now appeals the
court’s judgment, arguing that he was not required to exhaust LCDC’s administrative
process because no remedy was available to him when he filed his suit.

Because the government demonstrated that the LCDC remedies were
available—both on paper and in practice—and because Napier concedes that he did not
even try to exhaust any remedies, we AFFIRM the district court’s dismissal of his
federal claim.

I. BACKGROUND

Appellant Lester Napier was incarcerated in the LCDC in August 2005. When
he arrived there, he received an inmate orientation manual that included the grievance
procedure at issue in this case. (R. 134, Resp. in Opp’n, Ex. 2: Inmate Handbook Pages.)
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 3

The manual also provided LCDC prisoners with a formal process through which they
could receive medical attention.

In late 2005, Napier contracted MRSA at the jail; he alleges this was due to the
overcrowded conditions and the jail’s failure to take steps to meaningfully reduce a
known risk of MRSA infection. During his stay, Napier was housed in the medical
watch area due to the severity of his several chronic medical problems, and his need for
a C-PAP machine, breathing treatments, and multiple daily medications. When the rash
began, he received treatment from doctors between October and January, and he testified
that he spoke to the medical staff every day. However, the problem was much worse by
January. On January 10, 2006, Napier complained about the rash and groin pain, and
was taken to see an outside physician about his symptoms. The doctor prescribed an
antibiotic, and Napier was sent back to the LCDC. Two days later, he again complained
to prison medical staff, this time saying his scrotum was painful and swollen. The nurse
treated him with ibuprofen and an ice pack. The following day, he was brought back to
the doctor, and was soon transferred to the hospital where he was diagnosed with
MRSA, which had developed into scrotal cellulitis with gangrene. Napier underwent a
surgical scrotectomy to remedy the issue. He remained in the hospital for a week, and
was then transferred back to the LCDC. He remained there for several days, at least four
according to his brief. At this time, he was released to receive home healthcare.

Six months later, on July 24, 2006, Napier was once again imprisoned, pursuant
to a new state law conviction for being a felon in possession of a firearm. On August 3,
2006, he was transferred to state custody at the Marion facility, a private correctional
institution under contract with the state government.

Napier filed the current suit on August 16, 2006, while an inmate at the Marion
facility. His claims against LCDC included: 1) violation of his Eighth Amendment
rights by failing to provide proper medical care; 2) violation of his Eighth Amendment
rights by housing him in unsanitary and overcrowded conditions; 3) willfully violating
his rights under Kentucky law; 3) intentional infliction of emotional distress; and 5)
negligence and gross negligence.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 4

In July 2009, the district court granted LCDC’s motion for summary judgment
with respect to Napier’s federal claims, and dismissed his state law claims without
prejudice. It concluded that by not filing a grievance under LCDC’s policy, Napier failed
to exhaust all of his available administrative remedies as required under the PLRA.
42 U.S.C. § 1997e(a) (2006).

The sole issue on appeal is whether Napier failed to exhaust all available
administrative remedies under the PLRA.1 Since Napier does not contend that he
exhausted his administrative remedies, the issue is more specifically whether LCDC’s
grievance policy was “available” to him such that he was required to exhaust it. Napier
argues that LCDC’s administrative remedies were not available to him when he resided
at the Marion facility, and that LCDC failed to explain its grievance policy or the PLRA
to him.2 We conclude that the jail’s administrative remedies were available to Napier.
Therefore, summary judgment was appropriate and we AFFIRM.

II. ANALYSIS

The PLRA’s Exhaustion Requirement

Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in
the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006) (internal citations omitted).
The law seeks to alleviate the burden of this litigation by requiring prisoners to exhaust
all administrative remedies before they can file suit in federal court. See 42 U.S.C.

1
Though Napier was re-incarcerated on different charges, the PLRA still applies to him, as the
only question is: “Is the plaintiff a prisoner confined in a jail, prison, or other correctional facility?”Cox
v. Mayer, 332 F.3d 422, 424 (6th Cir. 2003) (applying the Act to a plaintiff who was no longer incarcerated
because he was a prisoner when he filed suit).
2
This argument, too, fails. A plaintiff’s failure to exhaust cannot be excused by his ignorance
of the law or the grievance policy. Brock v. Kenton Cty., 93 F. App’x 793, 797-98 (6th Cir. 2004)
(unpublished); Castro v. Crawford, 102 F. App’x 852, 853-54 (5th Cir. 2004) (per curiam); Yousef v.
Reno, 254 F.3d 1214, 1221 (10th Cir. 2001); see also Molina-Crepso v. United States Merit Sys. Prot. Bd.,
547 F.3d 651, 662 (6th Cir. 2008) (“[E]ven in civil suits, ignorance of the law does not excuse the failure
to follow it.”). In any event, any claim that Napier was ignorant of LCDC’s grievance process or
misunderstood it is unpersuasive. The grievance policy was distributed to all LCDC prisoners in the
inmate orientation manual, (R.E. at 19, Resp. to Disc. Req.), and he therefore had at least constructive
notice of the policy because it was provided to him. Second, the orientation manual also included how to
seek medical assistance, a process which he initiated—successfully—more than once; therefore, he showed
subjective awareness of some policies, not to mention that his experience was that jail authorities were
responsive to administrative petitions (albeit of a different kind). Lastly, when asked whether he had filed
a formal grievance, Napier admitted that he had not done so; he did not say he was unaware of the policy.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 5

§ 1997a. The “dominant concern” of the PLRA is “to promote administrative redress,
filter out groundless claims, and foster better prepared litigation of claims aired in
court.” Porter v. Nussle, 534 U.S. 516, 528 (2002) (making the exhaustion requirement
mandatory).

Specifically, the law provides 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). This requirement is a
strong one. To further the purposes behind the PLRA, exhaustion is required even if the
prisoner subjectively believes the remedy is not available, Brock v. Kenton County, 93
F. App’x 793, 798 (6th Cir. 2004); even when the state cannot grant the particular relief
requested, Booth v. Churner, 532 U.S. 731, 741 (2001); and “even where [the prisoners]
believe the procedure to be ineffectual or futile . . . .” Pack v. Martin, 174 F. App’x 256,
262 (6th Cir. 2006).

Because he was clearly a “prisoner” at the time he filed suit, Napier was subject
to the PLRA’s requirements. And because it applies to a person “in any jail, prison, or
other correctional facility,” this is true whether he was housed at the LCDC or the
Marion facility. The only question is whether the LCDC’s grievance procedure was
“available” to Napier.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 6

Availability of an Administrative Remedy

The applicable portions of LCDC’s grievance procedure read:

POLICY:
An inmate shall be allowed to file a grievance at such time as the inmate
believes he or she has been subject to abuse, harassment, abridgement of
civil rights, or denied privileges specified in the posted rules.
(Grievances must be restricted to incidents which occur while the
prisoner is in custody of the facility.) . . . .

PROCEDURE:
1. Transmittal: A grievance shall be made in the form of a written
statement by the inmate promptly following the incident, sealed in an un-
stamped envelope and addressed to the Jailer or his designee such
statement shall be transmitted promptly and without interference to the
Jailer by a detention officer or staff member to whom the grievance is
given.

Napier does not contend that the policy would not have covered him or his claims
while in the LCDC. Nor does he contend that he exhausted remedies, to the extent he
could. Instead, he argues 1) he need not exhaust because no administrative process at the
Marion facility can provide a remedy, and 2) the administrative process at LCDC was
not available to him when he filed suit because he was in a different prison.

Availability of Process at the Marion Adjustment Center

First, the absence of an administrative process at the Marion facility for Napier’s
claim is irrelevant if a remedy exists through LCDC. The PLRA requires that a prisoner
at “any” jail must exhaust “such administrative remedies as are available.” It does not
require that the remedies must be available at the very facility where the prisoner is
currently located; instead, any “available” remedy must be exhausted, and that includes
remedies at Napier’s past location.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 7

Availability of the Process at LCDC

Second, Napier argues that the grievance procedure at LCDC was no longer
available to him after he was imprisoned in a different, private facility. However, he
presented no evidence to the district court to support this contention. Generally, “[t]he
transfer of a prisoner from one facility to another does not render the grievance
procedures at the transferor facility ‘unavailable’ for purposes of exhaustion.” Blakey
v. Beckstrom, No. 06-163-HRW, 2007 WL 204005, at *2 (E.D. Ky. Jan. 24, 2007);3 see
also Jackson v. Walker, No. 6:07-230-DCR, 2007 WL 2344938, at *5-6 (E.D. Ky. Aug.
14, 2007) (finding a policy which simply stated it applied to “all inmates,” without
contemplating inter-facility grievances, was available).

Inherent in Napier’s argument is the idea that where the facility has not expressly
provided for inter-facility grievances, the remedy is categorically unavailable. We reject
this proposition and hold that a jail’s grievance policies need not explicitly provide for
all possible scenarios in which a prisoner may seek to file a grievance. Instead, when
a reasonable policy is in place, but is silent or vague in a particular circumstance, courts
must look to see whether the prisoner has attempted to satisfy the requirements of the
policy.

If Napier had attempted to follow the letter of the grievance policy, and was
unsuccessful, this would be a closer question. Indeed, if he had written his grievance,
simply addressed it to the LCDC jailer or his designee (per the policy), and handed it to
a guard in his current facility (and this had not worked to reach LCDC), he could have
argued that he followed the given procedure but that it was no longer meaningfully
available to him. He also could have mailed his grievance to see if it was accepted.

But he did nothing. “The Sixth Circuit requires some affirmative efforts to
comply with the administrative procedures before analyzing whether the facility

3
The dissent contends that this case is distinguishable, because the two facilities “shared policies
and practices” and “would easily be prepared to process grievances between each other from transferred
prisoners.” Infra at [13]. However, in Blakey, the jail’s procedures did not contemplate or authorize inter-
facility grievances at all. There is no evidence to suggest that the facilities here are not equally as
“prepared to process grievances between each other.”
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 8

rendered these remedies unavailable.” Braswell v. Corr. Corp. of Am., No. 08-0691,
2009 WL 2447614, at *7 (M.D. Tenn. Aug. 10, 2009) (citing Brock v. Kenton Cnty., 93
F. App’x 793, 798 (6th Cir. 2004)). Our Court has consistently analyzed whether an
inmate’s efforts to exhaust were sufficient under the circumstances, but in each case, the
prisoner did something. See Bruce v. Corr. Med. Serv., Inc., No. 08-6339, 2010 WL
2842736, at *4 (6th Cir. July 21, 2010) (noting that prisoner attempted to file a grievance
and “was told Policy 501.01 would not allow it”); Flournoy v. Schomig, 152 F. App’x
535, 537 (7th Cir. 2005) (recognizing that plaintiff had submitted an “emergency
grievance” before being transferred, then filed another after transfer); Rancher v.
Franklin Cnty., 122 F. App’x 240, 242 (6th Cir. 2005) (excusing the exhaustion
requirement because the prisoner had filed a grievance with the jail, contacted prison
personnel, and submitted documents from other prisoners stating that the jail had refused
to accept medical grievances).

The dissent insists that there is no duty for prisoners to attempt to exhaust when
“availability” is even in question, but only when “processes were available” and the
issue is “futility.” Infra at [14]. This suggested dichotomy is false; whether a process
is “available” for purposes of the PLRA often turns on whether a grievance procedure
is available—on its face—but is actually futile, despite its language. See Santiago v.
Meinsen, 89 F. Supp. 2d 435, 440-41 (S.D.N.Y. 2000) (addressing the excuse that a
prisoner was transferred to a different facility as a “futility argument,” and concluding,
“Should the plaintiff, however, be rewarded for failing to participate in the grievance
procedure by being permitted to bring a federal action without even attempting to
resolve his claim administratively? The answer is a decided no.”). Prisoners often argue
futility precisely because a policy does exist, but they feel it was not actually available
to them. See Brock, 93 F. App’x at 798 (“[The PLRA] says nothing about a prisoner’s
subjective beliefs, logical or otherwise, about the administrative remedies that might be
available to him. The statute’s requirements are clear: If administrative remedies are
available, the prisoner must exhaust them.” (Internal quotations omitted)).
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 9

The dissent summarily concludes that “no processes were available,” but another
prisoner’s experiences demonstrate that they were. Faced with a policy that was not
clearly unavailable, the only way to determine if the process was available, or futile, was
to try. Here, a process existed, and therefore even according to the dissent, “compliance
with those rules . . . is required.” Infra at [13]; see Braswell, 2009 WL 2447614, at *7
(stating clearly that efforts must be made before an analysis of availability).

We are not requiring that a prisoner utilize every conceivable channel to grieve
their case, but even when a policy is vague, a prisoner must do what is required by the
grievance policy.4 “We have clearly held that an inmate does not exhaust available
administrative remedies when the inmate entirely fails to invoke the prison’s grievance
procedure.” Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003) (citing Hartsfield v.
Vidor, 199 F.3d 305, 308-09 (6th Cir. 1999); Brown v. Toombs, 139 F.3d 1102, 1104
(6th Cir. 1998) (per curiam).

Napier was provided the policy at issue, and had successfully filed other types
of grievances in the past. Yet he did not file a grievance in this case, either when still
housed at the LCDC or when he was later incarcerated at the Marion facility. Notably,
when asked why he had not done so, Napier did not say, “I did not have time,” “It would
have been useless,” “I didn’t know I had a claim,” or “I didn’t think I could.” He stated
that he did not complain to anyone because he did not want to complain or “bother the
staff.” (R.E. 113, Ex. A, Napier Dep. at 56.) The record seems to indicate that Napier
simply chose not file a grievance, and proceeded to file a claim directly in federal court.
That is precisely what the PLRA was designed to protect against.

Summary Judgment

In a claim by a prisoner, failure to exhaust administrative remedies under the
PLRA is an affirmative defense that must be established by the defendants. Jones v.
Bock, 549 U.S. 199, 204 (2007); Vandiver v. Corr. Med. Servs., Inc., 326 F. App’x 885,

4
Importantly, this is not the same as requiring prisoners to “seek[] a remedy through any
reasonable process not expressly prohibited by the jails’ remedy policy.” Dissent, infra at [13].
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 10

888 (6th Cir. 2009). Because the defendants moved for summary judgment on this
defense, it was their burden to show that there was an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). But as the
district court noted, the jail met this burden. Nothing in the LCDC policy explicitly
prohibits inmates from filing grievances after they have been released from that facility.
In fact, though the text restricts grievances to incidents that occur while there, it does not
similarly state that a grievance must be filed while there, i.e., cannot be pursued by an
inmate who is no longer incarcerated at the jail. Additionally, it is possible for an
individual to file a grievance from another facility and comply with the prescribed
procedures.5

Most powerfully, the defendants submitted evidence that a different prisoner has,
in fact, filed a grievance at LCDC while incarcerated elsewhere in the state. (R. 133.)
While the dissent insists that LCDC’s “process would not work anywhere outside the
confines of that jail,” infra at [12], the evidence shows that it did work. The other
prisoner had a claim arising from his stay at LCDC, went to another facility, and
successfully filed an LCDC administrative grievance. It is this exact process that the
PLRA required Napier to utilize, but he did not.6

Once the defendants put forth evidence, Napier was required to present
“significant probative evidence” to defeat the motion for summary judgment on this
ground. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). He was required
to show “more than a metaphysical doubt as to the existence of a genuine issue of
material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). However, after the jail presented a valid administrative process, assertions that
the process was still available to him, and evidence that another prisoner has successfully

5
The district court noted that the inmate could simply place his written statement inside an un-
stamped envelope addressed to the jailer, and then place that inside a stamped, addressed envelope. He
also could have followed the policy, and simply handed the unstamped envelope to a “detention officer
or staff member” as the policy procedure requires.
6
It is not clear if the other prisoner filed at the urging of his family, or even Napier’s counsel, but
it does not matter. If that is true, the ironic truth is that by his own advice, Napier’s counsel provided the
needed proof for LCDC, to demonstrate that its grievance policy and remedies remain available after an
inmate’s transfer.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 11

accessed that process, Napier presented no evidence at all to rebut the availability of that
remedy. See Celotex Corp., 477 U.S. at 324 (“Rule 56(e) therefore requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’ ”) (internal citations omitted). Therefore,
defendants met their burden to prove that there was no disputed issue on whether the
LCDC remedy was still available, and because Napier did not even attempt to exhaust
that remedy, summary judgment was appropriate.

III. CONCLUSION

The PLRA’s exhaustion requirement is a strict one. This is not to be harsh on
prisoners, but to further the important goals behind the law: to allow prison officials “a
fair opportunity” to address grievances on the merits, to correct prison errors that can
and should be corrected, and to create an administrative record for those disputes that
eventually end up in court. Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010).

When faced with a grievance policy that did not preclude his claim, Napier was
required to take action to exhaust this remedy. Napier took no steps to attempt to
exhaust his administrative remedies, and presented no evidence below indicating that the
policy was not actually available to him. Furthermore, the defendants presented evidence
1) demonstrating that it had a policy for grievances like Napier’s; 2) asserting that it was
still available despite his location; and 3) proving that another prisoner in his situation
had successfully filed a grievance under the policy. Therefore, Napier failed to exhaust
the available administrative remedy. He is still free to pursue his state law claims, but
as to his federal claims, we AFFIRM the district court’s grant of summary judgment.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 12

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DISSENT
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BOYCE F. MARTIN, JR., Circuit Judge, dissenting. The majority holds “that
a jail’s grievance polic[y] need not explicitly provide for all possible scenarios in which
a prisoner may seek to file a grievance. Instead, when a reasonable policy is in place,
but is silent or vague in a particular circumstance, courts must look to see whether the
prisoner has attempted to satisfy the requirements of the policy.” Supra at 7. Because
I believe that this holding conflicts with the intent of the Prison Litigation Reform Act
and applicable Supreme Court precedent, as well as misapplies the requirement of
attempted exhaustion, I respectfully dissent.

The Laurel County Detention Center’s administrative policy instructed prisoners
to file grievances by handing them to prison staff in envelopes with no postage and
addressed simply to “the Jailer or his designee.” This process would not work anywhere
outside the confines of that jail, especially for a former prisoner after being transferred
to a different facility. Even if a transferred prisoner wanted to send a grievance through
the mail, and had a stamp, envelope, paper, and pen, Laurel County’s process does not
provide a mailing address.1 Therefore, Laurel County’s administrative remedies were
not available to Napier when he was transferred to the Marion Adjustment Center unless
there was some additional process by which he could have filed a grievance with Laurel
County through the Marion facility. However, there was not. The district court
expressly observed in a summary judgment hearing that there was no process at the
Marion facility, even on paper, by which Napier could file a grievance with Laurel
County.

1
The majority and the district court were reassured in their holdings because one former prisoner
of Laurel County successfully mailed a grievance to Laurel County from another facility. See supra at 10
& n.5. When fleshed out, however, this fact only detracts from their holdings. That former prisoner
mailed his grievance only after he received assistance from his family and instructions to do so from
Napier’s attorney. Napier’s attorney provided this instruction to this non-client only because the district
court in Napier’s case indicated during a summary judgment hearing that it seemed possible that Napier
could have mailed a grievance to comply with Laurel County’s policy. This extraordinary situation
illustrates how prisoners of ordinary means in ordinary situations would not have known to mail a
grievance or had the ability to do so.
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 13

The majority has interpreted availability to require seeking a remedy through any
reasonable process not expressly prohibited by a jail’s remedy policy. However, the
Supreme Court’s decisions in Jones v. Bock, 549 U.S. 199, 218 (2007), and Woodford
v. Ngo, 548 U.S. 81, 88 (2006), demand a different result. Individual jails are
responsible for developing administrative remedies and making them available to
prisoners. Jones, 549 U.S. at 218. Prisoners are required to “complete the applicable
administrative review process in accordance with the applicable procedural rules.”
Woodford, 548 U.S. at 88. Importantly, compliance with those rules provided by the
jails is all that is required to satisfy exhaustion. Jones, 549 U.S. at 218. Prisoners have
few resources, if any, that are not provided to them by the jails in which they reside.
Practically speaking, the only way that compliance can be achieved by men and women
who are incarcerated, earn little or no money, and have few or no possessions is if the
prison provides them with resources—namely paper, pens, and a delivery system.
Therefore, the majority’s interpretation employs an impracticable reading of the Act
because it potentially requires prisoners to utilize more resources than the jail provides
through its policy.

Additionally, the majority notes that transfer from one facility to another does
not generally render grievance procedures unavailable. However, the only cases that the
majority cites for this proposition are factually distinguishable. Thus, their rationales
are not persuasive here. Furthermore, they are both unpublished district court decisions.
In the first case, Blakey v. Beckstrom, No. 06-163-HRW, 2007 WL 204005, at *2 (E.D.
Ky. Jan. 24, 2007), the prisoner had been transferred between two facilities run by the
Kentucky Department of Corrections. In that situation, the district court held that the
Department’s grievance policy was available to the prisoner at both facilities. Id. In the
second case, Jackson v. Walker, No. 6:07-230-DCR, 2007 WL 2344938, at *5-6 (E.D.
Ky. Aug. 14, 2007), the same situation applied to a prisoner transferred between two
federal facilities, both of which used the nationwide Bureau of Prisons grievance process
employed by all federal facilities. These conclusions make sense. In both cases, the
former and current facilities were managed by the same entity. They shared policies and
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 14

practices. Ultimately, they would easily be prepared to process grievances between each
other from transferred prisoners, and the district courts found as much.

Conversely, the Marion facility was privately owned and operated, unlike the
public Laurel County facility. This is wholly unlike two facilities operated by the same
entity that employ system-wide policies. Indeed, I believe that where two separate
facilities do not work together to provide the former facility’s remedies at the new
facility, the former facility’s administrative processes are no longer available to the
transferred prisoner. See, e.g., Bradley v. Washington, 441 F. Supp. 2d 97, 102-03
(D.D.C. 2006) (prisoner who filed suit against officials of Washington, D.C. jail was not
required to exhaust the jail’s administrative remedies after he had been transferred to two
different federal facilities because the jail’s grievance policy did not provide for
grievance submission from outside the facility). Therefore, Laurel County’s
administrative processes were not available to Napier at the Marion facility.

Finally, the majority’s holding misapplies to this case the doctrine of attempted
exhaustion. The majority cites multiple cases for the proposition that Napier had to at
least attempt to exhaust Laurel County’s administrative remedies in order to satisfy the
exhaustion requirement. In those cases, however, the courts were not asked to answer
the same threshold question before us: whether an administrative process was available.
Rather, in those cases, the courts had already passed that threshold and focused on the
different issue of whether exhaustion of an available process could be excused for some
other reason such as futility or prison interference. Although the majority hints that
Laurel County’s administrative process was available to Napier, it never expressly
decides the issue. Instead, it bypasses the threshold, categorizing the process as “silent
or vague in [Napier’s] circumstance.” Supra at 7. I believe we should only reach the
issue of attempted exhaustion if we first expressly determine that administrative
processes were available.2 And because I believe no processes were available here

2
The majority states that I “insist[] that there is no duty for prisoners to attempt to exhaust when
‘availability’ is even in question, but only when ‘processes were available’ and the issue is ‘futility.’”
Supra at 8. The last clause of that passage limits my opinion beyond what I have proposed. I believe that
we should only reach the issue of attempted exhaustion in cases where we first find that administrative
processes were available. Yet, the majority suggests that I would further reduce the sampling to cases
No. 09-6239 Napier v. Laurel County, Kentucky, et al. Page 15

except for prisoners confined within Laurel County, we should not reach the issue of
whether Napier should have attempted exhaustion.

Accordingly, I respectfully dissent.

where we first find that administrative processes were available and futility was an issue. That is not so.