Rucker v. Giffen

20-1318
Rucker v. Giffen

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2020
No. 20-1318

ANTHONY RUCKER,
Plaintiff-Appellant,

v.

ROBBIN GIFFEN, RONA SCOTT, ANDREA SMITH, NIKKI RUSH,
BURTON FLETCHER, KAREN HAMM, STEVEN HOLDEN,
MARQUERIETE WIRTH, AND JOSEPH KHOURI,
Defendants-Appellees. *

On Appeal from the United States District Court
for the Western District Of New York

SUBMITTED: MARCH 5, 2021
DECIDED: MAY 6, 2021

Before: LEVAL, CABRANES, and MENASHI, Circuit Judges.

Plaintiff-Appellant Anthony Rucker appeals, pro se, from the
dismissal of his suit for failure to exhaust available administrative

* The Clerk of Court is directed to amend the caption as set forth above.
remedies as required by the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e. Rucker filed suit under 42 U.S.C. § 1983 alleging
that officials at the Monroe County Jail denied him adequate medical
care and subjected him to cruel and unusual punishment during his
pretrial confinement. Rucker alleges that he experienced severe
medical distress but was denied medical treatment for days. He was
ultimately admitted to the hospital, where he was found to be in a
critical condition. He was placed in a coma and underwent serious
surgeries. His hospitalization lasted over a month. Around a year
after the incident, Rucker filed a grievance against the officials. The
prison returned his grievance unprocessed and informed him that, in
accordance with the Monroe County Jail’s grievance procedures, the
prison would not entertain any grievance filed more than five days
after the incident giving rise to the grievance. Rucker argues that the
administrative procedures were unavailable to him because he was
hospitalized and in critical medical condition for over a month and
therefore could not have filed a grievance within that five-day
timeframe.

We agree. Administrative remedies are “unavailable” when
(1) an inmate’s failure to file for the administrative remedy within the
time allowed results from a medical condition, and (2) the
administrative system does not accommodate the condition by
allowing a reasonable opportunity to file for administrative relief.
Administrative remedies were unavailable to Rucker because he was
hospitalized and in a critical medical condition during—and well
past—the five-day timeframe to file a grievance according to the
Monroe County Jail’s grievance procedures, and because the prison
made clear that it would not process any grievance filed past that five-

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day timeframe. We REVERSE the district court’s judgment and
REMAND for further proceedings.

Anthony Rucker, pro se, Coxsackie, NY.

Paul A. Sanders, Barclay Damon LLP, for Defendants-
Appellees, Rochester, NY.

MENASHI, Circuit Judge:

Plaintiff-Appellant Anthony Rucker alleges that during his
pretrial detention at the Monroe County Jail in 2017 he experienced
extreme medical distress, which was ignored and which led to his
hospitalization for just over a month. In 2018, Rucker filed a grievance
according to the administrative procedures set forth in the Monroe
County Jail’s Inmate Handbook. According to those procedures,
inmate grievances must be filed within five days of the incident
giving rise to the grievance. Rucker was informed by letter that his
grievance would not be processed because the five-day time period
to file his grievance had passed.

Rucker then filed suit, pro se, against various medical
professionals at the jail (“defendants-appellees”) and several jail
deputies (“jail defendants”) under 42 U.S.C. § 1983. In his suit, Rucker
alleges that the defendants-appellees denied him adequate medical
care and subjected him to cruel and unusual punishment during his
pretrial confinement at the Monroe County Jail in violation of his
constitutional rights.

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 The district court (Geraci, J.) dismissed the action against the
jail defendants with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b). The defendants-appellees then moved to dismiss the suit
arguing, inter alia, that Rucker failed to exhaust available
administrative remedies as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e. The district court granted the
defendants-appellees’ motion to dismiss on the ground that Rucker
failed to exhaust available administrative remedies and did not reach
the question of whether Rucker adequately stated a constitutional
claim. Rucker timely appealed the dismissal of his suit only against
the defendants-appellees.

We disagree with the district court that Rucker failed to exhaust
available administrative remedies. Rucker could not file a grievance
during the five-day grievance-filing period because he was in a
critical medical condition for which he was hospitalized, and the jail
refused to process any grievance filed after that five-day timeframe
without accommodating his medical condition. Under these
circumstances, administrative remedies were unavailable to Rucker.

We hold that administrative remedies are “unavailable” when
(1) an inmate’s failure to file for the administrative remedy within the
time allowed results from a medical condition, and (2) the
administrative system does not accommodate the condition by
allowing a reasonable opportunity to file for administrative relief.
Accordingly, we REVERSE the judgment of the district court and
REMAND for further proceedings.

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 BACKGROUND

In reviewing the district court’s grant of the motion to dismiss,
we accept the factual allegations in the amended complaint as true.
Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).

According to the amended complaint, on June 10 or June 14,
2017, Rucker began to experience extreme stomach pain, dizziness,
nausea, shortness of breath, dehydration, and weakness, and he asked
to be taken to the hospital. He reported his symptoms to a jail deputy
on June 10 or June 14, but he was told to “wait for the nurse at the
morning med pass.” Am. Compl. at 8, Rucker v. Fletcher, No. 18-CV-
6575, 2020 WL 1703240 (W.D.N.Y. Apr. 8, 2020), ECF No. 13
[hereinafter Am. Compl.] (capitalization omitted). When he notified
the morning med pass nurse of his medical distress and asked to see
a doctor, she denied his request and gave him an asthma pump.
Rucker complained again to the deputy and the nurses in the
afternoon and evening but was repeatedly denied access to a doctor.

Despite his extreme medical distress, Rucker was denied
medical treatment for days. On June 21, 2017, Rucker was finally seen
by defendant-appellee Dr. Burton Fletcher. Rucker explained his
symptoms to Dr. Fletcher and said he felt like he was dying. Dr.
Fletcher gave him asthma treatment and put him in a medical
observation cell. When Rucker woke up the next day, he was lying on
the floor and was in so much pain that he could not move. Dr. Fletcher
observed that Rucker was pale from dehydration but still did not
permit Rucker to go to the hospital. Rucker threw up and “used the
bathroom on him self [sic]” for three days; he begged nurses, doctors,
and deputies to take him to the hospital. Am. Compl. at 10.

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 Rucker was finally taken to a hospital on June 23, 2017, by
which time he was passing in and out of consciousness. He was
admitted to the hospital for diabetic ketoacidosis. At the hospital,
medical professionals also determined that he had “peritonitis, portal
venous gas, and p[n]eumobilia” requiring an “exploratory
laparotomy and small bowel[] resection.” Am. Compl. at 11. The
doctors told his family he had only a 10 percent chance of survival
with or without surgery.

On June 25, 2017, Rucker underwent surgery to have 200
centimeters of his intestine removed, resulting in “short gut
syndrome.” Am. Compl. at 11. His pancreas became infected and was
removed. He was placed in a coma for the surgeries, and afterward
he was transferred to an intensive care unit for further management.
Rucker was also diagnosed with diabetes and alleges that he now
takes more than 15 pills per day. Rucker was ultimately in the hospital
for a month and two days. Since this medical incident, he has had
embarrassing digestive issues requiring him to use the bathroom
many times each day, and he feels “down and depressed all the time”
as he struggles to cope with “the new way that [he has] to live.” Am.
Compl. at 35.

On July 23, 2018, Rucker filed a grievance describing the June
2017 events. As relevant here, Rucker alleges—in a sworn statement
accompanying his grievance—that due to the severity of his medical
condition at the time, he “did not have time to write about [the June
2017 events] at all” but he “did tell every nurse and deputy working
during the time[,] every day,” and any grievance he could have filed
“would have been [too] late because [he] was in the hospital for a
month and two days.” Am. Compl. Ex. 1 at 7, Rucker, 2020 WL
1703240, ECF No. 1-1 [hereinafter Am. Compl. Ex. 1]. The prison
6
responded by letter informing Rucker that the prison would not
process his grievance because “[a]n inmate must file a grievance
within five days of the date of the act or occurrence giving rise to the
grievance” and Rucker’s “complaint was not within the 5 day
timeframe.” Am. Compl. Ex. 1 at 14.

On August 8, 2018, Rucker filed suit against various medical
professionals and jail deputies at the Monroe County Jail under 42
U.S.C. § 1983 alleging that they denied Rucker medical care and
subjected him to cruel and unusual punishment while he was in
pretrial detention. In a June 2019 screening order, pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b), the district court dismissed the
action against the jail defendants with prejudice because there was no
basis to conclude that the jail defendants should have challenged the
nurses’ or Dr. Fletcher’s medical decisions. [The district court further
noted, but did not decide, that Rucker may not have exhausted
available administrative remedies. Rucker filed his operative
amended complaint on February 6, 2019.

On November 26, 2019, the defendants-appellees moved to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim, and for failure to exhaust available
administrative remedies as required by the PLRA. Rucker opposed
the motion arguing, inter alia, that administrative remedies were not
available to him due to his medical condition and hospitalization
during the grievance filing period. 1

1 Rucker also argued that grievance procedures were unavailable to him
because he allegedly did not receive a copy of the Monroe County Jail’s
Inmate Handbook, which explains the administrative procedure for filing

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 On April 8, 2020, the district court granted the defendants-
appellees’ motion to dismiss. The district court reasoned that there is
no “special circumstances” exception to the PLRA’s exhaustion
requirement and Rucker’s allegations did not suggest that the
grievance procedures were not available to him under any of the three
categories of unavailability identified by the Supreme Court in Ross v.
Blake, 136 S. Ct. 1850, 1859-60 (2016). The district court therefore
concluded that Rucker’s critical medical condition and subsequent
hospitalization did not excuse his failure to file a grievance within five
days of the incident giving rise to his grievance.

Rucker timely appealed.2

DISCUSSION

I

We review the grant of a motion to dismiss for failure to
exhaust administrative remedies de novo while accepting the factual
allegations as true. Williams, 829 F.3d at 121-22. Because Rucker
brought his claim and this appeal pro se, we review the appeal with
“special solicitude,” interpreting the complaint to raise the “strongest
claims that it suggests.” Id. at 122.

According to the PLRA, “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983] … by a prisoner

a grievance, and therefore did not know that he had to file a grievance. The
district court dismissed this argument, concluding that the grievance
procedures were available to Rucker from the face of the complaint because
Rucker ultimately filed a grievance.
2 On appeal, Rucker does not challenge the district court’s dismissal of his
claim against the jail defendants.

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confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Id. (quoting
42 U.S.C. § 1997e(a)). Exhaustion must be in “compliance with an
agency’s deadlines and other critical procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 90 (2006); see also Macias v. Zenk, 495 F.3d 37, 44 (2d
Cir. 2007) (“Alerting the prison officials as to the nature of the wrong
for which redress is sought does not constitute ‘proper exhaustion’
under Woodford.”) (internal quotation marks, alterations, and citation
omitted). However, a prisoner need not specifically plead or
demonstrate exhaustion in the complaint because “failure to exhaust
administrative remedies is an affirmative defense under the PLRA,
not a pleading requirement.” Williams, 829 F.3d at 122 (citing Jones v.
Bock, 549 U.S. 199, 216 (2007)).

In Ross, the Supreme Court explained that aside from the
“significant qualifier” that “the remedies must indeed be ‘available’
to the prisoner,” the text of the PLRA “suggests no limits on an
inmate’s obligation to exhaust—irrespective of any ‘special
circumstances.’” 136 S. Ct. at 1856. Therefore, the Court concluded
that prisoners are exempt from the exhaustion requirement only
when the grievance procedures are not “capable of use to obtain some
relief for the action complained of” such that the administrative
remedies are “unavailable.” Id. at 1858-59 (internal quotation marks
omitted).

As relevant to the case before it, the Court identified “three
kinds of circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief.” Id. at
1859. Those circumstances are when: (1) the grievance process
“operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) the process
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is “so opaque that it becomes, practically speaking, incapable of use”;
or (3) “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60.

After Ross, we concluded that the New York State Department
of Corrections and Community Supervision regulations, which
established grievance procedures, fell into one of the three categories
of unavailability identified in Ross. Williams, 829 F.3d at 119. We held
that although the grievance procedures were “technically available”
to the plaintiff, the procedures were “so opaque and confusing” as
effectively to be unavailable. Id. at 126. We noted that “the three
circumstances discussed in Ross do not appear to be exhaustive”
because the Supreme Court focused its analysis on circumstances
“relevant” to the facts before it. Id. at 123 n.2 (citing Ross, 136 S. Ct. at
1859). However, we declined to identify other circumstances that
might render a technically available administrative remedy
effectively unavailable. Id.

II

In this appeal, Rucker primarily argues that his medical
condition prevented him from filing a grievance within five days of
the incident giving rise to his grievance. Because Rucker’s severe
medical condition precluded timely filing of his grievance and the
prison unequivocally stated that it would not process Rucker’s
grievance because it was filed after the grievance filing period had
closed, the grievance procedures, “although officially on the books,
[were] not capable of use to obtain relief.” Ross, 136 S. Ct. at 1859.
Therefore, we conclude that the grievance procedures were
unavailable to Rucker.

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 Before Ross was decided, the Fifth Circuit held that
administrative remedies are unavailable when “(1) an inmate’s
untimely filing of a grievance is because of a physical injury and
(2) the grievance system rejects the inmate’s subsequent attempt to
exhaust his remedies based on the untimely filing of the grievance.”
Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). In Days, the plaintiff fell
and sustained multiple fractures to his hand. Id. at 864. He argued that
administrative remedies were unavailable to him because he had
broken his writing hand and could submit a grievance only when his
hand had healed, which was after the grievance filing period had
closed. Id. at 865. The prison would not process his grievance because
it was deemed untimely. Id. As in Ross, the court in Days focused on
the PLRA’s qualifier that “the remedies must indeed be ‘available’ to
the prisoner,” Ross, 136 S. Ct. at 1856, and concluded that “because of
[the plaintiff’s] injury, exhaustion of his administrative remedies by
timely filing a grievance was personally unobtainable,” Days, 322 F.3d
at 867. District courts have continued to recognize the Days rule after
Ross. 3

We agree with the Fifth Circuit that a prisoner who is injured
or undergoing significant medical treatment faces a substantial
obstacle to making use of administrative remedies, and if the prison

3 See, e.g., Hulsey v. Jones, No. 6:19-CV-108, 2020 WL 8832501, at *5-6 (E.D.
Tex. July 13, 2020), report and recommendation adopted, No. 6:19-CV-108, 2021
WL 363589 (E.D. Tex. Feb. 3, 2021); Glenn v. Mataloni, No. 1:20-CV-69, 2020
WL 7027597, at *20 (M.D. Pa. Nov. 30, 2020); Skinner v. Haley, No. 315-CV-
340, 2019 WL 5582233, at *5-6 (D. Nev. Sept. 26, 2019), report and
recommendation adopted sub nom. Skinner v. Pfister, No. 315-CV-340, 2019 WL
5576943 (D. Nev. Oct. 29, 2019).

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will not accommodate such injury or medical treatment but will treat
the grievance as untimely, administrative remedies become
effectively unavailable. In this case, Rucker faced a substantial
obstacle to filing a grievance during the five-day grievance filing
period. Because of the defendants-appellees’ alleged failure to
provide necessary medical care, Rucker experienced extreme medical
distress for days, was admitted to the hospital for over a month
during which he was put in a coma and underwent surgeries that
nearly caused his death. Rucker’s medical condition and his extended
hospitalization outside of the prison presented such obstacles to filing
a grievance that the grievance procedures were “incapable of use”
during this period. Ross, 136 S. Ct. at 1854. Rucker is therefore not
barred from filing this action because he failed to file his grievance
while hospitalized.

It is true that Rucker did not file a grievance until almost a year
after his hospitalization, but that does not make a difference in this
case. The letter from the prison to Rucker was clear—any failure to
file a grievance within five days of the alleged incident giving rise to
the grievance would render it untimely. The prison accordingly
refused to process Rucker’s grievance because it was “not within the
5 day timeframe.” Am. Compl. Ex. 1 at 14. The grievance procedures
in place at the prison would not have considered Rucker’s grievance
to be timely—and would not have entertained his complaints—even
if the grievance had been filed more promptly following Rucker’s

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return from the hospital. 4 Under these circumstances, the grievance
procedures were unavailable to him.

We therefore hold that administrative remedies are
“unavailable” when (1) an inmate’s failure to file for the
administrative remedy within the time allowed results from a
medical condition, and (2) the administrative system does not
accommodate the condition by allowing a reasonable opportunity to
file for administrative relief. Because Rucker’s medical condition and
hospitalization imposed a substantial obstacle to filing a grievance
and because the prison notified him that his failure to file within the
five-day timeframe rendered his grievance untimely, we conclude
that Rucker did not have available administrative remedies to
exhaust. 5

***

For these reasons, we REVERSE the district court’s judgment
and REMAND for the district court to consider Rucker’s claim on the
merits.

4 The defendants-appellees do not argue that Rucker should have filed a
grievance during a shorter time period following his return from the
hospital and do not argue that Rucker’s grievance would have been
processed if he had.
5 Because we hold that administrative remedies were unavailable to
Rucker because of his medical condition, we do not address his alternative
argument that he did not know he had to file a grievance within five days
after the incident because he did not receive the Inmate Handbook.

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