Guest Post by Julius Mitchell

For generations, the incarcerated have utilized prison strikes to protest everything from harsh sentencing to restrictive parole requirements to poor prison conditions. In August and September 2018, organizers launched one of the largest nationwide prison strikes in American history. As part of the strike, they made several demands of lawmakers. Some of them included “[i]mmediate improvements” to prison conditions and policies, an “immediate end to prison slavery” by paying prisoners the “prevailing wage in the state or territory of their labor,” and the repeal of the Prison Litigation Reform Act of 1996 (PLRA). Outside of using strikes as a mechanism for reform, prisoners can sue prison officials to challenge conditions of confinement. The PLRA, however, imposes heavy barriers to doing so, denying 2.2 million incarcerated individuals equal access to courts.

The PLRA has significantly restricted prisoners from bringing federal lawsuits, often under 42 U.S.C. § 1983, against prison officials. Passed with bipartisan support in Congress, this Clinton-era legislation sought to save taxpayer dollars by reducing the burden on federal district courts adjudicating “frivolous” prisoners’ lawsuits. Through an administrative-exhaustion requirement and other procedural impediments, the law created obstacles for prisoners seeking redress for civil rights violations committed by prison officials. Under the PLRA, prisoners are barred from bringing § 1983 and other federal actions, “until such administrative remedies as are available are exhausted.”

Recently, in Townsend v. Murphy, the Eighth Circuit Court of Appeals held that an aggrieved prisoner is not prohibited from filing a federal lawsuit against prison officials when the administrative grievance procedure is unavailable to him. Townsend is consistent with the Supreme Court’s 2016 decision in Ross v. Blake. In Ross, the majority rejected the Fourth Circuit’s atextual “special circumstances” exception to the PLRA’s exhaustion requirement. Writing for the majority, Justice Elena Kagan did, however, acknowledge that the exhaustion requirement relies on administrative remedies being available in the first place, and that there may be exceptional cases where such remedies are unavailable to an aggrieved prisoner. The Court did not address the availability issue itself, but remanded to the lower court to decide. Townsend affirms the availability exception, which raises questions about whether, and to what extent, prisons will react to the decision by expanding the availability of their administrative remedies.

Jacob James Townsend, a prisoner at Arkansas’s Tucker Unit prison, filed an informal complaint against Terry Murphy (plant supervisor) for requiring him to work in the prison water-treatment plant under unsafe labor conditions. Townsend first filed an informal complaint with Sergeant Jeavon Perry. Perry did not respond to him. After six weeks of silence, Townsend then proceeded to file a formal complaint. However, the prison refused to hear his formal complaint because its policy required filing within six business days of filing the informal complaint with Perry. Townsend was nearly five weeks past the administrative deadline.

In response, Townsend filed a lawsuit in federal district court under § 1983, adding two other Tucker Unit prison officials to his complaint—Richard Romine (outside maintenance supervisor) and David White (warden). Defendants moved for summary judgment, arguing that Townsend failed to exhaust all administrative remedies. In his reply, Townsend submitted a sworn declaration stating that Perry told him three days after making his informal complaint that he should not file a formal complaint until Perry responded. Townsend added that the administrative grievance process was not “common knowledge,” and that the prison ignored his repeated efforts to access the library to check the only hard copy of the administrative directive. Despite the sworn declaration, the district court granted summary judgment to all three defendants. Townsend appealed.

On July 31, 2018, an Eighth Circuit panel published a brief opinion affirming in part, reversing in part, and remanding for further proceedings the district court’s decision. Judge David Stras wrote for the panel, along with Judges Steven Colloton and Bobby Shepherd. Reviewing de novo, the panel reversed summary judgment on the claim against Murphy and affirmed on the claims against Romine and White. The Court reasoned that Perry’s misleading advice and the prison’s denial of access to the only copy of the administrative directive in the prison library established that the grievance process was unavailable to Townsend. Under the PLRA, that reasoning qualified as an exception to the exhaustion requirement, permitting Townsend’s claim against Murphy to survive summary judgment.

But with regard to the claims against Romine and White, the panel affirmed. They wrote that the failure to include their names in the initial informal complaint constituted a failure to exhaust all remedies. As to these two defendants, Townsend has lost the right to relief from both the Tucker Unit grievance process and federal district court.

The holding in Townsend, as it relates to Murphy, is a modest victory for prisoners seeking administrative or litigious redress from grievances. Prison and civil rights lawyers should capitalize on the decision because it demonstrates that incarcerated individuals can survive the PRLA’s strict requirements if they plead that the grievance procedure was made unavailable to them. Townsend should hopefully encourage prisons to repair broken internal grievance processes. Prisons should focus on increasing awareness of their grievance process by educating prisoners upon entry, as well as keeping the prison population regularly updated on changes. Guards should be included in this awareness campaign so that, akin to the situation with Perry at the Tucker Unit, officials do not misinform or mislead prisoners about administrative remedies. Prisons should also produce enough written copies of their administrative procedures and make those copies available to all prisoners. Finally, they should increase the amount of resources geared toward addressing grievances in the prison. When prisons fail to take these steps, prisoners can sue in federal court by alleging the unavailability of the administrative procedure and avoid the PLRA’s exhaustion requirement altogether. After Townsend, prison officials are reminded of their two options with respect to prisoners’ grievances: either make the entire administrative grievance process available, or face exposure in federal district court.

It is imperative that prisoners nationwide have access to some form of redress for grievances–whether through an administrative remedy or litigation. Neither tool is perfect, but prisoners should have a path to relief when they have problems with prison conditions. The Arkansas Department of Corrections (ADOC) explains its internal grievance procedure in a handbook for prisoners. According to the ADOC Inmate Handbook, prisoners may have their grievances answered and, if unsatisfied, they can file an administrative appeal. While the Handbook tells us that prisoners are entitled to have their grievances heard, it provides no details on what kinds of administrative relief are available, nor does it discuss the kinds of changes the prison will actually make to remedy prisoners’ grievances. If prisoners can survive the PLRA, litigation is another option. For instance, § 1983 can provide declaratory relief and, although difficult and rare to obtain, injunctive relief or even monetary damages are possible.

Recently, the media has exposed the ADOC for issues with prison conditions, showing that prisoners have much to grieve about. In September 2018, water in a maximum-security unit could not be used for cooking or drinking, causing a boil order to go into effect. A man formerly incarcerated in an ADOC facility in south Pulaski county recently reported that guards frequently smuggled in drugs and engaged in sexual favors with prisoners. According to the same news story, ADOC reported that by September 2018 it had already fired nine correctional officers for trafficking contraband. There is also growing concern in Arkansas about the increasing privatization of prisons, which may worsen already dismal prison conditions.

Because of such harsh conditions in the ADOC, prisoners have not shied away from filing grievances. According to an August 2018 board report by the ADOC, out of a total prison population of approximately 18,000, prisoners filed 1,836 informal grievances; 3,042 formal grievances; and 607 grievances appeals. This data reflects widespread dissatisfaction among prisoners, but notably, it is also misleadingly low. It likely fails to account for all the prisoners who are unaware of the administrative grievance process at their institution or who are intimidated from ever filing a grievance in the first place. Only time will tell whether, after Townsend, prisons within the Eighth Circuit states—Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota—will take steps to expand the availability of their administrative grievance processes. Where that availability is lacking, prison and civil rights advocates should help prisoners file complaints, including under § 1983, alleging that their clients are incapable of using the administrative grievance process in its entirety.

Whether Townsend will strengthen prison accountability around internal grievance procedures remains an open question. But where it does not, civil rights and prison lawyers have a compelling argument—unavailability of the grievance process—they can make to circumvent the PLRA and get prisoners access to federal courts. Within a restrictive PLRA framework, this decision is headed in the right direction. But there is more to be done. Townsend came down just a few weeks before strike organizers demanded that the PLRA be rescinded in order to “allow[] imprisoned humans a proper channel to address grievances and violations of their rights.” In demanding that the PLRA be repealed, strike organizers highlighted how the statute forces prisoners to file grievances with the very people they accuse of violating their rights, before their concerns can ever be heard in court.


Julius Mitchell is a 3L at Harvard Law School interested in social justice and human rights issues. He is a student attorney with the Harvard Prison Legal Assistance Project (PLAP) and was an active participant in the Harvard International Human Rights Clinic (IHRC). Julius has also interned in the Washington, D.C. office of the MacArthur Justice Center. He received his Bachelor of Arts from Yale University in Political Science and Ethnicity, Race, and Migration.