Rowell v. Vissa et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mesfen A. Rowell
v. 	Case No. 19-cv-419-JL
Hillsborough Cnty. Dep’t
of Corrections et al.
REPORT AND RECOMMENDATION
The defendants — the Hillsborough County Department of
Corrections (“HCDOC”), HCDOC Sergeant Anthony Vissa, and HCDOC
Nurse Luella Bancroft — have moved for summary judgment (Doc.
No. 51) on the argued grounds that plaintiff Mesfen A. Rowell —
an inmate at Hillsborough County House of Corrections (“HCHOC”)
who is proceeding without an attorney – failed to timely exhaust
his administrative remedies, as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), before
filing this lawsuit. 	Though HCDOC’s Grievance Policy requires
inmates to submit grievances within fifteen (15) days of an
incident, Rowell did not file a grievance for the July 2018
incident at issue in this case until March 2019. 	Undeterred,
Rowell contends that no administrative remedy was in fact
available to him because he was transferred to the New Hampshire
State Prison (“NHSP”) – a state facility, not administered by
HCDOC – the day after the alleged July 2018 incident and did not
return to HCHOC until January 2019 – months after the fifteen-
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 1 of 24

2
day window for filing administrative grievances had passed. 	He
also argues that the defendants waived their exhaustion defense
by responding to the substance of his untimely grievance. 	He
therefore maintains that the PLRA does not preclude him from
filing suit and having a trial on the merits of his underlying
claims.
As explained below, genuine disputes of material fact
remain as to several questions, including: (1) whether
administrative remedies were actually available to Rowell, given
his transfer from HCHOC to NHSP the day after the alleged July
2018 incident; and (2) whether the availability and
accessibility of an administrative remedy under these
circumstances was known or knowable to Rowell. 	Moreover, there
is a legal question unanswered by the parties’ summary judgment
filings as to whether prison officials arguably waived their
right to raise an affirmative, failure-to-exhaust defense.
Accordingly, the district judge should dismiss the defendants’
motion for summary judgment and schedule an evidentiary hearing
in the nature of a bench trial on the issue of PLRA exhaustion
prior to a trial on the merits of Rowell’s complaint.
Background
I. 	Rowell’s Arrest and Injuries
On July 15, 2018, Manchester Police arrested Rowell and, at
around midnight the next day (July 16), transported him to HCHOC
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 2 of 24

3
for booking. 	See Booking Report (Doc. No. 51-4). 	According to
the booking report, the HCDOC booking officer, Officer Rutzke,
noticed a one-inch-long abrasion over Rowell’s right eyebrow,
inquired about what had happened, and asked whether Rowell had
received medical treatment. 	Id. 	Per the report, Rowell
answered, “[t]he cops did it,” and “[n]o,” prompting Officer
Rutzke to summon HCDOC Sgt. Vissa and Nurse Bancroft to examine
the abrasion. 	Id.
Rowell offers a different account of how he was injured.
In his complaint, he alleges that during his arrest or
transport, the Manchester Police used a taser on him, causing
him to be disoriented for most of the booking process. 	Compl.
(Doc. No. 1, at 2). 	Rowell claims that when he informed Sgt.
Vissa about the taser incident, Sgt. Vissa grabbed his arm,
pushed him into a corner of the property room, and struck his
face, causing an abrasion. 	Id. at 3. 	Sgt. Vissa also allegedly
threatened Rowell with more violence if he were to report the
incident. 	Id.
Rowell further asserts that when Nurse Bancroft arrived to
inspect the abrasion, he complained that he was in a lot of pain
and pleaded with her for help. 	Id. at 4. 	Nurse Bancroft,
however, purportedly continued the booking process instead of
providing care for his injuries and bleeding. 	Id.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 3 of 24

4
The following morning (July 16), Rowell was transported to
court for his arraignment, at which he was represented by
counsel. 	Case Summary (Doc. No. 51-5). 	Afterwards, he returned
to HCHOC overnight before being transferred to NHSP the next
day. 	Booking Report (Doc. No. 51-4). 	With one exception (a
single day in August 2018), Rowell did not return to HCHOC until
January 12, 2019, where he has consistently remained throughout
this proceeding. 	Release Report (Doc. No. 51-6).
II. 	Rowell’s Administrative Grievances
Under HCDOC’s Grievance Policy (“the Policy”), all inmates
have the right to file a written grievance concerning any matter
relating to their confinement. 	See HCDOC Inmate Handbook (Doc.
No. 51-3, at 20). 	A grievance must be filed by the inmate who
is directly affected by an alleged incident. 	Id. 	“No
grievance(s) shall be accepted which is filed by a group or on
behalf of a group of inmates.” 	Id.
Step 1 of the grievance process requires an inmate to make
a “genuine attempt to seek an informal resolution of [a] problem
with the staff member concerned.” 	Id. 	If a grievance cannot be
resolved informally, then the inmate may proceed to Step 2. 	Per
the Policy:
The second step is initiated using the Inmate Request
Form format.1 	Fill out a request form requesting a
1 The HCDOC Inmate Handbook submitted by the defendants
(Doc. No. 51-3) does not explain what the “Inmate Request Form
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 4 of 24

5
grievance form stating your problem and suggested
remedy. 	You must then submit the request form to your
unit officer. 	The grievance must be submitted within
fifteen (15) days from the date of the alleged
incident giving rise to the grievance.
Id. 	Thereafter, at Step 3, “[a]n assigned staff member will
then have fifteen (15) days from receipt of [the] grievance to
investigate/review the alleged incident and provide a response
to [the inmate] unless there are extenuating circumstances.”
Id. 	The Policy provides no further steps, such as for an appeal
of the assigned officer’s response. 	Id. 	A copy of this
procedure is given to each inmate brought to HCDOC. 	See
Fitzpatrick Aff. (Doc. No. 51-2, ¶ 2).
On February 15, 2019 — more than six months after the
booking incident described above — Rowell informed Sgt. Vissa’s
supervisor, HCDOC Lt. Timothy Fitzpatrick, that he was going on
a hunger strike. 	Feb. 15, 2019 Fitzpatrick Mem. (Doc. No. 51-
7). 	When asked about his reasons, Rowell initially answered
that he was “going to take it up with [his] attorney.” 	Id. 	He
later disclosed that he “was assaulted by a staff member in
booking in July (2018),” suffered because of it, and “[j]ust
didn’t” report the alleged incident. 	Id. 	Rowell stated at the
time that he could not remember who had assaulted him or whether
he was injured. 	Id.
format” is. 	Nor does it lay out the process by which an inmate
may generally obtain or submit an Inmate Request Form.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 5 of 24

6
On March 16, 2019, Rowell filed a grievance claiming that
he had been assaulted during his booking on July 16, 2018.
Grievance 19-00065 (Doc. No. 51-8, 55-1). 	When Lt. Fitzpatrick
spoke with Rowell about why he was then reporting the incident,
Rowell reportedly said: “I was just going to let it go. 	But now
I’m seeking damages. 	I don’t care what you do with the
Grievance. 	I only filed the grievance to satisfy the courts.
I’ll be suing for damages. 	Money is the only resolution.” 	Mar.
17, 2019 Fitzgerald Report (Doc. No. 51-9).
On March 21, 2019, Rowell’s grievance was denied. 	The
HCDOC Captain’s March 21, 2019 grievance response states:
In regards to Inmate Mesfen Rowell’s (61152) grievance
(19-00065) in which he is claiming Sgt. Vissa
assaulted him on 7/16/18 (When he arrived at the
facility / (2) incarcerations ago). 	Inmate Rowell was
booked into the facility during this incarceration on
1/12/19. 	Inmate Rowell does not comply with the
Inmate Grievance procedure as stated in the Inmate
Handbook (Page #18) (Step: 2)[:] “The grievance must
be submitted with [sic] fifteen (15) days from the
date of the alleged incident giving rise to the
grievance[.”] 	On 7/16/2018 when Inmate Rowell was
admitted into the facility he was observed w/ a pre-
existing injury (abrasion above his right eyebrow
approx. (1 inch) claiming “they [sic] cops did it[.”]
Sgt Vissa states at no time did he ever assault Inmate
Rowell.2
2 Several times in the defendants’ supporting memorandum,
see, e.g., Defs.’ Mot. for Summ. J. Mem. (Doc. No. 51-1. at 3),
defense counsel quotes the record inaccurately. 	The court
strongly encourages counsel, going forward, to double-check all
quoted source materials before filing and to use brackets or
ellipses when material is altered for the sake of readability.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 6 of 24

7
Grievance 19-00065 (Doc. No. 51-8, 55-1). 	HCDOC Superintendent
David Dionne then provided his response on the same grievance
form on March 22, 2019, stating that no further action was
required.
In an affidavit, Lt. Fitzpatrick asserts that Rowell’s
“grievance was denied because it did not comply with our
grievance policy deadline.” 	Fitzpatrick Aff. (Doc. No. 51-2,
¶ 9). 	Lt. Fitzpatrick’s affidavit further avers, “Despite [Mr.
Rowell’s] grievance being denied on procedural grounds, I
interviewed Mr. Rowell due to the seriousness of his
allegations.”3 	Id. ¶ 10.
Rowell’s complaint is both notarized and executed under
penalty of pains of perjury. 	See Compl. (Doc. No. 1, at 7).
Rowell has asserted in the verified complaint that, after the
July 15, 2018 booking incident, he submitted verbal grievances
and inmate requests forms about the incident, and that those
grievances and forms were not answered and appear to have been
ignored and discarded. 	Compl. (Doc. No. 1, at 4-6).
3 Lt. Fitzpatrick states in his sworn affidavit that he
interviewed Rowell after the grievance was denied on March 21,
2019. 	It appears from the face of his response to Rowell’s
grievance, however, that he in fact interviewed Rowell or Sgt.
Vissa before Rowell’s grievance was denied. 	See Fitzpatrick
Mar. 17, 2019 Mem. (Doc. No. 51-9, at 1) (memorializing his
interview with Rowell).
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 7 of 24

8
Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
there is no genuine dispute4 as to any material fact5 and the
mov[ing party] is entitled to judgment as a matter of law.”
Walker v. President & Fellows of Harvard Coll., 840 F.3d 57, 61
(1st Cir. 2016) (citations and internal quotation marks
omitted); see also Fed. R. Civ. P. 56. 	In considering summary
judgment motions, the court “look[s] to all of the record
materials on file, including the pleadings, depositions, and
affidavits,” Taite v. Bridgewater State Univ., Bd. of Trustees,
999 F.3d 86, 93 (1st Cir. 2021) (quoting Ahmed v. Johnson, 752
F.3d 490, 495 (1st Cir. 2014)), “read[s] the facts in the light
most favorable to the non-moving party,” and draws “all
reasonable inferences in [that party’s] favor,” Lachance v. Town
of Charlton, 990 F.3d 14 (1st Cir. 2021). 	It does not, however,
evaluate “the credibility of witnesses [ ]or weigh the
evidence.” 	Taite, 999 F.3d at 93 (quoting Ahmed, 752 F.3d at
495).
4 A genuine dispute is “one that must be decided at trial
because the evidence, viewed in the light most flattering to the
nonmovant, would permit a rational factfinder to resolve the
issue in favor of either party.” 	Baum-Holland v. Hilton El Con
Mgmt., LLC, 964 F.3d 77, 87 (1st Cir. 2020) (quoting Medina-
Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990)).
5 “Facts are material when they have the potential to affect
the outcome of the suit under the applicable law.” 	Id. (quoting
Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017)).
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 8 of 24

9
“To prevail on the affirmative defense of failure to
exhaust” at summary judgment, like the defense raised by the
defendants’ motion here, “prison officials must show that no
factfinder could reasonably conclude that the plaintiff
exhausted . . . 	remedies [that were in fact available to him or
her] before filing suit.” 	Burns v. Croteau, No. 19-CV-007-LM,
2020 WL 6546057, at *2, 2020 U.S. Dist. LEXIS 207500, at *6
(D.N.H. Nov. 6, 2020) (citing Polansky v. McCoole, No. 13–cv–
458–JL, 2016 WL 237096, at *3, 2016 U.S. Dist. LEXIS 6476, at *3
(D.N.H. Jan. 20, 2016)). 	If a factfinder could reasonably find
for the plaintiff on this issue, summary judgment must be
denied.
Discussion
The defendants contend that the PLRA precludes Rowell’s
lawsuit because he did not grieve the alleged July 16, 2018
incident giving rise to this lawsuit within fifteen (15) days,
as required by HCDOC Policy. 	Rowell objects, asserting that
HCDOC’s grievance process was unavailable to him because he was
transferred to NHSP the day after the July 16, 2018 incident.
He also contends that HCDOC waived its ability to raise the
fifteen-day deadline by responding to a late-filed grievance
form about the incident and, in his view, addressing his
allegations on the merits. 	As discussed below, Rowell’s waiver
argument is unavailing in this procedural posture, and genuine
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 9 of 24

10
disputes of material fact as to the availability of
administrative remedies in Rowell’s circumstances preclude
summary judgment. 	The district judge should thus deny the
defendants’ motion for summary judgment.
I. 	PLRA Requirements
Under the Prison Litigation Reform Act, “incarcerated
plaintiffs must exhaust all available administrative remedies
before bringing any federal action in respect to prison
conditions,” 	Burns, 2020 WL 6546057, at *3, 2020 U.S. Dist.
LEXIS 207500, at *6 (citing 42 U.S.C. § 1997e(a)), including
civil rights actions arising from isolated episodes of unlawful
misconduct by prison officials, see Porter v. Nussle, 534 U.S.
516, 532 (2002). 	As explained by the Supreme Court, this
barrier to filing a lawsuit demands “proper exhaustion” of a
prison’s administrative remedies. 	Woodford v. Ngo, 548 U.S. 81,
84 (2006). 	This “means using all steps that the [prison] holds
out, and doing so properly (so that the [prison] addresses the
issues on the merits).” 	Id. (emphasis in original). 	As such,
“it is the prison’s requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” 	Jones v. Bock, 549 U.S.
199, 218 (2007). 	Additionally, inmates “must . . . exhaust
administrative remedies even where the relief sought —
[including] monetary damages — cannot be granted by” the
prison’s administrative process. 	Woodford, 548 U.S. at 85.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 10 of 24

11
Because failure to exhaust is an affirmative defense,
rather than a jurisdictional issue, when raised under
§ 1997e(a), the “defendants bear the burden” of showing “both
that administrative remedies were available and that the
[inmate] failed to exhaust them.” 	Burns, 2020 WL 6546057, at
*3, 2020 U.S. Dist. LEXIS 207500, at *6 (citing, as an example,
Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018)); see also
Czekalski v. Hanks, No. 18-cv-592-PB, 2020 WL 7231358, at *12,
2020 U.S. Dist. LEXIS 231179, at *35 (D.N.H. Dec. 8, 2020). 	If
the defendants make that showing, the burden shifts to the
inmate to “come forward with evidence” demonstrating “that there
is something in his particular case that made the existing and
generally available administrative remedies effectively
unavailable to him,’” Czekalski, 2020 WL 7231358, at *12, 2020
U.S. Dist. LEXIS 231179, at *35 (quoting Albino v. Baca, 747
F.3d 1162, 1172 (9th Cir. 2014) (en banc)), or that the prison
arguably waived its right to rely on a procedural flaw with the
inmate’s exhaustion attempts. 	See Ellison v. N.H. Dep’t of
Corr., No. 07-cv-131-JL, 2009 WL 424535, at *4 n.6, 2009 U.S.
Dist. LEXIS 12976, at *14 n.6 (D.N.H. Feb. 19, 2009).
Though “[t]he First Circuit [Court of Appeals] has not
addressed whether factual issues regarding exhaustion are the
province of the judge or the jury,” each Circuit that has
“considered the question ha[s] held that it is for the
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 11 of 24

12
[district] court rather than a jury to resolve such issues.”
Burns, 2020 WL 6546057, at *2, 2020 U.S. Dist. LEXIS 207500, at
*6 (collecting authority). 	The same is true for district courts
in this Circuit. 	See id.; Wilbur v. Fitzpatrick, No. 1:18-CV-
00255-NT, 2019 WL 1714435, at *4, 2019 WL 1714435, at *12 (D.
Me. Apr. 17, 2019), R&R adopted, 2019 WL 2291453, 2019 U.S.
Dist. LEXIS 89459 (D. Me. May 29, 2019). 	Thus, if the summary
judgment record does not conclusively establish whether the
plaintiff exhausted their administrative remedies, or whether
the defendant is otherwise entitled to summary judgment, the
district court should conduct an evidentiary hearing to resolve
the exhaustion issue before a jury decides any factual questions
pertaining to the merits of the plaintiff’s claims. 	See, e.g.,
Albino, 747 F.3d at 1170–71 (“If a motion for summary judgment
is denied, disputed factual questions relevant to exhaustion
should be decided by the judge, in the same manner a judge
rather than a jury decides disputed factual questions relevant
to jurisdiction and venue.”); Wilbur, 2019 WL 1714435, at *6 n.5
(describing the Circuit Court guidance as of 2019 on how to
procedurally address a PLRA-exhaustion defense).
II. 	Availability of an Administrative Remedy
The defendants contend that the PLRA bars Rowell’s claims
because he failed to grieve the July 16, 2018 incident, during
which he was allegedly assaulted by officers, within the fifteen
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 12 of 24

13
(15) day window for filing such grievances. 	No party disputes
that under the Policy, inmates must generally file grievances
within fifteen (15) days of an alleged incident being grieved.
It is also undisputed that Rowell did not file a grievance for
the alleged incident at issue until March 16, 2019, eight months
after July 16, 2018. 	What remains in dispute, however, is
whether HCDOC’s administrative grievance process was in fact
available to Mr. Rowell given his transfer to NHSP, a facility
operated by the New Hampshire Department of Corrections (not
HCDOC), one day after the alleged incident.
Though the defendants bear the burden of proof on this
issue, their legal arguments, cited legal authority, and
submitted evidence fail to fully confront the uncommon factual
aspects of this question head on, at least for satisfying the
demanding standard for a grant of summary judgment. 	The Supreme
Court has recognized that there are at least “three kinds of
circumstances in which an administrative remedy, although
officially on the books, is not capable of use [by an inmate] to
obtain relief.” 	Ross v. Blake, 578 U.S. 1174, -- , 136 S. Ct.
1850, 1859 (2016). 	First, “an administrative procedure may be
unavailable when (despite what regulations or guidance materials
may promise) it operates as a simple dead end — with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates.” 	Id. 	For example, a procedure might operate
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 13 of 24

14
as a “dead end” for purposes of the PLRA if “a prison handbook
directs inmates to submit their grievances to a particular
administrative office—but in practice that office disclaims the
capacity to consider those petitions.” 	Id. 	Second, “an
administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. 	In this situation, some
mechanism exists to provide relief, but no ordinary prisoner can
discern or navigate it.” 	Id. 	Third, “interference with an
inmate’s pursuit of relief,” for example, by thwarting the
inmate “from taking advantage of a grievance process through
machination, misrepresentation, or intimidation[,] . . . renders
the administrative process unavailable” for purposes of PLRA
exhaustion. 	Id.
Here, the evidence in the record suggests that the first
and second of these circumstances, or some hybrid of the two,
could reasonably be found to have rendered HCDOC’s otherwise
generally accessible administrative grievance process
effectively unavailable to him. 	The Policy submitted by the
defendants provides little to no instruction to former inmates
of the facility on how to grieve an incident once they are
transferred to a facility not operated by HCDOC. 	Under the
Policy, to begin the written grievance process, the inmate must
use the Inmate Request Form format – a term not defined in the
Policy or the other evidentiary materials submitted by the
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 14 of 24

15
defendants – to request a grievance form. 	The Policy does not
specify how a former inmate can use the requested format from
outside the facility or what format they can use in lieu of it.
The Policy also requires the inmate to submit the request form
to their unit officer. 	Again, the Policy does not specify who
the appropriate contact would be one the inmate departs the
facility. 	Nor does it list an additional contact or a mailing
address for the submission of administrative grievances by
inmates who no longer reside at HCDOC. 	The affidavit of
Lt. Fitzpatrick – the only affidavit or declaration submitted by
the defendants – does not clarify whether there are any other
policies or procedures, formal or informal, that would have
provided Rowell with guidance on how to timely grieve the
alleged July 16, 2018 incident from outside a HCDOC facility.6
And Rowell’s verified complaint specifically states that other
grievances or request forms he submitted about the incident were
not answered and appear to have been ignored or discarded.
The defendants contend that, despite the above, HCDOC’s
grievance procedure was not a “dead end” and was “clear” for
Rowell because (1) he successfully filed thirty-two (32)
grievances between January 12, 2019 – when he returned to HCHOC
6 In moving for summary judgment, the defendants did not
submit any evidence regarding the administrative grievance
procedure at NHSP. 	As such, the summary judgment record is
silent as to whether Rowell could have filed a grievance at NHSP
for any incidents that occurred while he was HCHOC.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 15 of 24

16
– and the end of the year, (2) was assisted with procedural
questions during the filing of three of these grievances, and
(3) was aware of the PLRA exhaustion requirements when
interviewed by Lt. Fitzpatrick in March 2019. 	But these facts,
while not in dispute, are beside the point. 	Each occurred after
Rowell had returned to HCDOC and thus do not speak to whether
HCDOC’s grievance procedure was effectively available to and
“capable of use” by an inmate from outside of an HCDOC facility
to obtain relief. 	See Ross, 136 S. Ct. at 1859. 	Said in the
language of Rule 56, the defendants’ cited facts fail to show
that there is no genuine dispute as to whether HCDOC’s grievance
process was in fact capable of use by Rowell after July 17, 2018
when he was incarcerated outside of the facility.
The defendants’ reliance on Medina-Claudio v. Rodriguez-
Mateo, 292 F.3d 31, 34–35 (1st Cir. 2002), fails to persuade the
court that they are entitled to summary judgment. 	In that case,
the plaintiff – an inmate who was transferred among various
corrections facilities administered by the Puerto Rico
Administration of Corrections (“AOC”) and then a federal
corrections facility months after the events giving rise to his
claim – argued that he was under no obligation to exhaust AOC
remedies before filing suit because he was no longer an AOC
prisoner. 	Id. at 33. 	The First Circuit found that the Puerto
Rico AOC regulations, while limited in their application “‘to
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 16 of 24

17
all the inmates in penal institutions administered by [the]
Agency,’” did not exclude transferred inmates from accessing
available remedies under those regulations as they did not
“explicitly prevent[]” transferred inmates from filing
grievances while “temporarily housed at another facility.”7 	Id.
at 35. 	The Medina court concluded that the fact that the inmate
“happened to be a prisoner in various locations, and under the
custody of different officials,” did not per se affect his
obligation to exhaust his available administrative remedies
before filing suit.8 	Id.
Rowell’s circumstances are different. 	In Rowell’s case,
the record regarding the Policy’s applicability to transferred
inmates is unclear, the time that elapsed between the alleged
incident and Rowell’s transfer to the custody of a different
entity’s facility was brief (one day), and that transfer was
long-lasting, not short-term. 	Though not a common scenario, at
7 The Medina-Claudio Court did not specify whether “another
facility” referred to one of the many AOC facilities that housed
the inmate or the federal corrections facility where he resided
when he filed his complaint. 	To the extent the Court was
referring to AOC facilities, it appears from the appellate
briefing that the AOC’s grievance procedures allowed inmates to
start administrative proceedings for prison conditions in other
AOC facilities. 	(The briefing did not include a copy or summary
of the full grievance policy, possibly due in part to the focus
of the inmate’s appeal on whether he had to generally comply
with the AOC regulations rather than the availability of
specific procedures under the AOC regulations.)
8 Rowell’s counterarguments do not dispute this ruling.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 17 of 24

18
least two district courts that have considered exhaustion issues
similar to those presented here have denied summary judgment on
exhaustion grounds. 	See Parmeley v. McCall No. 2:16-cv-01534-
CLS-SGC, 2019 WL 2499621, at *4, 2019 U.S. Dist. LEXIS 100054,
at *11 (N.D. Ala. Apr. 10, 2019), R&R adopted, 2019 WL 2491710,
2019 U.S. Dist. LEXIS 99768 (N.D. Ala. June 14, 2019); Bradley
v. Washington, 441 F. Supp. 2d 97, 102–03 (D.D.C. 2006). 	In
Parmeley, for example, a district court denied summary judgment
where a city jail’s grievance procedure was arguably unavailable
to an inmate who was transferred to another facility nearly
seven days after the incident underlying his complaint. 	2019 WL
2499621, at *4, 2019 U.S. Dist. LEXIS 100054, at *11. 	Similar
to the grievance policy at issue here, the city jail’s grievance
procedure required inmates to first attempt to resolve their
grievances informally with an officer. 	Id. 	If informal
resolution was not possible, the inmate was then required to
obtain a grievance form from a correctional officer on duty.
Id.
In moving for summary judgment, the defendants “point[ed]
to no provision in the [city jail’s] handbook addressing the
procedure for a transferred inmate to fully utilize the
grievance procedure.” 	Id. 	As such “it [wa]s not clear,” in the
district court’s view, how [the transferred inmate] could have
attempted informal resolution with the Detention Officer on
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 18 of 24

19
duty, obtained a grievance form from that officer, or
effectuated an appeal.”9 	Id. 	The court therefore ruled that the
defendants failed to demonstrate how the city jail’s grievance
procedures were in fact available to the plaintiff following his
transfer for purposes of obtaining summary judgment. 	See also
Bradley, 441 F. Supp. 2d at 102–03 (because inmate had been
transferred away from D.C. jail shortly after incidents
occurred, and jail’s grievance procedure made “no provision for
the submission of complaints by [inmates] no longer detained,”
prison officials had not demonstrated that inmate had failed to
exhaust “available” remedies).
On the current record, genuine disputes of material fact
similarly exist as to whether administrative remedy procedures
were in fact available to Rowell after his transfer. 	As such,
9 The court notes that even though there was no clear
process, Parmeley attempted to comply by mailing two letters to
the city jail requesting a grievance form, neither of which the
jail responded to. 	The Court of Appeals has not addressed
whether an inmate must make some affirmative efforts to comply
with an administrative grievance process, even if those
procedures are not capable of use by him, in order to overcome
an exhaustion-based defense. 	But see Napier v. Laurel Cty., 636
F.3d 218, 223 (6th Cir. 2011) (“The Sixth Circuit requires some
affirmative efforts to comply with the administrative procedures
before analyzing whether the facility rendered these remedies
unavailable.”). 	Nor have the defendants raised such an
argument. 	As such, this court does not find, for purposes of
the defendants’ motion for summary judgment, that Rowell’s
failure to do something about the July 2018 incident until his
return to HCDOC, obviates any genuine disputes of material fact
as to whether HCDOC’s Policy was capable of use by Rowell.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 19 of 24

20
the district judge should deny the defendants’ motion for
summary judgment.
III. Waiver of Exhaustion Defense
In addition to arguing that HCDOC’s grievance process was
unavailable, Rowell also claims that the defendants waived their
failure-to-exhaust defense by responding to the substance of his
untimely filed grievance on the merits. 	While a prison that
ignores a potential procedural bar and instead decides “the
substance of an untimely filed grievance . . . on the merits may
arguably be deemed to have waived its . . . failure-to-exhaust
defense,” 	Ellison v. N.H. Dep’t of Corr., No. 07-cv-131-JL,
2009 WL 424535, at *4 n.6, 2009 U.S. Dist. LEXIS 12976, at *14
n.6 (D.N.H. Feb. 19, 2009), the record is clear in this case
that HCDOC did not disregard the timeliness issue here.
In response to Rowell’s late-filed grievance, prison
officials explicitly noted that he “[did] not comply with the
Inmate Grievance procedure as stated in the Inmate Handbook”
that his “grievance . . . be submitted with (sic) fifteen (15)
days from the date of the alleged incident . . . .’” 	HCDOC
Inmate Handbook (Doc. No. 51-3, at 20). 	As such, prison
officials explicitly noted Rowell’s failure to exhaust, arguably
as an independent ground for recommending no further action on
Rowell’s grievance.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 20 of 24

21
The fact that prison officials also responded to Rowell’s
underlying allegation – that he was assaulted during booking –
does not necessarily mean that the prison waived its right to
enforce its procedural rule for untimely complaints. 	Though the
First Circuit Court of Appeals has not yet ruled on this issue,
a plurality of other Circuit Courts have held that prisons waive
their procedural objections to considering the merits of a
grievance and thus their exhaustion defense if they do not
explicitly note or address the procedural defect in rejecting
the grievance. 	See, e.g., Whatley v. Smith, 898 F.3d 1072, 1084
(11th Cir. 2018) (“[A] prison waives its procedural objections
to considering the merits of a grievance, and therefore waives
its exhaustion defense, if it does not explicitly rely on the
grievance’s procedural shortcomings as an adequate and
independent ground for denying the grievance at the
administrative level.” (emphasis in original)); Hammett v.
Cofield, 681 F.3d 945, 948 (8th Cir. 2012) (finding waiver when
prison’s response to the grievance “did not note or address” the
procedural defect and instead denied grievance on the merits);
Reed-Bey v. Pramstaller, 603 F.3d 322, 323 (6th Cir. 2010)
(placing burden on prison to “invoke its procedural bar” rather
than “dismiss[ing] grievance on the merits”); Conyers v. Abitz,
416 F.3d 580, 585 (7th Cir. 2005) (holding that “a procedural
shortcoming like failing to follow the prison’s time deadlines
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 21 of 24

22
amounts to a failure to exhaust only if prison administrators
explicitly relied on that shortcoming” in denying the
grievance).
Here, HCDOC officials arguably did exactly what was asked
by these Circuit Court decisions by affirmatively invoking the
Policy’s procedural rule when rejecting Rowell’s untimely-filed
grievance. 	See Whatley, 898 F.3d at 1084 (“to preserve its
procedural objection, the prison must affirmatively invoke the
procedural rule at the administrative level”). 	And while their
response does not explicitly state “Rowell’s grievance is
rejected on x basis” – where “x” could be solely procedural
grounds, solely substantive grounds, or dual bases – their
response does not suggest that, by addressing Rowell’s assault
allegation, they had decided to overlook, ignore, or render
secondary the procedural untimeliness of Rowell’s grievance.
Compare with Conyers, 416 F.3d at 58510 (rejecting defendants’
10 To clarify, in Conyers, the Seventh Circuit Court of
Appeals considered whether a prison had waived its exhaustion
defense where the prison had argued that the plaintiff’s
grievance was “dismissed for both untimeliness and lack of
merit.” 	Id. at 585. 	The Court of Appeals rejected that
characterization of the prison’s dismissal, finding that on
record before it, “the grievance was principally rejected on the
merits with an ambiguous, secondary observation that it was
untimely.” 	Id. 	This was because the prison’s grievance
examiner, in recommending dismissal of the plaintiff’s
administrative grievance, had reasoned that the plaintiff was
responsible for the complained-of conduct. 	The examiner then
“reminded” the plaintiff-inmate of the grievance submission
deadline. 	Id. at 583. 	It was only on appeal of the grievance
did a different examiner recommend dismissal on the grounds of
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 22 of 24

23
argument that an inmate’s grievance was dismissed on both
untimeliness and substantive grounds where the first-level
grievance examiner simply “reminded” the inmate about the filing
deadline after responding to the merits).
Neither Rowell nor the defendants have cited in their
briefing any case authority directly addressing comparable
circumstances – that is, where a prison officer notes the
untimeliness of a grievance and also addresses a grievance on
the merits without indicating the grounds for denying the
grievance – perhaps given the perception that the availability
of an administrative remedy was the more forefront exhaustion
issue. 	Nevertheless, the district court need not definitively
decide this waiver issue against Rowell at this time, given the
genuine disputes of material fact discussed above, see Part I,
supra, necessitating further proceedings. 	Accordingly, the
district judge should reject Rowell’s waiver argument without
prejudice to his ability to renew the argument at a later
procedural stage, during which both parties can provide more
precise support as to their positions on the potential waiver
issue.
“the untimeliness of the original complaint.” 	Id. 	Those are
not the circumstances in this case.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 23 of 24

24
Conclusion
For the reasons stated above, the district judge should
deny the defendants’ motion for summary judgment (Doc. No. 51)
and order the clerk’s office to set up a case management
conference for purposes of scheduling an evidentiary hearing
before the court to resolve the genuine disputes of material
fact as to administrative exhaustion, prior to a trial on the
merits of the claims in this case. 	Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The
fourteen-day period may be extended upon motion. 	Failure to
file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 23, 2021
cc: 	Mesfen A. Rowell, pro se
Robert S. Carey, Esq.
Meredith Rose Farrell, Esq.
Case 1:19-cv-00419-JL Document 66 Filed 09/23/21 Page 24 of 24