USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-7362

MATTHEW JAMES GRIFFIN,

Plaintiff – Appellant,

v.

NADINE J. BRYANT; P. M. MANNION; ARLENE BURGRESS TOODLE; M. A. KHAN; M. BOSSIE; BYRON SCOTT CARTER; UNKNOWN DOE 1, Nurse; UNKNOWN DOE 2, Correctional Officer (aka Dervin),

Defendants – Appellees.

------------------------------

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION; DISABILITY RIGHTS NORTH CAROLINA; EMANCIPATE NC; NORTH CAROLINA PRISONER LEGAL SERVICES, RIGHTS BEHIND BARS,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Richard E. Myers II, Chief District Judge. (5:17-ct-03173-M)

Argued: October 28, 2022 Decided: December 27, 2022

Before KING and HARRIS, Circuit Judges, and Michael S. NACHMANOFF, United States District Judge for the Eastern District of Virginia, sitting by designation. USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 2 of 20

Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Harris and Judge Nachmanoff joined.

ARGUED: Benjamin Thomas Gunning, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., for Appellant. Stephanie A. Brennan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Jennifer Dotson Maldonado, YATES MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Easha Anand, San Francisco, California, Rosalind Dillon, Chicago, Illinois, Devi M. Rao, Katherine Cion, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., for Appellant. Joshua H. Stein, Attorney General, Sripriya Narasimhan, Deputy General Counsel, Bryan Nichols, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees Bryant, Mannion, Toodle, Bossie, Carter, and Unknown Does. Suzanne R. Walker, YATES MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellee M.A. Khan, M.D. Kristi Graunke, Daniel K. Siegel, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Jennifer Wedekind, Washington, D.C., Ryan J. Murguia, AMERICAN CIVIL LIBERTIES UNION, San Francisco, California, for Amici The American Civil Liberties Union, The American Civil Liberties Union of North Carolina Legal Foundation, Disability Rights North Carolina, Emancipate NC, North Carolina Prisoner Legal Services, and Rights Behind Bars.

2 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 3 of 20

KING, Circuit Judge:

Plaintiff Matthew James Griffin appeals from the decision rendered in the Eastern

District of North Carolina in 2021 granting summary judgment to several officials of North

Carolina’s Central Prison (the “Central Prison defendants”), against whom Griffin — a

Central Prison inmate — pursued various state and federal claims. See Griffin v. Bryant,

No. 5:17-ct-3173 (E.D.N.C. Mar. 29, 2021), ECF No. 128 (the “Summary Judgment

Order”). In awarding judgment to the Central Prison defendants, the district court ruled

that Griffin had failed to exhaust all administrative remedies available to him prior to filing

his lawsuit in federal court, as required by the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a) (the “PLRA”). In these circumstances, however, the record presents numerous

disputed issues of material fact about how North Carolina’s prison grievance procedure

functions and is administered, including whether Griffin failed to exhaust administrative

remedies of his own accord and whether such remedies were meaningfully “available” to

him. Accordingly, because the district court’s award of summary judgment was

erroneously premature and otherwise flawed, we are constrained to vacate and remand.

3 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 4 of 20

I.

A.

Griffin is a New Mexico citizen who, at all times relevant here, was incarcerated at

Central Prison, a North Carolina correctional facility located in Raleigh. 1 Central Prison

adheres to the internal grievance procedure established and maintained by the North

Carolina Department of Public Safety’s Division of Prisons, formally known as the

“Administrative Remedy Procedure” (hereinafter the “grievance procedure”). See J.A.

104. 2 The parties characterize certain aspects of the grievance procedure’s operation

differently, but generally agree that it functions as follows.

First, prison inmates are required to file written grievances within 90 days of the

incident that gives rise to the grievance. Once a grievance has been submitted, “screening

officers” have three days to determine whether the grievance should be accepted for review

or rejected, based on compliance with certain technical rules. See J.A. 106. If the grievance

is accepted, prison officials are required to issue a formal written response to the aggrieved

inmate within 15 days, which is referred to as “Step 1” of the grievance procedure. Id. at

110. If the aggrieved inmate is dissatisfied with the “Step 1” decision (whether the decision

1 We recite the relevant facts, as the district court was also obliged to do, in the light most favorable to Griffin, who was the nonmoving party with respect to the Central Prison defendants’ summary judgment motions. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). 2 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal. Citations to “S.J.A. __” refer to the contents of the Supplemental Joint Appendix.

4 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 5 of 20

is an outright denial of the grievance or otherwise), the inmate is entitled to appeal the

decision to “Step 2” — though the grievance procedure’s terms are unclear as to how those

appeals are taken. In any event, at “Step 2,” prison officials must review the pending

grievance and provide another written response, this time within 20 days of the date of the

inmate’s appeal. Id. at 111. And if the inmate is dissatisfied with the “Step 2” decision,

he is entitled to appeal to “Step 3” — the final stage of the grievance procedure, which

mandates a review by North Carolina’s Secretary of Public Safety. Id. at 112. Of

importance here, the grievance procedure bars an inmate from having more than one

grievance pending at or before the “Step 2” review. That is, if an inmate has a grievance

in the system, he cannot file another grievance until the pending grievance either passes

the “Step 2” review stage (i.e., by being appealed to “Step 3”) or is resolved. Id. at 106.

Relative to the right to appeal, the grievance procedure specifies that, “[i]f at any

level of the administrative remedy process, including the final level, the inmate does not

receive a response within the time provided for reply . . . the absence of a response shall be

a denial at that level which the inmate may appeal.” See J.A. 108. The Central Prison

defendants refer to the right to appeal “the absence of a response” as an appeal from a “de

facto denial” of a grievance. See Br. of Appellees 14-15. Yet, on that point, the grievance

procedure contradicts itself in two critical and somewhat confounding respects.

First, the grievance procedure contradicts itself by requiring that an appeal from any

“Step” “be made in writing on Form DC-410,” i.e., the official form of the prison system

on which written decisions are returned to aggrieved inmates. See J.A. 111-12. But

nothing in the procedure explains how an aggrieved inmate can obtain a blank Form DC-

5 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 6 of 20

410 if prison officials fail to timely respond to his grievance — evidently leaving him

without the ability to notice an appeal from the so-called “de facto denial.” Second, the

procedure separately contradicts itself by providing that “[i]f, at any step of the procedure,

a response is not made within the prescribed time limits, the grievance will be forwarded

to the next step for review.” Id. at 107. And another section similarly provides that, “[i]f

at any step of the procedure, the inmate refuses to sign the DC-410 indicating his/her desire

to appeal, the DC-410 will automatically be forwarded to the next step in the [procedure].”

Id. at 112. Those provisions thus suggest that there is no need for an inmate to appeal when

prison officials fail to respond to his grievance, because the grievance will automatically

proceed to the next “Step.” As the facts of this case illustrate, however, that is not always

what occurs.

B.

Griffin arrived at Central Prison in October 2015. On October 27, 2015, Griffin

filed a written grievance requesting to be placed on a Kosher diet (the “Kosher diet

grievance”). That grievance was accepted for review on October 29 and, on October 30,

prison officials placed Griffin on a Kosher diet — favorably resolving his grievance before

a written “Step 1” response was issued. For unknown reasons, however, the Kosher diet

grievance filed by Griffin was never formally removed from the grievance system. The

Central Prison defendants blame Griffin for failing to “dismiss” his Kosher diet grievance,

but it is not clear what, if any, ability aggrieved inmates have — under the grievance

procedure — to unilaterally “dismiss” their grievances. See Br. of Appellees 9. That is,

the grievance procedure does not contemplate such an option.

6 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 7 of 20

The events underlying this litigation took place in late November 2015. Griffin

suffers from a variety of severe vision impairments that place him at a heightened risk of

falling, and prison officials accordingly directed that he be assigned to a handicapped-

accessible cell, sleep in the cell’s bottom bunk, and not be required to climb stairs. On

November 22, 2015, Griffin was assigned to a prison hospital cell pending the availability

of a cell that was compliant with the Americans with Disabilities Act (“ADA”). On

November 25, Griffin began complaining to prison staff about his cell assignment, but his

requests to be transferred to an ADA-compliant cell were rebuffed. On November 26,

defendant Nadine Bryant — a Central Prison nurse — advised Griffin that, “[i]f you

continue to wake us up to complain about the ADA I’m going to have you involuntarily

medicated.” See J.A. 32. Griffin persisted with his complaints and, in the early morning

hours of November 27, Bryant made good on her threat — she and several other named

Central Prison defendants entered Griffin’s cell, forced him to the floor, and involuntarily

sedated him. 3 Left unsupervised, Griffin awoke hours later and stumbled and fell in his

cell, striking his head and dislocating his left shoulder.

Griffin filed a written grievance regarding the involuntary sedation incident (the

“sedation grievance”) later that same day — November 27, 2015. On November 30,

however, Griffin’s sedation grievance was “returned” to him because his Kosher diet

3 Defendants Bryant, Mannion, Toodle, Bossie, Carter, “Unknown Doe 1,” and “Unknown Doe 2” were directly involved in involuntarily sedating Griffin. Meanwhile, defendant Khan — a Central Prison doctor — supplied Bryant with an emergency medical order authorizing the sedation.

7 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 8 of 20

grievance of October 27 was deemed yet pending at “Step 1.” See J.A. 119. That is,

because the Kosher diet grievance had never formally been resolved by a written response

or forwarded to “Step 2,” application of the grievance procedure’s “one-grievance-at-a-

time” rule barred Griffin from filing the sedation grievance or any further grievances.

From then on, the Kosher diet grievance apparently languished somewhere in the

prison’s grievance system, still on the books yet seemingly forgotten. Griffin took no

action to “appeal” the Kosher diet grievance through the procedure’s various “Steps,”

though it is unclear whether he was able to institute such an appeal (given the lack of a

written response on a Form DC-410), or whether he believed that he needed to do so (given

that he had already prevailed and been placed on a Kosher diet). In any event, on January

4, 2016, Griffin filed a new grievance. The new grievance related to inadequate treatment

of a skin condition from which Griffin suffered (the “inadequate care grievance”). On

January 6, despite no action having been taken on the Kosher diet grievance, the inadequate

care grievance was accepted for review. Thus, Griffin then had two grievances — the

Kosher diet grievance and the inadequate care grievance — pending in the system that had

not yet cleared “Step 2” review, in violation of the grievance procedure. 4

After erroneously accepting Griffin’s inadequate care grievance for review, prison

officials denied it by a written “Step 1” response issued on January 12, 2016. On January

21, Griffin appealed the denial of his inadequate care grievance to “Step 2.” Prison officials

4 No explanation has ever been given — either by prison officials at the time, or by the Central Prison defendants in this litigation — as to why the inadequate care grievance was accepted into the system alongside the Kosher diet grievance while the sedation grievance was not. 8 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 9 of 20

failed to reply to that appeal within 20 days (by February 10), instead issuing a written

response on February 24, which Griffin appealed to “Step 3” on February 26.

In the meantime, on February 5, 2016, prison officials forwarded the Kosher diet

grievance — which had by then been left stagnant in the grievance system for more than

three months — to “Step 2,” citing “the timeframe violation.” See S.J.A. 5. And on

February 10, using the Form DC-410 which provided him with notice of that action, Griffin

appealed the Kosher diet grievance to “Step 3.” See id. at 3, 5. Thus, as of February 26,

Griffin no longer had any grievances pending at or before “Step 2,” apparently enabling

him to resubmit his sedation grievance. But the day prior — that being February 25 —

was precisely 90 days after November 27, 2015, the date that the Central Prison defendants

had involuntarily sedated Griffin. Consequently, the grievance procedure’s 90-day filing

limitation then — according to the parties — stood in the way of the sedation grievance

being reviewed. Indeed, when Griffin resubmitted that grievance on April 29, 2016, it was

rejected as untimely. 5

5 Given the progression of this timeline, it appears that Griffin might have been able to timely resubmit his sedation grievance on February 25, 2016, had he appealed the inadequate care grievance to “Step 3” on that date instead of on February 26, 2016. But the parties fail to discuss the intersection of those dates in their appellate submissions, and they also inaccurately recount how the Kosher diet grievance was disposed of in February 2016. The Central Prison defendants, for their part, wrongly assert that Griffin did not appeal that grievance to “Step 3” at all, and say that prison officials instead automatically forwarded the grievance to “Step 3” on February 25. The parties also fail to explain how or why Griffin was able to appeal his various grievance decisions multiple days after receiving them, when the grievance procedure expressly provides that appeals must be taken within 24 hours of a decision being rendered. See J.A. 107. These ambiguities only contribute to our conclusion that the record in its present state leaves open too many issues of material fact for an award of summary judgment to be sustained.

9 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 10 of 20

C.

Ostensibly left with no further way to seek relief in the North Carolina prison

system, Griffin turned to the federal court system. Proceeding pro se, Griffin initiated this

action against the Central Prison defendants in the Eastern District of North Carolina on

June 30, 2017. By his complaint, Griffin pursued three claims, alleging that (1) under

, the Central Prison defendants’ actions during the involuntary sedation

incident constituted deliberate indifference to his serious medical needs, in contravention

of the Eighth and Fourteenth Amendments; (2) the defendants retaliated against him for

making complaints under the ADA and the Rehabilitation Act; and (3) by sedating him and

leaving him unsupervised, the defendants were negligent under North Carolina tort law.

In December 2019, defendants Matthew Bossie and M.A. Khan filed motions to

dismiss Griffin’s complaint for failure to exhaust all available administrative remedies

related to the involuntary sedation incident, as required by the PLRA. Griffin opposed the

motions, asserting that no administrative remedies were “available” to him with respect to

the sedation grievance, such that the PLRA’s exhaustion requirement was no bar to his

civil complaint. By order of September 5, 2020, the district court converted the motions

to dismiss into motions for summary judgment, notifying the parties of a “reasonable

opportunity to present all material made pertinent to such a motion by Rule 56.” See J.A.

12. Griffin filed another response in opposition to the summary judgment motions,

reiterating his “unavailability” arguments.

On March 29, 2021, the district court awarded summary judgment to the Central

Prison defendants, ruling that Griffin’s federal claims were barred by his failure to exhaust

10 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 11 of 20

available administrative remedies. Observing that Griffin’s sedation grievance had first

been “returned” due to the Kosher diet grievance and was ultimately rejected under the

grievance procedure’s 90-day filing limitation, the court resolved that the “undisputed

evidence” demonstrated that “no grievance pertaining to the relevant claims” had

“completed the three-step administrative remedy procedure,” such that Griffin “failed to

exhaust administrative remedies prior to filing this action.”

. The court briefly

acknowledged Griffin’s “unavailability” contentions, but summarily concluded that the

grievance procedure made internal remedies fully available to him. Accordingly, the court

rejected Griffin’s constitutional and federal statutory claims, declined to exercise

supplemental jurisdiction over his state law tort claim, and ordered the case closed.

Griffin thereafter moved for relief from the district court’s Summary Judgment

Order pursuant to Federal Rule of Civil Procedure 60(b), alleging errors in the court’s

analysis. The court denied Griffin’s motion by order of September 22, 2021. On

September 26, 2021, Griffin appealed from the Summary Judgment Order and the order

denying relief under Rule 60(b). We possess jurisdiction pursuant to

.

II.

On appeal, Griffin maintains his position that the North Carolina prison grievance

procedure did not leave any administrative remedies “available” to him as contemplated

by the PLRA. As such, he argues that the district court erroneously granted the Central

Prison defendants’ summary judgment motions on exhaustion grounds. We review de

novo a district court’s award of summary judgment. See Moss v. Harwood,

,

11 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 12 of 20

621 (4th Cir. 2021). Summary judgment is appropriate only if “no material facts are

disputed and the moving party is entitled to judgment as a matter of law.”

In conducting

our assessment, we view the facts in the light most favorable to Griffin, the non-moving

party.

.

III.

A.

The PLRA provides that “[n]o action shall be brought with respect to prison

conditions” under

“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.” See 42 U.S.C. § 1997e(a). 6 The statute’s exhaustion requirement

is strict, intended to “reduce the quantity and improve the quality of prisoner suits.” See

Porter v. Nussle,

(2002). Yet the exhaustion requirement does not

operate as an absolute bar to prison litigation in federal court — rather, it sets forth a “built-

in exception,” specifying that a prisoner “need not exhaust remedies if they are not

‘available.’” See Ross v. Blake,

(2016).

In its important 2016 decision in Ross v. Blake, the Supreme Court recognized that,

although the PLRA’s “mandatory language means a court may not excuse a failure to

6 By its terms, the PLRA’s exhaustion requirement applies not only to claims pursued under § 1983 — here, Griffin’s Eighth and Fourteenth Amendment “deliberate indifference” claim — but also applies to claims initiated under “any other Federal law,” including Griffin’s claim under the ADA and the Rehabilitation Act.

12 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 13 of 20

exhaust, even to take [special] circumstances into account,” the statute spells out a crucial

“limitation on an inmate’s duty to exhaust” administrative remedies — “[he] need not

exhaust unavailable ones.” See

. Pursuant to Ross, if a prison

grievance procedure’s provided avenues for recourse are not meaningfully “capable of use

to obtain some relief for the action complained of,” the exhaustion requirement “does not

come into play.”

at 642-43 (quoting Booth v. Churner,

(2001)

(internal quotation marks omitted)). And the Ross Court identified three circumstances

where an administrative remedy, “although officially on the books, is not capable of use to

obtain relief”: (1) where the remedy “operates as a simple dead end,” with prison officials

“unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where an

administrative scheme is “so opaque” that it is “practically . . . incapable of use” because

“no ordinary prisoner can discern or navigate it”; and (3) where “prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 643-44.

B.

1.

Here, Griffin focuses his challenge to the district court’s Summary Judgment Order

on the question of “availability,” and thus on Ross’s examples of grievance procedures that

are not truly “capable of use.” Griffin contends that, when viewed cumulatively, the North

Carolina grievance procedure’s “one-grievance at a time rule,” its 90-day filing limitation,

the failure of prison officials to timely dispense with his Kosher diet grievance, plus the

erroneous acceptance of his inadequate care grievance, presented him with a “simple dead

13 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 14 of 20

end” and allowed the Central Prison defendants to “thwart” his pursuit of the sedation

grievance. See Ross,

. Griffin accordingly maintains that he was under

no obligation to exhaust the grievance procedure’s provided remedies concerning the

sedation grievance before filing this lawsuit. He thus requests that we reverse the Summary

Judgment Order and remand so that he may proceed to the merits of his claims.

The Central Prison defendants, for their part, insist that remedies remained open to

Griffin, that he failed to make use of them, and that he “cannot be excused for failing to

help himself.” See Br. of Appellees 34. The Central Prison defendants argue that Griffin

simply should have “dismissed” the “moot” Kosher diet grievance, so as to make way for

his sedation grievance to be filed at any time between November 2015 and January 2016.

Id. at 19. And the crux of the defendants’ argument likewise places the blame on Griffin:

they maintain that he should have appealed the “de facto denials” of the Kosher diet

grievance through the various “Steps” of the grievance procedure when the procedure’s

timetables so allowed, thereby enabling him to timely file the sedation grievance as early

as December 3, 2015 — well in advance of the 90-day filing deadline that purportedly

expired in February 2016. 7

7 In support of their assertion that Griffin could properly have filed the sedation grievance on December 3, 2015, the Central Prison defendants explain that Griffin could — at least in theory — have appealed the first “de facto denial” of the Kosher diet grievance to “Step 2” on November 13, 2015, 15 days after that grievance was accepted for “Step 1” review on October 29, 2015. And then, say the Central Prison defendants, assuming another lack of a written response to the already-resolved grievance, Griffin could have moved the grievance on to “Step 3” 20 days later — that is, December 3 — so as to clear the system of any grievances pending at or before “Step 2” review.

14 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 15 of 20

The parties, to their credit, have sought to make some sense of the grievance

procedure’s rules — and their seemingly inconsistent administration — with the

information available. Yet the record before us presents disputes of material fact that

preclude a court from passing upon the questions of what, exactly, led to Griffin’s failure

to exhaust the remedies provided by the grievance procedure and, ultimately, whether those

remedies were really “available” to Griffin within the meaning of the PLRA. Perhaps the

lawyer for defendant Khan put it best at oral argument when she acknowledged that she

had “never seen a situation like this come up . . . where it doesn’t appear directly in the

record what happened.” See Oral Argument at 38:37-:54, Griffin v. Bryant, No. 21-7362

(4th Cir. Oct. 28, 2022), https://www.ca4.uscourts.gov/OAarchive/mp3/21-7362-

20221028.mp3.

2.

For starters, much is left unanswered regarding how the grievance procedure

actually operates and is carried out by North Carolina prison officials, particularly with

respect to the procedure’s appeals system. The record is silent as to how aggrieved inmates

are to appeal from “the absence of a response” to a grievance, or from the so-called “de

facto denial.” Although the grievance procedure provides that appeals are ordinarily taken

by checking a box on Form DC-410, what is the inmate to do when no response on that

Form ever materializes — i.e., what mechanism is then used for an appeal? 8

8 Strikingly, nothing in the record indicates that an appeal from a “de facto” grievance denial has ever occurred in the North Carolina prison system. 15 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 16 of 20

The grievance procedure is also self-contradictory when it comes to untimely (or

simply non-existent) grievance responses, suggesting that if “a response is not made within

the prescribed time limits, [a] grievance will be forwarded to the next step for review.” See

J.A. 107. The Central Prison defendants, however, have made no explanation as to why

the lack of a formal written response to the Kosher diet grievance did not result in its

automatic “forwarding” to “Step 2” as early as November 2015. Put simply, these

uncertainties regarding the grievance procedure’s timelines and its rules for appeals

undermine the Central Prison defendants’ core contention that Griffin’s failure to appeal

the Kosher diet grievance should be blamed for his ultimate failure to exhaust the

procedure’s administrative remedies. And there is no documentation in the record that

speaks to whether inmates actually have the option to singlehandedly “dismiss” their

grievances, as the Central Prison defendants maintain.

The general inquiry regarding “exhaustion” is similarly muddied. Certainly, Griffin

never received any formal resolution of or response to his sedation grievance, and he did

not shepherd it through the grievance system’s three-tiered review process. Instead, his

final action was to resubmit the sedation grievance on April 29, 2016, only to have it

rejected because it “[e]xceed[ed] [the] 90 day time limit.” See J.A. 149. Yet an open

question remains whether that resubmission should have been deemed timely. The

grievance procedure requires inmates to file grievances within 90 days of the event that

they complain of, but Griffin readily satisfied that deadline — he filed the sedation

grievance on November 27, 2015, the very day the Central Prison defendants involuntarily

sedated him. The grievance procedure is unclear as to what happens to a timely filed

16 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 17 of 20

grievance that cannot be considered because another grievance is pending. What if the

second, timely filed grievance is later resubmitted — can it then be reviewed anew at “Step

1”? That is, does the grievance procedure use any sort of tolling rule?

Though the parties failed to discuss the point in their briefs, the record suggests that

the grievance procedure has a tolling rule. When Griffin resubmitted his sedation

grievance in April 2016, he attached a “North Carolina Grievance Tracking Form” labeled

“Form L-22,” which made note of “[d]ays remaining to submit grievance after equitable

tolling of 90 day period for grievance(s) still pending at Step-Two.” See J.A. 146. Little

to no other information is available about the “Form L-22” — counsel were unable to

clarify at oral argument where the L-22 Form comes from, or even whether it is an official

form of the prison system. But accepting that the grievance procedure has a 90-day tolling

rule, 87 days remained for Griffin to resubmit his sedation grievance when it was

“returned” to him on November 30, 2015. And in that event, April 29, 2016 — 63 days

after February 26, 2016, when Griffin appealed his inadequate care grievance to “Step 3”

— would have made for a timely resubmission date. Of course, if Griffin had been

permitted to resubmit the sedation grievance in April 2016, that would bar any finding that

the grievance procedure was “unavailable” to him. But we only seek to emphasize the

extent to which the facts surrounding this issue remain in doubt.

Finally — and again on the matter of “unavailability” — further development of the

record should reveal whether the grievance procedure was “capable of use to obtain some

relief for the action complained of.” See Ross,

. To be sure, Griffin makes

a compelling case that the grievance procedure’s overlapping rules and deadlines presented

17 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 18 of 20

him with “a simple dead end,” that the facts invite at least an inference of “thwarting” and

“machination” by prison officials, and even that, in the words of the Supreme Court in

Ross, “no ordinary prisoner can discern or navigate” the grievance procedure because it is

“so opaque.”

. Nevertheless, an abundance of loose ends feed into the

question of whether administrative remedies were functionally available to Griffin — and

not just those discussed here. We identify just a few.

Why, for instance, was Griffin’s Kosher diet grievance left to languish in the system

after it had been favorably resolved almost immediately? Why did prison officials accept

and respond to Griffin’s inadequate care grievance, in plain contravention of their “one-

grievance-at-a-time” policy? And why was the apparently moot Kosher diet grievance

suddenly forwarded to “Step 2” in February 2016, just days before the supposed filing

deadline for the sedation grievance? The facts of record present the actual possibility that

Griffin faced “a real world ‘Catch 22,’ a dilemma from which there is no escape, one in

which the only solution is denied by a circumstance inherent in the problem.” See Eaton

v. Blewett,

, 1243 (9th Cir. 2022). But the record leaves too much to

speculation for us to now decide that Griffin’s failure to exhaust the grievance procedure’s

remedies should be excused because those remedies were not, in truth, “available” to him.

***

It is clearly unsettled on this record how the prison system’s grievance procedure

functions — on paper and in practice — and what actually occurred between October 2015

and April 2016 as Griffin’s various grievances were being considered. In our view, the

record leaves unresolved at least the following issues of material fact:

18 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 19 of 20

• How aggrieved inmates are to institute appeals from so-called “de facto denials”;

• Why “de facto denials” are not automatically forwarded to the next “Step” in the grievance procedure, as the procedure’s rules require;

• Whether aggrieved inmates have the ability to “dismiss” their own grievances from the system;

• Whether the grievance procedure contains an equitable tolling rule and, if so, whether Griffin’s April 2016 resubmission of his sedation grievance should have been deemed timely;

• Why the Kosher diet grievance was left stagnant after its October 2015 resolution, and why that grievance was only forwarded to “Step 2” months later, in February 2016; and

• Why the inadequate care grievance was allowed into the system alongside the Kosher diet grievance, but the sedation grievance was rejected.

In view of those uncertainties, the district court prematurely awarded summary

judgment to the Central Prison defendants on the basis that administrative remedies

remained available to Griffin and that his failure to exhaust such remedies barred his federal

lawsuit under the PLRA. Put simply, the facts as they are known do not justify an award

of judgment as a matter of law. On remand, appropriate discovery and development of the

record — including stipulations that the lawyers should seek and present, as well as

affidavits providing relevant information — will assist the court in resolving this litigation.

IV.

Pursuant to the foregoing, we vacate the Summary Judgment Order and remand for

such other and further proceedings as may be appropriate.

19 USCA4 Appeal: 21-7362 Doc: 78 Filed: 12/27/2022 Pg: 20 of 20

VACATED AND REMANDED

20