Submitted: December 10, 2014.
Appeal from United States District Court for the Western District of Missouri - Jefferson City.
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Andre Porter, an inmate, sued officials of the Missouri Department of Corrections (MDOC) for retaliation under 42 U.S.C. § 1983. The district court granted them summary judgment after dismissing Porter's claim for failure to exhaust remedies. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, and vacates and remands in part.
On December 3, 2009, a guard gave Porter's unit manager a letter found in front of his former cell. The letter, addressed to Governor Jay Nixon with Porter's name on the return address, said it contained anthrax. The manager believed Porter wrote the letter, although he knew that an inmate near Porter's former cell had threatened " to get" Porter, causing Porter's transfer to a different housing unit two weeks earlier. An independent
investigation concluded that a different inmate wrote the letter but recommended a forensic handwriting exam. The manager and warden took no further action.
Three months later, Porter filed an unrelated § 1983 case against the manager, warden, and others. On May 25, 2010, several defendants were dismissed from the case, including the manager and warden. On June 18, the Attorney General (having waived service of process) appeared for the remaining defendant.
Twelve days later, the manager, with the warden's support, wrote a conduct violation against Porter for the anthrax threat despite the investigation's results months earlier. On July 6, a disciplinary hearing found Porter " Guilty." The hearing relied solely on the manager's accusation and did not " consult" the investigation. On July 8, Porter was assigned to administrative segregation.
To contest violations, inmates must follow a three-step grievance process. First, an inmate files an Informal Resolution Request (IRR). If dissatisfied with the response to the IRR, the inmate files a formal grievance. MDOC Department Manual, D5-3.2 Offender Grievance, III.L.1 (2009). If dissatisfied with the response to the grievance, the inmate appeals within seven days, or the appeal is " considered abandoned." Id. at III.M.1. " After receiving the appeal response, the offender has exhausted the grievance process." Id. at III.M.12. " Expiration of the response time limit at any stage of the process shall allow the grievant to move to the next stage of the process." Id. at III.K.9 (IRRs); III.L.18 (grievances).
On July 14, Porter filed a timely IRR. According to the Manual, an IRR " should be responded to as soon as practical, but within 40 calendar days of receipt." Id. at III.K.6.e. ...