United States Court of Appeals

for the Fifth Circuit

No. 19-60588

Matthew Huskey, 

Plaintiff—Appellant,

versus

Mary Jones, Captain (Unit 29); Derrick Munford, 

Captain (Unit 29); “John Doe” Griffin, Lieutenant (Key 

Control); Donovan Clark, Officer (Unit 29); Tommy 

Herring, Officer (K-9 Unit), 

Defendants—Appellees.

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 1:17-CV-140

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

Plaintiff-Appellant Matthew Huskey brought suit against DefendantsAppellees for conduct that occurred during his incarceration at the 

Mississippi State Penitentiary. The district court granted summary judgment 

in favor of Appellees, and Huskey appealed. We remanded to the district 

court for a factual inquiry into the timeliness of Huskey’s Motion to Alter or 

Amend Judgment under Rule 59(e). See Fed. R. Civ. P. 59(e). The district 

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2022

Lyle W. Cayce

Clerk

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court determined that Huskey’s appeal was not time-barred; thus, we have 

jurisdiction. Because Huskey established a genuine dispute of material fact as 

to whether administrative remedies were available to him, we REVERSE.

I. Facts & Procedural History1

Huskey alleged that on September 8, 2016, while seeking care at a 

medical clinic, officers forced his face into a wall, yelled that he had a knife, 

took his shoes and pants off, and took turns slapping him in the face and head 

while he was restrained. According to Huskey, after the incident, Captain 

Mary Jones left him in flex cuffs for about an hour, refused to let him see a 

nurse, and then refused to transport him to the hospital after the doctor 

informed her that it was prison policy to do so. He further alleged than when 

he was taken to the hospital for an x-ray six days later, a doctor informed him 

that his arm was broken. 

Huskey described his efforts to exhaust prison administrative 

remedies as follows. On September 12, 2016, he filed three grievances 

relating to the incident and requesting that the officers involved be punished.

On September 23, 2016, the director of the Administrative Remedies 

Program (“ARP”) rejected each grievance by marking a box on the ARP-1 

forms indicating that the “REQUESTED RELIEF IS BEYOND THE 

POWER OF THE ARP TO GRANT.” Appellees provided records showing 

that Huskey also filed a letter, dated September 21, 2016, attempting to 

amend the grievance that alleged that the officers committed violence against 

him, but the director responded on September 27, 2016, explaining that he 

would not process the request because the grievance had already been 

rejected. Huskey then filed three step two grievances, all dated October 6, 

2016, requesting that his grievances be reinstated because the grievance 

1 The majority of the facts and procedural history herein are drawn from our 

original opinion. See Huskey v. Jones, 860 F. App’x 322, 323 (5th Cir. 2021).

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procedure manual he reviewed did not list the ARP’s lack of power to grant 

requested relief as an appropriate reason for rejection. In response, the 

director sent him a letter dated October 20, 2016, explaining that “it is not 

necessary to submit an appeal to this office requesting for Administrative 

Remedy on a case which was originally already rejected for the reason listed 

on the ARP-1 form(s) provided to you. Please be advised that once your 

request for Administrative Remedy is rejected, you cannot proceed to the 

second step on that rejection.”

Huskey brought suit under 42 U.S.C. § 1983.2 The district court held 

a hearing under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and 

dismissed some of Huskey’s claims while allowing him to proceed with his 

claims that Appellees used excessive force against him and denied him 

adequate medical care. Appellees filed a motion for summary judgment, 

arguing that Huskey’s claims should be dismissed for failure to exhaust 

administrative remedies under the Prison Litigation Reform Act (“PLRA”). 

See 42 U.S.C. § 1997e(a). Huskey opposed summary judgment, arguing that 

he had satisfied the PLRA’s requirements by filing grievances and attempting 

to appeal his rejections after being told that he was not allowed to appeal 

them. 

The magistrate judge granted the motion for summary judgment and 

dismissed the case for failure to exhaust administrative remedies. The district 

court entered judgment on April 4, 2019. Huskey filed a motion to alter or 

2 “Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or immunities secured by the Constitution and 

laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 

proceeding for redress, except that in any action brought against a judicial officer for an act 

or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted 

unless a declaratory decree was violated or declaratory relief was unavailable.”

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amend the judgment under Rule 59(e) that was dated April 27, 2019, but not 

post-marked until May 3, 2019. See Fed. R. Civ. P. 59(e). The magistrate 

judge accepted Huskey’s motion but denied it. The magistrate judge 

subsequently granted Huskey’s motion to proceed in forma pauperis on 

appeal. Huskey appealed.

We remanded to the district court because it was unclear whether we 

had jurisdiction over Huskey’s appeal, given that it was potentially timebarred. The district court determined that his appeal was not time-barred 

because Huskey’s Rule 59(e) was timely filed based on the prison mailbox 

rule. This case now returns to use once more and we address the merits.

II. Standard of Review

“We review a district court’s grant of summary judgment de novo, 

applying the same standards as the district court.” Hagen v. Aetna Ins. Co., 

808 F.3d 1022, 1026 (5th Cir. 2015). Summary judgment is appropriate if the 

record evidence “shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). “Moreover, all facts and inferences must be viewed in the 

light most favorable to the nonmoving party.” Armstrong v. Am. Home Shield 

Corp., 333 F.3d 566, 568 (5th Cir. 2003).

III. Discussion

The magistrate judge granted the motion for summary judgment and 

held that Huskey failed to exhaust the prison grievance process before

bringing this lawsuit. Huskey v. Fisher, No. 1:17-CV-140, 2019 WL 1495275, 

at *2 (N.D. Miss. Apr. 4, 2019). Noting that all of Huskey’s grievances were 

rejected during the initial screening phase of the process, the magistrate 

judge reasoned that rejection of a grievance at the screening phase terminates 

the process such that it cannot proceed to exhaustion. Id. at *4. The 

magistrate judge explained that if the deficiencies in a grievance are 

“technical” or “matters of form,” an inmate can submit a corrected 

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grievance within five days, which, if accepted, may proceed through the 

process to exhaustion. Id. But because Huskey attempted to file step two 

grievances instead of a corrected grievance or a new grievance altogether, she 

reasoned that he did not exhaust his administrative remedies. Id.

The exhaustion provision of the PLRA states:

No action shall be brought with respect to prison conditions 

under [42 U.S.C. § 1983], 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.

42 U.S.C. § 1997e(a).

Huskey acknowledges that the PLRA prohibits an inmate from 

bringing suit until he exhausts the administrative remedies that are available.

He argues, however, that he satisfied § 1997e(a) by exhausting the remedies 

available to him because he followed the grievance policy set forth in the 2015 

Mississippi Department of Corrections (“MDOC”) Standard Operating 

Procedures (“2015 SOP”) and had no knowledge of or access to the revised 

handbook that listed the claims ARP director’s reason for rejection.

3

The Supreme Court has held that “[a]n inmate . . . must exhaust 

available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578 

U.S. 632, 642 (2016). “To determine what remedies are ‘available’ and thus 

must be exhausted, we look to ‘the applicable procedural rules . . . defined . . 

. by the prison grievance process itself.’” Wilson v. Epps, 776 F.3d 296, 299 

(5th Cir. 2015) (alteration in original) (quoting Jones v. Bock, 549 U.S. 199, 

3 Relatedly, Huskey contends that the district court erred by taking judicial notice 

of the MDOC website displaying the revised 2016 Inmate Handbook. We disagree. This 

court has upheld taking judicial notice of the contents of a state agency’s website and we 

do so again here. See Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) 

(taking judicial notice of approval by the National Mediation Board published on the 

agency’s website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam)

(taking judicial notice of a Texas agency’s website).

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218 (2007)). “This circuit has taken a ‘strict’ approach to § 1997e’s 

exhaustion requirement, under which prisoners must not just substantially 

comply with the prison’s grievance procedures, but instead must ‘exhaust 

available remedies properly.’” Id. at 299–300 (quoting Dillon v. Rogers, 596 

F.3d 260, 268 (5th Cir. 2010)). “[T]o properly exhaust administrative 

remedies prisoners must ‘complete the administrative review process in 

accordance with the applicable procedural rules,’” as defined “by the prison 

grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 

548 U.S. 81, 88 (2006)).

However, “an inmate is required to exhaust . . . only those[] grievance 

procedures that are ‘capable of use’ to obtain ‘some relief for the action 

complained of.’” Ross, 578 U.S. at 642 (quoting Booth v. Churner, 532 U.S. 

731, 738 (2001)). The Supreme Court has identified three circumstances 

under which “an administrative remedy, although officially on the books, is 

not capable of use to obtain relief.” Id. at 643. These circumstances exist 

“where (1) prison officials are ‘unable or consistently unwilling to provide 

any relief to aggrieved inmates,’ (2) the administrative scheme is ‘so opaque 

that it becomes, practically speaking, incapable of use’ by an ordinary 

prisoner, or (3) prison administrators ‘thwart inmates from taking advantage 

of a grievance process through machination, misrepresentation, or 

intimidation.’” Hinton v. Martin, 742 F. App’x 14, 15 (5th Cir. 2018) (citing

Ross, 578 U.S. at 643–44).

The second and third circumstances are implicated here. To be sure, 

“courts may not deem grievance procedures unavailable merely because an 

inmate was ignorant of them, so long as the inmate had a fair, reasonable 

opportunity to apprise himself of the procedures.” Davis v. Fernandez, 798 

F.3d 290, 295 (5th Cir. 2015). The facts of this case raise questions as to 

whether Huskey had such an opportunity. 

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Here, the 2015 SOP provided to Huskey and the 2016 online Inmate 

Handbook on which Appellees rely differ in significant ways. For instance, 

the 2016 online handbook explains that “[i]f a request is rejected for technical 

reasons or matters of form, the inmate shall have five days from the date of 

rejection to file his/her corrected grievance.” The 2015 SOP does not 

contain this instruction. Additionally, both the 2015 SOP and the 2016 online 

handbook state that if a grievance is rejected during screening, “it must be 

for one of the following reasons.” But the lists that follow are different. The 

2016 online handbook provides five possible reasons, including that, “[t]he 

relief sought is beyond the power of MDOC to grant.” Conversely, the 2015 

SOP does not include inability to grant the relief requested—the basis for the 

rejection of Huskey’s grievances—in its exclusive list of ten reasons for 

rejecting a grievance during screening.4

In rejecting Huskey’s Rule 59(e) motion, the magistrate judge

determined that the discrepancies between the SOP and handbook did not 

render remedies unavailable because (1) as a matter of reason, if the relief he 

requested was beyond the power of the MDOC to grant, then it could not be 

obtained through the grievance process; and (2) Huskey was at least on 

inquiry notice that the MDOC was using a different policy than what was set 

forth in the 2015 SOP. Huskey v. Fisher, No. 1:17-CV-140, 2019 WL 3082421, 

at *2 (N.D. Miss. July 15, 2019). However, based on the lack of record 

evidence that Huskey was aware of the 2016 online handbook or that he had 

4 Appellees address Huskey’s argument that these differences created confusion 

by noting that “Huskey successfully navigated to completion a grievance regarding sexual 

harassment and the use of illegal cameras.” We have rejected a similar argument in the 

past. See Brantner v. Freestone Cnty. Sheriffs Off., 776 F. App’x 829, 831, 834 (5th Cir. 2019)

(reversing the district court’s grant of summary judgment in favor of the sheriff’s office, 

sheriff, county, and other county employees where they pointed to an inmate’s submission 

of a grievance form for an unrelated incident as evidence that he knew of the grievance 

process rules and had access to the relevant forms).

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access to the internet at all, there is a genuine dispute of material fact as to 

whether the step of filing a corrected grievance within five days was available 

to him.

This court has previously reversed a district court’s grant of summary 

judgment and held that there was a genuine dispute of material fact as to 

whether a remedy was available to an inmate where he was given “documents 

that only partially explained the prison processes.” See Brantner v. Freestone 

Cnty. Sheriffs Off., 776 F. App’x 829, 834 (5th Cir. 2019). In Brantner, an 

inmate appealed a district court’s grant of summary judgment based on his 

failure to exhaust administrative remedies. Id. at 830. The jail asserted that 

its grievance procedures were set out in three documents: the County Jail 

Rules, the Grievance Plan, and the Inmate Rules Handbook. Id. at 831. It 

contended that Brantner was given the County Jail Rules and Inmate Rules 

Handbook when he was booked into jail. Id. at 833. However, we determined 

that Brantner had presented evidence that he never received the Inmate 

Rules Handbook. Id. at 834. What is more, he received the County Jail Rules, 

which stated that grievance forms would be available upon request and that 

“instructions would be provided,” but he never received grievance forms 

despite repeated requests, nor did he receive further instruction. Id. at 830, 

834. We reasoned that Brantner was “‘thwart[ed]’ from using prison 

processes because he was supplied with documents that only partially 

explained prison processes.” Id. at 834 (alteration in original) (quoting Ross, 

578 U.S. at 644). Thus, we held that Brantner satisfied the unavailability 

exception and was excused from exhausting administrative remedies. Id.

Similarly, here, Huskey asserts that he received the 2015 SOP, but not 

the 2016 online handbook. The 2015 SOP stated that the grievance 

“procedures will be posted in writing in areas readily accessible to all 

offenders,” so he had no reason to believe its exclusive list was incorrect, 

outdated, or that there were other applicable rules that could only be found 

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online. Moreover, Appellees do not dispute Huskey’s assertion that he did 

not have internet access and was thus not made aware of the revised 

handbook at the time that he filed his grievances. Instead, they contend that 

Huskey was “clearly provided a copy of Chapter 8 of the inmate handbook 

and was informed he could ask his case manager for a copy of the handbook.”

To support this assertion, they cite the MDOC’s April 2019 response to 

Huskey’s request for legal assistance from the Inmate Legal Assistance 

Program (“ILAP”). But because Huskey’s grievances were filed and rejected 

between September and October of 2016, the ILAP staff’s 2019 response 

does not demonstrate that Huskey knew of the 2016 online handbook at the 

time that he filed his grievances. 

Huskey has presented evidence that he, like Brantner, was given 

documents “that only partially explained prison processes.” Viewed in the 

light most favorable to Huskey, this evidence satisfies the unavailability 

exception under Ross because the “administrative scheme [was] so opaque 

that it bec[ame], practically speaking, incapable of use” by an “ordinary 

prisoner.” Ross, 578 U.S. at 644. Accordingly, we hold that Appellees are not 

entitled to summary judgment because there is a genuine dispute of material 

fact as to whether administrative remedies were made available to Huskey.

5

IV. Conclusion

The district court’s summary judgment is REVERSED and this case 

is REMANDED for further proceedings consistent with this opinion.

5 For purposes of completeness, we note that Huskey’s Notice of Appeal states 

that he is also appealing the denial of his Rule 59(e) motion. We need not address this issue, 

however, given our reversal of summary judgment. 

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