20-1318

Rucker v. Giffen

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2020

No. 20-1318

ANTHONY RUCKER,

Plaintiff-Appellant,

v.

ROBBIN GIFFEN, RONA SCOTT, ANDREA SMITH, NIKKI RUSH,

BURTON FLETCHER, KAREN HAMM, STEVEN HOLDEN,

MARQUERIETE WIRTH, AND JOSEPH KHOURI,

Defendants-Appellees.*

On Appeal from the United States District Court

for the Western District Of New York

SUBMITTED: MARCH 5, 2021

DECIDED: MAY 6, 2021

Before: LEVAL, CABRANES, and MENASHI, Circuit Judges.

Plaintiff-Appellant Anthony Rucker appeals, pro se, from the 

dismissal of his suit for failure to exhaust available administrative 

* The Clerk of Court is directed to amend the caption as set forth above.
2

remedies as required by the Prison Litigation Reform Act (“PLRA”), 

42 U.S.C. § 1997e. Rucker filed suit under 42 U.S.C. § 1983 alleging

that officials at the Monroe County Jail denied him adequate medical 

care and subjected him to cruel and unusual punishment during his 

pretrial confinement. Rucker alleges that he experienced severe 

medical distress but was denied medical treatment for days. He was 

ultimately admitted to the hospital, where he was found to be in a 

critical condition. He was placed in a coma and underwent serious 

surgeries. His hospitalization lasted over a month. Around a year 

after the incident, Rucker filed a grievance against the officials. The 

prison returned his grievance unprocessed and informed him that, in 

accordance with the Monroe County Jail’s grievance procedures, the 

prison would not entertain any grievance filed more than five days 

after the incident giving rise to the grievance. Rucker argues that the 

administrative procedures were unavailable to him because he was 

hospitalized and in critical medical condition for over a month and 

therefore could not have filed a grievance within that five-day 

timeframe. 

We agree. Administrative remedies are “unavailable” when 

(1) an inmate’s failure to file for the administrative remedy within the 

time allowed results from a medical condition, and (2) the 

administrative system does not accommodate the condition by 

allowing a reasonable opportunity to file for administrative relief.

Administrative remedies were unavailable to Rucker because he was 

hospitalized and in a critical medical condition during—and well 

past—the five-day timeframe to file a grievance according to the 

Monroe County Jail’s grievance procedures, and because the prison 

made clear that it would not process any grievance filed past that five-
3

day timeframe. We REVERSE the district court’s judgment and 

REMAND for further proceedings.

Anthony Rucker, pro se, Coxsackie, NY.

Paul A. Sanders, Barclay Damon LLP, for DefendantsAppellees, Rochester, NY.

MENASHI, Circuit Judge:

Plaintiff-Appellant Anthony Rucker alleges that during his 

pretrial detention at the Monroe County Jail in 2017 he experienced 

extreme medical distress, which was ignored and which led to his 

hospitalization for just over a month. In 2018, Rucker filed a grievance

according to the administrative procedures set forth in the Monroe 

County Jail’s Inmate Handbook. According to those procedures, 

inmate grievances must be filed within five days of the incident 

giving rise to the grievance. Rucker was informed by letter that his 

grievance would not be processed because the five-day time period 

to file his grievance had passed. 

Rucker then filed suit, pro se, against various medical 

professionals at the jail (“defendants-appellees”) and several jail 

deputies (“jail defendants”) under 42 U.S.C. § 1983. In his suit, Rucker

alleges that the defendants-appellees denied him adequate medical 

care and subjected him to cruel and unusual punishment during his 

pretrial confinement at the Monroe County Jail in violation of his 

constitutional rights. 
4

The district court (Geraci, J.) dismissed the action against the 

jail defendants with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 

1915A(b). The defendants-appellees then moved to dismiss the suit 

arguing, inter alia, that Rucker failed to exhaust available 

administrative remedies as required by the Prison Litigation Reform 

Act (“PLRA”), 42 U.S.C. § 1997e. The district court granted the 

defendants-appellees’ motion to dismiss on the ground that Rucker 

failed to exhaust available administrative remedies and did not reach 

the question of whether Rucker adequately stated a constitutional

claim. Rucker timely appealed the dismissal of his suit only against 

the defendants-appellees.

We disagree with the district court that Rucker failed to exhaust

available administrative remedies. Rucker could not file a grievance 

during the five-day grievance-filing period because he was in a 

critical medical condition for which he was hospitalized, and the jail 

refused to process any grievance filed after that five-day timeframe

without accommodating his medical condition. Under these 

circumstances, administrative remedies were unavailable to Rucker. 

We hold that administrative remedies are “unavailable” when 

(1) an inmate’s failure to file for the administrative remedy within the 

time allowed results from a medical condition, and (2) the 

administrative system does not accommodate the condition by 

allowing a reasonable opportunity to file for administrative relief.

Accordingly, we REVERSE the judgment of the district court and 

REMAND for further proceedings.
5

BACKGROUND

In reviewing the district court’s grant of the motion to dismiss, 

we accept the factual allegations in the amended complaint as true. 

Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).

According to the amended complaint, on June 10 or June 14, 

2017, Rucker began to experience extreme stomach pain, dizziness, 

nausea, shortness of breath, dehydration, and weakness, and he asked 

to be taken to the hospital. He reported his symptoms to a jail deputy

on June 10 or June 14, but he was told to “wait for the nurse at the 

morning med pass.” Am. Compl. at 8, Rucker v. Fletcher, No. 18-CV6575, 2020 WL 1703240 (W.D.N.Y. Apr. 8, 2020), ECF No. 13

[hereinafter Am. Compl.] (capitalization omitted). When he notified

the morning med pass nurse of his medical distress and asked to see 

a doctor, she denied his request and gave him an asthma pump. 

Rucker complained again to the deputy and the nurses in the 

afternoon and evening but was repeatedly denied access to a doctor. 

Despite his extreme medical distress, Rucker was denied 

medical treatment for days. On June 21, 2017, Rucker was finally seen 

by defendant-appellee Dr. Burton Fletcher. Rucker explained his 

symptoms to Dr. Fletcher and said he felt like he was dying. Dr. 

Fletcher gave him asthma treatment and put him in a medical 

observation cell. When Rucker woke up the next day, he was lying on 

the floor and was in so much pain that he could not move. Dr. Fletcher 

observed that Rucker was pale from dehydration but still did not 

permit Rucker to go to the hospital. Rucker threw up and “used the 

bathroom on him self [sic]” for three days; he begged nurses, doctors, 

and deputies to take him to the hospital. Am. Compl. at 10.
6

Rucker was finally taken to a hospital on June 23, 2017, by 

which time he was passing in and out of consciousness. He was 

admitted to the hospital for diabetic ketoacidosis. At the hospital, 

medical professionals also determined that he had “peritonitis, portal 

venous gas, and p[n]eumobilia” requiring an “exploratory 

laparotomy and small bowel[] resection.” Am. Compl. at 11. The 

doctors told his family he had only a 10 percent chance of survival 

with or without surgery.

On June 25, 2017, Rucker underwent surgery to have 200 

centimeters of his intestine removed, resulting in “short gut 

syndrome.” Am. Compl. at 11. His pancreas became infected and was 

removed. He was placed in a coma for the surgeries, and afterward 

he was transferred to an intensive care unit for further management.

Rucker was also diagnosed with diabetes and alleges that he now 

takes more than 15 pills per day. Rucker was ultimately in the hospital 

for a month and two days. Since this medical incident, he has had 

embarrassing digestive issues requiring him to use the bathroom 

many times each day, and he feels “down and depressed all the time”

as he struggles to cope with “the new way that [he has] to live.” Am. 

Compl. at 35.

On July 23, 2018, Rucker filed a grievance describing the June 

2017 events. As relevant here, Rucker alleges—in a sworn statement 

accompanying his grievance—that due to the severity of his medical 

condition at the time, he “did not have time to write about [the June 

2017 events] at all” but he “did tell every nurse and deputy working 

during the time[,] every day,” and any grievance he could have filed 

“would have been [too] late because [he] was in the hospital for a 

month and two days.” Am. Compl. Ex. 1 at 7, Rucker, 2020 WL 

1703240, ECF No. 1-1 [hereinafter Am. Compl. Ex. 1]. The prison
7

responded by letter informing Rucker that the prison would not 

process his grievance because “[a]n inmate must file a grievance 

within five days of the date of the act or occurrence giving rise to the 

grievance” and Rucker’s “complaint was not within the 5 day 

timeframe.” Am. Compl. Ex. 1 at 14.

On August 8, 2018, Rucker filed suit against various medical 

professionals and jail deputies at the Monroe County Jail under 42 

U.S.C. § 1983 alleging that they denied Rucker medical care and 

subjected him to cruel and unusual punishment while he was in 

pretrial detention. In a June 2019 screening order, pursuant to 28 

U.S.C. §§ 1915(e)(2) and 1915A(b), the district court dismissed the 

action against the jail defendants with prejudice because there was no 

basis to conclude that the jail defendants should have challenged the 

nurses’ or Dr. Fletcher’s medical decisions. [The district court further

noted, but did not decide, that Rucker may not have exhausted 

available administrative remedies. Rucker filed his operative 

amended complaint on February 6, 2019.

On November 26, 2019, the defendants-appellees moved to 

dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim, and for failure to exhaust available 

administrative remedies as required by the PLRA. Rucker opposed 

the motion arguing, inter alia, that administrative remedies were not 

available to him due to his medical condition and hospitalization 

during the grievance filing period.1

1 Rucker also argued that grievance procedures were unavailable to him 

because he allegedly did not receive a copy of the Monroe County Jail’s

Inmate Handbook, which explains the administrative procedure for filing 
8

On April 8, 2020, the district court granted the defendantsappellees’ motion to dismiss. The district court reasoned that there is 

no “special circumstances” exception to the PLRA’s exhaustion 

requirement and Rucker’s allegations did not suggest that the 

grievance procedures were not available to him under any of the three 

categories of unavailability identified by the Supreme Court in Ross v. 

Blake, 136 S. Ct. 1850, 1859-60 (2016). The district court therefore 

concluded that Rucker’s critical medical condition and subsequent 

hospitalization did not excuse his failure to file a grievance within five

days of the incident giving rise to his grievance. 

Rucker timely appealed.2

DISCUSSION

I

We review the grant of a motion to dismiss for failure to 

exhaust administrative remedies de novo while accepting the factual 

allegations as true. Williams, 829 F.3d at 121-22. Because Rucker 

brought his claim and this appeal pro se, we review the appeal with 

“special solicitude,” interpreting the complaint to raise the “strongest 

claims that it suggests.” Id. at 122. 

According to the PLRA, “[n]o action shall be brought with 

respect to prison conditions under [42 U.S.C. § 1983] ... by a prisoner 

a grievance, and therefore did not know that he had to file a grievance. The 

district court dismissed this argument, concluding that the grievance 

procedures were available to Rucker from the face of the complaint because 

Rucker ultimately filed a grievance. 

2 On appeal, Rucker does not challenge the district court’s dismissal of his 

claim against the jail defendants.
9

confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.” Id. (quoting

42 U.S.C. § 1997e(a)). Exhaustion must be in “compliance with an 

agency’s deadlines and other critical procedural rules.” Woodford v. 

Ngo, 548 U.S. 81, 90 (2006); see also Macias v. Zenk, 495 F.3d 37, 44 (2d 

Cir. 2007) (“Alerting the prison officials as to the nature of the wrong 

for which redress is sought does not constitute ‘proper exhaustion’

under Woodford.”) (internal quotation marks, alterations, and citation 

omitted). However, a prisoner need not specifically plead or 

demonstrate exhaustion in the complaint because “failure to exhaust 

administrative remedies is an affirmative defense under the PLRA, 

not a pleading requirement.” Williams, 829 F.3d at 122 (citing Jones v. 

Bock, 549 U.S. 199, 216 (2007)).

In Ross, the Supreme Court explained that aside from the 

“significant qualifier” that “the remedies must indeed be ‘available’

to the prisoner,” the text of the PLRA “suggests no limits on an 

inmate’s obligation to exhaust—irrespective of any ‘special 

circumstances.’” 136 S. Ct. at 1856. Therefore, the Court concluded 

that prisoners are exempt from the exhaustion requirement only 

when the grievance procedures are not “capable of use to obtain some 

relief for the action complained of” such that the administrative 

remedies are “unavailable.” Id. at 1858-59 (internal quotation marks 

omitted).

As relevant to the case before it, the Court identified “three 

kinds of circumstances in which an administrative remedy, although 

officially on the books, is not capable of use to obtain relief.” Id. at 

1859. Those circumstances are when: (1) the grievance process 

“operates as a simple dead end—with officers unable or consistently 

unwilling to provide any relief to aggrieved inmates”; (2) the process 
10

is “so opaque that it becomes, practically speaking, incapable of use”; 

or (3) “prison administrators thwart inmates from taking advantage 

of a grievance process through machination, misrepresentation, or 

intimidation.” Id. at 1859-60.

After Ross, we concluded that the New York State Department 

of Corrections and Community Supervision regulations, which 

established grievance procedures, fell into one of the three categories 

of unavailability identified in Ross. Williams, 829 F.3d at 119. We held 

that although the grievance procedures were “technically available”

to the plaintiff, the procedures were “so opaque and confusing” as 

effectively to be unavailable. Id. at 126. We noted that “the three 

circumstances discussed in Ross do not appear to be exhaustive”

because the Supreme Court focused its analysis on circumstances 

“relevant” to the facts before it. Id. at 123 n.2 (citing Ross, 136 S. Ct. at 

1859). However, we declined to identify other circumstances that

might render a technically available administrative remedy

effectively unavailable. Id.

II

In this appeal, Rucker primarily argues that his medical 

condition prevented him from filing a grievance within five days of

the incident giving rise to his grievance. Because Rucker’s severe 

medical condition precluded timely filing of his grievance and the 

prison unequivocally stated that it would not process Rucker’s 

grievance because it was filed after the grievance filing period had 

closed, the grievance procedures, “although officially on the books, 

[were] not capable of use to obtain relief.” Ross, 136 S. Ct. at 1859.

Therefore, we conclude that the grievance procedures were 

unavailable to Rucker.
11

Before Ross was decided, the Fifth Circuit held that

administrative remedies are unavailable when “(1) an inmate’s 

untimely filing of a grievance is because of a physical injury and 

(2) the grievance system rejects the inmate’s subsequent attempt to 

exhaust his remedies based on the untimely filing of the grievance.”

Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003), overruled on other 

grounds by Jones v. Bock, 549 U.S. 199 (2007). In Days, the plaintiff fell 

and sustained multiple fractures to his hand. Id. at 864. He argued that 

administrative remedies were unavailable to him because he had 

broken his writing hand and could submit a grievance only when his 

hand had healed, which was after the grievance filing period had 

closed. Id. at 865. The prison would not process his grievance because 

it was deemed untimely. Id. As in Ross, the court in Days focused on 

the PLRA’s qualifier that “the remedies must indeed be ‘available’ to 

the prisoner,” Ross, 136 S. Ct. at 1856, and concluded that “because of 

[the plaintiff’s] injury, exhaustion of his administrative remedies by 

timely filing a grievance was personally unobtainable,” Days, 322 F.3d 

at 867. District courts have continued to recognize the Days rule after 

Ross.3

We agree with the Fifth Circuit that a prisoner who is injured 

or undergoing significant medical treatment faces a substantial 

obstacle to making use of administrative remedies, and if the prison 

3 See, e.g., Hulsey v. Jones, No. 6:19-CV-108, 2020 WL 8832501, at *5-6 (E.D. 

Tex. July 13, 2020), report and recommendation adopted, No. 6:19-CV-108, 2021 

WL 363589 (E.D. Tex. Feb. 3, 2021); Glenn v. Mataloni, No. 1:20-CV-69, 2020 

WL 7027597, at *20 (M.D. Pa. Nov. 30, 2020); Skinner v. Haley, No. 315-CV340, 2019 WL 5582233, at *5-6 (D. Nev. Sept. 26, 2019), report and

recommendation adopted sub nom. Skinner v. Pfister, No. 315-CV-340, 2019 WL 

5576943 (D. Nev. Oct. 29, 2019).
12

will not accommodate such injury or medical treatment but will treat 

the grievance as untimely, administrative remedies become 

effectively unavailable. In this case, Rucker faced a substantial 

obstacle to filing a grievance during the five-day grievance filing 

period. Because of the defendants-appellees’ alleged failure to 

provide necessary medical care, Rucker experienced extreme medical 

distress for days, was admitted to the hospital for over a month 

during which he was put in a coma and underwent surgeries that 

nearly caused his death. Rucker’s medical condition and his extended 

hospitalization outside of the prison presented such obstacles to filing

a grievance that the grievance procedures were “incapable of use”

during this period. Ross, 136 S. Ct. at 1854. Rucker is therefore not 

barred from filing this action because he failed to file his grievance 

while hospitalized.

It is true that Rucker did not file a grievance until almost a year 

after his hospitalization, but that does not make a difference in this 

case. The letter from the prison to Rucker was clear—any failure to 

file a grievance within five days of the alleged incident giving rise to 

the grievance would render it untimely. The prison accordingly

refused to process Rucker’s grievance because it was “not within the 

5 day timeframe.” Am. Compl. Ex. 1 at 14. The grievance procedures 

in place at the prison would not have considered Rucker’s grievance 

to be timely—and would not have entertained his complaints—even 

if the grievance had been filed more promptly following Rucker’s 
13

return from the hospital.4 Under these circumstances, the grievance 

procedures were unavailable to him.

We therefore hold that administrative remedies are 

“unavailable” when (1) an inmate’s failure to file for the 

administrative remedy within the time allowed results from a 

medical condition, and (2) the administrative system does not 

accommodate the condition by allowing a reasonable opportunity to 

file for administrative relief. Because Rucker’s medical condition and 

hospitalization imposed a substantial obstacle to filing a grievance 

and because the prison notified him that his failure to file within the 

five-day timeframe rendered his grievance untimely, we conclude 

that Rucker did not have available administrative remedies to 

exhaust.5

* * *

For these reasons, we REVERSE the district court’s judgment 

and REMAND for the district court to consider Rucker’s claim on the 

merits.

4 The defendants-appellees do not argue that Rucker should have filed a 

grievance during a shorter time period following his return from the 

hospital and do not argue that Rucker’s grievance would have been 

processed if he had.

5 Because we hold that administrative remedies were unavailable to 

Rucker because of his medical condition, we do not address his alternative 

argument that he did not know he had to file a grievance within five days 

after the incident because he did not receive the Inmate Handbook.