An Arapahoe County detainee tried to file a grievance, but a sheriff’s employee allegedly prevented him from doing so. Instead, he sued in federal court, where a panel of judges on Tuesday dismissed his case – for not filing a grievance first.

Tobi Kilman’s lawsuit against Sheriff Tyler S. Brown, which he initiated in June 2020, sought to force a reduction in density at the Arapahoe County Detention Facility amid the spread of COVID-19, alleging that overcrowding and lockdowns amounted to cruel and unusual punishment under the Eighth Amendment. But prior to filing the lawsuit, Kilman claimed that on two separate occasions, a prison official identified as “Deputy Calloway” prevented him from submitting a grievance, which is a necessary first step to a lawsuit.

A lower court judge dismissed Kilman’s claim because he had not followed proper procedures, and on Tuesday the federal appeals court based in Denver agreed.

“[I]t is entirely possible that Deputy Calloway did actually deter Kilman from filing some grievances on two specific dates,” acknowledged Judge Allison H. Eid, in the decision for a panel of the U.S. Court of Appeals for the 10th Circuit. “But we have no evidence before us that these actions made it such that Kilman was deterred from bringing his grievances.”

To Kilman, representing himself before the court, said his predicament was a Catch-22 that he summarized in his appeal to the 10th Circuit.

“Plaintiff was denied grievances, which forced him to sue over his claims, and his lawsuit was stricken because he did not file grievances,” he wrote.

Kilman described the detention facility as having computer kiosks for inmates to submit grievances. Allegedly, he tried to follow the process on May 27 and May 29, 2020, but Calloway prevented him both times, telling Kilman that his complaints were “not grievable.”

Kilman argued to the court that “it should not be up to a deputy to determine what is grievable. This defeats the purpose of having a grievance process. It renders said process moot, and effectively denies the inmate his First Amendment rights.”

He included the names of two other inmates who witnessed the refusals, and alleged they, too, were barred from filing grievances against Calloway about Kilman’s situation. Kilman also obtained signatures from 32 detainees in support of his broader claims about COVID-19 and the jail’s housing policies.

Brown, in his filing at federal district court, contested Kilman’s demands about pandemic protocols, but also pointed out Kilman had not followed administrative procedures by filing and appealing a grievance before suing.

This March, U.S. Magistrate Judge N. Reid Neureiter dismissed Kilman’s lawsuit, concurring with the sheriff and deeming it unlikely that Calloway’s alleged interference was enough to deter a reasonable inmate from finding another way to submit a complaint.

“Assuming that Mr. Kilman and other inmates were all thwarted by this one officer,” Neureiter wrote, “there is no evidence to show that other officials also refused to allow access to a kiosk for the purpose of filing a grievance or that attempts to file grievances with written forms were thwarted.”

Kilman told the 10th Circuit that inmates were entirely dependent on jail staff for the filing of grievances, and that Calloway was only the most “prolific denier of grievances” amid a broader pattern of obstruction.

“So the District Court has basically said with this ruling that jailors can indiscriminately deny inmates in their custody grievances because they have no right to file them; they cannot sue over this issue because it is not a right; and they cannot sue over any other issue they may have because they (the jailors) can always deny grievances,” he wrote. “This situation is obviously unjust.”

But the 10th Circuit agreed with the lower court’s reasoning, as well as the sheriff’s argument that two “isolated occasions” of a “single deputy” blocking Kilman did not amount to a denial of access.

Kilman had filed over 30 grievances at the jail, some of which occurred around the time Calloway allegedly blocked his complaints, Eid wrote for the appeals court. Therefore, despite the alleged actions of Calloway, the grievance process itself was seemingly available to Kilman, in the absence of evidence suggesting that sheriff’s employees were “unable or consistently unwilling to provide any relief.”

The case is Kilman v. Brown.