A woman who was incarcerated in the Denver Women’s Correctional Facility cannot sue an employee who allegedly slammed her to the ground, the federal appeals court based in Colorado ruled last week, because she filed her grievances too promptly.

Under the Prison Litigation Reform Act, people who are incarcerated must “exhaust” their administrative remedies before bringing a civil rights lawsuit.

In Colorado’s Department of Corrections, which includes the facility where Victoria Dawn Wright was housed, detainees need to file a series of escalating grievances – known as step 1, step 2 and step 3.

Wright filed her step 1 grievance on Oct. 7, 2018, alleging Sgt. Robert J. Gess threw her on the concrete floor, resulting in injuries. Surveillance footage and photos included with Wright’s court filings appeared to corroborate her allegations, and showed a pool of blood on the floor.

Before receiving an official response, Wright filed a step 2 grievance on Oct. 17 and a step 3 grievance on Oct. 27. Subsequently, representing herself, she filed a federal lawsuit alleging excessive force.

In September 2021, U.S. Magistrate Judge Scott T. Varholak sided with Gess, based solely on Wright’s failure to properly go through the grievance process. Prison officials had 25 days from the time they received Wright’s step 1 grievance to respond to it. Wright, in turn, had five days from the response to file her step 2 grievance. A similar timeline existed for step 3.

Varholak acknowledged no one ever responded to any of Wright’s grievances.

Still, Wright had filed her step 2 and 3 grievances too early. To allow her lawsuit to proceed could result in prisoners potentially filing all three grievances at once, “thereby rendering the three-step process meaningless and denying the CDOC a fair opportunity to address the inmate’s complaint,” Varholak wrote.

Wright asked him to reconsider, alleging a prison staff member told her to use the “emergency grievance procedure” that had much shorter intervals. Varholak refused, noting Wright was making this claim for the first time.

Case: Wright v. Gess

Decided: July 14, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Veronica S. Rossman (author)

Scott M. Matheson Jr.

Robert E. Bacharach

Wright then appealed with the assistance of appointed attorneys, arguing the logic of the grievance timeline was faulty. Because her window to respond hinges upon when officials receive the grievance, it is impossible to know when to proceed to the next step if they never respond.

“CDOC’s inaction worked to its benefit in this case, specifically by making it impossible for Ms. Wright to know the precise dates on which she could file a Step 2 or Step 3 grievance because she didn’t have the CDOC’s date of receipt for any of her grievances,” her attorneys argued.

But a three-judge panel for the U.S. Court of Appeals for the 10th Circuit disputed that characterization of the process. Even if Wright had no idea when prison officials received her step 1 grievance, wrote Judge Veronica S. Rossman, the earliest she could have submitted a step 2 in the absence of any response was 25 days later.

“Yet, Ms. Wright proceeded to step two of the grievance process before the earliest possible date that CDOC’s step-one response could have been due. She also moved on to step three of the grievance process before the earliest possible deadline for CDOC’s step-one response,” Rossman wrote in a July 14 order. “Ms. Wright did not follow that procedure, so we cannot say she exhausted her administrative remedies.”

The nonprofit Prison Policy Initiative has advocated for repealing the Prison Litigation Reform Act, arguing the complicated requirements of the grievance process render many prisoner lawsuits “nonstarters.” Lawmakers of both parties originally supported the 1995 legislation to cut down on frivolous litigation, which then-Senate Majority Leader Bob Dole referred to as “fun-and-games.”

The case is Wright v. Gess.