A man incarcerated at the El Paso County jail was barred from suing over the facility’s allegedly lax COVID-19 protocols because he failed to specifically follow the procedure for reporting a problem, the federal appeals court based in Denver ruled on Tuesday.

Under the federal Prison Litigation Reform Act, people who are incarcerated must “exhaust” their administrative remedies before bringing a civil rights lawsuit. In the El Paso County jail, that meant raising a problem through “informal channels” by speaking to staff, then filing a grievance and appealing any action taken.

Heshimo Yaphet Carr filed a grievance in November 2020, which he labeled an emergency, claiming the jail was “failing to protect” him from COVID-19 and asking the facility to follow public health recommendations in place at the time to curb the spread of the novel coronavirus. 

During the pandemic, the jail became a severe source of COVID-19 outbreaks, to the point where the ACLU of Colorado filed a class action lawsuit to force changes in public health protocols. Last month, the county approved a $3 million settlement over the COVID-19-related death of a detainee.

Carr, who alleged that jail personnel intentionally put him in a cell with a COVID-19-positive inmate, filed a second grievance just over 48 hours after the first, reiterating that he wanted the jail to protect him from COVID-19.

Days later, jail employee Nicole Frahm responded that Carr’s grievance was “very general and does not identify an emergency situation.” She then closed his report.

Case: Carr v. El Paso County Jail

Decided: September 5, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Scott M. Matheson Jr. (author)

Mary Beck Briscoe

Allison H. Eid

Background: El Paso County jail fighting new COVID-19 cases as staff face challenges with mitigation

Carr, representing himself, then filed a federal lawsuit. In March 2023, U.S. District Court Senior Judge R. Brooke Jackson dismissed his claims because Carr failed to follow the jail’s protocols for reporting a problem, as the Prison Litigation Reform Act requires.

Jackson found the procedures were vague in places, but Carr’s grievance “lacks the sort of specificity as to date, time, and nexus to Mr. Carr’s personal ‘health and welfare’ that the jail’s procedures contemplate,” he wrote.

Carr appealed to the U.S. Court of Appeals for the 10th Circuit, arguing the jail was required to read and respond to “emergency grievances” like his within 48 hours, but it did not. Therefore, the jail effectively ignored his grievance and he was entitled to file suit.

The El Paso County Attorney’s Office responded that staff members, not detainees, determine whether something is an “emergency.” It accused Carr of “lying in wait” to sue after 48 hours had elapsed, instead of following the proper steps.

In a Sept. 5 order, a three-judge panel for the 10th Circuit agreed with the county.

“The jail thus needed only to respond to Mr. Carr’s grievances within 10 business days. It did,” wrote Judge Scott M. Matheson Jr.

As a result, Carr was barred from challenging the jail’s alleged indifference to his health.

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.”

Last year, two law professors proposed that prison facilities, states or Congress enact changes to the grievance requirement to better accommodate emergency requests about public health threats.

“The current Congress probably lacks the necessary appetite for such reform, but perhaps a future Congress could implement this legislative solution,” they wrote.

The case is Carr v. El Paso County Jail et al.