                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0114n.06
                               Filed: February 14, 2005

                                          No. 04-5220

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


MAGGIE RANCHER,                                   )
                                                  )
       Plaintiff-Appellant                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
FRANKLIN COUNTY, KY; FRANKLIN                     )    EASTERN DISTRICT OF KENTUCKY
COUNTY CORRECTIONAL COMPLEX;                      )
JAMES KEMPER, JR.; JAMES HEAPHY;                  )
SALLY MAXWELL; BILL READ; JOHN                    )
DOES, Individually and in their Official          )
Capacities.

       Defendants-Appellees




BEFORE:        MERRITT, MOORE and GILMAN, Circuit Judges


       MERRITT, Circuit Judge. In this case the plaintiff, Maggie Rancher, allegedly had a

broken arm when she was incarcerated in the local Franklin County, Kentucky jail in December

1999, and January and February 2000. She was then transferred to a state prison. She claims that

the defendants were deliberately indifferent to her serious medical needs during the period she was

incarcerated in the local jail. She allegedly made numerous requests for medical assistance but to

no avail. After screening her pro se § 1983 complaint, the District Court entered an Order on

January 3, 2001, as follows:
No. 04-5220
Rancher v. Franklin County, KY

        The instant plaintiff has alleged a serious and visible medical need and the defendant
        jailer’s deliberate indifference to it. Moreover, she suggests that it was policy to not
        provide medical care in the jail to those who will be going to a state institution.
        Therefore, both the jailer and the Franklin County Fiscal Court will be summoned
        to respond to the plaintiff’s allegations.

J.A. at 23.

        Three years later, on January 21, 2004, in response to defendants’ motions, the District Court

entered an opinion dismissing the plaintiff’s case on grounds that the prisoner failed to comply with

the exhaustion requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)1:

        Rancher did not attach any such documentation [i.e., “the decision containing the
        administrative disposition of the grievance to the complaint”] to her pro se form
        complaint or her amended complaint. Therefore, the court must determine whether
        Rancher has pled with specificity the full exhaustion of the administrative remedies
        available to her.

J.A. at 155.

        The Court then said that the ground for dismissal was the prisoner’s failure to allege or show

that she filed “a grievance form which would be reviewed by Bill Read [an employee of the jail].”

J.A. at 157. The Court stated that although the plaintiff had filed two or more medical request forms

and sent one or more letters to jail officials complaining of their failure to provide treatment for her,

“this was not the grievance procedure instated at the” jail. J.A. at 156. The Court overruled




        1
         Section 1997e(a) states:

        No action shall be brought with respect to prison conditions under section 1983 of
        this title, 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.

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No. 04-5220
Rancher v. Franklin County, KY

plaintiff’s request to amend her pleadings to set out in more detail her written and oral efforts to

obtain medical relief and the failure to receive any response.

       We believe that the District Court is in error in its holding that the plaintiff did not

sufficiently allege efforts to satisfy the grievance procedure at the jail, or make a showing that she

had satisfied such procedures. On page 2 of her pro se complaint plaintiff states, “I filed a grievance

with the Franklin County Jail . . . .The jailer told me I would receive medical care for my medical

problems. Did not receive . . . . Contacted the medical department at the prison facility and the legal

aid department.” J.A. at 15. In addition, at pages 139 and 140 of the Joint Appendix, the plaintiff

has submitted contemporaneous documents of other prisoners showing that the Franklin County Jail

did not have a formal or stated grievance procedure, but rather in cases in which the prisoner asked

for medical attention, the procedure was simply to submit a request for medical treatment, not a

grievance. In the case of Scott Walters, who submitted a grievance on July 28, 1998, because of the

failure to provide medical care, the answer provided by the jail was “this needs to be submitted on

a medical request, not a grievance.” J.A. at 139. And in the case of Kathy Walker, in response to

her grievance submitted on August 16, 2000, a jailor stated “this is not grievable. You will have to

submit a medical slip and be seen.” J.A. at 140. This evidence demonstrates the existence of a “flat

rule” against medical grievances and justifies excusing the exhaustion requirement. Wyatt v.

Leonard, 193 F.3d 876, 878 (6th Cir. 1999) (“. . . it makes sense to excuse exhaustion of the

prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases




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No. 04-5220
Rancher v. Franklin County, KY

. . .”). Regardless of the procedures that may have existed on paper, Rancher has presented

uncontradicted evidence that the rule as applied was to treat medical issues as “non-grievable.”2

       The District Court made its § 1997(e) ruling at the jail three years after the case was filed.

It should have taken into account the evidence developed that showed the lack of a grievance

procedure for the failure to provide medical assistance. The record demonstrates that the District

Court overlooked the fact that the jail stated that it did not have a formal grievance procedure for

requests for medical treatment and had made it clear in the past that the procedure at the jail was

only to request medical treatment. It is clear from the record that plaintiff made numerous requests

for medical treatment at the jail and received none. The Walters and Walker documents demonstrate

a flat rule at the jail against allowing grievances for medical issues. Rancher therefore had no

further procedures to exhaust or to allege.




       2
           In their Brief to the District Court in support of their motion to dismiss, the defendants
attempted to show the existence of grievance procedures at the jail by citing deposition testimony
by defendant James Kemper. But in chastising the plaintiff for citing to this very same deposition
on appeal, the defendants now admit that no evidence regarding any actual grievance procedures at
the jail, including Kemper’s deposition, was ever made a part of the district court record below. Def.
Br. at 11 n.2. Instead, the defendants now rely on Rancher’s statement in her original complaint that
“I filed a Grievance with the Franklin Co. Jail” as evidence that a grievance procedure existed and
that defendant was aware of it. Defendants have not presented any evidence that Rancher ever
completed an actual grievance form or any other document in the official chain of grievance
procedures. Rancher did file several medical request forms and wrote at least one letter to Deputy
Jailer, Bill Read. Given defendants’ failure to produce any formal grievance by Rancher, it is more
reasonable to assume that her statement, “I filed a grievance,” was a reference to her letter to Read
than to an official filing. This interpretation is also consistent with her assertion that she was never
aware of any available formal grievance procedures at the jail. Defendants have not cited to any
evidence in the record that demonstrates the existence of any grievance procedures at the Jail, much
less that Rancher actually submitted grievances pursuant to such procedures.


                                                  -4-
No. 04-5220
Rancher v. Franklin County, KY

       Accordingly, the judgment of the District Court dismissing the plaintiff’s case for failing to

show that she had exhausted administrative remedies available to her is reversed and the case is

remanded to the District Court for further proceedings.




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