Thursday, October 3, 2019


Appellate Litigation Project Prevails in Third Circuit

Students in the Law School’s Appellate Litigation Project (ALP) earned a victory in August for a former prisoner seeking to press Eighth Amendment and First Amendment claims in court.

In a precedential decision issued on August 12, 2019, the U.S. Court of Appeals for the Third Circuit agreed with the ALP and held that “a prisoner exhausts his administrative remedies” — allowing him to pursue judicial action — “as soon as the prison fails to respond to a properly submitted grievance in a timely fashion.”

Paul Shifflett, the plaintiff, sued several doctors and his prison’s health administrator, alleging Eighth Amendment deliberate-indifference and First Amendment retaliation claims. Shifflett suffered a broken jaw after being attacked in prison, and he repeatedly sought medical care and pain relief for his injuries. Shifflett’s initial surgery was incorrectly performed, leading to complications; he was prescribed only Motrin for the resulting pain; and the prison failed to provide his medication as prescribed. After unsuccessfully filing grievances within the prison system, Shifflett filed suit in the Eastern District of Pennsylvania. The District Court dismissed Shifflett’s case, finding that he failed to exhaust his administrative remedies within the prison system before filing suit and that his claims lacked merit.

After Shifflett appealed, the Third Circuit appointed the Appellate Litigation Project to represent him. Clinic students Elise Wander ’19, Sebastian Brady ’19, and Alexis Zhang ’20 drafted briefs under the supervision of Visiting Clinical Lecturers Benjamin Daniels and Tadhg Dooley, members of Wiggin and Dana LLP’s Appellate Practice Group. The team argued that the exhaustion requirement did not apply, because the prison’s extended failure to respond to Shifflett’s grievances, despite the time limits prescribed by its own policies, rendered any administrative remedy functionally “unavailable.” On May 23, 2019, Wander argued the case before a Third Circuit panel composed of Judges Thomas L. Ambro, Joseph A. Greenaway, Jr., and Anthony J. Scirica.

The Court’s ruling was handed down in August and made final after an unsuccessful en banc petition in September. The decision created a bright-line rule that as soon as a prison violates its procedural rules, it renders administrative remedies unavailable, such that the prisoner has satisfied the exhaustion requirement under the Prison Litigation Reform Act. Applying that rule, the Third Circuit reinstated Shifflett’s Eighth Amendment claim; remanded the case to the District Court for further proceedings; and directed the District Court to appoint counsel for Shifflett.

“The Third Circuit’s ruling will help ensure that prisoners with potentially meritorious claims get their day in court. Otherwise, someone like Mr. Shifflett may be left in limbo — heard by neither the prison nor the civil justice system,” said Zhang, who has returned to the ALP as a 3L.

The decision in Shifflett v. Korszniak is the sixth consecutive victory for the clinic, which represents pro se appellants before the Second and Third Circuit Courts of Appeals. ALP students have previously secured victories for clients in a number of immigration, prisoners’ civil rights, and other section 1983 cases. The Clinic is awaiting decisions in two recently argued cases concerning immigration removal, and is embarking on two more prisoner appeals this academic year.