Makell v. Sailor

When two prisoners began fighting in the doorway of his cell, Jermaine Makell got on his bed, put his back against the wall and his hands in the air, and told officers repeatedly that he wasn’t involved. Nonetheless, a correctional officer pepper sprayed him in the face and later bragged about it. When Mr. Makell sued to enforce his rights, the district court shut its doors because it believed that two legal obstacles denied him entry: (1) the Prison Litigation Reform Act’s (PLRA’s) exhaustion requirement; and (2) qualified immunity.

The PLRA imposes a number of obstacles to incarcerated people’s ability to sue to enforce their rights. One is the exhaustion requirement, which generally prohibits prisoners from suing in court without first undergoing the full administrative grievance process within the prison. Here, the district court dismissed Mr. Makell’s lawsuit because, at the time he first filed his initial complaint, he was a prisoner and he hadn’t exhausted the administrative process. But Mr. Makell filed an amended complaint after he was released from prison. Because amended complaints can cure all sorts of mistakes, the Third and Ninth circuits have held that a post-release amended complaint cures a lawsuit that was initially brought without complying with the PLRA’s exhaustion requirement. We’re urging the Second Circuit to join them in adopting this rule, which avoids placing yet another needless, technical barrier in the way of incarcerated people seeking to vindicate their rights.

The district court also dismissed Mr. Makell’s complaint because it believed qualified immunity protected the officer who pepper sprayed Mr. Makell in the face. Qualified immunity is a doctrine meant to shield law enforcement officials from unexpected liability for good-faith mistakes—where the wrongfulness of their conduct was not “clearly established” such that a reasonable official wouldn’t know not to behave in that way. But the law here was clearly established; any reasonable official would know it is unconstitutional to pepper spray a cooperative incarcerated person with his hands up and back against the wall. So we’re urging the Second Circuit to send the case back to the district court to give Mr. Makell a chance to vindicate his rights at trial.