A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

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E. Exhaustion of Administrative Remedies The PLRA exhaustion requirement says: No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] ... 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. 178 More prisoners lose their cases because of failure to exhaust administrative remedies— that is, failure to pursue all available administrative remedies to the end—than from any other part of the PLRA. Here is the bottom line: if something happens to you that you may want to bring suit about, (1) Find out what remedies are available right away, because time deadlines are often very short. If you wait until you have firmly decided whether to sue, it may be too late to exhaust. (2) Always use the prison grievance system or any other available remedy, such as a disciplinary appeal. (3) If you think there is a reason why you should not have to exhaust your administrative remedies, forget it. Exhaust anyway. (4) Take all the available appeals, even if you get what you think is a good decision at an earlier point. (5) If you do not get an answer to a grievance, try to appeal anyway. Many grievance systems say that if a certain amount of time passes and there’s no decision, you can treat the non-response as a denial of the grievance, and appeal. (6) If you’re not sure which remedy to use, try all available remedies. (7) If prison employees tell you an issue is not grievable but you think it is, request that they process your grievance anyway so you will have a record of it. (And, if there is a way to appeal or grieve a decision that something is not grievable, do it!) (8) If prison employees tell you something will be taken care of and you do not need to file a grievance, exhaust anyway if you think there is any chance you may wish to file suit. (9) Follow the rules of the grievance system or other remedy as best you can. (10) If the people running the grievance system or in charge of the remedy tell you that you filed your grievance incorrectly and you need to do something differently to fix it, follow the instructions and make a record of what you were told. (11) If you make a mistake, like missing a time deadline, do not give up. File the grievance anyway, explain the reasons, and ask that your grievance be considered despite your mistake, and appeal as far as you can if you lose. Always remember that once you file suit, prison officials and their lawyers will use anything they can find to get your case thrown out of court, and they will look for any 175. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (“The complained of procedure did not deny Plaintiff due process.”); Curley v. Perry, 246 F.3d 1278, 1283–84 (10th Cir. 2001) (finding no due process violation). 176. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (“[S]ection 1915(e)(2)(B)(ii) is rationally related to the government's legitimate interests in deterring meritless claims and conserving judicial resources and, therefore, does not violate the Equal Protection Clause.”); Curley v. Perry, 246 F.3d 1278, 1285 (10th Cir. 2001), (addressing 28 U.S.C. § 1915(e)(ii)(B)(ii) and finding no equal protection violation, but not addressing 18 U.S.C. § 1915A); Christiansen v. Clarke, 147 F.3d 655, 657–58 (8th Cir. 1998) (finding statute survives equal protection challenge); Hanley v. Stewart, 21 F. Supp. 2d 1088, 1093 (D. Ariz. 1998) (same). 177 . Martin v. Scott, 156 F.3d 578, 580 n.2 (5th Cir. 1998) (finding provision does not unconstitutionally restrict access to federal courts). 178. 42 U.S.C. § 1997e(a) (2006).
possible basis to say that you filed incorrectly and should not be allowed to sue. You want to show the court that you did everything you could to comply with the exhaustion requirement, which requires following the prison’s rules for grievances and other complaints or appeals. The PLRA makes exhaustion of the grievance system mandatory. 179 That is true even if you are suing for damages and the grievance system does not provide damages. 180 If you do not exhaust your administrative remedies, your case will be dismissed rather than stayed (held pending exhaustion), 181 although a recent Supreme Court decision supports an argument that that rule is not necessarily valid in every case. 182 You must exhaust before you file suit, not afterward, or your case will be dismissed. 183 Dismissal for non-exhaustion is supposed to be “without prejudice,” 184 meaning in theory that you can come back to court after you pursue your grievance. In reality, your grievance will almost certainly be late by that time, 185 and it will be up to prison officials to decide whether to allow you to pursue a late grievance. See Part E(6) of this Chapter for more information about time limits. If the statute of limitations (time limit) has run on your claim when it is dismissed, your case may 179. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12, 21 (2002) (requiring exhaustion). Though mandatory, exhaustion is not jurisdictional. Woodford v. Ngo, 548 U.S. 81, 101, 126 S. Ct. 2378, 2392, 165 L. Ed. 2d 368, 385 (2006). That means if you didn’t exhaust and you think you have a good enough reason, the court at least has the power to consider your argument— though such arguments rarely succeed, as discussed throughout this Chapter. 180. Booth v. Churner, 532 U.S. 731, 738, 121 S. Ct. 1819, 1824, 149 L .Ed. 2d 958, 965 (2001). 181. Neal v. Goord, 267 F.3d 116, 121–23 (2d Cir. 2001); Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534–35 (7th Cir. 1999). A few decisions have granted stays pending exhaustion under unusual circumstances. See Kennedy v. Mendez, No. 3:CV-03-1366, 2004 U.S. Dist. LEXIS 20170, at *1 (M.D. Pa. Oct. 7, 2004) (unpublished) (stating a stay was appropriate because exhaustion was raised when the litigation was at an advanced state); Campbell v. Chaves, 402 F. Supp. 2d 1101, 1108–09 (D. Ariz. 2005) (staying litigation and directing the prison system to consider a grievance where the prisoner had filed a tort claim rather than a grievance at staff direction, the tort claim had been rejected for jurisdictional reasons, and meanwhile the grievance system rules had been changed so the matter would have been grievable). 182. In Jones v. Bock, 549 U.S. 199, 212–17, 127 S. Ct. 910, 919–22, 166 L. Ed. 2d 798, 810–34 (2007), the Supreme Court held that the PLRA did not overturn usual litigation practices except to the extent it did so explicitly. The discretion to grant a stay is part of usual litigation practice. Congress did not say anything in the PLRA about stays pending exhaustion—it just removed the prior provision requiring a stay when a court thought exhaustion should be required—so it can be argued that courts retain their discretion in this regard. See Cruz v. Jordan, 80 F. Supp. 2d 109, 124 (S.D.N.Y. 1999) (“There is simply no evidence that Congress intended by Section 1997e(a) to remove every aspect of the district court's traditional equity jurisdiction.”). Even if a court was persuaded by this argument, we would expect it would only grant a stay if the prisoner had a pretty good reason for not having exhausted before filing, as in the cases in the previous footnote. 183. Neal v. Goord, 267 F.3d 116, 121–23 (2d Cir. 2001); Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534–35 (7th Cir. 1999); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). But see Curry v. Scott, 249 F.3d 493, 502 (6th Cir. 2001) (stating that pre-filing exhaustion is “the preferred practice,” but allowing exhaustion prior to filing an amended complaint in a case filed shortly after the PLRA’s enactment that involved some pre-PLRA conduct). 184. Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998). Some courts have held dismissal may be with prejudice if you clearly cannot at that point exhaust and then re-file. See, e.g., Berry v. Kerik, 366 F.3d 85, 87–88 (2d Cir. 2004). One federal appeals court has held all dismissals for non-exhaustion should be without prejudice, since, among other things, states may allow litigants to cure failure to exhaust, or plaintiffs may be able to proceed without exhaustion in state court, and defenses to a new suit should be addressed in that suit. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004). 185. Regan v. Frank, No. 06-00066 JMS-LEK, 2007 U.S. Dist. LEXIS 1747, at *8–12 (D. Haw. Jan. 9, 2007) (unpublished).
Page 1 and 2: A Jailhouse Lawyer’s Manual Chapt
Page 3 and 4: CHAPTER 14 The Prison Litigation Re
Page 5 and 6: Prisoners who are granted IFP statu
Page 7 and 8: postage. 28 The twenty percent mont
Page 9 and 10: In upholding the statute, courts ha
Page 11 and 12: civilly committed in connection wit
Page 13 and 14: apply retroactively to prohibit or
Page 15 and 16: government lawyers often improperly
Page 17 and 18: determined whether the prisoner is
Page 19 and 20: arred by the three strikes provisio
Page 21 and 22: serious allegations are disputed, t
Page 23 and 24: So far, the federal courts have uph
Page 25: One court has held that the PLRA pr
Page 29 and 30: equirement. 193 PLRA exhaustion, ho
Page 31 and 32: in doubt, try to appeal, even if of
Page 33 and 34: are “special circumstances” jus
Page 35 and 36: or federal tort claim procedures, u
Page 37 and 38: eached differing decisions on matte
Page 39 and 40: (2) complaints pertaining to an all
Page 41 and 42: arise in connection with issues tha
Page 43 and 44: Courts have made a number of decisi
Page 45 and 46: after transfer. 275 Also, if a pris
Page 47 and 48: grievance appeal may make the appea
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Page 55 and 56: general. 314 One court has said tha
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failure to exhaust. 402 As noted in
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directed that grievance officials c
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practice to put it in the complaint
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Until the issue of exhaustion is re
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(2) That you were a prisoner and th
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will be much stronger if you can sh
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limitations during exhaustion of ad
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One court has held that courts may
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damages, or an injunction, for ment
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Some courts have also held that com
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That approach is consistent with to
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this fact to the court’s attentio
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A variety of injuries short of visi
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denial of medical care; 539 and sti
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statutory definition of bodily inju
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H. Waiver of Reply The PLRA provide
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If the court does hold a hearing by
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equirement of specific court findin
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a motion is made. The thirty days c
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