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

More documents

Recommendations

Info

e permanently barred for that reason too. 186 So, it is very important to get exhaustion right the first time, since you may not get a second chance. If you do manage to exhaust after a dismissal, you may have to pay a new fee to re-file your case, though this is not certain. 187 In addition, you may be charged a “strike,” which may affect your ability to proceed in forma pauperis in the future. 188 (See Part C above for more information on the PLRA’s “three strikes” provision.) One federal circuit has held dismissal for failure to exhaust is with prejudice as to your ability to proceed in forma pauperis—that is, you will have to pay the filing fee up front if you exhaust and re-file your case. 189 This holding appears contrary to the Supreme Court’s recent opinion in Jones v. Bock, which stated courts cannot just make up rules under the PLRA contrary to usual federal litigation practice. 190 The exhaustion provision of the PLRA applies to any case brought by a “a prisoner confined in any jail, prison, or other correctional facility” about prison conditions under federal law. 191 A case is “brought by a prisoner” if the plaintiff is a prisoner at the time of filing; if not, the plaintiff need not have exhausted. 192 PLRA exhaustion does not apply to petitions for habeas corpus, though habeas has its own slightly different exhaustion 186. There may be “tolling” provisions of state law suspending the operation of the statute of limitations when you bring a suit, it is dismissed, and you have to re-file it. See Part E(6) of this Chapter for more information about tolling. 187. Courts have generally said that a new case must be filed after dismissal for non-exhaustion, rather than reopening the dismissed case. See Williams v. Ramirez, No. CIV S-06-1882 MCE DAD P, 2006 U.S. Dist. LEXIS 61617, at *3–4 (E.D. Cal. Aug. 28, 2006) (unpublished) (advising plaintiff that a new post-exhaustion complaint should not bear the docket number of the dismissed action; a new in forma pauperis application is required); Baggett v. Smith, No. 1:05-cv-804, 2006 U.S. Dist. LEXIS 44859, at *1 (W.D. Mich. June 29, 2006) (unpublished). Ordinarily this would require a new filing fee. However, the only federal circuit actually to focus on the filing fee question held that a plaintiff need not pay a new filing fee when re-filing a claim that was previously dismissed for non-exhaustion. Owens v. Keeling, 461 F.3d 763, 772–74 (6th Cir. 2006). The court explained that the filing fee is required of parties “instituting” a civil action, 28 U.S.C. § 1914(a), and that re-filing a now-exhausted claim is not “instituting” suit but merely following the court-prescribed procedure for curing the initial complaint’s deficiency. 188. For more information about this issue, see Part C(1) of this Chapter. As explained there, if your complaint is dismissed because non-exhaustion is apparent on the face of the complaint, the dismissal may be a strike. Otherwise, it should not be, but some courts have used other questionable justifications for charging prisoners a strike for exhaustion-related dismissals. 189. Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998). At least one district court has held that this disposition is appropriate only if the whole case is not exhausted. Cantoral v. Dretke, No. Civ.A. 6:05CV96, 2005 WL 2297222, at *4 (E.D. Tex. Sept. 19, 2005) (unpublished). 190. See Jones v. Bock, 549 U.S. 199, 212–14, 127 S. Ct. 910, 919–20 (2007). It is also contrary to the decision in Owens v. Keeling, which held that if you exhaust and re-file after a dismissal for nonexhaustion, you do not have to pay a new fee at all. Owens v. Keeling, 461 F.3d 763 (6th Cir. 2006). Courts in the Fifth Circuit seem not to have re-examined the Underwood holding in light of Jones. See Barnes v. Brownlow, No. 6:08cv194, 2008 WL 2704868, at *3 (E.D. Tex. July 7, 2008) (unpublished); McGrew v. Teer, No. 07-702-JVP DLD, 2008 WL 2277818, at *2 (M.D. La. June 3, 2008) (unpublished); Johns v. Edwards, No. 06-3767, 2007 WL 1958962, at *3 (E.D. La. June 28, 2007) (unpublished) (all following Underwood without question). 191. 42 U.S.C. § 1997e(a) (2006). For more discussion of when a person is a prisoner for PLRA purposes, see footnotes 47–58 and text accompanying them. 192 . Ahmed v. Dragovich, 297 F.3d 201, 210 n.10 (3d Cir. 2002) (citing cases); Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); see also Jasperson v. Fed. Bureau of Prisons, 460 F. Supp. 2d 76, 87 (D.D.C. 2006) (plaintiff who filed a challenge to restrictions on placement in halfway house before he surrendered to the Bureau of Prisons did not have to exhaust because he was not yet confined, even if he was legally in Bureau’s custody). The PLRA’s administrative exhaustion requirement, discussed in Part E of this Chapter, applies to “a prisoner confined in any jail, prison, or other correctional facility,” 42 U.S.C. § 1997e(a) (2006). The difference in phrasing does not seem to make any substantive difference.
equirement. 193 PLRA exhaustion, however, has been applied in Section 1983 actions filed in state court, including those later removed to federal court. 194 Most courts have held there is no emergency exception to the exhaustion requirement. 195 There are a few decisions that have allowed cases to go forward without exhaustion to avoid irreparable harm, 196 but they mostly do not provide much legal justification for disregarding the exhaustion requirement. The strongest basis for requesting court intervention without waiting for exhaustion is to appeal to a court’s traditional powers of discretion. 197 No one seems to have obtained relief on that basis yet (though one court threatened to grant it, and jail officials hastily addressed the problem), 198 but the argument may have been strengthened by the recent Supreme Court decision holding that courts should not deviate from the usual practices of litigation unless the PLRA explicitly says so. 199 Nevertheless, this argument is unlikely to succeed except in extreme cases. If you are arguing for relief “pending” exhaustion, you should have the grievance process under way when you do. For information about the New York State prison grievance system, see JLM Chapter 15, “Inmate Grievance Procedures.” 1. What Is Exhaustion? Exhaustion under the PLRA means “proper exhaustion,” which is “compliance with an agency’s deadlines and other critical procedural rules.” 200 Part C(5) of this Chapter discusses this point in detail. Exhaustion also means taking your complaint all the way to the top of the internal prison complaint process that applies to your problem, whatever that process may be (usually the grievance system). You must take every appeal available to you, 201 and finish 193 . United States v. McGriff, 468 F. Supp. 2d 445, 447 (E.D.N.Y. 2007) (noting habeas exhaustion requirement can be dispensed with on grounds of futility or prevention of irreparable harm, unlike the PLRA requirement). 194. See, e.g., Johnson v. State of La. ex rel. Dep’t of Public Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006) (“The PLRA's exhaustion requirement applies to all Section 1983 claims regardless of whether the inmate files his claim in state or federal court.”). 195. See, e.g., Williams v. CDCR, No. CIV S-06-1373 MCE EFB P, 2007 U.S. Dist. LEXIS 60701, at *15 (E.D. Cal. Aug. 17, 2007) (unpublished) (“The presence of exigent circumstances does not relieve a plaintiff from fulfilling this requirement.”), report and recommendation adopted, No. CIV S-06-1373 MCE EFB P, 2007 U.S. Dist. LEXIS 71338 (E.D. Cal. Sept. 26, 2007) (unpublished); Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314 (S.D. Cal. 2006) (holding “irrelevant” prisoner’s claim that the time constraints imposed on him by litigation did not allow for completion of grievance process concerning law library access). 196. See Evans v. Saar, 412 F. Supp. 2d 519, 527 (D. Md. 2006) (declining to dismiss for nonexhaustion, given “shortness of time,” where plaintiff challenged the protocol for his impending execution and the grievance process was not complete); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533– 34 (M.D. La. 2003) (holding that prisoner fighting transfer from community corrections to a prison need not exhaust where appeal would take months and prison officials wanted to transfer her despite any pending appeal). 197. Jackson v. District of Columbia, 254 F.3d 262, 267–68 (D.C. Cir. 2001). 198. Tvelia v. Dep’t of Corr., No. Civ. 03-537-M, 2004 WL 298100, at *2 (D.N.H. Feb. 13, 2004) (unpublished). Several courts have rejected the idea of granting relief pending exhaustion, but they did not seem to be aware of Jackson. See, e.g., Blain v. Bassett, No. 7:07-cv-00552, 2007 U.S. Dist. LEXIS 86167, at *6–7 (W.D. Va. Nov. 21, 2007) (refusing to direct delay of new prison rule pending plaintiff’s exhaustion and dismissing action; Jackson not cited). 199. Jones v. Bock, 549 U.S. 199, 212–14, 127 S. Ct. 910, 919–20, 166 L. Ed. 798, 810–11 (2007). The Court specifically referred to the usual practice under the Federal Rules of Civil Procedure. Injunctions, including preliminary injunctions, are addressed in Rule 65. 200. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2385–86, 165 L. Ed. 2d. 368, 378 (2006). 201. See Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (affirming dismissal for failing to appeal denial of grievance); Lopez v. Smiley,
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 and 26: One court has held that the PLRA pr
Page 27: possible basis to say that you file
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
Page 49 and 50: However, courts are unlikely to be
Page 51 and 52: exhaustion of remedies if a prisone
Page 53 and 54: If there is some reason outside you
Page 55 and 56: general. 314 One court has said tha
Page 57 and 58: he was denied access to an orthoped
Page 59 and 60: grievance deadline, explain that yo
Page 61 and 62: prisoners who didn’t fully comply
Page 63 and 64: Rather, he had tried hard and in mu
Page 65 and 66: uled against prisoners in situation
Page 67 and 68: internal grievance but not from app
Page 69 and 70: The most thoughtful discussion of t
Page 71 and 72: grievance exhausts if it is rejecte
Page 73 and 74: (6) What if the prisoner fails to c
Page 75 and 76: ut didn’t try to address this con
Page 77 and 78: failure to exhaust. 402 As noted in
Page 79 and 80:
directed that grievance officials c
Page 81 and 82:
practice to put it in the complaint
Page 83 and 84:
Until the issue of exhaustion is re
Page 85 and 86:
(2) That you were a prisoner and th
Page 87 and 88:
will be much stronger if you can sh
Page 89 and 90:
limitations during exhaustion of ad
Page 91 and 92:
One court has held that courts may
Page 93 and 94:
damages, or an injunction, for ment
Page 95 and 96:
Some courts have also held that com
Page 97 and 98:
That approach is consistent with to
Page 99 and 100:
this fact to the court’s attentio
Page 101 and 102:
A variety of injuries short of visi
Page 103 and 104:
denial of medical care; 539 and sti
Page 105 and 106:
statutory definition of bodily inju
Page 107 and 108:
H. Waiver of Reply The PLRA provide
Page 109 and 110:
If the court does hold a hearing by
Page 111 and 112:
equirement of specific court findin
Page 113:
a motion is made. The thirty days c
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?