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

the process before you file suit. 202 Once the deadline for final decision of your last appeal has
passed, you can file suit. 203 (If a prisoner files suit after the time limit for decision has
passed, and then grievance authorities issue a late decision, the prisoner has exhausted. 204 )
It is not clear how long you have to wait if the system has no deadline for deciding your final
appeal. 205 A number of decisions have said that if you do not get a response to your initial
grievance, you have exhausted. 206 However, other courts have said that if the grievance
system allows you to treat a non-response as a denial and appeal it, you must do so. 207 When
No. 3:02CV1020 (RNC), 2003 U.S. Dist. LEXIS 16724, at *4 (D. Conn. Sept. 22, 2003) (unpublished)
(holding that a prisoner who appealed, but whose appeal was not received and was told it was too late
to file another, had exhausted).
202. Johnson v. Jones, 340 F.3d 624, 627–28 (8th Cir. 2003); Neal v. Goord, 267 F.3d 116, 122 (2d
Cir. 2001). Some courts have taken this idea to an extreme and have held that prisoners cannot add
additional claims by amending their complaints unless the new claims were exhausted before the
initial complaint was filed. See, e.g., Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (holding
that claims post-dating the original complaint and exhausted after its filing could not be added). Most
courts, however, have said that as long as the new issues were exhausted before you try to add them to
the case, you can amend to add them. See Cannon v. Washington, 418 F.3d 714, 719–20 (7th Cir. 2005)
(rejecting defendants’ argument that new claims could not be added by amendment even if they had
been exhausted); Barnes v. Briley, 420 F.3d 673, 677–78 (7th Cir. 2005). That view is consistent with
the Supreme Court’s recent holding that the PLRA does not require deviating from ordinary federal
procedural practice except insofar as it says so explicitly. Jones v. Bock, 549 U.S. 199, 210–12, 127 S.
Ct. 910, 918–19, 166 L. Ed. 2d. 798, 810–11 (2007). The free amendment of complaints is part of
ordinary federal procedural practice. See Fed. R. Civ. P. 15(a).
203. Whitington v. Ortiz, 472 F.3d 804, 807–08 (10th Cir. 2007); Powe v. Ennis, 177 F.3d 393,
393 (5th Cir. 1999) (per curiam) (“A prisoner’s administrative remedies are deemed exhausted when a
valid grievance has been filed and the state’s time for responding thereto has expired.”); Mattress v.
Taylor, 487 F. Supp. 2d 665, 670–62 (D.S.C. 2007) (holding plaintiff had exhausted where the deadline
for final decision was 180 days and plaintiff had waited 11 months to file).
204. See, e.g., Magee v. Chavez, No. 1:05-cv-01563-OWW-DLB PC, 2008 WL 2283133, at *3 (E.D.
Cal. May 30, 2008) (unpublished), report and recommendaton vacated on other grounds, 2008 WL
2858198 (E.D. Cal. July 24, 2008) (unpublished). But see Sergent v. Norris, 330 F.3d 1084, 1085–86 (8th
Cir. 2003) (affirming dismissal for non-exhaustion where time for response had passed before suit was
filed, but prisoner had not made that clear to the district court).
205. See McNeal v. Cook County Sheriff’s Dep’t, 282 F. Supp. 2d 865, 868 n.3 (N.D. Ill. 2003)
(holding 11 months is long enough to wait and citing cases holding that seven months is long enough
but one month is not). However, the Seventh Circuit said, in connection with a grievance system that
called for appeal decisions within 60 days “whenever possible,” that the remedy did not become
“unavailable” and allowed the prisoner to bring suit because it took six months to get a decision. “Even
six months is prompt compared with the time often required to exhaust appellate remedies from a
conviction.” Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004).
206. See, e.g., Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (holding prisoner who
received no decision had exhausted where the grievance policy did not say what to do absent a
decision); Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (holding that “administrative
remedies are exhausted when prison officials fail to timely respond to a properly filed grievance,”
though distinguishing a case where the prisoner could proceed without a decision); Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2003) (non-response made remedy unavailable).
207. See Turner v. Burnside, 541 F.3d 1077, 1083–84 (11th Cir. 2008) (where prisoner alleged
that the warden tore up his grievance, he would have been obliged to file an appeal from the lack of a
decision, except that the warden also threatened him); Cox v. Mayer, 332 F.3d 422, 425 n.2 (6th Cir.
2003); Clarke v. Thornton, 515 F. Supp. 2d 435, 438–41 (S.D.N.Y. 2007); Martinez v. Dr. Williams R.,
186 F. Supp 2d 353, 357 (S.D.N.Y. Jan. 25, 2002) (finding that prisoner who received no response after
filing a grievance should have appealed the grievance and thus did not exhaust his administrative
remedies); Smith v. Stubblefield, 30 F. Supp. 2d 1168, 1174 (E.D. Mo. 1998) (holding that a prisoner
must pursue all appeals available within the administrative remedies to fulfill the exhaustion
requirement). The New York State grievance rules provide that issues not decided within the
prescribed time limits can be appealed unless the prisoner has consented to an extension of time. State
of New York, Department of Correctional Services, Directive No. 4040 § V(G), Inmate Grievance