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

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held that if you have been “reliably informed by an administrator that no remedies are available,” you are not required to pursue the process any further. 212 If you do not have such an assurance, and you want to bring suit, it may be advisable to appeal any decision all the way up, no matter what. If you have to explain why you are appealing in these circumstances, you could say something like “to exhaust my administrative remedies by calling this problem to the attention of high-level officials so they can take whatever action is necessary to make sure it never happens again.” 213 Exhaustion generally means using whatever formal complaint procedure is available (usually a grievance system or administrative appeal). “Proper exhaustion” is required—that is, you must follow the rules of the prison procedure. 214 If you do that, courts cannot require you to do more. 215 Letters and other informal means of complaint, such as cooperating in an internal affairs or inspector general investigation, generally will not suffice to exhaust 216 unless the prison rules identify them as an alternative means of complaint, 217 or unless there Thornton v. Snyder, 428 F.3d 690, 696–97 (7th Cir. 2005), cert. denied, 126 S. Ct. 2862, 165 L. Ed. 2d 896 (2006). 212. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005); Hendon v. Ramsey, No. 06CV1060 J (NLS), 2007 U.S. Dist. LEXIS 27658, at *9–15 (S.D. Cal. Apr. 12, 2007) (unpublished) (holding plaintiff did not need to name all defendants in complaint, nor did he have to name all the dates on which the harm occurred); Cahill v. Arpaio, No. CV 05-0741-PHX-MHM (JCG), 2006 U.S. Dist. LEXIS 80772, at *7–8 (D. Ariz. Nov. 2, 2006) (unpublished) (holding plaintiff reasonably relied on grievance hearing officer telling him that “(1) the matter was under investigation and he would not be notified of the results, (2) he could not appeal and would not be given a form, and (3) he should proceed to federal court,” notwithstanding that the preprinted decision form said it could be appealed); Candler v. Woodford, No. C 05-5453 MMC (PR), 2007 U.S. Dist. LEXIS 83988, at *26 (N.D. Cal. Nov. 1, 2007) (unpublished) (holding that failure to exhaust does not apply when plaintiff was told he could not appeal decision). Similarly, courts have held that if a prisoner’s grievance is rejected on the ground that the prisoner has already received the relief sought, he has exhausted. Elkins v. Schrubbe, No. 04-C-85, 2006 U.S. Dist. LEXIS 43157, at *154–55 (E.D. Wis. June 15, 2006) (unpublished) (holding prisoner had no remaining “available” remedy where grievances were rejected as moot because the issue had already been resolved in his favor in that he received the requested relief). 213. See Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (holding prisoner who obtained what he wanted informally was still required to exhaust because a grievance “still would have allowed prison officials to reconsider their policies and discipline any officer who had failed to follow existing policies”). 214. Woodford v. Ngo, 548 U.S. 81, 106, 126 S. Ct. 2378, 2394, 165 L. Ed. 2d 368, 387 (2006) (“[T]he Court conludes that the ‘PLRA exhaustion requirement requires proper exhaustion.’”) (Stevens, J., dissenting). 215. Jones v. Bock, 549 U.S. 199, 217–19, 127 S. Ct. 910, 922–23, 166 L. Ed. 2d 798, 815 (2007) (“Compliance with prison grievance procedures ... is all that is required by the PLRA to ‘properly exhaust.’”) 216. See Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (holding that talking with Sheriff’s Department investigators rather than filing a jail grievance did not satisfy the exhaustion requirement); Panaro v. City of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005) (holding that participation in an internal affairs investigation did not exhaust because it did not provide a remedy for the prisoner, even though the officer was disciplined); Yousef v. Reno, 254 F.3d 1214, 1221– 22 (10th Cir. 2001) (holding that a letter to the Attorney General was insufficient to exhaust as to actions that had been authorized by the Attorney General, despite the government’s lack of clarity as to what authority the administrative remedy procedure might have over the Attorney General’s decisions); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (telling the warden about the problem did not exhaust even though the warden said he would “take care” of it); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999) (prompting a use of force investigation did not substitute for filing a grievance); Scott v. Gardner. 287 F. Supp. 2d 477, 488 (S.D.N.Y. 2003) (letters of complaint are not part of the grievance process and do not exhaust). 217. In Pavey v. Conley, 170 F. App’x 4, 8, (7th Cir. 2006), the plaintiff alleged that prison staff had broken his arm and he couldn’t write, and the grievance rules said that prisoners who couldn’t
are “special circumstances” justifying your failure to exhaust properly. 218 In a few cases, courts have held that non-grievance complaints that were in fact reviewed at the highest levels of the agency satisfied the exhaustion requirement in the particular circumstances of those cases, 219 though it is not clear whether these cases are good law after the Woodford “proper exhaustion” holding. The Second Circuit has issued contradictory decisions concerning informal remedies. It first held a prisoner who resolved his complaint successfully through informal channels met the exhaustion requirement because the New York State grievance procedure states it is “intended to supplement, not replace, existing formal or informal channels of problem resolution.” 220 Under that ruling, using informal channels will not meet the exhaustion requirement unless your problem is actually resolved through them, 221 so you will need to file a formal grievance or appeal. In later decisions, however, the Second Circuit called the idea of informal exhaustion into question. It held a prisoner who got what he asked for in an informal process should have filed a formal grievance anyway because that process could write could be assisted by staff. The court held that any memorialization of his complaint by investigating prison staff might qualify as a grievance—and even if they did not write it down, he might have “reasonably believed that he had done all that was necessary to comply with” the policy. See also Carter v. Symmes, No. 06-10273-PBS, 2008 U.S. Dist. LEXIS 7680, at *8 (D. Mass. Feb. 4, 2008) (unpublished) (timely letter from counsel served to exhaust where grievance rules did not specify use of a form; letter considered as part of prisoners’ grievance raising other issues); Rand v. Simonds, 422 F. Supp. 2d 318, 326 (D.N.H. 2006) (holding that a policy stating prisoners have the “right and opportunity” to file grievances “did not fairly suggest that the grievance procedure was the only way, or even the correct way, for inmates to complain about their treatment”); Carter v. Klaus, No. 1:CV-05- 1995, 2006 U.S. Dist. LEXIS 93031, at *8 (M.D. Pa. Dec. 22, 2006) (unpublished) (noting that prison policy allowed physical abuse complaints to be pursued as grievances or as complaints to the Office of Professional Responsibility); Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 96–97 (D. Mass. 2005) (concluding that letters to officials are considered grievances under state law). 218. For information about what counts as a “special circumstance,” see Part E(5) of this Chapter, “What if You Make a Mistake Trying to Exhaust?” 219. See Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000) (holding that use of force allegation reportedly investigated and rejected by Secretary of Correction’s office needed no further exhaustion); Noguera v. Hasty, No. 99 Civ. 8786 (KMW) (AJP), 2001 U.S. Dist. LEXIS 2458, at *11–12 (S.D.N.Y. Mar. 12, 2001) (unpublished) (exhaustion requirement satisfied in unusual case where the prisoner’s informal complaint of rape resulted in an Internal Affairs investigation); Roland v. Murphy, 289 F. Supp. 2d 321, 324 (E.D.N.Y. 2003) (complaints to Sheriff’s Department Internal Affairs unit and District Attorney’s office gave “ample opportunity” to address complaint internally.) These cases are unusual and you should not bypass the grievance system and count on getting such a decision. But, if you are in the position where you must argue that another kind of complaint meets the exhaustion requirement, be sure to remind the court that the Supreme Court, in discussing Congress’ purpose in requiring exhaustion, said that “Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct. 983, 988, L. Ed. 2d. 12, 22 (2002). You can then argue that if prison officials actually reviewed your complaint, they had the opportunity to address the complaint internally, and the exhaustion requirement was therefore satisfied. The likelihood of success of this argument is not high. See, e.g., Macias v. Zenk, 495 F.3d 37, 43–44 (2d Cir. 2007) (holding “after Woodford, notice alone is insufficient”; the PLRA requires both “substantive exhaustion” (notice to officials) and “procedural exhaustion” (following the rules)). 220. Marvin v. Goord, 255 F.3d 40, 43 n.3 (2d Cir. 2001); see Gibson v. Brooks, 335 F. Supp. 2d 325, 328–29 (D. Conn. Sept. 16, 2004) (holding that a prisoner who said he complained informally about an assault he had warned prison staff about, and who had received an apology, had sufficiently alleged a favorable resolution). 221. See, e.g., Thomas v. Cassleberry, 315 F. Supp. 2d 301, 304 (W.D.N.Y. 2004) (holding a complaint to the Inspector General exhausts informally only if resolution is favorable); Rivera v. Goord, 253 F. Supp. 2d 735, 751 (S.D.N.Y. Mar. 28, 2003) (holding a prisoner who began an investigation of his claim, but did not show he got a favorable resolution informally or sought administrative review of an unfavorable decision, had not exhausted informally).
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 and 28: possible basis to say that you file
Page 29 and 30: equirement. 193 PLRA exhaustion, ho
Page 31: in doubt, try to appeal, even if of
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
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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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A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

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