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

have provided other relief, like changes in policy or discipline of staff. 222 So, if you solve your
problem informally but still want to bring suit about what happened, you should file a
grievance and pursue it all the way to the top. In this grievance, you could say, for example,
you want “prison officials to reconsider their policies and discipline any officer who had failed
to follow existing policies.” 223
The Second Circuit has held if a prisoner uses the wrong remedy through a reasonable
misunderstanding of the rules, the prisoner is justified in failing to exhaust correctly; if the
correct administrative remedy is still available, the prisoner must try to use it, but if it is no
longer available, the prisoner’s case may go forward without exhaustion. 224 A prisoner may
also be justified in failing to exhaust the correct procedures because of threats or
intimidation by prison staff. 225 These rules appear to still be good law after the Woodford
“proper exhaustion” ruling, since they address fact situations different than those before the
Supreme Court in Woodford. But the Second Circuit has not ruled on that question yet. 226
The exhaustion requirement refers only to administrative remedies; you do not have to
exhaust judicial remedies (i.e., go to state court) before you go to federal court. 227 That means
you do not have to appeal to the judiciary from administrative decisions in states that have
such procedures. 228 The administrative remedies Congress had in mind when it passed the
PLRA are internal prison grievance procedures. 229 A prisoner is not required to exhaust state
222. Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2005); see also Ruggiero v. County of Orange,
467 F.3d 170, 177 (2d Cir. 2006) (holding prisoner beaten in jail, who talked to Sheriff’s Department
investigators and then was transferred, did not exhaust). Ruggiero says that Marvin v. Goord “does not
imply that a prisoner has exhausted his administrative remedies every time he receives his desired
relief through informal channels.”
223. Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006).
224. Giano v. Goord, 380 F.3d 670, 678–80 (2d Cir. 2004) (holding that prisoner who used a
disciplinary appeal rather than a grievance for his issues did so reasonably); see also Hemphill v. New
York, 380 F.3d 680, 689–90 (2d Cir. 2004) (agreeing with Giano v. Goord, 380 F.3d 670 (2d Cir. 2004));
Warren v. Purcell, No. 03 Civ. 8736 (GEL), 2004 U.S. Dist. LEXIS 17792, at *20 (S.D.N.Y. Sept. 3,
2004) (unpublished) (holding that a “baffling” grievance response that left the prisoner with no clue
what to do next was a special circumstance justifying failure to exhaust).
225. Hemphill v. New York, 380 F.3d 680, 688, 690 (2d Cir. 2004) (noting that a prisoner afraid
to file an internal grievance but not to appeal “directly to individuals in positions of greater authority
within the prison system, or to external structures of authority such as state or federal courts” might
have been justified in failing to exhaust).
226. Other courts have endorsed the Hemphill holding after the decision in Woodford. See Kaba
v. Stepp, 458 F.3d 678, 684–85 (7th Cir. 2006) (adopting Hemphill analysis); Stanley v. Rich, No. CV
605-075, 2006 U.S. Dist. LEXIS 35916, at *5 (S.D. Ga. June 1, 2006) (unpublished) (stating “threats of
violent reprisal may, in some circumstances, render administrative remedies ‘unavailable’ or otherwise
justify an inmate’s failure to pursue them”).
227. By contrast, you must exhaust state judicial remedies before you can bring a case in federal
court challenging a decision affecting your release from incarceration, like a disciplinary proceeding at
which you lost good-time credits. See Edwards v. Balisok, 520 U.S. 641, 647–49, 117 S. Ct. 1584, 1588–
89, 137 L. Ed. 2d 906, 914–15 (1997) (holding that a state prisoner’s claim for damages for violation of
his due process rights cannot be recognized in federal court if a verdict in his favor would imply the
invalidity of his sentence, unless that sentence has already been invalidated). This rule has nothing to
do with the PLRA.
228. See Jenkins v. Morton, 148 F.3d 257, 259–60 (3d Cir. 1998) (finding prisoner not required to
exhaust his state judicial remedies prior to bringing an action covered by PLRA); Mullins v. Smith, 14
F. Supp. 2d 1009, 1012 (E.D. Mich. 1998) (court dismissed plaintiff’s claim as frivolous, but noted that
plaintiff had exhausted his administrative remedies). New York does not have that kind of judicial
review procedure. Instead, New York permits review of administrative decisions by Article 78
proceedings. For more information on Article 78 proceedings, see JLM Chapter 22.
229. See 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, therefore, is all that is required by the PLRA to
‘properly exhaust.’”) (emphasis added); Porter v. Nussle, 534 U.S. 516, 524–25, 122 S. Ct. 983, 988, 152