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

The “available” remedy you must exhaust will usually be the prison grievance
procedure. 248 But, if an issue is not “grievable” under grievance rules, you should not be
required to exhaust the grievance system because it is not available for your issue. 249 For
example, the New York State grievance directive states
(1) An individual decision or disposition of any current or subsequent
program or procedure having a written appeal mechanism which
extends review to outside the facility shall be considered nongrievable.
(2) An individual decision or disposition of the temporary release
committee, time allowance committee, family reunion program or
media review committee is not grievable. Likewise, an individual
decision or disposition resulting from a disciplinary proceeding,
inmate property claim (of any amount), central monitoring case
review or records review (freedom of information request, expunction)
is not grievable.
(3) The policies, rules, and procedures of any program or procedure,
including those above, are grievable. 250
So, for example, your complaint about the denial of temporary release would not be
grievable, but your complaint that the Temporary Release Committee used unfair procedures
would be grievable.
The New York City jail grievance directive lists the following “non-grievable issues:”
(1) matters under investigation by the Inspector General;
County, 351 F.3d 626, 630 (5th Cir. 2003) (holding that allegations of the grievance system’s
inadequacy did not excuse failure to exhaust).
This means, for example, that if another prisoner has just grieved the same issue and lost, you still
need to grieve it yourself, even though you are certain that it is futile because you will get the same
ruling. See Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio May 11, 1997) (stating that “vicarious”
exhaustion is not permitted, except in class actions), amended by 16 F. Supp. 2d 834 (N.D. Ohio June
23, 1998) (dismissing prisoner’s action without prejudice because he had not exhausted his remedies
before filing).
248. The prisoner must use the administrative procedure of the institution or system where his
or her problem arose. Acosta v. United States Marshals Serv., 445 F.3d 509, 512–13 (1st Cir. 2006)
(holding that a prisoner who was placed by the Marshals Service in several county jails and two federal
prisons, but only used the Marshals’ complaint system, failed to exhaust either as to the jails or as to
the Bureau of Prisons institutions).
249. See Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (holding grievance system was not
an available remedy for classification complaint where prison required use of a separate classification
appeal procedure); Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003) (courts must establish that the
prisoner’s claim does not fall into an exception to the administrative remedy); Snider v. Melindez, 199
F.3d 108, 114 (2d Cir. 1999) (“[T]he provision clearly does not require a prisoner to exhaust
administrative remedies that do not address the subject matter of his complaint.”); Mitchell v. Caruso,
No. 1:07-cv-92, 2008 U.S. Dist. LEXIS 65954, at *2 (W.D. Mich. Aug. 28, 2008) (unpublished) (noting
grievance policy made “the content of a policy” non-grievable); McGrath v. Johnson, 67 F. Supp. 2d 499,
510–11 (E.D. Pa. 1999) (holding prisoner not required to file a grievance on a matter the inmate
grievance procedure would not address).
One court has recently stated that exhaustion is required “even if a prisoner ‘understood that the
claims put forth in [his] complaint were “non-grievable” under prison policy.’” Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003) (quoting Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1166 (10th Cir. 2003)). The court referred to situations where a prisoner thought a claim was nongrievable
but was wrong. If there is any question whether your claim is grievable, you should still
exhaust.
250. State of New York, Department of Correctional Services, Directive No. 4040 § 701.3(e),
Inmate Grievance Program (2003) (as revised July 1, 2006). The state regulations say the same thing.
See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3 (2006).