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

to satisfy the "proper exhaustion" requirement, 256 you must choose correctly between
appealing a disciplinary action and filing a separate grievance—and sometimes you may
need to do both. Generally, a suit that attacks the conduct of the disciplinary hearing itself is
exhausted by a disciplinary appeal. 257 A suit about the incident that led to disciplinary
charges (e.g., an allegation that staff used excessive force in an incident for which a prisoner
was charged) will generally not be exhausted by a disciplinary appeal and will require a
separate grievance. 258 However, in all cases it is the prison's rules governing grievances and
appeals that will determine which remedy is the correct one. 259 This issue will most often
Feb. 16, 2001) (unpublished) (prisoner’s failure to pursue “religious accommodation” exception
procedure meant that administrative remedies were not exhausted); Mullins v. Smith, 14 F. Supp. 2d
1009, 1012 (E.D. Mich. 1998) (prisoner exhausted state administrative remedies by submitting a
request for a rehearing).
256. This rule is discussed in Part E(5), "What If You Make a Mistake Trying To Exhaust?"
257. Jenkins v. Haubert, 179 F.3d 19, 23 n.1 (2d Cir. 1999) (holding that disciplinary appeals
exhausted plaintiff’s challenge to the resulting disciplinary sanctions); Portley-El v. Steinbeck, No. 06cv-02096-MSK-MJW,
2008 U.S. Dist. LEXIS 20236, at *2 (D. Colo. Mar. 14, 2008) (unpublished)
(holding that a disciplinary appeal exhausted due process claims under rule stating that grievance
procedure may not be used to seek review of disciplinary convictions; rejecting defendants’ argument
that constitutional claims could be grieved); Rivera v. Goord, 253 F. Supp. 2d 735, 749 (S.D.N.Y. 2003)
(holding that a claim of hearing officer misconduct was exhausted by a disciplinary appeal);
Muhammad v. Pico, No. 02 Civ. 1052, 2003 U.S. Dist. LEXIS 13402, at *31 n.22 (S.D.N.Y. Aug. 5, 2003)
(unpublished) (holding due process claims exhausted by disciplinary appeal); Sweet v. Wende Corr.
Facility, 253 F. Supp. 2d 492, 496 (W.D.N.Y. 2003) (holding an appeal from a disciplinary hearing may
exhaust if it raises the same issues as the subsequent federal complaint). But see Rivera v. Nelson, No.
05-cv-00300-WDM-MEH, 2006 U.S. Dist. LEXIS 52586, at *3 (D. Colo. July 17, 2006) (unpublished)
(holding that disciplinary appeals exclusively addressed only “the conviction that resulted from the
disciplinary hearing and the placement that resulted from the administrative segregation hearing,” and
due process claims should have been the subject of separate grievances); accord Ross v. Gibson, No. 06cv-00064-WYD-MEH,
2006 U.S. Dist. LEXIS 65577, at *6–7 (D. Colo. Aug. 8, 2006) (unpublished).
258. See Terrase v. Cain, No. 03-599-C, 2008 U.S. Dist. LEXIS 20783, at *1 (M.D. La. Mar. 17,
2008) (unpublished) (a disciplinary appeal did not exhaust a claim of failure to protect, since it did not
give officials adequate notice of that claim); Chavis v. Goord, No. 9:00-CV-01418 (LEK/DEP), 2007 U.S.
Dist. LEXIS 73210, at *2 (N.D.N.Y. Oct. 1, 2007) (unpublished) (holding disciplinary appeal did not
exhaust plaintiff’s claim for retaliation and interference with religious exercise; noting case is “readily
distinguishable” from due process challenges to hearing); Webster v. Kurtz, No. 04-cv-02663-EWN-
MEH, 2006 U.S. Dist. LEXIS 19354, at *5 (D. Colo. Mar. 31, 2006) (unpublished) (holding that
successful disciplinary appeal did not exhaust claims of subsequent retaliation and refusal to reinstate
visiting privileges; these should have been grieved notwithstanding rule prohibiting grieving
disciplinary convictions); Belton v. Robinson, No. 04-5105 (GEB), 2006 U.S. Dist. LEXIS 3472, at *9–10
(D.N.J. Jan. 30, 2006) (unpublished) (holding that an appeal of a disciplinary conviction did not exhaust
a claim that the officer injured the plaintiff during the incident); Rodney v. Goord, 00 Civ. 3724 (WK),
2003 U.S. Dist. LEXIS 8176, at *19 (S.D.N.Y. May 5, 2003) (unpublished) (holding an allegation of false
disciplinary charges had to be grieved in addition to appealing the disciplinary conviction); Tookes v.
Artuz, 00 Civ. 4969 (RCC) (HBP), 2002 U.S. Dist. LEXIS 12540, at *12 (S.D.N.Y. July 11, 2002)
(unpublished) (holding that appeal of disciplinary conviction did not exhaust as to claim against officer
who allegedly wrote a false disciplinary report). But see Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.
2003) (holding that a prisoner who claimed retaliatory discipline exhausted by appealing the
disciplinary decision to the highest level); Samuels v. Selsky, 01 Civ. 8235 (AGS), 2002 U.S. Dist.
LEXIS 17089, at *26–27 (S.D.N.Y. Sept. 11, 2002) (holding that propriety of confiscation of religious
materials had been exhausted via a disciplinary appeal from the resulting contraband and
“demonstration” charges; “issues directly tied to the disciplinary hearing which have been directly
appealed need not be appealed again collaterally through the Inmate Grievance Program”).
259. Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378, 2385, 165 L. Ed. 2d 368, 378 (2006); see
Keal v. Washington, No. C05-5737RJB, 2007 WL 1977155, at *2 (W.D. Wash. July 3, 2007)
(unpublished) (noting disciplinary appeal must be used to challenge infraction or sanction for
infraction, but staff misconduct grievance was the remedy for use-of-force complaint).