THE PRISON LITIGATION REFORM ACT OF 1995: DOING AWAY WITH MORE THAN JUST CRUNCHY PEANUT BUTTER

It is ugly to be punishable, but there is no glory in punishing. Hence that double system of protection that justice has set up between itself and the punishment it imposes. Those who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic

INTRODUCTION

Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) to curb prisoner filings of frivolous lawsuits.2 This Act has increased the erosion of prisoners' rights by making it more difficult for prisoners to file lawsuits in federal courts to vindicate their rights.3 This intrusion on prisoners' rights has not received much attention from the legislature because prisoners' rights are usually last on the list of priorities for lawmakers.4

Most people, not just lawmakers, do not think much of prisoners. Simply put, prisoners are not popular people.5 By definition, a prisoner has committed a wrong that warrants a term of confinement.6 Through that confinement, a prisoner loses essential rights, most notably, his liberty and a degree of autonomy over the day-to-day decisions in his life.7 A prisoner, however, does not lose all his rights.8 The retained rights that are most relevant to the daily well being of a prisoner are those afforded by the Eighth Amendment.9 Under the Eighth Amendment, prisoners retain the right to have basic needs provided for during their confinement, including adequate ventilation, sanitation, and hygienic facilities.10 In short, the Eighth Amendment mandates the humane treatment of a prisoner.11

To safeguard their rights under the Eighth Amendment, prisoners file 42 U.S.C. 1983 suits.12 These suits often address almost every aspect of prison life because for prisoners, "eating, sleeping, dressing, washing, working and playing are all done under the watchful eye of the State."13 Through the filing of such suits, prisoners help to reveal substandard conditions of confinement, which have included the abuse and neglect of prisoners by prison officials.14 Prisoner-initiated litigation, in sum, is an effective mechanism for revealing, addressing, and ameliorating constitutional violations.15 For example, recently in Hope v. Pelzer,l& the plaintiff-prisoner claimed that Alabama prison guards violated his Eighth Amendment rights when they handcuffed him to a hitching post twice and deprived him of bathroom breaks and water.17 To vindicate his rights, while also revealing unconstitutional treatment of prisoners, he filed 1983 claims against the prison guards who administered the punishment.18 Prisoner litigation is one way to monitor and prevent such digressions toward brutality.19

When proponents of the PLRA urged for its passage, they did not see prisoner litigation as a method to safeguard standards of a civilized society.20 Instead, they believed prisoner lawsuits were frivolous and a waste of resources.21 PLRA proponents often cite a case in which an inmate sued the state because he received a jar of crunchy peanut butter and not the creamy kind that he had ordered from the prison canteen (the "Peanut Butter case") as a classic example of a frivolous prisoner suit.22 Proponents of the PLRA believed that all prisoner-brought litigation was as frivolous as the Peanut Butter case.23

Congress enacted the PLRA to curb prisoners' alleged abuse of the federal courts.24 Through the PLRA, Congress changed several statutes that govern the filing procedures for prisoner lawsuits.25 Most notably, the PLRA changed 42 U.S.C. 1997e, which governs the exhaustion of institutional grievance procedures, making it a mandatory pre-condition that prisoners exhaust all available administrative remedies provided within his or her prison's grievance procedures before filing a 1983 action (the "Exhaustion Requirement").26

This Note examines the exhaustion requirement under the PLRA and argues that it does not serve the intended purpose of easing the federal courts' workload. Rather, the PLRA has demonstrated the potential to bar meritorious prisoner claims. Furthermore, this Note advocates making the Exhaustion Requirement discretionary, rather than mandatory, so that the intended purpose of the PLRA can be served without barring meritorious claims. Under guided discretion, judges should be able to decide whether exhaustion is pragmatic on a case -by-case basis.

This Note does not argue that all prisoner lawsuits are meritorious, nor does it argue that the reduction of frivolous prisoner lawsuits is not a valid goal in light of the current federal dockets. Rather, this Note asserts that the PLRA's Exhaustion Requirement, in its present state, does not effectively achieve these goals without doing a great injustice to meritorious claims.

As enactment of the PLRA was largely a reactionary response to the rise of prisoner lawsuits and its impact on the federal docket, Part I of this Note examines the history and development of the concept of a prisoner lawsuit. Part II focuses on the legislative history of the PLRA and the rhetoric behind its passage. Part III examines how the application of the exhaustion requirement has not accomplished its intended goal, while it may also have barred potentially meritorious claims. Finally, Part IV describes the proposed solution to the provision's shortcoming.

I. THE PRISONER LAWSUIT

At common law, a prisoner had no right to bring a lawsuit.27 Prisoners were considered "slaves of the state," and confinement was deemed a moment of "civil death."28 Before 1960, prisoners were not able to sue under 1983 to remedy prison conditions.29 The social atmosphere of the 1960s spurred a new judicial philosophy recognizing prisoners' rights, and courts became more receptive to prisoners' rights suits.30 Before that, courts had traditionally followed the "hands off doctrine," giving great deference to prison administrators.31 There were several reasons for this change in judicial philosophy. Among them was the Warren Court's repudiation of the right-privilege distinction32 and the horrific conditions of many prisons.33 These factors all eased the way for a prisoner to bring suit under 1983. Once the floodgates were opened to prisoner litigation, it came in waves.34

II. THE PLRA

Congress enacted the PLRA to deal with the rise of prisoner litigation in federal courts.35 Admittedly, the number of lawsuits filed by prisoners is not low. In 2000, both state and federal prison inmates filed approximately 58,257 petitions in United States district courts,36 reflecting a steady increase in the number of lawsuits filed by state and federal prisoners in federal courts.37 PLRA proponents relied heavily on the rising number of prisoner-brought lawsuits to rally support its passage.38

A. Legislative History

Despite the PLRA's impact on over one million prisoners, there is scant legislative history behind its enactment.39 Congress passed the PLRA as a rider to the Omnibus Consolidated Rescission and Appropriations Act of 1996.40 The debate and legislative processes leading to the passage of the PLRA were hasty, one-sided, and did not give much thought to the possible ramifications on prisoners' constitutional rights. After only one week of debate, the House passed its version on July 26, 1995.41 Similarly, the Senate debated the legislation for a mere five days before approving it.42 The bare legislative history clearly shows that there was "hardly the type of thorough review that a measure of this scope deserve[d]."43

B. The Rhetoric Behind the PLRA

In support of the enactment of the PLRA, its proponents claimed that the federal courts were seriously burdened by overly litigious prisoners with frivolous suits.44 Senator Bob Dole, a PLRA proponent, described the increased prisoner filings as an "alarming explosion."45 Senator Dole attributed the increase in prison litigation to the alleged litigious nature of prisoners when he stated, "[Prisoners will now 'litigate at the drop of a hat.' "46 Senator Dole failed, however, to address the drastic increase in prison population in the United States that accompanied the increase in prisoner filings when assessing the litigious nature of prisoners.47 Moreover, Senator Dole failed to attribute the rise in prisoner-lawsuits to anything other than the mere litigious nature of prisoners.48

The PLRA's proponents further trivialized the prisoner lawsuits when they declared that filing lawsuits has become a "recreational activity for long-term residents of our prisons."49 Senator Hatch, another PLRA proponent, asserted that prisoner lawsuits were frivolous because "only a scant 3.1 percent have enough merit to reach trial."50 Senator Hatch framed the merits of a case solely on its ability to reach the trial stage.51 According to some commentators, however, a case is successful, or possesses merit, if "(1) the plaintiff wins after trial, (2) the parties settle their dispute, (3) the court grants a stipulated dismissal, or (4) the plaintiff dismisses the case voluntarily."52 Whether a case goes to trial is not, and should not be, the dispositive factor of the underlying merits of a case.

PLRA proponents further argue that prisoner-brought litigation poses a huge financial burden on the legal system.53 According to Senator Abraham, another supporter of the PLRA, "[t]hirty-three States have estimated that they spend at least $54.5 million annually combined on these lawsuits. The National Association of Attorneys General has extrapolated that number to conclude that the annual costs for all of these States are approximately $81 million a year to battle" these cases.54 The cases that Senator Abraham referred to included the Peanut Butter Case, an inmate suing because he was forced to listen to his unit manager's music, an inmate suing because his ice cream had melted, and an inmate suing because he was served cake that was "hacked up" for dinner.55 Other PLRA proponents also listed cases that they deemed to be absurd, such as an inmate who demanded that he receive Reebok or L.A. Gear brand shoes instead of Converse,56 an inmate who sued because his jeans did not fit properly, and an inmate who sued because he received shoes that were a size too large.57 PLRA proponents deemed these cases, and their characterization of these cases, to be the sole prototype of prisoner litigation. Much of the PLRA's legislative history is comprised of proponents listing similar cases, and harping merely on the frivolity and abundance of such cases.58

By merely advancing the view that prisoners are overly litigious and bring frivolous suits, PLRA proponents do a great disservice to prisoner litigation, which has undeniably helped to ameliorate prison conditions and to curb abuse of prisoners by exposing the problems that exist in prisons.59 There are many legitimate cases not mentioned by PLRA proponents, including a case where guards at a Virginia state prison fired rubber pellets from a twelve-gauge shotgun on three separate occasions and severely wounded an inmate who, as a result, required hospitalization to remove the pellets from his face.60 Another incident involved a jail guard that beat an inmate so severely that he was paralyzed for a year before dying from such injuries.61 These cases are merely a few examples of the numerous cases revealing the dire conditions of our nation's prison system, but they were never mentioned during the debate over the PLRA.62

Moreover, prisoner lawsuits may not expend as many resources as claimed by PLRA proponents. Some prisoner advocates and scholars believe that the alleged burden caused by prisoner lawsuits is an exaggeration and that the so-called problem with excessive suits brought by prisoners is merely a myth.63 According to these commentators, the alleged burden is exaggerated because frivolous and unmeritorious suits can be dismissed early in the process, and, therefore, they actually consume very little time and resources.64

Contrary to the belief of PLRA proponents, some commentators give other reasons, besides the litigious prisoner, for the rise in the number of prisoner lawsuits. These commentators believe that the increase in prisoner lawsuits may be symptomatic of deteriorating prison conditions, rather than prisoners' propensity for litigation.65 According to Erwin Chemerinsky, a constitutional law professor at the University of Southern California, the number of prisoner lawsuits "underscores a grim reality of modern prison life: too many inmates, too few cells and too little attention."66 In the past twenty years, the prison population, accounting for both state and federal prisoners, has risen from 329,821 to 1,381,892.67 Due to the rapid growth in the prison population and a slower increase in the number of cells, prisons now hold "a third more prisoners than they were designed to hold."68 The insufficiency of prison space, according to Professor Chemerinsky, provides one explanation for the rise in prison suits. The lawsuits are an extension of "overcrowding and deterioration that is only growing worse."69

Prisoner lawsuits may not be as frivolous as described by PLRA proponents. Rather the frivolity may simply be a mischaracterization, or misunderstanding of the cases they cite.70 Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit was concerned with the mischaracterizations of prisoner cases by overzealous state attorneys' general and decided to look into the underlying facts of the most cited cases. He concluded that some of the most widely cited cases have merit and were just simply mischaracterized.71 To start, the Peanut Butter Case, according to Judge Newman, was not about getting the wrong kind of peanut butter but about charging a prisoner for something that he never received.72 This is diametrically different from the characterization presented by PLRA proponents. During the brief debate prior to the PLRA's passage, its supporters poked fun at another case, describing how prisoners allegedly sued over the lack of a salad bar, to further drive home the point that prisoner lawsuits were a waste of resources.73 This particular case, according to Judge Newman, was not about getting a salad bar, but about dangerously unhealthy prison conditions.74 Judge Newman's reassessment of the cases illustrates that the frivolity of some cases may simply be misstated.

C. Deconstructing Frivolity

The type of rhetoric espoused by PLRA proponents was subject to criticism even before the enactment of the PLRA. According to Jim Thomas, writing six years before the enactment of the PLRA,

In denigrating prisoner suits, critics tend to use such terms as "litigation explosion," "frivolous suits," "abuse of courts," or "crowding out legitimate claims." Such a vocabulary provides an account-generating mechanism that "explains" a state of affairs that needs "attending to." Account-generating rhetoric tends to replace data, and arguments against prisoner suits are packaged in ways that distort rather than illuminate the nature and processes of prisoner grievances.75

The PLRA proponents' mischaracterization of cases distorts the reality of prisoner litigation. The reality is not that all prisoner lawsuits are meritorious, but merely that not all are without merit. Moreover, during the period when prisoners increased filings of lawsuits, there were cases that signified real abuse and not the frivolity cited by PLRA proponents.76 Immediately before the passage of the PLRA, female inmates filed a 1983 suit alleging sexual abuse by prison staff.77 PLRA proponents did not mention this case, or any case similar to it, when describing prisoner litigation.

A critical assumption "underlying much of the jurisprudence on prisoner civil rights litigation is that prisoners have the ability to communicate their claim to the federal court."78 The fact that most prisoner litigants appear pro se, may contribute to the view that prisoner suits are frivolous.79 Even though the Supreme Court has established a more liberal standard for pro se litigants, it has been assumed that a prisoner possesses the ability to draft a complaint, which would "allow [a] district court to cull out the frivolous claims."80 In reality, a prisoner may not possess such ability because "[prisoners are not of average intelligence."81 A great deal of prisoners do not have adequate schooling, have learning disabilities, and are "functionally illiterate."82 It is not easy for a prisoner to simply draft up a complaint that would communicate the extent of his injuries so that they represent a cognizable legal claim.

Furthermore, the frivolity of prisoner lawsuits may be examined through the wrong paradigm. Because the prisoner's world is contained within the parameters of four walls, the prisoner's definition of frivolous is distinctly different from that of a non-prisoner. Accordingly, "[w]hat to most people would be a very insignificant [matter] becomes, because of the nature of prison life, a matter of real concern to the inmate."83 To determine frivolity based on the non-prisoner's paradigm of values is mistaken because a non-prisoner's values cannot reflect the reality of prison life.84 For instance, PLRA proponents thought the Peanut Butter case was frivolous because they saw no worth in such mundane things like getting the right kind of peanut butter. To PLRA proponents who do not live in a world severely limited in resources, it may be trivial, but to a prisoner with limited resources, it may mean almost everything.85

The increase in the number of lawsuits brought by prisoners may also be attributable to recent changes in the federal and state sentencing guidelines.86 In recent years, the federal government and several states have adopted determinate sentencing guidelines and mandatory sentences and have eliminated parole.87 These changes have and will further increase the number of defendants sentenced to prison and increase the length of incarceration. Based on the recent changes in the sentencing scheme, "the number of persons confined will continue to grow, with an expected increase in the number of civil rights actions filed by such persons."88

III. Is MANDATORY EXHAUSTION OF PRISONER CLAIMS A SOLUTION?

In addition to its short legislative history and erroneous underlying assumptions about the nature of prisoner litigation, the PLRA implemented several major changes to filing procedures for prisoner lawsuits. First, an inmate may not proceed in forma pauperis without a showing of an "imminent danger of serious physical injury."89 Even then, the inmate's suit may be dismissed if the inmate has previously had three suits dismissed for either frivolity, maliciousness, or failure to state a claim.90 Second, the PLRA limits the time allowed for prospective relief to two years.91 Third, the PLRA limits the recovery for psychological injury by requiring a showing of physical injury.92 Finally, for an inmate to proceed in federal court, 42 U.S.C. 1997e(a) mandates that all available administrative remedies be fully exhausted.93

A. The Exhaustion Requirement

The PLRA revised 42 U.S.C. 1997e to make exhaustion of administrative remedies mandatory.94 Courts have interpreted this provision as a mandatory precondition to bringing suit in federal court.95 The exhaustion of administrative remedies entails that a prisoner litigant must first process his claims through all of the institutional grievance procedures before bringing a suit in federal court.96 The supporting rationale behind the provision is that it provides prisoners a faster method of obtaining relief, and if the prisoner receives relief through this method, it minimizes litigation.97

B. The Exhaustion Requirement Has Not Lightened the Federal Workload

The exhaustion requirement has not reduced litigation, but rather has generated more litigation interpretting its application. In addition, the mandatory exhaustion requirement has not significantly improved judicial efficiency, and in some areas, it may have actually impeded judicial efficiency. Furthermore, the minimal benefit derived from its enactment is outweighed by the fact that it potentially bars meritorious claims from ever being adjudicated. This result is especially troubling in light of the expansive interpretation afforded the exhaustion requirement in recent Supreme Court decisions.98 In Porter v. Nussle,99 the Supreme Court expanded the application of the PLRA so that the exhaustion requirement applied not only to general prison conditions but also to isolated incidents of excessive force.100 In Booth v. Churner,101 the Supreme Court reinforced the mandatory nature of the exhaustion requirement by necessitating that the prisoner exhaust all administrative remedies regardless of whether the damages sought are actually available through the institution's grievance procedures.102 Consequently, the exhaustion requirement has had and will have a broader effect on prisoners' rights than it did during its initial enactment.

Prior to the Supreme Court's decision in Porter, courts were divided over whether the exhaustion requirement applied to lawsuits involving isolated instances that violated the Eighth Amendment's ban on excess force. Circuit courts were split into two camps: some held that the exhaustion requirement did apply to isolated incidents;103 while others held that it did not apply to such incidents.104 For those circuits that did not speak to the issue, there were intra-circuit splits, such as within the second Circuit, where some of the district courts held that the exhaustion requirement did apply to isolated instances of excessive force,105 while others concluded that it did not apply.106

When this issue finally reached the second Circuit, the court held in Nussle v. Willette101 that the exhaustion requirement under the PLRA only applied to suits regarding general conditions of prison life and not to isolated incidents of constitutional violations.108 The Supreme Court disagreed with the Second Circuit and overruled Willette in Porter v. Nussle,109 holding that the exhaustion requirement applied to all inmate suits about prison life, regardless of "whether they involve general circumstances or particular episodes."110 This decision made it mandatory for all prisoner lawsuits to pass this initial threshold of filing administrative claims with their institutions, and in effect expanded the reach of the exhaustion requirement.

When Congress implemented the PLRA, it failed to define the term "administrative remedies . . . available" within the statute, and it did not provide legislative history to guide courts in interpreting this term.111 This omission prompted a great deal of litigation to determine its definition. The importance of the term is clear because whether or not an inmate is required to fulfill the exhaustion requirement hinges on the precise statutory phrase "administrative remedies . . . available." As a result of congressional silence, the issue that divided the circuits was whether a prison litigant needed to exhaust the administrative remedies provided by an institution if such procedures did not provide the specific relief sought, in particular, money damages.112

Prior to the resolution of the issue in Booth v. Churner, the Third, Sixth, and Eleventh Circuits held that exhaustion was still required even if the procedures did not provide the relief requested by the prisoner litigant.113 The Fifth, Ninth, and Tenth Circuits concluded the opposite.114 This issue divided the district courts within the Seventh Circuit.115 The Supreme Court in Booth resolved the split and held that the exhaustion requirement also applied in situations when the institutional grievance procedures do not specifically provide for the relief sought.116 This result highlights the ministerial nature of the exhaustion requirement. Although it may be clear from the outset that exhaustion will not remedy the inmate's injuries, the inmate would still have to undergo the procedural hurdles set in place by the exhaustion requirement.

The Supreme Court's holdings in Porter and Booth expanded the application of the exhaustion requirement to every inmate suit regarding prison life, regardless of the form of relief sought.117 Because of the expansive reach of the exhaustion requirement, it is important that the provision be effective and not produce the undesired consequence of barring potentially meritorious claims. Congress enacted the exhaustion requirement as a procedural filter for frivolous prisoner claims and not as an impediment for all prisoner claims.118 Therefore, the intended purpose of the exhaustion requirement must be juxtaposed with its effect to see whether it has served its purpose, as well as whether the gains from the procedural barrier outweighs the negative ramifications.

The crux of the PLRA proponents' argument is that frivolous lawsuits are a huge burden on society because they waste valuable judicial and legal resources.119 Despite the goals of the PLRA, the exhaustion requirement has actually impeded judicial efficiency rather than promoting it. One of the consequences of its mandatory nature is that it wastes judicial resources because it requires an inquiry into the exhaustion requirements when the case could have already been disposed of on its merits.120 Another problem is that it wastes judicial resources by requiring the dismissal and subsequent re-filing of a case, provided the exhaustion requirements are satisfied during the pending suit.121 Moreover, the exhaustion requirement can delay a time-sensitive claim of a constitutional violation, such as where the relief requested is an injunction against prison officials.

The main purpose of the PLRA, as carried out by the exhaustion requirement, is to lower the number of frivolous prisoner lawsuits filed in federal court.122 The exhaustion requirement, however, has not ameliorated the congested federal dockets. To the contrary, the exhaustion requirement may have complicated ordinary proceedings even more, resulting in the increased expenditure of more judicial resources. Take for example Rodriguez v. Ghoslaw.123 After the district court granted summary judgment on the merits to the defendant corrections officers and prison officials in a 1983 suit brought by a New York State prisoner, the second Circuit remanded the case for an additional inquiry into exhaustion.124 In Rodriguez, not only did the exhaustion inquiry create additional work for the judiciary, but "[i]f [the] plaintiff failed to exhaust, the resulting dismissal would be without prejudice to his re-filing this meritless claim after exhausting the grievance procedures."125 A dismissal without prejudice entitles the plaintiff to re-file the same claim, and therefore, requires the district court to decide the same case twice when it had already decided that the case lacked merit.126 Not only does this result wreak havoc on an already congested docket, it also counters the very objective of the PLRA-to reduce the waste of judicial and legal resources.

Hicks v. Monteiro127 is another example of where the exhaustion requirement works contrary to the stated goals of the PLRA. In Hicks, the only effect of the exhaustion requirement was to impede a meritorious claim brought by a prison litigant from proceeding in federal court. Hicks, the plaintiff, was a prisoner at Salinas Valley State Prison who filed a pro se complaint alleging violations of his civil rights pursuant to 42 U.S.C. 1983 and Title II of the Americans with Disabilities Act of 1990 (ADA), codified as 42 U.S.C. 12101 et. seq.128 Hicks alleged that he had a severe leg injury, which required the use of a walking stick or wheel chair, but prison officials would provide him with neither and did not install rails in the showers or cell.129 Hicks alleged that because the prison officials did not provide him with the requested facilities, he fell stepping out of the shower and injured himself.130 Judge Walker, writing for the Northern District of California, dismissed Hicks's case despite noting that the allegations stated a cognizable claim under 1983 and the ADA because Hicks failed to exhaust fully the available administrative remedies of the prison prior to filing the federal claim as mandated under the PLRA.131 Hicks had fully exhausted the administrative remedies only after initiating his federal claim, but this did not fit within the statutory definition of precondition under the exhaustion requirement.132

Ultimately, Hicks was denied relief through the institutional grievance procedures too late, and therefore, his federal case was dismissed.133 This result does not coincide with the PLRA's intended goal of promoting judicial efficiency because the net result requires Hicks to re-file the same case for a second examination of the merits.

C. Barring Meritorious Claims

Beside being a waste of time, it may not seem significant that a prisoner-litigant must re-file his claim after dismissal for failure to exhaust administrative remedies. However, the delay of certain prisoner claims may in effect be a denial of relief. Prisoners seek both monetary damages and injunctive relief in a 1983 claim.134 If a prisoner is only seeking injunctive relief, time is of the essence for this prisoner. During the time-frame in which relief is delayed, it is actually a denial of relief because the abuse continues. Among the most frequently alleged violations of the Eighth Amendment is the denial of adequate medical care.135 Prisoners who are denied medical treatment after seeking such treatment for months or years "will file a civil rights action in desperation" to obtain it.136 To mandate that such prisoner wait until the exhaustion requirement and litigation are complete to receive medical attention is in effect a denial of relief.

In some instances, a prisoner's claim may be precluded all together if the statute of limitations for the 1983 claim expires while the prisoner was exhausting his administrative remedies. Federal courts apply the statute of limitations of the relevant states for 1983 claims,137 and the different state statutes of limitations for such claims range from one year to three years.138 Many courts have held that the statute of limitations is tolled while a prisoner-litigant is exhausting his administrative remedies,139 but there are still those courts that have not addressed the issue, leaving the status of the prisoner's claims unclear.140 Given the complex nature of certain grievance procedures and the relatively short statute of limitations, prisoner-litigants with meritorious claims can be precluded from ever bringing suit. Not even proponents of the PLRA wanted to bar meritorious claims,141 and Congress did not intend for the PLRA to bar such claims.

The mandatory nature of the exhaustion requirement also bars meritorious claims in situations where the grievance procedure is not clearly established. For instance, the penal institution may not have a delineated grievance procedure. Therefore, prisoners may not be able to exhaust the remedies because they will not know how to proceed administratively and instead will file suit. In response, defendants will raise non-exhaustion as a basis for dismissal and thereby preclude relief for a meritorious claim. A sound example of this potential abuse is Aldridge v. Gill,142 in which Samuel Aldridge, a pro se prisoner, filed a claim under 1983 seeking money damages against the judge Executive of McCracken County, Kentucky and several prison officials at the McCracken County Regional Jail for alleged constitutional violations.143 The district court entered judgment in favor of the defendants because the plaintiff failed to exhaust his administrative remedies.144 On appeal, the Court of Appeals for the Sixth Circuit held that it was unclear whether administrative remedies were even "available" because plaintiff alleged that he was never informed of a grievance process, and defendants merely asserted that a grievance procedure existed without ever substantiating to the district court what this process entailed. Thus, the district court never resolved this matter.145 The district court's holding is especially troubling in light of the merits of Aldridge's case, which prompted an investigation by the federal civil rights division, which confirmed that his claim was in fact meritorious.146

The Aldridge decision indicates that prisoner litigation can be meritorious and that the exhaustion requirement makes it unnecessarily difficult to obtain relief. Although Aldridge could simply re-file his case, he would first have to determine how to exhaust grievance procedures that were unclear and unsubstantiated, possibly precluding him from filing a future claim.147 If there was no grievance procedure, Aldridge could refile his claim based on the argument that there was no available administrative procedure, but the success of this argument depends on which party has the burden of proving exhaustion.

Courts disagree over who has the burden of raising the issue of whether exhaustion has been fulfilled. Some courts hold that plaintiffs have the burden of pleading that exhaustion has been completed,148 while other courts hold that the exhaustion requirement is an affirmative defense to be raised by defendants and is therefore waiveable.149 The difference between the two approaches is significant. A plaintiff who has the burden of proving that the exhaustion requirement has been satisfied is subject to sua sponte dismissal if the court finds this burden has not been met. In a jurisdiction where the requirement is an affirmative defense, however, if the defendant fails to raise the issue, a prisoner's case can bypass the exhaustion requirement and proceed regardless of whether the prisoner has in fact utilized all available administrative remedies. This difference in interpretation of the exhaustion requirement effectively provides for two very different treatments of a prisoner's suit and of the statutory provision itself. The Supreme Court has not resolved this split, so in the interim, it will be subject to more speculation and rationalization by the different courts.

Aldridge also highlights the issue, discussed above, of whether exhausting administrative remedies tolls the statute of limitation for a 1983 claim. In Aldridge, the circuit court remanded the case for consideration of whether exhaustion had tolled Aldridge's federal claim.150 Thus, not only did Aldridge have to wait to exhaust his administrative remedies and then refile the suit, but he also faced the possibility of never getting his day in court if the statute of limitations expired.151 The procedural hurdles imposed by the exhaustion requirement may also preclude meritorious claims because, by the time the prisoner's case is dismissed by a federal court and he figures out there is a grievance procedure, the prisoner may simply give up.152

The purpose of the PLRA, and its policy implementation through procedural devices such as the exhaustion requirement, was not to bar meritorious claims. Senator Hatch, a staunch supporter of the PLRA, explicitly stated that "[i]ndeed, I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised. The legislation will, however, go far in preventing inmates from abusing the [fjederal judicial system."153 Despite this admission, the exhaustion requirement does not distinguish between meritorious claims and unmeritorious claims; instead, it broadly covers all prisoner lawsuits.154 Moreover, the effect of the mandatory exhaustion requirement is to inhibit both meritless and legitimate claims.

D. The Institution's Right to Address Prison Problems Before Litigation

The exhaustion requirement was also intended to serve as notice for the prisons and to give such institutions the opportunity to redress their inmates' concerns thereby minimizing the need for litigation.155 There are times, however, when this goal is outweighed by the need for judicial relief. This need is particularly apparent in situations of systemic abuse of prisoners, because the constitutional violations are so widespread that the institutions are already put on notice of the situation prior to the commencement of any litigation.156 In a situation of overt abuse of prisoners by prison officials, this interest cannot prevail over a prisoner's injuries because the nature and frequency of abuse suffices to put prison administrators on notice that they should take action.157

IV. THESOLUTION

The problems posed by the exhaustion requirement can be easily remedied by giving judges discretion over what constitutes exhaustion under specified guidelines. A judge should be allowed to forego the requirement in the following situations: (1) if the case has already been dismissed based on the merits; (2) if administrative remedies are fully exhausted during the pending lawsuit; and (3) if there is a time-sensitive claim alleging violation of a constitutional right, in which it is clear that administrative procedures would not be able to provide relief. The imposition of a mandatory exhaustion requirement in these instances would be contrary to legislative intent. This solution is not mandating a radical departure from the current state of the provision but is merely asserting a "fine-tweaking" of some of its weaknesses.

To impose a mandatory exhaustion requirement on all prisoner litigation may deter some frivolous claims, but this minimal gain is obtained at the cost of closing out the only available forum for prisoners who suffer egregious abuse at the hands of their keepers. In light of the guarantees of the Eighth Amendment, closing the federal courts as a forum in order to improve efficiency, while allowing prisoners to be abused, is not a sound trade-off.

Furthermore, because the PLRA was enacted based on certain misconceived notions about prisoner litigation, it cannot serve its intended purpose of weeding out frivolous claims, nor of lightening the federal workload.158 More importantly, it has the effect of barring potentially meritorious claims, which it explicitly was not supposed to do. The proposed solution to the problems associated with the exhaustion requirement under the PLRA is to do away with the mandatory nature of the provision and to give judges discretion. The shifting of power is important because judges are familiar with the specific facts of a claim and are in the best position to make a judgment over whether or not exhaustion would serve any purpose. judges can discern a meritorious claim from one that is frivolous, but a mandatory exhaustion requirement cannot do the same.

To grant judges discretion under limited circumstances does not undermine the goals of the PLRA. Furthermore, judges' personal interests are aligned with the goal of the PLRA because they are the ones who have to deal with frivolous lawsuits that consume their workload.

CONCLUSION

Although this Note deals solely with the question of whether a procedural device is as effective as it can be, it does not ignore the fact that the substantive nature of certain prisoners' claims warrants attention. Pervasive abuse of prisoners continues despite constitutional guarantees, and efforts to promote superficial guarantees of judicial efficiency have chipped away at these constitutional protections. The right of access to the courts is a fundamental right for the average citizen, but this right is even more important to incarcerated individuals. For prisoners, the courts are the sole forum for the vindication of their retained rights.

The exhaustion requirement may be precluding more than cases like the Peanut Butter case. It may be silencing and destroying one of the only avenues of relief that a prisoner may have. As one commentator has noted:

The inmate, a classic 'deviant' whom the modern state separates, isolates, and controls absolutely, must seek relief from non-traditional quarters. Even more so than other political minorities for whom some measure of progress has been made in improving accountability and influence, the courts remain for these despised individuals "the sole practical avenue open to ... petition for redress of grievances."159

According to Keith Ploladian, a New York State inmate, "in the bleak world of prison, being able to sue is one of the few ways for prisoners to exert some control over their environment. It gives [prisoners] a way to be heard . . . Without this, you might as well pull out the bullwhip and go back to the ball and chain."160 For prisoners, prison litigation may be the sole outlet they have left to redress their grievances. Angry prisoners who feel hopeless about the situation they face in prison have no incentive to comply with rules of the institution. To allow prisoners to retain the right to sue over aspects of prison life may also be beneficial to the maintenance of some degree of order and civility in prisons.