An update on the Prison Litigation Reform Act

HEADNOTE

Editor's note: Opinions expressed in this article are those of the author and do not necessarily represent the opinions of the Federal Bureau of Prisons or the Department of Justice.

There have been some

recent developments in the ongoing litigation surrounding the exhaustion requirement of the Prison Litigation Reform Act (PLRA), enacted by Congress in 1996.1 An inmate who wants to file a federal lawsuit, whether housed in a local, state or federal correctional facility, must first exhaust "such administrative remedies as are available" before bringing suit in federal court. During floor debate about PLRA, former Sen. Robert Dole (RKansas) explained that "[inmates] will now `litigate at the drop of a hat,' simply because they have little to lose and everything to gain ... Frivolous lawsuits filed by [inmates] tie up the courts, waste valuable judicial and legal resources, and affect the quality of justice enjoyed by the lawabiding population."2 One new provision, therefore, requires inmates to exhaust administrative remedies available within the system before going to federal court.

Inmates have argued that they should not be forced to first exhaust administrative remedies if they want to sue for monetary damages since they cannot be paid money through the grievance system. Remedy systems rarely provide for the payment of money to inmates. Several federal appeals courts had agreed with the inmates' arguments. However, on May 29, 2001, in a unanimous opinion written by Justice David Souter, the Supreme Court held that Congress mandated completion of any prison administrative remedy process capable of addressing the inmate's complaint and providing some form of relief, "irrespective of the forms of relief sought and offered through administrative avenues."3 The Supreme Court concluded that Congress intended inmates to exhaust based upon the language used in the statute ("one 'exhausts' processes, not forms of relief"). They found further support within the legislative history of the provision, confirming that Congress specifically intended to overturn a previous Supreme Court case4 that had excused inmates from exhaustion when suing for only monetary damages. Finally, they concluded that Congress did not intend to give inmates a strong inducement to skip the administrative process simply by limiting their requests for relief to monetary damages.

Two other aspects of this case are important for correctional administrators. First, Pennsylvania state inmate Timothy Booth did exhaust at the first (institutional) level, but he did not complete steps two and three of the three-level Pennsylvania Department of Corrections grievance process, so the Supreme Court held that completion of every level of the exhaustion process is mandated by the statute. It is not enough to file a grievance only at the jail or institutional level; if further appeals are available, they must be exhausted before going to federal court.5 Second, the Supreme Court closed the door on any futility arguments, stating, "We will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."6 This means inmates may not skip the grievance system because they believe it to be an "exercise in futility."

In the current term, the Supreme Court will hear oral arguments concerning another aspect of the exhaustion requirement. The case involves interpretation of the phrase "civil action with respect to prison conditions."7 Congress mandated that inmates must exhaust before they file this type of lawsuit in federal court. A federal appeals court has held that inmates need not exhaust if their cases involve only "one-time" occurrences, such as assaults or retaliatory acts, that do not naturally fall into the category of conditions of confinement actions. When the conduct is not "either clearly mandated by prison policy or undertaken pursuant to a systematic approach," then they have held that exhaustion is not required.8 However, a number of other federal appeals courts disagree with this approach because another section of PLRA9 broadly defines .civil action with respect to prison conditions" to include "conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison."10 Because this definition is so broad, they have said, Congress surely intended even "one-time" incidents to be exhausted. This conflict in the courts will soon be resolved by the Supreme Court.

Some courts are still carving out other exceptions to mandatory exhaustion under PLRA. A Chicago federal court, in a "failure to protect from assault" case, recently held that when an administrative procedure can provide no relief after the fact, then exhaustion is not required.11 The court apparently did not consider that remedial corrective action can be taken after the fact to develop new procedures, provide training, take disciplinary action, conduct an investigation, and otherwise review and evaluate the incident and make an administrative record.12 When the prison system fails to respond within the time allowed under the procedure, another court has excused the exhaustion requirement altogether, although higher levels within the system are available.13 In the federal system, failure to respond within the time limits may be considered a denial at that particular level, permitting the inmate to move up to the next level in the three-tiered system.14 It would appear that the better practice would require inmates to advance up to the next level of the grievance system if they have not received a timely response at a lower level.

One other attempt to create an exception is the argument that since it is too late to raise the issue in a grievance, it is no longer "available" and should be excused. Some systems place a fairly short time limit on the filing of a grievance after an incident has taken place, but allow filing out of time for special reasons.15 It would appear that the courts may be following a "deliberate bypass" approach in this regard. As one federal appeals court said, "an inmate cannot simply fail to file a grievance or abandon the process before completion and claim that he has exhausted his remedies or that it is futile for him to do so because his grievance is now time-barred under the regulations."16 As another federal appeals court explains it, "[O]ur concern is not with whether [the prison] would have accepted or rejected the postPLRA grievance. Instead, we merely need to ask whether the institution has an internal administrative grievance procedure by which [inmates] can lodge complaints about prison conditions ... Where [the prison] had the authority to take some sort of action with respect to a tardy complaint ... [the inmate] must initially have made an attempt to use" the grievance process. Therefore, the mere possibility that an extension might be granted requires the inmate to first attempt exhaustion before filing a federal lawsuit.17

Recently, a federal appeals court rejected yet another attempt to carve out an exception to the exhaustion requirement. The inmate claimed that administrative remedies were not available to him because the people he named in the lawsuit, including the prison warden, were the same people who would be deciding the grievances. Because of their dual status as defendants and decisionmakers, they would be biased, so no true administrative remedy system was available, The court found that administrative remedy procedures "in and of themselves" create no liberty interest or due process rights, so a conclusory allegation of unfairness due to bias would be rejected.18

It is well-settled now among the federal circuits that the PLRA's exhaustion requirement is not jurisdictional, but this does not make it optional. While courts have jurisdiction to hear the inmate's case even if there was no exhaustion, they lack the power and discretion to actually reach the merits of that case. Correctional staff sued by inmates have a right, conferred upon them by Congress, for cases to be dismissed without any further consideration, where inmates have failed to completely exhaust.18 Not only does this warrant dismissal based on lack of exhaustion, but failure to plead exhaustion in the complaint, or attach papers confirming it was done, has been held to be sufficient grounds for dismissal as a failure to state a claim.19 This also means the dismissal is a "strike" under another PLRA feature, the "three-strikes" rule.20

As the case law develops in the courts, a "total exhaustion doctrine" is beginning to emerge. This concept holds that PLRA requires exhaustion of all the claims brought within an inmate's lawsuit. If any claims are unexhausted, the whole lawsuit must be dismissed. For example, if an inmate grieves through all levels regarding failure to receive a particular medication, but fails to grieve regarding his religious diet claim, the entire lawsuit will be dismissed without prejudice to refiling the action once exhaustion on the diet claim is completed or the inmate refiles on the medication issue alone. A recent case out of New Jersey contains an interesting discussion of this new concept.21

Another new development is the emerging requirement that an inmate must exhaust as to each defendant and as to each claim.22 Adopting this position, another federal appeals court noted that staff directly involved in the matter must be identified in administrative filings before a subsequent lawsuit can be commenced against them, but they cautioned that an inmate is not required to provide information they cannot reasonably obtain.23 If they did not or could not know who was involved until discovery took place in the lawsuit, then they were excused from prior identification during the grievance process.

PLRA includes a screening requirement that federal courts must go through inmates' suits first before they allow all or part of a lawsuit to go forward against correctional staff.24 Two federal appeals courts have adopted the view that the federal court has the authority to dismiss unexhausted cases during screening, before service of process is had on any defendants.25 But a Pennsylvania federal district court has held that Congress "did not intend to authorize federal courts to dismiss [inmate] suits at the screening stage due to failure of the [inmate] to exhaust his administrative remedies," so service on correctional staff is first required.26 This approach seems inconsistent with PLRA's legislative history, explained in this federal appeals court ruling: "Congress amended 1997e(a) [the exhaustion requirement] largely in response to concerns about the heavy volume of frivolous prison litigation in the federal courts ... Congress desired to wrest control of our prisons from the lawyers and inmates and return that control to competent administrators appointed to look out for society's interest as well as the legitimate needs of [inmates]."27

While attempts continue to be made to chip away at the exhaustion requirement, the trend - particularly after the Supreme Court's unanimous decision - favors a mandatory exhaustion of administrative remedies at all stages of the process before filing a federal lawsuit. This development in favor of exhaustion gives correctional administrators a good first look at claims that may later end up in litigation. By providing a meaningful review, there is an excellent opportunity to make an administrative record that demonstrates what happened and why, and communicates to the judge later reviewing the matter that it was handled with real correctional professionalism. Where legitimate problems are found, they can be resolved quickly and efficiently without literally becoming federal cases. Even if they go on to become cases involving real liability, damages will have been mitigated and injunctions and other court interventions are far less likely. By breathing life into the administrative remedy procedure, correctional administrators can experience greater opportunities to control and manage their own institutions, promote constructive communication between inmates and staff, and reduce the onerous burdens of inmate litigation, all in keeping with the purposes of PLRA.

FOOTNOTE

ENDNOTES

FOOTNOTE

1 Pub.L. No. 104-134, 110 Stat. 1321 ("PLRA"). The exhaustion requirement is codified at 42 U.S.C. Sec1997e(a): "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by afn inmate] confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.'

FOOTNOTE

2 141 Cong. Rec. S7524 (daily ed. May 25, 1995) (statement of Senator Dole).

3 Booth vs. Churner, 121 S. Ct. 1819, 1825 (2001).

4 McCarthy v. Madigan, 112 S. Ct. 1081 (1992).

5 See also, Hartsfield v. Vidor, 199 F.3d 205 (6th Cir. 1999).

FOOTNOTE

6 Booth, 121 S.Ct. at 1825.

7 Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), cert. granted, Porter v. Nussle, 121 S.Ct. 2213 (June 4, 2001).

8 Marvin v. Goord, 255 F. 3d 40 (2d Cir. 2001).

FOOTNOTE

10 Smith v. Zachary, 255 RM 446, 452 (7th Cir. 2001)(7th Circuit criticized 2d Circuit's holding in Nussle as "traveling down a slippery slope."); See also Freeman v. Francis, 196 F.3d at 641 (6th Cir. 1999); Higginbottom v. Carter, 223 F.3d 1259 (11 th Cir. 2000); Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998); accord Castano v. Nebraska Department of Corrections, 201 F.3d 1023 (8th Cir. 2000).

FOOTNOTE

11 Nitz v. Correction Officer French, 2001 WL 747445 (N.D.III. July 2, 2001).

FOOTNOTE

12 See Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir. 1999).

13 Bowers v. Mounet, 2001 WL 826556 (D.Del., July 18, 2001).

14 28 CFR zdrv542.18.

15 In the federal prison system, 28 CFR sec542.14 provides for filing within 20 days, unless a 'valid reason" for delay is demonstrated. Some examples of valid reasons for an extension are included, such as physical incapacity or being in transit while separated from needed documents.

16 Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997), cert. denied, 522 U.S. 906 (1997).

FOOTNOTE

17 McCoy v. Gilbert, 270 F.3d 503, 511 (7th Cir. 2001).

19 Perez v. Wisconsin, 182 F.3d 532 (7th Cir. 1999).

20 Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000); Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998); but see Snider v. Melindez, 199 F.3d 108 (2d Cir. 1999).

21 28 U.S.C. 1915(g) is the codification of the PLRA section requiring inmates to pay a full $150 civil action filing fee up front if they have had three or more suits dismissed at any time in the past for being frivolous, malicious or failing to state a claim. This does not apply if the inmate shows an "imminent danger of serious physical injury."

FOOTNOTE

22 Rivera v. Whitman, 161 F. Supp.2d 337 (D.N.J. Aug. 17 2001).

23 Hartsfield v. Vidor, 199 F.3d 205 (6th Cir. 1999).

24 Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000).

25 28 U.S.C. Sec1915A.

FOOTNOTE

26 Carr V. Dvorin, 171 F.3d 115 (2d Cir. 1999); Plunk s. Givens, 234 F.3d 1128 (10th Cir. 2000)

27 Henry v. Medical Dept. at SCI-Dallas, 153 F.Supp.2d 553 (M.D. Pal 2001)

28 Nyhuis v. Reno, 204 F. 3dx 65, 73-74 (3d Cir. 2000), quoting Alexander v. Hawk. 159 F3d 1321, 1326 (11th Cir. 1998) 20CM,

AUTHOR_AFFILIATION

Michael Pybas is senior litigation counsel for the Federal Bureau of Prisons.