Petition for Writ of Certiorari — Angel Soto, Petitioner v. Unknown Sweetman, et al.

No. _______

In the

Supreme Court of the United States

____________________

ANGEL SOTO,

Petitioner,

v.

UNKNOWN SWEETMAN, ADOC Sgt.

at SMU II Browning Unit; et al.,

Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

Stephen J. van Stempvoort

Counsel of Record

MILLER JOHNSON

45 Monroe Avenue SW, Suite 1100

Grand Rapids, MI 49503

vanstempvoorts@millerjohnson.com

(616) 831-1765

Counsel for Petitioner

QUESTION PRESENTED

When a federal statute prohibits a plaintiff from filing a lawsuit until after

the plaintiff completes mandatory exhaustion of administrative remedies, this

Court and five Circuits hold that the plaintiff’s claim does not accrue—and the

statute of limitations does not begin to run—until after mandatory exhaustion is

completed. This is consistent with the standard rule that a claim does not accrue

until “the plaintiff can file suit and obtain relief.” In this case, however, the Ninth

Circuit held that the statute of limitations begins running immediately on a claim

governed by the Prison Litigation Reform Act (“PLRA”), even though § 1997e(a) of

the PLRA mandates that a plaintiff exhaust his administrative remedies prior to

filing suit. Under the Ninth Circuit’s approach, if exhaustion takes longer than the

limitations period, then the limitations period expires on the plaintiff’s claims

before the PLRA allows him to file them in the first place.

The question presented is:

Where a federal statute—such as 42 U.S.C. § 1997e(a)—mandates that a

plaintiff exhaust administrative remedies prior to filing suit, does the plaintiff’s

claim accrue only upon completion of mandatory exhaustion (as five circuits hold),

or does it accrue before the completion of mandatory exhaustion, such that the

limitations period can expire while the plaintiff is still prohibited by statute from

filing his claim in court (as the Ninth Circuit held)?

i

PARTIES TO THE PROCEEDING

The parties to this proceeding are:

Petitioner:

Angel Soto

Respondents:

Unknown Sweetman, ADOC Sgt. at SMU II

Browning Unit;

Unknown Zamora, ADOC CO II at SMU II

Browning Unit;

Unknown Harris, ADOC CO II at SMU II

Browning Unit;

Unknown Jones, ADOC CO II at SMU II

Browning Unit;

Unknown Schell, ADOC CO II at SMU II

Browning Unit;

Unknown Emore, ADOC CO II at SMU II

Browning Unit;

Unknown Victoria, ADOC Sgt. at SMU II

Browning Unit;

Unknown Bope, ADOC CO II at SMU II

Browning Unit;

Unknown Swaney, ADOC Sgt. at SMU II

Browning Unit; and

Unknown McClellan, ADOC Sgt. at SMU II

Browning Unit.

Soto filed this prisoner civil rights action against several employees of the

Arizona Department of Corrections (“ADOC”) while proceeding pro se. Upon

information and belief, each respondent is or was an employee of ADOC.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE ....................................................................................... 1

REASONS FOR GRANTING THE PETITION ............................................................ 5

I.

The Ninth Circuit’s holding conflicts with the First, Third,

Seventh, District of Columbia, and Federal Circuits, which have

held that, if administrative exhaustion is mandatory, then the

plaintiff’s claim does not accrue until completion of mandatory

exhaustion. .......................................................................................................... 5

II.

The Ninth Circuit’s analysis is demonstrably incorrect. ................................... 7

III.

The issues presented are important and recurring. ........................................ 13

IV.

This case is an excellent vehicle for resolving the split of

authority on this issue. ..................................................................................... 15

CONCLUSION............................................................................................................. 15

Appendix A — Ninth Circuit opinion affirming the district court ............................ 1a

Appendix B — District court’s opinion and judgment.............................................. 28a

Appendix C — Ninth Circuit order denying petition for rehearing ........................ 35a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Aplin v. Oregon Dep’t of Corr.,

No. 6:17-CV-01222-MO, 2018 WL 2144348 (D. Or. May 8, 2018) ........................ 14

Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar

Corp., 522 U.S. 192 (1997) ....................................................................................... 8

Brown v. Morgan,

209 F.3d 595 (6th Cir. 2000) .................................................................................. 11

Brown v. Valoff,

422 F.3d 926 (9th Cir. 2005) .................................................................................. 12

Crown Coat Front Co. v. United States,

386 U.S. 503 (1967) .................................................................................. 6, 8, 12, 14

Dalton v. Southwest Marine,

120 F.3d 1249 (Fed. Cir. 1997) ................................................................................. 8

Harris v. Hegmann,

198 F.3d 153 (5th Cir. 1999) .................................................................................. 12

Johnson v. Rivera,

272 F.3d 519 (7th Cir. 2001) .................................................................................. 11

Martinez v. United States,

333 F.3d 1295 (Fed. Cir. 2003) ................................................................................. 6

Ortiz v. Sec’y of Def.,

41 F.3d 738 (D.C. Cir. 1994) .................................................................................... 6

Porter v. Nussle,

534 U.S. 516 (2002) ................................................................................................ 10

Reed-Bey v. Pramstaller,

603 F.3d 322 (6th Cir. 2010) .................................................................................. 13

Reyes v. Smith,

810 F.3d 654 (9th Cir. 2016) .................................................................................. 13

Ridgewood Bd. of Educ. v. N.E. for M.E.,

172 F.3d 238 (3d Cir. 1999) ...................................................................................... 6

iv

Ross v. Blake,

136 S. Ct. 1850 (2016) ........................................................................................ 3, 10

Sherar v. Harless,

561 F.2d 791 (9th Cir. 1977) .................................................................................... 7

Spannaus v. U.S. Dep’t of Justice,

824 F.2d 52 (D.C. Cir. 1987) ............................................................................ 5, 6, 8

Trafalgar Capital Assocs., Inc. v. Cuomo,

159 F.3d 21 (1st Cir. 1998) ....................................................................................... 6

United States Dep’t of Labor v. Old Ben Coal Co.,

676 F.2d 259 (7th Cir. 1982) .................................................................................... 6

United States v. Meyer,

808 F.2d 912 (1st Cir. 1987) ..................................................................................... 6

United States v. Odum,

878 F.3d 508 (6th Cir. 2017) .................................................................................... 1

United States v. Suntip Co.,

82 F.3d 1468 (9th Cir. 1996) .................................................................................... 7

Wallace v. Kato,

549 U.S. 384 (2007) ............................................................................ 5, 8, 10, 12, 14

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................................................................ 11, 12

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 1

42 U.S.C. § 1983 ............................................................................................... 3, 4, 9, 12

42 U.S.C. § 1997e(a)...................................................................................... i, 1, 3, 8, 15

Other Authorities

Administrative

Office

of

the

United

States

Courts,

Federal Judicial Caseload Statistics 2017, http://www.uscourts.gov/

sites/default/files/data_tables/fjcs_c2_0331.2017.pdf ............................................ 14

v

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Angel Soto, respectfully petitions for a writ of certiorari to review

the opinion of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The Ninth Circuit Court of Appeals’ opinion affirming the district court’s

entry of summary judgment against Soto’s civil rights action was issued on

February 9, 2018, in Case Number 16-15497 and is published at Soto v. Sweetman,

882 F.3d 865 (9th Cir. 2018). Pet. App. 1a-27a. The Ninth Circuit’s order denying

Soto’s petition for rehearing and rehearing en banc was issued on May 4, 2018. Pet.

App. 35a. The district court’s judgment was entered on February 25, 2016, in Case

Number 2:14-cv-01323. Pet. App. 28a-34a.

JURISDICTION

The Ninth Circuit Court of Appeals’ decision and opinion was entered on

February 9, 2018.

The Ninth Circuit denied a timely petition for rehearing on

May 4, 2018. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

42 U.S.C. § 1997e(a) provides,

No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

STATEMENT OF THE CASE

1. Angel Soto, a prisoner in the custody of ADOC, was beaten and sexually

assaulted by several corrections officers on April 17, 2010. Immediately after the

1

incident, Soto began grieving the incident through the first steps of ADOC’s

grievance process. Because he alleged a sexual assault, Soto was examined by the

institution’s Special Services Unit (“SSU”) soon after the grievance process had been

initiated. At that point, Soto “was told by SSU that CIU [the Criminal

Investigations Unit] will be notified and once [the] CIU investigation was done he

could start his grievance process.” Soto was informed that he would “be seen by CIU

but it would take a while.” Pet. App. 13a, 16a-17a.

Consistent with the instructions that he had received, Soto waited for CIU to

complete its investigation and for a response to the initial step of his grievance.

Unbeknownst to Soto, however, CIU did not begin investigating Soto’s allegations.

Thus, Soto was in limbo: as far as he had been told, he could not complete his

grievance process until CIU had finished investigating his complaint, but CIU was

not processing the investigation. See Pet App. 6a-7a.

Soto continued to ask about the status of the investigation, but his requests

for information were fruitless. Finally, in late 2013 or early 2014, Soto told his story

to an Officer Smith, who looked into the matter on Soto’s behalf and escalated it to

one of the deputy wardens. Ultimately, in January 2014, CIU finally began

investigating Soto’s allegations—nearly 3 years after the incident had occurred. See

Pet. App. 7a.

On April 4, 2014, CIU concluded its criminal investigation into Soto’s

allegations and issued a formal decision letter. After the CIU completed its

2

investigation in April 2014, Soto finished grieving his complaint through ADOC’s

grievance procedure.

Obviously aware that CIU’s investigation had just been completed, ADOC did

not deny Soto’s grievance as untimely. Instead, ADOC resolved Soto’s grievance on

the merits. The final denial of his grievance occurred on May 2, 2014. See Pet. App.

at 7a & n.1.

2. Proceeding pro se, Soto filed this 42 U.S.C. § 1983 lawsuit in the district

court only a month later: on June 13, 2014. See Pet. App. 6a. The ADOC defendants

conceded both in the district court and in the Ninth Circuit that Soto successfully

exhausted his administrative remedies on the merits in June 2014. See Pet. App. at

7a n.1. Nevertheless, the district court ruled that the pertinent two-year statute of

limitations had already expired on Soto’s claims at some point in 2012—almost 2

years before he was allowed to file them in federal court under the PLRA’s

mandatory exhaustion provision, 42 U.S.C. § 1997e(a). See Pet. App. 32a-33a.

3. Undersigned counsel was appointed for Soto on appeal. On appeal, Soto

argued that the statute of limitations cannot possibly have expired in 2012, given

that § 1997e(a) precluded him from filing his lawsuit until his administrative

remedies were exhausted two years later, in 2014. Soto also asserted that, in the

alternative, he was entitled to equitable tolling due to the ADOC officers’

misrepresentations that Soto could not proceed with the ordinary grievance

procedure until after the CIU investigation was completed. See Ross v. Blake, 136 S.

Ct. 1850, 1860 & n.3 (2016).

3

4. The majority of the Ninth Circuit panel rejected both of Soto’s arguments.

First, the majority rejected Soto’s contention that a claim governed by the PLRA

does not accrue until the plaintiff can file it in court, reasoning that the time-lag

occasioned by such a rule would cause evidentiary difficulty: “[M]emories would

dim, witnesses would be difficult to find, and evidence would grow stale or

disappear.” Pet. App. 11a. Instead, the panel majority held that a PLRA litigant

may be entirely precluded from ever filing a civil-rights claim under 42 U.S.C. §

1983 if the limitations period is shorter than the length of time that it took the

plaintiff to exhaust mandatory remedies. According to the Ninth Circuit,

“exhaustion can take longer than the limitations period, as it did here.” Pet. App.

10a. In such a scenario, the plaintiff never has the statutory right to file his § 1983

claims, because they are always prohibited by statute—first by the PLRA’s

mandatory exhaustion provision, and then by the statute of limitations.

Ultimately, the Ninth Circuit held that Soto’s lawsuit was untimely because

Soto had not filed it in 2012—despite the fact that the PLRA explicitly prohibited

him from filing suit until he exhausted his administrative remedies two years later,

in 2014. See Pet. App. 13a, 20a. The panel majority separately ruled that Soto was

not entitled to equitable tolling, either, due to the fact that his explanation of the

officers’ misrepresentations was contained in the body of his summary-judgment

brief, instead of in a separate sworn affidavit. See Pet. App. 13a-20a. Judge Smith

dissented from the majority’s decision to affirm. See Pet. App. 21a-27a.

4

Soto filed a timely petition for rehearing en banc. The Ninth Circuit ordered

ADOC to file a response to Soto’s petition, but the court ultimately denied the

petition. Judge Smith again dissented. See Pet. App. 35a.

Soto timely files this petition for writ of certiorari.

REASONS FOR GRANTING THE PETITION

I.

The Ninth Circuit’s holding conflicts with the First, Third, Seventh,

District of Columbia, and Federal Circuits, which have held that, if

administrative exhaustion is mandatory, then the plaintiff’s claim

does not accrue until completion of mandatory exhaustion.

The Ninth Circuit created a split over whether a plaintiff’s claim accrues

before or after exhaustion of administrative remedies where exhaustion is

mandatory rather than merely permissive.

The universally accepted rule is that, where exhaustion is mandatory instead

of permissive, the plaintiff’s claim does not accrue and the limitations period does

not begin to run until the mandatory prerequisite to suit is satisfied—that is, until

the plaintiff is permitted to file his claim in court. This rule has been described as

“virtually axiomatic.” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 57 n.3 (D.C.

Cir. 1987). That is because a claim accrues only when “the plaintiff has a complete

and present cause of action, that is, when the plaintiff can file suit and obtain

relief.”

Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis added) (internal

citations and quotation marks omitted). “Tautologically, a suit cannot be

maintained in court—and a cause of action does not ‘first accrue’—until a party has

exhausted all administrative remedies whose exhaustion is a prerequisite to suit.”

Spannaus, 824 F.2d at 56-57.

5

“Spannaus’s logic is unassailable.” Ortiz v. Sec’y of Def., 41 F.3d 738, 743

(D.C. Cir. 1994). Until the Ninth Circuit’s decision in Soto’s case, “no court has ever

held that, in a case where an antecedent administrative judgment is a statutory

prerequisite to the maintenance of a civil enforcement action, the limitations period

on a recovery suit runs from the date of the underlying violation as opposed to the

date on which the [administrative remedies were concluded].” United States v.

Meyer, 808 F.2d 912, 916 (1st Cir. 1987).

This Court has likewise rejected the view that a claim can accrue before a

plaintiff can complete an exhaustion process mandated by statute. See Crown Coat

Front Co. v. United States, 386 U.S. 503, 511-15 (1967). The First, Third, Seventh,

and Federal Circuits have similarly held that, if administrative exhaustion is

mandatory, then the plaintiff’s claim does not accrue until completion of mandatory

exhaustion. See, e.g., Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d 21, 36 (1st

Cir. 1998) (if administrative remedies are mandatory, “the cause of action does not

accrue until the completion of the required administrative proceedings”); Martinez

v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003) (same); Ridgewood Bd. of

Educ. v. N.E. for M.E., 172 F.3d 238, 251 (3d Cir. 1999) (same); United States Dep’t

of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir. 1982) (same).

In fact, even the Ninth Circuit has lined up with the approach of this Court

and every other circuit in every context other than the PLRA in which

administrative exhaustion is mandated by statute. Every time that the issue has

arisen, the Ninth Circuit ruled that the plaintiff’s claim does not accrue (and the

6

limitations period does not begin running) until after mandatory exhaustion is

completed. See, e.g., United States v. Suntip Co., 82 F.3d 1468, 1476 (9th Cir. 1996)

(claim under Contract Disputes Act); Donnelly v. United States, 850 F.2d 1313, 1319

(9th Cir. 1988) (quiet-title action against the government); Sherar v. Harless, 561

F.2d 791, 794 (9th Cir. 1977) (federal employee’s wrongful dismissal claim). Thus,

the Ninth Circuit’s decision in this case carves out a new, special rule that uniquely

burdens only prisoner civil rights suits that are governed by the PLRA.

To Soto’s knowledge, no other court has ever faulted a plaintiff for failing to

file a lawsuit while he was prohibited by statute from doing so. The Ninth Circuit’s

decision rejected the “tautological,” “unassailable,” and “virtually axiomatic” rule

that has been universally employed not only by this Court but also by every other

court in every other case in which a plaintiff’s claim is subject to mandatory

exhaustion. The Ninth Circuit’s decision creates a stark split on the issue of

whether a claim that is subject to mandatory exhaustion of administrative remedies

accrues only after mandatory exhaustion has been completed.

II.

The Ninth Circuit’s analysis is demonstrably incorrect.

The Ninth Circuit’s approach is not only unprecedented. It is also almost

certainly incorrect. Under the Ninth Circuit’s approach, the limitations period

expired on Soto’s claims before he ever had the right to file his claims in court. It

cannot be true that Soto was required to file his lawsuit during the time that he was

specifically prohibited by statute from doing so.

1. The Ninth Circuit’s holding cannot be squared with this Court’s repeated

explanation that a claim accrues only when “the plaintiff has a complete and

7

present cause of action, that is, when the plaintiff can file suit and obtain relief.”

Wallace, 549 U.S. at 388 (emphasis added) (internal citations and quotation marks

omitted). See also Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar

Corp., 522 U.S. 192, 201 (1997) (“[A] cause of action does not become ‘complete and

present’ for limitations purposes until the plaintiff can file suit and obtain relief.”).

Obviously, a prisoner who is prohibited under 42 U.S.C. § 1997e(a) from filing a

claim until exhaustion is completed cannot “file suit and obtain relief” until that

mandatory prerequisite is satisfied. Cf. Spannaus, 824 F.2d at 56-57. That is why,

as Crown Coat explained, the statute of limitations does not begin running until

after completion of mandatory exhaustion. 386 U.S. at 511-15.

The practical reasons for this rule are obvious. If the required administrative

hurdle is mandatory, not merely permissive, then the limitations period may expire

before the required administrative proceedings have drawn to a close. See id. at 514

(reasoning that this possibility was “not an appealing result”); Dalton v. Southwest

Marine, 120 F.3d 1249, 1252 (Fed. Cir. 1997). Holding that the limitations period

begins running before the plaintiff can file suit would penalize the plaintiff for

failing to file a lawsuit during a period of time when he has no ability to do so.

Prisoner civil rights claims fall squarely within this rationale. The PLRA is

clear that “no action shall be brought” until after administrative remedies have

been exhausted. 42 U.S.C. § 1997e(a). A prisoner like Soto does not have the ability

to “file suit and obtain relief” until after administrative exhaustion has been

completed. Wallace, 549 U.S. at 388. The standard rules of claim accrual dictate

8

that a claim governed by the PLRA does not accrue until after mandatory

exhaustion.

2. The Ninth Circuit’s approach precludes a plaintiff like Soto from ever filing

a civil rights suit where the administrative process takes longer than the pertinent

statute of limitations. See Pet. App. 10a. If the Ninth Circuit’s approach is correct,

then Soto’s lawsuit would never have been timely, no matter when it was filed. If

filed before the completion of administrative exhaustion, it would have been too

early, due to the PLRA’s mandatory exhaustion requirement. If filed after

administrative exhaustion, it would be too late, due to the statute of limitations. As

far as Soto’s claims are concerned, then, 42 U.S.C. § 1983 is an empty promise,

because he has at all times been prohibited by statute from ever asserting his rights

under it.

Yet the Ninth Circuit offers no satisfactory rationale for penalizing a plaintiff

for failing to file his lawsuit while he was prohibited by statute from filing it. Nor

did the Ninth Circuit identify any valid reason to treat the PLRA’s mandatory

exhaustion requirement differently than any other mandatory exhaustion

requirement.

Instead, the Ninth Circuit opined that prisoner civil rights claims require a

departure from the ordinary rule because the facts relevant to a prisoner civil rights

case may “take place well before the inmate exhausts his administrative remedies

and the district court may go well beyond the administrative record in deciding the

claim.” Pet. App. 12a. But this analysis fails to convince, for several reasons.

9

First, it strays far afield from the rules governing claim accrual. Whether the

trial court needs to review an administrative record or a summary-judgment record

is not—and has never been—relevant to when a cause of action accrues. Wallace,

549 U.S. at 388.

Second, every mandatory-exhaustion regime necessarily delays the point at

which a complaint must be filed. That delay therefore does not distinguish a

prisoner’s claim from anyone else’s. In fact, giving prison officials the first chance to

adjudicate the issue (which necessarily introduces some delay) is the whole point of

the PLRA’s exhaustion requirement. Porter v. Nussle, 534 U.S. 516, 524-25 (2002).

Using that delay as the basis for preventing a prisoner from subsequently filing his

claim in court impermissibly turns the exhaustion requirement into a “dead end.”

Ross, 136 S. Ct. at 1859.

And third, the Ninth Circuit’s concerns about a stale record are inapplicable

where the administrative process is resolved on the merits. In Soto’s case, for

example, ADOC resolved Soto’s grievance on the merits only a month before he filed

his federal lawsuit. See Pet. App. 7a. If a PLRA litigant is able to administratively

exhaust his claims on the merits, then the prison administrative system has

recognized that the relevant facts are not too stale to warrant merits adjudication.

The Ninth Circuit’s hypotheses to the contrary cannot withstand examination.

3. Nor is it enough for the Ninth Circuit to depend upon equitable tolling to

address the tension between statutes of limitations and the PLRA’s mandatory

exhaustion requirement. First, to Soto’s knowledge, no court has subjected plaintiffs

10

to an equitable-tolling approach in any other mandatory-exhaustion context.

Instead, the courts have simply applied the ordinary rules of claim accrual. The

Ninth Circuit fails to explain why prisoner-plaintiffs are differently situated in this

respect than any other type of plaintiffs, such that a different and more stringent

accrual standard should apply. And second, as Soto’s case makes clear, the

equitable-tolling approach is under-inclusive. In circumstances like Soto’s, it causes

the limitations period to expire before the prisoner ever had the right to bring the

claim in the first place—an absurdity.

In truth, the equitable-tolling approach was adopted by the circuits in the

PLRA context in an attempt to eliminate the possibility that a PLRA plaintiff would

be impermissibly caught between the horns of mandatory exhaustion and the

statute of limitations. The etiology of the equitable-tolling approach makes this

clear. Exhaustion of prisoner civil-rights claims became mandatory only when the

PLRA was enacted in 1996. See Woodford v. Ngo, 548 U.S. 81, 85 (2006). The

circuits soon recognized that mandatory exhaustion would pose a “catch-22” if the

limitations period could expire before the plaintiff was allowed to file his claim in

court. Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). The question of claim

accrual does not seem to have been raised in any of the seminal cases. Instead, most

of the circuits assumed that the claim accrued at the moment of injury and ruled

that the limitations period should be equitably tolled while a prisoner is pursuing

administrative remedies. See Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000);

11

Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999). See also Brown v. Valoff, 422

F.3d 926, 943 (9th Cir. 2005).

Thus, the equitable-tolling approach was based solely on the courts’ attempts

to guard against the very same catch-22 in which Soto finds himself in this case:

being penalized for failing to file a claim even though he was prohibited by statute

from doing so. But the equitable-tolling regime is under-inclusive, as Soto’s case

demonstrates, because it still allows for a plaintiff like Soto to be statutorily

prohibited from ever filing a § 1983 suit. By contrast, this Court’s approach in

Crown Coat would eliminate this under-inclusiveness by applying the ordinary

principles of claim accrual to PLRA lawsuits in the same way that they apply to any

other type of claim where mandatory exhaustion is required. Under Wallace and

Crown Coat, the statute of limitations does not cut off the plaintiff’s claim during

mandatory exhaustion, because the plaintiff’s claim accrues only once the plaintiff

has the right to file it—i.e., after exhaustion. Wallace, 549 U.S. at 388; see also

Crown Coat, 386 U.S. at 514.

To the extent that the Ninth Circuit believed that applying the ordinary

claim-accrual rule in the PLRA context would improperly reward non-diligent

litigants, it is mistaken. If a prisoner does not timely pursue his remedies under the

prison grievance process, then he will have failed to exhaust his mandatory

administrative remedies. Any subsequent civil-rights suit could be dismissed for

failure to exhaust. Woodford, 548 U.S. at 95. Only where prison officials have

waived adherence to their procedural rules and have decided an untimely grievance

12

on its merits will a prisoner be deemed to have properly exhausted his

administrative remedies despite an initially untimely grievance. See Reyes v. Smith,

810 F.3d 654, 658 (9th Cir. 2016). “[T]he State’s decision to review a claim on the

merits gives [the Court] a warrant to do so as well.” Reed-Bey v. Pramstaller, 603

F.3d 322, 325 (6th Cir. 2010). Because an untimely grievance would be reviewed on

the merits only if prison officials waived its untimeliness, applying the ordinary

claim-accrual rule in the PLRA context would not allow non-diligent prisoners an

improper second bite at the apple.

The Ninth Circuit’s decision singles out PLRA plaintiffs and subjects them to

a different claim-accrual rule than applies to every other litigant, including every

other litigant in every other mandatory-exhaustion context. The result of the Ninth

Circuit’s approach is that plaintiffs like Soto are penalized for not filing their

lawsuits even though they are statutorily prohibited from doing so: the time runs

out for them to file their complaint before they are permitted to file it in the first

place. That approach is almost certainly incorrect.

III.

The issues presented are important and recurring.

The

Ninth

Circuit’s

decision

has

extremely

significant

potential

consequences. According to the Administrative Office of the United States Courts,

more than 31,500 prisoner civil-rights lawsuits are filed in federal district courts

each year, comprising approximately 10.8% of all the cases that are filed annually,

13

nationwide.1 Almost 5,000 such cases are filed each year in district courts within

the Ninth Circuit alone.2

If the Ninth Circuit’s holding is left intact, its analysis may be incorporated

into each of these cases. In fact, the Ninth Circuit’s opinion has already begun being

deployed in district courts’ analyses, to the detriment of plaintiffs in PLRA cases.

See, e.g., Aplin v. Oregon Dep’t of Corr., No. 6:17-CV-01222-MO, 2018 WL 2144348,

at *3 (D. Or. May 8, 2018) (“The fact that grievance procedures remain available

does not necessarily mean that the statute of limitations has not run.”).

The Ninth Circuit’s reasoning in this case is also a rejection of this Court’s

approach in both Wallace and Crown Coat. Due to the large number of PLRAgoverned lawsuits, the Ninth Circuit’s flawed reasoning will very likely be applied

in numerous cases, allowing a substantial body of law that is contrary to both

Wallace and Crown Coat to speedily metastasize. Absent action from this Court, the

Ninth Circuit’s rationale may have implications for claims arising in other

mandatory-exhaustion contexts—a result that would erode the continued vitality of

the positions that this Court already staked out in Wallace and Crown Coat.

The significant implications of the Ninth Circuit’s decision warrant relief

from this Court.

Administrative Office of the United States Courts, Federal Judicial Caseload Statistics 2017,

“Table C-2, U.S. District Courts—Civil Cases Commenced, by Basis of Jurisdiction and Nature of

Suit, During the 12-Month Periods Ending March 31, 2016 and 2017,” available at http://www.

uscourts.gov/sites/default/files/data_tables/fjcs_c2_0331.2017.pdf (last accessed July 9, 2018).

1

Administrative Office of the United States Courts, Federal Judicial Caseload Statistics 2017,

“Table C-3, U.S. District Courts—Civil Cases Commenced, by Nature of Suit and District, During the

12-Month Period Ending March 31, 2017,” available at http://www.uscourts.gov/sites/default/files/

data_tables/fjcs_c3_0331.2017.pdf (last accessed July 9, 2018).

2

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IV.

This case is an excellent vehicle for resolving the split of authority

on this issue.

This case squarely presents the question whether a claim that is subject to

mandatory administrative exhaustion—such as a claimed governed by 42 U.S.C. §

1997e(a)—accrues before mandatory exhaustion has been completed. The answer to

that question is dispositive of this case.

This case is an ideal vehicle for this Court to resolve the split of authority on

this issue. Soto is the rare pro se prisoner litigant who has managed to preserve this

argument in a fulsome way before the court of appeals. There is no doubt that the

issue was fully preserved at each stage in the lower courts. Soto also has obtained a

fully reasoned opinion from the Ninth Circuit addressing at length the merits of the

issue. Finally, the Ninth Circuit removed the question of equitable tolling from this

case, meaning that the claim-accrual issue is squarely before this Court and is

dispositive of this case. This petition is an excellent vehicle for resolving it.

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

Dated: August 1, 2018

/s/ Stephen J. van Stempvoort

Stephen J. van Stempvoort

Counsel of Record

MILLER JOHNSON

45 Ottawa Avenue, SW – Suite 1100

Grand Rapids, MI 49503

vanstempvoorts@millerjohnson.com

(616) 831-1765

Counsel for Petitioner

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