Amicus Curiae Brief — Thomas Perttu, Petitioner v. Kyle Brandon Richards

No. 23-1324

In the Supreme Court of the United States

_______________________________________________________________________________________________________________

THOMAS PERTTU,

v.

KYLE BRANDON RICHARDS,

Petitioner,

Respondent.

_______________________________________________________________________________________________________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________________________________________________________________________________________________________

BRIEF OF AMICI CURIAE THE STATE OF

OHIO, 23 OTHER STATES, AND THE

DISTRICT OF COLUMBIA IN SUPPORT OF

THE PETITIONER

_______________________________________________________________________________________________________________

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

*Counsel of Record

Ohio Solicitor General

ZACHERY P. KELLER

Deputy Solicitor General

DANIEL MCKITRICK

BRANDON KENNEDY

Assistant Attorneys General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

614.466.8980

thomas.gaiser@ohioago.gov

Counsel for Amicus Curiae State of Ohio

(additional counsel listed at the end of the brief)

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................ii

STATEMENT OF AMICI INTEREST ....................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 5

I.

II.

Congress enacted the Prison Litigation

Reform Act to make prisoner litigation

more efficient. ................................................ 7

A.

Before the Prison Litigation Reform

Act,

prisoners

frequently

filed

meritless and abusive lawsuits. .............. 7

B.

The Prison Litigation Reform Act

sought to improve prisoner litigation,

in part through an exhaustion

requirement. ........................................... 10

Functional considerations weigh strongly

against extending the jury-trial right to

exhaustion.................................................... 12

A.

Prisoner lawsuits remain voluminous,

with exhaustion often in dispute. .......... 13

B.

The Sixth Circuit’s jury-trial rule will

greatly burden the States. ..................... 17

CONCLUSION.......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Allen v. Fields,

No. 7:21-cv-00207, 2024 WL 4534749

(W.D. Va. Oct. 21, 2024) ...................................... 15

Apodaca v. Unknown 1,

No. 6:23cv156, 2024 WL 1202916

(E.D. Texas Feb. 26, 2024) .................................. 15

Baltimore & Carolina Line, Inc. v.

Redman,

295 U.S. 654 (1935) ............................................... 5

Bell v. Konteh,

450 F.3d 651 (6th Cir. 2006) ............................... 20

Bond v. United States,

572 U.S. 844 (2014) ............................................. 21

Boyd v. Rechcigl,

790 F. App’x 53 (8th Cir. 2020) ........................... 14

Castro v. Smith,

No. 23-cv-1409, 2024 WL 4678937

(E.D. Wis. Nov. 5, 2024) ...................................... 14

Chatman v. Gentry,

No. 3:22-cv-02023, 2024 WL 2864368

(S.D. Ill June 6, 2024).......................................... 14

Cooper v. Pate,

378 U.S. 546 (1964) ............................................... 7

Demos v. Kincheloe,

563 F. Supp. 30 (E.D. Wash. 1982) ....................... 9

iii

Dillon v. Rogers,

596 F.3d 260 (5th Cir. 2010) ............................... 15

Evans v. Chambers-Smith,

No. 1:19-cv-02870, 2023 WL 3453639

(N.D. Ohio May 13, 2023)........................ 15, 16, 17

Evans v. Chambers-Smith,

No. 1:19-cv-2870 (N.D. Ohio) .............................. 17

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................... 1

Gabel v. Lynaugh,

835 F.2d 124 (5th Cir. 1988) ......................... 3, 8, 9

Garcia v. Heath,

74 F.4th 44 (2d Cir. 2023) ................................... 14

Garrett v. Wexford Health,

938 F.3d 69 (3d Cir. 2019) ................................... 20

Gibson v. Yaw,

No. 1:22-cv-773, 2024 WL 3226120

(S.D. Ohio June 27, 2024) ................................... 16

Green v. Camper,

477 F. Supp. 758 (W.D. Mo. 1979) ........................ 9

Greene v. Ballard,

No. 2:17-cv-02897, 2020 WL 3055459

(S.D. W.Va. Feb. 25, 2020) .................................. 17

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 21

iv

Hargrove v. Holley,

No. 1:17-cv-560, 2020 WL 5651476

(S.D. Sept. 22, 2020) ............................................ 16

Hubbard v. Mbride,

471 F. App’x 625 (9th Cir. 2012) ......................... 14

Huggins v. Williams,

No. 1:20-cv-01273, 2023 WL 4628370

(N.D. Ohio July 19, 2023) .............................. 15, 16

Irizarry v. Ohio Dep’t of Rehab. & Corr.,

No. 4:23CV1376, 2023 WL 8543886

(N.D. Ohio Dec. 11, 2023) .................................... 16

Jackson v. Beard,

704 F. App’x 194 (3d Cir. 2017)........................... 14

Johnson v. Barney,

No. 1:21-cv-141, 2024 WL 755441

(S.D. Ohio Feb. 23, 2024) .................................... 16

Johnson v. Englander,

No. 1:20-cv-398, 2024 WL 4217423

(D.N.H. Aug. 16, 2024) ........................................ 14

Johnson v. Mason,

No. 9:22-CV-590, 2024 WL 396679

(N.D.N.Y. Feb. 2, 2024) ....................................... 15

Jones v. Bock,

549 U.S. 199 (2007) ................1, 3, 4, 10, 12, 13, 14

Kirkland v. ODRC,

No. 4:23-cv-00305, 2024 WL 3345439

(N.D. Ohio July 9, 2024) ...................................... 15

v

Lanaghan v. Koch,

902 F.3d 683 (7th Cir. 2018) ............................... 14

Lee v. Willey,

789 F.3d 673 (6th Cir. 2015) ............................... 14

Liberty Oil Co. v. Condon Nat’l Bank,

260 U.S. 235 (1922) ............................................. 12

Markman v. Westview Instruments,

517 U.S. 370 (1996) ....................2, 3, 4, 5, 6, 12, 13

McKinney v. Paddock,

No. 2:20-cv-1450, 2024 WL 383412

(S.D. Ohio Feb. 1, 2024) ...................................... 16

MCP No. 165 v. United States DOL,

20 F.4th 264 (6th Cir. 2021) ................................ 21

Minerly v. Nalley,

No. 3:19-CV-0467, 2021 WL 4924739

(7th Cir. Oct. 21, 2021) ........................................ 16

Monterey v. Del Monte Dunes,

526 U.S. 687 (1999) ....................................... 3, 5, 6

In re Oliver,

682 F.2d 443 (3d Cir. 1982) ................................... 9

Pavey v. Conley,

544 F.3d 739 (7th Cir. 2008) ................... 12, 19, 20

Phillips v. Walker,

443 F. App’x 213 (7th Cir. 2011) ......................... 16

Porter v. Nussle,

534 U.S. 516 (2002) ............................... 1, 3, 10, 12

vi

Preiser v. Rodriguez,

411 U.S. 475 (1973) ............................................. 21

Ramos v. Lamm,

639 F.2d 559 (10th Cir. 1980) ............................... 8

Rodgers v. Driesbach,

No. 2:20-cv-2848, 2021 WL 1102466

(S.D. Ohio Mar. 23, 2021).............................. 15, 16

Ross v. Blake,

578 U.S. 632 (2016) ................................... 4, 13, 15

Santamaria v. Wexford Health Sources,

Inc.,

No. 3:21-cv-01539, 2024 WL 2801520

(S.D. Ill. May 31, 2024) ....................................... 15

Small v. Camden Cnty.,

728 F.3d 265 (3d Cir. 2013) ................................. 14

Smallwood v. Williams,

59 F.4th 306 (7th Cir. 2023) ................................ 17

Wexford Health v. Garrett,

140 S. Ct. 1611 (2020) ......................................... 14

Wilson v. Delano State Prison,

No. 1:21-cv-01651 (PC), 2024 WL

1312342 (E.D. Cal. Mar. 27, 2024)...................... 15

Wilwording v. Swenson,

404 U.S. 249 (1971) ............................................... 7

Wine v. Black,

No. 3:18-cv-704, 2024 WL 2113734

(D. Conn. May 11, 2024) ...................................... 15

vii

Woodford v. Ngo,

548 U.S. 81 (2006) ..................1, 3, 4, 11, 13, 20, 21

Statutes and Constitutional Provisions

U.S. Const. amend. VII ........................................... 2, 5

42 U.S.C. §1983 ............................................. 1, 5, 7, 11

42 U.S.C. §1997 ................................1, 3, 11, 12, 15, 19

Other Authorities

141 Cong. Rec. 26,548 (Sept. 27, 1995) ................ 9, 10

Eugene J. Kuzinski, Note: The End of

the Prison Law Firm?: Frivolous

Inmate Litigation, Judicial

Oversight, and the Prison Litigation

Reform Act of 1995, 29 Rutgers L. J.

361 (1998) ............................................ 9, 10, 13, 14

Margo Schlanger, Prison and Jail Civil

Rights/Conditions Cases:

Longitudinal Statistics, 1970-2021

(updated April 2022) ............................................. 8

Ohio Admin. Code §5120-9-31 .................................. 20

Roger A. Hanson & Henry W.K. Daley,

Challenging the Conditions of

Prisons and Jails: A Report on

Section 1983 Litigation, U.S. Dep't of

Justice (1994) ..................................................... 7, 8

1

STATEMENT OF AMICI INTEREST

When state prisoners allege that prison officials

have violated their constitutional rights, competing

concerns arise. On the one hand, prisoners do not lose

“the protection of the Constitution altogether.” Ford

v. Wainwright, 477 U.S. 399, 411 (1986) (plurality

op.). Any violation of the Constitution’s protections is

undoubtedly serious. On the other hand, prisoners

can be litigious, and many of the lawsuits they file

lack merit entirely. See Porter v. Nussle, 534 U.S. 516,

522 (2002). As this Court has observed, “when it

comes to prisoner suits,” the challenge is separating

“not so much wheat from chaff as needles from haystacks.” Jones v. Bock, 549 U.S. 199, 224 (2007).

Congress took on that challenge through the

Prison Litigation Reform Act of 1995. The Act is designed “to reduce the quantity and improve the quality of prisoner suits.” Porter, 534 U.S. at 524. It features an exhaustion requirement, which says that

“[n]o action shall be brought with respect to prison

conditions” under 42 U.S.C. §1983 “until” a prisoner

exhausts all “administrative remedies as are available.” 42 U.S.C. §1997e(a). By requiring exhaustion,

the Act reduces “unwarranted federal-court interference with the administration of prisons”; it affords

prison officials the “time and opportunity to address

complaints internally before allowing the initiation of

a federal case.” Woodford v. Ngo, 548 U.S. 81, 93

(2006) (quotation omitted). In fewer words, “exhaustion promotes efficiency.” Id.

But the decision below, if left in place, will promote

extraordinary inefficiency. According to the Sixth Circuit, the Seventh Amendment requires a jury trial on

exhaustion if there is overlap between disputed facts

2

relevant to exhaustion and disputed facts relevant to

the merits. Pet.App.16a–17a. Tracking the Sixth Circuit’s logic, such an overlap will exist anytime prisoners say that officials disregarded their grievances in

retaliation for their complaints. See Pet.App.7a–12a.

Thus, any prisoner willing to declare as much can

force a jury trial. As a result, busy prison officials,

along with ordinary people in jury pools, will need to

make room on their calendars for a deluge of (mostly

meritless) jury trials.

Of course, if the Seventh Amendment truly required such a result, then that would be the price of

admission to the Union. But the Seventh Amendment

requires no such thing. As the state petitioner explains, history teaches that exhaustion is not the type

of defense that a jury would have decided at the founding. Pet.Br.22–34. Beyond history, this Court also

looks to functional considerations when assessing the

Seventh Amendment’s boundaries. E.g., Markman v.

Westview Instruments, 517 U.S. 370, 388 (1996). Such

considerations should remove any doubt as to the correct outcome here. Indeed, it is hard to think of a less

functional approach than having juries decide exhaustion. Congress, after all, meant for exhaustion to

serve as a threshold defense—a way for States to

avoid unwarranted federal litigation over prison administration.

SUMMARY OF ARGUMENT

The Seventh Amendment “preserve[s]” the right to

a jury trial as it existed at “the common law.” U.S.

Const. amend. VII. When assessing whether a particular issue falls within the scope of this jury-trial right,

the Court first examines history. But when history

supplies no clear answer, “functional considerations

3

also play their part.” Markman, 517 U.S. at 388; accord Monterey v. Del Monte Dunes, 526 U.S. 687, 718

(1999). Here, to the extent functional considerations

come into play, they weigh heavily against extending

the jury-trial right to disputes about a prisoner’s exhaustion of administrative remedies.

I. In the 1980s and 1990s, federal courts faced tens

of thousands of prisoner lawsuits each year. The number peaked in 1995, with prisoners filing almost

40,000 civil-rights lawsuits that year. Below 8. Most

of these prisoner lawsuits were meritless, and many

were frivolous. See Gabel v. Lynaugh, 835 F.2d 124,

125 n.1 (5th Cir. 1988) (per curiam).

To induce “fewer and better prisoner suits,” Jones,

549 U.S. at 203, Congress enacted the Prison Litigation Reform Act of 1995. An exhaustion provision

served as a “centerpiece” of the Act. Woodford, 548

U.S. at 84. The provision says that “[n]o” civil-rights

lawsuit about prison conditions “shall be brought” in

federal court “until” the prisoner exhausts “such administrative remedies as are available.” 42 U.S.C.

§1997e(a). By its plain terms, the provision supplies

a threshold defense that States may invoke at “the initiation of a federal case.” See Porter, 534 U.S. at 525.

This exhaustion requirement promotes comity, as it

shows due respect for the State’s “procedural rules.”

Woodford, 548 U.S. at 90; see also id. at 95. It also

“promotes efficiency,” as it gives States a chance to resolve or narrow prison disputes before they reach federal court. Id. at 89.

II. Extending the Seventh Amendment’s jury-trial

right to exhaustion disputes would counteract the efficiency Congress was trying to achieve. Judges are

far better positioned than juries to decide this

4

threshold defense. See Markman, 517 U.S. at 388–89.

Although fact issues regarding exhaustion may sometimes arise, exhaustion remains a largely legal inquiry about a prisoner’s compliance with state procedural rules. See Woodford, 548 U.S. at 90–91.

If the Court holds otherwise, it should expect federal courts to have their hands full overseeing jury trials about exhaustion. Even with Congress’s reforms,

prisoner litigation crowds the dockets of federal courts

throughout this country. See Jones, 549 U.S. at 203.

And exhaustion is a disputed issue in many, if not

most, cases about prison conditions. Below 14–15 (collecting examples). Many prisoners already routinely

try to invoke existing exceptions from the exhaustion

requirement. See Ross v. Blake, 578 U.S. 632, 643–44

(2016). An opportunity to litigate exhaustion before a

jury would invite more protracted litigation across the

prison docket without assisting the courts in efficiently adjudicating the meritorious cases in that

docket.

5

ARGUMENT

The Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re-examined

in any Court of the United States, than according to the rules of the common law.

U.S. Const. amend. VII. In discerning the scope of the

jury-trial right that the Seventh Amendment “preserve[s],” this Court grapples with both historical and

functional considerations.

With regard to history, the Seventh Amendment

preserves the jury-trial right as it “existed under the

English common law when the Amendment was

adopted.” Markman, 517 U.S. at 376 (quoting Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654,

657 (1935)). Under this historical approach, the Seventh Amendment applies to statutory causes of actions—including §1983 actions—that are “analogous

to common-law causes of action” that would have traditionally been decided in a court of law rather than a

court of equity. Del Monte Dunes, 526 U.S. at 709

(quotation omitted). But it does not follow that a jury

must “decide every issue” in §1983 cases. Id. at 731

(Scalia, J., concurring in part and concurring in judgment). Rather, the Seventh Amendment analysis centers on whether a judge or a jury should determine

“the particular issues” at stake. Id. at 718 (majority

op.). To resolve such issue-specific questions, this

Court first looks to “whether the particular issues, or

analogous ones” were traditionally “decided by judge

or by jury.” Id.

6

But practical considerations “also play their part.”

Markman, 517 U.S. at 388. The simple reason is that

history sometimes yields “no clear answer.” Id. at 377.

In those cases, this Court must “make a judgment

about the scope of the Seventh Amendment guarantee

without the benefit of any foolproof test.” Id. Thus, in

discerning the scope of the Seventh Amendment, this

Court sometimes contemplates “functional considerations” as to the “sound administration of justice.” Id.

at 388 (quotation omitted); accord Monte Dunes, 526

U.S. at 718. For example, in Markman, the Court reasoned that “judges, not juries, are the better suited to

find the acquired meaning of patent terms.” Markman, 517 U.S. at 388. That remained true even

though some patent cases require credibility determinations as to underlying issues of fact. Id. at 389–90.

Applying the above methodology here, the key

question is whether the Seventh Amendment’s jurytrial right extends to the particular issue of exhaustion. The answer is no, it does not. The state petitioner has aptly performed the historical legwork. As

his opening brief explains, there is no perfect antecedent for exhaustion under the Prison Litigation Reform

Act. Pet.Br.23. But equitable defenses serve as the

best historical analogue to exhaustion. Pet.Br.23–33.

And equitable defenses were traditionally decided by

judges, not juries. Pet.Br.33–34.

With that history already laid out, the amici States

focus on functional considerations. Those considerations weigh heavily against extending the jury-trial

right to exhaustion. The amici States explain why in

two steps. First, they review both the history and text

of the Prison Litigation Reform Act. That review reinforces that a main goal of the Act—and its exhaustion requirement—was to make prisoner litigation

7

more efficient for both the States and federal courts.

Second, the amici States examine today’s circumstances. That examination shows why, if this Court

clears the path for jury trials on exhaustion, it should

expect inefficient and abusive litigation, with a corresponding waste of state and judicial resources.

I.

Congress enacted the Prison Litigation

Reform Act to make prisoner litigation

more efficient.

To understand why Congress decided to modify the

area of prisoner litigation, it helps to recall what was

happening before the Prison Litigation Reform Act’s

passage. The amici States start there and then turn

to the statutory text.

A.

Before the Prison Litigation Reform

Act, prisoners frequently filed

meritless and abusive lawsuits.

Begin with some legal developments from the last

century. In the 1960s, this Court established that

state prisoners may bring §1983 actions challenging

the conditions of their confinement. See Cooper v.

Pate, 378 U.S. 546 (1964) (per curiam). During the

next decade, the Court clarified that state prisoners

could file §1983 lawsuits without exhausting their administrative remedies. See Wilwording v. Swenson,

404 U.S. 249, 251–52 (1971) (per curiam).

Prisoners took full advantage of the unchecked

ability to file federal lawsuits. Indeed, the number of

prisoner lawsuits steadily increased. In 1966, there

were only a few hundred lawsuits across the country

in which prisoners challenged their conditions of confinement. Roger A. Hanson & Henry W.K. Daley,

Challenging the Conditions of Prisons and Jails: A

8

Report on Section 1983 Litigation 1–2¸U.S. Dep’t of

Justice

(1994),

https://tinyurl.com/mudwu2bj.

Whereas, in 1970, there were over 2,000 prisoner civilrights lawsuits. Margo Schlanger, Prison and Jail

Civil Rights/Conditions Cases: Longitudinal Statistics, 1970–2021 at 2 (updated April 2022) https://tinyurl.com/5n7kw6ue. Over the course of the 1980s,

the annual numbers climbed to over 20,000 cases per

year. Id. Finally, the annual number of prisoner civilrights lawsuits peaked at over 39,000 in 1995. Id.

These prisoner lawsuits were a mixed bag. To be

sure, a small number shed light on unacceptable

prison conditions. E.g., Ramos v. Lamm, 639 F.2d 559

(10th Cir. 1980). But, on the whole, the quality of prisoner lawsuits was poor. Consider the study the National Center for State Courts conducted in 1992,

which reviewed thousands of prisoner lawsuits across

nine states. See Hanson, Challenging the Conditions

of Prisons at 6–10. According to the study, in the

“overwhelming majority” of reviewed cases (94%),

prisoners’ claims completely failed. Id. at 36; see also

id. at 19. The stated reasons for those losses varied:

courts often dismissed cases because prisoners would

not follow basic procedural rules; other times what the

prisoners complained of did not demonstrate any constitutional violation. See id. at 20. Beyond those reasons, a large percentage of the studied prisoner lawsuits (about 20%) were simply frivolous on their face.

See id.

Other accounts painted a similar picture. For example, a few years before the just-discussed study, the

Fifth Circuit commented on the voluminous filings of

state prisoners. Gabel, 835 F.2d at 125 n.1. The court

noted that over a four-month stretch “one appeal in

every six” stemmed from “a state prisoner’s pro se civil

9

rights case.” Id. By the court’s count, a “high percentage of these” appeals were “meritless” and many were

“transparently frivolous.” Id. It thus appeared to the

Fifth Circuit that litigation had “become a recreational activity for state prisoners.” Id.

During this pre-reform era, some prisoners gained

judicial notoriety for the amazing numbers of lawsuits

they filed. See, e.g., In re Oliver, 682 F.2d 443, 444 (3d

Cir. 1982); Demos v. Kincheloe, 563 F. Supp. 30, 31

(E.D. Wash. 1982). Take, for example, Clovis Carl

Green, Jr. See Green v. Arnold, 512 F. Supp. 650, 651

(W.D. Tex. 1981). Green filed more than 500 cases on

his own behalf, ranging from the “frivolous” to the “irresponsible” to the “malicious” to the “vile and scandalous.” Id. To “proceed as a pauper”—and thus facilitate his abusive litigation—Green “attempted to

deceive courts about his finances.” Id. Green also

filed cases on the behalf of others. Accounting for that

litigation, Green’s caseload likely made it into the

700s. Eugene J. Kuzinski, Note: The End of the Prison

Law Firm?: Frivolous Inmate Litigation, Judicial

Oversight, and the Prison Litigation Reform Act of

1995, 29 Rutgers L. J. 361, 367–68 & n.40 (1998) (citing Green v. Camper, 477 F. Supp. 758, 759-68 (W.D.

Mo. 1979)).

Ultimately, faced with such behavior, federal lawmakers pushed for reform. For instance, Senator

Dole—when introducing the Prison Litigation Reform

Act—described to Congress the types of lawsuits that

federal courts had been dealing with. 141 Cong. Rec.

26,548 (Sept. 27, 1995). They involved “such grievances as insufficient storage locker space, a defective

haircut by a prison barber,” and the failure to be invited to “a pizza party for a departing prison employee.” Id. Such lawsuits, Senator Dole said, “tie[d]

10

up courts,” “waste[d] legal resources,” and consumed

government “time and money better spent” elsewhere.

Id. at 26,548. At the time, the Arizona Attorney General reported that state prisoners filed “a staggering

45 percent of civil cases” in Arizona federal courts. Id.

That meant that roughly “20,000 prisoners in Arizona

filed almost as many cases as Arizona’s 3.5 million

law-abiding citizens.” Id. More broadly, the National

Association of Attorneys General estimated that prisoner civil-rights lawsuits were costing state taxpayers

more than $81 million annually. Id. at 26,553.

B.

The Prison Litigation Reform Act

sought to improve prisoner litigation,

in part through an exhaustion

requirement.

Given the above concerns, Congress decided that

the problem of vexatious and burdensome prisoner litigation warranted a solution. Notably, before the

Prison Litigation Reform Act, Congress attempted a

less-restrictive fix. In 1980, Congress enacted a “limited exhaustion requirement” that allowed courts to

stay §1983 actions while prisoners exhausted their administrative remedies. Porter, 534 U.S. at 523–24

(quotation omitted). But this requirement “was in

large part discretionary” and it was also inapplicable

to many prisoner lawsuits. Id. Unsurprisingly, therefore, the requirement did little to curb voluminous filings; the number of prisoner lawsuits instead continued to climb from 1980 until 1995. See Schlanger,

Longitudinal Statistics at 2.

With stronger medicine needed, Congress enacted

the Prison Litigation Reform Act of 1995. The Act features “a variety of reforms designed” to bring about

“fewer and better prisoner suits.” Jones, 549 U.S. at

11

203–04. As one example, the Act requires that courts

initially screen lawsuits about prison conditions to ensure that the lawsuits are not—on their face—frivolous, malicious, or meritless. 42 U.S.C. §1997e(c)(1).

More relevant here, a “centerpiece” of the Act’s reforms is an exhaustion provision. Woodford, 548 U.S.

at 84. The provision says this:

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.

§1997e(a). As this Court has recognized, this language makes proper exhaustion mandatory in prisoncondition cases. Woodford, 548 U.S. at 84–85.

This exhaustion requirement “promotes efficiency.” Id. at 89. For one thing, it narrows the universe of prisoner litigation. “In some cases, claims are

settled at the administrative level, and in others, the

proceedings before the agency convince the losing

party not to pursue the matter in federal court.” Id.

at 89. And even when exhaustion does not eliminate

a dispute, it often produces “a useful record for subsequent judicial consideration.” Id. (quotation omitted).

Exhaustion also promotes comity between States and

the federal courts. See id. at 89, 92. It does so by respecting the States’ procedural rules and by giving

state officials a chance to address complaints before

being “haled into federal court.” Id. at 89 (quotation

omitted).

Importantly, Congress framed exhaustion as a

threshold inquiry for a court to decide. Under the

12

plain text, a federal lawsuit is not supposed to even

proceed—that is, “be brought”—“until” a prisoner exhausts administrative remedies. §1997e(a). In other

words, while “failure to exhaust is an affirmative defense,” Jones, 549 U.S. at 216, it is a defense most naturally decided upon “the initiation of a federal case,”

see Porter, 534 U.S. at 525, or at least before any fullblown merits inquiry.

There is nothing unusual about this order of operations. Consider, for instance, the historic order of operations for equitable defenses. This Court once instructed that when “an equitable defense” was raised

“to a suit at law,” the “equitable issue” was to “first be

disposed of as in a court of equity; and then, if an issue

at law” remained, it was “triable to a jury.” Liberty

Oil Co. v. Condon Nat’l Bank, 260 U.S. 235, 242 (1922)

(collecting authority). That sequence preserved the

“right of trial by jury … exactly as it was at common

law.” Id. at 243. Or think of it this way. Notwithstanding the Seventh Amendment, courts often resolve “issues of judicial traffic control” before juries

“decide cases” on the merits. Pavey v. Conley, 544 F.3d

739, 741 (7th Cir. 2008) (collecting examples).

II. Functional considerations weigh strongly

against extending the jury-trial right to

exhaustion.

As the statutory order of operations foreshadows,

functional considerations counsel against expanding

the jury-trial right to exhaustion. Judges, not juries,

are best positioned to decide the threshold issue of exhaustion. See Markman, 517 U.S. at 388–89. Typically, deciding whether a prisoner has properly exhausted claims should involve a largely legal inquiry

into the prisoner’s “compliance” with a prison’s

13

“deadlines and other critical procedural rules.” See

Woodford, 548 U.S. at 90–91. By contrast, because

prisons have their “own incentives to maintain functioning remedial processes,” it will “not often” be the

case where a legitimate, fact-intensive dispute arises.

See Ross, 578 U.S. at 643. This Court’s cases already

teach, moreover, that the mere possibility that a fact

dispute might arise in an area does not justify impractical extensions of the jury-trial right. See Markman,

517 U.S. at 389.

All that said, if this Court cracks the door for jury

trials about exhaustion, it should expect litigants to

force it wide open. Even with Congress’s reforms in

the mid-1990s, prisoner litigation continues to crowd

dockets across this country. Exhaustion is frequently

at issue in such litigation, and prisoners already try to

work around exhaustion through the loopholes that

currently exist. Thus, if the Court blesses the Sixth

Circuit’s easy-to-satisfy blueprint for obtaining a jury

trial on exhaustion, it should expect such jury trials to

consume the attention of federal courts nationwide.

A.

Prisoner lawsuits remain voluminous,

with exhaustion often in dispute.

Remembering the Prisoner Litigation Reform Act’s

history, fast-forward to present day. To some degree,

Congress’s reforms have resulted in “fewer” prisoner

lawsuits. See Jones, 549 U.S. at 203. Most notably,

the rate at which prisoners file federal lawsuits has

dropped (in comparison to earlier decades) with such

reforms in place. See Schlanger, Longitudinal Statistics at 2–3. At the same time, prisoner litigation remains an outsized portion of federal courts’ workload.

As one datapoint, in 2005, “nearly 10 percent of all

civil cases filed in federal courts nationwide were

14

prisoner complaints challenging prison conditions or

claiming civil rights violations.” Jones, 549 U.S. at

203. Little has changed since then. In several recent

years, prisoners filed around 10,000 lawsuits challenging their prison conditions. See United States

Court, Federal Judicial Caseload Statistics, U.S. District Courts—Civil Cases Commenced, by Basis of Jurisdiction and Nature of Suit (2020, 2021, 2023) (Table

C-2); accord Wexford Health v. Garrett, 140 S. Ct.

1611, 1612 (2020) (Thomas, J., dissenting from the denial of certiorari).

Even with reforms, it is debatable whether the

quality of prisoner litigation is significantly “better.”

See Jones, 549 U.S. at 203. Prisoners continue to lose

the overwhelming majority of their cases.

See

Schlanger, Longitudinal Statistics at 5–6. Thus,

“when it comes to prisoner suits,” federal courts must

still separate “needles from haystacks.” See Jones,

549 U.S. at 224.

Today, exhaustion is a key dispute in a large portion of these prisoner lawsuits. What is more, federal

courts must frequently resolve parties’ disputes over

exhaustion through evidentiary hearings or bench trials. See, e.g., Garcia v. Heath, 74 F.4th 44, 46 (2d Cir.

2023); Lanaghan v. Koch, 902 F.3d 683, 685 (7th Cir.

2018); Small v. Camden Cnty., 728 F.3d 265, 267–68

(3d Cir. 2013); Boyd v. Rechcigl, 790 F. App’x 53, 53–

54 (8th Cir. 2020) (per curiam); Jackson v. Beard, 704

F. App’x 194, 195 (3d Cir. 2017) (per curiam); Lee v.

Willey, 789 F.3d 673, 677 (6th Cir. 2015); Hubbard v.

Mbride, 471 F. App’x 625, 627 (9th Cir. 2012); Castro

v. Smith, No. 23-cv-1409, 2024 WL 4678937, *1 (E.D.

Wis. Nov. 5, 2024); Johnson v. Englander, No. 1:20-cv398, 2024 WL 4217423, *1 (D.N.H. Aug. 16, 2024) (report and recommendation); Chatman v. Gentry, No.

15

3:22-cv-02023, 2024 WL 2864368, *2 (S.D. Ill June 6,

2024); Santamaria v. Wexford Health Sources, Inc.,

No. 3:21-cv-01539, 2024 WL 2801520, *1, *3 (S.D. Ill.

May 31, 2024); Wine v. Black, No. 3:18-cv-704, 2024

WL 2113734, *3 (D. Conn. May 11, 2024); Wilson v.

Delano State Prison, No. 1:21-cv-01651 (PC), 2024 WL

1312342, *10 (E.D. Cal. Mar. 27, 2024) (recommendation ); Apodaca v. Unknown 1, No. 6:23cv156, 2024 WL

1202916, *4–*6 (E.D. Texas Feb. 26, 2024) (report and

recommendation); Johnson v. Mason, No. 9:22-CV590, 2024 WL 396679, *1, *5 (N.D.N.Y. Feb. 2, 2024);

Huggins v. Williams, No. 1:20-cv-01273, 2023 WL

4628370, *2 (N.D. Ohio July 19, 2023); Evans v.

Chambers-Smith, No. 1:19-cv-02870, 2023 WL

3453639, *1 (N.D. Ohio May 13, 2023); cf. also Dillon

v. Rogers, 596 F.3d 260, 273 (5th Cir. 2010); Allen v.

Fields, No. 7:21-cv-00207, 2024 WL 4534749, *1 (W.D.

Va. Oct. 21, 2024).

In Ohio’s experience, many prisoners will go to

great lengths to evade the exhaustion requirement.

By way of background, this Court has held that administrative remedies will not be truly “available” to

prisoners, see §1997e(a), if “prison administrators

thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or

intimidation,” Ross, 578 U.S. at 644. Far from thwarting prisoners, Ohio has attempted to improve its

prison grievance system through technology. In recent years, Ohio has given its prisoners the option to

file grievances electronically—first via electronic kiosks, and then via personal tablets. See Kirkland v.

ODRC, No. 4:23-cv-00305, 2024 WL 3345439, *2 (N.D.

Ohio July 9, 2024); Rodgers v. Driesbach, No. 2:20-cv2848, 2021 WL 1102466, *3 (S.D. Ohio Mar. 23, 2021)

(report and recommendation).

16

Despite Ohio’s efforts to make the grievance process easy, many prisoners still claim that Ohio’s grievance system is unavailable to them. E.g., Gibson v.

Yaw, No. 1:22-cv-773, 2024 WL 3226120, *3 (S.D. Ohio

June 27, 2024) (report and recommendation); Johnson

v. Barney, No. 1:21-cv-141, 2024 WL 755441, *4–*5

(S.D. Ohio Feb. 23, 2024); McKinney v. Paddock, No.

2:20-cv-1450, 2024 WL 383412, *8 (S.D. Ohio Feb. 1,

2024) (report and recommendation); Driesbach, 2021

WL 1102466 at *3; Hargrove v. Holley, No. 1:17-cv560, 2020 WL 5651476, *1 (S.D. Sept. 22, 2020). Last

year, for example, Ohio tried (and won) a bench trial

in which the central issue was whether eleven days of

access to an electronic kiosk was enough to make

Ohio’s grievance process “available” to a prisoner. See

Evans, 2023 WL 3453639 at *3–*4. Other Ohio prisoners—attempting to keep their claims alive—have

been more than willing to allege that they fear reprisals if they file grievances. See Irizarry v. Ohio Dep’t of

Rehab. & Corr., No. 4:23CV1376, 2023 WL 8543886,

*2 (N.D. Ohio Dec. 11, 2023); Huggins, 2023 WL

4628370 at *1.

Cases from other jurisdictions present comparable

stories. In one case, an Illinois district court held an

evidentiary hearing on exhaustion because a prisoner

claimed he had been threatened with punishment for

filing grievances. Phillips v. Walker, 443 F. App’x 213,

214 (7th Cir. 2011) (per curiam). At the hearing, however, it became apparent to the district court that the

prisoner “was lying.” Id. In another case—also out of

the land of Lincoln—a district court held an evidentiary hearing to resolve a prisoner’s assertion that he

did not know with whom to file grievances. See

Minerly v. Nalley, No. 3:19-CV-0467, 2021 WL

4924739, *1–*3 (7th Cir. Oct. 21, 2021) (per curiam).

17

Sometimes, prisoners’ arguments about exhaustion

are more intricate. For instance, an Indiana prisoner

claimed that, given decades-old IQ scores, he was not

capable of navigating his prison’s grievance system.

Smallwood v. Williams, 59 F.4th 306, 316 (7th Cir.

2023). That theory was inherently questionable, because the prisoner (who was litigating pro se) had

been quite able to make “coherent” arguments in federal court. See id. But because the prisoner’s theory

involved disputed facts, the Seventh Circuit remanded for an evidentiary hearing. Id. at 318. A final

example involves a West Virginia prisoner, who argued that prison staff had injected liquid into his body

“to monitor his thoughts.” Greene v. Ballard, No. 2:17cv-02897, 2020 WL 3055459, *2 (S.D. W.Va. Feb. 25,

2020) (proposed findings and recommendation). Despite the implausible nature of his claim, the prisoner

knew enough to argue that prison staff had thwarted

his ability to file grievances. See id. at *5. As these

cases display, prisoner litigation in this area ranges

from the dishonest, to the mundane, to the suspect, to

the fanciful.

B.

The Sixth Circuit’s jury-trial rule will

greatly burden the States.

Imagine, then, what happens if this Court extends

the jury-trial right to disputes over exhaustion. The

evidentiary hearings and bench trials just discussed

become jury trials. With respect to state and federal

resources, that is no small matter. Although evidentiary hearings and bench trials impose some burdens,

district courts are often able to handle such proceedings in a day or less. Ohio’s bench trial in Evans, for

example, took only a few hours. See Evans v. Chambers-Smith, No. 1:19-cv-2870 (N.D. Ohio) (docket

minutes entered on May 12, 2023). But jury trials add

18

a host of legal and logistical complications: things like

motions in limine, voir dire, and jury instructions, to

name just a few. A switch to jury trials will thus significantly increase the time and resources state officials and federal judges must devote to prisoner litigation. And that does not even account for the burdens

on ordinary citizens, who will need to serve on the

many juries that will be required.

A closer look at the Sixth Circuit’s ruling drives

these points home. The Sixth Circuit acknowledged—

consistent with its own precedent and decisions from

other circuits—that judges may resolve factual issues

surrounding exhaustion if there is no “overlap” between the facts relevant to exhaustion and the facts

relevant to the merits. Pet.Appx.6a. But juries are

required, in the Sixth Circuit view, when disputed

facts regarding exhaustion overlap with disputed

facts regarding the merits. Pet.App.17a–18a. On the

surface, that ruling might seem narrow. It is not. The

Sixth Circuit held that the merits and exhaustion

overlapped in this case because the prisoner (Richards) alleged that the petitioner destroyed his grievances in retaliation for his complaints. Pet.App.7a.

According to the Sixth Circuit, those allegations, if

true, also amounted to unlawful retaliation under the

First Amendment. Pet.App.7a–12a. Thus, under the

Sixth Circuit’s logic, the destruction of a grievance will

generally double as (1) a defense for failure to exhaust

and (2) a merits claim under the First Amendment. It

follows that any prisoners willing to swear that their

grievances were destroyed because they complained is

entitled to a jury trial about exhaustion.

That is not a sound approach to the administration

of justice. It is the opposite: if the Court adopts the

reasoning below, it should expect federal courts to be

19

flooded with jury trials. Given both past and existing

practices in this area, see above 7–10, 15–17, there can

be little doubt that many prisoners will take advantage of the Sixth Circuit’s simple formula for obtaining a jury trial. That is, many prisoners will attest that their grievances, too, were destroyed in retaliation for their complaints.

The proceedings below are illustrative. Richards

was able to survive summary judgment, creating a

fact dispute through allegations within a verified complaint. Pet.App.93a. But, during an exhaustion hearing, Richard’s allegations unraveled. At the hearing,

Richard convinced several other prisoners to testify on

his behalf. See Pet.App.56a. But Richards and his

fellow prisoners could muster only a “far-fetched”

story of one prison official “single-handedly” intercepting and destroying all grievances over a ten-month

span, a story the magistrate judge handily rejected.

Pet.App.75a. That is the type of jury trial this Court

should anticipate if it wrongly extends the Seventh

Amendment’s protections here.

From a scheduling standpoint, if district courts are

forced to try exhaustion disputes to juries, they will

likely follow one of two paths. Neither is efficient.

First, many district courts will likely hold off on

deciding exhaustion, combining any exhaustion trial

with a trial on the merits. That will deprive States of

the benefit that the Prison Litigation Reform Act intends. See Pavey, 544 F.3d at 742. Once again, Congress meant for exhaustion to prevent lawsuits from

“be[ing] brought … until” exhaustion took place.

§1997e(a). But, if exhaustion is conflated with a trial

on the merits, it no longer serves as a front-end shield

to cut off potentially avoidable litigation. Exhaustion

20

will instead become a largely superfluous back-end

protection relevant only after the State shoulders the

burden of waging a full-blown trial defense. In short,

such a decision would effectively nullify the exhaustion requirement and thwart the clear intend of Congress.

Second, it is possible that some district courts

might entertain the idea of bifurcated proceedings. In

other words, some courts might be willing to hold a

trial limited to exhaustion before a case shifts to the

merits. But that approach seems less likely, as it

comes with its own inefficiencies. District courts will

likely be worried about the possibility (even if remote)

of duplicative proceedings if a case is not tried all at

once.

A final complicating factor warrants quick mention. Even if a case is tried and dismissed for failure

to exhaust, such dismissals are typically without prejudice. See, e.g., Garrett v. Wexford Health, 938 F.3d

69, 81 n.16 (3d Cir. 2019); Bell v. Konteh, 450 F.3d 651,

653 n.4 (6th Cir. 2006). That creates the possibility of

“a series of jury trials.” Pavey, 544 F.3d at 741 (noting

the chance of “a jury trial to decide exhaustion, a verdict finding that the prisoner had failed to exhaust, an

administrative proceeding, the resumption of the litigation, and another jury trial on failure to exhaust”).

To be sure, by the time a prisoner’s lawsuit is dismissed without prejudice for lack of exhaustion, the

prisoner’s deadline for timely exhausting claims will

have likely run. See Woodford, 548 U.S. at 95–96. But

many States, including Ohio, give their prison officials

flexibility to forgive such deadlines. See, e.g., Ohio Admin. Code §5120-9-31(J). Under the Sixth Circuit’s

approach, prison officials will have a strong incentive

to not forgive belated grievances. After all, why would

21

prison officials—having gone through a jury trial on

exhaustion—willingly subject themselves to the

chance of another jury trial? In this way, leaving the

Sixth Circuit’s ruling in place would also be bad, in the

long run, for prisoners.

*

The amici States end with a coda. The discussion

above has focused on the practical burdens that the

Sixth Circuit’s jury-trial ruling would place on the

States. But a significant sovereign harm underlies all

of this. In addition to individual rights, the “vertical

… separation of powers” embedded within our Constitution also operates as a “guardian of liberty.” MCP

No. 165 v. United States DOL, 20 F.4th 264, 269 (6th

Cir. 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc). That is, one way the Constitution protects the People is by reserving power to the

States. See Gregory v. Ashcroft, 501 U.S. 452, 458–59

(1991). That reserved power includes “broad authority” to act for the public’s general welfare. Bond v.

United States, 572 U.S. 844, 854 (2014). And the administration of prisons fits neatly within that reserved power. If anything, “it is ‘difficult to imagine

an activity in which a State has a stronger interest, or

one that is more intricately bound up with state laws,

regulations, and procedures, than the administration

of its prisons.’” Woodford, 548 U.S. at 94 (quoting

Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973)).

These basic principles make the stakes in this case

even higher. If the Court misreads the Seventh

Amendment here, it will also offend our constitutional

structure by allowing for “unwarranted federal-court

interference with” a core state activity. See id. at 93.

22

CONCLUSION

The Court should reverse.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

*Counsel of Record

Ohio Solicitor General

ZACHERY P. KELLER

Deputy Solicitor General

DANIEL MCKITRICK

BRANDON KENNEDY

Assistant Attorneys General

30 East Broad St., 17th Fl.

Columbus, Ohio 43215

614.466.8980

thomas.gaiser@ohioago.gov

Counsel for Amicus Curiae

State of Ohio

DECEMBER 2024

Additional counsel listed on the

following pages.

23

Additional Counsel

STEVE MARSHALL

Alabama Attorney General

TIM GRIFFIN

Arkansas Attorney General

WILLIAM TONG

Connecticut Attorney General

BRIAN L. SCHWALB

District of Columbia Attorney General

ASHLEY MOODY

Florida Attorney General

CHRISTOPHER M. CARR

Georgia Attorney General

RAÚL R. LABRADOR

Idaho Attorney General

THEODORE E. ROKITA

Indiana Attorney General

BRENNA BIRD

Iowa Attorney General

KRIS KOBACH

Kansas Attorney General

RUSSELL COLEMAN

Kentucky Attorney General

24

ELIZABETH B. MURRILL

Louisiana Attorney General

ANTHONY G. BROWN

Maryland Attorney General

LYNN FITCH

Mississippi Attorney General

AUSTIN KNUDSEN

Montana Attorney General

MICHAEL T. HILGERS

Nebraska Attorney General

GENTNER DRUMMOND

Oklahoma Attorney General

ELLEN F. ROSENBLUM

Oregon Attorney General

PETER F. NERONHA

Rhode Island Attorney General

ALAN WILSON

South Carolina Attorney General

MARTY JACKLEY

South Dakota Attorney General

JONATHAN SKRMETTI

Tennessee Attorney General

and Reporter

25

KEN PAXTON

Texas Attorney General

SEAN D. REYES

Utah Attorney General