Amicus Curiae Brief — Porter v. Nussle

DUG 20 200

No. 00-853

Jn the Supreme Court of the Cited States

CORRECTION OFFICER PORTER, ET AL., PETITIONERS

v.

RONALD NUSSLE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

Gene ral

BARBARA L. HERWIG

PETER R. MAIER

Attorneys

Department of Justice

Wash ington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the exhaustion provision of the Prison Litigation

Reform Act of 1995, 42 U.S.C. 1997e(a) (Supp. V 1999),

requires an inmate to exhaust available administrative re-

medies before filing an action alleging a use of excessive

force by a correction officer.

(I)

TABLE OF CONTENTS

Argument:

An action challenging a particular instance of

alleged excessive force is an action with respect to

“prison conditions” within the meaning of the

PLRA’s exhaustion requirement ...

A.

The text of the exhaustion provision includes

actions that challenge particular instances of

alleged miscomduct .acccccssecsssscsssssnssessssesnseeseseeeseeeee

The exhaustion of claims challenging particular

instances of alleged misconduct directly ad-

vances the purposes of the PLRA’s exhaustion

rn

An exception to the exhaustion requirement

for claims challenging particular instances of

alleged misconduct would generate wasteful liti-

gation

SEER EEE EERE EEE EEE EEE EEE EEE EERE HEHE EEE EEE EERE EEE E EEE EEE EEE EEE EEE EEE THEE EE EEE EES

EERE EEE EERE EE EEE EEE EERE EEE EEE EEE EE EE EEE HSER EEE THEE E EEE EEE ED

Congress changed the exhaustion provision to

broaden its scope, and creating an exception

for actions challenging particular instances of

alleged misconduct would contravene that

a

The legislative history does not support an ex-

ception for particular instances claims. .................«.

The definition of prison conditions in 1s U.S.C.

3626(g) (Supp. V 1999) supports a broad con-

struction of that term in the exhaustion provi-

Neither McMillian nor the general rule that

claims under Section 1983 need not be ex-

(IID

> io —

12

16

18

21

eS

IV

TABLE OF AUTHORITIES

Cases: Page

A.H. Phillips, Inc. v. Walling, 324 U.S. 490

=z 27

Bell v. Wolfish, 441 U.S. 520 (1979) ...........ceseresnerernenenenees 15

Booth v. Churner, Co.:

206 F.3d 289 (3d Cir. 2000), aff’d on other grounds,

hE 8, 23

121 S. Ct. 1819 (2001) ..... 12, 14, 19

City of Edmonds v. Oxford House, Inc., 514 U.S.

725 (1995) : 27

Commissioner v. Clark, 489 U.S. 726 (1989) ..........0c00000 27

Crawford-El v. Britton, 523 U.S. 574 (1998) ...........--000 24, 27

Estelle v. Gamble, 429 U.S. 97 (1976) ...........ccccccceseeeeeneeeenes 10

Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999) ........... 8,13

Giano v. Goord, 250 F.3d 146 (2d Cir. 2001) : s

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.

229 (1989) - 24

Higginbottom v. Carter, 223 F.3d 1259 (11th Cir.

GBD) oaceesecccceesescersesssrsesessssnsesssssnsnsssesssnssesssssssssssssssasssssessesessseess .

Hudson v. McMillian, 503 U.S. 1 (1992) ..........00000 4, 11, 25

Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001) ............... 7,14

Marvin v. Goord, No. 99-0325, 2001 WL 686838

(2d Cir. June 19, 2001) .........ccseserereseeeseneneererenenenenennnes 7, 14, 16

McCarthy v. Bronson, 500 U.S. 136 (1991) ............ 5, 9, 10, 11

12, 17, 22, 24

McCarthy v. Madigan, 503 U.S. 140 (1992) 12

McKart v. United States, 395 U.S. 185 (1969) .................. 15

Miller v. French, 530 U.S. 327 (2000) nie 27

Parisi v. Davidson, 405 U.S. 34 (1972) 15

Preiser v. Rodriguez, 411 U.S. 475 (1973) .........-....-0+- 5, 9, 22

Procunier v. Martinez, 416 U.S. 396 (1974) 15

Cases—Continued: Page

Royster v. United States, No. 00-0185, 2001 WL

388051 (2d Cir. Apr. 16, 2001), petition for cert.

pending, No. 01-100 (filed July 16, 2001) ........ 1-2, 7-8, 14, 16

Smith v. Zachary, No. 99-4084, 2001 WL 723010

(7th Cir. June 28, 2001) ..........csssssssssssesssveseseneeeseees 8, 13, 14, 15

United States v. Cleveland Indians Baseball Co.,

121 S. Ct. 1433 (2001) 24

Vermont Agency of Natural Res. v. United States,

529 U.S. 765 (2000) 24

Weinberger v. Salfi, 422 U.S. 749 (1975) - 15

Whitley v. Albers, 475 U.S. 312 (1986) : 10

Wilson v. Seiter, 501 U.S. 294 (1991) 5, 10, 18

Constitution, statutes and regulations:

U.S. Const. Amend. VIII 2, 4, 6, 10, 18, 25, 26

Prison Litigation Reform Act of 1995, 18 U.S.C.

3626 et seq.:

18 U.S.C. 3626 (Supp. V 1999) 22, 23, 24

18 U.S.C. 3626(g) (Supp. V 1999) 6, 21

18 U.S.C. 3626(g)(2) (Supp. 1999) 4, 21, 22, 23

Prison Litigation Reform Act of 1995, 42 U.S.C.

1997a et seq.:

42 U.S.C. 1997e(a) (Supp. V 1999) ........ 1, 3, 4, 7, 8, 18, 19

42 U.S.C. 1997e(c)(2) (Supp. V 1999) 26

Civil Rights of Institutionalized Persons Act, 42 U.S.C.

1997 et seq.:

42 U.S.C. 1997e(a) (1994) 19, 20

42 U.S.C. 1997e(a)(1) (1994) . 18,19

42 U.S.C. 1997e(a)(2) (1994) 18

18 U.S.C. 2705(a)(1)(B) 24

42 U.S.C. 1983 2, 4, 6, 9, 18, 19, 22, 25, 27

42 U.S.C. 2000aa-11(a)(4) 24

42 US.C. 3769a(b) 11

42 U.S.C. 3769b(a)(1) 11

50 U.S.C. 403-3(b)(5) (Supp. V 1999) 24

28 C.F.R. 542.10 et seq. 1

28 C.F.R. 542.14 13

Miscellaneous:

141 Cong. Rec. (1995):

VI

STF ee

BD. BAIS onccccceceessseessseseesscssscssssrenssvsssnsssssessssssessssessesessesesseseeeenes

BD. SIG oecenccncccceseescesesscsccssssssssssnsssssnsssnsvensnssssesssssesessenssssssessseees

Webster's Third New International Dictionary:

(1961 ed.) ............

(1993 ed.) .......0-++.

Jn the Supreme Court of the Gnited States

No. 00-853

CORRECTION OFFICER PORTER, ET AL., PETITIONERS

Vv. |

RONALD NUSSLE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether the exhaustion

provision of the Prison Litigation Reform Act of 1995

(PLRA), 42 U.S.C. 1997e(a) (Supp. V 1999), requires an in-

mate to exhaust available administrative remedies before

filing an action alleging a use of excessive force by a correc-

tion officer. The United States has a substantial interest in

the resolution of that question. Pursuant to its authority to

manage federal prisons, the Federal Bureau of Prisons

(BOP) has adopted an administrative remedy program

through which inmates may seek review of issues relating to

their confinement. See 28 C.F.R. 542.10 et seg. Moreover,

inmates frequently name BOP officials as defendants in

actions arising from conditions of confinement in federal

correctional institutions. See e.g. Royster v. United States,

(1)

No. 00-0185, 2001 WL 388051 (2d Cir. Apr. 16, 2001), petition

for cert. pending, No. 01-100 (filed July 16, 2001). The court’s

decision in this case will affect both the efficacy of BOP’s

administrative remedy program and the conduct of litigation

against BOP officials.

STATEMENT

1. At the time of the events in question, respondent was

confined at the Cheshire Correctional Institution in Che-

shire, Connecticut (CCI). Pet. App. A3. In June 1999, re-

spondent filed suit in federal district court, alleging that

correction officers at CCI subjected him to a sustained pat-

tern of harassment and intimidation because of his perceived

friendship with the Governor of the State of Connecticut.

Ibid. Respondent specifically alleged that, on or about June

15, 1996, two named correction officers (petitioners), to-

gether with other unknown correction officers, placed him

against a wall outside his cell, and then struck him with their

hands, kneed him in the back, and pulled his hair. /bid.

Respondent further alleged that petitioners threatened to

kill him if he reported the beating. Jbid. Respondent

claimed that petitioners’ actions constituted cruel and un-

usual punishment in violation of the Eighth Amendment, a

violation of substantive due process, and an assault under

state law. Jbid. Pursuant to 42 U.S.C. 1983, respondent

sought compensatory and punitive damages for the injuries

that he allegedly sustained. Pet. App. A3.

CCI has a grievance system for resolving prisoner

complaints. J.A. 5-18. Under that procedure, an inmate may

file a grievance relating to “{iJndividual employee and inmate

actions including any denial of access of inmates to the

Inmate Grievance Procedure,” and any matter “relating to

access to privileges, programs and services, conditions of

care or supervision and living unit conditions within the

authority of the Department of Correction.” J.A. 8. Respon-

dent did not file a grievance concerning the matters set forth

in his complaint. Pet. App. A29. /

Petitioners moved to dismiss respondent’s complaint for

failure to exhaust available administrative remedies as re-

quired by the exhaustion provision of the PLRA. Pet. App.

A4. That provision directs that “({nJo 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 admini-

strative remedies as are available are exhausted.” 42 U.S.C.

1997e(a) (Supp. V 1999).

The district court granted petitioner’s motion and dis-

missed respondent’s complaint without prejudice. Pet. App.

A22-A30. It rejected respondent’s contention that the ex-

haustion requirement does not apply to excessive force

claims. The court explained that “(tJhe use of excessive force

by correctional officers falls into the category of ‘prison con-

ditions,’” id. at A28, and that “[c)Jreating an exception for ex-

cessive force claims would circumvent the Congressional

purpose of weeding out frivolous claims before they are filed

in federal court,” id. at A29.

2. The court of appeals reversed the district court’s

judgment, Pet. App. Al-A21, holding that the PLRA’s ex-

haustion provision “does not apply to allegations of parti-

cular instances of excessive force or assault by prison em-

ployees,” id. at A2. Relying on a dictionary definition of the

term “conditions,” the court of appeals concluded that the

phrase “prison conditions” in the exhaustion provision refers

to “circumstances affecting everyone in the area affected by

them, rather than single or momentary matters, such as

beatings or assaults.” Jd. at A9 (citation and internal quota-

tion marks omitted).

The court of appeals concluded that the definition of

“prison conditions” in the section of the PLRA addressed to

prospective relief that courts may award also supported its

interpretation of the exhaustion requirement. Pet. App. A9-

Al2. The court noted that the definition includes two cate-

gories: “conditions of confinement” and “the effects of

actions by government officials on the lives of persons

confined in prison.” Jd. at Al0 (quoting 18 U.S.C. 3626(g)(2)

(Supp. V 1999)). The court concluded that the first category

“is no more apt to include particular instances of assault or

excessive force than the reference to ‘prison conditions’ in

§ 1997e(a) itself.” bid. As to the second category, the court

concluded that “such awkward language would not,

ordinarily, be used to describe such incidents.” Jd. at All.

The court further concluded that, in light of the background

and purposes of the prospective relief provisions, the second

category’s use of the phrase “government officials” refers to

“administrative and policymaking officials,” id. at A13, not to

“lower level government employees, such as corrections

officers,” id. at A15.

The court of appeals also relied on this Court’s holding in

Hudson v. McMillian, 503 U.S. 1, 9 (1992), that a malicious

use of force constitutes cruel and unusual punishment with-

out proof of serious harm, while proof of such harm is neces-

sary to prove other Eighth Amendment claims. Pet. App.

Al7. The court viewed that distinction as “equally appli-

cable here,” because it believed that Section 1997e(a) filters

through the exhaustion provision only “claims that may be

frivolous as to subject matter.” Jbid. Finally, the court

concluded that, as an exception to the general rule of non-

exhaustion in Section 1983 cases, the PLRA’s exhaustion

requirement should be construed “narrowly.” /bid.

SUMMARY OF ARGUMENT

The PLRA’s exhaustion requirement applies to actions

that challenge particular instances of alleged misconduct as

well as actions that challenge practices that affect the prison

population generally. An inmate challenging a particular in-

stance of alleged excessive force therefore must exhaust

available administrative remedies before filing suit.

The text of the exhaustion provision makes clear that it

applies to all actions that challenge prison conditions; there

is no exception for challenges to prison conditions that affect

only a single inmate or that are of brief duration. Nor can

such a limitation be derived from the plain meaning of the

phrase “prison conditions,” as the court of appeals believed.

When an individual inmate is placed in isolation, denied a

specific medical procedure, or subjected to a use of force,

that is a “prison condition” for him, regardless of its duration

or whether that condition is inflicted on others.

This Court’s decisions confirm that the phrase “prison

conditions” includes particular instances of alleged mis-

conduct. In Preiser v. Rodriguez, 411 U.S. 475, 498 (1973),

and Wilson v. Seiter, 501 U.S. 294 (1991), the Court used the

phrases “conditions of confinement” and “prison conditions”

to refer to particular instances of alleged misconduct. In

McCarthy v. Bronson, 500 U.S. 136, 142 (1991), the Court

interpreted the phrase “conditions of confinement” in the

magistrate referral statute to encompass a single episode of

excessive force. Moreover, all the rationales for the PLRA’s

exhaustion requirement apply with full force to claims alleg-

ing excessive force or challenging other individual incidents.

The court of appeals interpreted the PLRA’s exhaustion

requirement in a manner contrary to the overall thrust of

the PLRA. Having adopted an exhaustion requirement in

order to help reduce the crushing burden that prison law-

suits impose on courts, Congress could not have intended

for there to be extensive proceedings simply to determine

whether a claim must be exhausted. In addition, the pre-

PLRA exhaustion provision contained numerous limits and

exceptions, but it extended to all actions challenging state

prison conditions, including isolated incidents. The PLRA

eliminated the constraints on exhaustion and dramatically

expanded the number of claims governed by a strict exhaus-

tion requirement. It is highly implausible that the Congress

that adopted a significantly broader exhaustion requirement

simultaneously dramatically cut back on its scope. In fact,

numerous statements made during the course of Congress’s

consideration of the PLRA show that the exhaustion re-

quirement applies to all prison conditions—isolated incidents

and recurring practices alike.

The separate definition of prison conditions for purposes

of the PLRA’s procedures for certain injunctions confirms

the broad reach of the PLRA’s exhaustion requirement.

Both halves of the definition of “prison conditions” in 18

U.S.C. 3626(g) include particular instances of alleged mis-

conduct. When read in light of the Court’s decisions in

Prieser, Bronson, and Wilson, the phrase “conditions of con-

finement” includes particular instances of alleged mis-

conduct. The phrase “the effects of actions by government

officials on the lives of persons confined in prison” is even

better suited to capture particularized misconduct, such as

uses of excessive force.

The Court’s holding in McMillian that a malicious use of

force is cruel and unusual without proof of serious harm,

while other Eighth Amendment claims require such proof,

has no relevance here. The standards for proving a parti-

cular claim have no bearing on whether it is appropriate to

require an inmate to raise that claim in a prison grievance

process before filing suit. Nor should the PLRA’s ex-

haustion requirement be construed narrowly in order to give

maximum effect to Section 1983’s general rule of non-

exhaustion. The PLRA’s exhaustion requirement addresses

Section 1983 actions specifically and is part of a comprehen-

sive set of measures designed to address the extraordinary

problems posed by prisoner lawsuits. It represents a deli-

berate and dramatic departure from prior law. It is there-

fore inappropriate to construe the PLRA’s exhaustion re-

quirement narrowly.

ARGUMENT

AN ACTION CHALLENGING A PARTICULAR IN-

STANCE OF ALLEGED EXCESSIVE FORCE IS AN

ACTION WITH RESPECT TO “PRISON CONDITIONS”

WITHIN THE MEANING OF THE PLRA’S EXHAUS-

TION REQUIREMENT

The PLRA’s exhaustion requirement directs that “[n]o

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.” 42 U.S.C. 1997e(a) (Supp. V 1999). The

court of appeals in this case held that actions challenging

“particular instances” of alleged excessive force by prison

guards are not actions “with respect to prison conditions”

within the meaning of Section 1997e(a), and that inmates can

therefore bring such claims without exhausting available

administrative remedies. Pet. App. A7-A8.

In subsequent cases, the Second Circuit has made clear

that its exception to the exhaustion requirement is not

limited to excessive force claims. The Second Circuit has

explained that the exhaustion requirement applies when an

inmate challenges “aspects of prison life affecting the entire

prison population,” Lawrence v. Goord, 238 F.3d 182, 185

(2001), or conduct that is “clearly mandated by a prison

policy or undertaken pursuant to a systematic practice,”

Marvin v. Goord, No. 99-0325, 2001 WL 686838, at *1 (June

19, 2001) (per curiam), but that it does not apply to any case

in which an inmate challenges “particularized instances” of

alleged misconduct. Lawrence, 238 F.3d at 186; Marvin,

2001 WL 686838, at * 1; see also Royster v. United States,

No. 00-0185, 2001 WL 388051, at *1-*2 (2d Cir. Apr. 16,

2001), petition for cert. pending, No. 01-100 (filed July 16,

2001); Giano v. Goord, 250 F.3d 146, 150 (2d Cir. 2001).

That reading of the PLRA’s exhaustion requirement is

incorrect. As four courts of appeals have held, the exhaus-

tion requirement applies equally to actions that challenge

particular instances of alleged misconduct and those

that challenge practices that affect the prison population

generally. Smith v. Zachary, No. 99-4084, 2001 WL 723010

(7th Cir. June 28, 2001); Higginbottom v. Carter, 223 F.3d

1259 (11th Cir. 2000); Freeman v. Francis, 196 F.3d 641 (6th

Cir. 1999); Booth v. Churner, C.O., 206 F.3d 289 (3d Cir.

2000), aff’d on other grounds, 121 S. Ct. 1819 (2001).

A. The Text Of The Exhaustion Provision Includes Ac-

tions That Challenge Particular Instances Of Alleged

Misconduct

The text of the exhaustion provision directs that “{n]Jo”

action may be brought “with respect to prison conditions”

absent the exhaustion of available administrative remedies.

42 U.S.C. 1997e(a) (Supp. V 1999). By its terms, the PLRA’s

exhaustion requirement applies to all actions that challenge

prison conditions; there is no exception for challenges to

prison conditions that affect only a single inmate or that last

for only a brief period of time.

Nor can such a limitation be derived from the plain mean-

ing of the phrase “prison conditions,” as the court of appeals

believed. Pet. App. A9. That phrase undoubtedly encom-

passes prison practices that affect prison life for all inmates.

But it also encompasses specific actions directed to parti-

cular inmates. When an individual inmate is placed in isola-

tion, or denied requested medical care or access to a parti-

cular document, or endures a use of force, that is a “prison

condition” for him, regardless of its duration or whether

everyone else in the prison experiences the same conditions.

This Court’s decisions in Preiser, Bronson, and Wilson all

support that conclusion. In Preiser, the Court held that

inmates may challenge the “conditions of their confinement”

under 42 U.S.C. 1983, but that an inmate may challenge “the

fact or duration of his physical confinement” only by filing a

petition for a writ of habeas corpus. The Court gave as

examples of challenges to conditions of confinement inmate

actions complaining of: (1) the denial of the right to purchase

religious publications, (2) the confiscation of legal materials,

and (3) placement in solitary confinement as a disciplinary

measure. Preiser, 411 U.S. at 498-499. Those examples

“were all challenges to specific instances of unconstitutional

conduct.” Bronson, 500 U.S. at 142. Although the PLRA

uses the phrase “prison conditions,” rather than “conditions

of confinement,” that minor difference in phraseology is

not significant. Indeed, the Court in Preiser used the two

phrases interchangeably. Compare 411 U.S. at 498 (“The

respondents place a great deal of reliance on our recent de-

cisions upholding the right of state prisoners to bring federal

civil rights actions to challenge the conditions of their con-

finement.”) with id. at 499 (“This is not to say that habeas

corpus may not also be available to challenge such prison

conditions.”). Preiser therefore establishes that prison con-

ditions include not only broad policies that affect the entire

prison population, but also specific actions directed at parti-

cular inmates.

Bronson reinforces that conclusion. In Bronson, the

Court held that a statute that authorized the referral to

magistrates of “prisoner petitions challenging conditions of

confinement” (500 U.S. at 137) applied to a prisoner petition

alleging a single episode of excessive force. Jd. at 139-144.

Relying in significant part on Preiser, and Congress’s pre-

sumed familiarity with that decision, the Court rejected the

inmate’s contention that the phrase “ ‘conditions of confine-

ment’ includes continuous conditions and excludes isolated

10

incidents.” Jd. at 139. The Court explained that Preiser had

described two broad categories of prisoner actions—“those

challenging the fact or duration of confinement itself,” and

“those challenging the conditions of confinement,” and

Preiser’s “description * * * of the latter category unam-

biguously embraced the kind of single episode cases that

petitioner’s construction would exclude.” Jd. at 140-141.

Wilson is equally persuasive on that point. There, the

Court held that inmates challenging conditions of confine-

ment must show a culpable state of mind in order to estab-

lish an Eighth Amendment violation. In reaching that

conclusion, the Court relied on the holdings in Estelle v.

Gamble, 429 U.S. 97 (1976), and Whitley v. Albers, 475 U.S.

312 (1986), that inmates alleging a deprivation of adequate

medical care and the use excessive force during a riot must

demonstrate a culpable state of mind. The Wilson Court

rejected the concurring opinion’s effort to distinguish those

cases on the ground that they did not involve “conditions of

confinement,” but rather “specific acts or omissions directed

at individual prisoners.” 501 U.S. at 299 n.1. The Court

stated that “if an individual prisoner is deprived of needed

medical treatment, that is a condition of his confinement,

whether or not the deprivation is inflicted upon every-

one else.” IJbid. The Court further explained that “[uJn-

doubtedly deprivations inflicted upon all prisoners are, as a

policy matter, of greater concern than deprivations inflicted

upon particular prisoners, but we see no basis whatever for

saying that the one is a ‘condition of confinement,’ and the

other is not.” Jbid. Like the Court in Preiser, the Court in

Wilson used the phrase “conditions of confinement” inter-

changeably with the phrase “prison conditions.” Compare

the passage quoted above with id. at 299-300 (“Petitioner

concedes that this is so with respect to some claims of cruel

and unusual prison conditions.”) (emphasis omitted) and id.

at 300 (“The long duration of a cruel prison condition may

1]

make it easier to establish knowledge and hence some form

of intent.”) (emphasis omitted).

To be sure, the phrase “prison conditions” does not in-

variably or inescapably encompass particular instances of

misconduct. The context in which that phrase is used may

suggest that it has a narrower meaning. For example, in

Bronson, the Court cited 42 U.S.C. 3769a(b), 3769b(a)(1) as

an example of a statute that may use the phrase “conditions

of confinement” to refer to “ongoing conditions.” 500 U.S. at

142 & n.3. That statute requires state governments to

develop a “plan for . . . improving conditions of confine-

ment” as a precondition to receiving federal funds to

“reliev[e] overcrowding [and] substandard conditions.” The

use of the phrase in the context of a precondition for an

ongoing funding program may suggest a focus on broader

conditions affecting the inmate population as a whole. See

also Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (discussed

at pp. 25-26, infra). But Preiser, Bronson, and Wilson make

clear that, absent contextual limitations of that kind, the

phrase “prison conditions” includes particularized conduct.

Moreover, to the extent context informs the meaning of the

term “prison conditions,” the overall context of the PLRA

supports a broad rather than a narrow construction of that

term in the PLRA’s exhaustion requirement. See pp. 12-20,

infra.

Rather than interpreting the PLRA’s exhaustion pro-

vision in light of Preiser, Bronson, and Wilson, the court of

appeals derived the “plain meaning” of “prison conditions”

from Webster’s Third New International Dictionary

(Webster’s) 473 (1961), which defines “conditions” as “atten-

dant circumstances,” or an “existing state of affairs.” Pet.

App. A9. Even that definition of “conditions” unmodified,

however, does not support the court of appeals’ interpreta-

tion. A particular instance of misconduct, such as a use of

excessive force, is an “attendant circumstance” of an in-

12

mate’s confinement—it is connected to, and a consequence

of, confinement. See Webster’s 140 (1993) (definition of

“attendant”: (3) “accompanying, connected with, or immedi-

ately following as consequential”). Ultimately, however, the

question at issue here does not depend on the meaning of the

term “conditions” unmodified. Instead, it depends on the

meaning of the phrase “prison conditions” as used in the

PLRA’s exhaustion requirement. When viewed against the

backdrop of Preiser, Bronson, and Wilson, as well as the

broader purposes of exhaustion and the PLRA, that phrase

includes particular instances of misconduct.

B. The Exhaustion Of Claims Challenging Particular In-

stances Of Alleged Misconduct Directly Advances The

Purposes Of The PLRA’s Exhaustion Requirement

Interpreting the phrase “prison conditions” to include

particular instances of misconduct directly advances the

purposes of the PLRA’s exhaustion requirement. Cf.

Bronson, 500 U.S. at 142-143. Those purposes are to (1) give

prison authorities the opportunity to resolve problems

within the prison without judicial intervention, (2) help

reduce the volume of prison litigation in federal courts, and

(3) develop the underlying facts in a way that facilitates

litigation in the event a case ends up in court. Booth v. C.O.

Churner, 121 S. Ct. 1819, 1823 (2001); see McCarthy v.

Madigan, 503 U.S. 140, 144-146 (1992).*

* See also 141 Cong. Rec. 35,624 (1995) (Rep. LoBiondo) (exhaustion

requirement will “provide the opportunity for early resolution of the

problem,” “reduce the intrusion of the courts into the administration of the

prisons,” and “provide some degree of fact-finding so that when or if the

matter reaches Federal court there will be a record upon which to proceed

in a more efficient manner”); id. at 14,573 (Sen. Kyl) (“An exhaustion re-

quirement is appropriate for prisoners given the burden that their cases

place on the Federal court system, the availability of administrative re-

medies, and the lack of merit of many of the claims.”); id. at 14,570 (Sen.

ee

13

Requiring an inmate to exhaust a claim challenging a

particular instance of alleged misconduct furthers each of

those purposes. Unlike broad challenges to institutional

policies, most isolated incident claims, including virtually all

excessive force claims, involve deviation from the

institution’s stated policy. Accordingly, it makes particular

sense to require exhaustion, which will give prison officials

notification of the violation and an opportunity to correct it.

For example, a prison institution has a strong interest in

resolving an excessive force claim. If the claim is legitimate,

a prison institution has an overriding interest in learning

about it at an early stage, so that it can take immediate steps

to discipline the abusive guard. Freeman, 196 F.3d at 644.

While prison institutions typically advance their interest in

receiving timely notification by requiring inmates to file ad-

ministrative grievances within a short period after the in-

cident, e.g. J.A. 11 (grievance must be filed within 30 days of

the occurrence of discovery of the cause of the grievance); 28

C.F.R. 542.14 (grievance must be filed with 20 days following

the date on which the basis for the grievance occurred),

applicable statutes of limitation can give inmates years to file

suit.

Excessive force claims are also well-suited to admini-

strative resolution. A prison institution may remedy a legiti-

mate claim of excessive force by disciplining the officer in-

volved, retraining the officer, transferring the inmate to a

different area of the prison, or issuing a decision that the

inmate’s complaint is meritorious and the guard’s conduct

should not be repeated. See Smith, 2001 WL 723010, at *3.

Dole) (noting “an alarming explosion in the number of lawsuits filed by

State and Federal prisoners”—“from 6,600 in 1975 to more than 39,000 in

1994”); id. at 26,553 (Sen. Hatch) (noting that the “vast majority” of the

39,000 non-habeas suits filed by inmates in federal court “are completely

without merit,” and that “(t)he crushing burden” of the suits “makes it

difficult for courts to consider meritorious claims”).

14

Such measures may well satisfy the complaining inmate and

eliminate his desire to pursue federal court litigation. Booth,

121 S. Ct. at 1823. Alternatively, factual development of the

issue and a written decision may persuade the inmate that

there is no merit to his claim and dissuade him from filing

suit. Jbid. In either event, the administrative process re-

duces the volume of litigation in federal court.

When litigation cannot be avoided, exhaustion of an exces-

sive force claim can better prepare the parties for litigation

on the issue and expedite resolution of the matter in court.

Booth, 121 S. Ct. at 1823. Excessive force claims can be

“factually intense,” and the administrative process may, “at

a minimum,” develop the “basics of who-did-what-to-whom.”

Smith, 2001 WL 723010, at *2.

Other particular instance claims, such as claims involving

a particular instance of retaliation, or claims involving a

particular instance of inadequate medica! care, implicate the

policies of exhaustion to the same degree. In those cases as

well, institutions have an interest in learning about a devia-

tion from institution policy quickly; internal proceedings can

remedy the problem or clarify the facts in a way that dis-

suades the inmate from filing suit; and factual development

can assist the parties in presenting the issues that must be

resolved by a court.

The Second Circuit nonetheless concluded in Lawrence,

the second in its series of exhaustion cases, that the purposes

of exhaustion are not implicated by particular instance

claims. The court reasoned that the purpose of exhaustion is

to give prison institutions a chance to change their policies, a

purpose “not served when a practice is aimed at one specific

inmate rather than the prison population as a whole.” 238

F.3d at 186. In subsequent cases, the Second Circuit has re-

peated that limited rationale for the exhaustion requirement.

Royster, 2001 WL 388051, at *1; Marvin, 2001 WL 686838, at

~ *

—_.

15

The Second Circuit has provided no basis for its view that

the purpose of the PLRA’s exhaustion requirement is

limited to giving prison institutions a chance to change their

policies. The PLRA responded to a perceived flood of prison

litigation, not just suits aimed at changing overall policies.

More broadly, exhaustion requirements are typically de-

signed to serve a variety of purposes, including reducing

the volume of federal court litigation and facilitating the

development of the facts should a dispute reach court.

Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Parisi v.

Davidson, 405 U.S. 34, 37 (1972); McKart v. United States,

395 U.S. 185, 193-194 (1969).

Moreover, the Second Circuit is mistaken in its view that

isolated incidents can never lead to the reassessment of insti-

tutional policies. Institutions may view a particular guard’s

use of excessive force as a symptom of “systemic problems,

including poor hiring procedures, insufficient training and

supervision, or an inadequate procedure for responding to

prison riots or insubordinate behavior by prisoners.” Smith,

2001 WL 723010, at *2. A report of a particular incident may

well prompt a reassessment of those broader policies.

Exhaustion of challenges, whether incident-specific or

implicating broader policies, also gives the courts the benefit

of institutional expertise. Courts are “ill suited to act as the

front-line agencies for the consideration and resolution of the

infinite variety of prisoner complaints.” Procunier v.

Martinez, 416 U.S. 396, 405 n.9 (1974). The proper response

to prison grievances falls squarely within the expertise of

prison officials, and, in general, courts owe deference to the

solutions chosen by those officials. Bell v. Wolfish, 441 U.S.

520, 547 n.29 (1979).

16

Cc. An Exception To The Exhaustion Requirement For

Claims Challenging Particular Instances Of Alleged

Misconduct Would Generate Wasteful Litigation

The difficulty of distinguishing between actions chal-

lenging particular instances of alleged misconduct and

actions challenging systematic prison practices provides yet

another reason for rejecting the court of appeals’

interpretation. The very effort to determine which cases fall

into which category will generate substantial additional

work for the courts. Requiring all claims arising from

incarceration to be exhausted avoids that difficulty and

further advances the PLRA’s goal of reducing the amount of

judicial resources devoted to prisoner claims.

The exhaustion cases decided by the Second Circuit in the

wake of its decision in this case provide an early indication of

the additional litigation that the Second Circuit’s rule would

generate. While the Second Circuit had no difficulty classi-

fying a retaliation claim as a particular instance claim, it has

remanded for district courts to consider in the first instance

whether the following claims must be exhausted: a claim

that an inmate was denied access to his legal documents,

Royster, 2001 WL 388051, at *2; a claim that an inmate’s mail

was seized, Marvin, 2001 WL 686838, at *1-*2; a claim that a

directive promulgated by prison employees abridged an

inmate’s right to freedom of religion, ibid; and a claim that an

inmate was denied adequate medical care when prison

employees failed to allow him to obtain root canal surgery

from a dentist, ibid. The Second Circuit has also left open

for future litigation “the question of whether exhaustion is

required if the challenged conduct is undertaken pursuant to

a prison policy which vests discretion in correctional em-

ployees to act or not act, e.g., a policy providing that an em-

ployee should perform some act if it is ‘reasonably’

warranted by the circumstances.” /d. at *3 n.2.

17

The complaint in this case illustrates that even an exces-

sive force claim may resist easy characterization. Respon-

dent’s complaint centers on one specific incident of alleged

excessive force. Pet. App. A3. But his complaint also alleges

that correction officers subjected him to a sustained pattern

of harassment and intimidation because of his perceived

friendship with the Governor of the State of Connecticut.

Ibid. Thus, respondent’s complaint, like many inmate

complaints, fairly can be characterized as challenging both a

systematic practice and a particular instance of alleged

misconduct.

The Second Circuit’s interpretation thus invites sub-

stantial collateral litigation on whether a claim must be ex-

hausted. Having adopted an exhaustion requirement in

order to help reduce the crushing burden that prison law-

suits impose on courts, Congress could not have intended for

there to be extensive pleadings, hearings, and possibly trials

simply to determine whether a claim must be exhausted.

This Court has previously recognized that the attempt to

separate particular instance claims from other prison con-

dition claims provokes wasteful litigation. In Bronson, the

Court noted that its holding that all prison petitions may be

referred to magistrates “furthers the policy of the Act be-

cause its simplicity avoids the litigation that otherwise

would inevitably arise in trying to identify the precise con-

tours of [an] exception for single episode cases.” 500 U.S. at

143. The Court added that such an exception “would gener-

ate addition.: work for the district courts because the

distinction between cases challenging ongoing conditions and

those challenging specific acts of alleged misconduct will

often be difficult to identify.” did. Many prison petitions,

the Court explained, “could fairly be characterized as chal-

lenging both ongoing practices and a specific act of alleged

misconduct.” Jd. at 143-144.

18

Similarly, in Wilson, the difficulty of drawing a distinction

between “short-term” or “one-time” prison conditions and

“continuing” or “systematic” conditions played a significant

role in the Court’s rejection of that distinction as a basis for

determining whether proof of a culpable state of mind is re-

quired to establish an Eighth Amendment violation. 501

U.S. at 300. The Court explained that “[a]part from the

difficulty of determining the day or hour that divides the two

categories (Is it the same for all conditions?), the violations

alleged in specific cases often consist of composite conditions

that do not lend themselves to such pigeonholing.” Jd. at

301. The Court also “wonder[ed] whether depriving all the

individual prisoners who are murderers would suffice; or all

the individual prisoners in Cellblock B.” Jd. at 299 n.1. The

Court concluded that the proposed distinction “defies ra-

tional implementation,” id at 301, and is not only “unsup-

portable in principle but unworkable in practice,” id. at 299

n.l. The practical considerations discussed in Bronson and

Wilson are equally applicable here.

D. Congress Changed The Exhaustion Provision To

Broaden Its Scope, And Creating An Exception For

Actions Challenging Particular Instances Of Alleged

Misconduct Would Contravene That Purpose

Before the PLRA amended Section 1997e(a), a district

court had discretion to require a state inmate to exhaust a

claim brought pursuant to 42 U.S.C. 1983 if the court

determined that exhaustion would be “appropriate and in

the interests of justice,” and if the State afforded remedies

for the claim that were “plain, speedy, and effective.” 42

U.S.C. 1997e(a)(1) (1994). Before ordering exhaustion, a

court was also required to determine that the state proce-

dures satisfied minimum standards of fairness and effec-

tiveness. 42 U.S.C. 1997e(a)(2) (1994). In addition, rather

than ordering a dismissal of the case pending exhaustion, a

19

court’s only option was to continue a case pending exhaus-

tion for a period of not more than 180 days. 42 U.S.C.

1997e(a)(1) (1994). Nonetheless, that exhaustion require-

ment applied to all actions filed by inmates under Section

1983 and therefore unambiguously included actions chal-

lenging particular instances of alleged misconduct. 42 U.S.C.

1997e(a) (1994).

In the PLRA, Congress made substantial changes in

Section 1997e(a) to expand the scope and ease the application

of the exhaustion requirement. In place of the previous ver-

sion, Congress substituted a broad and firm mandate that

“{njo action shall be brought with respect to prison condi-

tions under section 1983 of this title, or any other Federal

law” by an inmate “until such administrative remedies as are

available are exhausted.” 42 U.S.C. 1997e(a) (Supp. V 1999).

That provision (1) eliminates the requirement that state re-

medies must be “plain, speedy, and effective,” (2) eliminates

the requirement that administrative remedies must satisfy

minimum standards of fairness and effectiveness, (3)

eliminates a court’s discretion to waive exhaustion when it

would not be “appropriate” or “in the interests of justice,” (4)

requires dismissal of an action for failure to exhaust, rather

than a continuance for not more than 180 days, and (5) ex-

tends exhaustion to claims brought under any federal law.

See Booth, 121 S. Ct. at 1824-1825 & n.5.

It is “highly implausible” that the Congress that adopted

“an obviously broader exhaustion requirement” intended to

permit the many inmates who challenge particular instances

of alleged misconduct to “skip the administrative process”

and go directly to federal court. 121 S. Ct. at 1825. That is

particularly true in light of the original version of Section

1997e(a)’s unambiguous application to actions challenging

particular instances of alleged misconduct. If the court of

appeals’ interpretation were correct, it would mean that at

the same time that Congress widely expanded the scope of

20

the exhaustion requirement, it simultaneously dramatically

cut back on it.

As the court of appeals noted (Pet. App. A6), the PLRA

inserted the phrase “with respect to prison conditions” into

Section 1997e(a), and some meaning must be given to that

addition. But that phrase can be given meaning without

undermining the underlying purpose of the exhaustion

requirement’s revisions. The phrase “with respect to prison

conditions” serves at least one limited but important func-

tion: it eliminates the new mandatory exhaustion require-

ment for claims that concern pre-incarceration incidents,

such as an action alleging excessive force by an arresting

officer, or an action alleging that a pre-incarceration em-

ployer engaged in discrimination in violation of Title VII. In

a provision requiring mandatory exhaustion of prison

grievance procedures, it would have made little sense to

have required exhaustion of such claims. There is no com-

parable reason for Congress to have excluded actions chal-

lenging particular instances of alleged misconduct that occur

while an inmate is confined. To the contrary, a principal

purpose of prison grievance procedures is to address claims

of that kind.

E. The Legislative History Does Not Support An Ex-

ception For Particular Instances Claims

The legislative statements made during the course of

Congress’s consideration of the PLRA also support a broad

reading of the exhaustion requirement. In discussing the

prisoner lawsuits that prompted the PLRA, the proponents

referred to the numerous suits involving isolated incidents,

including: the failure to provide sufficient locker space; a

defective haircut by a prison barber; the failure of prison

officials to invite an inmate to a pizza party; the service of

chunky peanut butter rather than creamy; the denial of the

use a Game Boy; the issuance of Converse shoes rather than

21

Reebok or L.A. Gear; a clean-up of a flooded cell that re-

‘sulted in pinochle cards getting wet; and a search of a cell in

which clean and dirty clothes were mixed together. 141

Cong. Rec. at 14 579 (Sen. Dole); id. at 26,548 (Sen. Dole); id.

at 26,553 (Sen. Hatch); ibid. (Sen. Kyl); id. at 27,042 (Sen.

Hatch).

The proponents did not refer directly to excessive force

claims. In discussing the need for the PLRA, however, its

sponsors could hardly be expected to discuss all the claims

that would be subject to exhaustion. In pressing their case

for a change in the law, the sponsors understandably se-

lected the most egregious examples of lawsuits filed by

inmates. In addition, while no sponsor referred to excessive

force claims directly, one of the sponsors referred to the

propensity of inmates to file cruel and unusual punishment

claims, 141 Cong. Rec. at 14,570 (Sen. Dole), a category that

includes excessive force claims. Furthermore, an opponent

of the legislation pointed out that excessive force claims, like

the claims discussed by the proponents, would be affected by

the legislation, id. at 27,044 (Sen. Biden), and no proponent

contradicted that assertion. Nothing in the legislative

history remotely suggests that the sponsors intended to

exclude excessive force or other isolated incident claims

from the exhaustion requirement’s coverage.

F. The Definition Of Prison Conditions In 18 U.S.C.

- 3626(g) (Supp. V 1999) Supports A Broad Construc-

tion of That Term In The Exhaustion Provision

The court of appeals concluded that the definition of

“prison conditions” in 18 U.S.C. 3626(g)(2) (Supp. V 1999)

supported its interpretation of the exhaustion requirement.

Pet. App. Al2-A16. That definition is included in a separate

section of the PLRA addressed to limitations on prospective

relief and provides that, “[a]s used in this section, * * * the

term ‘civil action with respect to prison conditions’ means

22

any civil proceeding arising under Federal law with respect

to the conditions of confinement or the effects of actions by

government officials on the lives of persons confined in

prison, but does not include habeas corpus proceedings

challenging the fact or duration of confinement in prison.” 18

U.S.C. 3626(g)(2) (Supp. V 1999). The court of appeals’ re-

liance on that definition is misplaced. To the extent it is

relevant, that definition encompasses particular instances of

alleged misconduct and so supports a broad reading of the

PLRA’s exhaustion requirement. Even if it excluded them,

however, it would not affect the construction of the PLRA’s

separate exhaustion requirement.

1. The definition in Section 3626(g)(2) tracks the

distinction drawn by the Court in Preiser between actions

that inmates may bring pursuant to Section 1983 and actions

that they may bring only by filing a petition for a writ of

habeas corpus. Preiser used the phrase “conditions of their

confinement” to describe the former category, 411 U.S. at

498, and “challenge [to] the very fact or duration of the con-

finement” to describe the latter, id. at 499. Because the

Section 3626 definition “so clearly parallels” the decision in

Preiser, it should be interpreted in accordance with that

decision. Bronson, 500 U.S. at 142.

As previously discussed, Preiser used the phrase “con-

ditions of confinement” to include particular instances of

alleged misconduct. The term “conditions of confinement” in

the Section 3626 definition therefore includes that class of

claims as well. The decisions in Bronson, and Wilson, which

adopted similar definitions of “conditions of confinement,”

reinforce that conclusion. See pp. 10-11, supra. The court of

appeals concluded that the phrase “conditions of confine-

ment” is not an “apt” way to describe particular instances of

alleged misconduct. Pet. App. Al0. But that assessment

ignores the decisions in Preiser, Bronson, and Wilson. In

light of those decisions, the phrase “conditions of confine-

23

ment,” when contrasted with “habeas corpus proceedings

challenging the fact or duration of confinement in prison,” is

a particularly “apt” way to encompass particular instances of

alleged misconduct.

2. The phrase “the effects of actions by government

officials on the lives of persons confined in prison” (18 U.S.C.

3626(g)(2) (Supp. V 1999)) is even better suited than the

phrase “conditions of confinement” to capture challenges to

particular instances of alleged misconduct. Its evident pur-

pose is to make doubly sure that a particular instance of al-

leged misconduct would not be excluded from the definition.

The court of appeals viewed that phrase as too “awkward”

to capture particular instances of excessive force. Pet. App.

All. As the Third Circuit has explained, however,

particular instances of excessive force affect the lives of in-

mates in the same way as other adverse prison conditions—

“(t]hey make their lives worse.” Booth, 206 F.3d at 295.

There are undoubtedly more precise ways to describe parti-

cular instances of excessive force. But Congress had to

choose a general phrase that would capture a wide variety of

practices not just uses of excessive force. The phrase it

selected effectively serves that purpose.

3. The court of appeals also drew on the background and

purposes of Section 3626 to interpret its definition narrowly.

In particular, the court concluded that, because the primary

purpose of Section 3626 is to prevent courts from micro-

managing prisons through broad-based decrees directed to

high-ranking prison officials, the term “government officials”

in Section 3626(g)(2) must refer only to “administrative and

policymaking officials,” Pet. App. Al3, and not to “lower

level government employees, such as corrections officers,”

id. at A15; see generally id. at Al2-A15.

That construction of Section 3626 is mistaken. Congress

crafted an expansive definition embracing the actions of all

government officials, not just policymaking officials. Com-

24

pare 50 U.S.C. 403-3(b)(5) (Supp. V 1999) (limiting provision

to “policymaking officials”); 18 U.S.C. 2705(a)(1)(B) (limiting

provision to “supervisory official”); 42 U.S.C. 2000aa-11(a)(4)

(same). Correction officers, no matter what their rank, are

still “government officials.” See Crawford-El v. Britton, 523

U.S. 574, 577, 581, 585 (1998). But to the extent that the

specific purposes of Section 3626 are relevant, they counsel

against transplanting a definition from that section that is

expressly limited to defining the term “as used in this

section.” In other words, even if the Section 3626 definition

were construed to exclude particular instances of alleged

misconduct for purposes of that Section, it would not furnish

a basis for construing the PLRA’s separate exhaustion

provision in the same way. Bronson, 500 U.S. at 142 (“the

fact that Congress may have used the term ‘conditions of

confinement’ in a different sense in legislation having a

different purpose cannot control our interpretation of the

language in this Act”); United States v. Cleveland Indians

Baseball Co., 121 S. Ct. 1433, 1440-1443 (2001) (refusing to

give the phrase “wages paid” the same interpretation in the

“discrete taxation and benefits eligibility contexts” when the

concerns that animated treatment of backpay in the benefits

context had “no relevance to the tax side”); see Vermont

Agency of Natural Res. v. United States, 529 U.S. 765, 783 &

n.12 (2000) (refusing to apply a section-specific definition of

“person” to a different section, where the definition departed

from the usual meaning of that term); compare H.J. Inc. v.

Northwestern Bell Tel. Co., 492 U.S. 229, 239-240 (1989)

(adopting a definition applicable to a different section when

there was “no reason to suppose that Congress had in mind

* * * any more constrained a notion”).

25

G. Neither McMillian Nor The General Rule That Claims

Under Section 1983 Need Not Be Exhausted Supports

The Court Of Appeals’ Interpretation

The court of appeals cited two additional considerations in

support of its interpretation—the holding in McMillian that

excessive force claims have a different standard of proof

from other cruel and unusual punishment claims, and the

general rule that Section 1983 claims do not have to be ex-

hausted. Pet. App. Al6-A17. Neither provides a basis for

excluding particular instance claims from the scope of the

PLRA’s exhaustion requirement.

1. In McMillian, the Court held that in order to establish

that a malicious and sadistic use of excessive force violates

the Eighth Amendment, it is not necessary to show that

serious harm has resulted. 503 U.S. at 7-11. The Court dis-

tinguished excessive force claims from other Eighth Amend-

ment claims, which require such a showing. /d. at 8-9.

Referring to the other Eighth Amendment claims as “con-

ditions-of-confinement” claims and “medical needs” claims,

id. at 9, the Court gave the following explanation for the

distinction:

In the excessive force context, society’s expectations

are different. When prison officials maliciously and sa-

distically use force to cause harm, contemporary stan-

dards of decency always are violated. This is true

whether or not significant injury is evident.

Id. at 9 (citation omitted).

McMillian shows that it is linguistically possible to use

the phrase “conditions of confinement” in a way that ex-

cludes instances of excessive force and deprivations of medi-

cal needs, a point previously noted. See pp. 10-11, supra.

The question here, however, is not whether it is linguistically

possible to use the phrase “prison conditions” in that way.

Instead, the question is whether that is what Congress in-

26

tended in the specific context of the PLRA’s exhaustion

provision. As we have discussed, the factors bearing on that

question overwhelmingly establish that the phrase “prison

conditions” in the exhaustion provision encompasses parti-

cular instances of misconduct, including particular instances

of excessive force. Nothing in McMillian suggests other-

wise. Indeed, McMillian’s holding that a malicious use of

excessive force is cruel and unusual without proof of serious

harm, while other Eighth Amendment claims require such

proof, has no relevance here. The standards for proving a

particular claim in court have no bearing on whether it is

appropriate to require an inmate to raise that claim in a

prison grievance process before filing suit.

The court of appeals nonetheless concluded that Mc-

Millian is significant in the present context because the

purpose of exhaustion is to filter out claims that are

“frivolous as to subject matter,” and McMillian establishes

that excessive force claims do not meet that description.

Pet. App. Al7. The text of the exhaustion provision, how-

ever, applies to any action that challenges prison conditions,

not just those that challenge conditions that are “frivolous as

to subject matter.” Compare 42 U.S.C. 1997e(c)(2) (Supp. V

1999) (authorizing dismissal of any claim that “is, on its face,

frivolous”). ‘

Nor is there any other basis for the court of appeals’ gloss

on the statute. Requiring exhaustion of claims that are fri-

volous as to subject matter undeniably advances the pur-

poses of the exhaustion requirement. But, as we have dis-

cussed (pp. 12-15, supra), exhaustion requirements apply

and serve beneficial purposes for legitimate, as well as

frivolous, claims. Moreover, claims that are not frivolous as

to subject matter can still be frivolous. McMillian requires

proof of malice, but not serious harm. There is no reason to

think that allegations of malice by prisoners can never be

frivolous. Because there is no basis for limiting the ex-

oe

27

haustion requirement to claims that are frivolous as to

subject matter, McMillian is inapposite here.

2. The court of appeals similarly erred in concluding (Pet.

App. A17) that the PLRA’s exhaustion requirement should

be construed narrowly in order to give “full effect” to the

general rule of non-exhaustion in actions brought under 42

U.S.C. 1983. In several cases, this Court has construed an

exception to a statute narrowly when a broader construction

would defeat the primary policy of the statute. City of

Edmonds v. Oxford House, Inc., 514 U.S. 725, 731-732 (1995);

Commissioner v. Clark, 489 U.S. 726, 739 (1989); A.H.

Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945). The

PLRA’s exhaustion requirement, however, is part of a com-

prehensive set of measures designed to address the

' extraordinary problems posed by prisoner lawsuits; it ap-

plies expressly to actions under Section 1983 and to actions

under any federal law; and it represents a deliberate and

dramatic departure from prior law. Moreover, it was a delib-

erate effort to expand the exhaustion requirement to cover

more claims. It is therefore inappropriate to begin with a

presumption that Congress intended for the PLRA’s

exhaustion requirement to be construed narrowly. Miller v.

French, 530 U.S. 327, 340-341 (2000) (refusing to apply a pre-

sumption against interpreting statutes to reduce equitable

discretion when it was clear that Congress was trying to re-

duce equitable discretion).

In any event, the primary purpose of Section 1983 is “to

provide a remedy for the violation of federal rights,” Craw-

ford-El, 523 U.S. at 595, and interpreting the exhaustion

requirement to apply to actions challenging particular in-

stances of alleged misconduct does not defeat that purpose.

Inmates can continue to obtain a remedy for a violation of

their federal rights; they simply need to raise their claims in

the administrative process first.

28

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

AUGUST 2001

THEODORE B. OLSON

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

BARBARA L. HERWIG

PETER R. MAIER

Attorneys