Opposition Brief — Woodford v. Ngo

OCT 1 3 2005

ge

(PRICE OF THE CLE

——

AK

IN THE

Supreme Court of the Hinited States

JEANNE S. WOODFORD

AND ANTHONY P. KANE.

Petitioners.

Viet MIKE NGO.

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DONALD B. AYER MriR FEDER

JONES DAY (Counsel of Record)

3] Louisiana Avenue, N.W. CHuartes R.A. MORSE

Washington. D.C. 2000] JONES Day

(202) 879-3939 22? Last 41} st Street

New York. NY 10017

(212) 326-3939

October 13. 2005 Counsel for Respondent

—————E

a

QUESTION PRESENTED

Whether the court below properly declined to read a

procedural default rule into the Prison Litigation Reform

Act's exhaustion provision. 42 U.S.C. § 1997e(a).

Which states that a prisoner may not bring a federal

action challenging prison conditions “until such

administrative remedies as are available are exhausted”

and makes no reference to procedural default.

TABLE OF CONTENTS

Page

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REASONS FOR DENYING THE PETTTION.......00... 7

1. THE QUESTION PRESENTED WOULD

BENEFIT FROM FURTHER PERCOLATION. ......8

Hl. THE NINTH CIRCUIT WAS CORRECT ON

THE MERITS OF THE QUESTION

PTE sitccivtecisiiiinsovadyiniiinacinininsleieiioinapigidaeniainipit 10

Hil. (F. HOWEVER, THE COURT DECIDES THAT

THE QUESTION PRESENTED MERITS

REVIEW, THIS CASE PRESENTS THE BEST

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TABLE OF AUTHORITIES

Page

Cases

Booth v. Churner.

nr ne a i 12. 13

EEOC vy. Commercial Office Products Co..

RR a eee e ame Se 6, 12

Engle v. Isaac.

it Sef ESIRESERE ER Senenen re eae TAN Cae ree A 1]

Franklin v. Johnson,

ee le Be iicicitiicinnecisciieetinctspetieebcteitaacin 11

Giano v. Goord.,

ce Bl BN iscttctesiceeesesnscocsinntasiseedeindel 8.9

Grav v. Netherland.

NT: ae 1]

Oscar Mayer & Co. v. Evans.

Ie RUIN cick all i i2

Harris v. Reed.

nS 14

Jackson v. Johnson,

I 1]

Johnson vy. Meadows,

ee EE ie |) ra passim

Lambrix v. Singletary.

RUE Oe aR aol a Tew 14

Lee v. Aemna.

aR Te hs SEMI ier eae RONDO TENT a RoR Rp 14

TABLE OF AUTHORITIES

(Continued)

Page

Porter v. Nussle,

SEG 4I.G., SOG CITED scrccscivivsnssvsccsescesinisiinentivats 7.12. 13.15

Pozo v. McCaughtry,

y SR Gedy, | & |, ena 8.9

Ross v. County of Bernalillo,

DGS F 3b TERE CIDE CW. BOD OD cisscsccccesactescnscbsrscossccacnsones 8

Spruill v. Gillis.

SIS Fe SEO CIE, BED vsnisccrercidlinvsciscsmninniiamnieta ny

Thomas v. Woolum.

isi mw Be J & a: | ENoeenmeeenr 8. 12. 16

United States v. Wells,

SO 8) Mh, GEE CAGE ncorwidsstdetancnctnsssiionndinbindenaanena 1]

Wainwright v. Svkes.

SID OLE. Fo EFT) ccnsseciceinincsisssstessutiesaibisiaiiaaanad 6. 14

Federal Statutes

GS URE B Fi Rcvsicasincsesesasésnspcrcctctodianiiapecsiutiamanaa passim

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State Statutes

Cal. Code Regs. tit. 15. § SOBA. Se).......rcrccccrresoscosescesseenens 15

TABLE OF AUTHORITIES

(Continued)

Page

Miscellaneous

Kermit Roosevelt 11], Exhaustion Under the Prison

Litigation Reform Act: The Consequence of

Procedural Error, 52 EMory L.J. 1771 (2003) ...... 15. 16

RESPONDENT'S BRIEF IN OPPOSITION

In this action under 42 U.S.C. § 1983. Respondent

Viet Mike Ngo. seeking damages and equitable relief.

alleges violations of his constitutional rights. principally

in the form of restrictions preventing him from

participating in religious. educational, and other prison

programs. Reversing the district court. the Ninth Circuit

properly declined to read a procedura! default bar into

the Prison Litigation Reform Act's (“PLRA”)

exhaustion provision (42 U.S.C. § 1997e(a)). and in

particular declined to hold that Respondent had forever

lost the right to pursue a federal civil rights action by

virtue of having filed a prison grievance that prison

administrators deemed to be outside the California

prison system's 15-day deadline.

In so doing, the Ninth Circuit concededly deepened a

circuit split on an important recurring question: whether

the PL.RA‘s exhaustion rule — that prisoners may not

file suit “until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a) —

incorporates an unwritten procedural default bar that

permanently excludes from federal court claims rejected

by prison administrators on procedural grounds. Five

circuits (the Second. Third. Seventh. Tenth. and

Eleventh) have held that the PL.RA does incorporate

such a bar. and two circuits (the Sixth and the court

below) have held that there is no such bar. Respondent

submits. however. that the time is not vet ripe for this

Court's review. because five circuits have yet to address

the issue and it would benefit from further percolation.

a

lurthermore. as explained in greater detail below. the

Ninth Circuit's decision was correct on the merits.

Respondent notes that another pending petition for

certiorari, from an Eleventh Circuit decision taking the

majority side of the split, presents the same question as

is at issue here. See Johnson v. Meadows, No. 05-6336.

lf this Court were to decide that. contrary to

Respondent's contention. the issue is ripe for review.

Respondent submits that his case is a better vehicle for

addressing it than is Johnson v. Meadows. This case.

unlike the Jo/ison case. presents the typical fact pattern

— a prisoner files an untimely grievance. has it rejected.

files suit in federal court. and faces the argument that he

has defaulted his federal claim by failing to grieve in a

timely fashion. In Jo/fnson, in contrast. the prisoner

made no effort to exhaust. bypassing the grievance

process entirely: he availed himself of the grievance

process only later, after the district court dismissed his

initial suit. Moreover. the opinion below is more fully

reasoned than the opinion in Jo/mson. which reterred to

the opposing authority only summarily.

STATEMENT

This case arises out of a series of events that began

when Respondent Ngo was placed into administrative

segregation at San Quentin State Prison in California on

October 26. 2000. as punishment for alleged

“inappropriate activity” with volunteer Catholic priests.

Pet. App. 2.

On December 23. 2000. Ngo was released from

administrative segregation. but Petitioner Kane. the

Chief Deputy Warden. with the knowledge and approval

of Petitioner Woodford. the Warden. prohibited him

ae

from participating in any “Special Programs.” including

religious and educational programs. and from

communicating with a particular volunteer in the San

Quentin Catholic Chapel.

Afier an informal attempt to have the restrictions

discontinued failed. Ngo submitted a formal appeal of

this disciplinary action against him to the prison

Appeals Coordinator. The Appeals Coordinator refused

to accept it for filing on the ground that Ngo had not

filed it within 15 days of “the event or decision being

appealed.” as required by California prison regulations.

Id. at3. The Appeals Coordinator also rejected. on the

same grounds. a subsequent filing in which Ngo argued

that his appeal was timely because the ongoing

disciplinary action amounted to a series of continuing

violations. the most recent of which had taken place less

than 15 davs betore the filing date. /d.

On July 11. 2001, Ngo filed a verified complaint

against Petitioners pursuant to 42 U.S.C. § 1983.

alleging that Petitioners’ conduct with respect to the

disciplinary action and restrictions violated the First

Amendment rights to free exercise of religion and free

speech: denied him due process: and defamed him. Pet.

App. 3. Ngo turther alleged that he had exhausted all

available administrative grievance procedures. noting

that he had submitted two appeals but that the Appeals

Coordinator had declared them untimely and refused to

process them. /d. at 23.

Petitioners moved to dismiss the complaint. arguing.

among other things. that Ngo’s filing of the two

grievances deemed untimely was insufficient to exhaust

his administrative remedies in the prison grievance

system, as required by the PLRA. /d. at 22. The District

4

Court granted the defendants” motion on failure-to-

exhaust grounds. /d. at 25.

On appeal. Ngo argued that he had proceeded as far

as he could go in the prison grievance system. and that

the basis for the system's rejection of his claims —

prison timeliness rules —- was of no moment under the

PLRA, which requires only that prison remedies be

“exhausted.” The Ninth Circuit (Pregerson. J.) agreed.

expressly rejecting Petitioners’ argument that. even

though Ngo had no remaining remedies available in the

prison grievance system. his allegedly untimely filing

amounted to a failure to exhaust under the PLRA. The

court reasoned that Petitioners” argument “confuses the

doctrines of exhaustion and procedural default”:

exhaustion. the Ninth Circuit explained. is a timing

doctrine that merely “bars a remedy in federal court if

one is still available in the state's administrative

system.” whereas procedural default permanently bars

federal courts from considering claims that are

procedurally barred in the state system. /d. at 9. The

court then concluded that the PLRA contains only an

exhaustion requirement, not a procedural default rule.

The Ninth Circuit recognized that the majority of

circuits to address the issue have concluded that the

PLRA should be read to include a procedural default

rule. but —- after carefully discussing the opinions of the

Third. Sixth. Seventh. and Tenth Circuits. id. at 11-13

aligned itself with the Sixth Circuit on the minorits

side- of the circuit split. [he court emphasized that

Whereas the plain language of the PLRA_ expressly

requires exhaustion. nothing in the statute's language

“mentions procedural default or indicates an intent to

bar suits by prisoners who. fail to meet administrative

‘nn

time requirements.” /d. at 15. The court also noted that

the PLRA‘s use of the phrase “until such administrative

remedies as are available are exhausted” indicated that

Congress intended the exhaustion requirement as a

timing rule (postponing a federal suit until the prisoner

satisfied the exhaustion requirement). rather than as a

complete bar to suit in federal court. /d. In addition. the

court cited Ninth Circuit authority holding that “long-

established differences between the — exhaustion

requirement and the procedural default doctrine

preclude any conclusion that Congress implicitly

intended to reach one by a statutory reference to the

other.” /d. at 18-19 (internal quotation marks omitted).

Furthermore. in addition to these arguments based on

the language of the statute. the Ninth Circuit noted that

engrafling a procedural default rule onto the PLRA’s

exhaustion requirement would have the effect of

drastically reducing the limitations period for prisoner

§ 1983 actions. In California. the two-year § 1983

limitations period “would effectively shrink to fifteen

working days” — the limit imposed in the prison

grievance system. /d. at 20 & n.4. Moreover. allowing

procedural defects to forever bar even meritorious

claims would give prison adMinistrators “an incentive to

fashion grievance procedures which prevent or even

deteat™ such claims. /d. at) 21. The court emphasized

that the PLRA did not aim “simply to make things

harder for inmates. irrespective of the merits of their

claims.” /d. at 20 n.4.

In declining to craft a procedural detault rule. the

Ninth Circuit rejected an analogy relied upon by the

circuits that have chosen to create such a rule — to the

procedural default bar recognized in habeas corpus

6

cases. because “the reasons for utilizing procedural

default doctrine in the habeas context are generally

irrelevant to prisoner suits under the PLRA.” /d. at 20.

The court noted that the habeas procedural default rule

“has its origins in the adequate and independent state

ground doctrine.” id. at 9. and in the fact that a habeas

petition is a collateral attack on a state court judgment

that may rest on such a ground. In this content.

enforcing state procedural’ requirements is essential.

because “the state criminal process should be the "main

event’ rather than a “tryout on the road’ to a dispositive

federal habeas hearing.” /d. at 14 (quoting Wainwright

v. Svkes. 433 U.S. 72. 90 (1977)). Prisoners’ § 1983

suits. in contrast. “do not collaterally attack a prison

grievance proceeding.” and it is the federal suit. not the

grievance proceeding, that is the main event. Pet. App.

14. Moreover. unlike in habeas cases. where the

procedural standards at issue are those of a state court

system. “the standards governing suit in state or federal

courts are not necessarily adhered to during prison

grievance proceedings.” and the proceedings “are not

sufficiently judicial in nature to warrant preclusive

effect at all.” /d. at 15. The court ultimately determined

that the PLRA requirement that plaintifls exhaust prison

administrative remedies is more similar to other

administrative exhaustion requirements — where the

Supreme Court has declined to “implant| |" a procedural

default rule. see, e.g. EEOC v. Commercial Office

Prods. Co.. 486 U.S. 107 (1988) — than it ts to habeas

exhaustion. Pet. App. 18-20.

Finally. the Ninth Circuit) rejected the policy

argument. advanced by Petitioners and other circuits.

that the absence of a procedural default rule would

defeat the exhaustion requirement’s purpose of allowing

-

corrections officials to “take “corrective action .. . [that]

might improve prison administration and satisfy the

inmate.” /d. at 16 (ellipsis and brackets in original)

(quoting Porter v. Nussle. 534 U.S. 516, 524-25

(2002)). Prisoners are unlikely to intentionally default

their grievances. because the grievance process

represents “the fastest route to a remedy.” Pet. App. 16.

And. in any case. “the inmate must still submit his

untimely grievance” in order to exhaust. and_ that

submission satisfies the PLRA goal of “allowing prison

officials first crack at resolving prisoners” grievances.”

should they choose to accept the opportunity to hear the

case on the merits. /d. at 17.

Following the Ninth Circuit's decision, Petitioners

sought rehearing and rehearing en banc. both of which

were denied by order dated July 1. 2005. /d. at 27.

REASONS FOR DENYING THE PETITION

The petition for a writ of certiorari should be denied.

Respondent recognizes that the question presented is a

significant one, and that there is a split on the issue that

involves seven circuits. However. the split is) of

relatively recent vintage and five circuits have vet to

decide the issue. For that reason. the question could

benefit from further percolation. Further. the decision

below is correct on the merits.

Respondent notes. however. that there is another

pending petition presenting the same issue — Jo/mson

v. Meadows, No. 05-6336. a case trom the Eleventh

Circuit. Should the Court determine that the issue ts

worthy of review at this time. Respondent submits that

his case is a better vehicle for addressing the question

than is Jofmson. his case presents a more typical fact

pattern than Jo/fmson. in which the petitioner filed suit

before making any effort to file a grievance in the prison

system. Moreover. the opinion below is more fully

reasoned than the opinion in Jo/mson, which reterred to

the opposing authority only summarily.

I. THE QUESTION PRESENTED WOULD BENEFIT

FROM FURTHER PERCOLATION,

Petitioners are correct that the federal courts of

appeals are divided over the question whether “a

procedural-default bar should be read into the Prison

Litigation Reform Act’s exhaustion requirement.” Pet.

5. Indeed. the split is somewhat broader than Petitioners

suggest. Besides the Sixth and Ninth Circuits. which

have declined to read a procedural default requirement

into the statute (see Thomas v. Woolum, 337 F.3d 720.

731-33 (6th Cir. 2003): Pet. App. 20-21) and the Third.

Seventh, Tenth, and Eleventh Circuits. which have

grafted a procedural default requirement onto the statute

(see Spruill v. Gillis, 372 F.3d 218. 230 (3d Cir. 2004):

Pozo v. MceCaughtry. 286 F.3d 1022. 1024 (7th Cir.

2002): Ross v. County of Bernalillo. 365 F.3d 1181.

1186 (10th Cir. 2004): Johnson v. Meadows, 418 F.3d

1152. 1158-59 (11th Cir. 2005)). the Second Circuit has

joined the majority side of the split (see Giano v. Goord.

380 F.3d 670. 677-78 (2d Cir. 2004)).

But. while the split is fairly broad. it is not fully

mature. The first case addressing the question was Pozo

v. McCaughtry. which the Seventh Circuit decided in

April 2002. The Sixth Circuit parted company with the

Seventh in July 2003 in Thomas v. Woolum. The split is

thus only a litthe over two vears old. Although seven

circuits have taken positions on the issue. there remain

live circuits (the First. Fourth. Fifth. Eighth. and D.C.

9

Circuits) that have yet to address it. Given the frequency

with which the issue has been addressed since Pozo was

decided in 2002. it seems likely that several cf the

remaining circuits will be presented with the issue in the

near future.

Moreover. the courts on the majority side of the split

have not fully worked out all of the consequences of the

procedural default rule they have recognized — in

particular. whether and how a procedural default might

be excused. At least three courts have noted this

additional question, but only the Second Circuit in

Giano has gone on to address it. See Pozo, 286 F.3d at

1025 (reserving “the question whether plain-error

review or other merits-linked doctrines that may relax

procedural rules can relieve a defendant of a default in

the state's process”): Giano, 380 F.3d at 677-80 (noting

that “*[s]pecial circumstances” may exist that amount to

a “justification” for not complying with administrative

procedural requirements”): Pet. App. 21 n.5 (observing

that a procedural default doctrine would require

development of a “standard of review” for determining

whether the prison authorities had properly found a

default). And even the Second Circuit declined to

“attempt any broad statement of what constitutes

justification” for failing to exhaust. Giano, 380 F.3d at

678. If further percolation were permitted. the circuits

recognizing a procedural default rule might ameliorate

the effects of that rule — and thereby reduce the

consequences of the circuit split. and the need for this

Court to address it — by adopting a relatively

permissive standard for excusing such defaults.

10

Accordingly. the Court should deny certiorari in both

this case and Johnson v. Meadows. which presents the

same issue.

H. THE NINTH CIRCUIT WAS CORRECT ON THE

MERITS OF THE QUESTION PRESENTED.

Petitioners are incorrect in suggesting that this Court

should grant review to correct the Ninth Circuit's

purportedly erroneous ruling in this case. The Ninth

Circuit was correct in concluding that it would be

inappropriate to add a judicially created procedural

default rule to the PLL-RA’s exhaustion requirement.

Most importantly, there is nothing in the plain

language of the PLRA to support such a rule. Under the

PLRA,. “[njo action shall be brought with respect to

prison conditions ... by a prisoner confined in any ...

correctional facility waril such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a)

(emphasis added). The PLRA thus specifically creates

an exhaustion requirement. and conspicuously fails to

create a procedural default bar. Indeed. Petitioners

recognize that what they seek is the judicial creation of

a rule that cannot be found in the language of the statute

— as they say at more than one point in the petition.

what they are asking this Court to do is “read |a

procedural default bar] into the Prison Litigation

Reform Act's exhaustion requirement.” Pet. 5: see also

id. at 6 (“[ T]he Sixth and Ninth Circuits have declined

to read a procedural-delault mechanism into the Prison

Litigation Reform Act.”). Petitioners cite no authority

lor the proposition that the courts may add procedural

hurdles to § 1983 above and beyond what Congress

chose to impose.

Nor is there any basis for arguing that Congress failed

to mention procedural default because it intended the

term “exhausted” to incorporate. sub silentio, a:

procedural default rule. It is well-established that

“|e|xhaustion and procedural default are distinct

concepts .... The two doctrines developed

independently and on different grounds. apply in

different situations. and lead to different consequences.”

Franklin v. Johnson, 290 ¥.3d 1223. 1230 (9th Cir.

2002): see, e.g., Engle v. Isaac. 456 U.S. 107, 125-26

n.28 (1982): Jackson v. Johnson. 194 F.3d 641. 652

n.35 (Sth Cir. 1999).' In light of this well-established

distinction. it is clear that Congress intended its use of

the term “exhausted” to mean just that — exhaustion.

not procedural default. See United States v. Wells, 519

U.S. 482. 495 (1997) ("|Wle presume that Congress

expects-its statutes to be read in conformity with this

Court's precedents. ”).

' Exhaustion refers to a requirement that the claimant use all available

state remedies. a requirement that is satisfied once no further state

remedies are available no matter what caused the remedies to be

unavailable. For example. in the habeas corpus context. the exhaustion

requirement is satistied = and does not bar a claim when state courts

reject the claim for failure to satisfy state procedural requirements. As

this Court has explained. “[bJecause this [exhaustion] requirement

refers only to remedies still available at the time of the federal petition. 11

is Satisfied if it is clear that the habeas petitioner's claims are now

procedurally barred under state law” Grav vy Netherland. S18 U.S. 152.

lol (1996) (internal quotation and brackets omitted). The procedural

default doctrine. in contrast. does bar claims that have been detaulted tor

failure to satisfy state procedural requirements. such as tmeliness

requirements. /c/ at 162.

12

Moreover. as the Sixth Circuit observed in Thomas v.

Woolum. had Congress desired to incorporate a

procedural deiault rule. it could casily have done so:

With the PLRA. Congress could have required

more than an exhaustion, requirement, but it chose

not to. Congress could have. for example. required

in § 1997e(a) that. “In exhausting available

administrative remedies. the prisoner shall comply

with the prison’s reasonable time limits for filing

grievances. Untimely claims shall be deemed

procedurally defaulted.”

337 F.3d at 731. Likewise. Congress could easily have

required that prisoner claims be “properly exhausted.”

but chose not to do so. See, ¢.g.. 28 U.S.C. § 2244(d)(2)

(expressly providing that tolling provision applies only

during the pendency of a “property filed” application for

state relief): see also Oscar Maver & Co. v. Evans. 441

U.S. 750. 759 (1979) (declining. in the absence of any

reference to timeliness in the statute. to import a

timeliness requirement into Age Discrimination in

Lmployvment Act provision requiring presentation of

grievances to state agency before filing federal suit):

EEOC v. Commercial Office Prods. Co., 486 U.S. 107.

124 (1988) (same result under Tithe Vil: “Tithe VIL. like

the ADEA, contains no express reference to timeliness

under state law”).

Instead of addressing the plain language of the PLRA.

Petitioners argue that the Ninth Circuit's decision is

somehow inconsistent with this Court's two opinions

rejecting proposed exceptions to the PLRA exhaustion

requirement — Booth v. Churner. 532 U.S. 731 (2001)

(no futility exception). and Porter vo Nussle, 534 U.S.

316 (2002) (no exception for incidents affecting “only

particular prisoners” rather than “prisoners generally”).

Pet. 6-9. However. the decision below had nothing to do

with creating an exception to the — exhaustion

requirement. and neither Booth nor Porter says

anything about a procedural default rule. Indeed, both

cases. if anything. support Respondent's position,

because both rely on requirements set forth in the

express language of the PLRA. See Booth. 532 U.S. at

738-40: Porter. 534 U.S. at 528. Here. the procedural

default mechanism the defendants seek is contained

nowhere in the plain language of the PLRA.

Nor can Petitioners find support in this Court's

creation of a procedural default rule in the habeas

context. In the habeas context. unlike here. the

requirements of the cause of action were largely

developed by the courts without specific statutory

guidance. Here. in contrast. there is a statute in which

Congress has specifically prescribed what procedural

hurdles the prisoner must satisfy —- to wit. exhaustion

simpliciter — and nothing indicating a delegation of

authority to the courts to add additional requirements.

Moreover. even if that were not the case. the Ninth

Circuit was correct in recognizing that the basis for the

habeas procedural default rule has no application here.

In habeas cases. which are collateral attacks on state

court judgments. the rule “has its historical and

theoretical basis in the ‘adequate and independent state

~The Ninth Circuit. far trom relying on an exception to the exhaustion

requirement. expressly found that “Ngo ex/ausicd all administrative

remedies available to him ... when he completed all avenues of

administrative review available to him.” Pet. App. 21 (emphasis added)

14

ground’ doctrine.” Harris v. Reed, 489 U.S. 255. 260

(1989)): accord Lee v. Kemna., 534 U.S. 362. 375

(2002). That doctrine is important in habeas cases

because it helps to ensure — by requiring criminal

defendants to properly present all of their claims in the

state courts, on pain of procedural default — that it is

the state-court trial that is (as it is supposed to be) “the

‘main event.” . . . rather than a “tryout on the road’ for

what will later be the determinative federal habeas

hearing.” Wainwright v. Svkes, 433 U.S. 72. 90 (1977).

Applying that doctrine also helps to prevent the

anomalous result that “a federal district court or court of

appeals would be able to review claims that [the

Supreme Court] would have been unable to consider on

direct review.” Lambrix v. Singletary, 520 U.S. 518, 523

(1997) (citing Coleman v. Thompson. 501 U.S. 722.

730-31 (1991)).

None of these considerations applies in the PLRA

context. A suit by a prisoner pursuant to § 1983 is not an

attack on a state judgment. and accordingly there is no

concern that the federal court is reviewing a judgment

that rests on an adequate and independent state ground

andor would not have been reviewable on direct

review. Moreover. it is quite clear that under the PLRA.

the prison administrative process that must be exhausted

is not designed to be the “main event.” and the § 1983

action a mere review of that determination. It is the

§ 1983 action — the federal suit that is the main

event. and it is entirely independent of the prison

gricvanee proceedings: as the Ninth Circuit noted. the

“[plrison grievance proceedings are not sufficientl

judicial in nature to warrant preclusive effect.” Pet. App.

15. In short. the reasons that compelled the creation of a

‘A

procedural default doctrine in habeas law have no

application to the PLRA.

Finally. Petitioners’ policy argument — that the

PLRA exhaustion requirement will be rendered

meaningless if prisoners are permitted to “exhaust”

administrative remedies by disregarding them.” Pet. 8

— does not withstand scrutiny. As an initial matter. a

prisoner has no strategic incentive to “disregard||~ the

prison grievance process. because the result of that

process, unlike a state-court ruling in the habeas context

(see 28 U.S.C. § 2254(d)(1)). receives no deference in

and has no effect on the subsequent § 1983 suit. See Pet.

App. 15: see also Kermit Roosevelt Il. Exhaustion

Under the Prison Litigation Reform Act: The

Consequences of Procedural Error, 52 EMORY L.J.

1771, 1810 (2003) (“Withholding a claim’ or

sandbagging in the administrative proceeding offers

inmates no strategic benefit.”).

In any event. even an inmate who for some reason

wants to evade the administrative process does not have

it in his power to do so: the exhaustion requirement

means that even an untimely prisoner must still file his

grievance before proceeding to court. and prison

Officials are thereby given. if they want it. what is

important under the PLRA: the “opportunity to address

complaints internally before allowing the initiation of a

federal case.” Porter v. Nussle. 334 US. at 325

(emphasis added). For example. in this case. under Cal.

Code Regs. tit. 15. § 3084.3(c). “the Appeals

Coordinator cou/d have considered Ngo’s appeal: [hle

16

was authorized to do so by the grievance regulations,

but elected not to.” Pet. App. 17 (emphasis in original).’

Moreover. significant policy concerns cut agains!

judicially creating a procedural default rule. As the

Ninth Circuit recognized. the short prison administrative

deadlines in California (as in many states) would

effectively impose a_ 15-working-day statute of

limitations on prisoners’ § 1983 actions. instead of the

longer limitations periods that normally apply. This

would necessarily result in the non-merits forfeiture of

many claims. particularly in view of the fact that

inmates navigating the administrative grievance process

are almost inevitably proceeding without the guidance

of counsel. There is no indication that Congress

intended the PLRA to result in such a wholesale

forfeiture of claims. Pet. App. 19-20. Had that been

Congress's intent. it could have directly imposed a

draconian statute of limitations on prisoner suits.’

The creation of a procedural default rule would also

cereale a perverse incentive for prison officials (who are

potential defendants) to defeat § 1983 claims by making

procedural requirements as onerous as possible. See

Thomas v. Woolum, 337 F.3d at 729 n3 (such

“incentives ... would likely lead to shorter and shorter

The same discretion ts available under most. if not all. state prison

vrievance s\stems. Sev Roosevelt, supra. at 1810.

' Moreover. the inmates most likely to fall into procedural error are

first-time litigants, who are /cas¢ likely to file the frivolous claims about

which Congress was concerned. More litigious inmates will have greater

hnow ledge of the system and be much more Itkely to satisfy procedural

requirements. C7 Pet. App. 29 (scheme “would penalize the less

sophisticated and less intormed™)

17

limitations periods’). Inmates’ rights under § 1983

would become subject to any procedural requirement

administrators choose to insist on, no matter how

arbitrary or unfair. Again. there is no indication that

Congress intended to create any such regime.

In sum, it is clear that Congress's statutory imposition

of an exhaustion requirement does not. sub silentio,

create a procedural default rule: that the reasons for the

procedural default doctrine in habeas corpus do not

apply to the PLRA: and that the absence of a procedural

default provision does not even remotely render the

PILRA exhaustion requirement “meaningless.”

Hl. iF, HOWEVER, THE COURT DECIDES THAT

THE QUESTION PRESENTED MERITS REVIEW,

THIS CASE PRESENTS THE BEST VEHICLE.

If this Court determines. contrary to Respondent's

contention. that the question presented is ripe for this

Court's review. Respondent submits that his case is the

appropriate vehicle for that review. There is another

pending petition that presents the same question —

Johnson v. Meadows. No. 05-6336. which arises from

Johnson v. Meadows. 418 F.3d 1152 (11th Cir. 2005). a

decision on the majority side of the circuit split — but

that case is not as suitable a vehicle.

One important distinction is that this case presents

what might be called the ordinary factual situation.

Respondent attempted to file prison grievances before

proceeding to federal court. and filed his § 1983 action

only afier the prison Appeals Coordinator rejected those

grievances. Pet. App. 3. In the Jo/mson case. the

prisoner filed his first federal lawsuit without even

attempting to avail himself of the prison grievance

18

system. 418 F.3d at 1154. He attempted to exhaust only

after the district court dismissed his complaint for

bypassing the prison grievance system. /d.

This distinction is significant. because it is possible

that the Court could conclude that the Jo/mson

petitioner's complete bypass of administrative remedies

before filing his first lawsuit — a true failure _ of

exhaustion — should have resulted in a dismissal with

prejudice. In that event. the Court might not reach the

question presented. In this case. in contrast. the facts

inescapably present the question whether a procedural

default requirement should be read into the PLRA.

Moreover. the Ninth Circuit's opinion below

addresses and discusses the reasoning of the case law on

* It is worth noting that this bypass contradicts the Jonson petition’ s

contention that that case presents the Court with a unique opportunity to

address what it calls a separate “* good faith exhaustion’ rule advanced by

the Second Circuit.” Petition for Certiorari at 19-20. Johnson v.

Meadows. No. 05-6336. As an initial matter, the Second Circuit's

position on the question presented here is no different from the position

of the Third. Seventh. Tenth, and Eleventh Circuits: As indicated earlier.

supra at 8-9. the Second Circuit reads the PLRA as including a

procedural default rule. and its discussion of good faith justification tor

failing to exhaust relates only to the further question of when a failure to

exhaust will be excused. See. e.g... Jolson. 418 F.3d at 1158 (citing

Second Circuit opinion in Giano v. Goord as one of the cases

recognizing procedural default rule).

In any event. Johnson's complete bypass of the prison grievance

system is inconsistent with good faith. and the Eleventh Circutt

specifically found that his failure to exhaust was “without good cause.”

418 &.3d at 1159. If anything. it is Respondent's case that reflects a

vood-faith effort to comply with the prison grievance system. as the

Ninth Circuit found that “Ngo gave the prison grievance process a chance

to work: indeed. it's debatable whether his appeal was even untimely ~

Pet. App. 17

19

both sides of the circuit splits Pet. App. 11-13. and

thereby provides a fully-considered opinion for review.

The Ninth Circuit also considered. and denied. en banc

review. In contrast. the Eleventh Circuit's opinion in

Johnson relegates the opposing authority to a brief “but

see” citation. 418 F.3d at 1158. and the full court was

never asked to consider en banc review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. AYER MEIR FEDER

JONES DAY (Counsel of Record)

51 Louisiana Avenue. N.W. CHARLES R.A. MORSE

Washington, D.C. 20001 JONES DAY |

(202) 879-3939 22? Last 41st Street

New York. NY 10017

(212) 326-3939

October 13. 2005 Counsel for Respondent