# Opposition Brief — Woodford v. Ngo

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0222%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 81

## Text

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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RESPONDENT'S BRIEF IN OPPOSITION ....00.............00.
SUPE vain dssisuis uptbas-dinasiniieencecsietiliniesteisabcivaepicinsndinisseledaliiciaisiande 2
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

ae inicwibiviahintinnsenaabepnciiciebdndaeninndieiinneiion 17
RE ee solansininidaltedesiiatonasetiobedeneniitdoiiegel 19

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
G2 UF EB FPP cic sccnnscserecntniesepinecstesnmsigataniaamuns 1. 10.12
BOT) Ba OTP OCAZD cisseisnsccceissnstcerdisineommianammnatn |2
FEU BE; 6 TENE wisrctctestnacctherntsssndscepcuitemmeaiale 15

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0222%3A03. Public record. Not legal advice.