Amicus Curiae Brief — Woodford v. Ngo

FiLED

(4) FEB 2 - 2°73

OFFICE OF THE CLFR%

No. 05-416 SUPPEME COUT Us.

See ESN

IN THE

Supreme Court of the United States

JEANNE S. WOODFORD, ET AL.,

. Petitioners,

v.

VIET MIKE NGO,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF THE AMERICAN BAR ASSOCIATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

MICHAEL S. GRECO*

President

American Bar Association

321 N. Clark Street

Chicago, IL 60610

(312) 988-5000

*Counsel of Record

TABLE OF CONTENTS

Page

ES SON MEN Seithicinecicicaccenitpsinieictalaildesicnianiaciccniclaiiniien ]

SUMMARY OF ARGUMENT .........00:cccccccossessossssosesessseseossces 3

TE sinceitnn ith dlinnniieinsitiiasinaninliicinisiititiigictcannsttlimeniiads 5

I. Engrafting A Procedural Default Rule

Onto The PLRA Would Improperly Interfere

With A Prisoner’s Right To Pursue Valid

ee Rese cciiictitendcbcttectinietnindesinesitincons 5

li. A Procedural Default Rule Goes Beyond

The Text and Purpose Of The PLRA’s

Exhaustion ReGuixeimentt .....:0cccesccccsssccsescesesscocsseenseeces 8

III. The Court Should Not Import A Procedural

Default Rule From Habeas Corpus

I scrhinccinchniaticpiicciiaaminaniisennpniiedsdeninnies 13

STUNT <ihenniiuitvisinicinsinpincniniecliniaingnsinsiieninaninnipiiiviniats 17

li

TABLE OF AUTHORITIES

Page(s)

Cases

Booth v. Churner,

ey. Fe CGR sateirtasencsuterstccnncsiiicassiiiniidianebadiabbinitinia 18

Bounds v. Smith,

BS Ie F Ce OR iterciscchenaniteninitiiateintaitammnadsinnninte 3, 6

Burnett v. Grattan,

UD icetiteiininitaitetsadiriinititinaiiepetiinhaeiacaacivanionninte 12

Christina A. v. Bloomberg, !

a ee es i icitircciiniensecntitiisitenictisanicinintens 14

City of Rancho Palos Verdes, Calif. v. Abrams,

Se eee IT ciecesidiniestiesigtbinsinabitivnihicheiensiepsiiiiainbemnaios 10

Cleavinger v. Saxner,

CER Sa a ell Cas aR 17

Coleman v. Thompson,

| | ___EEERR eP n 5, 16

Crawford-El v. Britton,

aN, II ciiticiscliciietaigitnsicscicteiiiaibcibeiielidibtiigiiii 13

Edwards v. Balisok,

i Ne a ee ET ee Ine 16

EEOC v. Commercial Office Products Co.,

Ee Mis ctcnsenincinliasnceemsminassdnnnnimmditepmmied 4,12

Felder v. Casey,

Se Ss Ee CITI stnscerticensintssanesnnieniihiguieuninmanhipiceieanmaininniiéig 8

L.N.S. v. St. Cyr,

as ITD sticcicessinshioncndolsiiesiniinseseiabuniaisesinaeneiiall 2

Lewis v. Gagne,

281 F. Supp. 2d 429 (N.D.N.Y. 2003) .0..........ceseeseeeseees 14

111

Love v. Pullman Co.,

a iniccinntrittsaincininttaneiestijaannpinsiviniindiniunnien 13

McCarthy v. Madigan,

SI av, i cecsiencesanigasbicleiglitiaidihenitalianntaaiaaib 6, 14

Monroe v. Pape,

RS, TEE UII ocsicsninineniicnnpiubatasbiniataghddeghbiiaicbiacnsiitinioatcn 9

Muhammad v. Close,

NG, HITED siicsiinccsinnnnecenincstnidentecninsnnionscanniieniiin 6, 16

Nelson v. Campbell,

SO I i ncrrictaikintaiiiansitdiineciinadindintaniadanegbiatl 16

Occidental Life Insurance Co. v. EEOC, |

I SETI Tih stinicihuld arrniseinidichnnnndipetinepsabeienieniiindiials 12

Oscar Mayer & Co. v. Evans,

441 U.S. 750 (1979) .........08- brinevnpelobanganosnecisenaiianiil passim

Porter v. Nussle,

ee BT ciekdeishchieetigiaenicincitiiitiemisiinicaebasnaiiniaias 5,9, 19

Rompilla v. Beard,

es UNITED csesrnshpeiiinsipsnniiincidsiipaceniaimmmamptattiinnesiniandit 2

Rose v. Lundy,

Be A IT i ciciecicirnsinaiinatidpatiigtilibbtagendiedaiih 5, 16, 17

Spruill v. Gillis,

Fs Re nO 15

Strickland v. Washington,

EE aa ee eT ROE = 2

Strong v. David,

Se Sa EE ID DUI cccsesscetisicnsenscmensnennasensilicinamensdnats 8

Town of Castle Rock, Colo. v. Gonzales,

125 S. Ct.2796 (2005).......... dlaiatibeaadilicmediniiaiiideteiaadas 2

United States v. Wells,

ESE ee OE ne eae 7

iV

Wilkinson v. Dotson,

BD Bh, GG, Te GOOD sarcecesnsnstsancnesiescitcintypclietaieaamcaaial 15,17

Williams v. Taylor,

FP Wis BE GOOD cocccevcotssccciniivnnssnscittidiibiaguiiidmuaienieala 2

Statutes

GE RIBAS. © Be ccsectsinnnisvinicsvinniitnicicipaciialiaasaieaiaumnaaaael 6

GB WRIBAK © TE? cicteccinsincsvccisisceishinttniatiidaianaiiiemiiiiamaaaaaaae 6

AE ISIIE: 6 COIN soccer eee 7,9

oe Re is 8 Gh 8 PR eee 10

Other Authorities

541 Comm, Rac. SI4G1 1 (1995) ccccccecccccccsersccccossocencoesscesons 7,15

4 ABA Standards for Criminal Justice

BP GR Gl WPUIE nicieniscoiecseniscsthniionpcinintenasauitepniinaibeiiiaienidaends 2

4 ABA Standards for Criminal Justice

FB-S5 CAE, WB i ccnisintnstnicaniinitiiaicgen 3

Florida Corrections Commission 1999 Report, App. 4.3,

www.fcc.state. fl.us/fec/reports/final99/ap4-3.html............ 8

Lynn S. Branham, The Prison Litigation Reform

Act's Enigmatic Exhaustion Requirement:

What It Means and What Congress, Courts,

and Correctional Officials Can Learn from It,

86 CORNELL L. REV. 483, 518 (2001) 0... ccceeceteeeeeeeeees 17

Report of the American Bar Association

120B (1995 Annual Meeting)..............:..-scccscssresrssersessensess 3

U.S. Department of Education,

Literacy Behind Prison Walls (1994),

http://nces.ed.gov/pubs94/94102.pdf

(last visited December 26, 2005)..................:00000 soeenenneees 14

Regulations

Cal. Code Regs. tit. 15, § 3084.6(C) 0... cccceeeeeeeeeeeeereeenenes 7

INTEREST OF AMICUS!

The American Bar Association (“ABA”) is a voluntary,

national membership organization of the legal profession,

dedicated to the promotion of a fair system of justice. The

ABA’s more than 407,000 members include prosecutors,

public defenders, private attorneys, state and federal trial and

appellate judges,? legislators, law professors, law

enforcement and corrections personnel, law students, and

nonlawyer “associates” in allied fields. Since its inception,

the ABA has actively promoted improving the administration

of justice and increasing the availability and quality of legal

counseling to those who need it.

The ABA respectfully submits this brief amicus curiae

because of its longstanding commitment to ensure that

prisoners are afforded meaningful access to the courts so that

their constitutional rights are protected. More specifically,

the question presented by this case implicates matters

addressed by the ABA Standards for Criminal Justice, which

have been widely relied upon, including by this Court, as a

guide to criminal justice administration. See, e.g., Town of

| The parties have consented to the submission of this brief, and their

letters of consent have been filed with the Clerk. Pursuant to this

Court’s Rule 37.6, amicus represents that this brief was not written in

whole or in part by counsel for any party, and no person or entity

other than amicus or its counsel contributed money or services to the

preparation or submission of this brief.

2 Neither this brief nor the decision to file it should be interpreted to

reflect the views of any judicial member of the American Bar

Association. No inference should be drawn that any member of the

Judicial Division Council has participated in the adoption or

endorsement of the positions in this brief. This brief was not

circulated to any member of the Judicial Division Council prior to

filing.

Castle Rock, Colo. v. Gonzales, 125 S. Ct. 2796, 2805-06

(2005); Rompilla v. Beard, 125 S. Ct. 2456, 2465-66 (2005);

Wiggins v. Smith, 539 U.S. 510, 522-24 (2003); LN.S. v. St.

Cyr, 533 U.S. 289, 322 n.48 (2001); Williams v. Taylor, 529

U.S. 362, 396 (2000); Strickland v. Washington, 466 U:S.

668, 688-89 (1984). The Standards have been developed,

refined, and approved over more than thirty years by task

forces of the ABA comprised of prosecutors, judges, defense

lawyers, academics, and others, as well as by the wider and

diverse membership of the ABA.

The ABA has a long history of supporting the general

principle that, subject to several specific exceptions,

prisoners have certain basic constitutional rights. 4 ABA

Standards for Criminal Justice 23-1.1 (2d ed. 1983). The

ABA reaffirmed its commitment to this core principle in

1995 when it adopted a resolution that provides in part as

follows:

[A]s a general principle, prisoners retain the

constitutional rights of free citizens. Exceptions

to the foregoing are when restrictions are

necessary to assure orderly confinement and

interaction, when restrictions are necessary to

provide reasonable protection for the rights and

physical safety of all members of the prison

system and the general public, and when

Association policy or standards specifically

provide to the contrary.

Report of the American Bar Association 120B (1995 Annual

Meeting).

Several of the ABA Standards speak directly to the

issue in this case and support the Respondent’s position.

Most directly, Standard 23-2.1, entitled “Access to the

judicial process,” states:

Prisoners should have free and meaningful

access to the judicial process, governmental

authorities should assure such _ access.

Regulations or actions should not unduly delay or

adversely affect the outcome of a prisoner's claim

for relief or discourage prisoners from seeking

judicial consideration for their grievances.

Interests of institutional security and scheduling

may justify regulations that affect the manner in

which access is provided.

4 ABA Standards for Criminal Justice 23-2.1 (2d ed.

1983) (emphasis added).

SUMMARY OF ARGUMENT

1. “[{P]risoners have a constitutional right of access

to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977).

The Prison Litigation Reform Act of 1995, Pub. L. 104-134,

110 Stat. 1321 (1996) (“PLRA”), provides that a prisoner

who brings a claim under 42 U.S.C. § 1983 must first

exhaust the administrative remedies available in the prison

system. Some courts have broadened this statutory

requirement by demanding that prisoners also comply to the

letter with all procedural requirements crafted by prison

officials, including time limits, or be “procedurally

defaulted” and barred from bringing their federal lawsuits.

This case presents the question whether this judicially-

created “procedural default rule” should be upheld,

notwithstanding the fact that it is not mentioned in the text of

the PLRA, inhibits a prisoner’s constitutional nght of access

to the courts, and does not further the congressional policies

underlying the PLRA.

2. Because prison grievance procedures typically

provide short deadlines to file a grievance, sometimes as little

as a few days, the rule proposed by Petitioners would create

enormous practical barriers to the ability of prisoners—

including juveniles and illiterate prisoners—to pursue

meritorious civil rights claims. Nothing in the text or

legislative history of the PLRA suggests that Congress

intended such a drastic interference with a prisoner’s

constitutional right of access to the courts.

The creation of a procedural default rule unsupported

by statutory language is inconsistent with this Court’s

decisions with respect to other statutory schemes that include

administrative exhaustion requirements. Most notably, in

cases brought under Title VII of the Civil Rights Act of 1964

and the Age Discrimination in Employment Act, this Court

has held that a petitioner’s failure to meet a state-imposed

statute of limitations for filing an administrative grievance

does not constitute failure to exhaust administrative remedies

and does not bar the petitioner from pursuing the claim in

federal court. See EEOC v. Commercial Office Products Co.,

486 U.S. 107, 124 (1988); Oscar Mayer & Co. v. Evans, 441

U.S. 750, 762-63 (1979).

3. Circuits that have imposed a procedural default

rule in prisoner civil rights litigation have improperly

imported the rule from Coleman v. Thompson, 501 U.S. 722

(1991), with respect to habeas corpus petitions. This Court

explained that a procedural default rule furthers the purposes

underlying the requirement in the habeas context that state

judicial remedies be exhausted: “‘to protect the state courts’

role in the enforcement of federal law and prevent disruption

of state judicial proceedings.’” /d. at 731-32 (quoting Rose v.

Lundy, 455 U.S. 509, 518 (1982)).

The PLRA’s administrative exhaustion requirement,

however, was neither designed nor intended to preserve the

power of state courts, which have authority and expertise to

render decisions regarding the scope of constitutional and

other legal rights. Congress’s purpose in enacting the

PLRA’s administration exhaustion requirement was simply

to reduce the quantity and improve the quality of prisoner

suits by “afford{ing] corrections officials time and

opportunity to address complaints internally before allowing

the initiation of a federal case.” Porter v. Nussle, 534 U.S.

516, 524-25 (2002). This purpose is met so long as a

prisoner pursues a grievance through the grievance process,

though perhaps not necessarily in perfect compliance with

the short timelines often set by corrections officials. In other

words, so long as the grievance has been submitted to

corrections officials, they will have been afforded an

opportunity contemplated by Congress to resolve the

grievance internally, if they so desire.

-

ARGUMENT

I. Engrafting A Procedural Default Rule Onto

The PLRA Would Improperly Interfere

With a Prisoner’s Right To Pursue Valid

Constitutional Claims

1. “[PJrisoners have a constitutional right of access

to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977).

One of the principal means for a prisoner to pursue this

constitutional right is to file a complaint under the Civil

Rights Act of 1871 (as amended, 42 U.S.C. § 1983). See

Muhammad v. Close, 540 U.S. 749, 750 (2004).

Before the passage of the PLRA, a prisoner’s right to

initiate a civil rights lawsuit in federal court was subject to

the provisions of the Civil Rights of Institutionalized Persons

Act, 42 U.S.C. § 1997 (“CRIPA”). In interpreting the

provisions of the CRIPA against the backdrop of a prisoner’s

constitutional right of access to the courts, this Court in 1992

explained: “(t]he first of the principles that necessarily frame

our analysis of prisoner’s constitutional claims is that federal

courts must take cognizance of the valid constitutional claims

of prison inmates.” McCarthy v. Madigan, 503 U.S. 140,

153 (1992).

2. In 1996, Congress passed the PLRA, which

included a revised administrative exhaustion provision

stating that no action shall be brought by a prisoner under 42

U.S.C. § 1983 or other federal law with respect to prison

conditions “until such administrative remedies as are

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

did not change the principle that federal courts must take

cognizance of the valid constitutional claims of prison

inmates. See United States v. Wells, 519 U.S. 482, 495

(1997) (stating that the Court “presume[s] that Congress

expects its statutes to be read in conformity with th[e]

Court’s precedents”). Rather, as the legislative history

reveals, the purpose of the PLRA was to “prevent[] inmates

from abusing the judicial system,” 141 Cong. Rec. $14611

(1995) (statement of Sen. Hatch), while still “allow{ing]

meritorious claims to be filed.” 141 Cong. Rec. $14611

(1995) (statement of Sen. Thurmond).

3. Importing a procedural default rule into the

PLRA’s exhaustion requirement imposes barriers not

intended by Congress to prisoners’ exercise of the

constitutional right of access to courts, particularly given the

short time frames allowed for the filing of an administrative

grievance. The California Department of Corrections

(“CDOC”), which has custody of the Respondent, Viet Mike

Ngo, limits this period to fifteen days following “the event or

decision being appealed.” See Cal. Code Regs. tit. 15,

§ 3084.6(c). In some states, this deadline is as short as 48

hours. See Florida Corrections Commission 1999 Report,

Appendix 4.3, www.fcc.state.fl.us/fec/reports/final99/ap4-

3.html (last visited December 26, 2005).

As this Court has recognized, many victims of civil

rights violations will not recognize their right to legal redress

within even 120 days after a violation. Consequently, in

Felder v. Casey, 487 U.S. 131 (1988), the Court held that a

state’s notice-of-claim statute, which required that state and

local governmental officials be notified of a claim within 120

days of the event giving rise to it, was unenforceable in a

§ 1983 suit. Prisoners are even less equipped to recognize, in

far shorter periods of time, that their civil mghts have been

violated, that they have a legal right to redress, and that they

must file a grievance as a precondition to obtaining such

redress.

While the supposed procedural default at issue in this

case is Ngo’s alleged failure to file a grievance within fifteen

working days of “the event or decision being appealed,” the

procedures that prisoners are required to navigate are not

restricted to compliance with short filing deadlines, but they

may encompass a variety of pleading and other formal

requirements. See Strong v. David, 297 F.3d 646, 649 (7th

Cir. 2002) (holding that exhaustion has not occurred unless

the prisoner files a grievance in the place, at the time, and

with the level of detail required by the prison administrative

rules). Importing a procedural default rule into the PLRA’s

exhaustion requirement would contravene the very purpose

of § 1983 — to enable federal courts to redress civil rights

violations by state actors. See Monroe v. Pape, 365 US.

167, 180 (1961). A procedural default rule would enable

prison, jail, and other correctional officials, typically the

defendants in § 1983 suits brought by inmates, to craft their

grievance rules in ways that make it difficult or impossible

for prisoners to obtain access to the courts and vindicate their

constitutional and other civil nghts.

II. A Procedural Default Rule Goes Beyond The

Text And Purpose Of The PLRA’s

Exhaustion Requirement

1. The procedural default rule that Petitioners ask

this Court to impose would require dismissal of a prisoner’s

civil rights claim where the prisoner sought to invoke the

prison grievance system, but the grievance was rejected as

“procedurally defective.” This rule goes beyond the express

language of 42 U.S.C. § 1997e(a). The PLRA mandates

exhaustion of available administrative remedies, but says

nothing about procedural default. The statute reads: “No

action shall be brought with respect to prison conditions

under [42 U.S.C. § 1983] 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). A procedural default rule

goes far beyond the plain language of the PLRA.

2. Judicial engrafting of a procedural default rule

onto the exhaustion provision would also usurp Congress’s

authority in amending the exhaustion provision found in the

Civil Rights of Institutionalized Persons Act. As this Court

explained in Porter v. Nussle, 534 U.S. 516 (2002), the

purpose of the PLRA’s administrative exhaustion

requirement was to reduce the quantity and improve the

quality of prisoner suits by “afford[ing] corrections officials

time and opportunity to address complaints internally before

allowing the initiation of a federal case.” /d. at 524-25. As

long as a prisoner pursues a grievance through all levels of

the grievance process, thereby giving prison officials a

chance to address the claim and “exhausting” whatever

administrative remedics may exist, the statutory exhaustion

requirement is satisfied even though the prisoner does not

meet the time constraints imposed by prison officials. Prison

officials thus are afforded the opportunity to resolve a dispute

internally, if they so desire, before a court adjudicates the

legal merits of the claim. Encouraging prison administrators

instead to rely on procedural “defects” to decline to address

prison grievances would be antithetical to the primary

purpose underlying the PLRA’s exhaustion requirement—to

afford corrections officials time and opportunity to address

complaints internally.

3. The judicial implanting of a procedural default

rule in the PLRA’s exhaustion requirement, as a practical

matter, operates to shorten the statute of limitations

significantly for a prisoner plaintiff pursuing a § 1983 claim.

“The statute of limitations for a § 1983 claim is generally the

applicable state-law period for personal-injury torts.” City of

Rancho Palos Verdes, Calif. v. Abrams, 125 S. Ct. 1453,

1540 n.5 (2005). For example, Ngo’s § 1983 claim arising in

California would have a two-year statute of limitations. See

Cal. Code Civ. Proc. § 335.1 (providing a two-year statute of

limitations for personal-injury torts). But if a procedural

default rule were imposed by this Court, a prisoner’s claim

would be barred if he or she failed to meet the fifteen-day

requirement imposed by CDOC.

Neither the text of the PLRA nor its legislative history

reflects any intent by Congress to alter the statute of

limitations otherwise applicable to § 1983 claims. Absent

express statutory authority, adopting a rule that would

subordinate the statute of limitations for a § 1983 claim to the

varying time limitations adopted by grievance processes in a

wide gamut of correctional facilities, including jails, juvenile

detention centers, and juvenile training schools, is

inconsistent with prior decisions of this Court.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979),

an involuntarily retired employee brought suit against his

former employer under the Age Discrimination in

Employment Act (“ADEA”). /d. at 754. After recognizing

that the ADEA required claimants to utilize state

10

administrative procedures prior to filing a federal claim, the

plaintiff sought to file an administrative claim with the Iowa

State Civil Rights Commission. The defendant employer

sought dismissal of the federal lawsuit on the ground that

lowa’s 120-day statute of limitations already had run. /d. at

758-59. This Court rejected the employer’s argument. /d. at

761-62. The Court noted that the ADEA’s exhaustion

requirement does not expressly alter the statute of limitations

for claims brought under the ADEA. Jd. at 759 (“In

particular, there is no requirement that, in order to commence

state proceedings and thereby preserve federal rights, the

grievant must file with the State within whatever time limits

are specified by state law.”). Absent statutory authority, the

Court refused to impose a rule that would alter the statute of

limitations, explaining:

Congress could not have intended to consign

federal lawsuits to the “vagaries of diverse state

limitations statutes,” particularly since, in many

States, including Iowa, the limitations periods are

considerably shorter than the 180-day period

allowed grievants in nondeferral States.

Id. at 763 (citation omitted). More recently, the Court

reached the same conclusion in the Title VII context. EEOC

v. Commercial Office Products Co., 486 U.S. 107, 122-23

(1988) (“[S]tate time limits for filing discrimination claims

do not determine the applicable federal time limit.”). See

also Burnett v. Grattan, 468 U.S. 42, 52-53 (1984) (quoting

Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367

(1977)). (“State legislatures do not devise their limitations

periods with national interests in mind, and it is the duty of

the federal courts to assure that the importation of state law

will not frustrate or interfere with the implementation of

national! policies.””’)

11

Like the exhaustion provisions of the ADEA and Title

VII, the exhaustion provision of the PLRA says nothing

about the applicable statute of limitations. In fact, no

provision of the PLRA mentions the statute of limitations.

As with the ADEA and Title VII, there is no basis to infer

that Congress intended to subject prisoners’ § 1983 lawsuits

to the shorter time limitations imposed by the various prison

grievance procedures. Cf Crawford-El v. Britton, 523 US.

574, 596-97 (1998) (“If there is a compelling need to frame

new rules of law [for prisoner lawsuits], presumably

Congress either would have dealt with the problem in the

[Prison Litigation] Reform Act, or will respond to it in future

legislation.”).

The reasoning underlying this Court’s refusal to

subordinate the ADEA and Title VII statutes of limitations to

the state-imposed deadlines applies with even greater force in

prisoner civil rights litigation. In the ADEA context, this

Court reiterated that additional judicially-created procedural

technicalities “are particularly inappropriate in a statutory

scheme in which laymen, unassisted by trained lawyers,

initiate the process.” Oscar Mayer, 441 U.S. at.765 n.13

(quoting Love v. Pullman Co., 404 U.S. 522, 526-27 (1972)).

The short deadlines at issue here would be a substantial

problem in any administrative remedy system. They are

especially problematic for the prison population, which is

generally unknowledgeable about legal mghts and

procedures, poorly educated, and often functionally illiterate.

3 Also, like the statute at issue in Oscar Mayer, the PLRA

contemplates the possibility that a state may not have an

administrative procedure for a prisoner to exhaust before filing

a § 1983 claim. See 42 U.S.C. § 1997e(b) (“The failure of a

State to adopt or adhere to an administrative grievance

procedure shall not constitute the basis for an action under

section 3 or 5 of this Act.”).

12

See U.S. Department of Education, Literacy Behind Prison

Walls (1994), http://nces.ed.gov/pubs94/94102.pdf (last

visited December 26, 2005) (reporting that seven out of ten

prisoners perform at the lowest literacy levels). In addition,

prisoners often must decide, under very tight timelines and in

an environment that is fraught with explicit or implicit threats

of retaliation and recriminations, whether to submit a

grievance about the conduct of prison officials to those

officials’ cohorts on the grievance committee. These

impediments only enhance the difficulty of navigating the

short filing deadlines, which this Court recognized to be “a

likely trap for the inexperienced and unwary inmate,

ordinarily indigent and_ unrepresented by counsel, with a

substantial claim.” McCarthy, 503 U.S. at 153.

The PLRA applies to juveniles. See Christina A. v.

Bloomberg, 315 F.3d 990, 994 (8th Cir. 2003) (holding that

PLRA applies to juveniles detained in a state training

school); Lewis v. Gagne, 281 F. Supp. 2d 429, 433

(N.D.N.Y. 2003) (holding that PLRA applies to juveniles

adjudicated delinquent and confined to residential facility).

Therefore, the short deadlines apply not only to adult

prisoners, but also to juveniles. The impediments that adult

prisoners face in navigating short filing deadlines—illiteracy,

inexperience, lack of legal training and knowledge, and

fear—would be magnified in the case of juvenile prisoners.

4. A procedural default rule significantly interferes

with a prisoner’s constitutional right of access to the courts,

and places a particularly heavy burden on inmates who are

underage, unsophisticated, illiterate, and/or inexperienced in

filing prison grievances and lawsuits. Congress has not

suggested that it intended such a result. In fact, such a result

contradicts the stated intent of the PLRA. The legislative

history of the PLRA vividly illustrates that the PLRA was

intended to “prevent[] inmates from abusing the judicial

system,” but was not intended “to prevent inmates from

13

raising legitimate claims.” 141 Cong. Rec. $14611 (1995)

(statements of Sen. Hatch). While a procedural default rule

may reduce the total number of prisoner lawsuits adjudicated

in federal court, it is no more likely to eliminate frivolous

suits than to eliminate meritorious constitutional claims.

Ili. The Court Should Not Import A Procedural

Default Rule From Habeas Corpus

Jurisprudence

1. The procedural default rule in the PLRA context

is based on the inappropnate importation of habeas corpus

principles into civil rights litigation. See, e.g., Spruill v.

Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (analogizing the

habeas corpus exhaustion requirement to the PLRA

exhaustion requirement). The importation of habeas corpus

principles into the PLRA based on “the analogy” between

habeas petitions and § 1983 actions, see id. at 228-29, belies

the fact that the distinctions between the two areas of law are

important and complex enough to. have merited this Court’s

attention in no fewer than four opinions over the preceding

seven years. See Wilkinson v. Dotson, 125 S. Ct. 1242

(2005); Nelson v. Campbell, 541 US. 637 (2004);

Muhammad y. Close, 540 U.S. 749 (2004); Edwards v.

Balisok, 520 U.S. 641 (1997). While the Court has not

specifically addressed the exhaustion requirements in these

cases, the Court has suggested that the exhaustion

requirements for habeas petitions are more stringent than the

_exhaustion requirements for PLRA actions. See Muhammad,

540 U.S. at 751 (“Federal petitions for habeas corpus may be

granted only after other avenues of relief have been

exhausted. Prisoners suing under § 1983, in contrast,

generally face a substantially lower gate, even with the

requirement of the Prison Litigation Reform Act of 1995 that

administrative opportunities be exhausted first.”) (citations

omitted).

14

~

The rationale underlying this Court’s adoption of the

procedural default rule for habeas corpus petitions is

inapplicable to § 1983 actions. In Coleman v. Thompson,

501 U.S. 722 (1991), the Court recognized that procedural

default is a distinct concept from administrative exhaustion.

Id. at 732. In that case, the Court noted the purposes of the

requirement in the habeas corpus context that state judicial

remedies be exhausted: “‘to protect the state courts’ role in

the enforcement of federal law and prevent disruption of state

judicial proceedings.’” Jd. at 731-32 (quoting Rose v. Lundy,

455 U.S. 509, 518 (1982)). The Court then explained that a

procedural default rule also furthers those purposes in the

habeas context.

As this Court has explained, § 1983 challenges to the

conditions of confinement do not raise the same concerns

about the autonomy of state courts as habeas corpus

challenges to the confinement itself. See Wilkinson y.

Dotson, 125 S. Ct. 1242, 1249 (2005) (rejecting argument

that permitting prisoner’s § 1983 lawsuit without prior

exhaustion of state-court remedies would compromise

principles of federal-state comity). Thus, the fact that this

Court held that a procedural default rule is necessary to

protect state court powers in the habeas context does not spell

the need for or justify such a rule in the PLRA context.

Unlike state courts, the individuals processing prison

grievances do not have “concurrent powers” with federal

courts to enforce constitutional rights or the legal expertise to

do so. /d. at 731 (quoting Rose v. Lundy, 455 U.S. at 518).

In addition, the correctional officials processing inmates’

grievances are not, in contrast to judges, independent

adjudicators. Cf Cleavinger v. Saxner, 474 U.S. 193, 203-

04 (1985) (holding that members of prison disciplinary

committee were not entitled to absolute immunity because

“they were not truly independent” and “had no identification

15

with the judicial process of the kind and depth that has

occasioned absolute immunity”).

Prison grievance officials, unlike state courts, also lack

a full arsenal of remedies, including injunctive relief and

damages, with which to vindicate and enforce constitutional

and other civil rights. See Lynn S. Branham, The Prison

Litigation Reform Act's Enigmatic Exhaustion Requirement:

What It Means and What Congress, Courts, and Correctional

Officials Can Learn from It, 86 CORNELL L. REV. 483, 518

(2001) (reporting survey results revealing that prisoners

cannot obtain monetary relief through grievance procedures

for most types of legal claims). See also Booth v. Churner,

532 U.S. 731, 741 n.5 (2001) (holding that prison grievance

procedures do not have to satisfy even “minimum acceptable

standards of fairness and effectiveness”).

2. In contrast to the exhaustion requirement

applicable in habeas corpus actions, the PLRA’s

administrative exhaustion requirement was neither designed

nor intended to preserve the power of state courts, which

have parallel authority and expertise to render decisions

regarding the scope of constitutional and other legal rights.

Rather, the purpose of the PLRA’s exhaustion requirement is

to improve the quality of prisoner lawsuits or avert the need

for such lawsuits by affording prison officials an opportunity

to address complaints internally prior to a federal lawsuit.

The Court explained this in Porter:

Beyond doubt, Congress enacted § 1997e(a) to

reduce the quantity and improve the quality of

prisoner suits; to this purpose, Congress afforded

corrections officials time and opportunity to

address complaints internally before allowing the

initiation of a federal case. In some instances,

corrective action taken in response to an inmate’s

grievance might improve prison administration

16

and satisfy the inmate, thereby obviating the need

for litigation.

Porter, 534 U.S. at 524-25.

The Court’s articulation of the rationale for the PLRA’s

exhaustion requirement echoes the Court’s articulation of the

rationale for the ADEA’s exhaustion requirement. In Oscar

Mayer, the Court explained:

The [exhaustion requirement] is intended only to

give state agencies a limited opportunity to settle

the grievances of ADEA claimants in a voluntary

and localized matter so that the grievants

thereafter have no need or desire for independent

federal relief.

Oscar Mayer, 441 U.S. at 761. The rationale for the PLRA’s

exhaustion requirement, like the rationale for the ADEA’s

requirement, is to provide state agencies the opportunity to

‘address and perhaps resolve claims in order to eliminate the

need for federal litigation. For example, the CDOC may

reverse or lift its ban on the Respondent’s participation in

Bible study, perhaps prompting him to forgo a. federal

lawsuit. But, as this Court stated in Oscar Mayer,

“fijndividuals should not be penalized if States decline, for

whatever reason, to take advantage of these opportunities.”

Oscar Mayer, 441 U.S. at 761.

Because the procedural default rule proposed by

Petitioners is not mandated by the language of the PLRA,

does not advance the policies underlying the PLRA, is not

warranted by an analogy to habeas corpus law, and would

interfere significantly with a prisoner’s constitutional right of

access to the courts, this Court should decline Petitioners’

invitation to impose such a rule. Congress, rather than the

Court, should consider in the first instance the advisability

and constitutionality of importing a procedural default rule

17

into the Civil Rights of Institutionalized Persons Act’s

exhaustion provision.

CONCLUSION

For the foregoing reasons, the Court should affirm the

decision of the court below.

Respectfully submitted.

MICHAEL S. GRECO*

President

American Bar Association

*Counsel of Record .

February 2, 2006