# Amicus Curiae Brief — Woodford v. Ngo

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0222%3A10

## Record

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

## Text

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(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0222%3A10. Public record. Not legal advice.