Amicus Curiae Brief — Jones v. Bock

[2 NOV 1:7. 2095

No. 05-7058 j Tost.

ee _--

IN THE

Supreme Court of the Wnited States

LORENZO L. JONES,

Petitioner,

v.

BARBARA BOCK ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF OF D.C. PRISONERS’ LEGAL SERVICES

PROJECT INC., LEGAL AID SOCIETY OF THE CITY

OF NEW YORK, OHIO JUSTICE AND POLICY

CENTER, PRISON LEGAL NEWS, AND UPTOWN

PEOPLE’S LAW CENTER AS AMICI CURIAE

IN SUPPORT OF PETITIONER

GAIL FE. LEES

Counsel of Record

GARETH T. EVANS

ERIC R. MAIER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether the Prison Litigation Reform Act of

1995 (“PLRA”) mandates the dismissal of a prisoner’s fed-

era) civil rights lawsuit, without leave to amend, in the event

that the prisoner’s complaint does not describe with particu-

Jarity how the prisoner exhausted his or her administrative

remedies; or instead, whether non-exhaustion is an affirma-

tive defense.

2. Whether the PLRA provides a “total exhaustion”

tule, which requires the dismissal, without leave to amend, of

a prisoner’s entire federal civil rights complaint—including

causes of action that have been administratively exhausted—

for failure to plead exhaustion with respect to any one or

more causes of action.

ii

TABLE OF CONTENTS

US GO BIR ce necersecessececcesrenmsescvmmersensemnssanennes

CRITE sevcessessopnenisnnnemenscteinmnndmunnnanesetitemenerinenes

REASONS FOR GRANTING THE WRIT .............:sce00e0

I. The Court Of Appeals’ Judicially-

Created Pleading Standard Conflicts

With This Court’s Prior Decisions

And With The Purpose Underlying

I. Importing The “Total Exhaustion”

Requirement From Habeas Corpus

Jurisprudence Undermines The

Purpose Of The PLRA And Prevents

Meritorious Suits From Going

PRD cccvcvescassornioeminincinmssemianiaticbusnntiiin

CI IN ccccrevsetnscsosasecenssctsrenimrtnenanmmmneemnanianpaitintion

ill

TABLE OF AUTHORITIES

Page(s)

Cases

Baxter v. Rose, |

305 F.3d 486 (6th Cir. 2002).................... ap rneseevecceseee 11,12

Bey v. Johnson,

eg 6, 15

Booth v. Churner,

te 2,4

Bounds v. Smith,

RE Ie Te ccesetichtotcsitsiniitctinicneriamingniavinaninsiiiemmniiitiaals 3

Brown v. Toombs,

139 F.3d 1102 (6th Cir. 1998).............cccccscersecsorereesees 11, 13

Castro v. United States,

ee ee, I deiteiiinertateriienicniinittnstntendentiiontaivaseminimenibinies 8

City of Rancho Palos Verdes, California v. Abrams,

ee, I ictccivisiiiilstssnccciniihibaisiniiniapiaisaniiinemiiniis 17

Cleavinger v. Saxner,

I: III ccatintiatnchetinbsiinninisiiniunisininnsientamencetiotd 8,17

Crawford-El v. Britton,

ee ns Spe icisiieenisacnbiceeseniniietheiciniinamphoncebetaensdioniieintie 13

Edwards v. Balisok,

Fe Cee GOS QGP ccccevsscanssesnsserepeyescscemeasseteaomenevesseineen 15

Estelle v. Gamble,

gE IS Cee em 8

iv

Table of Authorities

(Continued)

Page(s)

Haines v. Kerner,

ae ee TEED ccniictnticnsdnpsiicasiitnanciitaeninslatntiaiapenidiinns 8

Johnson v. Testman, .

ee re re Ce rs Be tencccsccsccntistctenmentininnsimnmvennss ]

Knuckles El v. Toombs,

215 F.3d 640 (6th Cir. 2000) 0.0.2... .ccceeceeceenereeereeeceeeees 11, 13

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163 (1993)..........+. passim

Lira v. Herrera,

---F 3d---, 2005 WL, 285015 (9th Cir.

Ss Bis Ne csicinittndnrennettonntnlisdiecbitenieitinicidantiainadiaiain 14, 15, 18

McCarthy v. Madigan,

SE Anes. HPUEITUITITID TE csenstiedttnianintiapitncteniunhenetebigniatanabiatininasmantediiatiadsd 4

McDonnell Douglas Corp. v. Green,

Ne es FE dacicnindinteinntpenctntansntnsansinnnniinmeianainiaiid 10

Mojias v. Johnson,

ee NE: Se ncscartintaneintuntintiietgtibdinnsnumieisins 2

Muhammad v. Close,

540 U.S. 749 (2004).......... sienna 3, 15

Nelson v. Campbell,

ee ee re I ceiintsiisitiniindcstiapnappinaninnedtatentiitnniaianied 15

Ortiz v. McBride,

SEO FFG SED CAG Cir. BODO occcconcccccccccccccssccsscscscevecseees 1,15

Table of Authorities

(Continued)

Page(s)

Porter v. Nussle,

ee es Be ee etctncenccnensencennccssnnsnicitaneneovininintiiteieii 4,5

Ray v. Kertes,

Be ee ae Cr a Be ccccccntccmninecitnantninsintntacimeeiins 12

Rhines v. Weber,

Sa SRE, RP ID ccerccccccncesiccsnnestensinenssiensieaines 8,9, 18

Rivera vy. Allin,

144 F.3d 719 (11th Cir. 1998)... sccscsscessserceeseseceeeeees 11

Rose v. Lundy,

I cctrceenersarctantcttnstnmmtaninesietninniiiih 8, 15, 16

‘Ross v, County of Bernalillo,

© 365 F.3d 1181 (10th Cir. 2004)........csscecsessesseesvesseseees 6, 15, 19

‘ Snider v. Melindez,

199 F.3d 108 (2d Cir. 1999) ....ccccecesosccscorercsvesessssesesecsossese 19

Steele v. Federal Bureau of Prisons,

355 F.3d 1204 (10th Cir. 2003) ........ccccscsscsssesssseeesesneeees passim

‘Swierkiewicz v. Sorema N.A,,

eT 7, 9, 10, 13

‘United States v. Wells, ,

NIE NII. scnsescchsasciniotesionintiicbbuibitsltelaliiniets 4

\vazquez v. Ragonese,

No. 05-1203, 2005 WL 1842273 (3d Cir. Aug. 4, 2005).......... 6

Prestefer v. Snyder,

Ba22 F.3d $70 (7th Cit. 2005)...1ensunnnsinnnnnnennen 3

BEST AVAILABLE COPY

vi

Table of Authorities

(Continued)

Page(s)

Wilkinson v. Dotson,

125 S. Ct. 1242 (ZOOS) .....-sseseseeereeseresrnnnnnnnnnnnnnnee 8, 15, 16

v. Terhune, )

315 F.3d 1108 (9th Cir. 2003)....csr-vsreeeeeseessseerrrnnsnes 12, 13

Statutes

OB ULS.C. § 191S(D)i-ssssssssseeeerssssenennemsnnnennsnnsnnnnnnnnnnsnsnsere 19

8 US.C. § 1915(g)eesssesnseseennsseenenecersnnnreneennennsnnnnennnaseee 19

GD. U.S.C. § 1983 -asssesesccrsesssonenrssneceesnnnnnnnnonnnnnnnnonnnnnneree seen 3

Other Authorities

141 Cong, Rec. $14611 (1995) .....--e-ssssereeesssrnereennnrenee 4,13

Rules

INTEREST OF AMICI

Amici are five non-profit public interest and legal ser-

vices organizations that focus on protecting the constitutional

and fundamental rights of individuals incarcerated in Ameri-

can prisons, including protecting prisoners’ right of access to

the federal courts to redress civil rights violations.

D.C. Prisoners’ Legal Services Project, Inc. (the “Project”)

is a non-profit law firm dedicated to ensuring the humane

treatment and protecting the dignity of all persons convicted

of or charged with a criminal offense under the laws of the

District of Columbia and housed in prisons, jails, or commu-

nity corrections programs. The Project files both individual

and class action suits to protect the nghts of clients, and

seeks to assure that prisoners are afforded access to petition

for redress of violations of their constitutional rights.

The Legal Aid Society of the City of New York (the “Legal

Aid Society”) is a private organization that provides free le-

gal assistance to indigent persons in New York City. Its

Prisoners’ Rights Project represents prisoners in the New

York City jails and the New York State prisons in litigation

ing their constitutional and other legal rights, and has

. litigated a number of cases involving the Prison Litigation

Reform Act’s administrative exhaustion requirement, which

is at issue in this case. See Ortiz v. McBride, 380 F.3d 649

(2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.

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

their letters of consent have been filed with the Clerk. Pursu-

ant to this Court’s Rule 37.6, amici represent that this brief

was not written in whole or in part by counsel for any party,

and no person or entity other than amici or their counsel con-

tributed money or services to the preparation or submission of

this brief.

2004); Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003). The

Legal Aid Society’s Prisoners’ Rights Project also has ap-

peared as amicus in several prior cases in this Court. See,

e.g., Booth v. Churner, No. 99-1964, Brief of Amici Curiae

in Support of Petitioner, 2000 WL 1868111 (Dec. 14, 2000).

The Lega! Aid Society has an interest in protecting prisoners’

individual rights and remedies, as well as its ability to litigate

on behalf of its clients, by advocating for appropriate judicial

construction of statutes that affect its clients’ access to courts.

The Ohio Justice & Policy Center (formerly the Prison Re-

form Advocacy Center) is a public interest, nonprofit law

firm dedicated to improving prison conditions and empower-

ing former offenders to become productive members of the

community. Established in 1997 and based in Cincinnati,

Ohio, the Ohio Justice & Policy Center litigates to enforce

constitutional standards regarding medical care, safety and

other conditions of confinement, and advises prisoners on

how to exhaust their administrative remedies. The Ohio Jus-

tice & Policy Center also has worked to educate the Sixth

-Circuit Court of Appeals about the prison grievance systems

that exist in the states comprising the Sixth Circuit. Through

its work, the Ohio Justice & Policy Center has emerged as a

regional and national expert on various criminal justice is-

sues, prison issues, and prisoners’ rights.

Prison Legal News is a non-profit organization that advo-

cates nationally on behalf of those imprisoned in American

detention facilities. Prison Legal News publishes a magazine

by the same name to educate its readers and the general pub-

lic about the use of the civil justice system for the vindication

of fundamental human and civil rights.

The Uptown People’s Law Center (“UPLC”) is a non-profit

legal service center serving the poor and indigent of Chicago.

Among other things, the UPLC represents prisoners chal-

lenging prison conditions, parole procedures, and “good time

policies” in the Illinois prison system. UPLC frequently

faces the issue of administrative exhaustion, both in its for-

mal litigation (see, e.g., Westefer v. Snyder, 422 F.3d 570

(7th Cir. 2005)), and in addressing the hundreds of letters it

receives from unrepresented prisoners seeking advice on how

to properly exhaust claims.

STATEMENT

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

134, 110 Stat. 1321 (1996) (“PLRA”), provides that a pris-

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

exhaust the administrative remedies available in the prison

system. This case presents the question whether courts are

permitted to impose additional, judicially-created procedural

rules governing the manner of pleading administrative ex-

haustion, where such rules interfere with a prisoner’s consti-

tutional right of access to the courts and are not a reasonable

means of advancing the congressional policies underlying the

PLRA. In this case, the Sixth Circuit joined three other cir-

cuits in effectively answering this question in the affirmative,

resulting in the dismissa) of Petitioner’s civil rights claims.

Had the alleged deprivation of Petitioner’s civil rights oc-

curred in one of the several circuits that have declined to im-

pose these additional procedural rules, Petitioner would have

been permitted to present his claims to a federal court. This

Court’s review is necessary to resolve this deepening split

among the circuit courts and to eliminate a lack of uniformity

that breeds significant and arbitrary differences nationwide in

the vindication of prisoners’ rights of access to the courts.

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

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

One of the two 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).

4

Congress has historically prescribed limits on the abil-

ity of a prisoner to pursue a civil rights claim in federal court.

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

a civil rights lawsuit in federal court was subject to the provi-

sions of the Civil Rights of Institutionalized Persons Act, 42

U.S.C. § 1997 (“CRIPA”). In weighing a prisoner’s constitu-

tional right of access to the courts against the provisions of

the CRIPA, this Court in 1992 explained: “[tJhe first of the

principles that necessarily frame our analysis of prisoner’s

constitutional claims is that federal courts must take cogni-

zance 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 in-

cluded a revised administrative exhaustion provision stating

that no action shall be brought by a prisoner under 42 U.S.C.

§ 1983 with respect to prison conditions “until such adminis-

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

§ 1997e(a). The PLRA did not change the principle that fed-

eral courts must take cognizance of the valid constitutional

claims of prison inmates. See United States v. Wells, S19

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).

In Booth v. Churner, 532 U.S. 731 (2001), this Court

held that the language of 42 U.S.C. § 1997e(a) made it clear

that Congress mandated administrative exhaustion regardless

of whether the relief sought was injunctive or monetary. Id.

at 741. The Court later explained in Porter v. Nussle, 534

U.S. 516 (2002) that, consistent with the overall purpose of

the PLRA, the purpose of the PLRA’s administrative exhaus-

tion requirement was “to reduce the quantity and improve the

quality of prisoner suits.” /d. at 524.

3. Since Booth and Porter, the federal circuits have

split over the proper interpretation of the PLRA’s exhaustion

requirement. The Sixth Circuit and three other circuits have

added procedural hurdles that are inconsistent with the man-

ner in which this Court in Booth and Porter reconciled the

PLRA’s exhaustion requirement with prisoners’ right of ac-

cess to the courts.

The two judicially-created rules at issue in the Petition

are: (i) the requirement that a prisoner’s lawsuit be dismissed

(without leave to amend) for failure to specifically allege ex-

haustion of administrative remedies; and (ii) the “total ex-

haustion” rule, which requires the dismissal (without leave to

amend) of a prisoner’s entire complaint—including claims

that have been administratively exhausted—for failure to

plead exhaustion with respect to any one or more claims.

4. Petitioner filed a lawsuit under 42 U.S.C. § 1983.

He alleged that he was in a motor vehicle accident while in

the custody of the Michigan Department of Corrections

(“MDOC”). Pet. App. la. Petitioner suffered serious inju-

ries, including spinal cord injuries requiring fusion surgery.

Id. at 8a. Petitioner alleged that after suffering these injuries,

the MDOC was deliberately indifferent to his medica! needs;

assigned him to work as a “Big Yard Equipment Handler,”

which further aggravated his injuries; and retaliated against

him for complaining about his injuries. /d. at 8a-9a.

The district court dismissed Petitioner’s entire com-

plaint, and the Sixth Circuit affirmed. Even though Respon-

dents conceded that Petitioner did, in fact, exhaust his admin-

istrative remedies with respect to at least one of his claims,

the Sixth Circuit held that Petitioner’s failure to allege ex-

haustion in his complaint with sufficient particularity man-

6

dated dismissal of that claim. /d. at 2a. The Sixth Circuit

then applied a “total exhaustion” rule and held that “even if

[Petitioner] had shown he had exhausted some of his claims,

the district court properly dismissed the complaint because

[petitioner] did not show that he exhausted all of his claims.”

Id. at 3a. ,

5. As the Petition demonstrates, the Tenth, Eleventh,

and Sixth Circuits impose an additional, judicially-created

pleading requirement for a prisoner plaintiff, requiring the

dismissal of claims, without leave to amend, for failure to

specifically allege exhaustion,2 while seven circuits—the

First, Second, Third, Fourth, Seventh, Eighth, and Ninth Cir-

cuits—have declined to impose this requirement. See Pet. at

11-15. Three circuits—the Third, Sixth and Tenth—apply a

“total exhaustion” rule, requiring the dismissal, without leave

to amend, of an entire complaint in the event that one or

more of the claims have not been administratively ex-

hausted.3 See id. at 18-20. The Second, Fifth, Seventh and

2 See Pet. at 11-12 citing, inter alia, Steele v. Federal Bureau of

Prisons, 355 F.3d 1204 (10th Cir. 2003), cert. denied, 125 S.

Ct. 344 (2004); Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002);

Rivera v. Allin, 144 F.3d 719 (11th Cir.), cert. dismissed, 524

U.S. 978 (1998).

3 See Pet. at 18-19, citing, inter alia, Vazquez v. Ragonese, No.

05-1203, 2005 WL 1842273 (3d Cir. Aug. 4, 2005), Bey v.

Johnson, 407 ¥ 34 801 (6th Cir. 2005), Ross v. County of Ber-

nalillo, 365 F 34 1181 (10th Cir. 2004).

Ninth Circuits have rejected the “total exhaustion” rule. See

id. at 20-22.4

REASONS FOR GRANTING THE WRIT

The Sixth Circuit’s decision, like the two rulings upon

which it is based, cannot be reconciled with this Court’s de-

cisions prohibiting judicially created pleading requirements.

The Sixth Circuit’s decision unnecessarily deprives prisoners

of the right to present meritorious civil rights claims in fed-

eral court and undermines Congress’ purpose in enacting the

PLRA. The judicially-created procedural requirements in the

Third, Sixth, Tenth and Eleventh Circuits have blocked the

constitutional right of access to the courts with a complicated

maze of traps for prisoners who seek to vindicate their civil

rights. ;

In requirmng a plaintiff prisoner to plead exhaustion of

administrative remedies and offer proof of exhaustion in a

complaint, or face dismissal without leave to amend, the ~

Sixth Circuit imposed a pleading standard that has no basis in

the Federal Rules of Civil Procedure (“Federal Rules”) or in

the PLRA. The Sixth Circuit’s imposition of an affirmative

pleading requirement directly conflicts with this Court’s rule

against judicially-created pleading standards. Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002); Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507

U.S. 163 (1993). This conflict is even more pronounced here

because many PLRA litigants are pro se, and this Court has

repeatedly recognized that the pleading standards for pro se

4 The Ninth Circuit rejected the total exhaustion rule in an opin-

ion issued after the Petition was filed. Lira v. Herrera, ---

F.3d~—-, 2005 WL 285015 (9th Cir. Nov. 1, 2005).

litigants are more lenient than the pleading standards for rep-

resented parties. See Castro v. United States, 540 U.S. 375,

381 (2003); Estelle v. Gamble, 429 U.S. 97, 106 (1976);

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Not only

does this additional pleading requirement contradict estab-

lished law, but it also undermines the PLRA’s purpose and

unnecessarily prevents prisoners from presenting meritorious

civil rights claims in federal courts. The Sixth Circuit's

heightened pleading standard is a blunt tool where sharpness

is needed: although it may curb frivolous lawsuits, its effect

falls equally on meritorious cases as on frivolous ones.

The Sixth Circuit’s “total exhaustion” rule is borrowed

inappropriately from Rose v. Lundy, 455 U.S. 509 (1982), in

which this Court adopted such a rule for habeas corpus peti-

tions. The total exhaustion rule in the habeas corpus context

furthered the purposes underlying the exhaustion require-

ment—federal-state comity, and the development of a com-

plete factual record to aid the federal courts. Jd. at 515, 518-

19. Neither rationale supports the adoption of a total exhaus-

tion rule for PLRA cases. See Wilkinson v. 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); Cleavinger v. Saxner, 474 U.S. 193, 206 (1985)

(noting non-judicial nature of prison administrative proceed-

ings). :

_ Further, the total exhaustion rule adopted by the Sixth

Circuit is significantly harsher than the habeas rule that is

purportedly its model. In Lundy, the Court acknowledged

that a habeas petitioner should generally be-allowed to with-

draw unexhausted claims and continue with the exhausted

claims, rather than mandating dismissal of the entire petition.

Lundy, 455 U.S. at 520-21. The Court reaffirmed that view

in Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005). The

Rhines Court further noted that Congress had added a statute

of limitations to habeas petitions since Lundy, and, in order

to avoid forfeiture of meritorious habeas claims, the Court

modified the Lundy rule to allow courts to stay petitions con-

taining unexhausted claims to permit those claims to be ex-

hausted. Jd. at 1533-35. Section 1983 actions, too, are gov-

erned by statutes of limitations, and the concerns of the

Rhines Court are equally applicable to such actions.

I. The Court Of Appeals’ Judicially-Created

Pleading Standard Conflicts With This

Court’s Prior Decisions And With The Pur-

pose Underlying The PLRA

The circuits are split as to whether prisoner plaintiffs

must allege exhaustion of administrative remedies or whether

it is an affirmative defense, and further, whether prisoners

must plead exhaustion with particularity and with documen-

tary support. See Pet. at 11-15. The Sixth Circuit rule is

consistent with the rule applied in two other circuits—the

Tenth and Eleventh—but inconsistent with the rule applied in

seven other circuits—the First, Second, Third, Fourth, Sev-

enth, Eighth, and Ninth. See Pet. at 11-15. Not only does the

decision below underscore a circuit split, but it contradicts

prior decisions of this Court.

~

1. The decision below is irreconcilable with this

Court’s decisions that prohibit judicially-created pleading

requirements. The Court has held that Rule 8(a)’s liberal no-

tice pleading standard applies to all civil cases, unless the

Federal Rules or an Act of Congress expressly provide oth-

erwise. In Leatherman vy. Tarrant County Narcotics Intelli-

gence and Coordination Unit, 507 U.S. 163 (1993), and

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Court

prohibited federal courts from imposing pleading standards

that are not explicitly authorized by the Federal Rules. With

Tespect to actions governed by the PLRA, neither the Federal

Rules nor the PLRA impose any pleading requirement, much

10

less the heightened pleading standard of the court below.

Thus, seven circuits have appropriately held that exhaustion

under the PLRA is an affirmative defense to be raised by the

defendants, not a pleading requirement. By requiring plain-

tiff prisoners to satisfy a heightened pleading standard in

PLRA actions notwithstanding the lack of statutory authority,

the Sixth Circuit disregarded this Court’s clear precedent.

In Leatherman vy. Tarrant County Narcotics Intelli-

gence and Coordination Unit, the Court reversed the Fifth

Circuit’s imposition of a more demanding pleading standard

in actions alleging municipal liability under 42 U.S.C.

§ 1983. Jd. at 167. The Court explained that while “the Fed-

era] Rules do address in Rule 9(b) the question of the need

for greater particularity in pleading certain actions, [they] do

not include among the enumerated actions any reference to.

complaints alleging municipal liability under § 1983.” Jd. at

168. As a result, this Court unanimously held that Rule

8(a)’s notice pleading standard alone governs such com-

plaints, and vacated the Fifth Circuit’s decision. Ibid.

The Court reiterated this rule in Swierkiewicz v. Sorema

N.A., in which it also rejected a heightened pleading require-

ment for employment discrimination complaints brought un-

der Title VII. 534 U.S. at 508. The Second Circuit held that

those complaints must contain specific facts establishing a

prima facie case of discrimination under the framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Swierkiewicz v. Sorema, N.A., 5 Fed. Appx. 63,

65 (2d Cir. 2001). This Court reversed the Second Circuit’s

decision, in part because the judicially-created heightened

pleading standard conflicted with Rule 8(a). /d. at 512. Re-

ferring to Leatherman, Justice Thomas wrote for a unani-

mous Court:

Rule 8(a)’s simplified pleading standard applies to

all civil actions, with limited exceptions. Rule

ll

9(b), for example, provides for greater particular-

ity in all averments of fraud or mistake. This

Court, however, has declined to extend such ex-

ceptions to other contexts.... Just as Rule 9(b)

makes no mention of municipal liability un-

der... 42 U.S.C. § 1983, neither does it refer to

employment discrimination. Thus, complaints in

these cases, as in most others, must satisfy only

the simple requirements of Rule 8(a).

Id. at 513 (footnotes omitted). The Court concluded that a

requirement of greater specificity for pleading a particular

claim could not be judicially created, but would require an

amendment to the Federal Ruies of Civil Procedure. Jd. at

515 (citing Leatherman, 507 U.S. at 168).

Just as Rule 9(b) makes no mention of municipal liabil-

ity actions under 42 U.S.C. § 1983 (Leatherman) or of em-

ployment discrimination actions (Swierkiewicz), it makes no

mention of actions brought under the PLRA. But despite this

Court’s clear holdings, the Sixth, Tenth and Eleventh Cir-

cuits have imposed a heightened pleading standard in PLRA

actions that directly conflicts with this Court’s decisions in

Leatherman and Swierkiewicz. In these circuits, plaintiff

prisoners bringing PLRA actions must specifically allege that

they have exhausted all available state administrative reme-

dies. See Baxter v. Rose, 305 F.3d 486, 489-90 (6th Cir.

2002); Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.

2000); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.

1998); Steele v. Bureau of Prisons, 355 F.3d 1204, 1209-10

(10th Cir. 2003); Rivera vy. Allin, 144 F.3d 719, 731 (11th

Cir. 1998). Following Sixth Circuit precedent, the court be-

low affirmed the district court’s dismissal of Petitioner’s

complaint without leave to amend for failure “to comply with

the exhaustion requirement.” Pet. App. 3a.

12

The Sixth and Tenth Circuits’ attempts at distinguish-

ing this Court’s decision in Swierkiewicz are unpersuasive.

Both courts have asserted that their adopted pleading stan-

dard “do[es] not amount to a judicially-created heightened

pleading requirement” (Steele, 355 F.3d at 1210; see Baxter,

305 F.3d at 490), but rather that it is “Congress, not [the]

court, [that] has required a prisoner to plead specific exhaus-

tion information.” Steele, 355 F.3d at 1211.

Congress, however, has not imposed any such pleading

requirement. Rather, what Congress has imposed is simply

an exhaustion requirement. Section 1997e(a) of the PLRA

simply provides that “[nJo action shall be brought .. . until

such administrative remedies as are available are exhausted.”

42 U.S.C. § 1997e(a). Similar mandatory language is used in

statutes of limitations, for example, but.a plaintiff is not re-

quired affirmatively to allege that his or her filing falls within

the period of an applicable statute of limitations. Rather, a

statute of limitations defense is indisputably an affirmative

defense under Rule 8(c). See Fed. R. Civ. P. 8(c). Thus, im-

position of a pleading requirement on the prisoner plaintiff

does not necessarily follow from the mandatory language.

Absent express congressional instruction, imposition of such

a pleading standard contradicts this Court’s decision in

Swierkiewicz. Both the Third and Ninth Circuits have recog-

nized as much. See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir.

2002); Wyatt v. Terhune, 315 F.3d 1108, 1118 (9th Cir.

2003). In Wyatt, for example, the Ninth Circuit opined:

[A]}s the Supreme Court recently affirmed, we will

not impose heightened pleading requirements

where Congress has not expressly instructed us to

do so. See Swierkiewicz v. Sorema, 534 U.S. 506

(2002) .... We do not discern in § 1997e(a) the -

kind of express congressional command referred

to in Swierkiewicz and exemplified by Rule 9(b).

Legislatures know how to indicate that exhaustion

13

is a pleading requirement when they want to. [Ci-

tation.] The PLRA, of course, contains no such

command. [Citation.]

315 F.3d at 1118 (citations omitted).

The Sixth, Tenth and Eleventh Circuits’ departure from

established law is heightened by the additional requirement,

imposed by at least two of these circuits, that plaintiff prison-

ers “attach[] a copy of the applicable administrative disposi-

tions to the complaint, or, in the absence of written documen-

tation, describe with specificity the administrative proceeding

and its outcome.” Knuckles El, 215 F.3d at 642 (citing

Brown, 139 F.3d at 1104); see Steele, 305 F.3d at 1210 (quot-

ing ibid.). Here, following Knuckles El, the court below af-

firmed the district court’s dismissal of petitioner’s complaint

because petitioner “neither attacned the grievance forms to

his complaint nor described the remedies he pursued and the

outcome.” Pet. App. 2a-3a. Yet nowhere in the Federal

Rules or in the PLRA is it contemplated that prisoners be re-

quired to attach evidence to their complaints. The require-

ment, too, amounts to a judicially created pleading hurdle, in

contradiction of previous decisions of this Court. See

Leatherman, 507 U.S. 163; Swierkiewicz, 534 U.S. 506; see

also Crawford-El v. Britton, 523 U.S. 574, 596 (1998) (criti-

cizing “the creation of new rules by federal —— in the

PLRA context).

A heightened pleading standard, when combined with

refusal to grant a prisoner leave to amend a complaint, is an-

tithetical to the policy underlying the PLRA. The legislative

history of the PLRA vividly illustrates the point that the

PLRA was intended to “prevent[Jinmates from abusing the

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

from raising legitimate claims.” 141 Cong. Rec. $14611

(1995) (statements of Sen. Hatch). While the heightened

pleading standard may reduce the total number of prisoner

14

lawsuits that are adjudicated in federal court, it is uo more

likely to eliminate frivolous suits than to eliminate meritori-

ous ones.

Because the decision below is based on a heightened

pleading standard that contradicts this Court’s decisions, will

cause the dismissal of meritorious lawsuits, and conflicts

with decisions of other circuits, this Court should grant the

petition.

Il. Importing The “Total Exhaustion” Require-

ment From Habeas Corpus Jurisprudence

Undermines The Purpose Of The PLRA And

Prevents Meritorious Suits From Going For-

ward

The “total exhaustion” rule applied by the court below

is based on the inappropriate importation of habeas corpus

principles into civil rights litigation. In contrast to the appli-

cation of the rule in the habeas corpus context, a total exhaus- —

tion rule will not advance the purposes underlying the PLRA

or its exhaustion requirement. Further, in light of the statute

_ Of limitations that applies to § 1983 actions, a total exhaus-

tion rule will operate to bar meritorious claims—even those

that have been administratively exhausted.

The circuits are split on the issue of whether the PLRA:

prescribes a “total exhaustion” rule, requiring a district court

to dismiss a prisoner’s federal civil rights complaint in its

entirety when the complaint contains one or more claims

have not been administratively exhausted—despite the pres?

ence of other exhausted claims. The Third, Tenth and Sixt

Circuits have adopted a “total exhaustion requirement,”

the Second, Fifth, Seventh, and now the Ninth Circuits -have

rejected this requirement. See Pet. at 18-23, Lira v. Herrega,

---F 3d---, 2005 WL 285015, *9-10 (9th Cir. Nov. 1, 2005):

15

Circuits adopting a total exhaustion rule have expressly

reasoned that this Court’s adoption of a total exhaustion rule

in the habeas corpus context, see Rose v. Lundy, 455 U.S.

509 (1982), justifies the adoption of the same rule in the

PLRA context. See Bey v. Johnson, 407 F.3d 801, 808 (6th

Cir. 2005) (“Because we recognize the correlation between

habeas petitions and § 1983 actions, we find it appropriate to

interpret the PLRA exhaustion requirement in light of habeas

corpus rules.”); Ross v. County of Bernalillo, 365 F.3d 1181,

1189-90 (10th Cir. 2004) (discussing Lundy and adopting the

total exhaustion rule in the PLRA context). Both the Second

and Ninth Circuits have expressly rejected the importation of

the habeas corpus total exhaustion rule into PLRA litigation.

See Lira v. Herrera, ---F .3d---, 2005 WL 285015, *9-10 (9th

Cir. Nov. 1, 2005); Ortiz v. McBride, 380 F.3d 649, 660-62

(2d Cir. 2004).

1. The importation of habeas corpus principles into

the PLRA based on “the correlation between habeas petitions

and § 1983 actions,” see Bey, 407 F.3d at 808, belies the fact

‘that the distinctions between the two areas of law are impor-

tant and complex enough to have merited this Court’s atten-

tion in no less than four opinions over the preceding seven

years. See Wilkinson v. Dotson, 125 S. Ct. 1242 (2005); Nel-

son v. Campbell, 541 U.S. 637 (2004); Muhammad v. Close,

$40 U.S. 749 (2004); Edwards vy. Balisok, 520 U.S. 641

(1997). While the Court has not specifically addressed the

exhaustion requirements in these cases, the Court has sug-

gested 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

yavenues of relief have been exhausted. Prisoners suing under

>§ 1983, in contrast, generally face a substantially lower gate, -

leven with the requirement of the Prison Litigation Reform

BEST AVAILABLE COPY

16

Act of 1995 that administrative opportunities be exhausted

first.”) (citations omitted).

The rationales underlying this Court’s adoption of the

total exhaustion rule for habeas corpus petitions do not apply

to § 1983 actions. In Lundy, the Court explained that the pol-

icy underlying the exhaustion requirement in habeas corpus

law is federal-state comity. Lundy, 455 U.S. at 515 (“[A]s a

matter of comity, federal courts should not consider a claim

in a habeas corpus petition until after the state courts have

had an opportunity to act.”). The Court reasoned that “a total

exhaustion rule promotes comity and does not necessarily

impair the prisoner’s right to relief.” /d. at 521. In contrast,

the Court has recognized that challenges to the conditions of

confinement do not raise the same comity concerns as chal-

lenges to the fact or duration of confinement raise. See Wil-

kinson v. Dotson, 125 S. Ct. 1242, 1249 (2005) (rejecting ar-

gument that permitting prisoner’s § 1983 lawsuit without

prior exhaustion of state-court remedies would compromise

principles of federal-state comity).

The other rationale for the adoption of the total exhaus-

tion rule in the habeas context was that “federal claims that

have been fully exhausted in state courts will more often be

accompanied by a complete factual record to aid the federal

courts in their review.” Lundy, 455 U.S. at 518-19. In civil

rights cases, there is no analogous requirement that federal

courts defer to the findings or legal conclusions of prison

grievance administrators. Moreover, this Court has previ-.,

ously noted that prison administrative hearings often will not

yield a useful factual record:

The prisoner was to be afforded neither a lawyer

nor an independent nonstaff representative. There

was no right to compel the attendance of wit-

nesses or to cross-examine. There was no right to

discovery. There was no cognizable burden of

17

proof. No verbatim transcript was afforded. In-

formation presented often was hearsay or self-

serving. The committee members were not truly

independent. In sum, the members had no identi-

fication with the judicial process of the kind and

depth that has occasioned absolute immunity.

Cleavinger v. Saxner, 474 U.S. 193, 206 (1985). Neither of

the rationales underlying a total exhaustion rule in the habeas

context applies in the PLRA context.

2. In relying on this Court’s reasoning in Lundy, and

adopting a similar total exhaustion rule for PLRA cases, the

Sixth and Tenth Circuits have disregarded another key dis-

tinction. Because there was no statute of limitations for the

filing of habeas corpus petitions when Lundy was decided in

1983, the total exhaustion rule did not threaten to extinguish

a prisoner’s right to bring a habeas corpus petition. At most,

it would delay a federal court’s adjudication of a prisoner’s

exhausted claims while the prisoner litigated the unexhausted

claims through the state court system (or, alternatively, filed

a new federal petition containing only the exhausted claims).

In contrast, § 1983 claims are subject to statutes of limita-

tions. See City of Rancho Palos Verdes, California vy.

Abrams, 125 S. Ct. 1453, 1460 n. 5 (2005) (“The statute of

limitations for a § 1983 claim is generally the applicable

State-law period for personal-injury torts.”). Thus, the dis-

missal of an exhausted § 1983 claim, simply because it is

presented along with an unexhausted claim, could effectively

bar a meritorious civil rights claim forever.

The significance of a statute of limitations to the analy-

sis of the total exhaustion rule, though lost c 1 the Sixth and

Tenth Circuits, has not been lost on this Court. In 1996, thir-

teen years after Lundy was decided, Congress passed the An-

titerrorism and Effective Death Penalty Act of 1996, which

imposed a one-year statute of limitations for federal habeas

petitions (which is tolled during the pendency of a state ha-

beas petition). In Rhines v. Weber, 125 S. Ct. 1528 (2005),

the Court examined the habeas “total exhaustion” require-

ment for the first time since the passage of the AEDPA. The

Court expressly noted the effect of a statute cf limitations on

the tota] exhaustion rule:

As a result of the interplay between AEDPA’s 1-

year statute of limitations and Lundy’s dismissal

requirement, petitioners who come to federal

court with ‘mixed’ petitions run the risk of forever

losing their opportunity for any federal review of

their unexhausted claims.

Id. at 1533. The Court held that if a prisoner had good cause

for failure to exhaust a potentially meritorious claim, the peti-

tioner’s interest in obtaining federal review of his claims

outweighs the competing interests and it would be an abuse

of discretion to apply the total exhaustion rule and dismiss a

mixed petition. /d. at 1535.

The interplay between the total exhaustion rule applied

in the Sixth and Tenth Circuits and the statute of limitations

applicable to § 1983 claims would have the same results rec-

ognized by the Court in Rhines—it would force prisoners to

“run the risk of forever losing their opportunity for any fed-

eral review” of their civil rights claims. Rhines, 125 S. Ct. at

1533; see also Herrera, 2005 WL 285015, at *10

(“[D]ismissal of the action for lack of total exhaustion could

result in an inability to pursue the exhausted claim, because

of a statute of limitations barrier or inability to pay a second

filing fee.”).

Even where a dismissal under the total exhaustion rule

would not operate to bar a claim on statute-of-limitations

grounds, it may still jeopardize a prisoner’s ability to pursue

a valid claim because it would require the payment of a sec-'

19

ond filing fee. See 28 U.S.C. § 1915(b) (requiring that pris-

oners proceeding in forma pauperis pay filing fees in in-

stallments). Moreover, the dismissal may constitute a

“strike” for purposes of the PLRA’s “three strikes rule,”

which prevents prisoners who have had three actions or ap-

peals dismissed for failure to state a claim, among other rea-

sons, from filing in forma pauperis. 28 U.S.C. § 1915(g)).5

Indeed, the Tenth Circuit, which has adopted a total exhaus-

tion rule, see Ross, 365 F.3d at 1189, has also held that dis-

missal for failure to exhaust administrative remedies consti-

tutes a “strike” for purposes of § 1915(g)). See Steele, 355

F.3d at 1213; but see Snider v. Melindez, 199 F.3d 108, 111

(2d Cir. 1999) (stating that dismissal for non-exhaustion is

not the kind of dismissal contemplated by § 1915(g)).

Because the decision below is based upon a total ex-

haustion rule that is not mandated by the language of the

PLRA, does not advance the policies underlying the PLRA,

unduly interferes with a prisoner’s right of access to the fed-

eral courts, and conflicts with decisions of other circuits, this

Court should grant the petition.

5 Prisoners who are already subject to the prohibition of

§ 1915(g) will, if indigent, be barred from court entirely if

their properly exhausted claims are dismissed under a total ex-

haustion rule.

20

CONCLUSION

For the foregoing reasons, and for the reasons stated

in the petition, the Court should grant the petition for a writ

of certiorari.

Respectfully submitted.

GAIL E. LEES

Counsel of Record

GARETH T. EVANS

ERIC R. MAIER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los CA 90071

(213) 7000

Counsel for Amici Curiae

November 17, 2005