Amicus Curiae Brief — Jones v. Bock

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

ry, ©

om . Nos. 05-7058, sO

_—_—_——SSS__—_ Prep

IN THE

Supreme Court of the Hnited

LORENZO L. JONES,

Petitioner,

BARBARA BOCK, Warden, et ai.,

| Respondents.

TIMOTHY WILLIAMS,

# Petitioner,

WILLIAM OVERTON, et ai.,

Respondents.

On WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_—$—$—$—$—$———————————————————————————————— end

Brier OF THE States OF New YorK, ALABAMA, ALASKA, ARKANSAS,

CALIFORNIA, COLORADO, DELAWARE, FLORIDA, Hawan, [pAno, ILLinots,

MAryYLAND, Missouri, Montana, Nesraska, Nevapa, NortH DaKoTA,

Onto, OKLAHOMA, OREGON, COMMONWEALTH OF PENNSYLVANIA, RHODE

IsLAND, SourH Caro.ina, Sout Dakota, TENNESSEE, Texas, UTAH,

COMMONWEALTH OF VIRGINIA, WASHINGTON, WEST VIRGINIA, WISCONSIN,

WYOMING, AND THE DistRICT OF COLUMBIA AS AMICI CURIAE

IN SUPPORT OF THE RESPONDENTS

CarrLin J. HALLIGAN* Euiot Sprrzer

Solicitor General Attorney General of the

DANIEL SMIRLOCK State of New York

Deputy Solicitor General 120 Broadway

Peter H. ScuiFF New York, NY 10271

212) 416-8016

Senior Counsel (212) vss |

Ropert M. GoLpFArB rege st ve Curiae

Martin A. Hotvet

Assistant Solicitors General * Counsel of Record

(Additional Counsel Listed on Signature Page)

———

—————— eee

Siri

Pyne

agh Peale

nai ak

i Ta} c .

OAR AS ae Ne CRT ees y wpe td Li i chee

4 ap pee ey ¥ aie wy 34 * 5 L sat

) fg Sep etary ae

AP eRR

Heth 8s Va! Tree

Soe ee eee

Halt ae

bach

“a 8 Paget

Pee i ae

ten

ote Sheds

TABLE OF CONTENTS

ARGUMENT

I. The Plain Language of 42 U.S.C. § 1997e(a)

Requires Total Exhaustion of Administrative

Remedies Before An “Action” May Be

NN 5 605 Gk idling tebe ebR REED OK

II. A Total Exhaustion Rule Furthers The

Policies Underlying The PLRA And

DROPPED. 0.56064) 6 ceeVN Wi eee eae VER

CR ANG Sai 6 oS SE Sed ctices bab bun eae nels

TABLE OF CITED AUTHORITIES

CASES

Artuz v. Bennett,

PR Meee LOO woohoo 0 6a CaR Ase ene eee

Booth v. Churner,

TI A FRR ASOOES ocd pee spb aeiveucsumepaa

City of Rancho Palos Verdes v. Abrams,

SOR Nig NEP LD nine oa das Cieedeic cee we ah

Cooter & Gell v. Hartmax Corp.,

GIG UB i SE4 CIGGO) ooo ees cee ee eee ss

Duncan v. Walker,

i Bie ey) yee ee Pte ere

Hallstrom v. Tillamook County,

PS RIA, SO AAPOOD few aw she ch shvceseeee

Lira v. Herrera,

427 F.3d 1164 (9th Cir. 2005) ..............

McNeil v. United States,

FOS UB. IDG GD) © 0:5: occa vans sive ccuceie'ys

Neitzke v. Williams,

SOUS. SUPE). oc inc ee ca esvevcverss

Page

iii

Cited Authorities

Ortiz v. McBride,

380 F.3d 649 (2d Cir. 2004), cert. denied,

543 U.S. 1187 (2005) ............0- 20.

Porter v. Nussle,

534 U.S. 516 (2002) ........ cece ee eee

Preiser v. Rodriguez,

SL TS. SIS CST) | accent ocsosveces

Rhines v. Weber,

544 U.S. 269 (2005) ....... cece ee eens.

Rose v. Lundy,

54S US, FOP CFBZ) onesie ccceseucesss

United States v. Wells,

SIR MIP OOS (ooo oaks nie seks n ee

Woodford v. Ngo,

126 S. Ct. 2378 (2006) ........-..-25...

Cited Authorities

Page

FEDERAL STATUTES

28 U.S.C.

PRES, Ss 2b cig eke ce bo bd vee els ek eee 13

I ea ee ee ee ee ae 10

CRIED Cosine So b5% hac ck dene bees 10

42 U.S.C.

Si SU bk oi Soba dew ee bobs eehe CT eee E ES eS 3

DME Sod o Khe Vico bbe chaviduteuemesea passim

SD RIED cd 6 5: 's <p oss b's ho BORG eek en 6,8

Re GENRE Sarg etenret se ae a SBS ese ish ee 6,7,8

SPIO ks Cab Cais kb cobb ee hARR Ge deaheaa 9

Civil Rights of Institutionalized Persons Act,

OTe Week Se ie As ek cba 10

FEDERAL RULES AND REGULATIONS

Fed. R. Civ. P.

Wier eh ae 1h Cou abe whe ee chien 4

| Sd a ee Ey re er gt ey 4

STATE STATUTES

N.Y. C.P.L.R.

WN Flee CR Lec Cdscebaeudh oten cea 13

MISCELLANEOUS

Black’s Law Dictionary (Sth ed. 1979) .......... 4

STATEMENT OF INTEREST OF AMICi CURIAE

The Prison Litigation Reform Act of 1995 provides that

“{nJo action shall be brought with respect to prison conditions

. ++ until such administrative remedies as are available are

exhausted.” Prison Litigation Reform Act of 1995 (“PLRA”),

Pub. L. No. 104-134, § 803(d), 110 Stat. 1321-66, 1321-71

(1996), codified at 42 U.S.C. § 1997e(a). This provision

replaced an earlier one under which administrative

exhaustion “was in large part discretionary,” Porter v. Nussle,

534 U.S. 516, 523 (2002), and which permitted a district

court to stay a prisoner’s action while adrninistrative remedies

were exhausted. Pursuant to § 1997e(a)’s “invigorated”

exhaustion requirement, all available administrative remedies

must now be exhausted before a prisoner can commence a

federal action. Jd. at 524. Among the issues presented in these

appeals is whether the PLRA prescribes a “total exhaustion”

rule, such that an action must be dismissed if the prisoner

has not exhausted administrative remedies on all claims

asserted in the complaint.

The amici States and their correctional officials are

inundated with thousands of prisoner lawsuits annually. From

cases comprised between 8.3% and 9.8% of new filings in

federal district courts, “or on average about one new prisoner

case every other week for each of the nearly 1000 active and

senior district judges across the country.” Woodford v. Ngo,

126 S. Ct. 2378, 2388 n.4 (2006).

Correct resolution of this case will diminish the burdens

imposed by this litigation in two ways. First, interpreting

§ 1997e(a) as imposing a total exhaustion requirement will

maximize the incentive for prisoners to make prompt and

full use of prison grievance procedures and exhaust

administrative remedies on all of their claims before joining

them in an action. Prisoner grievances play an important role in

prison administration by providing timely feedback to prison

officials about problems that arise in correctional facilities.

In individual cases, grievance procedures enable prison

administrators to take prompt remedial action that may satisfy

the prisoner and obviate the need for litigation. Such procedures

also allow prison officials to monitor trends in prisoner

complaints before unwise institutional policies or patterns of

inappropriate conduct by correctional officers lead to frustration

among inmates, potentially triggering prisoner unrest. Grievance

procedures also allow state officials to filter out meritless claims

and to create factual records of disputes that may eventually be_

litigated. By strongly encouraging prisoners to grieve all of their

claims internally before commencing an action, the total

exhaustion rule will further all these interests.

Second, a total exhaustion rule will help achieve the PLRA’s

important aim of increasing the quality of prisoner complaints,

thereby decreasing the burden of prisoner litigation on the

judiciary as well as on state correctional officials and their

attorneys. Prisoners often file inartfully drafted complaints that

include a number of claims, related and unrelated, spanning

multiple dates and against multiple parties. If the total exhaustion

rule imposed by § 1997e(a) is not applied, nothing deters

prisoners from indiscriminately loading complaints with

unexhausted as well as exhausted claims, leaving it to the district

court, with the help of the defendants, to sort them out. Proper

application of the total exhaustion rule will strongly discourage

prisoners from including unexhausted claims in a complaint,

promoting judicial economy and conserving the limited

resources that the amici States expend in defending against these

suits in the manner Congress intended.

3 ‘

SUMMARY OF ARGUMENT

Section 1997e(a) of the PLRA mandates that “[n]Jo action

shall be brought with respect to prison conditions .. . until

such administrative remedies as are available are exhausted.”

The plain language of this provision prohibits the

commencement of an “action” with respect to prison

conditions unless there has been total exhaustion of available

administrative remedies on ali claims. The general rule is

that an action barred from commencement by the terms of a

statute must be dismissed. Section 1997e provides for no

exception to this general rule. Thus, § 1997e(a) prescribes a

“total exhaustion” requirement, such that a district court must

dismiss without prejudice a prisoner’s action where

administrative remedies have not been exhausted on all

claims.

This rule markedly furthers the PLRA’s goals of

decreasing the quantity and increasing the quality of prisoner

complaints. It maximizes the incentive for prisoners to grieve

all of their claims promptly before joining them in an action,

giving correction officials the earliest opportunity to resolve

all of the prisoner’s complaints. Thus, corrective action on

meritorious claims may eliminate litigation altogether, while

frivolous claims may be weeded out. Prompt and complete

exhaustion of all claims also facilitates the creation of a more

complete administrative record to assist the courts in

resolving those claims that are ultimately litigated.

A “total exhaustion” rule also strongly discourages the

indiscriminate pleading of unexhausted claims. As a result,

courts and defendants are spared the time-consuming effort

of ferreting out the unexhausted claims in often inartfully

drafted complaints, attention that can be better devoted to

resolving exhausted claims in properly pleaded complaints. The

rule may also reduce piecemeal litigation by encouraging

prisoners to exhaust all claims and include them in one action

with only one filing fee.

ARGUMENT

I. The Plain Language Of 42 U.S.C. § 1997e(a) Requires

Total Exhaustion Of Administrative Remedies Before

An “Action” May Be “Brought.”

The language of § 1997e(a) is plain and it is mandatory. It

provides that “(no action shall be brought with respect to prison

conditions ... until such administrative remedies as are available

are exhausted.” By using the mandatory word “ ” and the

term “action” instead of “claim,” and barring an action where

all available administrative “remedies” ——- in the plural — have

not been exhausted, Congress clearly expressed its intent that a

prisoner must exhaust administrative remedies on all claims

before commencing a suit in federal court. See Woodford, 126

S. Ct. at 2391 (“saying that a party may not sue in federal court

until the party first pursues all available avenues of

administrative review necessarily means that, if the party never

pursues all available avenues of administrative review, the

person will never be able to sue in federal court”) (emphasis in

the original). This construction is confirmed by § 1997e(c),

which distinguishes between an “action” and a “claim,”

indicating that Congress intended the two terms to be construed

differently in accordance with their usual definitions. See Fed.

R. Civ. P. 3 (“A civil action is commenced by filing a complaint —

with the court.”); Fed. R. Civ. P. 18(a) (party may join in

a pleading “as many claims” as the party has against an

opposing party); Black’s Law Dictionary, at 26 (Sth ed. 1979)

(term action “in its usual legal sense means a suit brought in a

court”); id. at 224 (defining “claim” as “[c]ause of action”);

see also Artuz v. Bennett, 531 U.S. 4, 9-10 (2000) oe on

different meanings of terms “application” and “claim

Petitioners’ rejoinder to the plain text is simply that

§ 1997e(a) does not direct a district court to dismiss a non-

compliant action. See Br. 65; see also Ortiz v. McBride, 380

F.3d 649, 657 (2d Cir. 2004), cert. denied, 543 U.S. 1187 (2005);

Lira v. Herrara, 427 F.3d 1164, 1171 (9th Cir. 2005). But no

such instruction from Congress was required. This Court has

instructed that “[a]s a general rule, if an action is barred by the

_ terms of a statute, it must be dismissed.” Hallstrom v. Tillamook

County, 493 U.S. 20, 31 (1989); accord McNeil v. United States,

508 U.S. 106, 111, 113 (1993) (“The command that an ‘action

shall not be instituted ...’ is unambiguous” and “[bJecause

petitioner failed to heed that clear statutory command, the

District Court properly dismissed his suit.”). The logic

underlying this general rule is simple: Congress does not intend

that an action it prohibits from being brought at all can continue

in any fashion. This rule should have even greater force in the

context of a statute designed to decrease the quantity and increase

the quality of prisoner lawsuits. Particularly because this Court

“generally ‘presumes that Congress expects its statutes to be

read in conformity with the Court’s precedents,’"” Porter, 534

U.S. at 528 (quoting United States v. Wells, 519 U.S. 482, 495

1. Even the Second and Ninth Circuits, which have rejected the

total exhaustion rule, concede that the literal terms of § 1997e(a) bar

the commencement of an action with a “mixed” complaint alleging both

exhausted and unexhausted claims. See Ortiz v. McBride, 380 F.3d 649,

657 (2d Cir. 2004) (“Section 1997e(a) clearly instructs that an action

. . . containing exhausted and unexhausted claims should not have been

‘brought’”), cert. denied, 543 U.S. 1187 (2005); Lira v. Herrara, 427

F.3d 1164, 1170-71 (9th Cir. 2005) (“The text of § 1997e(a) specifies a

rule regarding the instigation of suit — that ‘no action shall be brought’

unless there has been exhaustion” and “[t}hat requirement necessarily

applies to all claims alleged”) (emphasis in the original).

(1997)), it was wholly unnecessary for Congress to have

included in § 1997e(a) an explicit mandate that mixed actions

In any event, dismissal for noncompliance with

§ 1997e(a) is comfortably included within § 1997e(c)’s dismissal

provisions. Section 1997e(c)(1) requires dismissal of “frivolous”

actions. It provides that

[t]he court shall on its own motion or on the motion

of a party dismiss any action brought with respect

to prison conditions ... if the court is satisfied that

the action is frivolous, malicious, fails to state a claim

upon which relief can be granted, or seeks monetary

relief from a defendant who is immune from such

relief. |

42 U.S.C. § 1997e(c)(1). Because a mixed action is barred from

commencement by § 1997e(a), a mixed action is legally

frivolous within the meaning of § 1997e(c)(1). See Neitzke v.

Williams, 490 U.S. 319, 325 (1989) (defining “frivolous” as

lacking “an arguable basis either in law or in fact”). In addition,

if a statute bars commencement of an action, that action

necessarily does not state any claim upon which relief can be

granted by the court.

What § 1997e(c)’s dismissal provisions nowhere authorize

is the procedure sanctioned by the Second and Ninth Circuits,

permitting a district court to dismiss without prejudice the

unexhausted claims in an improperly commenced mixed action.

Section 1997e(c)(2), addressing dismissal of claims, provides

that

{iJn the event that a claim is, on its face, frivolous,

malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from a

defendant who is immune from such relief, the

court may dismiss the underlying claim without

first requiring the exhaustion of administrative

remedies.

42 U.S.C. § 1997e(c)(2). This provision authorizes dismissal

of facially meritless claims with prejudice, “thus allowing a

district court to dismiss plainly meritless claims without first

addressing what may be a much more complex question,

namely, whether the prisoner did in fact properly exhaust

available administrative remedies.” Woodford, 126 S. Ct. at

2392.2 Section 1997e(c)(2) does not, however, authorize a

court to prune potentially meritorious unexhausted claims

from the complaint and dismiss them without prejudice,

permitting the exhausted claims to go forward.

Contrary to petitioners’ suggestion (Br. 68), the total —

exhaustion rule does not render § 1997e(c)(2) superfluous.

As this Court noted in Woodford, § 1997e(c)(2) “serves a

useful function by making it clear that the PLRA exhaustion

requirement is not jurisdictional.” 126 S. Ct. at 2392.

Moreover, it is simply not true that “‘[t}here would be little

point in providing for the dismissal of some nonexhausted

claims on the merits [under § 1997e(c)(2)] if the remainder

of the action would then have to be dismissed, although

exhausted, because of the failure to exhaust the dismissed

2. While this provision could result in the survival of an action

even though a dismissed frivolous claim might also have been shown

to have been unexhausted, Congress chose not to require unnecessary

expenditure of judicial resources where facial dismissal was the most

efficient course of action. Thus, for example, a prisoner’s claim that

his rights were violated by being served creamy peanut butter instead

of the chunky variety can be dismissed as frivolous without

determining whether it was exhausted.

claims’” (Pet. Br. 68) (quoting Lira, 427 F.3d at 1172).

A dismissal for lack of total exhaustion required by

§ 1997e(a) will, as a general rule, be without prejudice. The

prisoner may attempt to commence a new action asserting

both the previously-exhausted claims and any unexhausted

claims that have been exhausted in the interim. Pursuant to

§ l1y97e(c)(2), the court may, however, dismiss a particular

claim with prejudice without first inquiring whether the claim

was exhausted. The dismissal of that claim will be subject

to res judicata, barring the prisoner from ever returning to

court with the claim. Thus, § 1997e(c)(2) is not superfluous;

it complements § 1997e(a)’s total exhaustion rule by

permitting the court to dismiss a patently meritless claim on

the merits, never to be resurrected, regardless of exhaustion.

Petitioners also argue (Br. 68) that if the term “action”

as used in § 1997efa) is interpreted to demand dismissal of a

mixed complaint, then § 1997e(c)(1), which uses the same

term, would also require dismissal of the entire complaint if

any claim is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief from

an immune defendant, thus rendering § 1997e(c)(2)

superfluous. This argument misreads § 1997e(c)(1), which

mandates dismissal of the action if the court “is satisfied

that the action” is frivolous, malicious, fails to state a claim

upon which relief can be granted or seeks damages from an

immune defendant. Thus, with respect to the underlying

merits of the claims asserted, the provision requires dismissal

of the action only if ail claims fail on these grounds. With

respect to exhaustion, § 1997e(a) likewise refers to an

- “action” as a bundle of claims in a lawsuit and bars an action

until all available administrative remedies have been

exhausted. If this statutory precondition to commencement

is not satisfied, dismissal of the action is required.’

A further question is whether § 1997e(a) requires that a

mixed action be dismissed without an opportunity for the

prisoner to amend the complaint. Petitioners note (Br. 76)

that in the habeas corpus context, where a total exhaustion

rule applies, petitioners are permitted to resubmit a petition

with the unexhausted claims deleted. See Rose v. Lundy, 455

U.S. 509, 520-22 (1982) (plurality opinion) (“‘a district court

must dismiss habeas petitions containing both unexhausted

and exhausted claims,” but the prisoner can “amend the

petition to delete the unexhausted claims’); see also Rhines

v. Weber, 544 U.S. 269, 278 (2005). If the district court finds

good cause for the petitioner’s failure to exhaust all claims,

the court may, under limited circumstances, employ a “stay-

and-abeyance” procedure, staying the habeas proceeding and

holding it in abeyance while the petitioner returns to state

court to exhaust his unexhausted claims. Rhines, 544 U.S. at

277.

This analogy, however, is inapt in light of § 1997e(a)’s

text and legislative history. Section 1997e(a) was substitutéd

for a predecessor provision that authorized district courts to

Stay the prisoner’s action “for a period not to exceed 180

3. Petitioners’ reference to § 1997e(e) does not assist them

either. The instant cases do not present the question whether an action

must be dismissed because a prisoner pleads a claim “for mental or

emotional injury suffered while in custody without a prior showing

of physical injury,” 42 U.S.C. § 1997e(e), despite the pleading of

other viable claims. In any event, § 1997e(e)’s heading indicates

that it is a “[lJimitation on recovery” that does not implicate the

same underlying policy concerns as the total exhaustion requirement

of § 1997e(a) (see Point II, infra).

days” while the prisoner exhausted administrative remedies.

Civil Rights of Institutionalized Persons Act, § 7, 94 Stat.

352; see Woodford, 126 S. Ct. at 2382; Porter, 534 U.S. at

523. Thus, any argument that a stay for this purpose continues

to be available is untenable.

Moreover, Congress included a different prohibition in

§ 1997e(a) than it did in 28 U.S.C. § 2254. Section 2254

does not explicitly bar the commencement of a habeas corpus

proceeding with a mixed petition. It provides that “[a]n

application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall

not be granted unless it appears that ... the applicant has

exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A) (emphasis added); see Rhines,

544 U.S. at 273 (“we held in Rose v. Lundy... that federal

district courts may not adjudicate mixed petitions for habeas

corpus”) (emphasis added).-The habeas statute thus leaves

room for an amendment of the petition or stay-and-abeyance

so that the application is adjudicated only on exhausted

claims.

In § 1997e(a), however, Congress used language that

unambiguously precludes the commencement of an action

with a mixed complaint. There is no reason that Congress

would have barred commencement of a mixed action if it

had intended that, once commenced, the infirmity simply

could be cured by the prisoner or the court. Accordingly, this

text should be given legal effect, and dismissal of a

statutorily-barred action is thus the proper disposition.

I. A Total Exhaustion Rule Furthers The Policies

Underlying The PLRA And § 1997e(a).

While the plain language of § 1997e(a) should be

dispositive, the policies underlying the PLRA’s enactment

likewise weigh heavily in favor of a total exhaustion

requirement. This Court has stressed “the PLRA’s dominant

concern to promote administrative redress, filter out

groundless claims, and foster better prepared litigation of

claims aired in court.” Porter, 534 U.S. at 528. “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.” Id. at 524-25.

A total exhaustion rule serves all of these goals. It

administrative redress by maximizing the incentive

for prisoners to make prompt and full use of prison grievance

procedures and exhaust administrative remedies on all claims

before joining them in an action, giving prison officials an

earlier opportunity to resolve all of the prisoner’s complaints.

See Woodford, 126 S. Ct. at 2387-88 (adopting construction

of § 1997e(a) that “gives prisoners an effective incentive to

make full use of ‘he prison grievance process and accordingly

provides prisons \/ith a fair opportunity to correct their own

errors”); cf. Duncan v. Walker, 533 U.S. 167, 178-80 (2001)

(adopting construction of habeas corpus statute that provides

a “powerful incentive” to exhaust available remedies and

rejecting interpretation that “would do far less to encourage

exhaustion”). The rule thus promotes federal-state comity,

which “has as much relevance in areas of particular state

administrative concern as it does where state judicial action

is being attacked.” Preiser v. Rodriguez, 411 U.S. 475, 491

(1973); see Woodford, 126 S. Ct. at 2388 (“This is particularly

important in relation to state corrections systems because it

is ‘difficult to imagine an activity in which a State has a

stronger interest, or one that is more intricately bound up

with state laws, regulations, and procedures, than the

administration of its prisons.””) @uoting Preiser, 411 U.S.

at 491-92).

As a result of this incentive, the total exhaustion rule

will inevitably reduce the quantity and improve the quality

of prisoner suits. In many cases, corrective action taken by

prison officials on a prisoner’s grievance that would

otherwise remain unexhausted “might improve prison

administration and satisfy the inmate,” Porter, 534 U.S. at

525, so that the claim is never brought to federal court.

Alternatively, administrative resolution of the claim may

convince the prisoner of its lack of merit so that it does not

become part of future litigation. See id. (“In other instances,

the internal review might ‘filter out some frivolous claims.””’)

(quoting Booth v. Churner, 532 U.S. 731, 737 (2001)). When

a prisoner has multiple claims that are all properly grieved,

favorable resolution of one or more of them may persuade

the prisoner to abandon the others and not to commence a

federal action at all. See Woodford, 126 S. Ct. at 2388

(“Proper exhaustion reduces the quantity of prisoner suits

because some prisoners are successful in the administrative

process, and others are persuaded by the proceedings not to

file an action in federal court.”). The prompt and complete

exhaustion encouraged by the rule also facilitates the creation

of a more accurate and complete administrative record to

assist the courts in resolving claims ultimately litigated. See

id. (“proper exhaustion often results in the creation of an

administrative record that is helpful to the court” and “[w]Jhen

a grievance is filed shortly after the event giving rise to the

grievance, witnesses can be identified and questioned while

memories are still fresh, and evidence can be gathered and

preserved”’). -

Additionally, the total exhaustion rule improves the

quality of prisoner suits by strongly discouraging the

inclusion of unexhausted claims in a complaint. See Porter,

534 U.S. at 528 (dominant concern of PLRA to, inter alia,

“foster better prepared litigation of claims aired in court”).

Without the rule, district courts and defendants are left to

ferret out the unexhausted claims through time-consuming

motion practice. Permitting district courts simply to dismiss

unexhausted claims results in a toothless scheme in which

the prisoner’s noncompliance with § 1997e(a) carries no

sanction at all, providing no deterrence to the pleading of

unexhausted claims. See Woodford, 126 S. Ct. at 2382

(declining to adopt interpretation of § 1997e(a) that “carries

no significant sanction” for noncompliance).

While petitioners note that the prisoner may just file

another action with only the exhausted claims, the prisoner

will be assessed another filing fee, see 28 U.S.C.

§ 1915(b)(1), providing a financial disincentive to including

the unexhausted claims in the first action. Statutes of

limitations may provide an added incentive for prisoners

not to allege unexhausted claims and have an action

dismissed on this basis.* Thus, the total exhaustion rule will

4. The statute of limitations for section 1983 claims “is

generally the applicable state-law period for personal-injury torts,”

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 123 n.5 (2005),

and state tolling provisions may permit a prisoner to recommence

an action on exhausted claims dismissed for lack of total exhaustion,

notwithstanding that the statute of limitations has run in the interim.

See, e.g., N.Y. C.P.L.R. 205(a).

meaningfully improve the quality of prisoner complaints, as

Congress intended, by forcing a prisoner to think twice before

pleading unexhausted claims. See Cooter & Gell v. Hartmax

Corp., 496 U.S. 384, 398 (1990) (“The filing of complaints,

papers, or other motions without taking-the necessary care

in their preparation is a separate abuse of the judicial

~ystem’”). The time that district courts and defendants would

spend culling unexhausted claims from mixed complaints

can be better spent on resolving exhausted claims in properly

pleaded, potentially meritorious complaints.

The total exhaustion rule promotes judicial economy in

other ways as well. Because an action must be dismissed

once the court identifies one unexhausted claim, the court

and defendants are spared the time-consuming effort of

determining whether every other claim in the complaint has

been exhausted. In addition, the rule may serve to discourage

piecemeal litigation, an especially important objective when

claims are factually or legally related. Knowing that a mixed

action will be dismissed, the prisoner is strongly encouraged

to exhaust all claims initially and include them in one action

with only one filing fee to be paid. See Rose, 455 U.S. at 520

(“Rather than increasing the burden on federal courts, strict

enforcement of the exhaustion requirement will encourage

habeas petitioners to exhaust all of their claims in state court

and to present the federal court with a single habeas

petition.”). By mandating that “[nJo action shall be brought”

until all administrative remedies have been exhausted,

Congress intended to avoid the inefficiency that would result

if a prisoner can litigate the exhausted claims in a mixed

complaint and then bring related claims if and when they

have been exhausted. See id. (“To the extent that the

exhaustion requirement reduces piecemeal litigation, both

the courts and the prisoners should benefit, for as a result

the district court will be more likely to review all of the

prisoner’s claims in a single proceeding, thus providing for

a more focused and thorough review.”). Thus, “[t}he interest

in orderly administration of this body of litigation is best

served by adherence to the straightforward statutory

command.” McNeil, 508 U.S. at 112.

Finally, petitioners’ view that the total exhaustion rule

is too harsh for prisoners was rejected by Congress when it

enacted § 1997e(a). The total exhaustion rule provides

“a simple and clear instruction to potential litigants,” Rose,

455 U.S. at 520: before you commence an action in federal

court, make sure that you have administratively exhausted

all of your claims in the prison system. Even pro se prisoners

should “be able to master this straightforward exhaustion

requirement,” id., that they are already acquainted with from

the habeas corpus context. See Woodford, 126 S. Ct. at 2393

(rejecting argument that requiring proper exhaustion is

unduly harsh for prisoners, in light of the “informality and

relative simplicity of prison grievance systems” and “the fact

that prisoners who litigate in federal court generally proceed

pro se and are forced to comply with numerous unforgiving

deadlines and other procedural requirements”’).°

5. Notably, pro se prisoner complaint forms provided by district

courts to prisoners place them on notice of this requirement by

directing the prisoner to allege the manner in which he grieved each

claim and the result. See, e.g., United States District Court for the

Western District of New York Prisoner Complaint Form, at http://

www.nywd.uscourts.gov/document/PrisonerComplaintForm.pdf;

United States District Court for the Northern District of New York

Inmate Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, ar http:/

/www.nynd.uscourts.gov/pdf/inmatciv.pdf.

CONCLUSION

For the foregoing reasons, this Court should hold that

the PLRA prescribes a total exhaustion rule that requires

a district court to dismiss a prisoner’s action when the

complaint contains any unexhausted claims.

CAITLIN J. HALLIGAN*

Solicitor General

DanieL SMIRLOCK

Deputy Solicitor General

Peter H. Scuirr

Senior Counsel

Roserr M. GoLpFARB

Maartin A. Hotrvet

Assistant Solicitors General

Respectfully submitted,

Exior Sprrzer

Attorney General of ihe

State of New York

120 Broadway

New York, NY 10271

(212) 416-8016

Attorney for Amicus Curiae

State of New York

* Counsel of Record

Troy KinG

Attorney General

State of Alabama

11 South Union Street

Third Floor

Montgomery, AL 36130

Davip MARQUEZ

Attorney General

State of Alaska

P.O. Box 110300

Juneau, AK 99811-0300

MIke BEEBE

Attorney General

State of Arkansas

323 Center Street

Suite 200

Little Rock, AR 72201

Bitt Lockyer

Attorney General

State of California

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Joun W. SUTHERS

Attorney General

State of Colorado

1525 Sherman Street

Fifth Floor

Denver, CO 80203

Cart C. DANBERG

Attorney General

State of Delaware

820 N. French Street

Wilmington, DE 19801

Roserr J. SPAGNOLETTI

Attorney General

District of Columbia

One Judiciary Square

441 Ath Street, N.W.

Washington, D.C. 20001

Cuarces J. Crist, Jr.

Attorney General

State of Florida

The Capitol PL-O1

Tallahassee, FL. 32399-1050

Mark J. BENNETT

Attorney General

State of Hawaii

425 Queen Street

Honolulu, HI 96813

LawrRENCcE G WASDEN

Attorney General

State.of Idaho

P.O. Box 83720

Boise, ID 83720-0010

LisA MADIGAN

Attorney General

State of Illinois

100 West Randolph Street

12th Floor

Chicago, IL 60601

J. JosepH Curran, Jr.

Attorney General

State of Maryland

200 Saint Paul Place

Baltimore, MD 21202

JEREMIAH W. (Jay) Nixon

Attorney General

State of Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

Mike McGratu

Attorney General

State of Montana

P.O. Box 201401

Helena, MT 59620

Jon BRUNING

Attorney General

State of Nebraska

P.O. Box 98920

Lincoln, NE 68509

Georce J. CHANOS

Attorney General

State of Nevada

100 North Carson Street

Carson City, NV 89701

Wayne STENEHJEM

Attorney General

State of North Dakota

600 E. Boulevard Avenue

Bismarck, ND 58505

Jim PETRO

Attorney General

State of Ohio

30 E. Broad Street

17th Floor

Columbus, OH 43215

W.A. Drew EDMONDSON

Attorney General

State of Oklahoma

2300 N. Lincoln Boulevard

Suite 112

Oklahoma City, OK 73105

Harpy Myers

Attorney General

State of Oregon

1162 Court Street, N.E.

Salem, OR 97301

THomas W. Corsetr, Jr.

Attorney General

Commonwealth of

Pennsylvania

16th Floor

Strawberry Square

Harrisburg, PA 17120

Patrick LYNCH

Attorney General

State of Rhode Island

150 South Main Street

Providence, RI 02903

Henry MCMASTER

Attorney General

State of South Carolina

P.O. Box 11549

Columbia, SC 29211

LAWRENCE E. LonG

Attorney General

State of South Dakota

1302 E. Hwy. 14, Suite 1

Pierre, SD 57501

Pau G SUMMERS

Attorney General

State of Tennessee

P.O. Box 20207

Nashville, TN 37202

Grec ABBOTT

Attorney General

State of Texas

P.O. Box 12548

Austin, TX 78711

Mark L. SHURTLEFF

Attorney General

State of Utah

Utah State Capitol Complex

East Office Bldg., Suite 320

Salt Lake City, Utah 84114

Roperr F. McDONNELL

Attorney General

Commonwealth of Virginia

900 East Main Street

Richmond, VA 23219

Ros McKENNA

Attorney General

State of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504

DarRreLL V. McGraw, Jr.

Attorney General

State of West Virginia

State Capitol, Room 26-E

Charleston, WV 25305

Peccy A. LAUTENSCHLAGER

Attorney General

State of Wisconsin

P.O. Box 7857

Madison, WI 53707

Patrick J. CRANK

Attorney General

State of Wyoming

123 State Capitol

Cheyenne, WY 82002

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.