Amicus Curiae Brief — Williams v. Overton (Nos. 05-7142, 05-7058)

mt. US

FILED

(0) NOV 22 2005

OFFICE OF THE CLERK

No. 05-7142

IN THE

Supreme Court of the United States

TIMOTHY WILLIAMS,

Petitioner,

v.

WILLIAM OVERTON, ET AL,

Respondents.

JOHN H. WALTON,

Petitioner,

v.

BARBARA BOUCHARD, 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 PETITIONERS

GAIL E. LEES

Counsel of Record

GARETH T. EVANS

ERIC R. MAIER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-700¢

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether the Prison Litigation Reform Act of

1995 (“PLRA”) mandates the dismissal, without leave to

amend, of a prisoner’s federal civil rights claim against de-

fendants who were not specifically identified in the plaintiffs

previously-filed prison grievance regarding the challenged

conduct or conditions.

2. Whether the PLRA provides a “total exhaustion”

rule, 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.

li

TABLE OF CONTENTS

QUESTIONS PRESENTED..............ccsssssssosssssceserecesereseseecsees i

Re ae Ce cercerscssseamimcninizemninnivnnteniamenti ii

L. The Sixth Circuit’s Requirement

That Prisoners Name All Potential

Defendants In Their Prison

Grievance Goes Beyond The

PLRA’s Exhaustion Requirement

And Is Contrary To Established

Il. Importing The “Total Exhaustion”

Requirement From Habeas Corpus

Jurisprudence Undermines The

Purpose Of The PLRA And

Prevents Meritorious Suits From

ecresitnvensvernstccetctneninneneseentn 15

CE I cece ccerncssescescssesscssenenassnssssesenensseneevepsneesetes 20

iii

TABLE OF AUTHORITIES

Cases Page(s

Bey v. Johnson,

407 F.3d 801 (6th Cir. 2005)..........cccsssesesssssersseserssnsneees 15

Booth v. Churner,

Fs Fe Ge cectenenstincciinntnreennanimenrnmatannineitivniae 4

Bounds v. Smith,

s.r 3

City of Rancho Palos Verdes, California v. Abrams,

TRS Ca, BE Ge ccccsssccssnsssnccsnesssensenemmnenmnemen 18

Cleavinger v. Saxner,

PO as Se GD cerrctrenterememannnnmnnnetii 8, 18

Combs v. Wilkinson,

es See ertinninncincnsicntinnniecninnsitasiosiniasiinins 12

Edwards v. Balisok,

eT 16

Ford v. Johnson,

nD ll

Johnson v. Testman,

ee Ce icciccsinictcintcccsisaiictisannciinstticiiitassiasas 2

lira v. Herrera,

2005 WL 285015 (9th Cir. Nov. 1, 2005)......... 7, 15, 16, 19

iv

McCarthy v. Madigan,

SE ERT NaNO a Oe 4

Mojias v. Johnson,

Pe ee re Oy BR ee cestesiencecnsceniscsinicteatndcindinnentinsii 2

Muhammad vy. Close,

es SITE scsi cersttsreitasinntntnscerssimeeiaeninnivedsiitinis 4,16

Nelson v. Campbell,

541 U.S. 637 (2004) ..........0000 seinnsiesdanipriepesigiaditaneinienininitiias 16

Ortiz v. McBride,

380 F.3d 649 (2d Cir. 2004).......ccccoccccsescecsscocsescosscereees 2, 16

Polk County v. Dodson,

I DOR ili diaiiniiii petite dlialataliaaasatiials 12

Porter v. Nussle,

534 U.S. 516 (2002) svsessencssssnsensenssosesencenccnssnsnecsnssnceneese 5, 11

Rhines v. Weber,

Se ey MP IIIT scisiccinslnieseeiihiamieeaitainaliiin 9,18, 19

Rizzo v. Goode,

Re TIT nscresirdiiencnndenstniinidinibisetethtesiesiniaienteiadaininmies 12

Rose-v. Lundy,

es I iicicicnsiantincsitituinticntitnamnida 8, 9, 15, 17

Ross v. County of Bernalillo,

365 F.3d 1181 (10th Cir, 2004)... ee ceeteeteseeteeeeeenes 16

Sims v. Apfel,

SIO US. 103 CIGD) qn. cccrcccecccscessessssccscesccccscesssese 8,9, 13,14

Thomas v. Woolum,

337 F.3d 720 (6th Cir. 2003)........ccsescsrcesereeeersenereeseeeees 13

United States v. Wells,

FOP hie Ge CEB F Pccccecncessenpnsisasinsnranienntascennmnmianiiilain 4

Westefer v. Snyder,

422 F.3d 570 (7th Cir. 2005)......:...cccsssocsssesssrerssoserserseesees 3

Wilkinson v. Dotson,

12S &. CY, IDES GEOG) ncnecovsvcesetreccssescsnsosonnavccsooneses 8, 16, 17

Statutes

Be IE, § TORS ccececccevsssencnseninsesemecrnmnsenensennastntinii 19

Se tae G TRI ccccseccerccecsncincstnnacinnninessinnemiieiisiditioiaii 19

Ee ss BBE wecercnscncccscsnestenecsnnsnmmnnsiiniianatiasiibias ante

Se WEE. B TBF ccrsssnnsssrsernassvisiinciniccnnisininapineniaiaaaanaael 4

CB CBE” 8 TO cceneecsrancosscsetionecsneneiininnigniceal passim

Other Authorities

B43 Come, Ras. SI4621 (IDB) cceossccccscsceccscsscssssesessenssenssesnens 4

Booth v. Churner, No. 99-1964,

Brief of Amici Curiae in Support of Petitioner,

2000 WL 1868111 (Dec. 14, 2000)............scsceseseseeseseeseeees 2

Booth v. Churner, No. 99-1964,

Brief of Amici Curiae in Support of Respondents,

2001 WL 57590 (Jan. 19, 2001).......cccceseseessscerserseseseeees 11

Florida Corrections Comm’n

1999 Annual Report, App. 4.3,

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

(last visited Nov. 16, 2005) ........-.scscessccssssssesesesceseseeneeesees 12

Rules

Fed. R. Civ. P. 15(a)

Fed. R. Civ. P. 21....

SESS ES EEE EEEEESE ESHEETS EEEEEEEH EHH ETE H EEE EEE

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 rights 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

protecting 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

1 The parties bave 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, 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 contributed money or services to the

preparation or submission of this brief.

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

Sees een 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 Legal 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-

3

lengi ison conditions, parole procedures, and “good time

volicies” in the Illinois prison system. — UPLC frequently

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

mal litigation (see, ¢.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. These cases present the question whether courts are

permitted to impose additional, judicially-created procedural

Tules to govern the administrative exhaustion requirement,

where such rules interfere with a prisoner’s constitutional

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

of advancing the congressional policies underlying the

PLRA. In these cases, the Sixth Circuit joined three other

circuits in effectively answering this question in the affirma-

tive, resulting in the dismissal of Petitioners’ civil rights

claims. Had the alleged deprivation of Petitioners’ civil

rights occurred in one of the several circuits that have de-

clined to impose these additional procedural rules, Petitioners

would have been permitted to present their claims to a federal

court. This Court’s review is necessary to resolve this deep-

ening 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).

Congress historically has 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: “[t]he 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 sueh-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, 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. $1461]

(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. /d.

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.” Jd. 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 that are at issue in this

petition are: (i) the rule requiring dismissal (without leave to

amend) of a prisoner’s claim against defendants who were

not named in the plaintiff's prison grievance; and (ii) the “to-

tal exhaustion” 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 Timothy Williams, an inmate in the

custody of the Michigan Department of Corrections

(“MDOC”), has had “noninvoluting cavernous hemangio-

mas” in his right arm since birth, which creates the growth of

tumors and results in disfigurement of the arm. Pet. App. 2a.

A medical doctor authorized surgery to remove the tumors

and to straighten Williams’ wrist, but the MDOC refused.

Ibid. Williams filed an administrative grievance challenging

the non-approval of surgery, but the grievance and subse-

quent appeals were denied. /d. at 3a. Williams also filed a

separate grievance challenging the denial of his request for a

“handicapped accessible single cell” to accommodate his

condition, but that grievance and subsequent appeals also

were denied. Williams then filed a lawsuit under 42 U.S.C.

§ 1983, challenging the denial of his requests for surgery and

for a handicapped accessible cell. Jd. at 3a-4a.

The district court dismissed petitioner’s entire com-

plaint, and the Sixth Circuit affirmed. The Sixth Circuit held

that although “Williams did file a grievance based on the de-

nial of medical treatment,” he nevertheless failed to exhaust

his claims because “the grievance failed to specifically name

any of the appellees that Williams named in his [§ 1983]

complaint.” Jd. at 6a. The Sixth Circuit then applied the “to-

tal exhaustion” rule and dismissed Williams’ claim for denial

of a handicapped cell, reasoning that “{dJespite Williams’

apparent exhaustion of this issue, however, [Sixth Circuit

precedent] requires that the entire action be dismissed due to

Williams’ failure to exhaust his medical claims.” Jbid.

5. Petitioner John Walton, an inmate in the custody

of the MDOC, filed a prison grievance in April 2002. Pet.

App. at 39a. In his grievance, Walton, an African American,

charged Assistant Deputy Warden Bobo with racial discrimi-

nation for imposing a disciplinary measure against Walton

that was more severe than a disciplinary measure imposed

against a white inmate who engaged in similar conduct. Jbid.

Walton’s grievance was denied, as were his administrative

appeals. Jd. at 39a-40a. Walton then filed a lawsuit under 42

U.S.C. § 1983 against Bobo and other MDOC employees

allegedly involved in the decision to discipline Walton. Id. at

40a.

The district court dismissed Walton’s entire complaint,

and the Sixth Circuit affirmed. The Sixth Circuit held that

Walton failed to satisfy the PLRA’s exhaustion requirements

because “[h]e named only ADW Bobo in Step I of his griev-

ance process, and under our precedent that is the only claim

that we may consider exhausted.” Jd. at 42a. The Sixth Cir-

cuit then dismissed the claim against ADW Bobo, reasoning

that “[Walton’s] claims as to all other defendants remain un-

7

exhausted and accordingly the district court properly dis-

missed the entire complaint under [the Sixth Circuit’s] total-

exhaustion requirement.” Jbid.

6. As the petition demonstrates, the Sixth Circuit

and the Eighth Circuit hold that a prisoner may maintain a

claim under 42 U.S.C. § 1983 only if he or she identifies

each-of the defendants in his or her prison grievance. See

Pet. at 11. The Seventh and Ninth Circuits have rejected this

requirement. See id. at 11-12.

Three circuits—the Third, Sixth and Tenth—apply a

“total exhaustion” rule, requiring the dismissal of an entire

complaint in the event that one or more of the claims have

not been administratively exhausted. See id. at 18-20. The

Second, Fifth, Seventh and Ninth Circuits have rejected the

“total exhaustion” rule. See id. at 20-22.2

REASONS FOR GRANTING THE WRIT

The decision below is based upon two rulings that con-

tradict prior Court decisions, that operate to unnecessarily

deprive prisoners of the right to present meritorious civil

rights claims in federal court, and that subvert the purpose of

the PLRA. These judicially-created impediments have trans-

formed the constitutional right of access to the courts into a

complicated maze of traps for prisoners who seek to vindi-

cate their civil rights in the Third, Sixth, Eighth and Tenth

Circuits.

The Sixth Circuit’s requirement that a prisoner’s civil

rights claim must be dismissed if it includes defendants who

2 The Ninth Circuit rejected the total exhaustion rule in an opinion

issued after the Petition was filed. Lira v. Herrera, --F.3d—, 2005

WL 285015 (9th Cir. Nov. 1, 2005).

were not named in the plaintiff's prison grievance goes be-

yond the express language of 42 U.S.C. § 1997e(a), which

only requires a prisoner to exhaust his or her available ad-

ministrative remedies prior to filing a § 1983 lawsuit, and

goes beyond the requirements of the administrative proce-

dures themselves. The imposition of this judicially-imposed

requirement conflicts with the Court’s decision in Sims v.

Apfel, 530 U.S. 103 (2000), in which this Court held that

even where exhaustion of administrative remedies is statuto-

rily mandated, a court cannot impose additional technical re-

quirements not prescribed by statute or the prison administra-

tive procedures. Moreover, the Sixth Circuit’s requirement

effectively shortens the statute of limitations for a prisoner’s

civil rights claim into a matter of days because a prisoner

who fails to identify a particular prison official on the prison

grievance form will be barred from later suing that prison

official. Indeed, in some state prison systems, the deadline to

file a grievance is a mere 48 hours following the precipitating

event. The rule, therefore, constitutes a significant interfer-

ence with a prisoner’s constitutional right of access to the

courts.

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—i.e., federal-state comity and the development of a

complete factual record to aid the federal courts. Jd. at 515,

518-19. Neither rationale supports the adoption of a total

exhaustion rule for PLRA cases. See Wilkinson v. Dotson,

125 S. Ct. 1242, 1249 (2005) (rejecting argument that per-

mitting 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

proceedings).

Further, the total exhaustion rule is significantly harsher

than the habeas rule that is purportedly its model. In Lundy,

the Court acknowledged that a habeas petitioner should gen-

erally be allowed to withdraw unexhausted claims and con-

tinue with the exhausted claims, rather than mandating dis-

missal 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 peti-

tions since Lundy, and, in order to avoid forfeiture of merito-

rious habeas claims, the Court modified the Lundy rule to

allow courts to stay petitions containing unexhausted claims

to permit those claims to be exhausted. Jd. at 1533-35. Sec-

tion 1983 actions, too, are governed by statutes of limita-

tions, and the concerns of the Rhines Court are equally appli-

cable to such actions.

I. The Sixth Circuit’s Requirement That Pris-

oners Name All Potential Defendants In

Their Prison Grievance Goes Beyond The

PLRA’s Exhaustion Requirement And Is

Contrary To Established Law

The rule imposed by the Sixth Circuit—that a prisoner

can only pursue a lawsuit against those defendants who were

named in the prisoner’s grievance—goes beyond the express

language of 42 U.S.C. § 1997e(a) and is inconsistent with the

Court’s interpretation of the PLRA’s exhaustion requirement.

The rule also goes beyond the requirements of the state

prison grievance procedures themselves, which do not put a

prisoner on notice that he or she must identify all persons

who may be legally responsible for the challenged conduct or

policy. This restrictive rule operates to severely shorten the

statute of limitations for a prisoner plaintiff pursuing a

§ 1983 claim in the Sixth Circuit. In addition, the rule con-

tradicts Sims v. Apfel, 530 U.S. 103 (2000), in which this

Court held that even where exhaustion of administrative

10

remedies is statutorily mandated, a court cannot impose addi-

tional exhaustion requirements.

1. The PLRA mandates exhaustion of available ad-

ministrative remedies. It 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) (emphasis added). The statute says nothing about

naming all of the individual perpetrators of a claimed civil

rights violation during the prison grievance process, and does

not put potential plaintiffs on notice of any such requirement.

2. The rule that the Sixth Circuit has adopted, permit-

ting a prisoner’s lawsuit to proceed only if the defendants

were all identified in the prisoner’s administrative grievance,

goes far beyond the exhaustion of administrative remedies,

the plain language of the PLRA, and congressional intent.

The proceedings below in the Williams case illustrate the

consequences of the rule. Petitioner Williams requested au-

thorization for surgery to alleviate the pain in his tumor-

ridden hand, but the MDOC denied his request. The district

court found that Williams fully utilized the procedures made

available by the MDOC to challenge the failure of prison of-

ficials to authorize his hand surgery. See Pet. App. at 16a

(“The documentation which he attaches to the complaint does

in fact indicate that Plaintiff fully prosecuted a grievance re-

lating to the quality of medical care received for his condition

and expressing concern as to when surgical intervention

would be authorized.”). Williams pursued his administrative

remedy—a surgical procedure to relieve the pain in his

hand—through the initial grievance phase and through the

two available administrative appeals. Jd. at 18a-19a.

There is no question that Williams exhausted the proc-

ess that was available to him, which satisfies the PLRA ex-

ii

haustion requirement Had the MDOC granted Williams the

relief he sought—surgery on his hand—the need for a federal

lawsuit would have been obviated, consistent with the pur-

pose of the exhaustion requirement as articulated by this

Court. “Congress afforded corrections officials time and op-

portunity to address complaints internally before allowing the

initiation of a federal case.... [C]orrective action taken in

response to an inmate’s grievance might improve prison ad-

ministration and satisfy the inmate, thereby obviating the

need for litigation.” Porter, 534 U.S. at 525.

Moreover, as articulated by the State of Michigan and

the other 49 states in Booth, the purpose of the PLRA ex-

haustion requirement is to “allow(] disputing parties to focus

on solutions rather than litigation tactics.” Booth v. Churner,

No. 99-1964, Brief of Amici Curiae in Support of Respon-

dents, 2001 WL 57590, *1-2 (Jan. 19, 2001); accord, Ford v.

Johnson, 362 F.3d 395, 399-400 (7th Cir. 2004) (“Rules of

the form ‘negotiate now, litigate later’ or ‘administrative

remedies first, litigation second’ reflect a belief that postpon-

ing suits induces people to concentrate their attention on ne-

gotiation or alternative dispute resolution, so that some frac-

tion of the time parties will not need to litigate at ail.”).

Thus, to require a prisoner plaintiff to anticipate in his prison

grievance the shape of a federal lawsuit that, ideally, will be

obviated by the grievance process, defeats the purpose of the

PLRA’s requirement of exhaustion of available administra-

tive remedies.

3. Requiring a prisoner plaintiff to identify on a prison

grievance form all prospective defendants in a potential civil

rights lawsuit presents enormous practical barriers, not in-

tended by Congress, to prisoners’ exercise of their constitu-

, tional right of access to courts, particularly given the short

time frames allowed for the filing of an administrative griev-

ance. In the MDOC, where both Petitioners are inmates, this

period is limited to a mere seven days following the precipi-

12

tating incident. See Pet. App. 56a-57a. In some states, this

deadline may be as little as 48 hours. See Florida Corrections

Comm’n 1999 Annual Report, App. 4.3,

www.fcc.state. fl.us/fcc/reports/final99/ap4-3.htm! (last vis-

ited Nov. 16, 2005). Thus, in the Sixth Circuit, a prisoner’s

failure to identify a particular defendant during a one-or two-

week period following the precipitating event precludes the

prisoner from pursuing a claim against that defendant, re-

gardless of a prisoner’s efforts to exhaust available adminis-

trative remedies. In contrast to the Federal Rules of Civil

Procedure, which liberally permit amendment of pleadings in

order to add parties, see Fed. R. Civ. P. 15(a) and 21, the rule

adopted by the Sixth Circuit shrinks the statute of limitations

for a prisoner’s § 1983 claim from one or more years into a

matter of days.

The rule imposed by the Sixth Circuit requires a pris-

oner plaintiff not only to sort out facts during a one-or two-

week period, but also to formulate legal theories and evaluate

issues. A respondeat superior theory of liability is not avail-

able to a plaintiff in a § 1983 action, see Polk County v.

Dodson, 454 U.S. 312, 325 (1981), and a plaintiff must iden-

tify with particularity those persons who “subject[], or

cause[] to be subjected, the complainant to a deprivation of a

right secured by the Constitution and the laws.” See Rizzo v.

Goode, 423 U.S. 362, 370-71 (1976). In Williams’ case, for

instance, to identify defendants in a potential § 1983 action,

he would be required to determine which “supervisory offi-

cial” could be held liable for having “at least implicitly au-

thorized, approved, or knowingly acquiesced in” the decision

to deny authorization of hand surgery. See Pet. App. at 2la

(Magistrate Judge Report and Recommendation), citing

Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002). A

requirement to name all litigation defendants within a seven-

day period, on pain of forfeiting a valid civil rights claim,

would be daunting for a skilled attorney, let alone “the prison

grievant [who] is generally the epitome of the lay person, un-

13

assisted by a trained lawyer, seeking to invoke the legal proc-

ess.” Thomas v. Woolum, 337 F.3d 720, 729 (6th Cir. 2003).

The Sixth Circuit’s rule effectively eliminates a prisoner’s

right to pursue any but the most elementary § 1983 claim.

4. The Sixth Circuit’s rule goes beyond not only the

language and intent of the PLRA, but also beyond the re-

quirements of the prison administrative system itself. Many

prison grievance systems—including the MDOC’s system—

do not require prisoners to name all the persons who might

be responsible for the actions or policies being challenged.

See Pet. App. at 52a-58a (MDOC policy). Petitioners com-

plied with the MDOC requirements; both Petitioners filed

administrative complaints and pursued them to the final level

of review, where they were denied on the merits and not for

failure to name particular individuals. See Pet. App. 2a-3a,

39a-40a.

Because it imposes requirements beyond those of the

administrative system itself, the Sixth Circuit’s rule cannot

be reconciled with the Court’s decision in Sims v. Apfel, 530

U.S. 103 (2000). In Sims, the plaintiff challenged the denial

of her application for social security and disability benefits.

She filed a lawsuit after utilizing the administrative proce-

_ dures made available by the Social Security Act. Jd. at 105.

The Fifth Circuit affirmed the dismissal of her claim because,

although she exhausted her administrative remedies, her law-

suit challenging the denial of her benefits was based on is-

sues not raised during the administrative process. Jd. at 106.

This Court reversed, holding that a requirement that the

plaintiff exhaust her challenge to the denial of benefits

through the administrative review system before filing a law-

suit did not compel the plaintiff to exhaust al] issues. Id. at

111-12. The Court explained that “the desirability of a court

imposing a requirement of issue exhaustion depends on the

degree to which the analogy to normal adversarial litigation

14

applies in a particular administrative proceeding.” /d. at 109.

Justice Thomas, writing for four members of the Court, ex-

plained that a judicially created issue-exhaustion requirement

was inappropriate in light of the informal, non-adversarial

nature of the administrative proceedings.” Jd. at 111-12.3

While Sims involved a different kind of administrative ex-

haustion, its underlying premise, that the judiciary should not

impose more detailed technical requirements on an informal

administrative process from which they are absent, is equally

applicable here.

The MDOC’s Policy Directive for Prisoner/Parolee

Grievances provides for the filing of an initial grievance

within seven days of the grievable incident, and for an inves-

tigation and disposition within 15 days thereafter. Pet. App.

56a-57a. A prisoner may appeal an unsatisfactory response

to within five days, and prison officials must resolve the ap-

peal within 10 days thereafter. Jd. at 57a. A prisoner then

has 10 days to file a final administrative appeal. Jbid. The

Policy Directive contemplates informal interviews, but not

hearings. Jd. at 56a-57a. It is difficult to imagine an admin-

istrative proceeding that is less akin to adversarial litigation

than the prison grievance procedures. Given the nature of the

administrative process for resolving prison grievances, the

Sixth Circuit’s rule cannot be reconciled with Sims.

Because the decision below is based on an exhaustion

requirement that goes beyond what Congress mandated and

3 Justice O'Connor, concurring in part and concurring in the judgment,

reasoned that the “failure to notify claimants of an issue exhaustion

requirement in this context is a sufficient basis for our decision.” Id.

at 113. The MDOC procedures do not notify prisoners that they

mmst identify all persons who may be legally responsible for the

challenged conduct or conditions. See Pet. App. at S2a-58a.

15

what the administrative system itself requires, because it will

significantly interfere with a prisoner’s right to pursue civil

rights claims in the Sixth Circuit, and because it contradicts

this Court’s decision in Sims, this Court should grant the peti-

tion.

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 that

have not been administratively exhausted—despite the pres-

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

Circuits have adopted a “total exhaustion requirement,” and

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

rejected this requirement. See Pet. at 16-22; Lira v. Herrera,

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

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

16

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,

540 US. 749 (2004); Edwards v. Balisok, 520 U.S. 641

(1997): While the Court has not specifically eddressea Se

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 epee

petitions for habeas corpus may be granted only after otier

avenues of relief have been exhausted. Prisoners suing

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

even with the requirement of the Prison Litigation Retorm

Act of 1995 that administrative opportunities be exhaus

first.”) (citations omitted).

i ing this Court’s

Neither of the dual rationales underlying -

adoption of the total exhaustion rule for habeas corpus pet!

tions applies to § 1983 actions. In Lundy, the Court ex-

plained that the policy underlying the exhaustion requirement

17

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 rea-

soned that “a total exhaustion rule promotes comity and does

not necessarily impair the prisoner’s right to relief.” Jd. at

521. In contrast, the Court has recognized that challenges to

the conditions of confinement do not raise the same comity

concerns that challenges to the fact or duration of confine-

ment raise. 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).

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:

BEST AVAILABLE COPY

18

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 v.

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.

This Court previously has recognized the significance

of a statute of limitations in the analysis of the total exhaus-

tion rule. In 1996, thirteen years after Lundy was decided,

Congress passed the Antiterrorism and Effective Death Pen-

alty Act of 1996, which imposed a one-year statute of limita-

tions for federal habeas petitions (which is tolled during the

pendency of a state habeas petition). In Rhines v. Weber, 125

S. Ct. 1528 (2005), the Court examined the habeas “total ex-

haustion” requirement for the first time since the passage of

the AEDPA. The Court expressly noted the effect of a stat-

ute of limitations on the total exhaustion rule:

19

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 for-

ever losing their opportunity for any federal re-

view 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, so that it would be an

abuse of discretion to apply the total exhaustion rule and

dismiss a mixed petition. Jd. 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-

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)).

20

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,

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

federal courts, this Court should grant the petition.

CONCLUSION

Considered separately, the Sixth Circuit’s rules gov-

erning PLRA exhaustion unduly disadvantage prisoners.

Taken together, and given that the Sixth Circuit applies these

rules by dismissing claims without leave to amend, they can

be insurmountable obstacles to litigation of even the most

meritorious claim. The requirement to name each defendant

in the administrative grievance multiplies the occasions for

uncounselled litigants to make mistakes leading to dismissal

of aclaim. The total exhaustion rule means that any mistake

made in the exhaustion process will lead to dismissal of an

entire complaint. Many claims will be time-barred as a result

of such dismissals, and many will be effectively barred due

to the indigency of the prisoner.

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 les, CA 90071

(213) 229-7000

Counsel for Amici Curiae

November 22, 2005

Supreme Court U _

' A FILED

Nos. 05-7058 and 05-7142 AUG 1 4 2006

soe _

OFFICE OF THE CLERK

: In The

Supreme Court of the Anited States

“LORENZO L. JONES,

Petitioner,

v.

BARBARA BOCK, et al.,

Respondents.

e

TIMOTHY WILLIAMS and JOHN H. WALTON,

Petitioners,

Vv.

-

WILLIAM OVERTON and BARBARA BOUCHARD, et al.,

Respondents.

°

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

o

JOINT APPENDIX

Volume I

.

JEAN-CLAUDE ANDRE THOMaS L. CASEY

Counsel of Record Counsel of Record

IVEY, SMITH & RAMIREZ Solicitor General

2602 Cardiff Avenue Office of the Attorney General

Los Angeles, CA 90034-1843 525 W. Ottawa Street

(316) 558-0932 P.O. Box 30212

telephone/facsimile Lansing, MI 48909

(517) 373-1124 telephone

(517) 335-4253 facsimile

Attorney for Respondents

Attorney for Petitioners

Petition For Certiorari In 05-7058 Filed October 13, 2005

Petition For Certiorari In 05-7142 Filed October 17, 2005

Certiorari Granted In Both Cases March 6, 2006

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

a

————

JOINT APPENDIX TABLE OF CONTENTS*

Page

VOLUME I

Jones v. Bock (No. 05-7058)

Sn a I sass cmiclaseninamonibelisgnbiumenenens |

Plaintiff's Complaint, United States District

Court for the Eastern District of Michigan, filed

EIS HE rR ts Nh on OR Re 7

Report and Recommendation, United States

District Court for the Eastern District of Michi-

I I iis a sinks seis dnndivetiunebahansanlaetiiouesiinde 18

Order Adopting Report and Recommendation, in -

Part, United States District Court for the Fast-

ern District of Michigan, Filed September 25,

IIE silisctckanstlncsisnbaegdtecsaticcnbacbinapidbedtaboeads dcmbicdinl cca tanalaitiediasoiniespenein 40

Judgment, United States District Court for the

Eastern District of Michigan, Filed September

ACRES BPS ea a Ses AE ACR mae Unt ba ee 43

Unpublished Opinion, United States Court of

Appeals for the Sixth Circuit, Filed June 15,

ENN bedi desi dhalineteUbbeiebsasensiie 8S AIEEE RR et SEPT 44

Williams v. Overton (No. 05-7142)

ee EL i bak nocsaldasohensaciadoae 47

Plaintiff's Complaint, United States District

Court for the Eastern District of Michigan, filed

SE tie Cas siete side sictaidegigliledivnshc aa cidceeceaebbbsiisiaipeanihesnaneipenl 52

* Any spelling, punctuation, or grammatical errors found in the

following Joint Appendix pages were intentionally left to show accu-

rately how the original documents appeared.

ii

JOINT APPENDIX TABLE OF CONTENTS - Continued

Report and Recommendation Regarding Defen-

dants’ Motion for Dismissal or Summary Judg-

ment, United States District Court for the

Eastern District of Michigan, Filed July 22, 2003........ 76

Order Accepting Report and Recommendation,

United States District Court for the Eastern

District of Michigan, Filed October 31, 2003.............. 106

Judgment, United States District Court for the

Eastern District of Michigan, Filed October 31,

SII dinistihadesdbslen hosheryscadicecisisisdberialiddaiihachid-si-dasesckepotadakoansmeaetnkaievih 108

Unpublished Opinion, United States Court of

Appeals for the Sixth Circuit, Filed June 22, 2005 ...... 110

Walton v. Bouchard (No. 05-7142)

EEE LA ETE ry RET <..117

Plaintiff's Complaint, United States District

Court for the Western District of Michigan, filed

BE i aicinintincinsicmicdideshsebtenccotadittcdiotguddatieteia 123

Plaintiff's Amendment of Complaint, United

States District Court for the Western District of

Michigan, filed November 18, 2002 ..................0.000065. 137

Michigan Department of Corrections Policy

Directive No. 03.02.130, effective November 1,

2000 (Exhibit A to Brief in Support of Defen-

dants’ Rule 12(b) Motion for Dismissal, Filed

I a i iticniaictaenseveinnettcnrenandicacnineintaaiinion 138

Report and Recommendation, United States

District Court for the Western District of Michi-

Citas SE derhkcccdishiaiicavnicunenescocmitebecibianinioibd 158

ill

—s

JOINT APPENDIX TABLE OF CONTENTS - Continued

Opinion and Order Approving Magistrate Judge's

Report and Recommendation, United States Dis-

trict Court for the Western District of Michigan,

, 3. SERIE eee eee een 165

Judgment, United States District Court for the

Western District of Michigan, Filed October 14,

REE aA Ea Nee APA a ap ee ape Bea A cI LE RO eee 167

Unpublished Opinion, United States Court of

Appeals for the Sixth Circuit, Filed June 17,

UI ins decicisdvebssssasncsesistie date tiiebasansdlatieb icartbactisicihgtaginerdcumilelaneeeeainia 168

VOLUME H

Jones v. Bock (No. 05-7058)

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. SRF-01-09-

01068-02A) and Michigan Department of Correc-

tions’ Responses (Exhibit A to Defendants’ Motion

to Dismiss, Filed February 13, 2003)........00000000000...... II-1

—

Williams v. Overton (No. 05-7142)

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. SMF-02-06-

01337-12D) and Michigan Department of Correc-

tions’ Responses (Exhibit A to Plaintiff's Com-

plaint, Filed January 7, 2003)...................:secceeseeeeeeeees II-9

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. ARF-02-08-

1417-28H) and Michigan Department of Correc-

tions’ Responses (Exhibit I to Plaintiff's Com-

plaint, Filed January 7, 2003)...........0...cccceseeeceeeeeees 11-18

iv

JOINT APPENDIX TABLE OF CONTENTS - Continued

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. ARF-02-09-

1509-28H) and Michigan Department of Correc-

‘tions’ Responses (Exhibit J to Plaintiff's Com-

plaint, Filed January 7, 2003)......................:cccceeeeees 1i-31

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. ARF-02-09-

1507-28C) and Michigan Department of Correc-

tions’ Responses (Exhibit K to Plaintiff's Com- ~

plaint, Filed January 7, 2003)...................ccccceceeeeeeees [1-43

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. ARF-02-09-

1508-28H) and Michigan Department of Correc-

tions’ Responses (Exhibit L to Plaintiff's Com-

plaint, Filed January 7, 2003)...............cccccccessereseeeess II-50

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. ARF-02-10-

1646-1211) and Michigan Department of Correc-

tions’ Responses (Exhibit M to Plaintiff's Com-

plaint, Filed January 7, 2003)..................ccccecsserseeeees 11-54

Walton v. Bouchard (No. 05-7142)

Actual Copies of Plaintiff's Prisoner/Parolee

Grievance Forms (Grievance No. LMF-02-04-

01615-06A) and Michigan Department of Correc-

tions’ Responses (Exhibits to Plaintiff’s Motion

for Summary Judgment, Filed January 21, 2003)..... 11-65

1

U.S. District Court

Eastern District of Michigan ( Detroit)

CIVIL DOCKET FOR CASE #: 2:02-cv-74336-VAR

Jones v. MI Dept Corr, et al

Date Filed

11/15/2002

11/19/2002

01/13/2003

01/17/2003

02/13/2003

“a

*3

*4

“11

*13

*15

Docket Text

COMPLAINT -—- IFP (DT) (Entered:

11/18/2002)

OPININION and order by Judge

Victoria A. Roberts, of partial dis-

missal as to defendants State of

Michigan and Michigan Department

of Corrections and order directing

service of remaining defendants by

US Marshal without prepayment of

fees [EOD Date: 11/22/02] (lh) (En-

tered: 11/22/2002)

* + +

MOTION by plaintiff Lorenzo Jones

to name defendants Jane and John

Doe with proof of service (no brief)

(Ih) (Entered: 01/14/2003)

* & *

ORDER by Judge Victoria A. Roberts

granting motion to name defendants

Jane and John Doe by Lorenzo Jones

{11-1} {EOD Date 1/22/03) (ew)

(Entered: 01/22/2003)

* *” a

MOTION by defendants’ Bock, V.

Chaplin, Morrison, Opanasenko to

dismiss for failure to comply with the

exhaustion requirement of the PLRA

with brief, attachment, exhibits A-C,

02/21/2003

03/18/2003

03/28/2003

07/30/2003

“18

*20

*21

*26

2

and proof of service. (PP) (Entered:

02/14/2003) .

* * a

RESPONSE by plaintiff to motion to

dismiss for failure to comply with the

exhaustion requirement of the PLRA

by Bock, V. Chaplin, Morrison,

Opanasenko [15-1] with brief, and

exhibits 1-5 (PP) (Entered: 02/24/2003)

*« * *

ORDER by Judge Victoria A. Rob-

erts, referring motion to stay discov-

ery by Bock, V. Chaplin, Morrison,

Opanasenko [16-1] to Magistrate

Judge Steven D. Pepe, referring

motion to dismiss for failure to

comply with the exhaustion require-

ment of the PLRA by Bock, V. Chap-

lin, Morrison, Opanasenko [15-1] to

Magistrate Judge Steven D. Pepe, for

hearing and determination with

proof of service [EOD Date 3/19/03}

(dh) (Entered: 03/19/2003)

SUPPLEMENTAL response by plaintiff

to motion response by Lorenzo Jones

[18-1], with exhibits. (PP) (Entered:

03/28/2003)

* *« *

REPORT and recommendation by

Magistrate Judge Steven D. Pepe

that motion to dismiss for failure to

comply with the exhaustion require-

ment of the PLRA by Bock, V. Chap-

lin, Morrison, Opanasenko [15-1] be

08/08/2003

08/11/2003

09/25/2003

09/25/2003

11/04/2003

11/13/2003

*28

“29

*34

*35

*38

*40

granted in part and that plaintiff's

claims against defendants Bock,

Chaplin, Konke and Aldabaugh

should be dismissed for failure to state

claim |EOD Date: 8/1/03] with proof of

service (lh) (Entered: 08/01/2003)

« * +

OBJECTIONS by defendants Opana-

senko, Morrison to report & recommen-

dation [26-1] with attachments (ew)

(Entered: 08/11/2003)

OBJECTIONS by plaintiff to report

& recommendation [26-1] (ew) (En-

tered: 08/11/2003)

* * *

ORDER by Judge Victoria A. Roberts

accepting report & recommendation

[26-1] with proof of service [EOD Date

9/29/03} (dh) (Entered: 09/29/2003)

JUDGMENT entered by Judge

Victoria A. Roberts for defendants

with proof of service [EOD Date:

9/29/03) (dh) (Entered: 09/29/2003)

* * *

MOTION by plaintiff Lorenzo Jones

to reopen time for filing appeal with

brief, verfication (dh) (Entered:

11/04/2003)

*~ * *

ORDER by Judge Victoria A. Roberts

granting motion to reopen time for

filing appeal by Lorenzo Jones [38-1]

4

{EOD Date 11/14/03], with proof of

service. (PP) (Entered: 11/14/2003)

« * *

11/26/2003 *42 APPEAL by plaintiff Lorenzo Jones of

orders [35-1] and [34-1] to USCA — FEE:

not paid (do)( Entered: 12/03/2003)

5

General Docket

US Court of Appeals for the Sixth Circuit

Jones v. Bock

12/15/03

4/14/04

5/12/04

5/12/04

4/15/05

6/15/05

=

#03-2576

Prisoner Case Docketed. Notice filed by

Appellant Lorenzo L. Jones. Transcript

needed: n (dtk)

* * *

Appellee LETTER filed notifying they

will not be filing a brief. Letter from

Linda Olivieri for Appellee Barbara Bock.

Certificate of service date 4/12/04 [03-

2576] (dtk)

* * 7.

BRIEF filed by Lorenzo L. Jones for

Appellant Lorenzo L. Jones. Copies: 07.

Certificate of service date 5/9/04 Number

of Pages: 34. [03-2576] (rgf)

APPENDIX filed by Lorenzo L. Jones for

Appellant Lorenzo L. Jones. Copies: 07.

Certificate of service date 5/9/04 [03-

2576] SEE BRIEF FILED 05/12/04. (rgf)

CAUSE SUBMITTED on briefs to panel

consisting of Judges Batchelder, Cole,

Reeves sitting on 06.08.05. [03-2576] (kal)

* * *«

Per Curiam OPINION filed: The judg-

ment of the district court is AFFIRMED.

Decision not for publication pursuant

to local rule 28(g) [03-2576]. Alice M.

Batchelder and R. G. Cole, Circuit

Judges, Danny C. Reeves, District Judge

(E/KY). (dtk)

6

7/7/05 * MANDATE ISSUED with no cost taxed

[03-2576] (rgf)

* * *

7

UNITED STATES

DISTRICT COURT NORTHERN DISTRICT

Lorenzo L. Jones/Johnson,

Plaintiff, 02-|74336)|

Vv. {Honorable Victoria A. Roberts

Mag. Judge Steven D. Pepe]

STATE OF MICHIGAN, MICHIGAN

DEPARTMENT OF CORRECTIONS, WARDEN,

B. BOCK, DEPUTY WARDEN OF PROGRAMS

V. CHAPLIN, CLASSIFICATION DIRECTOR,

P. MORRISON AND CORRECTIONAL

OFFICER OPANASENKO, HEALTH CARE

JANE DOE AND JOHN DOE,

Jointly and Severally

Defendant, /

JURY TRIAL DEMANDED

COMPLAINT

THERE IS NO OTHER CIVIL ACTIONS

ARISING OUT OF THE SAME TRANSACTION

OR OCCURRENCE ALLEGED IN THIS COM-

PLAINT BETWEEN THE PARTIES HEREIN

/s/_ Lorenzo L. Jones Johnson .

Lorenzo Jones/Johnson-Pro se Plaintiff

(Filed Nov. 15, 2002)

NOW COMES, the Plaintiff, Lorenzo L.

Jones/Johnson, through and by himself, for damages and

injunction relief pursuant to 42 U.S.C. Sec 1983, alleging

“Prison Officials Required Plaintiff to Work Beyond

Plaintiff Physical Capabilities” “Ketaliation” and “Har-

assment” in violation of the First, Eighth and Fourteenth