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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

. ©
o Nos. 05-7058, ®

D
SEP 18 2006

IN THE

Supreme Court of the United

OF THE CLERK
SUPREME COURT, U.S.
LORENZO L. JONES,
Petitioner,
v.
BARBARA BOCK, Warden, ef ai.,
| Respondents.
TIMOTHY WILLIAMS,
Petitioner,
v,
WILLIAM OVERTON, ef ai, .
Respondents.

On WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
—— ——[—[—£—[—[—[— i ——— ——_ _ _ _ ————[—[_£_{_§—————==

BrigF OF THE STATES OF NEw YORK, ALABAMA, ALASKA, ARKANSAS,
CALIFORNIA, COLORADO, DELAWARE, FLoripA, Hawan, IpAHo, ILLINOIS,
MAryLaAnb, Missouri, Montana, NEBRASKA, Nevapa, NortH DakKoTA,
Onto, OKLAHOMA, OREGON, COMMONWEALTH OF PENNSYLVANIA, RHODE
IsLAND, SoutH CAROLINA, SoutTH 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

CalrrLin J. HALLIGAN* Euiot Sprrzer

Solicitor General Attorney General of the
DANIEL SMIRLOCK State of New York

Deputy Solicitor General 120 Broadway
ied WE Miia New York, NY 10271

: 212) 416-8016

Senior Counsel (212) 3
RosBert M. GOLDFARB pte ees Curiae
Martin A. Hotvet

Assistant Solicitors General * Counsel of Record

(Additional Counsel Listed on Signature Page)

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TABLE OF CONTENTS

Page
TABLE OF CITED AUTHORITIES ............ ii
STATEMENT OF INTEREST OF
PRE SIE 85 66S ORCS sae iwede: ]
SUMMARY OF ARGUMENT ................. 3
ARGUMENT
I. The Plain Language of 42 U.S.C. § 1997e(a)
Requires Total Exhaustion of Administrative
Remedies Before An “Action” May Be
| REE RES Pe ost tre | pe Pee - 4
II. A Total Exhaustion Rule Furthers The
Policies Underlying The PLRA And
SD <5 ins CNRS ER a BOK hbk CAE R ll

ce Be ND het re en ere ar a Pee 16 .

TABLE OF CITED AUTHORITIES

_ CASES

Artuz v. Bennett,

Se SP POD cece os beK CAS Kens

Booth v. Churner,

ee ee} eee oe ee ee ee

City of Rancho Palos Verdes v. Abrams,

POS Us BES GI) 5 + Secnnindho nts eis ciseie

Cooter & Gell v. Hartmax Corp.,

ke Re Te. er Se eee Pree

Duncan v. Walker,

S99 108. 107 COONS «oe

Hallstrom v. Tillamook County,

GIS UB. BD IGG) oo vc cnsccceccsccces

Lira v. Herrara,

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

McNeil v. United States,

SOB U.S. IDO CIGGS) oi ve ccvwiccssscacass

Neitzke v. Williams,

490 U.S. S19 (IGG) on icc cc ccc cscceces

Page —

12

13

14

11

a

iii

Cited Authorities

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

543 U.S. 1187 (2005) .......-- 22 e eee,

Porter v. Nussle,

534 US. S16 C002). os oo iv ccc aeccceess

Preiser v. Rodriguez,

411 U.S. 475 (1973) 2. ec ccccpecccccons

Rhines v. Weber,

544 U.S. 269 (2005) ...... 2c eee ee eee ees

Rose v. Lundy,

455 U.S. 509 (1982) ......... cee ee eee

United States v. Wells,

Pa hs A CLT) vine 6.55650 Vining b's 8.8.4

Woodford v. Ngo,

126 S. Ce. 2378 (2006)... cece ecscenese

iv

Cited Authorities
Page
FEDERAL STATUTES
28 U.S.C.
Bh > 0) IPERS rae Aare eR AR eee Pes 13
MET tkne's bon. 40.6:0ek Cre udaed aden Te 10
DSR BMAD 66 bdo vids welds Sbeedeeabeeha 10
42 U.S.C.
RSE w > >) 44.0i sheen wean oe Lecce aaet 3
DS PPO: sb hb ORs ee REM eed + 0d CORR Roda bs passim
SS Sa bieee sb ticdaaw bbe koa Coswakeet 4,6
§ 1997e(c)(1) ............26..- Pe AIGA A TO 6,8
OT MILED §..s'a bh ob 6.5 6 Mold S bc bb wee eee De 6,7,8
BRS ee SAN ee 9
Civil Rights of Institutionalized Persons Act,
27: PR BUR SSRs ghia Fens bi wees ow hed ad 10
FEDERAL RULES AND REGULATIONS
Fed. R. Civ. P
DS Shwe eRe hE Laa Mee has Vekdeue ies 4
SD icin bard VKEAS S bad heb 4S CU hOLS Sa be se 4
STATE STATUTES
N.Y. C.P.L.R.
ED Scie an Cuno nate wenwes Lick cae oe 13

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

l
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 eartier 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
2000 through 2005, prisoner civil rights and prison conditions
_ 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

2

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
attomeys. 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 all 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

4

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 “(njo 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”);

5

see also Artuz v. Bennett, 531 U.S. 4, 9-10 (2000) (relying 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 “[aJs a general mule, 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
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).

6

(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) meen 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
lacking “an arguable basis either in law or im 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

+

7

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.

8

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
§ 1997e(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 § 1997e(a) 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 ali 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

9

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 substituted
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 “[l]imitation on recovery” that does not implicate the
same underlying policy concerns as the total exhaustion requirement
of § 1997e(a) (see Point II, infra).

10

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.

>

11

II. 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.” Jd. at 524-25.

A total exhaustion rule serves all of these goals. It
promotes 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 the prison grievance process and accordingly
provides prisons with 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

12

(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 mule 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 “[wjhen
a grievance is filed shortly after the event giving rise to the

13

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 2388
(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). :

14

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
system’’). 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

15

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, “[tJhe 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, at 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. GOLDFARB
Maatin A. Horvet
Assistant Solicitors General

Respectfully submitted,

Exior Sprrzer

Attorney General of the
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

Bit Lockyer

Attorney General

State of California

1300 I Street

P.O. Box 944255
Sacramento, CA 94244-2550

JouHn W. SUTHERS
Attorney General
State of Colorado
1525 Sherman Street
Fifth Floor

Denver, CO 80203

17

Cari. C. DANBERG
Attorney General
State of Delaware
820 N. French Street

Wilmington, DE 19801

Rosertr J. SPAGNOLETTI
Attorney General
District of Columbia
One Judiciary Square
441 4th Street, N.W.
Washington, D.C. 20001

Cuarces J. Crist, Jr.
Attorney General

State of Florida

The Capitol PL-0O1
Tallahassee, FL 32399-1050

Mark J. BENNETT
Attorney General
State of Hawaii

425 Queen Street
Honolulu, HI 96813

LawrENCce G WASDEN
Attorney General
State of Idaho

P.O. Box 83720
Boise, ID 83720-0010

18
Lisa MADIGAN Georce J. CHANOS

Attorney General Attorney General
State of Illinois State of Nevada
100 West Randolph Street 100 North Carson Street
12th Floor Carson City, NV 89701
Chicago, IL 60601

WAYNE STENEHJEM
J. JosepH Curran, Jr. Attorney General
Attorney General State of North Dakota
State of Maryland 600 E. Boulevard Avenue
200 Saint Paul Place Bismarck, ND 58505
Baltimore, MD 21202

Jim PETRO
JEREMIAH W. (Jay) Nixon Attorney General
Atiorney General State of Ohio
State of Missouri 30 E. Broad Street
Supreme Court Building 17th Floor
207 West High Street Columbus, OH 43215

Jefferson City, MO 65101
W.A. Drew EDMONDSON

Mike McGratu Attorney General

Attorney General State of Oklahoma

State of Montana 2300 N. Lincoln Boulevard
P.O. Box 201401 Suite 112

Helena, MT 59620 Oklahoma City, OK 73105
JON BRUNING Harpy Myers

Attorney General Attorney General

State of Nebraska State of Oregon

P.O. Box 98920 1162 Court Street, N.E.

Lincoln, NE 68509 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 Comple>.
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

Darre_t V. McGraw, Jr.
Attorney General

State of West Virginia
State Capitol, Room 26-E
Charleston, WV 25305

20

Pgeccy 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0270%3A20. Public record. Not legal advice.