Amicus Curiae Brief — Booth v. Churner

JAM | f 2 60/ -

99-1964

No.

— *

Jn the Supreme Court of the Guited States

TIMOTHY BOOTH, PETITIONER

C.O. CHURNER, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

_ SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorne y General

BARBARA D. UNDERWOOD

Deputy Solicitor General

IRVING L. GORNSTEIN

Assiste? to the Solicitor

General

BARBARA L. HERWIG

PETER R. MAIER

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 51 ,-22] ‘4

QUESTION PRESENTED

Whether the exhaustion provision of the Prison Liti-

gation Reform Act of 1995, 42 U.S.C. 1997e(a) (Supp. IV

1998), requires an inmate seeking money damages to

exhaust prison administrative remedies that address

the problem identified by the inmate, but do not permit

the recovery of money damages.

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument ....

Argument:

Section 1997e(a) requires an inmate to exhaust

available administrative remedies, without regard

to whether the administrative process permits the

recovery of the relief that the inmate seeks in the

RIE SES POY ION ENT RO

A. The text of the Act requires exhaustion of

administrative remedies without regard to

whether the administrative process offers the

form of relief sought by the inmate

B. The PLRA’s special exhaustion requirement

advances Congress’s intent to deter the filing

EOIN ID cecssceittiestieninsinssnnenivesesansensosase

C. The PLRA’s special exhaustion requirement

is also supported by other considerations

that have particular force in the prison

SONI seta sdscsisnssehnctismnniblensodicicisisnmssianictebnasbnnssecssseaasibessons's

D. Petitioner’s remaining contentions are

INITIO ichctiilaindbaininccdetasntipntnsninspesitbanstensinnsionasniiinees

I

TABLE OF AUTHORITIES

Cases:

Alexander v. Hawk, 159 F.3d 1321 (11th Cir.

IEE iti iscedaiiiesehttbabitcinaishntnnpieenitihtonennstnsnpiesanehininhesennessonchininine

Bell v. Wolfish, 441 U.S. 520 (1979) .....ccssccsssssssscessssscessseees

Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164 (1994) v..ccccccccscssessees

(IIT)

ao nw =

10

11

18

27

16

21

26

IV

Cases—Continued: Page

Coit Independence Joint Venture v. FSLIC,

489 U.S. 561 (1989) 16

McCarthy v. Madigan, 503 U.S. 140 (1992) .........sese00 7, 13,

14, 15, 17

Nyhus v. Reno, 204 F.3d 65 (3d Cir. 2000) .........essesecseees 5, 6,

12, 20, 25

Perez v. Wisconsin Dep’t of Corrections, 182 F.3d

532 (7th Cir. 1999) ........... 20

Procunier v. Martinez, 416 U.S. 396 (1974) .......ccccesseeees 21

Reiter v. Cooper, 507 U.S. 258 (1993) 16

Sale v. Haitian Ctrs. Council, Inc., 509 U.S.

155 (1998) ...... 14

Solid Waste Agency of N. Cook County v. Army

Corps of Engineers, No. 99-1178 (Jan. 9, 2001) ..........0000 26

Steele v. Louisville & Nashville R.R., 323 U.S. 192

(1944) .... inniociadanthsiimmnpiphiauininiiisaiitin 16, 24

Weinberger v. Salfi, 422 U.S. 749 (1975) ca 17

Statutes and regulations:

Civil Rights of Institutionalized Persons Act,

4B UBS. TOTO vivciniennerricrssnins shades anacntedick 17

42 U.S.C. 199Te(a) (1994) ......csecssssssssrersesssees 7, 8, 13, 14, 15

Prison Litigation Reform Act of 1995:

28 U.S.C. 1915(g) (Supp. TV 1998) ..........cscscssssessssssesees 8, 20

28 U.S.C. 1997e(a) (Supp. TV 1998) ...........sscscseseeeees passim

OE ri CE cvscnisesieesiaieseeaheeinsiin tisteianinadindapivitaadaaiiidiaiies 13

ites SERIO 06 BOD, cccaneversnriviscnnmventichenaancnnvbisevenaehentins 1

Miscellaneous:

BOP Program Statement 1330.13(6)(b)(1) (Dec. 22,

RODOD snensintinessinnmnnineinsiiinn stessinspinesenanieneeinaviminiiatiiaeenn 13

141 Cong. Rec. (1995):

OE BaP ER aR Et Oe PLOT DE PS BPE 17

ti BIOIETcccss Skespessiebaguacgpacoialiealveasdianeeaasmnamaae 17

Miscellaneous—Continued: Page

yp. 16576... 17

p. 27,042. 18

i, TIA II iaiiccsesnicciinesvniniicntesisien ai sdiscabboauiel 18

PP. 35,623-35,624 ...........ccceseeees sa 26

p. 35,624 .... 19

65 Fed. Reg. 39,768 (2000) ........0s000 ES 13

H.R. 2468, 104th Cong., Ist Sess. (1995) ........ssecssesssereseees 26

H.R. Conf. Rep. No. 378, 104th Cong., Ist Sess.

CRIED inisiciniistinsncsnrrinincehitinssidltgensnbeindcignigitapaniine : 17

H.R. Rep. No. 21, 104th Cong., Ist Sess. (1995) ........ssese0 17,19

Webster’s Third New Int'l Dictionary (1998) ........sscesesees ll

Jn the Supreme Court of the Gnited States —

No. 99-1964

TIMOTHY BOOTH, PETITIONER

Vv.

C.0. CHURNER, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case presents the question whether the exhaus-

tion provision of the Prison Litigation Reform Act of

1995 (PLRA), 42 U.S.C. 1997e(a) (Supp. IV 1998), re-

quires an inmate seeking money damages to exhaust

prison administrative remedies that address the pro-

blem identified by the inmate, but do not permit the

recovery of money damages. The United States has a

substantial interest in the resolution of that question.

Pursuant to its authority to manage federal prisons, the

Federal Bureau of Prisons (BOP) has adopted an

administrative remedy program through which inmates

may seek review of issues relating to their confinement.

See 28 C.F.R. 542.10 et seg. That remedy program does

(1)

2

not permit the recovery of money damages. Inmates

also frequently name BOP officials as defendants in

actions arising from conditions of confinement in federal

correctional institutions. The court’s decision in this

case will affect both the efficacy of BOP’s administra-

tive remedy program and the conduct of litigation

against BOP officials.

STATEMENT

1. a. At the time of the events in question, petitioner

was confined at the State Correctional Institution at

Smithfield Bradford Pennsyivania (SCI Smithfield) in

Huntington, Pennsylvania. In April 1997, petitioner

filed suit in federal district court against four prison

officials (respondents), complaining about his treatment

at SCI Smithfield. In his original pleading, petitioner

focused on four incidents that allegedly occurred at SCI

Smithfield. J.A. 15-16.

First, petitioner alleged that, in April 1996, he was

assaulted by two prison guards, causing his shoulder to

slip in and out, and that he was subsequently denied an

__operation to repair his shoulder. J.A. 15. Second, pet-

itioner alleged that, on February 6, 1997, he threw

water on a prison guarc, .ad the guard retaliated by

throwing a cup of cleaning material in his face. Jbid.

Third, petitioner alleged that, on February 7, 1997, he

exchanged words with respondent Rikus, who then

shoved him into a shelf in the storage room. Another

officer allegedly pushed petitioner into the door, and

still another officer tightened and twisted his handcuffs.

J.A. 15-16. Fourth, petitioner alleged that, on March

23, 1997, respondent Churner punched him in the face

while respondent Workensher and another officer

looked on. J.A. 16. A» 1 result, petitioner’s mouth was

3

allegedly “busted open” and required three stitches.

Ibid.

In subsequent pleadings, petitioner added additional

claims. He alleged that prison officials interfered with

his ingoing and outgoing mail, J.A. 19, prevented him

from using the library or obtaining access to legal

assistance, J.A. 19, 22, denied him food, J.A. 22, denied

him due process in a misconduct hearing, J.A. 23, and

put a sign on his door stating that he was a “cry baby.”

Ibid. -

In his original pleading, petitioner requested that the

court transfer him to another prison and punish each of

the officers involved in the alleged assaults. J.A. 9, 16.

In a subsequent pleading, petitioner sought an injunc-

tion against further beatings, an order to obtain an

operation, the appointment of counsel, money damages

in various amounts, a permanent transfer, an order to

permit inmates in segregation to use the law library, an

order holding prison officials in contempt, and an order

to hire a paralegal. J.A. 26-27.

b. The Pennsylvania Department of Corrections has

a grievance system “through which resolution of spe-

cific problems can be sought.” J.A. 40. Under that sys-

tem, an inmate may submit a formal written complaint

related to a problem encountered during the course of

confinement. J.A. 41. The complaint must be sub-

mitted for initial review within fifteen days of the

events giving rise to the complaint. J.A. 46. The com-

plaint is then referred to a Grievance Officer for

investigation and resolution. J.A. 47. An inmate who

has requested a personal interview “shall be inter-

viewed.” Ibid. Within ten working days after the

Grievance Officer receives the complaint, “the grievant

shall be provided a written response to the grievance to

include a brief rationale, summarizing the conclusions

4

and any action taken or recommended to resolve the

issues raised in the grievance.” Jbid.

An inmate may appeal the initial determination to an

intermediate reviewing authority. J.A. 47. Such an

appeal must be filed within five days from the date on

which the inmate receives the initial decision. J.A. 47-

48. Within ten working days after receiving the appeal,

the intermediate reviewing authority must notify the

inmate of his or her decision and supply a brief

explanation of the basis for it. J.A. 48.

Within seven days after receiving a decision from the

reviewing authority, an inmate may file a final appeal.

J.A. 48-49. The final reviewing authority may require

additional investigation before deciding that appeal.

J.A. 49. The final reviewing authority has 21 days to

issue its decision, and the decision must include a brief

statement of reasons. J.A. 49-50. At the time that peti-

tioner filed his complaint, the State’s grievance pro-

gram addressed complaints about the use of excessive

force, but it did not permit the recovery of money

damages. The State has since amended its grievance

policy to permit the recovery of money damages. J.A.

60.

ec. The PLRA contains a provision that requires an

inmate to exhaust available administrative remedies

before filing suit. That provision specifies that “[n]o

action shall be brought with respect to prison conditions

under section 1983 of this title, 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)

(Supp. IV 1998).

Before filing svit in district court, petitioner had filed

an initial administrative grievance relating to at least

some of the issues raised in his district court pleadings.

5

J.A. 10-13. Petitioner did not seek intermediate or final

review, however, on any issue contained in his district

court pleadings. Pet. App. 6a n.2. The district court,

acting sua sponte, dismissed petitioner’s action without

prejudice, on the ground that petitioner had failed to

exhaust administrative remedies as required by Section

1997e(a). Id. at 36a-39a.

2. The court of appeals affirmed. Pet. App. la-28a.

The court rejected petitioner’s argument that exhaus-

tion of administrative remedies was not required be-

cause the prison’s administrative process did not permit

the recovery of money damages. /d. at 38a. The court of

appeals relied on its holding in Nyhuis v. Reno, 204

F.3d 65, 67 (8d Cir. 2000), that the PLRA makes the

exhaustion of administrative remedies mandatory

“whether or not they provide the inmate-plaintiff with

the relief he says he desires in his federal action.” Pet.

App. 3a.

In Nyhuis, the court based its interpretation on the

change in the statutory language of Section 1997e(a)

effected by the PLRA. 204 F.3d at 72. As explained in

Nyhuis, before enactment of the PLRA, a plaintiff

could be required to exhaust such “plain, speedy, and

effective remedies as are available.” Id. at 70. The

PLRA removed the qualifiers “plain, speedy, and effec-

tive.” Jd. at 72. The effect of that change, the Nyhuis

court concluded, is that an inmate must now exhaust

available prison remedies, without regard to whether

they are “effective.” Ibid.

The court in Nyhuis rejected the view that the term

“available” in the new provision creates a futility

exception to exhaustion. 204 F.3d at 72-73. The court

explained that such an interpretation would reintro-

duce the very inquiry into the effectiveness of admin-

istrative remedies that Congress had deliberately elimi-

nated. /bid. By using the term “available,” the court of

appeals concluded, “Congress merely meant to convey

that if a prison provided no internal remedies, exhaus-

tion would not be required.” Jd. at 73.

The court in Nyhuis also emphasized that a principal

purpose of the new exhaustion requirement was to

reduce the volume of frivolous prison litigation in fed-

eral courts. 204 F.3d at 73-74. That purpose would be

thwarted, the court explained, if inmates could avoid

the exhaustion requirement simply by asking for money

damages. Jd. at 74. The court also stressed that a

broad exhaustion requirement would give a prison

institution a chance to correct its own errors, reduce

the need for judicial intervention, and improve the

efficacy of the administrative process. Jd. at 75.

The court of appeals in this case noted that Nyhuis

involved a claim brought by a federal inmate, rather

than a claim brought by a state inmate like petitioner.

Pet. App. 3a. Since the PLRA treats a Bivens action

and an action under Section 1983 as “functional

equivalents,” however, the court viewed the decision in

Nyhuis as “controlling in this case.” Ibid.’

SUMMARY OF ARGUMENT

A. The PLRA conditions its exhaustion requirement

on the existence of administrative “remedies” that are

“available.” 42 U.S.C. 1997e(a) (Supp. IV 1998). Under

the ordinary meaning of those terms, Section 1997e(a)

requires an inmate to exhaust administrative remedies

as long as the administrative process will address the

kind of problem identified by the inmate’s complaint.

1 The court of appeals also held that a suit alleging that a prison

guard has used excessive force is an “action . . . with respect to

prison conditions” within the meaning of Section 1997a(e). Pet.

App. 8a-19a. That holding is not at issue here.

7

Exhaustion is not excused simply because the admin-

istrative process does not permit an inmate to recover

the relief that the inmate would like.

Thus, if a prison administrative process does not

review complaints about excessive force, “administra-

tive remedies” would not be “available” for that kind of

complaint. If the grievance procedure addresses com-

plaints about excessive force, however, the absence of a

damages remedy would not show that administrative

remedies for that kind of complaint are unavailable. A

prison grievance procedure can offer other “remedies”

for complaints about excessive force, such as disciplin-

ing the officer involved, retraining the officer, transfer-

ring the inmate involved to a different area of the

prison, or issuing a decision that the inmate’s complaint

is meritorious and the guard’s conduct should not be

repeated. In such circumstances, the institution would

have “administrative remedies” that are “available” to

inmates who wish to complain about a guard’s use of

excessive force, and the inmate would be required to

exhaust the prison’s grievance process before filing a

suit challenging a guard’s use of excessive force.

The PLRA’s broad and categorical exhaustion re-

quirement reflects a deliberate change from the ex-

haustion requirement in prior legislation. Before Sec-

tion 1997e(a) was amended by the PLRA, a court had

discretion to require a state inmate to exhaust “such

plain, speedy, and effective administrative remedies as

are available.” 42 U.S.C. 1997e(a) (1994). In McCarthy

v. Madigan, 503 U.S. 140, 150 (1992), this Court con-

strued the term “effective” in Section 1997e(a) to

excuse exhaustion when an inmate seeks only money

damages and the prison’s grievance procedure does not

offer such relief. In that legal context, Congress’s

elimination of the term “effective” from Section

1997e(a) can have only one meaning: Congress was

dissatisfied with the outcome in McCarthy, and it

wished to require exhaustion of available administra-

tive remedies, even when an inmate seeks only mone-

tary relief and the administrative process does not offer

such relief.

In addition to eliminating the term “effective” from

Section 1997e(a), Congress also (1) eliminated the terms

plain and speedy, (2) eliminated the requirement that

administrative procedures must satisfy certain mini-

mum acceptable standards of fairness and effectiveness

before inmates can be required to exhaust them, and (3)

eliminated a court’s discretion to excuse exhaustion

when it would not be appropriate and in the interests of

justice. Those dramatic changes in Section 1997e(a)

reflect one overriding theme: Congress no longer

wanted its statutory exhaustion requirement to track

the traditional exhaustion doctrine under which courts

have discretion to excuse exhaustion when they con-

clude that an administrative remedy is inadequate. In

its place, Congress substituted a broad mandatory

exhaustion requirement.

B. In imposing a strict exhaustion requirement, Con-

gress was animated in large part by a desire to arrest

the alarming upward trend in the volume of frivolous

prison litigation. Inmates who diligently pursue their

claims through a prison’s entire administrative process

are far less likely to pursue a frivolous claim in court

than inmates who deliberately bypass the administra-

tive process or neglect to observe the applicable admin-

istrative deadlines for filing complaints and pursuing

administrative appeals. The exhaustion provision also

works in tandem with the “three strikes” provision of

the PLRA, 28 U.S.C. 1915(g) (Supp. IV 1998), which

precludes inmates from bringing suits in forma

pauperis after they have had three or more cases

dismissed as frivolous, malicious, or for failure to state a

claim. After an administrative claim has been rejected

as insubstantial, an inmate may well refrain from filing

suit in court on that claim when the consequence may

be a loss of in forma pauperis status for other, more

meritorious, complaints.

Because Congress viewed an exhaustion requirement

as an important means of reducing the volume of

frivolous prison litigation, it understandably wanted to

eliminate the exception to exhaustion that this Court

had recognized in McCarthy. If Congress had carried

that exception forward, inmates would have been able

to evade the exhaustion requirement through the

simple expedient of limiting their complaints to re-

quests for money damages, and Congress’s purpose of

deterring frivolous lawsuits would have been under-

mined.

C. Other considerations that have particular force in

the prison setting also help to explain why Congress

imposed a broad mandatory exhaustion requirement on

inmates. Such a requirement gives prison authorities

an opportunity to investigate and evaluate prisoner

complaints in the first instance. It helps to ensure that

inmates bring dangerous conditions or abusive prac-

tices to the attention of responsible prison officials

quickly, so that prison officials can take corrective

action before the problem becomes even more serious.

The airing of a grievance in a less adversarial setting

can help to reduce tensions that might otherwise exist.

In some cases, an inmate’s complaint can be resolved in

the grievance process even when the inmate seeks only

money damages. And even when a complaint is not

resolved, exhaustion can lead to a fuller understanding

of the nature of the inmate’s complaint.

10

ARGUMENT

SECTION 1997e(a) REQUIRES AN INMATE TO

EXHAUST AVAILABLE ADMINISTRATIVE REME-

DIES, WITHOUT REGARD TO WHETHER THE

ADMINISTRATIVE PROCESS PERMITS THE

RECOVERY OF THE RELIEF THAT THE INMATE

SEEKS IN THE JUDICIAL ACTION

Petitioner contends (Br. 12-13) that the PLRA’s ex-

haustion provision, 42 U.S.C. 1997e(a) (Supp. IV 1998),

does not require an inmate to exhaust administrative

remedies when the inmate seeks only monetary relief

and the grievance procedure does not offer such relief.

In addition to seeking monetary relief, however, peti-

tioner sought various other forms of relief in the dis-

trict court, J.A. 9, 16, and the administrative grievance

procedure could have provided at least some of those

forms of relief. The question presented by petitioner’s

complaint is therefore whether exhaustion is required

when an inmate seeks monetary and other relief and

the administrative grievance process does not provide

all the relief that the inmate seeks.”

For purposes of the analysis we present here, how-

ever, it does not matter whether an inmate seeks only

money damages or money damages and other forms of

relief. As the court of appeals concluded, the PLRA’s

2 Petitioner contends (Br. 12) that his claims for relief other

than money damages became moot when he was transferred to

another institution. The transfer did not moot all petitioner’s re-

quests for relief. J.A. 26-27 (seeking, inter alia, an order to obtain

an operation). In any event, the text of the PLRA’s exhaustion

provision specifies that “no action shall be brought” unless admin-

istrative remedies have been exhausted. 42 U.S.C. 1997e(a) (Supp.

IV 1998). The requirement of exhaustion therefore depends on the

circumstances that exist at the time that an inmate files a com-

plaint, not on what transpires thereafter.

11

exhaustion provision requires an inmate to exhaust

administrative remedies as long as the administrative

process will address the kind of problem identified by

the inmate’s complaint. Exhaustion is not excused

simply because the administrative process does not

permit an inmate to recover the relief that the inmate

would like. Thus, when an administrative process will

address the kind of problem identified by the inmate’s

complaint, exhaustion is required even when the inmate

seeks only money damages and the prison grievance

procedure does not offer such relief. Under that same

analysis, an inmate seeking money and other relief

would also have to exhaust available administrative

remedies.

A. The Text Of The Act Requires Exhaustion Of Admin-

istrative Remedies Without Regard To Whether The

Administrative Process Offers The Form Of Relief

Sought By The Inmate

1. The text of the PLRA exhaustion provision sup-

ports the court of appeals’ interpretation. That stat-

utory text conditions the requirement of exhaustion on

the existence of administrative “remedies” that are

“available.” 42 U.S.C. 1997e(a) (Supp. IV 1998). The

term “remedy” means “the legal means to recover a

right or to prevent or obtain redress for a wrong,” Web-

ster’s Third New International Dictionary 1920 (1993),

and “available” means “capable of use for the accom-

plishment of a purpose,” id. at 150.

Under those definitions, “administrative remedies”

are “available” when the prison grievance procedure

provides a “means” to “obtain redress” for the kind of

“wrong” identified by the inmate, and the administra-

tive procedure is “capable of use” by the inmate “for the

accomplishment of [that] purpose.” As the court of

12

appeals explained in Nyhuis, “the administrative pro-

cess * * * must be capable of addressing the events

that could generate a lawsuit.” 204 F.3d at 75 n.9. Con-

trary to petitioner’s contention (Br. 15-16), however,

those definitions do not suggest that administrative

remedies are unavailable simply because the admin-

istrative process does not offer to redress the kind of

wrong identified by the inmate in the manner that the

wnmate desires.

An example helps to illuminate the distinction. Ifa

prison administrative process does not review com-

plaints about excessive force, “administrative reme-

dies” would not be “available” for that kind of complaint

since the grievance process would not be “capable of

use” by an inmate to “obtain redress” for the “wrong”

of excessive force. If the grievance procedure ad-

dresses complaints about excessive force, however, the

absence of a damages remedy would not show that

administrative remedies for that wrong are unavailable.

A prison grievance procedure can offer other forms of

“redress” for the “wrong” of excessive force, such as

disciplining the officer involved, retraining the officer,

transferring the inmate involved to a different area of

the prison, or issuing a decision that the inmate’s

complaint is meritorious and the guard’s conduct should

not be repeated. In such circumstances, the institution

would have “administrative remedies” that are “avail-

able” to inmates who wish to complain about a guard’s

use of excessive force, and the inmate would be

required to exhaust the prison’s grievance process

before filing a suit challenging a guard’s use of exces-

sive force.”

3 Under the regulations that currently govern the Bureau of

Prison’s Administrative Remedy Program, institutions have dis-

13

2. The PLRA’s broad and categorical exhaustion

requirement reflects a deliberate change from the

exhaustion requirement that had been imposed on

inmates by prior legislation. Before Section 1997e(a)

was amended by the PLRA, a court had discretion to

require a state inmate to exhaust “such plain, speedy,

and effective administrative remedies as are available.”

42 U.S.C. 1997e(a) (1994). In McCarthy v. Madigan,

503 U.S. 140 (1992), this Court construed that statutory

language in the context of a case in which a federal

inmate sought only money damages against federal

prison officials, and the Bureau of Prison’s administra-

tive procedure did not offer that form of relief.

Although Section 1997e(a) did not then apply to suits

brought against federal officials, the government ar-

gued that the Court should create an analogous

exhaustion requirement for Bivens actions. Id. at 149-

150. The Court concluded that Section 1997e(a) “cut

against” the government’s argument that exhaustion

should be required when an inmate seeks only mone-

tary relief and the grievance procedure does not offer

that form of relief. Jd. at 150. In reaching that

cretion not to consider a prison grievance when “it is clear that the

only possible relief is monetary.” BOP Program Statement

1330.13(6)(b)(1) (Dec. 22, 1995). Under those regulations, Section

1997e(a) requires exhaustion of money-only claims because prison

officials may process a complaint seeking money damages based on

the possibility that other relief could be awarded. In those circum-

stances, the BOP has “remedies available” for inmates who seek

only money damages. If BOP returns a grievance seeking money

damages without processing it on the ground that no other relief is

possible, the inmate would have exhausted administrative rem-

edies. BOP has recently proposed new regulations that would

require officials to consider the substance of an inmate’s grievance

without regard to the specific form of relief sought by the inmate.

See 65 Fed. Reg. 39,768 (2000) (to be codified at 28 C.F.R. Pt. 542).

\4

conclusion, the Court relied on the language in Section

1997e(a) that made an “effective” administrative

remedy a precondition to exhaustion. /bid. The Court

specifically explained that, “in contrast to the absence

of any provision for the award of money damages under

the Bureau’s general grievance procedure, the statute

conditions exhaustion on the existence of ‘effective

administrative remedies.’” Jbid. Three Justices con-

curring in the judgment agreed with the Court that “in

cases * * * where prisoners seek monetary relief, the

Bureau’s administrative remedy furnishes no effective

remedy.” Jd. at 156 (Rehnquist, C.J., joined by Scalia,

J. and Thomas, J., concurring in the judgment) (empha-

sis added).

Thus, at the time that Congress enacted the PLRA,

it understood that, under McCarthy, the term “effec-

tive” in Section 1997e(a) excused a failure to exhaust

administrative remedies when an inmate sought only

monetary relief and the administrative process did not

offer such relief. In that legal context, Congress’s

elimination of the term “effective” from Section

1997e(a) can have only one mezening: Congress was

dissatisfied with the outcome in McCarthy, and it

wished to require exhaustion of available administra-

tive remedies, even when an inmate seeks only mone-

tary relief and the administrative process does not offer

such relief. See Sale v. Haitian Ctrs. Council, Inc., 509

U.S. 155, 174-176 (1993).

Petitioner contends (Br. 37-38) that Congress’s elimi-

nation of the term “effective” from Section 1997e(a)

affected only “the procedural aspects of the administra-

tive remedy, whereas, in contrast, Congress intended

the words ‘such administrative remedies as are

available’—the words it preserved—to refer to the sub-

stantive aspect of whether the remedy could provide

15

the relief sought.” But, as discussed above, McCarthy

identified the term “effective” as the basis for declining

to require exhaustion when the administrative remedy

does not provide the relief sought, and Congress elimi-

nated that term based on that understanding. Peti-

tioner’s explanation for the removal of the term

“effective” simply ignores the decision in McCarthy and

Congress’s response to it.

3. The other changes in Section 1997e(a) reinforce

the conclusion that Congress amended Section 1997e(a)

for the express purpose of eliminating the exception to

exhaustion proposed by petitioner. In addition to

eliminating the term “effective” from Section 1997e(a),

Congress also (1) eliminated the terms “plain” and

“speedy,” (2) eliminated the requirement that admini-

strative procedures must satisfy certain “minimum

acceptable standards” of fairness and effectiveness

before inmates can be required to exhaust them, and (3)

eliminated a court’s discretion to excuse exhaustion

when it would not be “appropriate and in the interests

of justice.” Compare 42 U.S.C. 1997e(a) (Supp. IV 1998)

with 42 U.S.C. 1997e(a) (1994). In place of the previous

version of Section 1997e(a), Congress substituted a

broad and firm mandate that “{nJo action shall be

brought with respect to prison conditions” by an inmate

“until such administrative remedies as are available are

exhausted.” 42 U.S.C. 1997e(a) (Supp. IV 1998).

The dramatic changes in Section 1997e(a) effected by

the PLRA reflect one overriding theme: Congress no

longer wanted its statutory exhaustion requirement to

track the traditional exhaustion doctrine under which

courts have discretion to excuse exhaustion when they

conclude that an administrative remedy is inadequate.

McCarthy, 503 U.S. at 146-149 (discussing the scope of

that traditional doctrine). Under the traditional ex-

16

haustion doctrine, in the absence of a statutory direc-

tion to the contrary, courts exercise discretion to ex-

cuse exhaustion in a variety of circumstances, including

when the administrative process does not establish an

adequate time-frame for administrative action, Coit

Independence Joint Venture v. FSLIC, 489 U.S. 561,

587 (1989), when the agency does not have the

authority to grant the relief that is requested, Reiter v.

Cooper, 507 U.S. 258, 269 (1993), and when an agency’s

prior pronouncements demonstrate that exhaustion

would be futile, Steele v. Louisville & Nashville R.R.,

323 U.S. 192, 205-206 (1944). When Congress excised

the terms “plain, speedy, and effective,” eliminated the

requirement that the administrative process satisfy

“minimum acceptable standards” of fairness and effec-

tiveness before an inmate can be required to exhaust,

and eliminated a court’s discretion to dispense with

exhaustion when “appropriate and in the interests of

justice,” it decisively rejected the traditional approach.

As the Eleventh Circuit explained in Alexander v.

Hawk, 159 F.3d 1321, 1825 (1998), “the judicially recog-

nized futility and inadequacy exceptions do not survive

the new mandatory exhaustion requirement of the

PLRA.” Instead, “Congress now has mandated ex-

haustion in section 1997e(a),” and “courts cannot simply

waive those requirements where they determine they

are futile or inadequate.” Jd. at 1325-1326.

Petitioner nonetheless contends (Br. 23-27) that

traditional exhaustion principles should be engrafted

onto Section 1997e(a) based on a “presumption” that

Congress intends to carry forward “traditional legal

concepts.” Because Congress’s amendments to Section

1997e(a) so clearly demonstrate that Congress did not

wish to incorporate traditional exhaustion principles,

however, petitioner’s reliance on such a presumption is

17

misplaced. Instead, the principle that is controlling here

is that “[w]here Congress specifically mandates, ex-

haustion is required.” McCarthy, 503 U.S. at 144. As

the Court explained in Weinberger v. Salfi, 422 U.S.

749, 766 (1975), when exhaustion is statutorily man-

dated as a precondition to suit, “[t]he requirement

* * * may not be dispensed with merely by a judicial

conclusion of futility.”

4. In sum, as the text of the Act makes clear, an

inmate must exhaust available administrative remedies

even when a grievance procedure does not provide the

remedy that the inmate seeks. As long as the grievance

process addresses the kind of problem identified by the

inmate, exhaustion is mandatory.‘

4 All of the legislative history, including the one statement

identified by petitioner, is consistent with that interpretation.

H.R. Conf. Rep. No. 378, 104th Cong., Ist. Sess. 166 (1995) (“Sec-

tion 803 amends the Civil Rights of Institutionalized Persons Act

(42 U.S.C. 1997a(c)) to require that administrative remedies be ex-

hausted prior to any prison conditions action being brought under

any federal law by an inmate in federal c urt.”); H.R. Rep. No. 21,

104th Cong., 1st Sess. 7 (1995) (The exhaustion provision “requires

that all administrative remedies be exhausted prior to a prisoner

initiating a civil rights action in court.”); 141 Cong. Rec. 4275 (1995)

(Rep. Canady) (“Title II of the bill will * * * forc{e] prisoners to

exhaust all administrative remedies before bringing suit in Federal

court.”); id. at 14,571 (Sen. Dole) (“The act also requires State

prisoners to exhaust all administrative remedies before filing a

lawsuit in Federal court.”); id. at 14,573 (Sen. Kyl) (“Section 7 will

make the exhaustion of administrative remedies mandatory. Many

prisoner cases seek relief for matters that are relatively minor and

for which the prison grievance system would provide an adequate

remedy.”).

18

B. The PLRA’s Special Exhaustion Requirement Advances

Congress's Intent To Deter The Filing Of Frivolous

Complaints

In imposing a strict exhaustion requirement, Con-

gress was animated in large part by a desire to arrest

_ the alarming upward trend in the volume of frivolous

prison litigation. Congress was deeply concerned that

inmates were overwhelming the courts with frivolous

complaints. As one supporter of the PLRA explained,

Congress was faced with a “flood of frivolous lawsuits

brought by inmates. In 1994, over 39,000 lawsuits were

filed by inmates in Federal courts, a staggering 15 per-

cent over the number filed the previous year. The vast

majority of these suits are completely without merit.”

141 Cong. Rec. 27,042 (1995) (Sen. Hatch).

Congress believed that one important reason that

frivolous prisoner litigation was increasing was that

this Court in McCarthy had excused inmates from

exhausting administrative remedies when they sought

only money damages. As one member of Congress

explained:

The real problem with these cases came with the

Court’s decision in 1992 that an inmate need not

exhaust the administrative remedies available prior

to proceeding with a Bivens action for money

damages only. * * * Since 1993 there has been a

total of 1,365 new Bivens cases filed in Federal court

tying up the time of Federal judges and lawyers for

the Bureau of Prisons at a time when we already

have overcrowded dockets.

141 Cong. Rec. at 35,623 (Rep. LoBiondo). By “forcing

prisoners to exhaust all administrative remedies before

bringing suit in Federal court,” Congress sought to

“significantly curtail the ability of prisoners to bring

19

frivolous and malicious lawsuits.” Jd. at 35,624 (Rep.

Canady); ibid. (Rep. LoBiondo) (an exhaustion require-

ment “would aid in deterring frivolous claims”); see also

H.R. Rep. No. 21, supra, at 7 (“The title addresses the

problem of frivolous lawsuits in three significant ways.

First, it requires that all administrative remedies be

exhausted prior to a prisoner initiating a civil rights

action in court.”).

Congress’s judgment that exhaustion would reduce

the volume of frivolous prison litigation is supported by

the special features of prison grievance procedures.

Prison administrative procedures ordinarily require

inmates to file their grievances within a short time

after the incident giving rise to the complaint; inmates

also must observe strict deadlines for processing

appeals; and inmates who deliberately abuse a prison’s

grievance process may be subject to disciplinary action.

J.A. 44-48. In light of those features of prison grievance

procedures, inmates who diligently pursue their claims

through a prison’s entire administrative process are far

less likely to pursue a frivolous claim in court than

inmates who deliberately bypass the administrative

process or neglect to observe the applicable administra-

tive deadlines. See 141 Cong. Rec. at 35,624 (Rep.

LoBiondo) (An exhaustion requirement “would aid in

deterring frivolous claims: by raising the cost, in time/

money terms, of pursuing a Bivens action, only those

claims with a greater probability/magnitude of success

would, presumably, proceed.”).

A requirement of administrative exhaustion helps to

reduce the volume of frivolous litigation for a second

reason. When an inmate receives an administrative

response rejecting a claim and explaining the reasons

why, J.A. 47, the inmate may well be persuaded that

the claim lacks sufficient merit to pursue in court. In

20

that respect, the exhaustion provision works in tandem

with the “three strikes” provision of the PLRA, 28

U.S.C. 1915(g) (Supp. IV 1998), to deter the filing of

frivolous complaints. The “three strikes” provision pre-

cludes inmates from bringing suits in forma pauperis

after they have had three or more cases dismissed as

frivolous, malicious, or for failure to state a claim.

28 U.S.C. 1915(g) (Supp. IV 1998). After an administra-

tive claim has been rejected as insubstantial, an inmate

may well refrain from filing suit in court on that claim

when the consequence may be a loss of in forma

pauperis status for other, more meritorious, com-

plaints. ;

Because Congress viewed an exhaustion requirement

as an important means of reducing the volume of

frivolous prison litigation, it understandably wanted to

eliminate the exception to exhaustion that this Court

had recognized in McCarthy. As the Third Circuit

explained in Nyhuis, if Congress had carried that

exception forward, inmates would have been able “to

evade the exhaustion requirement, merely by limiting

their complaints to requests for money damages,” and

Congress’s purpose of deterring frivolous lawsuits

would have been “undermined.” 204 F.3d at 74. The

Seventh Circuit similarly has explained that “Section

1997e would not be worth much if prisoners could evade

it simply by asking for relief that the administrative

process is unable to provide.” Perez v. Wisconsin Dep't

of Corrections, 182 F.3d 532, 537 (1999).

C. The PLRA’s Special Exhaustion Requirement Is Also

Supported By Other Considerations That Have Par-

ticular Force In The Prison Setting

1. Other considerations that have particular force in

the prison setting also help to explain why Congress

21

imposed a broad mandatory exhaustion requirement on

inmates. First, prison authorities are in the best

position to investigate and evaluate prisoner complaints

in the first instance and to decide what corrective

action, if any, to take. Courts are “ill suited to act as

the front-line agencies for the consideration and resolu-

tion of the infinite variety of prisoner complaints.”

Procunier v. Martinez, 416 U.S. 396, 405 n.9 (1974).

The proper response to prison grievances falls squarely

within the expertise of prison officials, and, in general,

courts owe deference to the solutions chosen by those

officials. Bell v. Wolfish, 441 U.S. 520, 547 n.29 (1979).

Thus, it is appropriate for courts to exercise jurisdiction

only after prison officials have had the opportunity to

address the problem raised by an inmate’s complaint.

Second, exhaustion of administrative remedies helps

to ensure that inmates bring dangerous conditions or

abusive practices to the attention of responsible prison

officials quickly, so that prison officials can take correc-

tive action before the problem becomes even more

serious. An inmate who has been abused by a prison

guard may only be interested in money damages or

some other remedy that the institution does not offer.

But the institution has an overriding interest in

learning about that incident quickly so that it can make

sure that the guard does not abuse that inmate or any

other inmate again. The PLRA’s exhaustion require-

ment promotes that interest.

Third, a prison grievance process has the potential to

be a far less adversarial and far more cooperative

means for resolving inmate complaints than litigation in

federal court. When inmates can bypass the admin-

istrative process and immediately name their guards as

defendants in lawsuits, it can needlessly exacerbate the

tensions that exist in a prison. Even when the inmate

22

is only interested in a remedy that the institution does

not offer, airing the grievance in a less adversarial

setting can help to reduce the tensions that might

otherwise exist.

Fourth, in some cases in which inmates seek a

remedy that the grievance process does not offer, ex-

haustion of that grievance process can still lead to a

resolution of the complaint. Sometimes, the opportu-

nity to air a grievance and to receive a response may

turn out to be all that the inmate really wanted.

Sometimes the institution may take corrective action

that satisfies the inmate, even if it is not the action that

the inmate would have preferred. And, as noted above,

~ sometimes the administrative rejection of a claim may

persuade the inmate that the claim is not worth

pursuing in court.

Finally, when exhaustion of the administrative pro-

cess does not lead to a resolution of the complaint, it

nonetheless can lead to the development of a factual

record and a fuller understanding of the nature of the

inmate’s complaint. In general, complaints filed by

inmates in court are notoriously difficult to decipher.

Exhaustion of administrative remedies may help

inmates to make their complaints more understandable.

Even if exhaustion does not have that effect, the

administrative record may help the court to understand

the nature of the inmate’s complaint. The administra-

tive process may also put the government in a much

better position to move for summary judgment based

on qualified immunity or on other grounds and to avert

the extraordinary costs of discovery that may arise

when an inmate is free to question prison officials.

Congress thus had numerous reasons to require an

inmate to exhaust available administrative remedies

23

without regard to whether the administrative process

offers the precise remedy that the inmate seeks.

2. Petitioner contends (Br. 27-34) that exhaustion

should not be required when an inmate seeks only

monetary relief because the burden of exhaustion in

that context outweighs its benefits. For the most part,

however, petitioner either ignores the benefits that we

have identified or asserts without support that those

benefits do not arise when an inmate seeks only money

damages. Petitioner’s evaluation of the costs and

benefits of exhaustion therefore greatly understates

the benefits.

Nor is petitioner correct in asserting (Br. 29, 32) that

an institution waives the important interests in ex-

haustion we have identified by failing to offer monetary

relief. The question whether to offer money damages

as a component of a prison grievance procedure raises

fundamental policy questions that must be initially

addressed by the legislative branches of government.

Some States may believe that an offer of money

damages will make a prison grievance procedure more

effective. Others may conclude that including money

damages as an element of relief would be counter-

productive. A State that makes the latter choice does

not waive the important interests in exhaustion that we

have identified.

Petitioner’s effort to seek an exception to the ex-

haustion requirement based on a balancing of its costs

and benefits is subject to an even more fundamental

objection. Under Section 1997e(a), a court no longer

has discretion to weigh the costs and benefits of requir-

ing an inmate to exhaust administrative remedies.

Congress has weighed the costs and benefits itself and

has mandated exhaustion in all cases in which a

24

grievance procedure addresses the kind of problem

identified in an inmate’s complaint.

D. Petitioner’s Remaining Contentions Are Unpersuasive

Petitioner advances several additional arguments in

support of his contention that exhaustion is not

required when the administrative process does not

offer the remedy that the inmate seeks. None of those

arguments is persuasive.

1. Petitioner first contends (Br. 17-18) that Steele v.

Louisville & Nashville Railroad, 323 U.S. 192 (1944),

interpreted “available remedies” to mean that the

administrative process must supply the very remedy

sought. Petitioner further argues (Br. 17-18) that the

PLRA should be interpreted to conform to that “well

known” meaning. In Steele, however, the Court held

only that an individual union member did not have an

administrative remedy available from an adjustment

board when “(t]he Adjustment Board ha[d] consistently

declined in more than 400 cases to entertain grievance

complaints by individual members of a craft repre-

sented by a labor organization.” 323 U.S. at 205. We

have acknowledged that when an administrative

agency fails “to entertain grievance complaints” of a

particular kind, an administrative remedy is not “avail-

able.” That is very different, however, from saying that

a remedy is unavailable when an administrative body

will “entertain grievance complaints,” but will not pro-

vide the precise relief that is requested.

Petitioner also attempts to read far too much into

several sentences in an opinion written 50 years before

the enactment of the PLRA. Steele did not purport to

apply a well-established meaning of the term “available

remedies,” and that decision did not purport to

establish a definition of those terms. The meaning of

25

those terms in the PLRA exhaustion provision there-

fore cannot reasonably be drawn from that decision.

Regardless of how the Court used those terms in 1944,

the Congress that enacted the PLRA in 1995 did not

use those terms to excuse exhaustion any time an

administrative procedure does not offer the remedy

preferred by an inmate. As we have explained, any

such interpretation would reintroduce into the statute

the very inquiry into the “effectiveness” of a prison

institution’s administrative remedies that Congress

deliberately eliminated.

2. Petitioner argues (Br. 19-21) that the court of

appeals has rendered the terms “available” and “reme-

dies” superfluous because it has equated them with any

existing grievance procedure. That argument rests on

a misreading of the court of appeals’ decision. The

Third Circuit carefully explained in its decision in

Nyhuis that “for the administrative process to consti-

tute a bar, it must be capable of addressing the events

that could generate a lawsuit.” 204 F.3d at 75 n.9. The

court added that “{iJf, for example, the only grievance

procedure available dealt exclusively with work

assignments, it would not have to be exhausted unless

the subsequent lawsuit was related thereto.” Ibid. The

court of appeals’ interpretation of available remedies

therefore gives content to those terms. Petitioner’s

interpretation, on the other hand, gives them a meaning

that cannot be reconciled with the statutory text as a

whole or with Congress’s intent.

3. Finally, petitioner seeks to derive support for his

interpretation from Congress’s failure to enact a

different bill that contained an exhaustion requirement.

That bill provided in part that “[t]he fact that the

administrative remedies do not include all the possible

procedures and forms of recovery that are available in

26

the civil action does not render such administrative

remedies inadequate or excuse the failure to exhaust

them.” Br. 39-40 (quoting Prisoner Lawsuit Efficiency

Act of 1995, H.R. 2468, 104th Cong., Ist Sess. § 4048

(1995)). Failed legislative proposals, however, are

almost always an unreliable basis for discerning Con-

gress’s intent in enacting a different bill. Central Bank

of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 187 (1994). “A bill can be proposed

for any number of reasons, and it can be rejected for

just as many others.” Solid Waste Agency of N. Cook

County v. Army Corps of Engineers, No. 99-1178 (Jan.

9, 2001), slip op. 9.

The only evidence from the legislative history con-

cerning why Congress did not enact the language

identified by petitioner is that it regarded it as super-

fluous. 141 Cong. Rec. at 35,623-35,624 (Rep. LoBiondo)

(explaining that the bill Congress enacted imposed the

same exhaustion requirement as the bill identified by

petitioner). Congress may also have been concerned

that the language identified by petitioner might sug-

gest by negative implication that a court could excuse

exhaustion in other circumstances. The reason that

Congress did not include the language identified by

petitioner, however, is ultimately unknowable. That is

why Congress’s intent must be derived from the

language that Congress enacted, and not from the

language that it did not enact. Here, the language that

Congress enacted mandates exhaustion of available

remedies without regard to whether the grievance

process offers the remedy that the inmate seeks.

27

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Assistant Attorney General

‘ BARBARA D. UNDERWOOD

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

BARBARA L. HERWIG

PETER R. MAIER

Attorneys

JANUARY 2001