Amicus Curiae Brief — Booth v. Churner

In The |

Supreme Court of the United

¢

TIMOTHY BOOTH,

. Petitioner,

C.O. CHURNER, et al.,

Respondents.

.

On Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

e

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,

THE LEGAL AID SOCIETY OF THE CITY OF

NEW YORK, AND THE PRISON REFORM

ADVOCACY CENTER AS AMICI CURIAE

IN SUPPORT OF PETITIONER

of

Davip C. Fatui*

ELIZABETH ALEXANDER

MARGARET WINTER

NATIONAL PRISON PROJECT OF THE

AMERICAN Crvit LIBERTIES

UNION FOUNDATION

1875 Connecticut Ave. N.W., #410

Washington, DC 20009

202 234-4830

Dante. L. GREENBERG

JOHN Boston

MILTON ZELERMYER

THe Lecat Ai Soctety

Prisoners’ RiGHTs Project

90 Church Street

New York, NY 10007

212 577-3530

ALPHONSE A. GERHARDSTEIN

Prison Rerorm Apvocacy CENTER

617 Vine Street, #1428

Cincinnati, OH 45202

513 421-1108

*Counsel of Record

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TABLE OF CONTENTS

I. TO BE “AVAILABLE” AN ADMINISTRA-

TIVE REMEDY MUST BE CAPABLE OF

PROVIDING THE RELIEF THAT

ee INI 5 tek cia allan dal i Bie aaeera a

Il. REQUIRING DAMAGE CLAIMANTS

TO EXHAUST GRIEVANCE SYSTEMS

_ THAT DO NOT PROVIDE DAMAGES

POSES A GRAVE RISK THAT

MERITORIOUS CLAIMS WILL

MEE os cla ket echolan ss eke che 1]

III. © REQUIRING DAMAGE CLAIMANTS

TO EXHAUST ADMINISTRATIVE

GRIF VANCE SYSTEMS THAT

DO NOT PROVIDE DAMAGES

WILL NOT ADVANCE STATUTORY

PURPOSES OR OTHER POLICY GOALS .... 20

I 4p ped ap Koad SaWs aKa c ous 30

TABLE OF AUTHORITIES

FEDERAL CASES

Artuz v. Bennett, 121 S. Ct. 361 (2000) .............. 5

Barbara v. New York Stock Exchange, 99 F.3d 49

CoG Ce. 1908) .. . ce beens ete eee 23

Bethesda Hospital Association v. Bowen, 485

U.. SO (CEDMSD.. ws. de vce wee ok ee eee eee 7

Beeson v. Fishkill Correctional Facility, 28 F.Supp.

aq COS G.DNLY. 996) .. csi tok ee 22

Bivens v. Six Unknown Named Agents, 401 U.S. 388

CRGTE) ow. ck ake eee 24, 30

Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999) ....... 15

Bolin v. Black, 875 F.2d 1343 (8th Cir.), cert. denied

US WO ..: oS eee 15

Bowen v. City of New York, 476 U.S. 467 (1986) ...... 7

Cannon v. University of Chicago, 441 U.S. 677

Ci fa) Pann tern CI SS ae 8

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 23

Clayton v. International Union, UAW, 451 U.S. 679

RUDBRD oo wes SAR ee ee 6, 25

Commissioner v. Clark, 489 U.S. 726 (1989) ........... 9

Cruz v. Jordan, 80 F. Supp. 2d 109 (S.D.N.Y. 1999) .... 15

Farmer v. Brennan, 511 U.S. 825 (1994) ............. 14

Felder v. Casey, 487 U.S. 131 (1988) ......... ..... 13

Hollimon v. DeTella, 6 F. Supp. 2d 968

Nia nse, fy 4g Sst nie dba ck oy PhAST 23

Pome ¥. Toe, 404 U.S. 305. (1988)... .. ces 7

Hudson v. McMillian, 503 U.S. 1 (1992) .......... 14, 30

Inmates of Attica v. Rockefeller, 453 F.2d 12

Oi ss soars na va 15

Johnson v. Boreani, 946 F.2d 67 (8th Cir. 1989) ....... 23

Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991) ....... 23

McCarthy v. Madigan, 503 U.S. 140

Sen Scag eel Rial ag Pana Or aaa ar eure err passim

McKart v. United States, 395 U.S. 185 (1969) ......... 7

McNary v. Haitian Refugee Center, Inc.,

Gee we sak cha kaw eae 8

Meriwether v. Coughlin, 879 F.2d 1037

a Oy hog ek hw ee ee 15

Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) ...... 24

Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) ....... passim

Patsy v. Board of Regents of Florida, 457 U.S. 496

Ne Ne ea Pe tis ba a a 8 Dre wo 9

Perez v. Wisconsin Department of Corrections,

gw pe tk | re errr 21, 24

Reiter v. Cooper, 507 U.S. 258 (1993) ............... 5

Republic Steel Corp. v. Maddox, 379 U.S. 650

OL) 6

Shalala v. Illinois Council on Long Term Care, Inc.,

120 S. Ct. 1084 (2000) ..............0.0..0.0........ 7

United States v. Alvarez-Sanchez, 511 U.S. 350

Bh ere be co a at ig 5

Whitley v. Hunt, 158 F.3d 882 (Sth Cir. 1998).......... 5

Wilson v. Garcia, 471 U.S. 261 (1985) .............. 13

FEDERAL STATUTES

WM EU oe aye 7

es MEER 5 ss Sgn 8.0 Wines anes Sees 23

RA NOME ovo cacao keke cea eee 29

See ee: Ee PROUT wc 6 ko he Ss ea 29

Oe a RE: oh 0k +o eee dae a 29

in RE ier Gs bide eas ee eee 29

Oe She, Og ok sk a eon ee ee 4

42U SC. § 1997e(a) as ate vies RA Oke eee passim

iv

USC. $ WMD och 29

OTHER AUTHORITIES

141 Cong. Rec. $7524 (May 25, 1995) (statement of

Sensor Dols) .. co saa Se os ee ee 28

H.R. 2468 (Prison Lawsuit Efficiency Act of 1995) ..... 8

Administrative Office of the United States Courts,

Judicial Business of the United States, 1999

. Annual Renorst of the Detctor .......-. 2. +. nes. 28

Lynn S. Branham, The Prison Litigation Reform Act’s

Enigmatic Exhaustion Requirement: What It Means

and What Congress, Courts, and Correctional

Officials Can Learn From It, 86 Cornell

L. Rev. 101 (2000) (in press) .................. 25, 30

Federal Judicial Center, New Case Weights for Computing

Each District’s Weighted Filings Per Judgeship (undated

OTD oa vis i CE ee he ee ae ees 29

Karl O. Haigler, et al., U.S. Dept. of Educ.,

Literacy Behind Prison Walls: Profiles of the

Prison Population From the National Adult

FR ek, | a ee ee ee eee 14

Missouri Department of Corrections, Inmate

Grievance Task Force Evaluation Report,

ORIOE THOR ssi a hs oi a ee eee 19

Jon O. Newman, Pro Se Prisoner Litigation:

Looking for Needles in Haystacks, _

62 Brookiya L.. Rev. SIDS CISSS) ... 6 eee ess 28

John Scalia, Prisoner Petitions in the Federal Courts,

1980-96 (U.S. Dept. of Justice, Bureau

of Justice Statistics, October, 1997) ..............0.. 27

Jim Thomas, The "Reality" ri r Liti

Repackaging the Data, 15 N.E. Journal of Civil

and Criminal Confinement 27 (1989) ................ 28

U.S. Dept. of Justice, Bureau of Justice Statistics,

Challenging the Conditions of Prisons and Jails:

A Report on Section 1983 Litigation ............... 27

U.S. Dept. of Justice, Bureau of Justice Statistics,

Correctional Populations in the United States,

ie ee ere rr re 27

vi

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, non-partisan organization of nearly 300,000

members, dedicated to preserving and protecting the Bill of

Rights. The ACLU established the National Prison Project in

1972 to protect and promote the civil and constitutional rights

of prisoners.

The Legal Aid Society of the City of New York is a

private organization that has provided free legal assistance to

indigent persons in New York City for nearly 125 years.

Through its Prisoners’ Rights Project, the Society seeks to

ensure that prisoners are afforded full protection of their

constitutional and statutory rights. The Society advocates on

behalf of prisoners in New York City jails and New York state

prisons, and conducts litigation on prison conditions.

The Prison Reform Advocacy Center (PRAC) is a non-

profit organization dedicated to progressive prison reform.

Based in Cincinnati, PRAC was founded in 1997 to address the

legal needs of Ohio’s growing prison population. Through its

Grievance Project, PRAC works to improve the grievance

process in the prison systems of Ohio and other states."

SUMMARY OF ARGUMENT

The Petitioner alleges that he was the subject of several

past incidents of excessive force by prison staff. The question

presented is whether 42 U.S.C. § 1997e(a), a portion of the

Prison Litigation Reform Act (PLRA) that requires the

exhaustion of “available” remedies, requires a prisoner like

'No counsel for any party authored any part of this brief.

No persons or entities other than the amici curiae made any

monetary contribution to the preparation or submission of this

brief. Letters from the parties consenting to the filing of this

brief are on file with the Clerk of the Court.

]

Petitioner, who seeks only damages, to exhaust administrative

grievance procedures that do not provide damages.

As a matter of common sense and plain meaning, an

administrative procedure that bars the only form of relief

sought—and, in this case of a completed violation, the only relief

that could be meaningful-is not an “available” remedy. This

view is further supported by decisions applying mandatory

exhaustion requirements that have held that relief is not

“available” when the agency has no power to grant it; that the

availability of one form of relief does not require a litigant to

exhaust if he seeks entirely different relief; and that even when

a final agency decision is a usual prerequisite to federal court

review, the requirement is excused when the administrative

process would be futile because it cannot provide the requested

relief or resolve the contested issue.

Congress is presumed to know this Court’s basic rules

of statutory construction, and its enactments should be

construed as consistent with those rules absent a clear statement

to the contrary. Yet the PLRA language holds no hint that 42

U.S.C. § 1997e(a) was intended as an exception to this Court’s

interpretation of statutory exhaustion requirements. Indeed, the

reference to “available” remedies affirmatively supports

Petitioner’s argument, particularly because Congress rejected

language that would have required exhausting remedies

regardless of their availability. Petitioner’s damage claim should

therefore be allowed to proceed.

This conclusion is buttressed because prison grievance

systems are generally not designed to make retrospective

findings and judgments of the sort necessary for an award of

damages. Rather, they are designed to resolve current problems

and ongoing complaints. They are therefore characterized by

very short filing and appeal deadlines, generally a matter of days.

Requiring exhaustion of such remedies may be appropriate for

ongoing or recurrent problems; ifa prisoner makes a procedural

error and is barred, the issue can be renewed later in a new

grievance. But a prisoner who misses a short deadline for a

completed violation may find his claim procedurally barred first

in the grievance system, and then in court. This result would be

particularly unjust given the low literacy rates and lack of legal

sophistication among prisoners. Further, many of the most

serious occurrences for which prisoners seek damages—assaults

by staff or other prisoners and serious medical problems—may

result in the prisoner’s incapacitation, hospitalization, or

placement in isolated housing during the crucial period when the

grievance must be filed) Examination of numerous states’

grievance systems shows that there are many other technical

rules and requirements that may defeat a grievance. As with

time limits, they may not only delay resolution of grievances

concerning ongoing problems, but may also forever bar

meritorious claims of completed constitutional violations.

Requiring damage claimants to exhaust procedures that

do not provide damages also fails to serve the statutory

purposes and policy reasons invoked to justify it. This Court

previously recognized in McCarthy v. Madigan, 503 U.S. 140

(1992), that the basic policy reasons for exhaustion—protecting

agency authority and promoting judicial efficiency—are not

served by requiring the futile exhaustion of damage claims. It is

unrealistic to suggest that prisoners will omit non-damage claims

so they can evade the exhaustion requirement, since it assumes

prisoners will value evading exhaustion more than seeking a

remedy for their injuries, and since the existence of a viable

injunctive claim is not within the litigant’s control. It is

unpersuasive to cite the burden on federal courts of analyzing

the “vagaries” of state grievance processes, since federal courts

must construe state law as part of their daily business, and

prison grievance procedures have been construed without

difficulty by the courts.

Requiring exhaustion of claims that the grievance

process cannot resolve will not conserve judicial resources, the

cases will still come to court, unless the prisoner makes a

technical mistake and is barred. Prison grievance procedures

will not create a useful record, since they are rarely on the

record and since prisoner claims under 42 U.S.C. § 1983 are

heard de novo in federal court. For the same reason, non-

exhaustion in damage cases will neither interrupt the

administrative process nor deprive the agency of a chance to

remedy its own errors. The administrative proceeding and the

§ 1983 adjudication are completely independent of each other,

and the administrative process is free to correct errors or take

other action regardless of what happens in court. Mandating

universal exhaustion will not foster improvements in the

administrative system, since if prisoners are required to use the

system regardless of its efficacy, the incentive to improve it is

undermined. Finally, requiring exhaustion in damage cases will

do nothing about the volume of prison litigation, since

procedures that don’t provide damages won’t keep damage

cases out of court. Other provisions of the PLRA, such as the

requirement that prisoners pay filing fees in installments, and the

new provisions for early screening that extend the sua sponte

dismissal power to cases that fail to state a claim or seek

damages against immune defendants, already make litigation

substantially more difficult for prisoner plaintiffs than for other

litigants.

ARGUMENT

L. TO BE “AVAILABLE” AN ADMINISTRATIVE

REMEDY MUST BE CAPABLE OF PROVIDING

THE RELIEF THAT IS REQUESTED.

42 U.S.C. § 1997e(a) provides as follows:

APPLICABILITY OF ADMINISTRATIVE

REMEDIES. 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 correctiona!

facility until such administrative remedies as are

available are exhausted.

“Available” is not defined in § 1997e. Where a term is

not defined in a statute, this Court construes the term “in

accordance with its ordinary or natural meaning.” United States

v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) (citation and

internal quotation marks omitted) (considering dictionary

definition of “delay” in defining statutory term); cf. Artuz v.

Bennett, 121 S. Ct. 361, 363 (2000) (interpreting “properly

filed” in Anti-Terrorism and Effective Death Penalty Act

consistently with the “commonly understood” meaning of

“filed”) (citations omitted). In ordinary usage, “available”

means “capable of availing; having sufficient power or force to

achieve an end.” Webster’s New International Dictionary 150

(3d ed. 1986). See Whitley v. Hunt, 158 F.3d 882, 887 (5" Cir.

1998) (citing Webster’s definition to hold that federal prisoners

seeking monetary relief need not exhaust the Bureau of Prisons’

administrative grievance system since money damages are

unavailable under that system). Under these definitions, a

remedy that does not provide damages can hardly be said to be

“available” to a litigant who seeks only damages.

Indeed, the Court’s past use of “available” in applying

statutory exhaustion provisions supports this view. In Reiter v.

Cooper, 507 U.S. 258 (1993), this Court considered whether a

shipper alleging that a motor carrier’s tariff rates were

unreasonable was required first to obtain a ruling from the

Interstate Commerce Commission on the reasonableness of the

rates. This Court rejected that argument:

Where relief is available from an administrative

agency, the plaintiff is ordinarily required to

pursue that avenue of redress before proceeding

to the courts, and until that recourse is

exhausted, suit is premature and must be

dismissed .... That doctrine is inapplicable to

petitioners’ reparations claims, because the ICC

has long interpreted its statute as giving it no

power to decree reparations relief.

Id. at 269 (citations omitted). Similarly, an administrative

remedy is not “available” if it is one that cannot grant the

requested relief.

Reiter is consistent with this Court’s other exhaustion

decisions. In Clayton v. International Union, UAW, 451 U.S.

679 (1981), the Court held that an employee claiming both

unlawful discharge by the employer and a breach of the duty of

fair representation by the union need not exhaust internal union

appeals before suing under § 301(a) of the Labor Management

Relations Act. The Court noted that “[rJeinstatement is

available only from the employer,”? and the Court held that

“these restrictions on the relief available through the internal

UAW procedures render those procedures inadequate.” Id. at

691-92 (footnote omitted).

Moreover, in enacting the PLRA, Congress acted against

the backdrop of this Court’s interpretation of previous statutory

exhaustion requirements. Of particular note is this Court’s

treatment of statutory provisions that limit judicial review to

review of the final decision of an administrative agency. At first

blush, it would appear that, by definition, to obtain such a final

decision, the claimant must always exhaust administrative

remedies. But this Court interprets such statutes in light of

"Id. at 690 n.15. Monetary relief in the form of backpay

was available through the internal grievance procedure.

*Clayton did not involve an explicitly mandatory

statutory exhaustion requirement, but exhaustion was required

because of congressional intent. Congress had “expressly

approved” union grievance procedures as a “preferred method”

of resolving contract disputes. Republic Steel Corp. v. Maddox,

379 U.S. 650, 653 (1965), cited in Clayton, 451 U.S. at 681.

6

i. Ss EE

exhaustion doctrine not to require exhaustion of administrative

remedies that cannot provide the requested relief.

For example, in Honig v. Doe, 484 U.S. 305 (1988), the

Court considered a provision of the Education of the

Handicapped Act. The relevant provision, 20 U.S.C. § 1415(e),

provided at the time of the case that any party aggrieved by a

final decision of the state educational agency could seek judicial

review. Despite this explicit requirement ofa final decision from

the state educational agency, the Court stated that “parents may

bypass the administrative process where exhaustion would be

futile or inadequate.” Id. at 327 (citations omitted).

Similarly, in Bethesda Hosp. Ass’n v. Bowen, 485 U:S.

399 (1988), this Court rejected an argument that a provision of

the Social Security Act providing for review by the Provider

Reimbursement Review Board only ofa “final determination” of

a fiscal intermediary meant that a party must present its claims

before the fiscal intermediary even when that intermediary had

no authority to declare invalid the regulation that the party

wished to challenge. Id. at 404-06.* See also Bowen v. City of

New York, 476 U.S. 467, 482-85 (1986) (holding that although

the Social Security Act made a final agency decision a

jurisdictional prerequisite to judicial review, exhaustion of

remedies was unnecessary because it would have been futile);

McKart v. United States, 395 U.S. 185, 196-197 (1969)

(holding that, although Selective Service Act made decisions of

local boards final, failure to exhaust administrative remedies did

not bar judicial review of questions of statutory interpretation);

cf. Shalala v. Illinois Council on Long Term Care, Inc., 120 S.

Ct. 1084, 1093, 1097 (2000) (holding that Social Security Act

specifically bars resort to general federal jurisdiction statute, this

bar “reaches beyond ordinary administrative law principles of

‘The Social Security Act itself provided for judicial

review when the Provider Reinstatement Review Board

determined it was without authority to decide a question. See id.

at 406 n.4.

ripeness and exhaustion of administrative remedies,” noting that

bar does not apply if administrative review system could not

consider the claim) (citations and internal quotation marks

omitted).

If Congress had intended to reject the well-established

common law principle that remedies need not be exhausted if

they cannot provide the relief sought, it would have made this

intention explicit in the language of the statute.° See McNary v.

Haitian Refugee Center, Inc., 498 U.S. 479, 496 (1991)

(interpreting statute not to foreclose all forms of judicial review

in light of presumption that Congress legislates with knowledge

of Court’s basic rules of statutory construction, including

presumption favoring statutory interpretation that allows judicial

review of administrative action); accord Cannon v. University of

Chicago, 441 U.S. 677, 696-98 (1979).

Construing the PLRA exception narrowly is also

consistent with the principle that a congressional intention to

require exhaustion must be clearly expressed:

Of paramount importance to any exhaustion

inquiry is congressional intent. Where Congress

mandates, exhaustion is required. But where

Congress has not clearly required exhaustion,

sound judicial discretion governs.

*Explicit language requiring exhaustion of administrative

procedures, including those that do not provide remedies that

are available in civil actions, was proposed in H.R. 2468 (Prison

Lawsuit Efficiency Act of 1995, or “PLEA”), but this language

was rejected by Congress when it enacted the current version of

42 U.S.C. 1997e{a) as part of the PLRA. See Brief of

Petitioner, § II1.B.

McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (internal

quotation marks and citations omitted).° Because Congress in

42 U.S.C. § 1997e(a) has not clearly required exhaustion of

administrative remedies that cannot provide the requested relief,

such exhaustion is not required.

Finally, construing the PLRA exhaustion requirement

narrowly is appropriate because § 1997e operates as an

exception to the general principle that exhaustion is not required

in § 1983 cases.’ See Commissioner v. Clark, 489 U.S. 726,

739 (1989) (noting that statutory exceptions to general rule are

usually read narrowly; where Congress has enacted a general

rule, “we should not eviscerate that legislative judgment through

an expansive reading of a somewhat ambiguous exception”).

This is not to argue that the PLRA exhaustion

requirement is equivalent to the previous statutory requirement,

which allowed courts to continue cases for 180 days “if the

court believe[d] that such a requirement would be appropriate

and in the interests of justice” to allow exhaustion of “such

plain, speedy, and effective administrative remedies as are

°The need for a clear expression of congressional intent

to require exhaustion follows from the obligation of federal

courts to exercise their jurisdiction. “[F]ederal courts are vested

with a virtually unflagging obligation to exercise the jurisdiction

given them. We have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is not

given.” Id. at 146 (internal quotation marks and citations

omitted).

7See Patsy v. B f Regents of Florida, 457 U.S. 496,

500-02 (1982) (holding that no exhaustion requirement is

appropriate in § 1983 actions in the absence of a statute

requiring exhaustion).

available.” 42 U.S.C. § 1997e(a)(1) (1994).* The PLRA

requirement eliminates the wide-ranging discretion embodied in

the “appropriate and in the interests of justice” standard, end it

requires exhaustion of remedies that may not be “plain, speedy,

and effective.” Similarly, the PLRA exhaustion requirement is

more stringent than a judicially-fashioned exhaustion

requirement, which also would have considered the speed,

fairness, and effectiveness of the existing administrative remedy.

See McCarthy v. Madigan, 503 U.S. at 147-149 (considering

delay, effectiveness, and bias in determining whether to impose,

absent a congressional directive, an exhaustion requirement in

Bivens actions).

Accordingly, in enacting PLRA, Congress intended to

narrow the very broad exceptions to the exhaustion requirement

under prior law. But nothing in the language or structure of the

PLRA suggests a congressional intent to apply the exhaustion

requirement more stringently than other statutorily-imposed

exhaustion requirements. Indeed, the language and structure of

the PLRA provision demonstrate an intent that, consistent with

this Court’s construction of other statutory exhaustion

requirements, only administrative remedies that can actually

provide the requested relief are to be considered “available.”

In sum, Congress did not intend to require prisoners to

exhaust administrative remedies that could not provide the

requested relief. It certainly did not clearly express such an

intent. In the absence of a clear expression of congressional

intent, this Court should not impose such a requirement.

“The PLRA also eliminated the provision that exhaustion

could not be required unless the Attorney General of the United

States had certified, or the court had determined, that

administrative remedies were in substantial compliance with

minimum standards promulgated by the Attorney General, or the

court had determined that the remedies were otherwise “fair and

effective.” 42 U.S.C. § 1997e(a)(2) (1994).

10

II. REQUIRING DAMAGE CLAIMANTS TO

EXHAUST GRIEVANCE SYSTEMS THAT DO

NOT PROVIDE DAMAGES POSES A GRAVE

RISK THAT MERITORIOUS CLAIMS WILL BE

LOST.

There are also sound policy reasons not to require

exhaustion of administrative remedies that cannot provide the

requested relief. Prison and jail grievance systems are designed

primarily to solve ongoing problems and resolve current

complaints.’ They are usually not designed to pass judgment on

past incidents, make findings of historical fact, resolve

conflicting testimony, determine fault, and award monetary

compensation. Perhaps for this reason, many prison grievance

systems include procedural features that may make sense for

prospective problem-solving, but constitute technical obstacles

and traps for the unwary for a prisoner seeking monetary

compensation for a specific past incident of harm. Requiring

exhaustion makes little sense when it cannot provide the relief

sought, therefore cannot resolve the controversy, and serves

only to create a gratuitous risk that a meritorious claim may

become barred by a prisoner’s technical mistake. It also makes

no sense to assume that Congress intended such a result,

especially since this precise problem was delineated by this

Court years ago, and Congress has indicated no intent to

overturn or reject this Court’s holding. See note 5, supra.

*See Hawaii, at 1 (purposes of grievance system include

“establishing a mechanism which will identify institutional

problems and afford a means for corrective action”); Montana,

at | (grievance policy is intended to “afford staff the opportunity

to improve facility operations”). For ease of reference,

grievance procedures are cited by the name of the state or

locality where they are in effect. Complete citations for these

procedures may be found in Appendix 1. These materials have

been lodged with the Clerk.

1]

In McCarthy v. Madigan, this Court held that a prisoner

bringing a Bivens action seeking only money damages need not

first exhaust the grievance procedure of the Federal Bureau of

Prisons. The Court noted that the Bureau’s grievance procedure

“imposes short, successive filing deadlines that create a high risk

of forfeiture of a claim for failure to comply,”503 U.S. 152, and

observed that these deadlines “are a likely trap for the

inexperienced and unwary inmate, ordinarily indigent and

unrepresented by counsel, with a substantial claim.” Id. at 153.

Focusing on prisoners seeking monetary compensation as a

remedy, this Court understood that “[a]ll in all, these deadlines

require a good deal of an inmate at the peril of forfeiting his

claim for money damages.” Id.'°

Many prison grievance procedures today include filing

deadlines far more onerous than those at issue in McCarthy. A

prisoner filing a grievance that pertains to a discrete incident

may be required to file within as little as three days of the

incident, or have his grievance rejected as time-barred.'' Thus,

while other civil rights plaintiffs enjoy a statute of limitations of

‘The Court’s analysis was not altered by the fact that

these deadlines could be extended for “valid” reasons. “{T]he

regulations do not elaborate upon what a ‘valid’ reason is.

Moreover, it appears that prison officials-perhaps the very

Officials subject to suit—are charged with determining what is a

‘valid’ reason.” 503 U.S. at 153.

See, e.g., Tennessee, at 2 (7 calendar days); Utah, §

3.03 (7 calendar days); Kentucky, at 9, 11 (5 working days);

Georgia, at 6 (5 calendar days); Metro Dade (Florida), at 2 (3

working days); Rhode Island, at 3 (3 days); City of New York,

Inmate Grievance Form #7101-5 (3 days); Oklahoma, § IV.A.

(must attempt “informal resolution” within 3 days).

12

one, two, or three years or more,’? if this Court adopts the

position of the court below, prisoners. will face a de facto

limitations period that is measured in days. Cf. Felder v. Casey,

487 U.S. 131, 139-40 (1988) (limitations period providing “only

a truncated period of time within which to file suit” conflicts

with the policies of § 1983).

These initial filing deadlines are compounded by

deadlines as short as one day for appealing from an adverse

decision, sometimes through several levels of appeal.'? In some

systems, it is simply unclear how much time a prisoner has to file

a grievance or appeal. See, e.g., Virginia, at 7 (providing that

a prisoner has 30 calendar days to file a grievance, “except ...

where a more restrictive time frame has been established in

Division Procedures”); Tennessee, at 2 (grievances must be filed

within 7 calendar days, “with the exception of Title VI

complaints,” which must be filed within 180 days).

These short deadlines would be a substantial problem in

any administrative remedy system. They are especially

problematic in connection with the prison population, which is

generally legally unsophisticated, poorly educated, and often

functionally illiterate. *

"See Wilson v. Garcia, 471 U.S. 261, 280 (1985)

(federal court hearing § 1983 action is to apply personal injury

statute of limitations of forum state).

'3See, e.g., Mississippi, at 3 (appeal must be received

within 5 days); Ohio, AR 5120-9-31(H)(8) (5 working days);

Virginia, at 11 (5 days); Tennessee, at 2-3 (5 days); Colorado,

at 3 (5 days); Georgia, at 8-9 (appeal must be received within 4

calendar days); Kentucky, at 11 (3 working days); Washington,

FAC 110, 120 (2 working days); Metro Dade, at 4-5 (48 hours);

City of New York, Inmate Grievance Form #7101-5 (1 day).

The National Center for Education Statistics reported

in 1994 that seven out of ten prisoners perform at the lowest

13

This problem is particularly worrisome in light of the

nature of many prisoner damage claims. The most serious such

cases typically involve allegations of physical injury resulting

from the use of force by staff, assaults by other prisoners

occasioned by the deliberate indifference or complicity of staff,

and deliberate indifference to serious medical needs. The

realities of prison life militate against prisoners’ ability to meet

the short deadlines of grievance procedures in such cases.

Prisoners involved in altercations, either with staff or with other

prisoners, are generally placed immediately in segregation units

pending disciplinary hearings, or in cases where prison staff

accept that they have been victimized, in protective custody.

See, e.g., Farmer _v. Brennan, 511 U.S. 825, 830 (1994)

(prisoner transferred to segregation after reporting assault by

another prisoner); Hudson v. McMillian, 503 U.S. 1, 4 (1992)

(prisoner moved to “administrative lockdown” after verbal

confrontation with staff). Access to grievance rules, necessary

forms, and grievance personnel whose advice or cooperation

may be necessary is likely to be greatly delayed or restricted in

such units.

Prisoners are also often transferred after violent or

disruptive incidents, which may interfere with their ability to file

a grievance, to file it at the right institution, or to appeal timely

if they file at one prison and are then transferred to another.

Prisoner-staff altercations by nature result in heightened tensions

regardless of who was at fault, and in the initial days after such

an incident, prisoners are likely to be fearful even of asking staff

for necessary assistance in filing grievances, and the risk of staff

retaliation to obstruct or divert grievances is very real.'° In

literacy levels. Karl O. Haigler et al., U.S. Dept. of Educ.,

Literacy Behind Prison Walls: Profiles of the Prison Population

from the National Adult Literacy Survey xviii, 17-19 (1994).

'SThe staff response to the Attica Correctional Facility

rebellion, which included massive extralegal retaliatory abuse

14

cases of altercations with serious injury or serious medical

problems, prisoners may also be hospitalized and lack access to

the grievance system, cr may be too incapacitated to make use

of it." In such cases, a prisoner is unlikely to succeed in

complying with a grievance filing deadline of three, five, or

seven days.

But multiple, short, and sometimes unclear filing

deadlines are only the tip of the iceberg. Many grievance

systems, like that at issue in McCarthy, provide that a prisoner

may not file a grievance unless he first attempts to resolve the

issue informally. See, e.g., Kentucky, at 11 (requiring that the

prisoner both attempt informal resolution before filing a

grievance, and file the grievance within 5 working days of the

incident grieved).'’ This requirement, in conjunction with short

filing deadlines, allows staff either intentionally or inadvertently

to prevent the prisoner from filing a grievance at all. For

example, at Virginia’s Wallens Ridge State Prison, the prisoner

must attempt informal resolution by submitting a “Request for

against prisoners, is the paradigm case. See Inmates of Attica

v. Rockefeller, 453 F.2d 12 (2d Cir. 1971); see also Blyden v.

Mancusi, 186 F.3d 252 (2d Cir. 1999). The same pattern is

familiar in cases arising from smaller-scale prison disturbances

or feared disturbances. See, e.g., Meriwether v. Coughlin, 879

F.2d 1037, 1047-48 (2d Cir. 1989); Bolin v. Black, 875 F.2d

1343, 1350 (8" Cir.), cert. denied, 493 U.S. 993 (1989).

‘See Cruz v. Jordan, 80 F.Supp.2d 109, 123-24, 126

(S.D.N.Y. 1999), in which prison officials refused the court’s

request to allow the prisoner to file a late grievance,

notwithstanding that the prisoner had been unconscious, in pain,

or in the hospital during the 14-day period for filing.

"See also Virginia, at 7; Colorado, at 3; Texas, at 1:

Ohio, Policy 203-01, § VIF.

15

Services/Complaint” form “to the appropriate staff”"* If the

_ form is not submitted to “appropriate staff,” it is returned to the

prisoner. If the person receiving the form forwards it to another

staff member, the prisoner must await a response from the latter.

Prison staff have 15 days to respond “from the date that that

[sic] the Complaint form is received by the department or staff

person who is responsible for answering the Request for

Services/Complaint form” (emphasis added). A prisoner is

required to file the completed Request for Services/Complaint

form with his grievance. WRSP, at 4-5.

In short, if a prisoner does not correctly guess who is the

“appropriate staff,” or if prison staff decide (innocently or

otherwise) to forward the complaint to another staff person for

response, or if a response is delayed for any other reason, the

prisoner’s 30-day period to file a grievance may run before he

receives the required response to his informal complaint. '®

This problem is compounded by the likelihood, discussed

above, that after incidents of conflict with prison staff. prisoners

will be fearful of approaching those same staff or their co-

workers to “resolve informally” a claim that prison staff

unlawfully abused them. For example, Minnesota requires that,

as the first step in the grievance process, the prisoner “submit a

written grievance to the staff who is directly responsible for the

issue being grieved.” Minnesota, at 2. Presumably this would

require Petitioner to submit his grievance directly to the

corrections officers he accuses of assaulting him, or risk

forfeiting his damages claim for failure to comply with the

grievance procedure.

There are many other barriers to exhausting a prison

grievance system with respect to a claim for monetary damages.

'*Virginia’s informal resolution process varies from

institution to institution. Virginia, at 7.

’As noted above, in some unspecified cases, a Virginia

prisoner has less than 30 days to file a grievance.

16

Grievances or appeals may be rejected for myriad reasons, such

as filing at the wrong institution, “insufficient information,”

failure to attach the response from the level below, submitting

copies rather than originals, “inappropriate/excessive

attachments,” or simply “inappropriate.””' It is often unclear

whether a timely filed grievance rejected for a technical defect

may later be resubmitted, with the defect cured, if the filing

deadline has run. See also Oklahoma, § VII.A., B. (allowing

appeal only on limited grounds, and requiring payment of $2 for

each appeal filed).

In some cases, the prison system may simply refuse to

process the prisoner’s grievance for reasons beyond his control.

The Texas grievance form states that grievances seeking

monetary damages will be returned unprocessed, thus making

exhaustion impossible for a prisoner in Petitioner’s situation. In

the Bureau of Prisons, the practice apparently varies from prison

to prison on this point. See Nyhuis v. Reno, 204 F.3d 65, 74

(3d Cir. 2000). In Colorado, grievances deemed to be of

general interest are answered by posting the response in a

common area. “Once such a grievance response has been

published, no further grievances on the matter shall be processed

in that facility for six (6) months, unless the underlying

procedure or regulation is substantially changed.” Colorado, at

3. See also Kentucky, at 3 (similarly providing that a grievance

deemed identical to those filed by other prisoners will not be

processed). Such policies may make good sense for the purpose

of prospective problem-solving, but it makes no sense to

relegate damage claimants to a system in which their grievances

may be dismissed simply because they are shared by others.

Moreover, a prisoner who has suffered an injury for

which he wishes to seek damages may be barred from filing a

grievance because he is alleged to have engaged in “abuse” of

Virginia, Attachment 2, at 2.

*!Texas, at |.

17

the grievance system, a term that may be defined vaguely or not

at all. See, e.g., Virginia, at 5 (access to grievance system may

be limited for “excessive filings” or “habitual misuse,” terms

which are not defined). In Colorado, a prisoner who has filed

“excessive grievances” (again, the term is not defined) may be

restricted to one grievance per month. Colorado, at 2. In Utah,

a prisoner who files a “frivolous” grievance may be entirely

barred from using the grievance system for up to six months.

Utah § 02.08.B.6.c.3. “Frivolous” grievances include those that

a prisoner “knows or reasonably should know” are “without

merit” or “irresponsible.” Id., § 01.03. Oklahoma allows

grievance restriction for up to one year for “abuse or misuse” of

the grievance process, which includes “grievances about de

minimis . . . issues” and “repetitive grievances by multiple

inmates/offenders about the same issue” Oklahoma, § IX.

Clearly, a prisoner who is barred from using the grievance

system may be unable to file a timely grievance about an incident

for which he seeks compensation.

In some systems, even prisoners who are not alleged to

have abused the grievance system are severely limited in the

number of grievances they can file. See, e.g., Tennessee, at 4

(prisoners are not permitted to have more than one grievance

pending at the first level of review); Georgia, at 10 (prisoners

may only have two non-emergency grievances pending at the

institutional level).””

The Mississippi system creates a Catch-22 for prisoners

wishing to grieve multiple incidents. On the one hand, a

grievance will be rejected if “[t]he offender has requested a

remedy for more than one incident.” Mississippi, at 2. On the

other hand, “[i]f an offender submits multiple requests, the first

request will be accepted and handled. The others will be logged

and set aside for handling at the Adjudicator’s discretion. A

maximum of ten (10) requests will be logged. Requests above

that number will be returned to the offender and not filed.” Id.

at 5.

Transfer to another facility may also make it difficult or

impossible to exhaust the grievance system. In Kentucky, if a

prisoner is transferred while his grievance is pending, his only

option is to “appoint another inmate to act in his stead with full

power to appeal or not, as the second inmate may decide.” If

the grievant fails to do so, “the grievance shall be moot at all

levels of appeal.” Kentucky, at 12. Moreover, in some systems,

the grievance system varies from institution to institution.”

Thus, a recently transferred prisoner who understandably relies

on his knowledge of the grievance process at his former

institution may fail to comply with the procedures at his new

location.

Finally, the requirements of the grievance process are

often not explained clearly, or even accurately, to prisoners. At

the outset, it is unlikely to occur to prisoners, uneducated and

legally unsophisticated as many of them are, that a grievance

process that does not provide damages is indeed an “available”

remedy for their damage claims. Moreover, some grievance

procedures are incomprehensible even to corrections officials.

A 1999 survey by the Missouri Department of Corrections of

state prison grievance systems found the Washington state

procedure “very lengthy and very detailed. Certain issues are

not always in one area in the procedure, making it difficult to

find.” Missouri Department of Corrections, Inmate Grievance

Task Force Evaluation Report, September 1999, at 16. The

same report described the Hawaii procedure as “difficult to

follow.” Id. at 10. And sometimes the information provided to

prisoners is affirmatively misleading. For example, the Ohio

State Penitentiary Inmate Handbook, in its section titled

“Grievance Procedures,” does not advise the prisoner that there

See, e.g., Virginia, at 1, 6, 7; Ohio, Policy 203-01,

§ VLF.1.

“The relevant portion of this report has been lodged

with the Clerk.

19

is a time limit for filing grievances; it also makes no mention of

the appeal process.”*

These time limitations and other procedural and

substantive obstacles do not pose the same problems for

prisoners seeking a prospective change in the conditions of their

confinement-for example, the failure of staff to provide

necessary medical care, or unsafe conditions in the living unit.

As long as the conditions persist, such grievances will never be

time-barred; nor will any lawsuit. Filing a grievance that runs

afoul of the grievance system’s often arcane procedural

requirements will not bar filing another after the first has been

rejected. A transfer to another facility may moot the underlying

problem; if not, the prisoner can file a grievance at the new

location.

But for the prisoner like Petitioner who seeks monetary

compensation for a discrete incident of harm in the past, prison

and jail grievance procedures pose serious, unnecessary, and

sometimes insurmountable barriers. The exhaustion requirement

imposed by the court below poses a grave danger that the

Petitioner’s damage claim may be forever barred not because it

lacks merit, but because he was unable to navigate the

procedural intricacies of a grievance system that was unable to

provide him with a remedy.

Il. REQUIRING DAMAGE CLAIMANTS TO

EXHAUST ADMINISTRATIVE GRIEVANCE

SYSTEMS THAT DO NOT PROVIDE DAMAGES

WILL NOT ADVANCE STATUTORY PURPOSES

OR OTHER POLICY GOALS.

While requiring exhaustion of remedies that cannot

provide damages will arbitrarily prevent the presentation of

?5Compare Ohio State Penitentiary Inmate Handbook, at

10, with Policy 203-01, § VI.D (setting forth filing deadlines),

§ VI.F.6 (appeal procedure).

20

meritorious claims, it will do little to further the asserted

purposes of PLRA, or the policy goals that underlie the

exhaustion doctrine. Those purposes were considered by the

Third Circuit in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000), on

which the holding below is based. In Nyhuis, the court relied

upon its view of the congressional purpose to reduce frivolous

litigation by prisoners, and also upon “myriad policy

considerations,” for requiring damage claimants to exhaust

remedies that do not provide damages. 204 F.3d at 73-77. But

the stated congressional purpose is not realized or advanced by

imposing such a broad exhaustion rule, and the policy

justifications are variously exaggerated, unrealistic, or

insubstantial—especially in cases such as this, alleging completed

injurious acts by line officers rather than an ongoing course of

conduct or an institutional policy. See Perez v. Wisconsin Dept.

of Corrections, 182 F.3d 532, 538 (7" Cir. 1999) (“It is possible

to imagine cases in which the harm is done and no further

administrative action could supply any remedy”).

Broadly speaking, the policies cited in Nyhuis are those

recognized by this Court in McCarthy v. Madigan as generally

promoted by an administrative exhaustion requirement, namely

“protecting administrative agency authority and promoting

judicial efficiency.” 503 U.S. at 145.°° However, the McCarthy

Court understood that neither of those purposes is usefully

served by requiring prisoners seeking damages to exhaust

grievance systems where damages could not be obtained in a

grievance. Id, at 155-56. Moreover, nothing in the legislative

*Nyhuis categorizes these polices as avoiding

interruption of the administrative process, conserving scarce

judicial resources, and improving the efficacy of the

administrative process. 204 F.3d at 75.

21

history of the PLRA shows any congressional concern for the

furtherance of these policies.”’

The Nyhuis court noted the congressional purpose to

reduce frivolous litigation, and said that “[e]xempting claims for

monetary relief from the exhaustion requirement in § 1997e(a)

would frustrate this purpose. It would enable prisoners, as they

became aware of such an exemption, to evade the exhaustion

requirement, merely by limiting their complaints to requests for

money damages.” 204 F.3d at 74. This argument rests on two

unsupported assumptions. First, it assumes that prisoners will

frame their lawsuits so as to avoid the exhaustion requirement

rather than to seek the relief that they believe their complaints

merit. Since filing suit solely for damages would not bring

prisoners expedited relief, prisoners would have nothing to gain

by such a strategy.* Moreover, what most prisoner litigants

want is no different from what any other litigant with a personal

injury claim wants, namely, just compensation for the injury— to

be made whole.

?’Nyhuis analyzes policy considerations at length because

in its view, “Congress seems to have had [them] in mind in

enacting the PLRA.” Nyhuis, 204 F.3d at 75. But this assertion

is unsupported by any legislative history.

*Equally speculative is the notion that “[a] prisoner may

use the threat of money damages as a bargaining chip to obtain

relief that he really wants, and may then be satisfied when he

gets that relief from the prison.” 204 F.3d at 76, quoting

Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 895

(S.D.N.Y. 1998). Attributing this degree of Machiavellian skill

to litigants who are usually uneducated, legally unsophisticated,

and appearing pro se is unrealistic. Moreover, a damage claim

large enough and certain enough of success to be effective as a

“bargaining chip” is the least likely sort of claim to be

abandoned based on some other action by prison officials.

22

Second, this argument assumes that prisoners can

effectively manipulate their claims for relief to avoid exhaustion.

But a case either is or isn’t susceptible to injunctive relief, and

most prisoner damage cases—exemplified by this one—are not.

A prisoner who, as Mr. Booth alleges, has been beaten by staff

generally does not-have a claim for injunctive relief. See, e.g.,

Hollimon v. DeTella, 6 F.Supp.2d 968, 970 (N.D. Ill. 1998)

(holding that prisoner lacked standing for injunctive relief

because he did not allege it was likely he would be beaten

again); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111

(1983) (applying same rule to police encounters). The same

rule is true of prisoners subjected to other sorts of completed

injuries, such as a prisoner who wishes to challenge an injury

suffered at one prison but who now has been transferred to a

second facility. See, e.g.. Johnson v. Boreani, 946 F.2d 67, 72-

73 (8" Cir. 1989) (denying prisoner injunctive relief based on

past staff conduct); see also Johnson v. Moore, 948 F.2d 517,

519(9" Cir. 1991) (denying transferred prisoner injunctive relief

even though the condition that caused the injury continued at

the original facility).

Thus, cases in which prisoners drop viable injunctive

Claims to avoid exhaustion will necessarily be rare. Cases of

such manipulation should be dismissed on their own facts, see,

e.g., Barbara v. New York Stock Exchange, 99 F.3d 49, 57 (2d

Cir. 1996), rather than by adopting an unnecessarily broad

exhaustion rule that would require dismissal of meritorious

cases.

Nyhuis makes the assumption, unsupported by legislative

history, “that Congress intended to save courts from spending

countless hours, educating themselves in every case, as to the

vagaries of prison administrative processes, state or federal.”

204 F.3d at 74. This concern is without any apparent basis.

Federal courts routinely interpret state law both in diversity

cases and pursuant to their supplemental jurisdiction, 28 U.S.C.

§ 1367, as well as in cases in which state law is challenged as

unconstitutional and must be construed. In cases involving

23

administrative proceedings, federal courts frequently determine

whether such procedures can provide requested relief. See § I,

supra, at 7-8. This Court has no difficulty examining,

understanding, and describing prison grievance procedures. See

McCarthy v. Madigan, 503 U.S. at 142-43 (summarizing

Federal BOP procedure); see also Nyhuis, 204 F.3d at 77 n.12

(same); Miller v. Tanner, 196 F.3d 1190, 1193 (11™ Cir. 1999)

(description of Georgia Department of Corrections grievance

procedure). Amici are aware of no decision among the large

body of PLRA exhaustion case law in which a court could not

determine, or expressed doubts concerning its conclusion,

whether the procedure did or did not provide for an award of

damages.

In a similar vein, Nyhuis cites, as a policy justifying

exhaustion, “conserving scarce judicial resources, since the

complaining party may be successful in vindicating his rights in

the administrative process and the courts may never have to

intervene.” 204 F.3d at 75. That prospect has little relevance

here, where, by hypothesis, we deal with a completed act—the

alleged beatings by staff—-for which the only meaningful

vindication is an award of damages that the grievance system

does not provide.” Damage claims will simply come to court

?*Nyhuis stated that “‘even if the complaining prisoner

seeks only money damages, the prisoner may be successful in

having the [prison] halt the infringing practice’ or fashion some

other remedy, such as returning personal property, reforming

personal property policies, firing an abusive prison guard, or

creating a better screening process for hiring such guards.” 204

F.3d at 76 (citations omitted). For a prisoner like Mr. Booth,

who complains of completed assaults, measures such as firing an

abusive guard or improving hiring procedures, or any other

change in policy, simply do not provide a remedy. See Perez v.

Wisconsin Dept. of Correction, 182 F.3d at 538. For him, as for

a victim of completed acts of police misconduct, it is “damages

or nothing.” Bivens v. Six Unknown Named Agents, 401 U.S.

24

after a period of useless delay—except for those cases that do not

come back because they are now time-barred. Moreover, this

Court has already rejected the proposition that, under a

statutory exhaustion requirement, claimants must exhaust a

procedure that does not provide the relief they seek because

there is a chance they might settle for something else. See

Clayton, 451 U.S. at 693 (declining to require “useless gesture”

of exhaustion of a procedure that did not provide reinstatement).

Nyhuis states that where plaintiffs exhaust and then sue,

“there is still much to be gained” because the administrative

process “can serve to create a record for subsequent

proceedings, it can be used to help focus and clarify poorly pled

or confusing claims, and it forces the prison to justify or explain

its internal procedures.” 204 F.3d at 76. In fact, most prison

grievance sysiems are not conducted “on the record” in any

meaningful sense. This Court, in rejecting the notion that

forcing a prisoner through the administrative grievance

procedure would advance the interests of judicial economy and

efficiency, understood that

[nJo formal factfindings are made. The

paperwork generated by the grievance process

might assist a court somewhat in ascertaining the

facts underlying a prisoner’s claim more quickly

than if it has only a prisoner’s complaint to

review. But the grievance procedure does not

create a formal factual record of the type that

can be relied on conclusively by a court for

disposition ofa prisoner’s claim on the pleadings

or at summary judgment without the aid of

affidavits.

McCarthy v. Madigan, 503 U.S. at 155-56; see also Lynn S.

Branham, The Prison Litigation Reform Act’s Enigmatic

388, 410 (1971) (Harlan, J., concurring).

25

Exhaustion Requirement: It Means and What Congress

Courts, and Correctional Officials Can Learn From It, 86

Cornell L. Rev. 101, 134-35 (2000) (in press) (citing survey

showing that most grievance systems do not make a written

report in cases where the prisoner seeks relief the system does

not provide).*° Indeed, the Pennsylvania grievance procedure

makes all proceedings in the grievance system “inadmissible

before any court or other tribunal in support of any claim made

against the Commonwealth or any employee,” JA 51, thus

barring any fact-finding role that might benefit later judicial

proceedings. |

Another reason cited for requiring exhaustion is

“avoiding premature interruption of the administrative process

and giving the agency a chance to discover and correct its own

errors.” Nyhuis, 204 F.3d at 75. This is largely inapplicable to

prison disputes like this one, although it might be highly relevant

to agency decisions subject to administrative review in the usual

course of agency procedure, and later subject to judicial review

on the administrative record. There, the progression through

administrative process to court is integral to the entire statutory

scheme. But this is not such a case. Any proceeding in federal

court under § 1983 will be de novo, independent of prior

administrative proceedings. Conversely, a decision awarding

damages in Mr. Booth’s § 1983 case will in no way interrupt

any administrative process, reverse any completed administrative

process, or preclude the agency from discovering and correcting

its Own errors as it chooses.

The last reason cited by the Third Circuit is the notion

that a broad exhaustion rule, requiring prisoners to exhaust

procedures incapable of providing proper relief, will effect

improvements in the administrative scheme. See Nyhuis, 204

F.3d at 76-77. But as a matter of common sense, making

grievance exhaustion universal, even for claims that cannot be

resolved by the system, does not in any way “promote the

This article has been lodged with the Clerk.

26

efficacy of the administrative process.” In fact it does the

opposite; if prisoners have no choice but to use the procedure,

there is no incentive for officials to expand the scope of relief

available or to transform existing rudimentary procedures into

something fairer and more helpful both to the prisoner and to

the court in any subsequent litigation.

Finally, the policy concern that lurks, often unarticulated,

behind the argument that damage claimants should be required

to exhaust administrative procedures that cannot help them, is

the view that the large volume of prisoner litigation,” primarily

pro se, is mostly frivolous,” is an insupportable burden on the

"In fact, any belief that prisoners have become

progressively more litigious is contrary to fact. The growth in

prisoner litigation is largely accounted for by the growth in the

number of prisoners. From 1980 to 1995 (the last full year

before the PLRA was enacted), the total jail and prison

population in the United States increased from 501,886 to

1,577,842 (a 214% increase). The number of civil rights suits

filed by state and federal prisoners in federal courts increased

from 12,998 to 41,679 (a 221% increase). U.S. Dept. of

Justice, Bureau of Justice Statistics, Correctional Populations in

the United States, 1980-99, http://www.ojp.usdoj.

gov/bjs/glance/corr2.txt; John Scalia, Prisoner Petitions in the

Federal Courts, 1980-96 at 4, Table 3 (U.S. Dept. of Justice,

Bureau of Justice Statistics, October, 1997). Focusing on state

and local prisoners, one commentator found that the growth rate

of the state prison population between 1980 and 1995 (237%)

exceeded the rate of increase in the number of civil rights suits

filed by state and local prisoners combined (227%). Branham,

supra, 86 Cornell L. Rev. at 163 n. 257.

>24 major survey of federal court prisoner cases, done a

few years before the PLRA’s enactment, found that only 19%

of the cases sampled were dismissed as frivolous. U.S. Dept. of

Justice, Bureau of Justice Statistics, Challenging the Conditions

27

federal courts,” and must be curbed. This view is exaggerated,

of Prisons and Jails: A Report on Section 1983 Litigation at 20-

21 and Table 5 (n.d.).

PLRA’s legislative history contains reference to

frivolous cases involving the wrong kind of peanut butter and

the like, see, e.g., 141 Cong. Rec. $7524 (May 25, 1995)

(statement of Senator Dole), but detached examination has

suggested that such allegations are often no more than urban

legends. See Jon O. Newman, Pro Se Prisoner Litigation:

Looking for Needles in Haystacks, 62 Brooklyn L. Rev. 519,

520-22 (1996) (showing that descriptions by Attorneys General

of allegedly frivolous cases were “highly misleading and,

sometimes, simply false”); Jim Thomas, The “Reality” of

Prisoner Litigation: Repackaging the Data, 15 N.E. Journal of

Civil and Criminal Confinement 27, 29 (1989) (citing one

attorney general’s complaints about two atypical frivolous cases

“repeated by the media to convey to the public an image of

frivolousness”). In fact, the claims most frequently raised in

prisoner § 1983 suits concern physical security (21%) and

medical care (17%). Challenging the Conditions of Prisons and

Jails, supra, at 17.

*’Prisoner cases impose a considerably smaller burden

than their numbers might suggest; the above-cited summary

found that the vast majority of prisoner cases (74%) were

dismissed by the court without adversary proceedings, and

another 20% were dismissed on defendants’ motion or by

stipulation. Challenging th nditions of Prisons and Jails,

supra, at 19, Table 4. Only 3% required evidentiary hearings.

Id. at 20-21 and Table 6. Similarly, the Federal Judicial Center

has developed a case weighting system to measure “the different

amounts of time judges require to resolve various types of civil

and criminal actions.” Administrative Office of the United States

Courts, Judicial Business of the United States, 1999 Annual

Report of the Director, at 29, http:/Avww.usc»urts.

28

as shown in the preceding footnotes. Moreover, Congress

through the PLRA has enacted multiple, redundant measures

that make it more difficult for prisoners than other litigants to

file suit. The requirement that indigent prisoners proceeding in

forma pauperis pay partial filing fees initially, and the entire

filing fee and any award of costs eventually in installments, 28

U.S.C. § 1915(b), creates significant economic incentives not to

litigate. In addition, the “three strikes” provision, 28 U.S.C. §

1915(g), which bars prisoners from using in forma pauperis

procedures in most cases after they have had three dismissals as

frivolous, malicious, or failing to state a claim, further raises the

cost of filing non-meritorious litigation. In addition, new

provisions that extend initial screening and sua sponte dismissal

to cases (including fee-paid ones) that fail to state a claim or that

seek damages against immune defendants, as well as to

malicious and frivolous cases,” permit the early disposition of

even more prisoner claims. Thus, “[p]risoners generally have

everything to lose and nothing to gain by filing a frivolous

gov/judbus1999/contents.html. The average case weight is

approximately 1.0, id., but prisoner civil rights actions are

assigned much lower weights: 0.28 for state prisoner cases and

0.48 for federal prisoner cases, indicating that they require

substantially less of a court’s time than most other types of

cases. Federal Judicial Center, New Case Weights For

Computing Each District’s Weighted Filings Per Judgeship

(undated report).

“See 28 U.S.C. § 1915(e)(2) (providing for such

dismissals in all in forma pauperis cases); 28 U.S.C. § 191S5A

(providing for such dismissals, and requiring initial sua sponte

screening for that purpose, in all cases in which prisoners seek

relief against governmental agencies or personnel); 42 U.S.C. §

1997e(c)(1) (providing for such dismissals in any prisoner suit

concerning prison conditions).

29

lawsuit for monetary relief.”** In light of these provisions, it is

unfair to read PLRA to bar from court substantial constitutional

claims because the litigants failed to pursue an administrative

remedy that could not have resolved those claims.

This case is about whether Mr. Booth, having failed to

exhaust a system that could not resolve his claim, should be

barred from court. And ultimately, when the courts refuse to

hear particular types of claims, “we implicitly express a value

judgment on the comparative importance of classes of legally

protected interests.” Bivens, 403 U.S. at 411 (Harlan, J.,

concurring). Mr. Booth’s claim, alleging that prison staff

“punched him in the face, threw cleaning material in his face,

shoved him into a shelf, and tightened and twisted his handcuffs

in such a manner as to injure him,” App. Pet. Cert. 2a, is one

that strikes at the heart of the values protected by the Bill of

Rights. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“When

prison officials maliciously and sadistically use force to cause

harm, contemporary standards of decency always are violated”).

Amici therefore respectfully submit that Mr. Booth should be

allowed the chance to prove his claims and recover damages,

notwithstanding his failure to complete the futile exhaustion of

a remedy that could not have helped him.

CONCLUSION

The judgment of the court of appeals should be reversed.

**Branham, supra, 86 Cornell L. Rev. at 137.

30

—_— ee

Respectfully submitted,

David C. Fathi*

Elizabeth Alexander

Margaret Winter

National Prison Project of the

American Civil Liberties Union Foundation

1875 Connecticut Ave. N.W., #410

Washington, DC 20009

202 234-4830

Daniel L. Greenberg

John Boston

Milton Zelermyer

The Legal Aid Society

Prisoners’ Rights Project

90 Church Street

New York, NY 10007

212 577-3530

Alphonse A. Gerhardstein

Prison Reform Advocacy Center

617 Vine Street, #1428

Cincinnati, OH 45202

513 421-1108

*Counsel of Record

December 2000

APPENDIX 1

PRISON AND JAIL GRIEVANCE PROCEDURES CITED

Colorado Department of Corrections, Regulation No. 850-04,

October 1, 2000

Georgia Department of Corrections, Standard Operating

Procedures, Reference No. I[B05-0001, January 1, 1996

Hawaii Department of Public Safety, Policy No. 493.12.03,

April 3, 1992

Kentucky Corrections, Policy No. 14.6, December 17, 1998

Metro Dade (Florida) Department of Corrections and

Rehabilitation, D.S.0.P. No. 15-001, January 9, 1995

Minnesota Department of Corrections, Division Directive No.

303.100, March 1, 2000

Mississippi Department of Corrections, Policy No. DOC 20.08,

August 15, 1998

Montana Department of Corrections, Policy No. DOC 3.3.3,

April 1, 1997

City of New York Department of Correction, Inmate Grievance

Form 7101-5, June 1985

Ohio Department of Rehabilitation and Correction,

Administrative Rule 5120-9-31, June 1, 1987

Ohio Department of Rehabilitation and Correction, Policy No.

203-01, May 23, 1997

Ohio Department of Rehabilitation and Correction, Policy No.

203-02, December 26, 1996

Ohio State Penitentiary Inmate Handbook, June 2000

Oklahoma Department of Corrections, OP-090124, June 28,

1998

Rhode Island Department of Corrections, Policy No./13.10

DOC, May 20, 1996

Tennessee Department of Correction, Administrative Policies

and Procedures, Index #501.01, March 15, 2000

Texas Department of Criminal Justice, Offender Grievance

Operations Manual, Appendix E, September 2000

Utah Department of Corrections, Institutional Operations

Division Manual, Chapter FDr02, January |, 1986, Revised

September 1, 1994

Virginia Department of Corrections, DOP 866, November 20,

1998

Wallens Ridge State Prison (Virginia), Warden’s Directive,

Implementation of DOP 866, March 26, 1999

Washington Department of Corrections, Policy and

Procedures Manual, Offender Grievance Program, FAC-1 10,

FAC-120, May 1, 1999.