Amicus Curiae Brief — Booth v. Churner

\\) “Supreme Oourt US

FILED

oe ie,

In The Supreme Court Of The United States

TIMOTHY BOOTH

Petitioner

Vv.

C. O. CHURNER, et al.

Respondents

BRIEF OF 50 STATES AND TERRITORIES

AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENTS

BETTY D. MONTGOMERY

Attorney General of Ohio

STEPHEN P. CARNEY*

Associate Solicitor

*Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17" Floor

Columbus, Ohio 43215

(614) 466-8980

BILL PRYOR

Attorney General

State of Alabama

BRUCE M. BOTELHO

Attorney General

State of Alaska

JANET NAPOLITANO

Attorney General

State of Arizona

MARK PRYOR

Attorney General

State of Arkansas

BILL LOCKYER

Attorney General

State of California

KEN SALAZAR

Attorney General

State of Colorado

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

M. JANE BRADY

Attorney General

State of Delaware

ROBERT R. RIGSBY

Attorney General

District of Columbia

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

THURBERT E, BAKER

Attorney General

State of Georgia

JOHN F. TARANTINO

Attorney General

Territory of Guam

EARL I. ANZAI

Attorney General

State of Hawaii

ALAN LANCE

Attorney General

State of Idaho

JAMES E. RYAN

Attorney General

State of Illinois

KAREN FREEMAN- WILSON

Attorney General

State of Indiana

THOMAS J. MILLER

Attorney General

State of lowa

CARLA J. STOVALL

Attorney General

State of Kansas

ALBERT B. CHANDLER III

Attorney General

Commonwealth of

Kentucky

RICHARD P. IEYOUB

Attorney General

State of Louisiana

G. STEVEN ROWE

Attorney General

State of Maine

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

JENNIFER M. GRANHOLM

Attorney General

State of Michigan

MIKE HATCH

Attorney General

State of Minnesota

MIKE MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

MIKE MCGRATH

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PHILIP T. MCLAUGHLIN

Attorney General

State of New Hampshire

JOHN J. FARMER, JR.

Attorney General

State of New Jersey

PATRICIA A. MADRID

Attorney General

State of New Mexico

ELIOT SPITZER

Attorney General

State of New York

ROY COOPER

Attorney General

State of North Carolina

WAYNE STENEHJEM

Attorney General

State of North Dakota

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

SHELDON WHITEHOUSE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attorney General

State of South Dakota

PAUL G. SUMMERS

Attorney General

State of Tennessee

JOHN CORNYN

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

MARK L. EARLEY

Attorney General

Commonwealth of Virginia

IVER A. STRIDIRON

Attorney General

Territory of Virgin Islands

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

GAY WOODHOUSE

Attorney General

State of Wyoming

QUESTION PRESENTED

Whether 42 U.S.C. § 1997(e), as amended by the

Prison Litigation Reform Act, requires a prisoner to exhaust

administrative remedies before bringing a federal action,

where the prisoner seeks only monetary damages in the

lawsuit and the administrative scheme does not provide for

an award of such damages.

ii

TABLE OF CONTENTS

PAGE

CPRTESS SPR IeN B PRRUDIOE SE BORA sv ccnssconsenestenecssinseneavenseereiennsnnapansseens i

EPR SR FAS TED IERE 8 MRS steer nescsinninsnnhsbncssbeiesnnnnnennienagueate ill

STATEMENT OF AMICI INTERES T ....reccsscosssssccscssssososssee I

PUL EFRRS COE ACUMEN SD seccsnonscustncatonssncessentasenscsnnnonsaes 4

PEARED cinessscncsseveesstensniareccsatsnmntnsaanGanseacaninseaeesnnth 6

I. The PLRA’s Plain Language Mandates

Exhaustion of All Available Remedies,

Regardless of the Remedy’s “Adequacy” or a

Prisoner's SuBlective PreverenCes........c0cessrssevsessseseves 6

A. Grievance Systems are “Available” to

“Remedy” Deficient Prison Conditions

Regardless of Whether They Satisfy

The Grievant’s Personal Demands ................. 7

B. Administrative Remedies Are

“Available” to “Remedy” Disputes Far

More Effectively Than Litigation................. 13

II. The Goals and Structure of the PLRA Show

That Congress Did Not Intend To Expedite

Damage Cases by Excusing Exhaustion.............000+ 16

CFL AI ITN sccsnnsnransentssanehennbisnentinsnabiedebencccienseseunianiialad 19

FF ee PP hire sen canrensesersrnisrasonsniainianetniinaeeaeeaaaandania A-1

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TABLE OF AUTHORITIES

PAGE

Cases

Coit Independent Joint Venture v. FSLIC,

489 U.S. 561 (1989)............ peariibnapenehaenideténiecton 4,6

McCarthy vy. Madigan,

503 U.S. 140 (1992)... .ssseccssssssssssesesess..., 5, 6, 16

Patsy v. Florida Board of Regents,

OOF OUD oo cic csssitussrassecicss 6, 16

Prieser v. Rodriguez,

batali ccactuid ‘ag. CO TLE l

Procunier v. Martinez,

biadhad as hai joka l

Sandin v. Conner,

PRD SS RITA) icssssscrssseibisessasssceosccs.c... a

Weinberger v. Salfi,

422 U.S. 749 (1975)......... haepretebbGhbahabibtestvendiumeuaesd 6

Statutes, Regulations, and Legislative Materials

ein teh eet gd, Oe TENE LRG 18

28 U.S.C. §§ 1915(a) and Ris setindbeinticteinici 14

PB Tas BLP IOD vsssssnenssssanesasesicodee. co. c: passim

bondoyr aad bi becsbstgn gfe, 18

eadheact habeas, dass RO 19

Ohio Admin. Code § 5120-9-02 ............sscssssssssseserees 2

Ohio Admin. Code § 5120-9-03 ...........esseseeeees whine 2

Ohio Admin. Code § 5120-9-06 ..............ccccccvesresssseees 2

Ohio Admin. Code § 5120-9-07 ..........:scssssssressseeenees 2

Ohio Admin. Code § 5120-9-08 ..............ccccccssssssssseees 2

Ohio Admin. Code § 5120-9-09 ...........cssscssssessseeseees 2

Ohio Admin. Code § 5120-9-19 0... cecsssssseesssseeeeees 2

Ohio Admin. Code § 5120-9-30...............cccccsccccccseeeees 2

141 Cong. Rec. $7527 (daily ed., May 25,

OAD snicesbansecdeecebincetnninsidiaillei iionianabteminadictoelaeti 18

141 Cong. Rec. S 14417-14418 (daily

105 Ss Foy Tt eeriiantidnnciaineinntonnein 17

141 Cong. Rec. S 14627 (daily

Fk CD wskteiiisnecsvtcnemntcinnnintniasiiiagionn 18

141 Cong. Rec. H14105 (daily

OG. ERG, G, TDR ssenetis sonssicesoniseneersanenesomnicsensnes 18

141 Cong. Rec. S 18296 (daily

5 Res Sie Fe i aknhnctcniiscinstininetienmnniedanonaidae 18

Prison Litigation Reform Act, P.L. No.

SUPER A TIA Dcsocachonieniieshenbetmennens ..passim

Religious Land Use and Institutionalized

Persons Act of 2000, P.L. 106-274............:csessees 2

Miscellaneous

S. Brakel, Administrative Justice in the

Penitentiary: A Report on Inmate Grievance

Procedures, 1982 Am. Bar Found. Res. J.

8 hc Ae EE cvingractneninitelindieicseiabaudadumnkeentvaniiaienh 10

A. Breed, /nstituting California's Wara srievance

Procedure: An Inside Perspective 10 Loyola

Pid Bates EES CR TR escicicvsssisencmeviennseniioninnenen 11

ee eae

A. Champagne and K. Haas, The Impact of

Johnson v. Avery on Prison Administration,

43 Tenn. L. Rev. 275 (1976)..sescccveessseeesesss..,....,. 15

G. Cole and J. ‘Silbert, Alternative Dispute-

Resolution Mechanisms for Prisoner

Grievances, 9 Justice System Journal 306,

Pen siiessinsibienincipoceeihchbibipinladac inc. 10, 14

G. Cole, R. Hanson, and J. Silbert, Alternative

Dispute Resolution Mechanisms for Prisoner

Grievances (National Institution of Corrections,

U.S. Dept. of Justice, Mo a Oe METER 12, 13, 15

Criminal Justice Institute, Inc., The C orrections

Yearbook-1999 (| TP ieraliicuniiipaiteiat Ci. l

Denenberg & Denenberg, Prison Grievance

Procedures, Corrections Magazine,

January/February 1975 .o....ccecsecsessessosess..... passim

D. Dillingham and L. Singer, Complaint

Procedures in Prisons and Jails: An

Examination of Recent Experiences

(National Institute of Corrections, U. S.

Dept. OF TUstice, 19B0).......ccsscesseessvesseossessee,...... 13

R. Doumar, Prisoner Cases: F eeding the Monster

in the Judicial Closet, 14 St. Louis U. Pub. L.

sai dogg ig: ne 14

FY 2000 Annual Report of the Inmate

Grievance Procedure (Ohio Department

of Rehabilitation and Correction 2000) ....2, 12, 13

vi

Grievance Mechanisms in State Correctional

Institutions and Large City Jails (General

Accounting Office, June 17, 1977)........cecsseeeees 2

A Guide to Certification of Inmate Grievance

Procedures Pursuant to the Civil Rights and

Institutionalized Persons Act (Federal

Bureau of Prisons, U. S. Dept. of Justice, ;

TIFIED wx icinsenernsiniianieanatansinnsiesipmanpaneinisnbieiabaniteeae 14

R. Hanson and H. Daley, Challenging the

Conditions of Prisons and Jails: A Report

on Section 1983 Litigation (Bureau of

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

PD SP aceiscasteinintaninaetinasneniateiianiibnhininidins 12, 14

Inmate Grievance Program: Annual Report,

1999 (New York Dept. of Correctional

TCR, TOD scacesinctercnvctinnsionnenininntins 12, 13, 14

Inmate Grievance Program Semiannual

Report January-June 2000 (New York

Department of Correctional Services

EID cilisctinssiniiiiicdimenshanmilituininiilinininaininiaiitins a, 04, 2

J. Hepburn and J. Loue, Resolution of Inmate

Grievances as an Alternative to the Courts,

35 Arbitration L. J. 11, 12 (1980)....................... 15

Managers Need Comprehensive Systems for

Assessing Effectiveness and Operation of

Inmate Grievance Systems (General

Accounting Office, October 17, 1977) ......... 10, 11

ts

Vii

V. McArthur, Inmate Grievance Mechanisms:

A Survey of 209 American

Prisons, 38 Fed. Probation

41, 44 (December og CTL. ieisibiidientanibeslia 10

L. Mecham, Judicial Business of the United States

Courts: 1997 Report (Administrative Office of the

United States Courts 1998) ......ceccccccsssssseeecosssss...., 14

Offender Grievance Program Annual Report

1998 (Washington Department of

wean ncaa sing 2,14

Prison Reform: Enhancing the Effectiveness of

Incarceration, Hearing before the J udiciary

Committee of the United States Senate, 104"

Cong... 2° Sees. (1995) cccssscssssesessvesissossace.. 17

S. Russo, State Prisoners and the Exhaustion of

Administrative Remedies: Section ] 983

Jurisdiction and the Availability of Adequate

State Remedies, 7 Seton Hall L. Rev. 366

“slag co EE TS Ee 3

Webster’ s Third New International Dictionary

[Fa Piteiienmsihbdiinanthieinianeiasinbasiieritesesiecsic passim

STATEMENT OF AMICI INTEREST

The 50 amici States and Territories write because the

Petitioner’s analysis has the potential to further complicate

one of the most difficult tasks consigned to state

government—the operation of safe and well-ordered prisons,

That analysis, if accepted, would drastically undercut the

utility of inmate grievance Systems, one of the key tools

available to States in fulfilling that legal, and humane, duty.

Moreover, it would do so at a time when States need all the

help they can get to respond to an increasingly complex

correctional environment.

State governments operate 1,328 prisons. Criminal

Justice Institute, Inc., The Corrections Yearbook-] 999, 66-67

(1999). The difficulties in doing so “are complex and

intractable . . . requir[ing] expertise, comprehensive planning,

and the commitment of resources, all of which are peculiarly

within the province of” corrections professionals. Procunier

v. Martinez, 416 U.S. 396, 405 (1974). “The relationship of

State prisoners and the state officers who supervise their

confinement is [] intimate,” with “prisoners eating, sleeping,

dressing, washing and working under the watchful eye of the

State.” Prieser v. Rodriguez, 411 U.S. 475, 492 (1973). State

correctional agencies are responsible for a dazzling array of

operations, being forced into the role of landlord, employer,

tailor, doctor, banker, educator and cook. The potential for

mistake, and conflict, is both pervasive and unavoidable, and

corrections officials need every tool at their disposal to limit

those problems.

Inmate grievance systems are one of the States’ most

important tools in prison management. As detailed below,

those remedies serve as “early warning systems” for

problems big or small; they highlight operational problems to

be addressed before serious harm occurs. They also provide

2

far more efficient alternatives to litigation for resolving

disputes, allowing disputing parties to focus on solutions

rather than litigation tactics.

Given those functions, it is not surprising that the

States have devoted significant effort to developing effective

grievance systems. Almost every state has adopted some sort

of system that allows prisoners te voice complaints generally.

Others have supplemented those with more specific remedies

addressing frequently litigated disputes such as staff

misconduct, disciplinary matters, access to publications, and,

as will become increasingly important following the

enactment of the Religious Land Use and Institutionalized

Persons Act of 2000, P.L.106-274, _ religious

accommodations. See, e.g., Ohio Admin. Code §§ 5120-9-02

and 03 (use of force); 5120-9-06 through 09 (disciplinary

matters); 5120-9-19 (publications); ODRC policy 309-01

(religion). Further, the States make systematic efforts to

review inmate grievances in order to discern areas where

improvements are needed. See, e.g., Ohio Admin. Code §§

5120-9-30 (D)(5) through (7); 5120-9-31(1) and (L); FY 2000

Annual Report of the Inmate Grievance Procedure (Ohio

Department of Rehabilitation and Correction 2000) (lodged

with the Court); Inmate Grievance Program Semiannual

Report-January-June 2000 (New York Department of

Correctional Services 2000) (lodged with the Court);

Offender Grievance Program Annual Report 1998

(Washington Department of Corrections 1999). Broad

coverage has long been a key design principle for such

systems, for, as the General Accounting Office recognized

more than two decades ago, a successful grievance system

“must be applicable to as broad a range of issues as

possible.” Grievance Mechanisms in State Correctional

Institutions and Large City Jails, 2 (General Accounting

Office, June 17, 1977).

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3

Unfortunately, Petitioner’s view will produce exactly

the opposite result and undermine the States’ very significant

efforts in this area, It would allow prisoners to ignore

administrative remedies whenever they seek damages that are

not available. That reading of § 1997e(a) creates an exception

that effectively abrogates the statute’s general rule because

almost all prisoners seek damages, and very few States have

grievance systems that authorize damages for anything other

than the loss of personal Property. That approach would have

palpable effects inside prison walls:

[I] f a prisoner may circumvent state

agencies by bringing a section ] 983 action,

corrections personnel may not become

aware of, and hence may not be able to

rectify, administrative deficiencies until

federal litigation is commenced ... Rather

than have state policymakers determine the

appropriate reform, the federal judiciary

interposes its own judgment.

* * *

Although this might benefit the individual

prisoner bringing the action, problems

affecting the entire prison population may

remain unresolved.

S. Russo, State Prisoners and the Exhaustion of

Administrative Remedies: Section 1983 Jurisdiction and the

Availability of Adequate State Remedies, 7 Seton Hall L.

Rev. 366, 392 and n.148 (1976) (emphasis added). Thus, the

amici States submit this brief to Protect the integrity of these

early warning systems, for the benefit of the States and,

ultimately, for the benefit of the inmates themselves.

4

SUMMARY OF ARGUMENT

Exhaustion here is a matter of Congressional intent,

because when “Congress specifically mandates, exhaustion is

required.” Coit Independent Joint Venture v. FSLIC, 489

U.S. 561, 579 (1989). 42 U.S.C. § 1997e(a) broadly

mandates that “[n]Jo action shall be brought with respect to

prison conditions...until such administrative remedies as are

available are exhausted,” without regard to the type of relief

sought. Petitioner Booth claims that prisoners should be

allowed to bypass exhaustion if an administrative forum will

not satisfy individual prisoners’ demands for damages, and

he claims that dictionary definitions of “available” and

“remedy” support his view. But Petitioner’s allegedly

“plain” reading is not truly an objective one, as it is premised

upon reading the terms solely from the inmate’s subjective

viewpoint. Petitioner thus converts the term “available” into

“available in the way I like.”

By fixating on the subjective desires of individual

prisoners, Petitioner ignores the fact that intra-prison dispute

resolution systems have been objectively shown to be

“available” to help States detect and “remedy” deficiencies in

their prisons, and that they do so without regard to the

provision of damages. He also overlooks the fact that

grievance systems are “available” to provide far more

effective “remedies” than litigation for resolving the disputes

that underlie prisoner lawsuits, and that they serve that

function independent of damage awards. Thus, the plain

language, when read from an overall viewpoint of the

prisoner-plaintiff, the warden and _ staff, the inmate

population, and any other stakeholders, shows that the Third

Circuit’s construction of § 1997e(a) fits easily within

dictionary definitions and should be affirmed.

mS

Almost as importantly, the Petitioner overlooks

strong evidence in the legislative history of the Prison

Litigation Reform Act (“PLRA”) that Congress did not aim

to expedite damage actions when it revised § 1997e(a).

Congress was far more concerned with making “available” to

the States “remedies” to limit the unreasonable operational

constraints and costs that resulted from elevating prisoner-

plaintiffs’ often supra-constitutional desires over legitimate

penological concerns. Indeed, other PLRA provisions

expressly discouraged damages in prisoner cases,

undercutting Petitioner’s insistence that Congress intended to

excuse exhaustion if such relief is not available. Those

broader indicia of Congress’s intent expose the fallacy of

Petitioner’s narrow focus on the subjective pecuniary

interests of particular plaintiffs.

In short, the plain language of § 1997e(a) objectively

mandates exhaustion, without reference to an individual

prisoner’s subjective desires, because grievance systems are

“available” to “remedy” substandard prison conditions, and

they do so more effectively than litigation, without regard to

their ability to provide damages. The Third Circuit’s

thorough analysis “gave appropriate deference to Congress’s

power to prescribe the basic remedial scheme under which a

claim may be heard in a federal court,” McCarthy y.

Madigan, 503 U.S. 140, 144 (1992), and it should be

affirmed.

6

ARGUMENT

he The PLRA’s’ Plain Language Mandates

Exhaustion of All Available Remedies, Regardless

of the Remedy’s “Adequacy” or a Prisoner’s

Subjective Preferences.

Unlike many other exhaustion requirements, which

are often judge-made prudential doctrines, the requirement at

issue here was dictated by Congress. Because Congress has

mandated exhaustion, the requirement must be enforced.

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

Florida Bd. of Regents, 457 U.S. 496, 502 n.4 (1982);

Weinberger v. Salfi, 422 U.S. 749, 766-767 (1975); Coit

Independence Joint Venture v. F.S.L.1.C., 489 U.S. 561, 580

(1989). And in this case, Congress not only adopted an

exhaustion statute, but it went back and amended an existing

one to make it both all-inclusive and compulsory.

The PLRA_ converted an _ optional-exhaustion

provision into a mandatory one, and it took away a judicial

inquiry into the “adequacy” of an administrative remedy.

The previous version simply allowed courts to require

exhaustion if “appropriate,” and even then only if the remedy

was “plain, speedy, and effective.” Now, the plain text of §

1997e(a) does not expressly condition exhaustion on judicial

review of a remedy’s adequacy—i.e., whether a remedy is

“plain, speedy, and effective’—so it seems unlikely that

Congress meant nevertheless to preserve such an inquiry, let

alone loosen it so that exhaustion turns not on some objective

adequacy, but on a prisoner’s personal choice to name the

type of relief he desires. Yet Petitioner’s view would add

both conditions, as his reading of the terms “remedy” and

“available” would not only revive the expressly-deleted

adequacy inquiry, which would be bad enough, but it goes

one step further. His view opens the door to allowing a

7

prisoner to decide for himself what relief he would like, and

to forgo an otherwise available remedy in favor of what

Petitioner calls “the remedy the prisoner seeks.” See

Petitioner’s Brief (‘Pet. Br.”) at 13.

That attempt to implant qualifications where none

exist fails under its own terms. As experience gained over

three decades has shown, intra-prison dispute resolution

mechanisms are indeed “available” to “remedy” deficient

prison conditions, and they do so more effectively than

lawsuits, regardless of whether they provide damages.

A. Grievance Systems are “Available” to “Remedy”

Deficient Prison Conditions Regardless of

Whether They Satisfy The Grievant’s Personal

Demands.

All parties and amici agree, of course, that a prisoner

must exhaust an “available remedy,” as that is what the

Statute plainly says. We part ways on defining what

constitutes a “remedy” and how to determine if one is

“available.”

The amici States submit that a remedy is available if

it addresses the problem that a prisoner raises. It may not

address it to his full satisfaction, or not to his satisfaction at

all. In the unique context of prisons, however, a situation

may be “addressed” in the broader sense—e.g., conditions

may be changed for the populace; a guard may be disciplined

or fired—even if it admittedly gives little solace to the

grieving inmate. Better still, many inmates who initially

“demand” damages may decide that they are satisfied once

they actually see operational changes in action. Congress

knew that prison-conditions complaints reflect ongoing

institutional concerns, and that every inmate’s complaint

may, if legitimate, be a symptom of a larger problem. It is in

8

this context that it required prisoners to invoke “available

remedies,” and it is in this context that the plain words make

sense. In essence, the terms “available” and “remedy” should

be defined objectively, not solely from the prisoner-

plaintiff's subjective viewpoint.

By contrast, Petitioner’s view of “availability,”

although couched in terms of “plain language,” is built on a

far narrower view of the problem needing to be addressed,

one limited to the prisoner’s short-term view of “what’s in it

for me?” Outside the prison walls, plaintiffs sometimes wish

to “change the system,” but most plaintiffs simply want what

they want—for themselves. But prisons are different. Every

challenge raised is, on some level, a challenge to the system,

and calls out for an institutional response. To an individual

prisoner, an allegation of excessive force by a guard may be a

past event, calling for compensation only. But to the State,

and to other inmates under that guard’s supervision, there is

still a problem to remedy: the guard, if guilty as charged,

must be disciplined, re-trained, or fired. But at every turn,

Petitioner’s argument is explicitly or implicitly premised on

ignoring that overarching concern in favor of his own

particular pecuniary interests. To be sure, the prisoner is the

complainant, and his view does matter. But restoring the

broader context of other viewpoints, those of the individual

claimant and other affected persons alike, shows why

Congress’s words must encompass the broader reading of

“available remedy.”

For example, Petitioner claims that dictionary

definitions of “available” and “remedy” require the

conclusion that remedies are not available if they do not

provide the damages that a prisoner seeks. Pet. Br. at 15-16,

citing Webster’s Third New International Dictionary (3" ed.

1993). Webster’s defines a “ remedy” as a “means to ...

prevent or redress [ ] a wrong,” id. at 1920, and “available”

9

as “having sufficient power or force to achieve an end...

capable of use for accomplishment of a purpose,” id. at 150.

But reading these definitions simply begs the question: what

“wrong” must be righted; what “purpose” should be

“accomplished?” If the purpose of grievance systems is

writing checks to inmates, then Petitioner has a point. But

his argument collapses if we simply recognize that the

purpose to be accomplished, from both a prisoner’s and the

States’ perspective, is achieving better prison conditions.

This recognition is not a gloss on the text, but is simply a

common-sense way of directly reading that text and one that

is far more consistent with the overall thrust of the PLRA, as

discussed below. Approached in this way, the better reading

of the plain text is that a remedy is available when it

addresses the problem in some way. |

Even if both views were equally valid textual

readings, Petitioner’s subjective view must be rejected, as a

prisoner’s view of preferred remedies could almost always

evade the exhaustion requirement. An inmate could evade

exhaustion by demanding compensatory damages, punitive

damages, or whatever else is not on the administrative menu.

Even in the purely injunctive context, an inmate could insist

on a particular policy change, even if challenged policy is set

by statute, so that the administrative body cannot specifically

“provide the remedy that the prisoner seeks,” see Pet. Br. at

13, even if an equally serviceable remedy is undoubtedly

available. Indeed, even if a grievance system pays money

damages, a prisoner could conceivably insist that he does not

want the State’s money, but that he instead seeks to force a

particular individual defendant to pay up. Such absurd

results are not steps on a slippery slope, we submit, but are

merely applications of a purely subjective “what does the

inmate seek?” approach.

i

10

In contrast, the States’ approach starts as well with

the dictionary definition of-available, and we then look to

empirical evidence to see if prison grievance systems

“hav[e] sufficient power to achieve an end” (see above at 8,

citing Webster’s)—with that end being resolution of prison

problems. That empirical research, along with current

practice, confirms that administrative remedies do achieve

that end, even though very few provide for damages.

Correctional managers use those systems as early warning

devices “periodically reviewing the grievances to identify

patterns, to anticipate problems and to formulate policies and

procedures that respord to them.” S. Brakel, Administrative

Justice in the Penitentiary: A Report on Inmate Grievance

Procedures, 1982 Am. Bar Found. Res. J. 111, 129

(1982)(emphasis added).

Extensive literature on the topic is consistent in

noting that such systems “have been found useful as a

management tool” and that “by attentive monitoring of the

complaint process, wardens and commissioners can discern

patterns of inmate discontent that may warrant activities to

prevent development of more serious problems.” G. Cole and

J. Silbert, Alternative Dispute-Resolution Mechanisms for

Prisoner Grievances, 9 Justice System Journal 306, 315

(1984) (emphasis added). Accord, Denenberg & Denenberg,

Prison Grievance Procedures, Corrections Magazine,

January/February 1975 at 34, 36, 41, 51 (citing examples in

the federal, Maryland and California prison systems);

Managers Need Comprehensive Systems for Assessing

Effectiveness and Operation of Inmate Grievance Systems

(General Accounting Office, October 17, 1977) 2-3 (citing

examples from the federal and New York systems). Indeed,

that vital impetus for self-correction was a primary reason

that administrators initially implemented grievance systems.

V. McArthur, /nmate Grievance Mechanisms: A Survey of

i

209 American Prisons, 38 Fed. Probation 41, 44 (December

1974),

A typical example is found in the most recent review

of New York’s grievance system. That review identified

problems with law library and inmate payroll operations and

provided valuable feedback on the efficacy of solutions to

previously identified problems in the delivery of medical

care, mail handling, visiting procedures and the observance

of therapeutic diets. Inmate Grievance Programs:

Semiannual Report January-June 2000 (New York

Department of Correctional Services 2000) 11, 13, 14, 15,

27. Those results are not atypical, but are consistent with

both the earliest research on inmate grievance systems and

responses to an informal inquiry made within the last sixty

days. A 1975 study noted that inmate grievance systems

resulted in changes to mail, library, transfer, grooming

standards, medical care and property policies. Denenberg &

Denenberg, supra, at 34, 36-37, 51, 61-62. Studies in 1976

and 1977 identified grievance-driven changes to

correspondence, vehicle safety, telephone access and

vocational training policies. A. Breed, Instituting

California's Ward Grievance Procedure: An _ Inside

Perspective, 10 Loyola (L.A.) L.R. 113, 118-120 (197);

Managers Need Comprehensive Systems for Assessing she

Effectiveness and Operation of Inmate Grievance

Mechanisms (General Accounting Office, October 17, 1977)

2-3.

Inquiries made contemporaneously with this brief

have revealed that operational practices continue to be

changed in response to prisoners’ grievances. Ohio, for

example, has most recently followed that pattern by, among

other things, making medical and dental care more quickly

available, responding favorably to prisoners’ requests for

more effective countermeasures against contraband, and

]2

reducing the amount of time inmates must spend in

“jockdown”™ status, all in response to prisoner grievances.

See Appendix.

Grievance systems serve another purpose as well: to

provide a means to enforce even-handed application of

existing policies. Most States have developed system-wide

policies intended to minimize tension between “staff on the

front line” and “prisoners hostile to the authoritarian structure

of the prison environment.” Sandin v. Conner, 515 U.S. 472,

482 (1995). Deviation from those standards can result in

increased tension that is often difficult for top management to

detect in this age of multi-facility prison systems. Inmate

grievance systems are a key way of detecting, and dealing

with, such potentially inflammatory deviations, a way that is

far more effective than litigation. Compare FY 2000 Annual

Report of the Inmate Grievance Procedure (Ohio Department

of Rehabilitation and Correction, 2000) 5 (22.76% of use of

force/inappropriate supervision grievances resolved in favor

of inmate); G. Cole, R. Hanson, and J. Silbert, Alternative

Dispute Resolution Mechanisms for Prisoner Grievances

(National Institution of Corrections, U.S. Dept. of Justice

1984) 34 (26% success rate for prisoners’ complaints about

staff misconduct) with R. Hanson and H. Daley, Challenging

the Conditions of Prisons and Jails: A Report on Section

1983 Litigation (Bureau of Justice Statistics, U.S. Dept. of

Justice, 1995) 19, Table 4 (6% success rate in prisoner civil

rights suits). Once again, that empirical research is consistent

with operational experience. For example, New York has

recently learned of, and corrected, deviations from existing

policies through the monitoring of administrative complaints.

Inmate Grievance Program: Annual Report 1999, (New

York Dept. of Correctional Services, 1999) 22; Inmate

Grievance Programs: Semiannual Report January-June

2000, supra, at 13.

13

In sum, inmate grievance Systems are “available” to

“remedy” deficiencies affecting many prisoners, regardless

of whether they will Satisfy any individual prisoner's desire

for damages. Research and practical experience proves that

they are effective “means to ... prevent or redress [ ] a

wrong” and are “capable of use for accomplishment of”

significant purposes,” even if they do not provide damages to

individual prisoner-plaintiffs. .

B. Administrative Remedies Are “Available” to

“Remedy” Disputes Far More Effectively Than

Litigation. -

Even for one complaining prisoner, a grievance

System works to “accomplish” very “capabl[y]” another

important “purpose,” Webster's Third New International

Dictionary, supra, at 150, namely, the efficient resolution of

disputes. They are quite effective in that regard, with three

decades of research consistently finding that between twenty

to forty percent of inmate complaints are “remedied” in favor

of inmate grievants. Denenberg & Denenberg, Prisoner

Grievance Procedures, Corrections Magazine,

January/February 1975 34, 36, 51; D.Dillingham and

L. Singer, Complaint Procedures in Prisons and Jails: An

Examination of Recent Experiences (National Institute of

Corrections, U.S. Dept. of Justice, 1980) 34, Chart 2;

G. Cole, _R.Hansen, J. Silbert, Alternative Dispute

Resolutions for Prisoner Grievances (National Institute of

Corrections, U.S. Dept. of Justice, 1984) 34, 53; Inmate

Grievance Program: Annual Report, 1999, supra, at 5; FY

2000 Annual Report of the Inmate Grievance Procedure,

supra, at 5. This success is shown not only by the

percentages, but also by the raw numbers. For example, the

State of Washington resolved 12,812 complaints in favor of

inmates in 1998, and New York’s grievance system resolved

18,178 disputes in favor of prisoners in 1999, many of which

14

would have otherwise ended up in court. Offender Grievance

Program Annual Report 1998 (Washington Department of

Corrections 1999) 9; Inmate Grievance Programs: Annual

Report 1999, supra, at 2 and App. 4, p. 53. Indeed, the

number of prisoner suits had significantly declined when

resort to administrative remedies was required before the

current version of § 1997e(a) was adopted, and that pattern

accelerated after Congress further tightened § 1997e(a).

Denenberg & Denenberg, supra, at 41; R. Doumar, Prisoner

Cases: Feeding the Monster in the Judicial Closet, 14 St. Louis

U. Pub. L. Rev. 21 (1994); L. Mecham, Judicial Business of

the United States Courts: 1997 Report 131-32, Table C-2A

(Administrative Office of the United States Courts 1998)

(noting 31% decline in prison cases after PLRA enacted).

Moreover, those administrative resolutions are

reached far more efficiently than they would be through

litigation. While an average single-issue prisoner case takes

268 days to resolve in federal district court, most grievance

systems resolve them in far less time. J/nmate Grievance

System: Annual Report 1999, supra, 5 (72 days, including all

appeals); A Guide to Certification of Inmate Grievance

Procedures Pursuant to the Civil Rights and Institutionalized

Persons Act (Federal Bureau of Prisons, U.S. Dept. of

Justice, 1995) (maximum acceptable time, including appeals,

is 180 days); R. Hanson and H. Daley, Challenging the

Conditions of Prisons and Jails: A Report on Section 1983

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

1995). They are also far more cost-effective. It takes an

average of $1200 to $1500 to litigate a prisoner’s grievance.

But the average cost of resolving it administratively is $166.

G.Cole and J.Silbert, Alternative Dispute-Resolution

Mechanisms for Prisoner Grievances, 9 Justice System

Journal 306, 308 n.1, and 315 (1981).

natalia ‘ake Enc

———s

15

That efficiency benefits both inmates and the States.

Administrative remedies save both time and money; they cost

prisoners nothing, in contrast to mandatory filing fees in

most state and all federal courts. See, e.g. 28 U.S.C.

§§ 1915(a) and (b); Ohio Rev. Code § 2169.22. Further,

while courts often lack both the resources and expertise to

fully resolve legitimate complaints, grievance systems do in

fact effect needed changes. Their conclusions are “more

carefully obeyed than a court order because the Department

could easily discipline subordinates who refuse to follow

[their] directives. The federal court has no comparable

enforcement tool.” Denenberg & Denenberg, supra, at 40,

Accord, J.Hepburn and J. Loue, Resolution of Inmate

Grievances as an Alternative to the C ourts, 35 Arbitration L.

J. 11, 12 (1980).

Further, administrative dispute resolution relieves

many operational burdens _ that inevitably result from

litigation. At a minimum, lawsuits divert custody staff from

normal duties to answer written discovery requests, to attend

depositions and trials, and to transport prisoner-plaintiffs and

their inmate witnesses to and from court. A. Champagre and

K. Haas, The Impact of Johnson v. Avery on Prison

Administration, 43 Tenn. L. Rev. 275, 291, Table 6, 293-295

(1976). More importantly, litigation leaves “staff fearful of

becoming defendants in another lawsuit and thus reluctant to

exercise discretion to solve festering and potentially serious

problems. The emotional costs of litigation for staff and

inmates may increase tensions, with ensuing management

and security problems.” G. Cole, R. Hanson, and J. Silbert,

supra, at 8. Those costs are particularly galling because

“many non-frivolous suits concern small monetary sums and

the time devoted to them by [staff] is disproportionate to the

amounts involved.” /d. at 5.

\

16

Requiring exhaustion in all cases, regardless of the

availability of damages, will not resolve all prisoner

compiaints. However, administrative remedies do resolve a

significant portion of disputes, and they do so in a way that

benefits individual prisoners and the system as a whole.

Benefits accrue further when operational changes result from

those resciutions, and those changes -prevent other disputes

from arising. Those resuits will occur without regard to the

possibility cf damage awards. Hence, those mechanisms

provide a useful way to “prevent or obtain redress for a

wrong” and have “sufficient power or force to achieve...

endjs].”. Webster's Third New International Dictionary,

supra, at 1294, 150. Thus, those “remedies” are “available”

for purposes of § 1997e(a), and they must be exhausted.

Il. The Goals and Structure of the PLRA Show That

Congress Did Not Intend To Expedite Damage

Cases by Excusing Exhaustion.

Congressional intent is of “paramount interest” in any

exhaustion inquiry. McCarthy, 503 U.S. at 144. Even when

Congress has not specifically spoken, “appropriate deference

to Congress’s power to prescribe the basic procedural

schemes under which a claim may be heard in a federal court

requires fashioning exhaustion principles in a manner .

consistent with congressional intent and any applicable

congressional scheme.” McCarthy, 503 U.S. at 144. This

Court has looked to legislative history and structure of

relevant legislation to determine congressional intent in such

a situation. /d.; Patsy, 457 U.S. at 501-502.

The history of the current § 1997e(a) strongly rebuts

the Petitioner’s premise that Congress sought to facilitate

prisoners’ damage suits by excusing exhaustion. To the

contrary, Congress’s primary focus was on providing the

States with relief from the operational constraints and costs

17

that arose from unrestrained prisoner lawsuits. Indeed, other

portions of that legislation provided very real disincentives to

prisoner damage actions. Those indisputable facts

demonstrate that the Petitioner’s assumptions to the contrary

are misplaced.

The current version of § 1997e(a) was enacted as part

of the Prison Litigation Reform Act, P.L. No. 104-134

(“PLRA”). One of Congress’s primary goals in enacting the

PLRA was restoring the States’ discretion to operate their

prisons in accordance with penological imperatives rather

than prisoners’ desires. Congress was confronted with strong

evidence that litigation was “hamstringmg State and local

officials in operating and managing their prison operations

and managing their prison resources” and that “in many

States, prisoners, their lawyers and unelected judges have

replaced the people and their legislatures in controlling the

character of prison life.” Prison Reform: Enhancing the

Effectiveness of Incarceration, Hearing before the Judiciary

Committee of the United States Senate, 104" Cong., 2d.

Sess. 26 (statement of William P. Barr), 5 (statement of Sen.

Abraham)(1995); see also id. at 50 (statement Philadelphia

District Attorney Lynne Abraham)(citing examples of

“debates over the placement of flagpoles” and the “choice of

art work at the prisons”).

Congress was also concerned that a “nothing to lose

attitude” among prisoners had led to an explosion of damage

actions, costing the States unreasonable amounts of time and

money. One witness explained that inmates had “nothing but

time and if [they] ‘hit[{]’ or win[] on only one in a hundred

lawsuits, [they] feel[] it is worth it all.” Jd. at 1] 1 (statement

of O. Lane McCotter, Executive Director, Utah Dept. of

Corrections). But when inmates played this lawsuit lottery,

the State paid for the tickets, win or lose. See id.; 141 Cong.

Rec. S 14417-14418 (daily ed., Sept. 27, 1995) (statement of

18

Sen. Dole) (an estimated $81,300,000 annually); 141 Cong.

Rec. S 18296 (daily ed., Dec. 8 1995) (statement of Sen.

Abraham). That was particularly aggravating because most

claims involved relatively insignificant matters that could

easily be resolved internally absent litigation.

Congress responded with legislation designed to

“return [] control to competent administrators appointed to

look out for society’s interests as well as the legitimate needs

of prisoners,” and to provide relief from ‘[t]he huge costs

imposed on state governments.”” 141 Cong. Rec. S 14627

(daily ed., Sept. 27, 1995) (statement of Sen. Hatch).

Mandatory exhaustion of administrative remedies was part of

that legislation and was intended to give corrections officials,

rather than the judicial process, the first chance to correct

problems in prison operations. A House sponsor rioted that

“[b]y returning these cases to [corrections officials] we will

reduce the intrusion of the courts into prison administration.”

141 Cong. Rec. H14105 (daily ed., Dec. 6, 1995)(statement

of Rep. LoBiondo) Congress also recognized that most

prisoner complaints, even where legitimate, were

insubstantial enough that they could be resolved more

effectively by administrative means. 141 Cong. Rec. $7527

(daily ed., May 25, 1995) (statement of Sen. Kyl). Against

that background, Congress’s mention of available remedies

in § 1997e(a) could not have been meant to protect the

pecuniary interests of prisoner-plaintiffs.

Indeed, Congress saw the difference between

damages actions and other suits, but as several other PLRA

provisions illustrate, it sought to curb damages claims, not

fast-track them ahead of injunctive claims by uniquely

exempting them from otherwise-mandatory exhaustion.

Congress singled out damages claims when it structured 42

U.S.C. § 1997e(d)(2) in such a way as to impose a

mathematical proportionality limitation on attorney fee

oe OR RAR Re RIT

19

awards “whenever a money judgment is awarded that is not

applicable in actions seeking only declaratory or injunctive

relief.” Congress also amended 42 U.S.C. § 1997e(e) to

sharply limit damages for mental and emotional injury in

constitutional cases. And in 28 U.S.C. § 1346(b)(1),

Congress imposed similar limits on prisoner suits brought

under the Federal Tort Claims Act. Finally, in uncodified

PLRA §§ 807 and 808, Congress required that damage

awards to prisoners be applied to Outstanding restitution

claims and that the victims of successful criminal claimants

be notified before damages are paid. Taken together, those

provisions illustrate that Congress did focus on damages

claims—but it did so te limit such claims, not, as Petitioner

would have it, to undercut these other structural limits by

creating a unique damages-only exception to mandatory

exhaustion.

CONCLUSION

The 50 amici States ask this Court to affirm the

decision of the Third Circuit Court of Appeals.

Respectfully submitted,

BETTY D. MONTGOMERY

.Attorney General of Ohio

STEPHEN P. CARNEY*

Associate Solicitor

*Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 E. Broad Street, 17" Floor

Columbus, Ohio 43215

(614) 466-8980

A-|

APPENDIX

January 10, 2001

The Honorable Betty D. Montgomery

Attorney General of the State of Ohio

30 East Broad Street, 17" Floor

Columbus, OH 43215

Re: Administrative Remedies for Ohio Prisoners

Dear Madam Attorney General:

I am writing, as Chief Inspector of the Ohio

Department of Rehabilitation and Correction (““ODRC”), in

response to your inquiries about Ohio’s inmate grievance

system.

ODRC provides a grievance system for inmates to

raise concerns about any aspect of institutional life. In

addition, it provides a number of more specific dispute

resolution mechanisms to address problems such as use of

force, disciplinary sanctions, the exclusion of disruptive

publications, and religious programming. See Ohio Admin.

Code §§ 5120-9-02 and 03 (use of force); 5120-9-06-09

(disciplinary proceedings); 5120-9-19 (publications); 5120-9-

31 (general grievance procedure); and ODRC Policy 309.01

(religious matters).

ODRC maintains and encourages use of its grievance

system for several reasons. The most important is to learn of

operational problems that need to be addressed. In addition

to evaluations and individual grievances, ODRC conducts

A-2 :

regular monthly and annual analysis of inmate grievances to

determine problem areas and takes action to correct problems

So identified. Examples of recent changes that have resulted

from review of inmate grievances include:

. Changes to procedures for storing and

transporting inmate property to

minimize damage and loss

. Liberalized transfer criteria to facilitate

Visitation

* Increased access to Over-the-counter

drugs and food items through prison

tommissaries

» Improved medical and dental care

through greater emphasis on

preventative medicine

e Revising meal schedules in order to

eliminate delays and resulting lock-

downs

* Changes to procedures to reduce the

danger posed to other inmates by

contraband

* Increased hours of access to libraries

It is important to note that a very significant portion of

inmate grievances are resolved in favor of inmates—24, |

percent in the last fiscal year. Moreover, 89 percent of those

resolutions resulted in changes to operational practices.

A-3

Another key function is to resolve the disputes that

inevitably arise in the prison setting. ODRC resolved 1,957

formal grievances in favor of inmates in fiscal 2000.

. oreover, that figure significantly understates the actual

number of disputes resolved, as it does not include those

resolved through the informal complaint phase of the

grievance process. The cumulative result is the resolution of

well over 2,000 disputes that otherwise would have likely

resulted in litigation.

Because of the importance of those functions, ODRC

has devoted significant resources to its inmate grievance

system. It maintains full-time Inspectors of Institutional

Services who resolve the majority of inmate grievances at

each of the 34 separate institutions. In addition, I and my

four Assistar: Chief Inspectors devote almost all of our time

to grievance appeals and other grievance-related matters. In

short, ODRC has made a significant investment in the inmate

grievance system because it believes that that system

significantly contributes to its ability to maintain safe, secure,

and humane prisons.

Thank you for your time and attention to this matter.

Please don’t hesitate to contact me should you have further

questions regarding these matters.

Very truly yours,

Cheryl Jorgensen-Martinez, Esq.

Chief Inspector

CJM:mcj