V. The Exhaustion Requirement

Ordinarily, a person filing a lawsuit alleging that government officials have violated her constitutional rights may go directly to court. Even if an administrative process exists, there is no requirement to complete it as a prerequisite to filing suit.[29] Until passage of the PLRA, this general rule applied to prisoners as well.

Most prisons and jails have a system of administrative remedies, more commonly known as grievance systems. These are mechanisms through which prisoners can file complaints or make requests in writing, and receive a written response from corrections officials. Most grievance systems have filing deadlines—a prisoner must file within a certain time of the incident complained about—and most have one or more levels of appeal.

Grievance systems emerged in the 1970s as a means of quickly and informally resolving minor issues by encouraging prisoners to address problems through established channels. They are also a means of keeping officials apprised of problems and concerns among the prison population—a review of all the grievances filed in a given month or year may reveal, for example, a pattern of misconduct by a particular staff member. Grievance systems were never designed to be the first step in a lawsuit, and it was never contemplated when they were first introduced that a misstep in the grievance process could result in a prisoner forfeiting his right to file in court.

Before passage of the PLRA, exhaustion of prison grievance systems could be required only in very narrow circumstances. If the attorney general of the United States had certified that a prison’s or jail’s grievance system met specified standards, or if a federal judge found that the system was “otherwise fair and effective,” a lawsuit filed by a prisoner could be stayed for up to six months to require the prisoner to exhaust “such plain, speedy, and effective administrative remedies as are available.” In addition, exhaustion could be required only of adults who had been convicted of a crime, not of detained children or persons held in jail awaiting trial.[30]

The PLRA dramatically altered this legal landscape, deleting the requirement that grievance systems be “fair and effective,” and requiring that a lawsuit filed by a prisoner who had not pursued all avenues for redress within the grievance system be dismissed rather than merely stayed. The PLRA’s exhaustion requirement also applies to any adult or child held in a prison, jail, or juvenile detention facility.[31] Indeed, it applies even if the grievance system cannot provide the remedy the prisoner is seeking, such as monetary compensation.[32]

A basic structural problem with the exhaustion requirement is that prison officials themselves—the defendants in most lawsuits brought by prisoners—typically design the grievance system that prisoners must exhaust before filing suit. This creates obvious incentives for prison officials to design grievance systems with short deadlines, multiple steps, and numerous technical requirements. And unlike prior law, the PLRA imposes no requirements for grievance systems: “the sky’s the limit for the procedural complexity or difficulty of the exhaustion regime.”[33]

Some grievance systems include requirements that seem designed to discourage, rather than facilitate, compliance by prisoners. For example, some systems require that a prisoner first raise the issue she wishes to grieve with the staff member involved—even if the grievance involves an assault or other abusive conduct by that same staff member. One recent case ruled that a prisoner whose complaint was that he was threatened and physically assaulted by a corrections officer failed to exhaust because he did not first discuss the issue with the officer who had allegedly assaulted him.[34]

There is also some evidence that prison officials have taken advantage of the PLRA to discourage lawsuits by making grievance systems more demanding. In Illinois, after a court ruled that a prisoner had complied with the state prison system’s grievance process, rejecting prison officials’ argument that his grievance was not sufficiently detailed,[35] the prison system revised the policy to require “details regarding each aspect of the offender’s complaint, including what happened, when, where, and the name of each person who is the subject of or who is otherwise involved in the complaint.”[36]

Shortening the Statute of Limitations

The statute of limitations is the time period within which a person must bring a lawsuit; after the statute of limitations has run, the right to sue is lost. These limitation periods vary from state to state, but are typically one, two, or three years from the incident that is the subject of the suit.

For prisoners, the PLRA effectively shortens the statute of limitations, from one or more years sometimes to a matter of days. If a prisoner misses the deadline for filing his initial grievance—or for filing any required appeals within the grievance system—his right to sue is forever lost. In Woodford v. Ngo, in 2006, the US Supreme Court ruled that a prisoner’s lawsuit must be dismissed because he had missed the California prison system’s deadline for filing a grievance, which was 15 working days.[37] Although the statute of limitations for the prisoner’s claim was one year,[38] the court ruled that the PLRA requires prisoners to comply with the grievance system’s “deadlines and other critical procedural rules,” and that the prisoner’s failure to meet the 15-day deadline had forfeited his right to sue.[39]

California’s deadline of 15 working days is far from unusual. According to one brief filed in the Woodford case, 13 state prison systems have grievance filing deadlines of 10 calendar days or less; some are as short as two or three days.[40] Deadlines typically apply not only to the filing of the initial grievance, but to filing at each of the required levels of appeal. The California grievance system has three levels, each with a 15-day filing deadline.[41]

Courts have generally not excused prisoners’ failures to meet even very short grievance filing deadlines, despite the existence of extenuating circumstances. For example:

• A court dismissed a prisoner’s lawsuit for failure to exhaust, despite the fact that he had been hospitalized outside the institution during the entire grievance filing period.[42]

• A prisoner’s lawsuit alleging that he was beaten by staff was dismissed because the prisoner had not initiated the grievance process within two business days of the incident, despite the prisoner’s claim that immediately following the assault he was placed in segregation, where officers did not provide him with grievance forms.[43]
• A prisoner missed the 14-day grievance deadline because he was on suicide watch, with no access to writing materials, for 19 days immediately after the incident giving rise to the grievance. Although he later filed a grievance, the court dismissed for failure to exhaust, ruling that he should have filed “as soon as he was released from suicide watch.”[44]
• A court ruled that a prisoner who had filed his grievance late, after being stabbed and having a kidney removed in the hospital, had failed to exhaust; the PLRA “does not ... excuse prompt filing of prison administrative remedies because of mental or emotional injury.”[45]
• A prisoner missed the 48-hour grievance filing deadline because he needed the names of the officers involved in the incident and it took him a week to obtain this information; his case was dismissed for failure to exhaust.[46]

A Trap for the Unwary

In a case involving employment discrimination, the US Supreme Court warned that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.”[47] But under the PLRA, it is common for courts to conclude that prisoners have failed to exhaust because they made minor technical errors in the grievance process.

Jeanne Woodford, former director of the California Department of Corrections, described to Human Rights Watch some of the difficulties prisoners have in navigating the grievance system in California state prisons:

Their appeal gets screened out for lack of documentation and they’re unable to get the documentation. I think a lot of them have trouble once the appeal is screened out—maybe not understanding why the appeal was screened out.... For example, you’re only supposed to put one issue on an appeal, and some inmates put multiple issues on an appeal, because it may have all occurred in the same incident, and the inmate doesn’t understand that.[48]

Woodford added that at some California prisons, as many as half of all grievance appeals are “screened out” because of technical errors by prisoners.[49]

Cases in which prisoners have had their cases dismissed because of technical errors in the grievance process are common:

• A prisoner who was stabbed in the eye had his lawsuit dismissed because, while he had properly filed his original grievance, he failed to indicate whether he wished to appeal when this grievance was denied.[50]
• A prisoner alleging that he had received inadequate dental care had his grievance rejected because he appended seven pages of information regarding his dental needs; when the prisoner then filed suit over inadequate dental care, the case was dismissed for non-exhaustion.[51]

• A prisoner who alleged that he was attacked by other prisoners, was left for 12 hours without medical attention, was in a coma for days and in the hospital for months, and suffered severe permanent injuries including cognitive impairment and memory loss, had his lawsuit dismissed because he appealed his grievance too soon.[52]

Many cases are dismissed because the prisoner used the wrong form, or wrote to the wrong entity within the prison system. Cases have been dismissed, in whole or in part, because the prisoner:

• Submitted a form to the “inmate appeals branch” rather than to the “appeals coordinator.”[53]
• Filed an “administrative appeal” rather than a “disciplinary appeal.”[54]
• Wrote directly to the grievance body rather than filing a “service request” form.[55]
• Sent appeal documents to the secretary of the Department of Corrections rather than to the secretary’s Office of Inmate Grievances and Appeals.[56]
• Filed a new grievance rather than seeking reinstatement of a previous grievance (the court characterized its dismissal of the case as “hyper-technical” but required by the PLRA).[57]

No Exceptions, No Excuses

Courts have not been receptive to the argument that the exhaustion requirement should be excused, even when there is good cause for the prisoner’s failure to pursue remedies within the prison grievance system. Among the justifications for non-exhaustion courts have rejected are:

• Dyslexia[58]
• Illiteracy[59]
• Inability to read English[60]
• Cerebral palsy[61]
• Mental illness[62]
• Brain injury and memory loss[63]
• Blindness[64]
• Being in a coma[65]

One scholar, after surveying cases decided under the PLRA’s exhaustion requirement, summarized her findings: “Inmates who filed only the first level of grievance, or who failed to comply with a stringent time limit (sometimes even because they were hospitalized for the injury motivating the lawsuit), or who simply wrote a letter to prison authorities rather than filling out the requisite form, are seeing their constitutional cases dismissed for failure to exhaust.”[66] Indeed, the PLRA is not limited to constitutional claims, but restricts prisoners’ ability to bring claims under other laws as well.

In a case involving the exhaustion requirement, the US Supreme Court said that “[b]eyond doubt, Congress enacted [the PLRA] to reduce the quantity and improve the quality of prisoner suits.”[67] A central argument of the PLRA’s supporters was that the law would filter out only frivolous or plainly meritless prisoner suits, but would not affect those that raised serious issues. As Senator Orrin Hatch put it, “I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised. The legislation will, however, go far in preventing inmates from abusing the Federal judicial system.”[68] Representative Charles Canady sounded a similar note: “These reasonable requirements will not impede meritorious claims by inmates but will greatly discourage claims that are without merit.”[69]

But the exhaustion requirement has nothing to do with the merit of the prisoner’s underlying claim. It requires dismissal of the case—regardless of its merit—if the prisoner has failed to comply with the procedural requirements, however petty, of the prison grievance regime. The legality or illegality of the conduct the prisoner is complaining of, or the magnitude of the harm she has suffered, simply do not matter. As one scholar summarized the first several years of the PLRA, “inmates who experience even grievous loss because of unconstitutional misbehavior by prison and jail authorities will nonetheless lose cases they once would have won, if they fail to comply with technicalities of administrative exhaustion.”[70]

Case Study: Immunizing Rape

Sexual abuse of female prisoners by male prison staff is a well-documented phenomenon in US prisons.[71] In January 2003, 16 women prisoners filed suit alleging an ongoing pattern of rape and sexual abuse by staff of the New York State Department of Correctional Services (DOCS). The lawsuit, detailing instances of forcible rape, coerced sexual activity, oral and anal sodomy, and forced pregnancies, asked the court to intervene to halt the ongoing sexual abuse.[72]

Rather than address the merits of the women’s claims, the federal court hearing the case took nearly five years to first consider whether they had exhausted administrative remedies as required by the PLRA. In 2007 the court dismissed all of the women’s claims for injunctive relief—that is, for an order to the prison system to remedy the ongoing abuse. The court acknowledged that some of the women had complained about the abuse to the New York state prison system’s inspector general; others had complained to the supervisor of the officer who had abused them; others still had spoken about the abuse to a prison official whom they felt comfortable approaching. One woman had filed a formal grievance and pursued it through all three levels of the grievance system, but the judge ruled that that was not sufficient because, he said, she had not named all supervisory defendants or linked their actions to her abuse by a particular officer, even though she had identified the core failing in the lawsuit: officers about whom there are repeated credible complaints of sexual abuse are nonetheless permitted to continue to guard women prisoners. As a result, the court ruled that she could not challenge the supervisory defendants’ failings in supervision, investigation, and discipline of staff.

The court ruled that none of the actions taken by the women to alert DOCS to the ongoing sexual abuse were sufficient to satisfy the PLRA, and so all their claims for injunctive relief were dismissed:

The evidence does not demonstrate that Plaintiffs' efforts at grieving properly were thwarted, but rather shows that they merely selected to pursue informal avenues instead of the formal grievance procedure.... One cannot exhaust all administrative remedies by merely pursuing an informal avenue over the formal grievance procedure. Thus, because Plaintiffs ... did not complete the three-step grievance procedure, they have not properly exhausted all of their administrative remedies.[73]

Dori Lewis, one of the lawyers representing the women, explained to Human Rights Watch that prison officials had previously taken the position that prisoners complaining about staff sexual abuse were not required to file a grievance:

With respect to staff sexual assault, DOCS had told women prisoners that they could complain to anyone with whom they feel comfortable, and their complaint would be forwarded to the inspector general’s office. They made clear that the inspector general’s office, and only the inspector general’s office, had authority to take action. And in spite of that, they have come into court and argued that women prisoners needed to file grievances.[74]

Lisa Freeman, Lewis’s co-counsel, summed up the effect of the PLRA in the New York case: “It allows for the ongoing problem of staff sexual abuse to continue unabated.”[75] Lewis elaborated,

For other women in prison, it reinforces that there’s no point in coming forward about these kinds of complaints. Women prisoners already think that their complaints of staff sexual abuse will accomplish nothing unless they have physical proof of the complaint. Now they’re being told that even when women have come forward, even when they may have had physical evidence or other strong evidence, it’s still not good enough to get into court because they didn’t navigate this opaque and complex system.[76]

Dangers of Reporting Rape in Prison When a prisoner has been sexually assaulted by another prisoner, to complain to prison staff is to risk violent retaliation, either by the original assailant or by other prisoners. One prisoner explained to Human Rights Watch: The first time [I was raped] I told on my attackers. All [the authorities] did was moved me from one facility to another. And I saw my attacker again not too long after I tolded on him. Then I paid for it. Because I tolded on him, he got even with me. So after that, I would not, did not tell again.[77] For a male prisoner, to be known as a rape victim (“punk”) dramatically increases the risk of future assault, and to be known as someone who informs on prisoners to the authorities (a “snitch”) invites attack by other prisoners. Thus, a prisoner who complains to staff about being raped is doubly at risk: [T]he first time I was raped, I did the right thing. I went to an officer, told him what happened, got the rectal check, the whole works. Results? I get shipped to [another prison]. Six months later, same dude that raped me is out of seg[regation] and on the same wing as I am. I have to deal with 2 jackets now: snitch & punk. I ... had to think real fast to stay alive. This was my first 2 years in the system. After that I knew better.[78]

 

Case Study: No Remedy for Rape Resulting in HIV Infection

Keith DeBlasio was incarcerated in a federal prison for credit card fraud and other white collar crimes when another prisoner, a known leader of a prison gang, began threatening him. DeBlasio repeatedly sought protection from prison staff, but no action was taken. The gang leader raped him on a number of occasions, which resulted in DeBlasio contracting HIV.

DeBlasio filed grievances about the assaults. Although his initial grievances were timely filed, his subsequent appeals were rejected as untimely or otherwise defective. As a result, DeBlasio was deemed to have failed to exhaust administrative remedies, a prerequisite to filing a lawsuit to recover compensation for his injuries.

Now out of prison, DeBlasio is chronically ill with HIV disease:

I get $637 a month from the government because of my disability. And that doesn’t even pay the bills. And if it wasn’t for my family, I’d be out on the street. And they did this.... I should have had some way to have something—to go after damages. This was an individual they knew was a sexual predator, and HIV positive.... You cannot tell me it was not the responsibility of the institution to have protected me.[79]

DeBlasio does not believe that the PLRA was intended to prevent prisoners in his situation from filing suit:

The whole purpose of the PLRA, and this is in the congressional record, was to alleviate some of the frivolous lawsuits.... At no point in time can somebody claiming a sexual assault or physical assault be considered frivolous.... In a situation where my entire ability to support myself, not to mention my health being so bad that my mother had to hold the glass and put the straw into my mouth—this is a situation where there’s no doubt that I should be compensated. But these are the types of things that because of the PLRA that they manage to keep out of court.[80]

DeBlasio summed up his situation: “What was a sentence for a white collar crime that should have ended many years ago will never end. I got a life sentence.”[81]

Expecting a prisoner to commence the grievance process within a few days of experiencing rape, assault, or a similar event is unrealistic in light of the dynamics of trauma. Terry Kupers, a psychiatrist who has interviewed and evaluated more than a thousand prisoners, explained:

Trauma has specific dynamics of its own. The person goes into a very dysfunctional state right after the trauma. They’re flooded with emotions. What we generally find is a dysregulation of emotions and cognition that lasts for many days. This is the period when there are intrusive symptoms, flashbacks, et cetera. And in that state a person is unable to carry out an organized task. And that happens to be the same timeline as the deadline for the internal grievances.... Particularly when you’re looking at survivors of sexual assault, they don’t do anything for a long time. They mull it over. They tend to withdraw and be isolated. And they tend to be flooded with emotions, and for instance, experience shame. And reporting in a formal way is the last thing on their mind.[82]

Attorney Lisa Freeman, who represents female prisoners who allege sexual abuse by prison staff, agreed:

The time frame of the grievance process basically calls for people who are suffering this very traumatic injury to come forward and complain about it in a timely fashion.... In the community there’s a complete understanding that victims of sexual abuse don’t come forward with an immediate outcry in most instances.[83]