Argument Preview: Access to Justice in the PLRA

Steven D. Schwinn, John Marshall Law School

The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.

The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.

On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.

Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.

The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.

Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)

Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)

Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.

Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.

The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.

CASE ANALYSIS

The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.

The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).

Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.

The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.

Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.

Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.

Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).

Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.

(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)

Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).

In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.

SIGNIFICANCE

This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.

Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.