Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Failure to Timely Raise Exhaustion Defense Waives that Defense

Failure To Timely Raise Exhaustion Defense Waives That Defense

In a successful class-action 42 USC § 1983 civil rights complaint brought by seriously mentally ill Wisconsin Supermax prisoners for injunctive relief [see 164 F.Supp.2d 1096], prison official defendants' motion to lately require all class members to have first exhausted their administrative remedies was denied by the U.S. District Court.

Dennis Jones'El was one of six seriously mentally ill prisoners for whom the court had ordered preliminary injunctive relief from debilitating prison conditions that exacerbated their mental illnesses [PLN, April 2002]. As a last-ditch defense prior to a scheduled hearing on the injunction, defendants asserted a late claim under 42 USC § 1997e(a) (Prison Litigation Reform Act (PLRA)) that the prisoners had not exhausted their administrative remedies.

The court first decided that because the defendants had not timely responded to plaintiff's amended complaint with such a motion, they had waived the right to assert such a defense at all.

Next noting that only two of the six class member plaintiffs had personally exhausted such remedies, the court went on to hold that in any event it would not be necessary for every class member to have personally exhausted such remedies for what amounted to the same claim because prison officials had had the opportunity to resolve the disputes internally for two of the plaintiffs and thus to limit judicial intervention in the management of prisons - but did not.

The court further reasoned that it would cause an intolerable burden on the prison's administrative appeal resources to require additional reviews of already rejected claims. Likewise, logistical difficulties would prevent prisoners from consulting with each other and gathering signatures on a common appeal. Nor could the non-exhaustion of some members of the class operate to split the class action into "individual claims."

Accordingly, the motion to dismiss for failure to exhaust administrative remedies was denied. See: Jones v. Berge, 172 F.Supp.2d (W.D. Wis. 2001).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Jones v. Berge

Furthermore, courts that have addressed the exhaustion requirement for class actions challenging prison conditions have relied on Title VII cases rather than Social Security cases as persuasive authority. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001) (citing plaintiffs' argument that "each individual plaintiff in a class-action suit need not have pursued the available administrative remedies if at least one member of the plaintiff class has met the filing prerequisite" (internal citations omitted)); Hattie v. Hallock, 8 F.Supp.2d 685, 689, opinion amended,16 F.Supp.2d 834 (N.D.Ohio 1998) ("vicarious" exhaustion "only available to plaintiffs in a class-action lawsuit, where a class is certified pursuant to Fed.R.Civ.P. 23(b)(2)"). The courts in Jackson and Hattie did not base their holdings on the proposition that only one plaintiff in a class action subject to the Prison Litigation Reform Act must exhaust his administrative remedies; the plaintiffs in Jackson had not exhausted their administrative remedies, Jackson, 254 F.3d at 270, and Hattie was not a class action, Hattie, 8 F.Supp.2d at 689. Their statements are dicta, but instructive dicta.

Defendants contend that the purposes of the Prison Litigation Reform Act would be furthered by requiring all members*1133 of the class to exhaust their administrative remedies before filing suit. They note correctly that the objectives of the exhaustion requirement under the Prison Litigation Reform Act are to enable prison officials to resolve disputes internally and to limit judicial intervention in the management of prisons. Smith v. Zachary, 255 F.3d 446, 449 (7th Cir.2001). Defendants argue that it would circumvent the Congressional goal of reducing frivolous litigation to relieve class members of the need to exhaust in class actions subject to § 1997e(a). Defendants overlook the fact that class action suits are closely controlled by the courts. Such suits undergo both preliminary screening under 28 U.S.C. § 1915A(a) and (b) and certification analysis under Fed.R.Civ.P. 23. Moreover, the goals of the Act's exhaustion requirement are not compromised by not requiring every class member to exhaust. As long as prison officials have received a single complaint addressing each claim in a class action, they have the opportunity to resolve disputes internally and to limit judicial intervention in the management of prisons. See Smith, 255 F.3d at 449. I conclude that even if defendants had not waived the affirmative defense of failure to exhaust administrative remedies as to every member of the class, the exhaustion requirement would be satisfied by a showing that one or more class members had exhausted his administrative remedies with respect to each claim raised by the class.

Nevertheless, it remains the case that defendants have not waived an affirmative defense of failure to exhaust as to plaintiffs' "individual claims." However, it is unclear precisely what defendants intended to cover by their restrictive language. Because defendants' answer raising the affirmative defense was filed after plaintiffs had moved for a preliminary injunction on behalf of only six members of the plaintiff class, it is possible to interpret defendants' restriction as intending to distinguish the claims for declaratory and injunctive relief sought by the entire class from claims for injunctive and declaratory relief sought by some but not all class members. Alternatively, it is possible to interpret defendants' restrictive language as intending to distinguish between plaintiffs' claims for money damages (which remain in the amended complaint with respect to the original two plaintiffs) and any claim for declaratory and injunctive relief brought by the whole of the class or by any individual members of the class. Either way, defendants' affirmative defense does not present a bar to the proceedings in this case.

As the parties are aware, the class in this case was certified under Fed.R.Civ.P. 23(b)(2), meaning that class members may recover only declaratory and injunctive relief. The only individual claims at issue in this action are those of plaintiffs Jones 'El and Johnson. I have previously determined that plaintiff Johnson exhausted his administrative remedies as to the claims relating to alleged unconstitutional conditions of confinement, inadequate dental care and unreasonable cell and body searches, plaintiff Jones 'El exhausted his administrative remedies as to his Eighth Amendment claim that he is subjected to extreme temperatures and plaintiffs Johnson and Jones 'El both exhausted their administrative remedies as to their First Amendment claim that they are denied certain religious items. Opin. and Order, dkt. # 5, at 19, 23, 24, 25, 32 (entered Sept. 25, 2000). The other named class representatives do not have claims for money damages at issue in this suit. Indeed, any class member who wants money damages will have to file a separate lawsuit, which will be subject to the exhaustion requirement of § 1997e, should defendants wish to raise the defense in the context of those *1134 lawsuits. Thus, to the extent that defendants may be contending that plaintiffs have failed to exhaust their administrative remedies with regard to individual claims for money damages, their motion to dismiss will be denied.

Alternatively, defendants may be suggesting that by seeking preliminary injunctive relief for some but not all class members, plaintiffs have converted the claims of the few class members seeking preliminary injunctive relief into "individual claims," which must be exhausted by these members before they may seek relief. I am not persuaded that this is so.

Section 1997e(a) provides that "no action shall be brought with respect to prison conditions" until administrative remedies are exhausted. 42 U.S.C. § 1997e(a). An action is "brought" when the complaint is filed. Fed.R.Civ.P. 3 ("A civil action is commenced by filing a complaint with the court."); see also Howard v. Lockheed-Georgia Co., 742 F.2d 612, 613 (11th Cir.1984). Once administrative remedies have been exhausted and the action has been "brought," the exhaustion requirement of the Prison Litigation Reform Act is satisfied. Any claim for relief that is within the scope of the pleadings may be litigated without further exhaustion. In any event, plaintiffs have submitted documentation demonstrating that plaintiff Scarver has exhausted his administrative remedies as to the claim for inadequate mental health care, the claim at issue at the preliminary injunction hearing. I find that plaintiffs' showing that one class member has exhausted his administrative remedies with respect to the claim at issue on the motion for preliminary injunction is sufficient to defeat defendants' motion to dismiss.

IT IS ORDERED that defendants' "motion to be heard on the issue of exhaustion of administrative remedies prior to the hearing on the merits of the plaintiffs' preliminary injunction" is GRANTED. Further, IT IS ORDERED that defendants' motion to dismiss plaintiffs' individual claims for failure to exhaust administrative remedies is DENIED.