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Pro Se Tips and Tactics

by Daniel E. Manville

Exhaustion of Administrative


If you are confined and are suing in federal court prison or jail staff for an incident that occurred while locked up, you are required to exhaust the administrative grievance system that exists. There are no exceptions to exhaustion of the grievance system if the incident you are suing occurred while confined and you bring the lawsuit while still confined. This requirement was imposed in 1996 by what is known as the Federal Prison Litigation Reform Act (PLRA).

No action shall be brought with respect to prison conditions . . . . until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Many states now have imposed a requirement of exhaustion of the administrative grievance system prior to filing in state court.2

Prison Condition Defined

The question faced by most prisoners is what does the term prison conditions" mean. Recently, the United States Supreme Court defined the term prison conditions" very broadly, as applying to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.3 This means that any incident involving your confinement in a prison or jail must be presented through the grievance system if a lawsuit is going to be filed and litigated. Your failure to exhaust the available grievance process will likely result in the lawsuit being dismissed.

Available Relief Defined

Most prison and jail grievance systems do not authorize an award of money damages as one of the reliefs available. When money is not available to resolve a grievance, many prisoners believe that they don't have to exhaust the grievance system since the relief they seek is not provided. The United States Supreme Court held that regardless whether the grievance system will provide the relief sought by the prisoner, such as money damages, exhaustion is mandatory.4 The Court stated that exhaustion is required to provide an opportunity for jail or prison staff to handle the complaint.

Inmate" Defined

An inmate" is any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary programs.5 A prisoner released from prison on parole or discharged when filing the lawsuit will not have to exhaust administrative remedies as to claims that arose while confined.6 Further, if a prisoner has started the grievance process and is then released before it is completed is no longer subject to the exhaustion requirement since they are no longer confined and thus need not complete the grievance process.7 Those who are civilly committed are not required to comply with PLRA's exhaustion requirements.8 If you are close to being released from prison and the statute of limitation will not expire prior to that release, you may want to consider waiting until released to file your lawsuit since the provisions of the PLRA will not apply to you.9 Further, if your lawsuit is dismissed without prejudice for failure to exhaust pursuant to § 1997e, you can file the lawsuit once released from prison if the state statute of limitation has not expired.10

Exhaustion Defined

Prior to filing the lawsuit you must have completed the exhaustion requirements of the jail or prison system. You cannot file your lawsuit while your grievance is pending. Most courts have placed on prison staff the burden of proving that the prisoner failed to exhaust prior to filing the lawsuit.11 The exception for this is the Sixth and Tenth Circuit, which requires the prisoner to plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome.12

You are required to follow the procedures set forth in the prison policy as to exhausting administrative remedies.13 Generally, a letter written to the prison inspector, to prison officials or to the Attorney General are not sufficient methods to warrant considering a matter effectively grieved.'14 However, complaints that are reviewed at the highest levels of the agency may satisfy the exhaustion requirement even if they were not processed through the grievance system.15 When prison staff have prevented a prisoner from filing a timely grievance, the court will either remand, requiring the state to allow a late filing of a grievance, or will find a waiver by prison staff.16

A prison grievance system may be deemed unavailable to a prisoner. Courts have found unavailability when (1) an inmate's untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the inmate's subsequent attempt to exhaust his remedies based on the untimely filing of the grievance.17 If the state has a system where a prisoner can seek to file an out-of-time grievance, failure of the prisoner to try and use that procedure will be found to be a failure to exhaust available remedies.

Once a prisoner has won at any level of the grievance process, it is over and the prisoner has exhausted.18 Further, if the prisoner has won as to the issues raised in the grievance and staff then ignore or fail to comply with the grievance, the prisoner need not grieve the noncompliance otherwise prison staff could keep prisoners out of court indefinitely by saying yes" to the grievance and no" in practice.19

Tolling of Statute of
Limitations Defined

Most courts have held that the statute of limitations is tolled during exhaustion, though it is not certain whether that conclusion holds independent of state rules tolling the limitations period during exhaustion.20 Some states also have tolling provisions that give a litigant whose case is timely filed, but is then dismissed for reasons other than the merits, a certain period of time to re-file.21

Three-Strikes Defined

Most federal courts have held that a lawsuit is frivolous that is filed prior to exhausting administrative remedies and will count the dismissal of the lawsuit as a strike.22 Since a prisoner is only allowed three strikes and then must pay the full filing fees, you should exhaust administrative remedies prior to filing a civil rights lawsuit.23


You should wait until the grievance process has been exhausted before you file a lawsuit. When filing the lawsuit, the author's advice is that your complaint should contain a paragraph stating the steps taken to exhaust the grievance process and you should also attach the exhausted grievance to the complaint. The next column will discuss the three-strike provision" of the PLRA.


1 This article is authored by Daniel E. Manville. He is the author and publisher of the recently released Disciplinary Self-Help Litigation Manual and is presently working on a rewrite of the Prisoners' Self-Help Litigation Manual with John Boston. Mr. Manville is presently an Adjunct Professor and Staff Attorney for Wayne State University Law School Civil Rights Clinic, Detroit, Michigan. Neither the Clinic nor Attorney Manville are able to handle lawsuits in other states.

2 Remember, many states have adopted similar procedures to what is contained in the PLRA so you will need to check your particular state statute and case law. See, e.g., State ex rel. L'Minggio v. Gamble, 667 N.W.2d 1, 5 (Wis. Ct. Ap. 2003) (exhaustion of administrative remedies is required pursuant to Wisconsin's Prisoner Litigation Reform Act, Wis. Stat. § 801.02(7)(b), and Wis. Admin. Code. § DOC 310.04); cf., Bugely v. State, 464 N.W.2d 878, 880 (Iowa 1991) (Exhaustion of administrative remedies is not required if an inmate proves by a preponderance of the evidence that prison officials interfered with the appeals process and that such interference prevented the completion of the process in a timely manner.). But see Cole v. Isherwood, 653 N.W.2d 821 (Neb. S. Ct. 2002) (exhaustion of administrative remedies was not jurisdictional prerequisite to commencement of prisoner's § 1983).

3 Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002); see Castano v. Nebraska Dept. of Corrections, 201 F.3d 1023, 1024 (8th Cir. 2000) (holding the failure to provide interpreters for Spanish-speaking prisoners is a prison condition), cert. denied, 531 U.S. 913 (2000); Salaam v. Consovoy, 2000 WL 33679670 at *4 (D. N.J., Apr. 14, 2000) (holding that failure to provide proper parole hearing is a prison condition); Cruz v. Jordan, 80 F. Supp. 2d 109, 116-17 (S.D. N.Y. 1999) (applying provision to medical care claim).

4 Porter v. Nussle, id.

5 42 U.S.C. § 1997e(h). Courts have held that military inmates are included under the PLRA, Marrie v. Nickels, 70 F.Supp.2d 1252, 1262 (D. Kan. 1999), as are persons held in privately operated prison facilities and juvenile detention facilities. See Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 994 (8th Cir. 2003) (holding that juveniles are prisoners under PLRA); Herrera v. County of Santa Fe, 213 F.Supp.2d 1288, 1293 (D. N.M. 2002) (holding the exhaustion requirement applicable to persons held in private prisons).

6 See, e.g., Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (litigants--like Greig--who file prison condition actions after release from confinement are no longer `prisoners' for purposes of §§ 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision.); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (PLRA provision barring inmate from bringing suit for mental or emotional injury without prior showing of physical injury did not apply to suit filed by inmate after he was released on parole).

7 See Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996) (holding with respect to another part of the PLRA that the court must determine the inmate's status on the date the suit or appeal is brought" rather than at some other time).

8 See Page v. Torrey, 201 F.3d 1136 (9th 2000).

9 See, e.g., Ahmed v. Dragovich, 297 F.3d 201, 210 (3rd Cir. 2002).

10 Harris v. Garner, 216 F.3d 970, 980 (11th Cir. 2000) (dismissal under this statutory provision of a claim that is filed during confinement should be without prejudice to re-filing the claim if and when the plaintiff is released).

11 See Ray v. Kertes, 285 F.3d 287, 293, 295 (3d Cir. 2002) (holding that the PLRA exhaustion requirement is an affirmative defense and that an inmate need neither plead nor prove exhaustion to proceed under the PLRA, noting that the Second, Seventh, Ninth and D.C. Circuits have so held). See also Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (noting that defendants' affidavit does not state whether inmate exhausted his appeals; their Appeal Record" lacks a foundation and is not shown to be complete); see also Livingston v. Piskor, 215 F.Supp.2d 84, 86 (W.D. N.Y. 2003).

12 Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir. 2000) (per curiam) (complaint properly dismissed without prejudice where plaintiff prisoner did not satisfy his burden of showing" exhaustion). The Sixth Circuit has also held that an inmate may not amend his or her complaint to cure the failure to plead exhaustion and the complaint must be dismissed. Baxter v. Rose, 305 F.3d 486, 488 (6th Cir. 2002).

13 Hemphill v. New York, 198 F.Supp.2d 546, 549-50 (S.D. N.Y. 2002) (Prison officials are entitled to require strict compliance with an existing grievance procedure.).

14 See Yousef v. Reno, 254 F.3d 1214, 1221, 1222 (10th Cir. 2001) (Attorney General); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (dismissing case of inmate who was told by the warden that he would take care" of a medical problem, and therefore did not grieve it; the inmate's subjective belief that he had done all he could did not meet the exhaustion requirement), cert. denied, 531 U.S. 1156 (2001); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999) (holding that investigations by prison Use of Force Committee and Ohio State Highway Patrol did not substitute for grievance exhaustion even though criminal charges were brought against the officer); Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) (holding that Americans with Disability Act procedures did not meet PLRA exhaustion requirement); Hemphill, at 546.

15 Camp v. Brennan, 219 F.3d 279 (3rd Cir. 2000) (holding that use of force allegation that was investigated and rejected by Secretary of Correction's office need not be further exhausted); Perez v. Blot, 195 F.Supp.2d 539, 542-6 (S.D. N.Y. 2002) (holding requirement might be satisfied where inmate alleged he complained to various prison officials and to Inspector General, whose investigation resulted in referral of officer for criminal prosecution).

16 See Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002), citing to Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding that a remedy that prison officials prevent a prisoner from `utilizing' is not an `available' remedy under § 1997e); Rivera v. Goord, 253 F.Supp.2d 735, 747 (S.D. N.Y. 2003), and cases cited therein.

17 Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). But see Ferrington v. Louisiana Department of Corrections, 315 F.3d 529, 532 (5th Cir. 2002) (court concluded that blindness could not have prevented inmate from exhausting his available remedies due to blindness when such blindness had not prevented inmate from filing a § 1983 suit, appealing a disciplinary hearing, or filing other grievances).

18 Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004), and cases cited; Dixon v. Goord, 224 F.Supp.2d 739, 749 (S.D. N.Y. 2002) (The exhaustion requirement is satisfied by resolution of the matter, i.e., an inmate is not required to continue to complain after his grievances have been addressed.); Gomez v. Winslow, 177 F.Supp.2d 977, 984-5 (N.D. Cal. 2001) (allowing damage claim to go forward where inmate had stopped pursuing the grievance system when he received all the relief it could give him); Brady v. Attygala, 196 F.Supp.2d 1016, 1020 (C.D. Cal. 2002) (holding plaintiff had exhausted where he grieved to see an ophthalmologist and was taken to see an ophthalmologist before the grievance process was completed).

19 Kaplan v. New York State Dept. of Correctional Services, 2000 WL 959728 at *3 (S.D. N.Y., July 10, 2000); McGrath v. Johnson, , 2002 WL 1271713 (3rd Cir. 2002). But see Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002) (observing that [r]equiring a prisoner who has won his grievance in principle to file another grievance to win in fact," risking the prospect of a never-ending cycle of grievances," could not be tolerated; but accepting prison staff's claim that the inmate could have taken a further appeal to the Director if the situation had not been resolved after 30 days).

20 In Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000), the court simply stated that the limitations period was tolled during exhaustion because the plaintiff was unable to bring suit until exhaustion was completed.

21 See Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding action timely because a state statute provides that a litigant who timely files and is dismissed has a year to commence a new action). The same result may follow from the application of equitable tolling. See also Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001).

22 See, e.g., Rivera v. Alin, 144 F.3d 719, 730-1 (11th Cir.), (dismissal without prejudice under Heck v. Humphrey, 512 U.S. 477 (1994)--counted as a strike), cert. dismissed, 119 S.Ct. 27 (1998); cf., Patton v. Jefferson Correctional Center, 136 F.3d 458, 464 (5th Cir. 1998) (Excusing a prisoner's frivolous § 1983 actions from the reach of the PLRA's `three strikes' proviso simply because the cases included unexhausted habeas claims" would allow litigious prisoners [to] immunize frivolous lawsuits from the `three strikes' barrier by the simple expedient of pleading unexhausted habeas claims as components of § 1983 suits.).

23 The next article will discuss the Three Strikes" provision.

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