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Procedural Default In Exhausting State Administrative Remedies Held Not A Bar To Bringing § 1983 Act

Procedural Default In Exhausting State Administrative Remedies Held Not A Bar To Bringing § 1983 Action; Supreme Court Grants Review

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals, deepening a split among the circuits, held that a California state prisoner's alleged untimeliness in filing his administrative grievance would not bar him from access to federal court under the Prison Litigation Reform Act (PLRA) in a subsequent 42 U.S.C. § 1983 complaint. From a factual perspective, the question was, if the state administrative appeals process (a 3-level structure) is truncated below the third level by the state for reasons of alleged procedural error by the prisoner, has the prisoner in fact exhausted his administrative remedies for purposes of the PLRA (42 U.S.C. § 1997e(a)) if he accepts the termination at the intermediate appeal level and proceeds directly to federal court? Or, from a legal perspective, does failure to comply with administrative filing requirements" amount to a failure to exhaust" available state remedies?

Viet Mike Ngo, serving 17-life for second degree murder, was placed in administrative segregation at San Quentin State Prison on October 26, 2000, the charges for which Ngo complained wrongly defamed him with allegations of engag[ing] in sexual relationships with Catholic volunteer priests." Ngo was returned to the general population in December, 2000 on condition that he refrain from evening fellowship and Bible study programs as well as not correspond with a former chapel volunteer.

Six months later, on June 18, 2001, Ngo administratively appealed the disciplinary action as restricting his First Amendment free speech and free exercise of religion rights. The Appeals Coordinator rejected the appeal as time-barred, noting prison regulation 15 CCR § 3084.6(c), which requires appeals to be filed within fifteen working days of the challenged event. Ngo submitted a second appeal six days later, alleging that the first appeal was timely because he continued to suffer the consequences of his punishment. The Appeals Coordinator didn't buy into this, and rejected the second appeal on the same untimeliness grounds.

Having had his appeals screened out," Ngo was unable to proceed to higher levels of appeal. Instead, he went to federal district court. But the district court (U.S.D.C., N.D. Cal.) dismissed his complaint for failure to exhaust all available remedies, observing that Ngo had not gone to the third level." Ngo appealed.

The Ninth Circuit noted that the Sixth Circuit had ruled that an untimely administrative appeal does satisfy the PLRA's exhaustion requirement (Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003)), but that the Third, Seventh and Tenth Circuits had held that it does not. (See: Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004). The court observed that adding a procedural default element to the PLRA, would mean that prisoners' access to courts would be based on their ability to navigate procedural minefields, not on whether their claims had any merit. ... Prison administrators should not be given an incentive to fashion grievance procedures which permit or defeat prisoners' meritorious claims.

The court concluded that Ngo had exhausted all administrative remedies available" to him when the Appeals Coordinator lowered the time-bar boom. The state had had a choice to hear and decide Ngo's appeal but twice elected not to do so. It could not later be heard to complain in federal court that it was short-changed by Ngo's failure to exhaust administrative remedies. Indeed, the state did not even allege any prejudice from the delay. Accordingly, the district court's dismissal was reversed and the case remanded. See: Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005).

On November 14, 2005, the United States supreme court granted review of the case to resolve the circuit split. PLN will report the decision when it is issued.

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Related legal case

Ngo v. Woodford

[48] In Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003), the Sixth Circuit held that a prisoner exhausts all available administrative remedies when he finishes "one complete round of the prison [grievance] process," regardless whether he filed a timely appeal. Id. at 733. The court explained that the PLRA's exhaustion provision is "a benefit accorded to state prisons, an opportunity to satisfy those inmate grievances the state wishes to handle internally." Id. at 726 (citing Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)).

[49] According to the Sixth Circuit, when filing a late claim, a prisoner fulfills the letter and spirit of the PLRA by providing the state an opportunity to review the claim. See id. If the state refuses to consider the claim, then this decision should not "handcuff the federal courts in adjudicating cases involving important federal rights." Id.

[50] 2. The Third, Seventh, and Tenth Circuits: An Untimely Administrative Appeal Does Not Satisfy the PLRA's Exhaustion Requirement

[51] Confronted with similar situations, the Seventh and Tenth Circuits interpreted the PLRA's exhaustion requirement as requiring a timely grievance by a prisoner at the administrative level before the prisoner initiates a federal cause of action. See Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), cert. denied, 537 U.S. 949 (2002). Both circuits feared that prisoners would purposely avoid administrative deadlines, thereby undermining the PLRA's objective of offering prisons the first opportunity to resolve a prisoner's complaint. See Ross, 365 F.3d at 1186; Pozo, 286 F.3d at 1023-24.

[52] Specifically, the Seventh Circuit concluded that without some doctrine akin to procedural default, prisoners could " 'exhaust' state remedies by spurning them." Id. Thus, in the Seventh Circuit, "procedural default also means failure to exhaust one's remedies." Id. at 1024. But see Franklin, 290 F.3d at 1230 (distinguishing the two concepts). An inmate's failure to timely exhaust administrative remedies, regardless of the merits of his grievance, bars the inmate from bringing a subsequent federal suit. See Pozo, 286 F.3d at 1024 ("Failure to do what the state requires bars, and does not just postpone, suit under § 1983."). To hold otherwise, according to the Seventh Circuit, would leave the PLRA's exhaustion requirement "without any oomph." Id. at 1025.

[53] The Third Circuit likewise concluded that the PLRA contains a procedural bar rule, emphasizing that its policy goals would be best served by requiring prisoners to file timely grievances with prisons before launching a § 1983 action. See Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004) ("We believe that Congress's policy objectives will be served by interpreting § 1997e(a)'s exhaustion requirement to include a procedural default component."). But the Spruill court had some qualms about its holding. It found "neither position entirely satisfactory," and acknowledged that "an exhaustion rule can (though need not) be fairly read to include a procedural default component." Id. at 229-30.

[54] As explained below, the Third, Seventh, and Tenth Circuits' arguments do not convince us, primarily because we think their heavy reliance on the need for a procedural bar similar to that found in the habeas context is misplaced.

[55] 3. The PLRA's Exhaustion Requirement is Not Analogous to Habeas Exhaustion

[56] [3] "[A]s a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act." Rose v. Lundy, 455 U.S. 509, 515 (1982); see also Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004) ("[I]f a state procedural bar is an adequate and independent ground for dismissal, habeas corpus is foreclosed in federal court . . . ."). That is why a state prisoner must first exhaust the remedies available at the state level before petitioning for federal habeas corpus relief. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (holding that the independent and adequate state ground doctrine bars federal habeas if the prisoner failed to meet a state procedural requirement).

[57] Specifically, "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Even though the habeas exhaustion requirement under § 2254 does not specifically mention procedural default, the Supreme Court has grafted procedural default onto § 2254's exhaustion requirement. As a result, a prisoner may be procedurally barred from bringing a habeas petition in federal court even though he has technically exhausted his claims with an untimely habeas petition filed in state court.

[58] In habeas corpus cases, the merger of exhaustion with procedural default protects federal-state comity by providing state courts with the first opportunity to correct their errors. This upholds the dignity of state judgments by preventing inmates from "undermin[ing] the State's interest in enforcing its laws" through an "end run" by strategically defaulting in state court to avoid the habeas exhaustion requirement. Coleman, 501 U.S. at 730-31. Essentially, the state criminal process should be the "main event" rather than a "tryout on the road" to a dispositive federal habeas hearing. Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (internal quotation marks omitted).

[59] [4] A state's sovereignty, however, is less threatened when a federal court reviews "a non-criminal state administrative process" for violations of constitutional rights compared to when a federal court reviews a collateral attack on a sovereign state court's judgment. See Thomas, 337 F.3d at 727 n.2. Section 1983 suits by prisoners do not collaterally attack a prison grievance proceeding and do not require a collateral review.

[60] [5] Even though the PLRA uses language similar to that of § 2254, nothing in the PLRA mentions procedural default or indicates an intent to bar suits by prisoners who fail to meet administrative time requirements mandated by prisons. In fact, the language of § 1997e(a) strongly suggests that an exhaustion requirement defers, not bars, a federal suit: inmates may not sue "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). This is in contrast to the language used for habeas exhaustion requirement: the writ may not issue "unless . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1) (emphasis added).

[61] [6] Moreover, the PLRA has no language instructing courts how to treat administrative findings. In this case, for instance, the Appeals Coordinator determined that Ngo's appeal was untimely, resolving a very difficult legal issue that depends on whether the restrictions should be treated as a continuing injury or a one-time harm at the time they were imposed. Unlike § 2254, which explicitly provides a standard of review for collateral re-examination of state court rulings on issues of fact and law, see 28 U.S.C. § 2254(d), nothing in the PLRA directs federal courts to defer to such a legal conclusion, or to any factual findings made by prison administrators. Prison grievance proceedings are not sufficiently judicial in nature to warrant preclusive effect at all. Cf. Cleavinger v. Saxner, 474 U.S. 193, 203-04 (1985) (holding that members of a prison disciplinary committee were not entitled to the absolute immunity accorded judges because they were not "professional hearing officers, as are administrative law judges," and that disciplinary hearings were not required to observe judicial norms). Prison grievance administrators are not judges trained to handle the intricacies of the legal issues in cases they hear; they do not enforce constitutional rights and cannot award damages to inmates. Furthermore, the standards governing suits in state or federal courts are not necessarily adhered to during prison grievance proceedings. Simply put, a prison's administrative grievance proceeding can in no way be the "main event" in a prisoner's attempt to have a constitutional violation redressed.

[62] The defendants urge that barring Ngo's § 1983 action will best serve the policy objectives of the PLRA's exhaustion requirement by "afford[ing] corrections officials time and opportunity to address complaints internally," and to take "corrective action . . . [that] might improve prison administration and satisfy the inmate." Porter v. Nussle, 534 U.S. 516, 524-25 (2002). Furthermore, the defendants worry that, by the time an inmate files an appeal, the inmate's injury may "no longer be amenable to intervention or rectification by the prison." Appellees' Supplemental Answering Brief at 7. In addition, the defendants express concern that a ruling in favor of Ngo would encourage prisoners to file a late claim in order to skip the administrative process and head straight to federal court.

[63] But the defendants fail to recognize that internal administrative appeals offer prisoners the fastest route to a remedy. See Thomas, 337 F.3d at 732 ("[P]otential litigants will still have every incentive to raise their grievance within the prison's timelines, because it is in the prison grievance process that inmates will, for most practical purposes, receive their swiftest and most effective remedies."). We have no reason to believe that prisoners will not avail themselves of "the most efficient mechanism to remedy a violation of federal law." Id. at 726. Prisoners have every incentive to seek administrative review before suing in federal court. After all, the administrative process provides prisoners with an additional attempt to win a favorable ruling. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 764 (1979) (finding "[n]o reason" why one would "forgo an available state remedy" where, as here, "[p]rior resort to the state remedy would not impair the availability of the federal remedy"). These are all strong reasons why prisoners will not bypass the administrative process by purposely not filing a timely grievance. Here, for example, we are not dealing with a case where the prisoner deliberately bypassed the administrative process, or even a case of protracted delay. Ngo gave the prison grievance process a chance to work; indeed, it's debatable whether his appeal was even untimely.

[64] Even assuming that an inmate wished to skip a prison's grievance system in order to quickly get into district court, the inmate must still submit his untimely grievance to the prison and appeal all denials of his claims completely through the prison's administrative process to satisfy the PLRA's exhaustion requirement. Holding that the PLRA does not contain a procedural default bar thus would in no way obstruct the goal of allowing prison officials first crack at resolving prisoners' grievances. It is for the prison to decide whether to exercise its discretion and accept or refuse the opportunity to hear the case on the merits regardless whether the grievance is timely filed. In this case, the Appeals Coordinator could have considered Ngo's appeal; she was authorized to do so by the grievance regulations, but elected not to.

[65] 4. The PLRA's Exhaustion Requirement Is More Like Administrative Exhaustion

[66] The exhaustion doctrine has also been used in administrative law. Exhaustion in the administrative context protects an administrative agency's authority. See McCarthy, 503 U.S. at 145. In addition, administrative exhaustion "promotes judicial efficiency" by allowing the agency the opportunity to correct its own errors and to create a record which might facilitate judicial review. Id.

[67] [7] In cases involving other federal statutes, the Supreme Court has stated that administrative exhaustion does not include a procedural default component. For example, in EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988), the Supreme Court held that a Title VII complainant's untimely grievance was irrelevant in determining whether she could proceed to federal court. See id. at 123. Similarly, in Oscar Mayer & Co., the Court held that state procedural defaults in claims under the Age Discrimination in Employment Act "cannot foreclose federal relief." 441 U.S. at 762; see also id. at 759 ("[T]here is no [statutory] requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law.").

[68] Thus, a procedural default has not been implanted into either the Age Discrimination in Employment Act's or Title VII's exhaustion requirements. Both cases give us pause about imposing a sanction that bars claims which failed to comply with administrative timing deadlines, in the absence of any statutory direction to do so. Cf. Franklin, 290 F.3d at 1231 (explaining that the "long-established differences between the exhaustion requirement and the procedural default doctrine preclude any conclusion that Congress implicitly intended to reach" one by a statutory reference to the other); Patsy, 457 U.S. at 514 (reasoning that the "difficult questions concerning the design and scope of an exhaustion requirement . . . might be answered swiftly and surely by legislation").

[69] Moreover, such a scheme would penalize the less sophisticated and less informed who are unable to satisfy complex and demanding procedural requirements, regardless of the merits of their claims. Cf. McCarthy, 503 U.S. at 153 ("As a practical matter, the filing deadlines . . . may pose little difficulty for the knowledgeable inmate accustomed to grievances and court actions. But they are a likely trap for the inexperienced and unwary inmate, ordinarily indigent and unrepresented by counsel, with a substantial claim.").

[70] Congress intended § 1997e(a) "to reduce the quantity and improve the quality of prisoner suits." Porter, 534 U.S. at 524. Merging procedural default with the PLRA's exhaustion requirement, though, would potentially reduce the quantity of meritorious suits and would not necessarily improve the quality of the surviving suits. In addition, neither the interests of federalism nor comity are served by imposing a procedural default component on the PLRA's exhaustion requirement. We recognize that procedural bars will certainly filter out some suits brought by prisoners. But neither can we be blind to "the serious impact on prisoners with legitimate claims who are unrepresented, unschooled in litigation, and often ill-equipped to negotiate an administrative system far harsher in its procedural requirements than state or federal courts."*fn5 Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 Emory L.J. 1771, 1813 (2003).

[71] [8] In sum, the PLRA exhaustion requirement tends to resemble administrative exhaustion. Thus, the reasons for utilizing procedural default doctrine in the habeas context are generally irrelevant to prisoner suits under the PLRA. There is no need for us to convert a rule governing the timing of lawsuits into one that bars them entirely.


[73] In a prison grievance system, the trust between prisoners and the administration is minimal at best, and nonexistent at worst. As is, prison grievance procedures are sufficiently difficult for prisoners to comply with. Judicial imposition of the procedural default doctrine on suits brought under the PLRA, coupled with the relatively short filing periods for prisoner grievances, might very well preclude prisoner-litigants with meritorious claims from ever bringing suit. Not even proponents of the PLRA wanted to bar worthy claims.

[74] Procedural default is not an inextricable element of the PLRA's exhaustion requirement. If it were, prisoners' access to courts would be based on their ability to navigate procedural minefields, not on whether their claims had any merit. Moreover, prison administrators should not be given an incentive to fashion grievance procedures which prevent or even defeat prisoners' meritorious claims.

[75] [9] Thus, we hold that Ngo exhausted all administrative remedies available to him as required by the PLRA when he completed all avenues of administrative review available to him: His administrative appeal was deemed time-barred and no further level of appeal remained in the state prison's internal appeals process. We also hold that the PLRA's exhaustion requirement does not bar subsequent judicial consideration of an exhausted administrative appeal that was denied on state procedural grounds.*fn6 Accordingly, the district court's dismissal of Ngo's complaint is REVERSED.

Opinion Footnotes

[76] *fn1 Honorable John S. Rhoades, Sr., Senior United States District Judge for the Southern District of California, sitting by designation.

[77] *fn2 This being said, the PLRA's sparse legislative history primarily consists of PLRA proponents parroting the frivolous cases compiled by the National Association of Attorneys General. See, e.g., 141 Cong. Rec. S14611-01 at S14627-29 (daily ed. Sept. 29, 1995) (statement of Sen. Reid); 142 Cong. Rec. S10576-02 at S10576-77 (daily ed. Sept. 16, 1996) (statement of Sen. Abraham). Sadly, several of the most widely cited cases of frivolous prisoner lawsuits were mischaracterized by the proponents of the PLRA. See 62 Brook. L. Rev. 519, 520 (stating that the descriptions of the facts of prisoners' lawsuits contained on the list of frivolous suits circulated to Congress and media were "at best highly misleading and, sometimes, simply false"); see also Changing the Rules: Prison Officials and Legislators Mount an All-Out War Against Prisoners' Right to Legal Access, at html (last visited February 18, 2005).

[78] *fn3 The record is unclear whether the June 18, 2001, appeal was at the informal or first formal level. The district court referred to the June appeal as informal. Ngo, however, claims that a letter he sent on March 20, 2001, to the Deputy Warden constituted his informal appeal, while the June 18, 2001, appeal comprised his first formal appeal. The Appeals Coordinator screens out appeals at the first formal level, not at the informal level. This suggests that the June 2001 appeal, rejected by the Appeals Coordinator for untimeliness, was in fact Ngo's first formal appeal.

[79] *fn4 Why prison filing deadlines tend to be so short is unclear. See McCarthy, 503 U.S. at 152 ("[W]e have not been apprised of any urgency or exigency justifying this timetable.").

[80] *fn5 For instance, the current limitations period for § 1983 actions in California is two years. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). If the plaintiff is a California inmate the statute of limitations would effectively shrink to fifteen working days under the procedural bar rule adopted in cases like Pozo. See Cal. Code Regs. tit. 15, §§ 3084.3(c)(6), 3084.5(a)(1), 3084.6(c). The purpose of the PLRA was to reduce the number of meritless lawsuits, not simply to make things harder for inmates, irrespective of the merits of their claims.

[81] *fn6 We therefore do not decide whether the Appeals Coordinator properly determined that Ngo's appeal was untimely, or what standard of review would apply were we to do so.