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Ninth Circuit: Federal Complaint Cannot be Submitted Before PLRA Exhaustion is Completed

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals held that a prisoner must have completed his available administrative exhaustion procedures before he can submit a 42 U.S.C. § 1983 complaint to the federal courts. Where a state prisoner had filed a complaint with exhaustion pending, but finished the exhaustion requirements by the time the federal court had granted his in forma pauperis (IFP) motion, the proper remedy was to dismiss the complaint without prejudice to permit refiling in the proper sequence.

High Desert State Prison (California) prisoner Ernest Vaden filed an administrative appeal (form 602) claiming misconduct by three prison employees. The form 602 was partially granted at the first and second formal levels of review, but denied at the Director's level. However, while the Director's level review was still pending on November 3, 2003, Vaden submitted his civil rights complaint, including an IFP motion. The U.S. District Court (E.D. Cal.) granted Vaden's IFP motion and formally filed his complaint on March 10, 2004, by which time the form 602 had been denied at the Director's level. Defendants moved unsuccessfully to dismiss for failure to exhaust administrative remedies. The Ninth Circuit certified defendants' challenge to the motion for interlocutory appeal per 28 U.S.C. § 1292(b).

The appellate court focused on the language of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), which states that "no action shall be brought ... until such administrative remedies as are available are exhausted." The precise question was at what point in the proceedings is an action "brought." Vaden, appearing in pro per, argued that an action is "brought" when it is "filed," which in this case was well after it was submitted. That is, the complaint was formally filed when the district court authorized the "commencement ... of the suit ... without prepayment of fees" (28 U.S.C. § 1915).

The Ninth Circuit noted that in most civil actions, "submission" and "filing" of a complaint are simultaneous events. However, prisoner cases are unique in that they have a "gap" pending approval of IFP status, because 28 U.S.C. § 1915A(b) permits courts to dismiss insufficient complaints first. The appeals court followed the Seventh Circuit, which held that an action is "brought" when it is submitted to the court. See: Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004). In so "bringing" a suit, a plaintiff must have first finished exhausting administrative remedies. The appellate court held this reasoning flows from the objectives of the PLRA, which seek to "reduce the quantity and improve the quality of prisoner suits" (Porter v. Nussle, 534 U.S. 516, 524-25 (2002)). Porter went on to observe that full exhaustion is important because it might allow corrective action to obviate the need for litigation, filter out frivolous claims, or clarify the contours of the controversy.

The Ninth Circuit noted that exhaustion requirements are routinely enforced "by dismissing a suit that begins too soon, even if the plaintiff exhausts his administrative remedies while the litigation is pending. ... It would be inconsistent with the objectives of the statute to let [plaintiff] submit his complaint any earlier than [the end of the administrative process]." Accordingly, the Ninth Circuit reversed and remanded to the district court to dismiss Vaden's suit without prejudice. Since the exhaustion requirement is now concededly complete, Vaden may refile the complaint immediately. See: Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006).

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Related legal case

Vaden v. Summerhill