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Sixth Circuit Now Permits § 1983 Complaint to Proceed Even If Prisoner Did Not Initially Plead Exhaustion Below

Sixth Circuit Now Permits § 1983 Complaint to Proceed Even If Prisoner Did Not Initially Plead Exhaustion Below

The Sixth Circuit U.S. Court of Appeals has vacated its precedent which held that a prisoner had an affirmative burden to plead exhaustion of administrative remedies in a § 1983 complaint. Following the U.S. Supreme Court’s ruling to the contrary in Jones v. Bock, 127 S.Ct. 910 (2007) [PLN, May 2007, p.36], the Sixth Circuit granted a prisoner’s Fed.R.Civ.P. 60(b)(1) motion to abate the district court’s dismissal of his complaint for having failed to affirmatively plead exhaustion.

Michigan prisoner Raphael Okoro had sued prison authorities in pro per, alleging violation of his constitutional rights related to a prison policy declaring court documents to be contraband and requiring their immediate destruction. His case was dismissed without prejudice in the U.S. District Court (E.D. Mich.) for his failure to expressly plead exhaustion of administrative remedies. Okoro’s Rule 60(b)(1) motion to correct this error of law was denied and he appealed.

In the meantime, the U.S. Supreme Court decided Jones, which expressly held that failure to plead exhaustion was not grounds for dismissal, but must instead result in a remand where the defendants could raise failure to exhaust as an affirmative defense.
Accordingly, the Sixth Circuit reversed and remanded, noting that while prison officials may yet proffer a failure-to-exhaust defense, Okoro must be permitted to proceed on any properly exhausted claims rather than simply being procedurally tossed out of court. See: Okoro v. Hemingway, 481 F.3d 873 (6th Cir. 2007).

Upon remand, on November 7, 2007, the district court granted the defendants’ motion to dismiss all of Okoro’s claims due to insufficient service of process and because Okoro had failed to exhaust administrative grievances as required by the PLRA. See: Okoro v. Krueger, U.S.D.C. (E.D. Mich.), Case No. 05-cv-70269; 2007 WL 3333472.

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Related legal cases

Okoro v. Krueger

Okoro v. Hemingway

Okoro v. Hemingway, 481 F.3d 873, 2007 Fed.App. 0120P (6th Cir. 04/03/2007)


[2] No. 06-1816

[3] 481 F.3d 873

[4] April 3, 2007


[6] Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 05-70269-Paul D. Borman, District Judge.

[7] Counsel

[8] ON Brief: Ralphael Okoro, Milan, Michigan, pro se.

[9] The opinion of the court was delivered by: Boyce F. Martin, Jr., Circuit Judge

[10] RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

[11] Submitted: January 30, 2007

[12] Before: MARTIN, BATCHELDER, and McKEAGUE, Circuit Judges.


[14] Ralphael Okoro, proceeding pro se, appeals a district court order denying his motion for relief from judgment filed pursuant to Fed. R. Civ. P. 60(b). This case has been referred to a panel of this Court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

[15] Okoro is an inmate housed at the Federal Correctional Institution in Milan, Michigan. In January, 2005, he filed a "mandamus complaint" against various prison officials, alleging that his constitutional rights had been violated by the defendants' enforcement of a policy that declared court documents to be contraband and required immediate destruction of such documents. On August 16, 2005 the district court dismissed Okoro's complaint without prejudice because he failed to plead exhaustion of his administrative remedies before filing the lawsuit. The district court also denied Okoro's motion for reconsideration. Okoro subsequently filed a motion to "Reinstate and Reopen" his complaint, which the district court construed as a 60(b) motion and subsequently denied. Okoro now appeals this 60(b) denial.

[16] In its order dismissing Okoro's complaint, the district court relied upon the then-governing law of this Circuit, which interpreted the Prisoner Litigation Reform Act to require prisoner-litigants to plead that they had exhausted their available administrative remedies with respect to all of their claims and all named defendants before filing suit. This precedent has since been reversed by the Supreme Court. Jones v. Bock, 127 S.Ct. 910, 921, 923-25 (2007) (holding that (1) "failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints"; (2) "exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances"; and (3) where a complaint contains both exhausted and unexhausted claims, the district court should proceed with the exhausted claims while dismissing the unexhausted claims, rather than dismissing the complaint in its entirety).

[17] Rule 60(b)(1) provides for relief from judgment in instances of "mistake, inadvertance, surprise, or excusable neglect," and governs instances where the mistake was based upon legal error. Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). As Jones makes clear, the precedent of our Court, upon which the district court relied in dismissing Okoro's complaint, was a mistaken interpretation of the Prisoner Litigation Reform Act. Thus, in light of Jones, Okoro is entitled to relief from judgment under Rule 60(b)(1). We reverse the district court's dismissal of Okoro's complaint, and remand the case for further proceedings consistent with Jones.