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

Total Exhaustion Rule Not Applicable to § 1983 Claims; 90 Days of Unusually Harsh Conditions States Due Process Claim

Total Exhaustion Rule Not Applicable to § 1983 Claims; 90 Days of Unusually Harsh Conditions States Due Process Claim

The Second Circuit Court of Appeals has held the total exhaustion rule does not apply to a prisoner’s 42 U.S.C. § 1983 action, and that 90 days of unusually harsh confinement conditions can state a due process violation.

This is the second time this case has been before the court. The first time, the court appointed counsel and ordered briefing on two issues: (1) whether the prison litigation reform act (PLRA), 42 U.S.C. § 1997E (A), requires dismissal in its entirety of a claim brought pursuant to 42 U.S.C. § 1983 with respect to conditions of confinement if the complaint contains any claim that has not been administratively exhausted in the prison system and (2) whether a period of confinement of less than 101 days which alleges unusually harsh conditions in a special housing unit (SHU), can survive a Fed. R. Civ. P. 12 (b) (6) motion to dismiss. See: Ortiz v. McBride, 323 F3d 191 (2nd Cir. 2003).

This lawsuit was filed by New York prisoner Joes Ortiz stemming from events at Arthur Kill Correctional facility. On September 29, 1998, Sergeant D. McBride confronted Ortiz with allegations of a confidential informant that Ortiz was smuggling drugs into and selling them within Arthur Kill. Ortiz denied the allegations. After four negative urine tests for drug use, McBride instituted disciplinary proceedings against Ortiz, who was subsequently found guilty and sentenced to 90 days SHU. On the 90th day of confinement, the disciplinary action for smuggling and selling drugs was administratively overturned. Ortiz’s civil rights complaint alleged: (1) his 90 day sentence in SHU under unusually harsh conditions violated his Fourteenth Amendment due process rights; and (2) his treatment in the unit violated his Eight Amendment right to be free from cruel and unusual punishment. On appeal, Ortiz conceded his second claim was not viable for failure to exhaust administrative remedies.

That concession left the court to decide if the total exhaustion rule required dismissal of the entire complaint for bringing both exhausted and unexhausted claims in the same complaint. The Second Circuit held a § 1983 action should not be killed, but should be cured when it presents “mixed” claims. Mixing exhausted and unexhausted claims in a federal habeas corpus proceeding results in dismissal of the entire petition. The Tenth Circuit recently held the “total exhaustion rule” applies to a prisoner’s § 1983 action. See: Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004).

The Second Circuit found the rationale of Ross misplaced, for it was barred on a fundamental principle of sovereignty: there is no comity issue of equivalent gravity “involved in prisoners civil right actions, since prisoners are not required to press their claims in state courts and prison administrations generally limit their review to determining whether prison policy has been violated,” the court said. Hence, analogies between habeas corpus and § 1983 are problematic. Because a § 1983 action, unlike a habeas corpus petition, usually contains several claims based on several sets of facts, courts will rarely have to duplicate efforts addressing claims in separate proceedings, assuring courts review claims involving a single set of facts in one proceeding under lies the habeas “total-exhaustion rule.”

Accordingly, the Second Circuit held that district courts should dismiss unexhausted claims in a § 1983 action and proceed on the merits of the exhausted claims. See: Ortiz v. McBride, 380 F.3d 649 (2004).

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

Ortiz v. McBride