Since the passage almost 30 years ago of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, prisoners have been required prior to filing suit against their captors to exhaust all available administrative remedies, usually through the prison grievance system. A body of case law has since arisen defining the exception to the exhaustion requirement implicit in the word “available.” A prison grievance system that leads only to a “dead end” is one such exception, according to Ross v. Blake, 578 U.S. 632 (2016), as is a system that that is too “opaque” or actively thwarted by prison administrators. 

Exhaustion is a threshold decision, a hurdle that a prisoner must clear before a court will consider the merits of their case. But what happens when the prisoner’s claims are tied up in allegations that administrative remedies were unavailable? That was the question before the Supreme Court of the U.S. (SCOTUS) in the case of Michigan prisoner Kyle Brandon Richards, who accused a state Department of Corrections (DOC) guard, Thomas Perttu, of sexually assaulting him, along with several other prisoners, and then tearing up the grievances that they filed. To believe the guard’s denial of one was to believe his denial of both, Perttu argued—so he should be able to present his evidence.

Proceeding pro se, he was allowed a bench trial at the U.S. District Court for the Western District of Michigan, which found him guilty of failure to exhaust the DOC grievance system. The magistrate conducting the trial discounted corroborating testimony from fellow prisoners that Richards called. Still representing himself, he then turned to the U.S. Court of Appeals for the Sixth Circuit, which reversed that decision, agreeing with Richards that he was entitled to a jury trial on the exhaustion dispute, even if that “would also resolve a genuine dispute of material fact regarding the merits of the plaintiff’s substantive case.”

However, this contradicted precedent from the Seventh Circuit that prevented such a dual question from reaching a jury. As PLN reported, that ruling provided that a judge should conduct the same type of evidentiary hearing that Richards was granted, though any portion of the ruling that also touched on the merits of the claim should be withheld from the jury when its turn came to hear the case. See: Pavey v. Conley, 544 F3d 739 (7th Cir. 2008). [See also: PLN, July 15, 2011, online.] The Ninth Circuit also adopted this framework in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), an en banc decision largely affirming an earlier panel ruling that PLN also reported. [See: PLN, Oct. 4, 2014, online.]

That precedent worked fine, of course, when the judge greenlit the claims for trial. But what about Richards’ situation, in which his claims against Perttu could never reach a jury because a judge determined they were unpersuasive? Isn’t that a decision reserved for a jury under the Seventh Amendment? Faced with a circuit split on this question, SCOTUS granted a writ of certiorari to hear the case. In its decision on June 18, 2025, the high Court said that the Sixth Circuit was right: “Parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that requires a jury trial under the Seventh Amendment.”

SCOTUS Reasoning

At the time that the PLRA was adopted, the Court noted, it was already well-established in U.S. case law that factual claims “intertwined with claims that fall under the Seventh Amendment should go to a jury.” As an example, the Court pointed to cases with both legal and equitable claims. Normally a judge rules on the former, and then a jury is pooled to hear the latter. But if “resolving the equitable claims could ‘prevent a full jury trial’ on the legal claims, the legal claims first [need] to be resolved by a jury,” the Court declared, pointing to Beacon Theatres v. Westover, 359 U.S. 500 (1959). 

Similarly, the Court continued, judges typically resolve factual disputes regarding their jurisdiction over the subject-matter of a case—unless doing so would also require resolving a factual dispute on the merits of a claim. “[W]here the question of jurisdiction is dependent on decision of the merits,” the Court said, a district court must “proceed to a decision on the merits,” under Land v. Dollar, 330 U.S. 731 (1947). The Sixth Circuit reasoned that if this were true for a subject-matter dispute, it must certainly hold for “the lesser concern of an affirmative defense” like PLRA exhaustion. “We find that reasoning persuasive,” SCOTUS agreed.

It did not find persuasive Perttu’s arguments—that “factual findings … concerning exhaustion have no estoppel effect in a later jury trial.” This was essentially the holding in Pavey that the Sixth Circuit rejected, for reasons that the Court found sound: “Even assuming Perttu is right that a jury may ‘reexamine the judge’s factual findings,’ that ‘rationale’ ‘rings hollow if the prisoner’s case is dismissed for failure to exhaust,’ because ‘[i]n such an instance, a jury would never be assembled to resolve the factual disputes.’” Moreover, Congress was well aware of this when it adopted the PLRA, so the law’s silence on the matter “is strong evidence that the usual practice should be followed,” the Court continued, quoting Jones v. Bock, 549 U.S. 199 (2007).

Accordingly, “when a judicial ruling on PLRA exhaustion might have estoppel effect in a later jury trial,” then the “proper path … is to hold the jury trial, not to change the estoppel rules,” the Court declared. Importantly, the decision acknowledged the reality that “‘the time frames for . . . grievances are … very short’— on the order of days.” So to say that “a prisoner might someday get [to] a jury by starting over, exhausting the grievance procedures, then refiling his lawsuit” is “no answer, in our view,” the Court declared, since “that path is impossible in most cases.”

Dissenting from the majority, Justice Amy Coney Barrett, joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh, declared that “the jury right conferred by the Seventh Amendment does not depend on the degree of factual overlap between a threshold issue and the merits of the plaintiff ’s claim.” Here, the PLRA’s silence on the matter did not call for judicial intervention to recognize the right but an approach like that established in Pavey and Albino, the two cases that the majority partially overruled. Before the Court, Richards’ case was argued by University of Virginia School of Law Lecturer Lori A. McGill. See: Perttu v. Richards, 145 S. Ct. 1793 (2025).  

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