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Article • May 15, 2007
Failure to Exhaust Differs from Failure to State Claim under PLRA by The court rejects the proposition that failure to exhaust administrative remedies is a strike under the PLRA. At 965-66 (footnotes omitted): . . . [T]he PLRA does not use "failure to state a claim" and "failure to exhaust …
Article • May 15, 2007
Non Exhaustion Dismissals without Prejudice by The plaintiff was injured in a Puerto Rico prison and transferred to a federal institution, from which he filed suit. His claim is dismissed for non-exhaustion. The court distinguishes cases that say exhaustion is not required after release, and cites cases saying exhaustion is …
Article • May 15, 2007
Timeliness of Administrative Exhaustion Claim Needs to be Presented in Grievances by Timeliness of Administrative Exhaustion Claim Needs to be Presented in Grievances Plaintiff said he shouldn't have to exhaust because inmate assault is not grievable. Wrong. He said he shouldn't have to exhaust because Porter v. Nussle hadn't been …
Article • May 15, 2007
Loss of Time a Compensable Damage by Loss of Time a Compensable Damage The plaintiffs complained of a course of mistreatment by the police. At 208: "The concept of actual injury at common law is a broad one, and the Supreme Court has recognized that 'compensatory damages may include not …
Article • May 15, 2007
BOP Detainer Suit Dismissed by The plaintiff federal prisoner complained of a detainer lodged against him by Indiana. He asked for disposition of the Indiana charges as provided in the Interstate Agreement on Detainers, and was taken to Indiana for arraignment, then returned to federal custody, then taken back to …
Article • May 15, 2007
IG Complaints Can Constitute Exhaustion by A plaintiff who didn't exhaust timely can't rely on the Porter v. Nussle change of law, because the earlier decision on which he might have relied, Nussle v. Willette, had not been decided. Porter applies retroactively. (That holding appears to be overruled by Rodriguez …
Administrative Exhaustion Tolls Statute of Limitations by The "prescriptive period" (statute of limitations) is tolled pending administrative exhaustion because the prisoner is barred from bringing the action until exhaustion is finished. Once exhaustion is complete, the prisoner is legally capable of going forward and the statute begins again to run. …
BOP Prisoner Granted PI for Release Placement by The plaintiff was informed that contrary to past practice, he could not be considered for pre-release designation to a community correction center for more than 10% of his prison term or six months. He is granted a preliminary injunction. The Department of …
Article • May 15, 2007
BOP Ordered to Review Work Release Application by The petitioner sought a writ of habeas corpus because he was excluded from placement in a community confinement center (CCC) for more than the last six months of his sentence pursuant to the abruptly announced change in policy by the Federal Bureau …
Article • May 15, 2007
Snitch Jacketing Dismissed for Failing to Exhaust by The court acknowledges the "alternative" emergency grievance procedure. Defendants say plaintiff didn't appeal to the Central Office Review Committee, submitting an affidavit to that effect by grievance director Eagen. At 246: However, the record regarding the grievances filed by plaintiff is not …
Article • May 15, 2007
Exhaustion is an Affirmative Defense under PLRA by Plaintiff wrote on the complaint form, where it asked whether he had filed a grievance, that he had not because "I did not know what to do." He never responded to defendants' motion to dismiss. The PLRA exhaustion requirement is not jurisdictional …
Article • May 15, 2007
No Total Exhaustion Rule for Michigan District Court by The author of the opinion in Jenkins v. Toombs adheres to his "no total exhaustion" position, with some acerbity, in a case wherein the magistrate judge adopted the "yes total exhaustion" position of a different judge in the same district who …
Article • May 15, 2007
Failure to Exhaust Dismissals Count as PLRA Strike by Failure to Exhaust Dismissals Count as PLRA Strike The plaintiff argued that a previous case should not be counted as a strike because some claims were dismissed as frivolous but others were dismissed for failure to exhaust. Another judge has already …
Challenge to Prison Library Purge Properly Exhausted by Plaintiff challenged prison censorship on the ground that similar books to those he was denied were in the prison library; so they purged the prison library of 21% of its contents, e.g., Sophie's Choice, Myra Breckinridge, and "a number of works by …
Article • May 15, 2007
Filing Amended Complaint Allows Defendants to Raise Waived Defense by A prisoner who is released after he files suit is still bound by the PLRA exhaustion requirement. Rulings to that effect "are consistent with the plain language of the PLRA, which focuses on the time that a lawsuit is 'brought' …
Article • May 15, 2007
Michigan District Court Discusses Administrative Exhaustion by The plaintiff may amend his complaint, which consisted of exhausted claims, to add new claims which had subsequently been exhausted. At 551: . . . [A] rule requiring separate cases every time a new grievance is exhausted is fundamentally at odds with Congress' …
Delaware DOC Denial of Medical Diet Suit Proceeds by The plaintiff filed a grievance in September 1998, almost four years before the defendants moved to dismiss for non-exhaustion, and had received no response. There's no futility exception to the PLRA exhaustion requirement. At 602: However, this Court has held that …
Article • May 15, 2007
IG Complaints Alone Don't Exhaust NY Jail Complaints by The plaintiff sought relief under Rule 60 from dismissal for non-exhaustion on the grounds that newly discovered evidence showed that his allegations had been under investigation by the Inspector General, rendering them non-grievable. The court says this wouldn't excuse him from …
Substantial Compliance with Administrative Remedy Rules Satisfies PLRA Despite Prisoner's Procedural by Substantial Compliance with Administrative Remedy Rules Satisfies PLRA Despite Prisoner's Procedural Deficits The District of Columbia's Court of Appeals has held that procedural defects in a prisoner's pursuit of administrative remedies does not bar a civil suit per …
Article • May 15, 2007
Prison Officials Must Follow Own Grievance Procedures by Defendants argued that though plaintiff had filed grievances about various matters, he had only gone to the final step with grievances about one defendant; therefore other defendants must be dismissed. At 211: In response, plaintiff has submitted an affidavit explaining the steps …
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