14-e-1 What Is Exhaustion?

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

14-E-1. What Is Exhaustion?

Exhaustion under the PLRA means "proper exhaustion," which is "compliance with an agency's deadlines and other critical procedural rules."¹⁸⁴ Part E(5) of this Chapter discusses this point in detail.

Exhaustion also means taking your complaint all the way to the end of the internal prison complaint process that applies to your problem. Your internal prison complaint process is usually the prison's grievance system. You must use every appeal available to you¹⁸⁵ and complete the process before you file suit.¹⁸⁶ Once the deadline for the final decision of your last appeal has passed, you can file suit even if you have not heard the decision.¹⁸⁷ As long as you file suit after the time limit for a decision has passed, you have exhausted your internal administrative remedies, even if the authorities then issue a late decision.¹⁸⁸ It is not clear how long you have to wait if the system has no deadline for deciding your final appeal.¹⁸⁹ A number of courts have said that if you do not get a response to your initial grievance, you have exhausted your available interal remedies.¹⁹⁰ However, other courts have said that if the grievance system allows you to treat a non-response as a denial and appeal it, you must do so.¹⁹¹ When in doubt, try to appeal, even if officials have failed to respond. Once you bring suit, prison officials may argue that you did not try hard enough to exhaust your remedies, but prison officials cannot keep you out of court by ignoring your grievances.¹⁹²

Courts have said that if you win your grievance before the final stage and do not appeal, you have exhausted, since it makes no sense to appeal if you win.¹⁹³ You are best advised not to rely on that statement, however, because some courts have also held that if you do not win all possible relief in the grievance, then you have not technically exhausted all available remedies.¹⁹⁴ Prison officials and their lawyers will almost always be able to think of some relief you could possibly have obtained, and the court may accept their arguments.¹⁹⁵ Courts have held that if you have been "reliably informed by an administrator that no remedies are available," you do not have to keep appealing.¹⁹⁶ If you do not have such an assurance and you want to bring suit, you should probably appeal any decision all the way up, no matter what. If you have to explain why you are appealing a positive decision, you could respond by saying something like "to exhaust my administrative remedies by calling this problem to the attention of high-level officials so they can take whatever action is necessary to make sure it never happens again."¹⁹⁷

"Exhaustion" generally means using whatever formal complaint process is available (usually a grievance system or administrative appeal). "Proper Exhaustion" requires that you follow all of the rules of the prison process.¹⁹⁸ Courts cannot require you to do more than proper exhaustion.¹⁹⁹ Letters and other informal means of complaint, such as participating in an internal affairs or inspector general investigation, generally will not be considered proper exhaustion²⁰⁰ unless the prison rules specifically identify them as an alternative means of complaint²⁰¹ or there are "special circumstances" justifying your failure to exhaust properly.²⁰² In a few cases, courts have said that non-grievance complaints that were actually reviewed at the highest levels of authority in the prison system satisfied the exhaustion requirement,²⁰³ but this result is less likely after the Supreme Court's "proper exhaustion" holding in Woodford v. Ngo.

The Second Circuit has questioned the idea of informal exhaustion. It has ruled that a prisoner who got what he asked for in an informal process should have filed a formal grievance anyway because that process could have provided for other relief, such as changes in policy or discipline of staff.²⁰⁴ As a result, it is best in all circuits to file a grievance and pursue it all the way to the top if you want to try to solve your problem informally but still want to be able to sue about what happened.

The Second Circuit has held that if a prisoner uses the wrong prison administrative procedure through a "reasonable misunderstanding" of the rules, that prisoner has an excuse for failing to exhaust correctly. If the correct administrative remedy is still available, the prisoner must try to use it, but if it is no longer available, the prisoner's case may go forward without exhaustion.²⁰⁵ A prisoner may also be justified in failing to exhaust the correct procedures because of threats or intimidation by prison staff.²⁰⁶ These rules appear to still be good law after the Woodford "proper exhaustion" ruling, since they address fact situations different than those before the Supreme Court in Woodford. But the Second Circuit has not yet ruled on that question.²⁰⁷

The exhaustion requirement refers only to administrative remedies. You do not need to exhaust judicial remedies (go to state court, in other words) before you go to federal court.²⁰⁸ The administrative remedies Congress had in mind when it passed the PLRA are internal prison grievance procedures.²⁰⁹ A prisoner is not required to exhaust state or federal tort claim procedures, unless he wishes to make...