14-e-5 What if You Make a Mistake Trying to Exhaust?

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

14-E-5. What If You Make a Mistake Trying to Exhaust?

Prisoners not only must exhaust, they must do it correctly. The Supreme Court has held that the PLRA exhaustion requirement requires compliance with an agency's deadlines and other critical procedural rules because no decision-making system can work well without having an orderly structure.³⁰⁸ If your grievance or other complaint is rejected because you did not follow the required procedures, the court will find that you failed to exhaust and will not allow your lawsuit to go forward.³⁰⁹

This does not mean that you should just give up if you fail to follow a procedural rule. You should pursue your grievance, request that your error be excused or that you be permitted to re-file your grievance and start over, and explain any circumstances that might have caused you to make a mistake. Sometimes grievance systems allow correction and re-filing (in fact, sometimes they instruct prisoners to do so).³¹⁰ If prison officials decide the merits of a grievance and don't reject it for procedural mistakes, your procedural error will not count against you for exhaustion purposes.³¹¹ Courts have disagreed over whether a grievance is exhausted if it is rejected both on the merits and for procedural reasons.³¹² The purpose of the "proper exhaustion" rule is to preserve the prison system's ability to "function effectively."³¹³ If prison officials make a decision on the merits of your grievance, you should argue that the system has functioned effectively because prison officials were able to consider your claim before you filed a lawsuit. In any event, the harder you have tried to exhaust, the more likely the court is to rule in your favor in a close case.

There is a potential trap in the proper exhaustion rule. Sometimes you might not be able to follow the rules for reasons outside your control. An example might be you miss a deadline because you are out of the institution and have no access to the grievance process. You might think that such circumstances mean that the administrative remedy was not available for you. However, a number of courts have held that prisoners who are prevented from exhausting properly must try to exhaust improperly. For example, even if you cannot file a grievance on time, you should file a late grievance as soon as you can. Otherwise, a court could dismiss your claim for non-exhaustion. You should protect yourself against such a dismissal by filing and pursuing the late or otherwise improper grievance.

There may be a few exceptions to the proper exhaustion requirement. In 2006 in the case of Woodford v. Ngo, the Supreme Court refused to look at the possibility that prisons might intentionally try to trip up prisoners. The court avoided this question because the prisoner in the case did not argue that the prison's procedural rules were designed to make it difficult for prisoners to exhaust.³¹⁴ Since then, several other courts have cited this statement from Woodford. These courts have held that prisoners should not have their cases dismissed for non-exhaustion when they failed to comply with procedural requirements because they were arguably "tripped up" by them.³¹⁵ In Woodford, the Supreme Court also said that exhaustion law is based on administrative law and habeas corpus. However, one of the justices noted this kind of law "contains well established exceptions to exhaustion."³¹⁶ Several decisions have cited these observations and allowed claims to go forward in some instances, even when a prisoner had not completely followed prison grievance rules while trying to exhaust.³¹⁷

Before the Woodford decision, the Second Circuit Court had set out circumstances in which a prisoner's failure to exhaust would not bar litigation. In their decision, which likely is still a good argument after Woodford, the court lays out principles that you could use to defend your claim even if you failed to exhaust it:

First, the court must ask: whether administrative remedies were in fact "available" to the prisoner. [Second], [t]he court should also inquire . . . whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. [Third], [i]f the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements. . . . What constitutes justification in the PLRA context "must be determined by looking at the circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way."³¹⁸

Basically, the Second Circuit says that courts should first consider whether you actually knew of a grievance and had a chance to file it. Next, courts should consider whether the defendant took action to keep you from exhausting your prison grievance. If so, the defendant might not be able to argue that your lawsuit should be dismissed for non-exhaustion. Third, courts should decide whether you have made a believable argument explaining why you weren't able to follow the prison grievance system rules.³¹⁹

The Second Circuit's decision likely remains good law, even after the Supreme Court's decision in Woodford. The first district court to address the point stated that Woodford left "open the question of whether exhaustion applies in situations such as those identified [by the Second Circuit]. . . ."³²⁰ Other courts also have adopted the Hemphill framework for deciding when prison officials' threats or intimidation make remedies "unavailable" after the Woodford decision.³²¹

A recent New York decision applying the Second Circuit's "special circumstances" rule also set apart the Woodford rule, because the prisoner had not "bypass[ed] prison grievance procedures" or "attempt[ed] to circumvent the exhaustion requirements."³²² Rather, the prisoner had tried hard to bring his complaint to the attention of responsible officials.³²³

The Second Circuit has yet to settle the issue completely.³²⁴ It has decided that a prisoner cannot only informally complain to give prison officials enough notice to investigate a problem. The Second Circuit instead stated that the PLRA requires both formal notice to officials ("substantive exhaustion") and obedience to the rules ("procedural exhaustion").³²⁵ The Second Circuit did not address its prior decision that a prisoner's reasonable understanding of confusing grievance rules may excuse his failure to follow the procedural rules.³²⁶

How else might the Woodford decision have affected the law? Some possible questions include the following:

* What if procedural requirements are not clear? Before Woodford, courts (including the Second Circuit) found special circumstances forgiving failure to exhaust properly. For example, some courts decided that a prisoner who acted reasonably when rules were unclear was excused, even if he turned out to be wrong. Other courts agreed.³²⁷ Therefore, courts have accepted that prisoners' cases can continue, even if a failure to exhaust occurred because rules were unclear.³²⁸ Cases can also continue if officials' actions or instructions (often in violation of their own rules) caused confusion in a particular case,³²⁹ or if both of these situations occurred.³³⁰ However, some courts have decided against prisoners when they simply guessed wrong in a confusing situation.³³¹ There are times when you might not know enough about a situation to be able to follow grievance rules.³³² Yet in some cases, an unsettled legal situation concerning the exhaustion requirement itself was enough to show special circumstances justifying a failure to exhaust correctly.³³³

* What if you are misled or prison officials obstruct your exhaustion efforts? Numerous cases find that non-exhaustion caused by such actions does not stop you from going on with a later lawsuit. Because the Woodford decision did not address this question, there is no good reason to think that this body of law was changed by it.

* What if you are threatened or intimidated by prison staff into not following grievance procedures? The Second Circuit has said that threats or other intimidating conduct may make the usual grievance remedy unavailable to you, it may prevent you from asserting the...