14-e-6 What if You Miss a Time Limit?

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

14-E-6. What If You Miss a Time Limit?

The Supreme Court's ruling requiring "proper exhaustion" means that you must follow time limits in the grievance system.³⁶¹ It is unclear how strict the Woodford rule is for time limits.³⁶² It is also unclear if federal courts can re-examine whether a grievance was filed on time if the prison administration already decided that the grievance was not filed on time.³⁶³

In any case, you should learn the rules and meet the deadlines. But if you miss a grievance deadline, do not give up. Proceed with your grievance as quickly as possible. Name any provision in the grievance system for late grievances. Explain why you are filing your grievance late. Take all available appeals if the grievance officials reject your grievance for lateness. If they deal with the merits of your grievance, then its lateness will not matter. If they do not, you can still argue in court that you were justified in failing to file a grievance on time. Or you can argue that circumstances prevented you from filing on time and the remedy was therefore unavailable. You can also argue that your lateness does not matter because prison officials still had the opportunity to look at the merits of your grievance. You should not assume that if prison officials' actions or other circumstances beyond your control keep you from bringing your grievance in a timely manner, you can just argue that the remedy was not "available" and you will be excused from exhausting. A number of courts have said that if you are prevented from filing your grievance on time, you must file a grievance as soon as you can,³⁶⁴ though some courts have disagreed.³⁶⁵

The Second Circuit has said that a prisoner's failure to follow grievance system time limits can sometimes be justified if he shows "circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way."³⁶⁶ This includes prisoners' misunderstanding of the exhaustion requirement³⁶⁷ or of the relevant prison regulations,³⁶⁸ though courts have noted that those were not necessarily the only circumstances that can excuse the failure to exhaust.³⁶⁹ As noted in Section 5 above, this approach still seems valid after the Supreme Court's Woodford decision, since the kinds of fact patterns addressed by Second Circuit law differed from those in the Woodford case.³⁷⁰ In addition, circumstances that prevent a prisoner from filing a grievance in a timely manner could also mean that the grievance system was not an "available" remedy for the prisoner.³⁷¹ However, Woodford did not address the meaning of the term "available," nor did it change the decisions of lower courts, including the Second Circuit, that under some circumstances prison officials may not be able to claim that a prisoner did not exhaust prison grievance remedies as a defense to that prisoner's lawsuit.³⁷²

Some grievance systems have a built-in ability to waive time limits. For example, the New York State grievance system allows late grievances if there are "mitigating circumstances,"³⁷³ which include "attempts to resolve informally by the inmate."³⁷⁴ In order to take advantage of such a provision, a prisoner has to ask for it when he files a grievance-he cannot argue later in court that the grievance was not untimely because the prison system could have granted an extension.³⁷⁵ The next question is whether the court is bound by a prison system's decision on whether to grant such a request. As we have noted earlier, courts are divided on the question of whether they can overrule grievance officials' decisions about whether prisoners have complied with the grievance rules. One New York district court has held that it can decide whether a late grievance is excused by mitigating circumstances such as the prisoner's transfer to another facility or the unavailability of grievance representatives to prisoners in a segregated unit.³⁷⁶ When a claim is dismissed for non-exhaustion- whether for simple failure to exhaust at all, an error in using the grievance procedures, or reliance on law that has subsequently changed-the...