COMPLETELY EXHAUSTED: EVALUATING THE IMPACT OF WOODFORD V. NGO ON PRISONER LITIGATION IN FEDERAL COURTS.

• Author: Stern, Elana M.

INTRODUCTION 1512 I. WOODFORD V. NGO: A PRIMER 1513 A. The Administrative Law Exhaustion Doctrine 1513 B. The PLRA: The End of Prisoner Litigation in 1514 Federal Court? C. Woodford v. Ngo: Parsing the Opinion 1517 D. Post- Woodford Developments 1521 II. "PROPER" EXHAUSTION AND PRISONER LITIGATION: WHAT RESULT? 1521 A. Methodology 1522 B. Summary: Key Findings 1528 III. ANALYZING TRENDS: WOODFORD'S FAILURE TO BLOCK PRISONERS' UNEXHAUSTED CIVIL CLAIMS FROM 1529 ENTERING FEDERAL COURT A. Explaining the Outliers 1529 B. Outliers vs. The Median 1533 C. Knowledge Gaps: Setting Prisoners up to Fail 1534 D. Longer Sentences, More Time to File 1536 E. Woodford's Impact on the Courts and on 1537 Court Proceedings IV. RECOMMENDATIONS 1538 CONCLUSION 1541 APPENDIX 1542 INTRODUCTION

On June 22, 2006, the Supreme Court decided an unglamorous administrative exhaustion case involving the ability of prisoners to bring civil lawsuits in federal court. (1) The case, Woodford v. Ngo, split the Court 6-3 with Justice Alito writing for the majority. The decision itself hinges on a close reading of the term "exhaustion" and its requirements under administrative law and the 1996 Prison Litigation Reform Act (PLRA). (2) The Woodford majority held that, in light of the PLRA, a prisoner must "properly exhaust[]" (3) administrative remedies before filing a claim in federal court; failure to follow this procedural requirement results in dismissal of an improperly exhausted claim. (4) "Proper exhaustion," as defined by the Court, requires prisoners not only to go through administrative proceedings and seek the remedies "that meet federal standards," but also to pursue "all 'available' [administrative] remedies" to their procedural conclusion. (5)

Thus, on its face, Woodford appears to make filing claims in federal court even more difficult for prisoners by strictly interpreting the relevant statutory language. However, the goal of this Comment is to demonstrate that Woodford has had no such effect. Ten years after the Supreme Court's decision, prisoners' filings of unexhausted claims in federal court have actually increased. Prisoner-litigants likely do not have adequate knowledge of the procedural prerequisites to filing a civil claim in federal court. To resolve the ongoing disconnect between the law relevant to prisoner filings and filings in reality, this Comment proposes bridging the existing knowledge gap that may be partially responsible for improperly or unexhausted claims brought by prisoners in federal court. Including an informational cover sheet on prisoner pro se civil complaint forms that gives potential claimants an overview of the exhaustion requirement may at least give prisoners pause before writing out their claims and filing a suit that would be dismissed on procedural grounds.

Without making the relevant law salient to those it directly affects, Woodford's deterrent impact on improperly exhausted prisoner civil claims may remain minimal. As a result, prisoners will likely continue to file improperly exhausted civil claims in federal court, which require courts' time and resources to dismiss, even via order (in lieu of a full opinion). For prisoners, an ongoing knowledge gap in this context will mean running up against the PLRA's three strikes rule, (6) additional filing fees, and perhaps due to procedural failings, losing the ability to bring a substantively meritorious claim. (7)

1. WOODFORD V. NGO: A PRIMER

   1. The Administrative Law Exhaustion Doctrine

      The exhaustion doctrine requires full use of an available administrative process--including appeals of an agency determination-before resorting to the courts. (8) As articulated by the Supreme Court, the exhaustion requirement holds "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." (9) The Supreme Court's decision in McKart v. United States is regarded as "the leading case on exhaustion." (10) In McKart, the Court reiterates the exhaustion requirement, (11) and explains several rationales for the doctrine:

      Perhaps the most common application of the exhaustion doctrine is in cases where the relevant statute provides that certain administrative procedures shall be exclusive.... A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance.... Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. (12) The Court restated the "twin purposes" of the exhaustion doctrine in its 1992 decision in McCarthy v. Madigan: "Exhaustion is required because it... protect[s] administrative agency authority and promot[es] judicial efficiency." (13)

      In McCarthy, the Court also defines the parameters of applying the exhaustion doctrine: "Where Congress specifically mandates, exhaustion is required.... But where Congress has not clearly required exhaustion, sound judicial discretion governs." (14) Where a statute requires administrative exhaustion, "the statute defines the extent of the exhaustion requirement." (15) For example, the relevant statute may require a claimant to raise an issue before the agency or face waiving the issue in court; failure to present a claim in the administrative proceeding may foreclose the ability to raise it later. (16) Statutorily mandated exhaustion in the context of the Supreme Court's Woodford decision is the focus of this Comment. This decision has set the standard for evaluating the ripeness of prisoners' claims in federal court.

   2. The PLRA: The End of Prisoner Litigation in Federal Court?

      The PLRA exemplifies congressionally-mandated exhaustion. (17) To understand trends in prisoner litigation, it is first helpful to review the PLRA's exhaustion requirement. (18) The PLRA was "enacted... in the wake of a sharp rise in prisoner litigation in the federal courts.... The PLRA contains a variety of provisions designed to bring this litigation under control." (19) Lawmakers who brought the PLRA to fruition offered a seemingly logical argument for statutorily shrinking prisoners' abilities to file suits in federal court: "[I]nmates... were unduly litigious, making federal cases out of the most trivial mishaps; the cases were deluging both executive and judicial officials who were supposed to respond to them, and the serious cases therefore risked getting drowned out by the frivolous...." (20) In passing the PLRA, Congress aimed to curb "some of the quirkiest lawsuits ever to enter the court system, like the case of Kenneth Parker and his two-year suit over a jar of chunky peanut butter." (21) In the infamous "peanut butter suit," (22) Mr. Parker, serving a 15-year sentence for robbery in Nevada State Prison, "wanted to buy two jars of chunky peanut butter from the prison canteen," but the canteen only sent him one jar of chunky, and substituted the second for ajar of smooth peanut butter. (23) In response to the canteen running out of chunky peanut butter, "Mr. Parker filed a civil rights suit, demanding a jail term for a prison official and $5,500 for 'mental and emotional pain.'" (24) The case dragged on for two years, with Mr. Parker refusing settlement. (25)

      Codified at 42 U.S.C. [section] 19976(a), the PLRA exhaustion provision states: "No action shall be brought with respect to prison conditions under [42 U.S.C. [section] 1983] of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (26) An intended and nearly instant effect of this clause of the PLRA was to "undermine[] prisoners' ability to bring, settle, and win lawsuits" by conditioning "court access on prisoners' meticulously correct prior use of onerous and error-inviting prison grievance procedures." (27)

      In addition to the exhaustion requirement, the PLRA places additional procedural demands on inmates attempting to file in federal court. First, the "three strikes" rule prohibits prisoners from filing in forma pauperis

      If the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. (28) Second, even if the prisoner wants to and could otherwise proceed in forma pauperis under the three strikes maximum, the PLRA requires all inmate litigants to pay filing fees. (29) When courts assess prisoner filing fees, they calculate the following:

      [W]hen funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of A) the average monthly deposits to the prisoner's account; or B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. (30)s Finally, the PLRA limits the substantive scope of prisoner complaints to physical injury: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act." (31) While all of these procedural and substantive limitations work in combination to restrict prisoners' access to federal courts, the exhaustion requirement as interpreted in Woodford is the focus of this Comment.

      There has been considerable...