Understanding Proper Exhaustion: Using the Special-Circumstances Test to Fill the Gaps Under Woodford v. Ngo and Provide Incentives for Effective Prison Grievance Procedures

• Author: Robin L. Dull
• Position: J.D. Candidate, The University of Iowa College of Law, 2007
• Pages: 1931-1967

J.D. Candidate, The University of Iowa College of Law, 2007. Deep gratitude to John Boston for his guidance on earlier drafts. Thanks to Julie Giddings, Justin McCarty, Karen Helgeson, and the Iowa Law Review editors and student writers. All errors remain my own.

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I Introduction

On any given day, over 2.3 million persons are incarcerated in prisons and jails in the United States.¹ As a class, prisoners file more litigation per capita than non-prisoners.² Intent on reducing the volume of prisoner litigation, Congress enacted the Prison Litigation Reform Act ("PLRA") in 1996.³ While it appears that the PLRA has been successful at decreasing the number of inmate civil-rights complaints,⁴ key provisions of the PLRA have themselves become the subject of considerable litigation.⁵ Among the more contentious provisions in the statute is the requirement that a prisoner exhaust all available administrative remedies before bringing a federal action. In the words of the PLRA, "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted."⁶

The Supreme Court's recent decision in Woodford v. Ngo held that exhaustion must be proper, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court."⁷ Ngo is silent, however, on a number of critical issues, such as whether exhaustion is proper where a prisoner has substantially complied with procedures, where the prisoner fails to exhaust administrative remedies out of fear of retaliation, where administrative remedies are in-factPage 1932 unavailable, where the prison has waived or otherwise induced reliance on non-exhaustion, or where the prisoner's failure to exhaust administrative remedies involves special circumstances. Prior to the Ngo decision, some circuits, most notably the Second Circuit, developed significant jurisprudence dealing with these types of substantial-compliance problems.

There are few reasons to suggest that Ngo invalidates the existing law on these substantial-compliance exhaustion issues. On the contrary, this body of law may fit well within the silence of Ngo's holding. Finally, as a matter of policy, equating "proper exhaustion" to substantial compliance in certain circumstances may provide incentives to prison officials to adopt responsive and efficient grievance procedures that meet the standards for administrative remedies articulated in Ngo and that are consistent with the exhaustion requirement.

This Note examines courts' consideration of the exhaustion requirement and prison-grievance systems under the PLRA regime. Part II discusses the political context that gave rise to the PLRA, some of the PLRA's significant provisions, and two early Supreme Court interpretations of the exhaustion scheme.⁸ Part III explicates Ngo and critiques several of its underlying assumptions.⁹ Part IV examines the vitality of the special-circumstances test within the Ngo framework.¹⁰ Part V considers the desirability of continued application of the special-circumstances test in the context of developing grievance systems under the exhaustion regime of the PRLA.¹¹

II The Genesis of the Prison Litigation Reform Act

A Pre-Plra and the Cripa Grievance-Certification Procedure

Plaintiffs often use § 1983 as a vehicle to vindicate federal civil rights. Ordinarily, a person initiating a § 1983 action "need not exhaust administrative remedies" before suing.¹² Congress altered this norm, as it applies to prisoners, with the enactment of the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA").¹³ Under the CRIPA scheme, district courts had discretion to stay prisoner actions for ninety daysPage 1933 pending exhaustion of administrative remedies.¹⁴ During that time, a court could require a prisoner to exhaust "such plain, speedy, and effective administrative remedies as [were] available."¹⁵ The limited exhaustion requirement "could be ordered only if the State's prison grievance system met specified federal standards, and even then, only if, in the particular case, that court believed the requirement 'appropriate and in the interests of justice.'"¹⁶

CRIPA established statutory minimums in order for the Attorney General to certify a grievance procedure. To obtain certification, a state had to show that (1) both staff and prisoners participated in developing and administering the system; (2) there were defined time limits for each stage in the process; (3) there was an expedited procedure for emergency situations; (4) safeguards existed to prevent reprisals; and (5) there was independent review by someone not in the direct supervision or control of the institution.¹⁷ The Attorney General developed rules that contained several additional requirements, such as (1) inmate notification of rules; (2) availability of the grievance procedures to all inmates; (3) wide coverage and a reasonable range of remedies; and (4) completion of the entire procedure within a set time.¹⁸

Although CRIPA allowed for certification by the Attorney General, certification was not always necessary. States could also seek judicial approval to see if their prison system substantially complied with the CRIPA standards.¹⁹ Commentators differ in their opinions as to the degree of success under the CRIPA regime because of either lax enforcement at the Justice Department,²⁰ Congress's failure to provide adequate funding,²¹ orPage 1934 the failure of many state prisons and jails to seek CRIPA certification.²² In any event, the PLRA changed these minimum requirements and radically altered the landscape of the prison-exhaustion paradigm.

B The Legislative History of the Plra

President Clinton signed the PLRA into law on April 26, 1996.²³ A combination of two separate pieces of legislation originally entitled "Stopping Abusive Prisoner Lawsuits"²⁴ and "Stop Turning Out Prisoners,"²⁵Page 1935 the PLRA had its genesis in the Republican Party's 1994 Contract with America.²⁶ Congress did not pass the final version of the PLRA as a free-standing bill, but as a rider to the Appropriations Act of 1996.²⁷ Even though the bill was a broad legislative reform, commentators have pointed out that the PLRA lacked Congress's thorough consideration.²⁸ In the brief consideration of the bill, few legislators commented on the unorthodox nature of the bill's passage, including the inappropriateness of the insertion of a broad prison-reform bill into a budgetary bill.²⁹

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Proponents of the PLRA generally touted the necessity of the bill by emphasizing the need to reduce frivolous prisoner litigation.³⁰ They claimed that the states were burdened with substantial litigation costs from the "flood of frivolous litigation brought by inmates"³¹ and that "most of these costs [were] incurred defending lawsuits that ha[d] no merit whatsoever."³² Supporters also complained that frivolous prisoner litigation greedily consumed the scarce resources of the federal judiciary and wasted taxpayer dollars.³³ Senators also objected to the perceived "massive judicial interventions in State prison systems"³⁴ and argued that the PLRA would "establish[] some tough new guidelines for Federal courts when evaluating legal challenges to prison conditions."³⁵ Through the PLRA, Congress meant to empower the states with control over their prison systems, reduce the level of intervention by the federal courts, and reduce frivolous litigation.³⁶

C Major Provisions of the Plra

The PLRA has two major effects on the field of prisoner litigation.³⁷ First, it limits the remedies available to courts when entering ordersPage 1937 modifying unconstitutional prison conditions.³⁸ In this respect, it heightens the requirements for prospective judicial relief in conditions-of-confinement challenges such as lawsuits alleging crowding or inadequate medical care.³⁹ The PLRA also limits the situations in which a court may order release of prisoners when a prison is overcrowded.⁴⁰ Finally, it introduces an automatic stay and procedures for termination of conditions-of-confinement court orders.⁴¹

Second, and more importantly for the purposes of this Note, the PLRA restricts a prisoner's ability to bring an action challenging his conditions of confinement.⁴² The relevant language reads: "No action shall be brought with respect to prisoner conditions under 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."⁴³ Commentators have...