PANDEMIC RULES: COVID-19 AND THE PRISON LITIGATION REFORM ACT'S EXHAUSTION REQUIREMENT.

• Author: Schlanger, Margo
• Position: AEDPA and the PLRA After 25 Years

INTRODUCTION I. THE PRISON LITIGATION REFORM ACT AND THE COVID PANDEMIC II. SOLUTIONS A. Solution 1: Judicial Interpretations of Unavailability B. Solution 2: State and Local Grievance Systems, and Statutory Waiver C. Solution 3: Federal Amendment CONCLUSION INTRODUCTION

For over twenty-five years, the Prison Litigation Reform Act (PLRA), (1) one of the few parts of the 1990s Republican Contract with America (2) actually enacted, has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win--regardless of merit. (3)

We have seen the result in the wave of litigation relating to the COVID-19 pandemic. When the pandemic began in early 2020, jails and prisons were hard hit. Incarcerated people tend to be quite medically vulnerable; the prevalence of chronic disease and disability is exceptionally high behind bars. (4) (A countervailing statistic is that incarcerated adults average much younger than non-incarcerated, notwithstanding the long-term aging of the American prison population. (5)) Equally important, imprisoned people lack most of the methods non-imprisoned people can exercise to minimize their risk. They cannot avoid communal spaces, whether for eating, living, bathing, or anything else. The availability of personal protective equipment--masks, preeminently--is controlled by institutional authorities, as is the level of hygiene in most spaces. In prison and jail, one cannot choose with whom to associate and whether to limit their association with the unprotected or the uninfected; staff contact, in particular, is mandatory. In short, while neither infection rates nor mortality approached the devastation in nursing homes, (6) both were far higher than in the community: infections among incarcerated people have been over five times and mortality triple the non-imprisoned rate. (7)

So beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Among the requests: better sanitation, social distancing, mask use by facility staff, vaccination, and release. Incarcerated individuals have won some of these cases, (8) and some of their losses have been due not to the PLRA 2:20-cv-4450, 2021 WL 3829699, at *1 (C.D. Cal. Aug. 27, 2021) (issuing a preliminary injunction ordering defendants to expedite the process for determining prisoners' eligibility for home confinement or compassionate release, taking into account their age and medical condition in light of COVID-19); Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 453-54 (D. Conn. 2020) (issuing a temporary restraining order "aimed at accelerating the process for evaluating inmates for home confinement and compassionate release," but declining to direct the warden to implement safety measures); Amaya-Cruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123, at *1-2 (N.D. Ohio Apr. 18, 2020) (concluding that keeping a medically vulnerable ICE detainee in a county jail during the COVID-19 pandemic would violate the Fifth Amendment); United States v. Kennedy, 449 F. Supp. 3d 713, 719 (E.D. Mich. 2020), reconsideration denied, No. 2:18-cr20315, 2020 WL 1547878, at *1, 3, 4 (E.D. Mich. Apr. 1, 2020) (ordering the defendant immediately released from jail because he was "particularly susceptible to COVID-19").

Mitigation granted: Chatman v. Otani, No. 1:21-cv-268, 2021 WL 2941990, at *24 (D. Haw. July 13, 2021) (ordering the defendant to immediately implement its COVID-19 Response Plan, including its social distancing, personal protective equipment (PPE), and quarantine measures, and to provide regular access to a working toilet, sink, and drinking water to all incarcerated persons); Carranza v. Reams, No. 1:20-cv-977, 2020 WL 2320174, at *15 (D. Colo. May 11, 2020) (ordering the defendant to institute social distancing policies, enhanced sanitation procedures, and increased monitoring of medically vulnerable individuals detained at a county jail and to obtain a sufficient number of masks); Mays v. Dart, 453 F. Supp. 3d 1074, 1099-100 (N.D. Ill. 2020) (requiring the defendant sheriff to provide soap and/or hand sanitizer to all detainees, improve sanitation, and to provide facemasks to all detainees who are quarantined, but declining to order further testing or quarantining of new detainees or to provide facemasks to all detainees), aff'd, 974 F.3d 810, 824 (7th Cir. 2020), cert. denied, 142 S. Ct. 69, 69 (2021); Criswell v. Boudreaux, No. 1:20-cv-1048, 2020 WL 5235675, at *25 (E.D. Cal. Sept. 2, 2020) (ordering the defendant "to develop written policies on key COVID-19 related issues," but declining to require immediate testing of staff and people in jail); Banks v. Booth, 468 F. Supp. 3d 101, 125-26 (D.D.C. 2020) (ordering the defendant to implement a medical care system, comply with social distancing regulations, and continue their sanitation efforts and increased testing), appeal dismissed, cause remanded, 3 F.4th 445, 449 (D.C. Cir. 2021); Smith v. Barr, 512 F. Supp. 3d 887, 900 01 (S.D. Ind. 2021) (requiring defendants to enforce mask requirements, maintain contact logs, implement rapid testing and conduct contact tracing among prison staff); Ahlman v. Barnes, 445 F. Supp. 3d 671, 694 (C.D. Cal. 2020) (ordering defendants to implement social distancing measures, provide plaintiffs with soap and hand sanitizer, provide daily access to showers and clean laundry, require staff to wear PPE and wash their hands, regularly screen and test incarcerated people, and provide adequate medical care to any with COVID-19), stay denied, No. 20-55568, 2020 WL 3547960, at *5 (9th Cir. June 17, 2020), stay granted, 140 S.Ct. 2620, 2620 (2020); Seth v. McDonough, 461 F. Supp. 3d 242, 264 (D. Md. 2020) (requiring defendant to "develop a comprehensive written plan to address systematic testing and identification of COVID-19 positive detainees; long but to the high bar to constitutional liability. (9) But time and again, courts have thrown cases out based on the PLRA (10)--especially, on the PLRA's instruction to dismiss civil rights cases unless "such administrative remedies as are available are exhausted" (11) (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison's or jail's grievance system).

The pandemic is far from the first situation in which the PLRA exhaustion requirement has thwarted constitutional oversight of prison and jail conditions. (12) But it has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems' systemic inability to address emergency situations. Here, we propose three solutions. To be clear, implementation of these steps would constitute only a limited improvement; the result would merely be to increase the possibility of federal-court adjudication of incarcerated plaintiffs' claims on the merits, reducing the collateral litigation of exhaustion efforts. But even these partial fixes seem worthwhile.

The proposals are these: First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison's or jail's grievance system "unavailable" because it is unable to process their complaint quickly enough to offer any relief. As we describe below, this is already the right answer under existing case law--but so far, many district courts have declined to follow this path. The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation. Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems. We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief. The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the "availability" inquiry by eliminating the statutory exhaustion requirement in emergency situations. We offer suggested legislative text to accomplish this end.

1. THE PRISON LITIGATION REFORM ACT AND THE COVID PANDEMIC

   In four periods that together span the past fifty years, federal civil-rights filings by incarcerated plaintiffs have followed four very different patterns. After the federal courts opened to such lawsuits in the late 1960s and early 1970s, (13) the volume of the litigation grew steeply for a decade--juiced by a slowly increasing prison population and steeply increasing filing rates. From the 1980s to 1990, however, the overall increasing number of cases was driven entirely by increases in both jail and prison population; filing rates actually declined substantially over the period. In the early 1990s, the two factors converged, both increasing: from 1991 to 1995, the filing rate grew by 22.5% from 20 to 24.5 lawsuits per 1000 incarcerated persons, and the incarcerated population increased by about 31% (over 375,000 people). (14) All this is illustrated in Figure A.

   It was in this environment that Congress in 1996 passed the PLRA. Its supporters at least stated that their target was abusive lawsuits. As Senator Hatch phrased it in one version of this point made repeatedly in floor speeches in support of the various PLRA versions, "I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised. The legislation will, however, go far in...