Stacking the deck: futility and the exhaustion provision of the Prison Litigation Reform Act.

AuthorNovikov, Eugene


Speaking before the Senate chamber in 1995, Bob Dole rose in support of the Prison Litigation Reform Act (PLRA). Promising that the legislation would "help put an end to the inmate litigation fun-and-games," Senator Dole lamented that "[f]rivolous lawsuits filed by prisoners tie up the courts, waste valuable legal resources, and affect the quality of justice enjoyed by law-abiding citizens." (1) Senator Orrin Hatch expressed his outrage that "[j]ailhouse lawyers with little better to do are tying our courts in knots with the endless flow of frivolous litigation." (2) Senator Harry Reid openly mocked the system, which permitted prisoners to maintain frivolous litigation with the state and provided them not only "an up-to-date library and a legal assistant," but also "three square meals a day" and the ability to "watch cable TV in the rec room or lift weights in a nice modern gym" if they "get tired of legal research." (3) Much was made of the infamous "peanut butter lawsuit," in which an inmate sued after being served chunky peanut butter instead of smooth, though it was only seventh on the list of "Top 10 Frivolous Inmate Lawsuits Nationally" that was read into the record. (4)

By 2000, prisoner civil rights suits had decreased by 39% from their 1995 number. (5) It is unclear how many of the lawsuits blocked by the PLRA were in fact the sort of "frivolous" litigation that had so appalled the Senate, (6) but certainly insofar as the Act was intended to reduce the burden on court systems caused by inmate litigation, it has been successful.

As one might expect, however, some portions of the PLRA inevitably had collateral consequences. This Comment addresses one such possible unintended result: the flexibility afforded prisons and prison officials by the PLRA's exhaustion provision, which mandates that prisoners exhaust all of their administrative remedies, including internal prison grievance processes, before they may file suit in federal court. (7) With no protective mechanism in place, this provision would seem to give prisons free rein to stack the deck against inmates by resorting to any of the innumerable ways to stymie prisoners' efforts to navigate the administrative processes. This problem is compounded by recent court decisions suggesting, or outright asserting, that the exhaustion provision leaves no room for the judicially created doctrine of futility, which ordinarily gives courts the power to excuse exhaustion if they deem it futile or the administrative remedies inadequate. (8)

This Comment argues that these cases should be narrowly interpreted as eliminating a procedural loophole rather than precluding all judicial futility analysis. It also proposes alternative methods by which courts can apply the sort of scrutiny necessary to protect good faith litigants from abuse without running afoul of the PLRA. First, however, it will be useful to take a brief detour to look at the back ground of the PLRA and compare it to its predecessor statute, as well as to give an overview of the futility doctrine in the exhaustion context.


    Comprehensive accounts of the PLRA's passage are available elsewhere, (9) and I will not undertake another here. I will instead focus on the changes in the relevant statutory provision in an effort to set the stage for the arguments that follow.

    Prior to the passage of the PLRA, the procedural aspects of inmate lawsuits in federal courts were governed by the Civil Rights of Institutionalized Persons Act (CRIPA), subtitled "[a] n Act It] o authorize actions for redress in cases involving deprivations of rights of institutionalized persons secured or protected by the Constitution or laws of the United States." (10) As the subtitle hints and the text proves, CRIPA was quite a different animal than the PLRA. Spurred by an effort to address widespread violations of the constitutional rights of confined persons, (11) CRIPA was intended to open the doors of the federal courts wider. This liberal aim is seen in its version of the exhaustion provision, which stands in stark contrast to the comparatively absolute language of the parallel provision in the PLRA, [section] 1997e(a). (12) CRIPA allowed a court to stay a prisoner action for up to 90 (and later 180) days so that the prisoner could exhaust "such plain, speedy, and effective administrative remedies as are available" if the court "believe[d] that such a requirement would be appropriate and in the interests of justice." (13) Furthermore, a court could not require exhaustion unless the remedies were determined by the Attorney General or the court to be "in substantial compliance with the minimum acceptable standards promulgated" elsewhere in CRIPA. (14) Those standards contemplated, among other things, an advisory role for inmates in the formulation and implementation of the grievance processes, time limits for replies to grievances, priority processing of emergency grievances, and independent review of grievance dispositions. (15) Thus, not only was the CRIPA exhaustion requirement left to the discretion of courts to apply or not as dictated by "the interests of justice," but procedural safeguards to protect against the deck-stacking problem were actually built into the statute. (16)

    As I suggested in the Introduction, the PLRA passed amid an uproar over a supposed glut of frivolous lawsuits clogging the federal court system. (17) Its exhaustion provision addresses the perceived problem by simply eliminating CRIPA exhaustion's discretionary aspect, as well as the statutory safeguards to be administered by the courts and the Attorney General. (18) Furthermore, the PLRA eliminated the defined exhaustion period, effectively permitting prison officials an unlimited amount of time to process grievances under the administrative procedures they themselves establish. (19) All that the current version of the statute requires is that the administrative remedies be "available." (20)


    The exhaustion requirement is not unique to the prison litigation context. In fact, courts have long enforced a general rule that "[w]here relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature and must be dismissed." (21) The application of this requirement has in some cases hinged on the administrative agency's jurisdiction or authority to grant the particular type of relief sought. (22) Furthermore, because of the federal courts' "virtually unflagging obligation to exercise the jurisdiction given them," in the absence of a statute decreeing otherwise, the courts would "balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." (23) In short, the judicially created version of the exhaustion requirement in many ways parallels the scheme under CRIPA. (24)

    Courts have superimposed a series of judicially created exceptions onto this version of the exhaustion doctrine. (25) This set of exceptions is framed most generally as excusing litigants from having to exhaust available remedies when the court deems those remedies to be "inadequate." (26) In McCarthy v. Madigan, the Supreme Court outlined three "broad sets of circumstances" under which an inadequacy determination is warranted. (27) One exists when requiring exhaustion would prejudice a subsequent court action--if, for example, the timeframe for the administrative proceedings is so long that exhaustion would effectively bar the suit on statute of limitations grounds. (28) A second exists when there are indications that the agency is not empowered to grant effective relief, (29) perhaps because it "lacks institutional competence to resolve the type of issue presented," (30) because the challenge is to the adequacy of the very administrative proceeding at issue, (31) or because the agency does not have the authority to grant the type of relief requested. (32) Finally, exhaustion is excused when it is determined that the agency in question was biased or otherwise unable to give the plaintiff a fair hearing. (33) In connection with this, the Court in McCarthy cited a Fifth Circuit decision for the proposition that "administrative procedures must 'not be used to harass or otherwise discourage those with legitimate claims.'" (34)

    Taken together, these exceptions clearly signify a solicitude for the notion that litigants should not be forced to waste their time exhausting administrative remedies when it would be manifestly futile to do so. The "bias" exception, in particular, if applied in the PLRA context, would help eliminate the "deck-stacking" concern--courts could at least inquire into the procedures set up by the prison to determine if they are unduly labyrinthine or unfair. (35) For better or worse, however, the Supreme Court has cautioned that the judiciary's freedom to craft such a futility doctrine may be severely limited when Congress has something else in mind--in particular, "[w] here Congress specifically mandates, exhaustion is required. (36) The impact of the PLRA, as we will soon see, seems to have been precisely that.


    1. Booth v. Churner

      By all accounts, the passage of the PLRA, amending [section] 1997e to impose a seemingly absolute exhaustion requirement, has wreaked havoc on the exhaustion doctrine as it existed under CRIPA and in the case law in general. The most authoritative account of this effect came from the Supreme Court in its 2001 Booth v. Churner decision. (37) That case did not concern exhaustion or futility in general, but rather addressed a narrower issue: whether an inmate plaintiff seeking monetary relief under [section] 1983 was required to exhaust his administrative remedies under the PLRA even though...

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