The Prison Litigation Reform Act & Ross v. Blake: Why the Constitution Requires Amending the Exhaustion Requirement to Protect Inmates' Access to Federal Court.

AuthorSterritt, Meredith

"The citizen's right to access an impartial tribunal to seek redress for official grievances is so fundamental and so well established that it is sometimes taken for granted." (1)


    The Prison Litigation Reform Act (PLRA) requires that an inmate filing an excessive force claim in court under 42 U.S.C. [section] 1983 first exhaust "such administrative remedies as are available" within the prison grievance system. (2) Congress added this exhaustion requirement to combat the increase in inmate litigation and to promote judicial efficiency by keeping frivolous claims out of federal court. (3) Unfortunately, the PLRA's exhaustion requirement has caused considerable confusion among the lower courts and necessitated several Supreme Court decisions to clarify the requirement's scope and enforcement protocols. (4)

    Prior to the PLRA, inmate litigation was governed by a much weaker exhaustion provision in the Civil Rights of Institutionalized Persons Act (CRIPA), which required exhaustion only if the court believed doing so was "appropriate and in the interests of justice." (5) The PLRA strengthened the exhaustion provision by removing CRIPA's condition that the prison grievance system remedies meet federal standards. (6) A series of Supreme Court cases decided after Congress enacted the PLRA intensified the procedural hurdle for inmates by introducing a proper exhaustion standard. (7) These decisions removed judicial discretion by prohibiting judges from excusing a failure to exhaust. (8) As articulated in Booth v. Churner, the discretion to dispense with administrative exhaustion "is now a thing of the past." (9)

    Strict adherence to the exhaustion requirement continued until the Supreme Court considered the excessive force claim of a Maryland inmate, Shaidon Blake, in 2016. (10) In Ross v. Blake, the Court held that an inmate need only exhaust administrative remedies that are "available," meaning if the inmate can establish that the remedy was unavailable, then the claim can proceed in federal court. (11) The Court identified several general circumstances where remedies were considered unavailable, suggesting a more inmate-friendly approach to analyzing the exhaustion requirement. (12) The Ross holding, however, also presented an analytical paradox for lower courts; theoretically a court must dismiss a case for lack of exhaustion without considering the merits of the claim, but in order to determine whether the inmate's case is exempt from the exhaustion requirement under Ross, the judge must examine the merits of the claim. (13)

    Nearly twenty-four years after Congress enacted the PLRA, and over two years since the Supreme Court decided Ross v. Blake, this Note reexamines the implications of these changes in the area of inmate litigation. (14) First, it traces the origins of the PLRA exhaustion requirement across the spectrum of interpretation, from a weak requirement in CRIPA to a strict requirement in the PLRA, all while tracking its interpretation in subsequent case law. (15) Next, it identifies the problems that have manifested as a result of the evolution from weak to strict exhaustion enforcement, specifically with respect to practical application and constitutional issues. (16) As illustrated in a later section, horrific prison brutality cases in the not-so-distant past necessitate reexamining the current exhaustion requirement standard. (17) Finally, given the practical and constitutional problems associated with the current state of the law and its effect on prison brutality, this Note argues in favor of creating either an independent review board as a subset of the judiciary or a textual exemption to the PLRA exhaustion requirement for special circumstances, or ideally, both. (18)


    1. CRIPA: Exhaustion Prior to 1996

      In 1980, Congress created the first exhaustion requirement for inmate litigation as part of CRIPA. (19) Courts have long recognized the statutory exhaustion requirement because it allows agencies the authority to administer the programs delegated to them without interference. (20) The exhaustion requirement also provides both a valuable resource for inmates to seek relief and a mechanism for prison administrators to fix problems internally, before requiring judicial intervention. (21)

      Perhaps most importantly, the exhaustion requirement benefits the judiciary because the inmate's claim could be rendered moot if satisfactory internal measures are taken. (22) If done properly, the grievance procedure could successfully resolve the issue and save valuable court time and resources. (23) Even if the grievance process does not resolve the inmate's claim, its documentation still serves as a useful record for judicial consideration. (24)

      The CRIPA exhaustion provision was weak, with the McCarthy Court even referring to it as a "limited exhaustion requirement," because it mandated that the administrative remedies meet certain federal standards to be considered compulsory. (25) Further, a failure to exhaust did not automatically force the court to dismiss the case; more often than not, the court would just stay the case until the inmate exhausted the administrative remedies. (26) The exhaustion requirement was subject to judicial determination as to whether the individual's interest in securing access to court outweighed the aforementioned countervailing policy interests to require exhaustion. (27)

      An important, albeit less often cited CRIPA standard, is the requirement for an independent review of the disposition of grievances "by a person or other entity not under the direct supervision or direct control of the institution." (28) This requirement was abandoned in later prison reform legislation in a congressional effort to combat the "astronomical[]" growth of inmate litigation from 6,600 cases in 1975 to more than 39,000 cases in 1994. (29) In abandoning this important independent review requirement, however, Congress dismissed the reality that "[w]hat for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State." (30)

    2. PLRA: Exhaustion After 1996

      In 1996, Congress enacted the PLRA with the goal of reducing the overall quantity of inmate suits while simultaneously effectuating an improvement in the quality of inmate suits. (31) Nevertheless, as the Court noted in Jones v. Bock, the challenge was "ensuring that the flood of nonmeritorious claims [did] not submerge and effectively preclude consideration of the allegations with merit." (32)

      The PLRA's language, "[n]o action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted[,]" introduced a significantly stricter standard for the exhaustion requirement in two significant ways. (33) First, it removed the condition that administrative remedies be "plain, speedy, and effective" and that they satisfy minimum federal standards. (34) Second, it eliminated the judicial discretion under CRIPA by removing the "appropriate and in the interests of justice" language. (35) Practically, this meant that if a defendant raised a failure to exhaust affirmative defense, and the plaintiff had not exhausted, the court had to dismiss the case regardless of the claim's merits. (36) The effect of dismissing the case prematurely is that a court would not be able to reach the merits of the case, meaning some highly worthwhile claims would likely go unadjudicated. (37)

    3. Post-PLRA: Supreme Court Decisions

      After Congress enacted the PLRA, a series of Supreme Court decisions further limited inmates' access to federal courts. (38) In the 2001 case, Booth v. Churner, (39) the Supreme Court held that even though the administrative grievance process could not provide petitioner's requested monetary relief, he was still required to exhaust those administrative remedies. (40) In so deciding, the Court effectively eliminated the discretion that judges once exercised under CRIPA to excuse exhaustion based on the particular facts of a case. (41) Although the issue in Booth was specific to damages, the Court's decision to eliminate judicial discretion as "a thing of the past" was often cited in all types of subsequent prison litigation cases. (42)

      Additionally, in the 2002 case, Porter v. Nussle, the Supreme Court settled the issue of whether excessive force claims required complying with the PLRA's exhaustion requirement. (43) Prior to Porter, the Court typically reviewed excessive force claims under the Eighth Amendment's prohibition against cruel and unusual punishment, as opposed to under [section] 1983 conditions of confinement violations. (44) While not specifically addressed prior to Porter, if the Court analyzed excessive force claims under the Eighth Amendment, it would follow that the PLRA's exhaustion requirement applicable to [section] 1983 would not be necessary. (45) Some circuit courts that addressed the issue, however, saw no difference between excessive force claims and conditions of confinement claims, requiring exhaustion under both as a result. (46) Ultimately siding with the circuit courts, the Supreme Court held definitively in Porter that there was no excessive force exception to the exhaustion requirement because Congress likely did not intend to divide inmates' petitions into two discrete subcategories. (47)

      Finally, in the 2006 case, Woodford v. Ngo, the Supreme Court raised the bar even further for inmates by requiring strict adherence to all institutional deadlines and procedures, otherwise known as "proper exhaustion." (48) The Woodford majority reasoned that requiring proper exhaustion serves all the PLRA's goals by incentivizing inmates to use the system available to them and giving prison officials the "opportunity to correct their own errors." (49) While in theory these are admirable goals, the practical effect of Woodford prevented...

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