The Prison Litigation Reform Act

John Boston
The Legal Aid Society
Prisoners’ Rights Project
199 Water Street, 6th floor
New York, N.Y. 10038

March 31 , 2014
Prepared for Legal Aid Society
Pro Bono Training

Copyright 2014 by John Boston. Corrections and comments may be addressed to
jboston@legal-aid.org.

The Prison Litigation Reform Act
Contents
I. Introduction ................................................................................................................. 1
II. Scope and definitions .................................................................................................. 1
III.
Prospective Relief ................................................................................................. 13
A. Limitations on Relief ............................................................................................ 14
1. Entry of Relief................................................................................................... 14
2. Settlements ........................................................................................................ 18
3. The Need-Narrowness-Intrusiveness Standard ................................................. 20
B. Termination of Prospective Relief ........................................................................ 27
C. Prisoner Release Orders ........................................................................................ 29
D. Preliminary Injunctions ......................................................................................... 31
E. Special Masters ..................................................................................................... 32
F. Punitive Damages as Prospective Relief............................................................... 32
IV.
Exhaustion of Administrative Remedies .............................................................. 34
A. The Statutory Requirement ................................................................................... 34
B. What Cases Must Be Exhausted? ......................................................................... 37
1. Scope of the Statute .......................................................................................... 37
2. “Prison Conditions” .......................................................................................... 39
C. What Happens If the Plaintiff Has Failed To Exhaust? ........................................ 43
D. How Is Exhaustion Addressed Procedurally? ....................................................... 49
1. Burden of Pleading ........................................................................................... 49
2. Burden of Proof................................................................................................. 59
3. Waiver ............................................................................................................... 66
4. Procedural Vehicles for Raising Exhaustion .................................................... 71
5. Appealing Exhaustion Decisions ...................................................................... 85
E. What Is Exhaustion? ............................................................................................. 86
1. What If the Prisoner Wins the Grievance? ..................................................... 104
2. Specificity of Grievances ................................................................................ 111
3. Exhausting All Issues ...................................................................................... 121
4. Exhausting Each Defendant ............................................................................ 138
5. Exhausting Items of Relief.............................................................................. 154
6. “Total Exhaustion”.......................................................................................... 156
7. The “Proper Exhaustion” Requirement .......................................................... 157
a) What If Procedural Requirements Are Not Clear? ..................................... 165
b) What If the Prisoner Is Misled or His Exhaustion Efforts Obstructed By
Prison Staff? ........................................................................................................ 169
c) What If the Prisoner Is Threatened or Intimidated by Prison Staff into Not
Following the Grievance Procedure? .................................................................. 170
d) Is There Any Limit to the Procedural Rules That Can Be Enforced by
Procedural Default? ............................................................................................ 170
i

e) To What Extent May Federal Courts Review a Grievance System’s
Procedural Rejection of a Grievance?................................................................. 178
f) What If the Prisoner Fails To Comply with Ad Hoc Directions from Prison
Staff with Respect to a Particular Grievance? .................................................... 182
g) How Does the Proper Exhaustion/Procedural Default Rule Interact with the
Statutory Requirement That Remedies Be “Available”? .................................... 183
h) National Standards to Prevent, Detect, and Respond to Prison Rape. ........ 184
8. Compliance with Time Limits ........................................................................ 185
F. What Procedures Must Be Exhausted? ............................................................... 198
1. Prison and Non-Prison Remedies ................................................................... 202
2. Prison Remedies Outside the Grievance System ............................................ 207
3. Non-Standard Forms of Complaint................................................................. 211
4. The New York State “Expedited Procedure”.................................................. 215
5. Informal Exhaustion........................................................................................ 217
G. “Available” Remedies ......................................................................................... 220
1. Grievable and Non-Grievable Issues .............................................................. 222
2. Unavailability Based on the Facts................................................................... 226
3. Estoppel........................................................................................................... 250
H. What If the Problem Is Too Urgent To Exhaust? ............................................... 252
I. Statutes of Limitations ........................................................................................ 254
J. Retroactivity........................................................................................................ 261
K. Exhaustion and Class Actions............................................................................. 262
V. Mental or Emotional Injury .................................................................................... 268
A. What Does the Statute Do? ................................................................................. 270
B. What Is Mental or Emotional Injury? ................................................................. 276
C. What Is Physical Injury? ..................................................................................... 289
VI.
Attorneys’ Fees ................................................................................................... 303
VII. Filing Fees and Costs .......................................................................................... 308
VIII. Three Strikes Provision ....................................................................................... 315
1. Strikes Defined................................................................................................ 320
2. Litigating Three Strikes Issues........................................................................ 343
3. Actions Removed from State Courts .............................................................. 346
4. The Imminent Danger Exception .................................................................... 349
5. Constitutional Issues ....................................................................................... 363
IX.
Screening and Dismissal ..................................................................................... 364
X. Waiver of Reply ...................................................................................................... 365
XI.
Hearings by Telecommunication and at Prisons ................................................. 366
XII. Revocation of Earned Release Credit ................................................................. 367
XIII. Diversion of Damage Awards ............................................................................. 368
APPENDIX A: Additional Authority
APPENDIX B: The Prison Litigation Reform Act, As Codified
APPENDIX C: New York City Department of Correction Directive 3375R, Inmate
Grievance Resolution Program (March 4, 1985)

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APPENDIX D: New York State Department of Correctional Services Directive 4040,
Inmate Grievance Program (July 1, 2006)
APPENDIX E: New York State Department of Correctional Services Directive 4040,
Inmate Grievance Program, Revision Notice (April 16, 2004)
APPENDIX F: New York State Department of Correctional Services Directive 4040,
Inmate Grievance Program (August 22, 2003)
APPENDIX G: New York City Department of Correction Directive 3375R-A, Inmate
Grievance Resolution Program (March 13, 2008)
APPENDIX H: New York City Department of Correction Directive 3376, Inmate
Grievance and Request Program (September 10, 2012)

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iv

The Prison Litigation Reform Act

I.

Introduction

The Prison Litigation Reform Act of 1995 (PLRA), actually enacted in 1996, comprises a
number of provisions of the U.S. Code that restrict and discourage litigation by prisoners.1 They
fall into two broad categories: the prospective relief provisions, directed mainly at institutional
reform injunctive litigation, and the prisoner litigation provisions, directed generally at civil
actions brought by prisoners. The text of the statute, as codified, is reproduced in Appendix B.
This summary reviews the provisions of the statute, the most important judicial interpretations of
it, and major open questions concerning its application, with emphasis on the state of the law in
the Second Circuit. All opinions expressed are the author’s.

II.

Scope and definitions

The prospective relief sections of the PLRA apply to “civil action[s] with respect to
prison conditions,” which are defined to include “any civil proceeding arising under Federal law
with respect to the conditions of confinement or the effects of actions by government officials on
the lives of persons confined in prison, but do not include habeas corpus proceedings challenging
the fact or duration of confinement in prison.”2 A “prison” is a facility “that incarcerates or
detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law.”3 It is not settled whether police and courthouse holding cells are
prisons.4 “Prospective relief” is “all relief other than compensatory money damages.”5
The prisoner litigation sections of the PLRA mostly apply to “civil actions” that are
“brought” by “prisoners.” The in forma pauperis statutes as amended by the PLRA refer
separately to “actions” and to “appeals,” so it appears that if a litigant is not a prisoner when the
action is brought, but is one at the time a notice of appeal is filed, those provisions will apply to
the appeal.6 Other PLRA provisions do not refer separately to appeals, so the plaintiff’s status as
1

The Supreme Court has characterized the PLRA’s provisions collectively as “constraints designed to prevent
sportive filings in federal court.” Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1299 (2011).
2
18 U.S.C. § 3626(g)(2); see Valdivia v. Davis, 206 F.Supp.2d 1068, 1074 n. 12 (E.D.Cal. 2002) (holding challenge
to parole revocation procedures was not a “civil action with respect to prison conditions”).
3
18 U.S.C. § 3626(g)(5).
4
In Bowers v. City of Philadelphia, 2007 WL 219651, *34 n.40 (E.D.Pa., Jan. 25, 2007), the court held that police
holding cells that were separate from the jails, which had their own intake facilities, were not prisons under the
prisoner release provisions of the PLRA prospective release section, discussed in § III.C, below. 2007 WL 219651,
*5-6. In Khatib v. County of Orange, 639 F.3d 898, 902-05 (9th Cir. 2011), cert. denied, 132 S.Ct. 115 (2011), the
court held that court holding facilities were both “pre-trial detention facilities” and “jails” for purposes of 42 U.S.C.
§ 1997. Khatib was brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which
borrows the relevant definitions from the PLRA.
5
18 U.S.C. § 3626(g)(7). Interpretation of this term is discussed in § III.F, below.
6
Brown v. Eppler, 725 F.3d 1221, 1228-31 (11th Cir. 2013) (holding that the obligation of 28 U.S.C. § 1915(b)(1)
to pay filing fees in installments applies where the plaintiff was a prisoner at the time he appealed). See § VII,
below, concerning filing fees. The same reasoning would presumably apply to 28 U.S.C. § 1915(g), the “three

1

a prisoner or not when the action is initially brought governs. Most courts have held that an
action is brought for PLRA purposes when the prisoner tenders the complaint to court7—a point
that may precede actual filing by some time, since most prisoners seek in forma pauperis status
and the processing of their applications may take weeks or even months.
A prisoner is “any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms
and conditions of parole, probation, pretrial release, or diversionary program.”8 Case law to date
holds that military prisoners are “prisoners” under the PLRA, 9 as are persons held in privately
operated prisons and jails10 or juvenile facilities.11 Most decisions reach the same result with
respect to “halfway houses” or drug treatment programs that the person is confined in as a result
of a criminal charge or conviction,12 though results may vary depending on whether the facility is
restrictive enough that the plaintiff can be said to be “confined” in it.13
strikes” provision, see § VIII, below, since it begins: “In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding. . . ” (emphasis supplied).
7
O'Neal v. Price, 531 F.3d 1146, 1151-52 (9th Cir. 2008) (applying 28 U.S.C. § 1915(g) (the “three strikes”
provision) (citing Vaden v. Summerhill, 449 F.3d 1045, 1050 (9th Cir. 2006)) (applying 42 U.S.C. § 1997e(a)
(administrative exhaustion)); Ford v. Johnson, 362 F.3d 395, 399-400 (7th Cir. 2004). Contra, Perryman v. San
Francisco Sheriff's Dept., 2012 WL 1038724, *2-3 (N.D.Cal., Mar. 27, 2012) (adopting date of formal filing), aff’d,
510 Fed.Appx. 504 (9th Cir. 2013) (unpublished); Ellis v. Guarino, 2004 WL 1879834, *6 (S.D.N.Y. Aug. 24,
2004). See nn. 483, 1561, below, for more on this subject.
Under the “prison mailbox” rule, a prisoner’s complaint is deemed filed when it is delivered to prison
officials for mailing, and that date may be considered the date the complaint is tendered to court. Vaughn v. Wilson,
2011 WL 2357869, *4 (N.D.Ind., June 8, 2011); Drake v. Berg, 2010 WL 309034, *2-3 (N.D.Cal., Jan. 26, 2010);
Schoenlein v. Halawa Correctional Facility, 2008 WL 4761791, *3-5 (D.Haw., Oct. 29, 2008); Gilliam v. Holt, 2008
WL 906479, *6 (M.D.Pa., Mar. 31, 2008); see Cohen v. Corrections Corp. of America, 439 Fed.Appx. 489, 491 (6th
Cir. 2011) (unpublished) (holding complaints were deemed filed when the plaintiff signed them under the prison
mailbox rule).
8
42 U.S.C. § 1997e(h); 28 U.S.C. § 1915(h); 28 U.S.C. § 1915A(c) (emphasis supplied). The administrative
exhaustion requirement is said to apply to “a prisoner confined in any jail, prison, or other correctional facility.” 42
U.S.C. § 1997e(a). The difference in phraseology does not seem to make a substantive difference, except possibly
in the rare situation where someone is held involuntarily in a civilian institution—i.e., one that cannot be
characterized as a correctional facility—as a result of violation of criminal law, parole terms, etc. See note 22,
below.
9
Marrie v. Nickels, 70 F.Supp.2d 1252, 1262 (D.Kan. 1999).
10
See Roles v. Maddox, 439 F.3d 1016, 1017-18 (9th Cir. 2006), cert. denied, 549 U.S. 905 (2006); Boyd v.
Corrections Corporation of America, 380 F.3d 989, 993-94 (6th Cir. 2004), cert. denied, 544 U.S. 920 (2005); Ross
v. County of Bernalillo, 365 F.3d 1181, 1184 (10 th Cir. 2004); Lodholz v. Puckett, 2003 WL 23220723, *4-5
(W.D.Wis., Nov. 24, 2003), reconsideration denied in part, 2004 WL 67573 (W.D.Wis., Jan. 13, 2004) (all holding
the PLRA exhaustion requirement applicable to persons held in private prisons).
11
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 994-95 (8th Cir. 2003) (holding attorneys’ fees
provisions apply to juveniles); Alexander S. v. Boyd, 113 F.3d 1373, 1383-85 (4th Cir. 1997), cert. denied, 522 U.S.
1090 (1998) (same); Troy D. v. Mickens, 806 F.Supp.2d 758, 767 (D.N.J., Aug. 25, 2011) (holding exhaustion
requirement applies to juveniles); Lewis v. Gagne, 281 F.Supp.2d 429, 433 (N.D.N.Y. 2003) (same).
12
Jackson v. Johnson, 475 F.3d 261, 266-67 (5th Cir. 2007) (holding that parolee in a halfway house, which he
could not leave without permission, was a prisoner, since his placement was ultimately a result of his criminal
conviction); Ruggiero v. County of Orange, 467 F.3d 170, 174-75 (2d Cir. 2006) (holding “drug treatment campus”
was a “jail, prison, or other correctional facility” under 42 U.S.C. § 1997e(a) even though state law said it wasn’t a
correctional facility; that term as used in the PLRA “includes within its ambit all facilities in which prisoners are
held involuntarily as a result of violating the criminal law”); Witzke v. Femal, 376 F.3d 744, 752-53 (7th Cir. 2004)
(holding “intensive drug rehabilitation halfway house” was an “other correctional facility” under the PLRA); Troutt
v. Franklin-Williamson Human Services, Inc., 2009 WL 666388, *2 (S.D.Ill., Mar. 11, 2009) (persons confined in

2

Persons who are civilly committed are generally not prisoners,14 even if their
commitment has its origins in past criminal charges or sentences. Thus, persons held pursuant to
sexually violent predator statutes are generally not prisoners,15 nor are persons held in connection
with immigration proceedings.16 However, persons who are civilly committed in connection with
criminal proceedings that are still pending remain pre-trial detainees and are therefore
prisoners.17 This category includes criminal defendants held in mental hospitals because of

federal Contract Community Corrections Centers must exhaust); Fernandez v. Morris, 2008 WL 2775638, *2
(S.D.Cal., July 16, 2008); Clemens v. SCI-Albion, 2006 WL 3759740, *5 (W.D.Pa., Dec. 19, 2006) (holding
halfway house with random urine tests, limited visiting was an “other correctional facility”); see Miller v. Wayback
House, 2006 WL 297769, *4 (N.D.Tex., Feb. 1, 2006) (assuming plaintiff, released on parole to halfway house, was
a prisoner, without much analysis whether facility was a correctional facility under the statute), aff’d, 253 Fed.Appx.
399 (5th Cir. 2007). But see Abdul-Matiyn v. Allen, 2010 WL 3880687, *7 (N.D.N.Y., Mar. 4, 2010) (holding
plaintiff paroled to a mental hospital was not a prisoner), report and recommendation adopted in part, rejected in
part on other grounds, 2010 WL 3880510 (N.D.N.Y., Sept. 28, 2010).
Confinement in such facilities may raise other issues about the applicability of PLRA provisions. See, e.g.,
Wilson v. Phoenix House, 2011 WL 3273179, *2 (S.D.N.Y., Aug. 1, 2011) (holding person released to drug
treatment facility was subject to the PLRA exhaustion requirement, but declining to dismiss for non-exhaustion of
jail grievance procedure without evidence that that procedure was available at the drug treatment facility, was
known to be available, and addressed complaints arising there).
13
In Wade v. Swiekatowski, 2010 WL 152073, *1-2 (E.D.Wis., Jan. 15, 2010), the court held the plaintiff, resident
in a halfway house he was not free to leave, was subject to the PLRA filing fees provisions, and distinguished an
earlier contrary decision on the ground that the plaintiff in the less restrictive halfway house at issue there was not
confined, but was more like a probationer. See Doss v. Gilkey, 2007 WL 1810514, *2 (S.D. Ill., June 22, 2007).
14
Perkins v. Hedricks, 340 F.3d 582, 583 (8th Cir. 2003) (person civilly detained in prison Federal Medical Center).
15
Bohannan v. Doe, 527 Fed.Appx. 283, 289-90 (5th Cir. 2013) (unpublished); Merryfield v. Jordan, 584 F.3d 923,
927 (8th Cir. 2009); Michau v. Charleston County, S.C., 434 F.3d 725, 727-28 (4th Cir. 2006), cert. denied, 548
U.S. 910 (2006); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002); Page v. Torrey, 201 F.3d 1136, 1139-40
(9th Cir. 2000); Artis v. McCann, 2013 WL 2481251, *5 (D.N.J., June 10, 2013) (holding civilly commited sex
offender was not a prisoner subject to physical injury requirement of 42 U.S.C. § 1997e(e)); Matherly v. Johns, 2012
WL 2953671, *2 (E.D.N.C., July 19, 2012) (holding civil commitment under Adam Walsh Act does not make
person a prisoner under PLRA, and rejecting argument that court should require exhaustion in its discretion);
Esparza v. Baca, 2008 WL 4500673, *4 (C.D.Cal., Sept. 30, 2008) (holding civilly committed sex offender was not
a prisoner even if he remained in prison awaiting a hearing); McClam v. McDonald, 2008 WL 4177217, *3 (D.S.C.,
Sept. 8, 2008). Contra, Willis v. Smith, 2005 WL 550528, *10 (N.D.Iowa, Feb. 28, 2005) (holding that a person
civilly committed as a sexually violent predator after completion of his sentence was a prisoner for PLRA purposes);
see McClellan v. Marshall, 2009 WL 2407630, *5-6 (C.D.Cal. 2009) (person whose parole violation term had
expired who was being held pending a determination whether he should be civilly committed as a sex offender was a
prisoner).
16
Agyeman v. I.N.S., 296 F.3d 871, 885-86 (9th Cir. 2002); LaFontant v. INS, 135 F.3d 158 (D.C.Cir. 1998);
Mohamed v. Lowe, 2008 WL 5244935, *1 (M.D.Pa., Dec. 16, 2008); Bromfield v. McBurney, 2008 WL 4426827,
*2 (W.D.Wash., Sept. 26, 2008); Gashi v. County of Westchester, 2005 WL 195517, *1 (S.D.N.Y., Jan. 27, 2005);
see Andrews v. King, 398 F.3d 1113, 1121-22 (9th Cir. 2005) (stating that PLRA “three strikes” provision did not
apply to dismissals of actions brought while a plaintiff was in INS custody “so long as the detainee did not also face
criminal charges”); Galeas v. Neely, 2010 WL 4975497, *1 n.2 (W.D.N.C., Dec. 1, 2010) (holding prisoner serving
a criminal sentence who also had an immigration detainer was a prisoner for PLRA purposes), aff’d, 412 Fed.Appx.
650 (4th Cir. 2011) (unpublished), cert. denied, 131 S.Ct. 2966 (2011).
17
Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir.) (holding that persons held under the Illinois Sexually
Dangerous Persons Act are prisoners for PLRA purposes), cert. denied, 542 U.S. 907 (2004). In Cooper v. Russell,
2013 WL 1332002, *1 n.1 (S.D.Ill., Apr. 2, 2013), the court stated without qualification (and therefore wrongly) that
the PLRA “is equally applicable to civilly committed sex offenders,” citing Kalinowski, but not describing the
precise nature of the plaintiff’s commitment.

3

incompetency to assist in their defense.18 A defendant psychiatrically confined after a finding of
not guilty by reason of insanity is civilly committed and therefore not a prisoner,19 but a person
committed pursuant to statutory requirement after a “guilty but insane” verdict is a prisoner.20
The same is true of a person serving a prison sentence who is committed to a mental health
facility, even one operated by a mental health department and not a correction department.21
One court has held that a prisoner paroled to a mental hospital is not a prisoner.22
Persons who are not lawfully subject to detention are not prisoners. 23 Prospective
prisoners are not prisoners; an arrestee is not a prisoner even if he is subsequently jailed, 24 and
someone who has been sentenced to prison but has not yet surrendered is not a prisoner because

18

Gibson v. City Municipality of New York, 692 F.3d 198, 201-02 (2d Cir. 2012) (per curiam); Holbach v. North
Dakota, 2014 WL 295153, *1 (D.N.D., Jan. 24, 2014); Antrobus v. Mid-Hudson Forensic Psychiatric Center, 2013
WL 765322, *2 (S.D.N.Y., Feb. 27, 2013); Henson v. Kelley, 2012 WL 734189, *2 (S.D.Ill., Feb. 14, 2012), report
and recommendation adopted, 2012 WL 734171 (S.D.Ill., Mar. 6, 2012); Banks v. Thomas, 2011 WL 1750065, *2
(S.D.Ill., May 6, 2011); Ruston v. Church of Jesus Christ of Latter-Day Saints, 2007 WL 2332393, *1 (D.Utah,
Aug. 13, 2007); In re Rosenbalm, 2007 WL 1593207, *2 (N.D.Cal., June 1, 2007) (noting that such hospitalization
is part of the criminal proceeding under state law); Gibson v. Commissioner of Mental Health, 2006 WL 1234971,
*6 (S.D.N.Y., May 8, 2006) (applying “three strikes” provision to a criminal defendant hospitalized as incompetent
to stand trial), relief from judgment denied, 2006 WL 2192865 (S.D.N.Y., Aug. 2, 2006).
19
Koloctronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); Lewis v. Oklahoma Dept. of Mental Health, 2012 WL
5574174, *1 (N.D.Okla., Nov. 15, 2012); Banks v. Thomas, 2011 WL 1750065, *2 (S.D.Ill., May 6, 2011); Mullen
v. Surtshin, 590 F.Supp.2d 1233, 1240 (N.D.Cal. 2008), leave to file for reconsideration denied, 2009 WL 734673
(N.D.Cal., Mar. 18, 2009); Phelps v. Winn, 2007 WL 2872465, *1 (D.Mass., Sept. 27, 2007) (so holding,
notwithstanding that the plaintiff is held by the Bureau of Prisons).
20
Lewis v. Oklahoma Dept. of Mental Health, 2012 WL 5574174, *1 (N.D.Okla., Nov. 15, 2012); Magnuson v.
Arizona State Hosp., 2010 WL 283128, *1 n.5, *2 (D.Ariz., Jan. 20, 2010).
21
McQuilkin v. Central New York Psychiatric Center, 2010 WL 3765847, *10 (N.D.N.Y., Aug. 27, 2010), report
and recommendation adopted, 2010 WL 3765715 (N.D.N.Y., Sept. 20, 2010); Jones v. Sherman, 2010 WL
3277135, *3 n.1 (E.D.Ky., Aug. 18, 2010); Roland v. Wenz, 2010 WL 2834828, *3 n.7 (N.D.N.Y., July 16, 2010),
report and recommendation adopted, 2010 WL 2817485 (N.D.N.Y., July 16, 2010).
22
Abdul-Matiyn v. Allen, 2010 WL 3880687, *7 (N.D.N.Y., Mar. 4, 2010), report and recommendation adopted in
part, rejected in part on other grounds, 2010 WL 3880510 (N.D.N.Y., Sept. 28, 2010). This decision appears
inconsistent with decisions holding that persons paroled to halfway houses and drug treatment programs remain
prisoners. See cases cited in n. 27, below. However, it may be accounted for by the difference in language between
the PLRA’s general definition of “prisoner” including persons held in “any facility” and the more specific language
of the exhaustion requirement referring to a “prisoner confined in any jail, prison, or other correctional facility.” See
note 8, above.
23
Lee v. State Dept. of Correctional Services, 1999 WL 673339, *4 (S.D.N.Y., Aug. 30, 1999) (holding that a
mentally retarded person imprisoned based on mistaken identity was not a prisoner because he had not actually been
accused or convicted of any crime); Williams v. Block, 1999 WL 33542996, *6 (C.D.Cal., Aug. 11, 1999) (holding
that persons held after they were entitled to be released were not prisoners); Watson v. Sheahan, 1998 WL 708803,
*2 (N.D.Ill., Sept. 30, 1998) (holding that persons detained for 10 hours after they were legally entitled to be
released were not prisoners during that period).
24
Brewer v. Philson, 2007 WL 87625, *2 (W.D.Ark., Jan. 10, 2007) (holding plaintiff was not a prisoner for
purposes of excessive force on arrest, though he was for purposes of excessive force in a jail holding cell); Lofton v.
Cleveland City Jail Institution Guard Badge No. 3701, 2006 WL 3022989, *2 (N.D.Ohio, Oct. 23, 2006) (same). But
see Roach v. Bandera County, 2004 WL 1304952, *5 (W.D.Tex., June 9, 2004) (holding that a person beaten in jail
was not a prisoner because he had not yet been brought before a judicial officer). Roach relied on Circuit law
holding that the line between arrest and detention or incarceration is drawn after arrest, processing, and significant
periods of time in detention. Id. However, that line was drawn to determine whether the Fourth Amendment or the
Due Process Clause applies to excessive force claims, see Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir.
1994), cert. denied, 513 U.S. 1045 (1994), and does not appear apposite to determining the PLRA’s applicability.

4

he is not yet “confined” in a correctional facility, even though he may be within the prison
system’s legal custody.25
Ex-prisoners are not prisoners; the overwhelming majority of decisions hold that the
PLRA does not apply to suits filed after release, on parole or otherwise, even if they concern
events that occurred in prison.26 However, persons released on parole to residential facilities
they are not free to leave remain prisoners because they remain “incarcerated or detained in [a]
facility” and were “accused of, convicted of, sentenced for, or adjudicated delinquent for”
criminal violations.27 Persons on home detention are not prisoners either.28 A few decisions do
apply PLRA provisions to persons who file suit after release, but in my view they rely on
strained reasoning and are inconsistent with the plain language of the relevant statutes, which
employ some variation of “actions brought by a prisoner.” A couple of decisions have held that,
25

Jasperson v. Federal Bureau of Prisons, 460 F.Supp.2d 76, 87 (D.D.C. 2006).
Lesesne v. Doe, 712 F.3d 584, 587-89 (D.C.Cir. 2013); Talamantes v. Leyva, 575 F.3d 1021, 1023-24 (9th Cir.
2009); Cofield v. Bowser, 247 Fed.Appx. 413, 414 (4th Cir. 2007) (unpublished); Norton v. The City Of Marietta,
OK, 432 F.3d 1145, 1150 (10th Cir. 2005); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam); Cox
v. Mayer, 332 F.3d 422, 425-26 (6th Cir. 2003) (dictum); Ahmed v. Dragovich, 297 F.3d 201, 210 n.10 (3d Cir.
2002) (citing cases); Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001);
Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998);
Kerr v. Puckett, 138 F.3d 321, 322 (7th Cir. 1998); Watkins v. Haynes, 2013 WL 1289312, *5 n.4 (S.D.Ga., Mar.
27, 2013), appeal dismissed, No. 13-12309 (11th Cir., June 19, 2013); Robinson v. Sheppard, 2012 WL 2358252,
*1 n.2 (S.D.Tex., June 20, 2012) (holding parolee was unaffected by three strikes provision); Murray v. Raney, 2012
WL 5985543, *4 (D.Idaho, Nov. 29, 2012) (holding parolee is not a prisoner required to exhaust); Bell v. Zuercher,
2011 WL 5191800, *3 (E.D.Ky., Oct. 31, 2011) (holding released prisoner need not exhaust even if he had plenty of
time to do so before release); Poindexter v. Boyd, 2011 WL 5008351, *4 (W.D.Ky., Oct. 20, 2011) (person released
from jail to obtain medical care was not a prisoner); Cantley v. West Virginia Regional Jail and Correctional Facility
Authority, 728 F.Supp.2d 803, 820 (S.D.W.Va. 2010); Wormley v. U.S., 601 F.Supp.2d 27, 44 (D.D.C. 2009);
Mabry v. Freeman, 489 F.Supp.2d 782, 785-86 (E.D.Mich. 2007); Bisgeier v. Michael [sic] Dept. of Corrections,
2008 WL 227858, *4 (E.D.Mich., Jan. 25, 2008) (“While there may be certain conditions imposed upon Plaintiff as
a parolee, there can be no doubt that he is neither ‘confined,’ ‘incarcerated,’ nor ‘detained in’ any jail, prison, or
other correctional facility.”); Hoffman v. Tuten, 446 F.Supp.2d 455, 468 (D.S.C. 2006); Keel v. CDCR, 2006 WL
2402100, *2 (E.D.Cal., Aug. 18, 2006) (holding parolee was not a prisoner); Lake v. Schoharie County Com’r of
Social Services, 2006 WL 1891141, *4 (N.D.N.Y., May 16, 2006) (rejecting argument that the PLRA’s “underlying
policy considerations” supported applying the attorneys’ fees limits to a released prisoner); Rose v. Saginaw County,
232 F.R.D. 267, 275-77 (E.D.Mich. 2005); Wilson v. Hampton County, 2005 WL 2877725, *3 (D.S.C., Oct. 31,
2005) (relying on Greig v. Goord); Black v. Franklin County, Kentucky, 2005 WL 1993445, *4-5 (E.D.Ky., Aug.
16, 2005); see Connor v. California, 2011 WL 1595995, *3 (E.D.Cal., Apr. 27, 2011) (rejecting argument that
grievance rule requires parolees to exhaust), report and recommendation adopted, 2011 WL 2909762 (E.D.Cal.,
July 15, 2011).
One court has held that a prisoner who files suit while in prison, and then amends to add a new claim after
release, must have exhausted that claim. Siler v. Baldwin, 2011 WL 6371012, *2-4 (E.D.Mich., Dec. 20, 2011).
This holding is inconsistent with the statutory language, which requires that actions filed by prisoners be exhausted
before they are brought. The Supreme Court has held that in multi-claim cases, each claim’s exhaustion status must
be assessed individually, Jones v. Bock, 549 U.S. 199, 220-24 (2007), and thus each claim brought by a prisoner
must be exhausted—but not claims brought by non-prisoners. A claim that is not brought by a prisoner need not be
exhausted at all. The Siler holding also makes little practical sense, since the ex-prisoner could file the new claim
separately and then seek consolidation, probably wasting more of the courts’ time than would a straightforward
amendment.
27
42 U.S.C. § 1997e(h); see Jackson v. Johnson, 475 F.3d 261, 265-67 (5th Cir. 2007); Clemens v. SCI-Albion,
2006 WL 3759740, *5 (W.D.Pa., Dec. 19, 2006) (holding halfway house with random urine tests, limited visiting
was an “other correctional facility”); see also n. 12, above.
28
Blank v. Eavenson, 2012 WL 685460, *4 (N.D.Tex., Feb. 14, 2012), report and recommendation adopted, 2012
WL 690671 (N.D.Tex., Mar. 1, 2012), aff’d, 530 Fed.Appx. 364 (5th Cir. 2013), cert. denied, 134 S.Ct. 623 (2013).
26

5

unlike the administrative exhaustion requirement, the bar on actions for mental or emotional
injury without physical injury, 42 U.S.C. § 1997e(e), applies to cases filed by released prisoners,
asserting that the congressional purpose of weeding out frivolous cases would be served
thereby.29 However, almost all (and the better reasoned) decisions follow the statutory language
and hold that § 1997e(e) does not apply to cases filed after release from prison.30 This approach
is consistent with the Supreme Court’s instruction to district courts not to supplement the text of
the PLRA based on judges’ policy views.31 The handful of decisions holding that the
administrative exhaustion requirement of 42 U.S.C. § 1997e(a) applies to cases filed after release
are now mostly overruled.32 Several decisions have stated that a federal regulation, which states
that the Federal Bureau of Prisons Administrative Remedy Program applies to former prisoners,
29

Cox v. Malone, 199 F.Supp.2d 135, 140 (S.D.N.Y. 2002), aff’d, 56 Fed.Appx. 43, 2003 WL 366724 (2d Cir.
2002) (unpublished); accord, Lipton v. County of Orange, NY, 315 F.Supp.2d 434, 456-57 (S.D.N.Y. 2004). The
Cox holding, though affirmed by non-precedential opinion, disregards the plain language of the statute that such
actions may not “be brought by a prisoner confined in a jail, prison, or other correctional facility.” 42 U.S.C. §
1997e(e). A person on parole, like Mr. Cox, is not usually “a prisoner confined” in one of the listed types of
institutions.
30
See Kerr v. Puckett, 138 F.3d at 322 (“The statutory language does not leave wriggle room; a convict out on
parole is not a ‘person incarcerated or detained in any facility who is . . . adjudicated delinquent for, violations of . . .
the terms and conditions of parole.”); Harris v. Garner, 216 F.3d 970, 976-80 (11th Cir. 2000) (en banc); In re
Nassau County Strip Search Cases, 2010 WL 3781563, *4 (E.D.N.Y., Sept. 22, 2010) (“. . . [T]he plain language of
§ 1997e(e), the declared purpose of the PLRA, and the case law demonstrate that the limitation on recovery is
inapplicable where a plaintiff is no longer incarcerated at the time an action is commenced.”); Trevino v. Bandera
County, Tex., 2008 WL 4239842, *3 (W.D.Tex., Sept. 15, 2008); Lombard v. Gusman, 2008 WL 2704527, *3
(E.D.La., July 3, 2008); Gibson v. Kendrick, 2005 WL 1309161, *1 (E.D.La., May 19, 2005); Billingsley v. Shelby
County Dept. of Correction, 2004 WL 2757915, *7 n.4 (W.D.Tenn., Nov. 24, 2004).
Further, later New York decisions have directly refused to follow Cox v. Malone, supra, on the grounds
that the Circuit decision is explicitly non-precedential under governing rules and that the district court’s analysis is
incorrect. In re Nassau County Strip Search Cases, 2010 WL 3781563, *3-7 (E.D.N.Y., Sept. 22, 2010) (citing Kerr
and Harris); McBean v. City of New York, 260 F.R.D. 120, 142-43 (S.D.N.Y. 2009) (same); Kelsey v. County of
Schoharie, 2005 WL 1972557, *1-3 (N.D.N.Y., Aug. 5, 2005) (same). Courts elsewhere have also rejected Cox.
Rose v. Saginaw County, 232 F.Supp.2d 267, 277 (E.D.Mich. 2005); Sutton v. Hopkins County, Ky., 2005 WL
3478152, *3-4 (W.D.Ky., Dec. 19, 2005) (following Rose).
31
Jones v. Bock, 549 U.S. 199, 212-16, 220-24 (2007). The Jones holding was made in connection with the
exhaustion requirement of the PLRA, but there is no apparent reason why it is not equally applicable to other
provisions including § 1997e(e). See Silva v. Di Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011) (applying Jones
prohibition on judicial supplementation of PLRA to three strikes provision, 28 U.S.C. § 1915(g)); Miller v. Donald,
541 F.3d 1091, 1099 (11th Cir. 2008) (same).
32
See Villescaz v. City of Eloy, 2008 WL 1971394, *2-5 (D.Ariz., May 2, 2008) (rejecting reliance on PLRA’s
language and legislative history, relying instead on “traditional principles of administrative law”); Reyes v. State of
Oregon, 2005 WL 1459662, *2 (D.Or., June 21, 2005) (same as Morgan); Morgan v. Maricopa County, 259
F.Supp.2d 985, 991 (D.Ariz. 2003) (requiring exhaustion of post-release filings on policy grounds). Other decisions
had rejected Morgan’s reasoning, see Valdivia v. County of Santa Cruz, 2008 WL 4065873, *2-4 (N.D.Cal., Aug.
27, 2008); Zaragoza v. Maricopa County, 2006 WL 581219, *2-3 (D.Ariz., Mar. 3, 2006); Thomas v. Baca, 2005
WL 697986, *2-3 (C.D.Cal., Mar. 23, 2005), or noted its inconsistency with Ninth Circuit precedent. See
Kritenbrink v. Crawford, 313 F.Supp.2d 1043, 1047-48 (D.Nev. 2004) (citing Page v. Torrey, 201 F.3d 1136, 1139
(9th Cir. 2000)). Villescaz’s reliance on “traditional principles of administrative law” ignores both the Supreme
Court’s holding that an exhaustion requirement is contrary to the legislative intent underlying § 1983, except to the
extent that Congress prescribes otherwise, see Patsy v. Board of Regents of State of Fla., 457 U.S. 496, 503-15
(1982), and its more recent holding that the language of the PLRA, not judicial views of its underlying policies,
determines its interpretation. Jones v. Bock, 549 U.S. 199, 216-17 (2007). However, the matter is now academic,
since the Ninth Circuit has now ruled categorically that “only those individuals who are prisoners (as defined by 42
U.S.C. § 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. §
1997e(a).” Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009).

6

requires released federal prisoners to exhaust.33 However, these decisions (which are either
unpublished and nonprecedential, or involve prisoners who had not actually been released, or
both) fail to explain how the language of the regulation trumps the plain language of the PLRA.34
Most courts have held that a prisoner who files suit while in prison and then is released
should continue to be treated as a prisoner for PLRA purposes.35 (A prisoner who is merely
released to another prison or jail system remains a prisoner, and must exhaust the grievance
process of the system where the claim arose.36) Several have held that the filing of an amended
complaint after release means that the case is no longer “brought by a prisoner” and the PLRA is
inapplicable.37 However, the majority holding is that if the plaintiff was a prisoner at the time of
33

See Maree-Bey v. Nash, 53 Fed. Appx. 240 (4th Cir. 2002) (unpublished); Bloch v. Samuels, 2006 WL 2239016,
*3-4 (S.D.Tex., Aug. 3, 2006) (plaintiff was in custody in a halfway house); accord, Blevins v. Wells, 2011 WL
1518656, *3 (D.Colo., Mar. 14, 2011) (implying same view for state prison system), report and recommendation
adopted, Blevins v. Wells, 2011 WL 1518655 (D.Colo., Apr. 20, 2011).
34
See Bisgeier v. Michael [sic] Dept. of Corrections, 2008 WL 227858, *4 (E.D.Mich., Jan. 25, 2008) (parolees
were not required by the PLRA to exhaust even though they were covered by grievance procedures).
35
See Harris v. City of New York, 607 F.3d 18, 21-22 (2d Cir. 2010) (where a case was filed from prison, the three
strikes provision applied despite plaintiff’s subsequent release); Williams v. Henagan, 595 F.3d 610, 618-19 (5th
Cir. 2010) (where a case was filed from prison, the exhaustion requirement applied despite the plaintiff’s subsequent
release, notwithstanding grievance policy provision that upon release pending grievances became moot); Cox v.
Mayer, 332 F.3d 422, 425-27 (6th Cir. 2003); Harris v. Garner, 216 F.3d 970, 973-76 (11th Cir. 2000) (en banc)
(holding that plaintiffs released after filing remain prisoners for purposes of PLRA mental/emotional injury
provision), cert. denied, 532 U.S. 1065 (2001); Cruz v. Dart, 2013 WL 6283687, *2 (N.D.Ill., Dec. 4, 2013) (noting
that excusing prisoners from exhaustion because they were released after filing is a minority approach); Bowen v.
Michigan Dept. of Corrections, 2010 WL 956000, *4 (E.D.Mich., Mar. 15, 2010); Banks v. York, 515 F.Supp.2d
89, 106 n.7 (D.D.C.2007); Ross v. Felstead, 2006 WL 2707344, *7 n.6 (D.Minn., Sept. 19, 2006) (same, for
exhaustion requirement); Collins v. Goord, 438 F.Supp.2d 399, 408-09 (S.D.N.Y. 2006) (same, for exhaustion
requirement; stating the statutory language “brought” requires a focus on the plaintiff’s status at the time of filing);
Becker v. Vargo, 2004 WL 1068779, *3 (D.Or., Feb. 17, 2004) (same), report and recommendation adopted, 2004
WL 1071067 (D.Or., Mar. 12, 2004) and 2004 WL 1179332 (D.Or., May 27, 2004); Richardson v. Romano, 2003
WL 1877955, *2 (N.D.N.Y., Mar. 31, 2003). Contra, Whittington v. Isgrig, 2013 WL 4776276, *2 (E.D.Mo., Sept.
6, 2013) (stating dismissal where plaintiffs were released after filing would not “further the objectives of the
exhaustion requirement. . . . Rather, plaintiffs could defeat defendant's motion by simply refiling their complaint”);
Benjamin v. California Dept. of Corrections and Rehabilitation, 2013 WL 1563336, *2 (E.D.Cal., Apr. 12, 2013)
(holding prisoner released after filing is not bound by the three strikes provision), report and recommendation
adopted, 2013 WL 2319052 (E.D.Cal., May 28, 2013); Liner v. Goord, 115 F.Supp.2d 432, 434 (S.D.N.Y. 2000)
(“Given the fact that Liner has been released from prison and could not now be ordered to exhaust all available
administrative remedies, the Court will consider the merits and not grant judgment to Defendants for failure to
exhaust remedies.”).
One court has declined to apply the PLRA attorneys’ fees restrictions to a prisoner released a few weeks
after filing suit, citing the “absurdity exception” to the plain meaning rule. Morris v. Eversley, 343 F.Supp.2d 234,
243-44 (S.D.N.Y. 2004). However, the decision on which it relied was reversed on appeal. Robbins v. Chronister,
435 F.3d 1238 (10th Cir. 2006) (en banc), rev’g Robbins v. Chronister, 2002 WL 356331 (D.Kan., Mar. 31, 2002).
Most courts, including the Second Circuit, have held that prisoners proceeding in forma pauperis who are
released after filing are no longer obliged to pay the filing fee in installments. See § VII, below.
36
Figueroa v. Oklahoma Dept. of Corrections, 501 Fed.Appx. 746, 750-51 (10th Cir. 2012) (unpublished).
37
Miller v. Zaruba, 2013 WL 5587288, *14 (N.D.Ill., Oct. 10, 2013) (citing Minix v. Pazera, below); Minix v.
Pazera, 2007 WL 4233455, *2-3 (N.D.Ind., Nov. 28, 2007) (holding that filing of amended complaint after release
was equivalent to filing a new complaint, and ex-prisoner need not have met the exhaustion requirement;
amendment reasserted a federal claim that had been dismissed); Gibson v. Commissioner of Mental Health, 2006
WL 1234971, *6 (S.D.N.Y., May 8, 2006) (rejecting as “victory of form over substance” dismissal for nonpayment
of filing fee under PLRA where the prisoner had been released and his amended complaint was offered when he was
no longer a prisoner), relief from judgment denied, 2006 WL 2192865 (S.D.N.Y., Aug. 2, 2006); Stevens v. Goord,

7

original filing, an amended complaint filed after release does not exempt the case from the
PLRA.38 Indeed, one court has taken this view so far as to hold that a plaintiff who filed while in
prison and then filed an amended complaint after release adding new claims must have exhausted
those claims,39 even though he could have filed them as a separate complaint without exhausting.
A prisoner who files and is released may voluntarily dismiss and refile the action (or refile after
dismissal for PLRA-related reasons) and avoid the PLRA’s requirements as long as the
limitations period has not expired.40 In cases where persons are released and reincarcerated,
whether the plaintiff was incarcerated at the time the suit was filed determines whether he or she
is a prisoner for PLRA purposes.41 A prisoner who begins exhaustion and is released before the
2003 WL 21396665, * 4 (S.D.N.Y., June 16, 2003) (following Morris, below, citing other cases), on reargument,
2003 WL 22052978 (S.D.N.Y., Sept. 3, 2003); Morris v. Eversley, 205 F.Supp.2d 234, 241 (S.D.N.Y. 2002)
(holding that considerations of judicial efficiency and economy weigh against dismissal); Dennison v. Prison Health
Services, 2001 WL 761218, *2-3 (D.Me., July 10, 2001) (holding that exhaustion issue was moot as to released
prisoner); Ovens v. State of Alaska, Dept. of Corrections, 2000 WL 34514101, *3 (D.Alaska, Mar. 13, 2000)
(holding that a prisoner released after filing “is now on the same footing as any other former prisoner who would not
be required to exhaust”). Contra, Prescott v. Annetts, 2010 WL 3020023, *3-4 (S.D.N.Y., July 22, 2010); Barrett v.
Maricopa County Sheriff's Office, 2010 WL 46786, *4 (D.Ariz., Jan. 4, 2010); Barnhardt v. Tilton, 2009 WL
3300090, *3 (E.D.Cal. 2009). See Jackson v. Traquina, 2009 WL 3296677, *2 (E.D.Cal. 2009) (treating amended
complaint as commencing action for exhaustion purposes because amendment drastically changed action, from
putative class action for injunction to action for plaintiff’s own damages); see also Segalow v. County of Bucks,
cited in n. 41, below.
In the Minix case, cited above, the amended complaint filed after release reinstated federal claims that had
been dismissed entirely for non-exhaustion while the plaintiff was incarcerated.
38
Harris v. Garner, 216 F.3d at 973-76 (holding that filing of amended complaint does not change plaintiffs’ status);
Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); DeFreitas v. Montgomery County Correctional Facility,
2012 WL 2920219, *6-7 (E.D.Pa., July 18, 2012) (holding Prendergast, cited in the previous footnote, is overruled
by Ahmed v. Dragovich), order entered, 2012 WL 2920277 (E.D.Pa., July 18, 2012), aff’d, 525 Fed.Appx. 170, 176
n.9 (3d Cir. 2013) (unpublished); Jackson v. Gandy, 877 F.Supp.2d 159, 175 (D.N.J., June 29, 2012); Brown v.
Ghosh, 2010 WL 3893939, *3 (N.D.Ill., Sept. 28, 2010); Prescott v. Annetts, 2010 WL 3020023, *3-4 (S.D.N.Y.,
July 22, 2010) (same); Barrett v. Maricopa County Sheriff's Office, 2010 WL 46786, *4 (D.Ariz., Jan. 4, 2010)
(same); Barnhardt v. Tilton, 2009 WL 3300090, *3 (E.D.Cal. 2009) (same).
39
Defreitas v. Montgomery County Correctional Facility, 525 Fed.Appx. 170, 175-76 (3d Cir. 2013) (unpublished)
(Table). The court relies on Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.2002), but that case did not involve
new claims first asserted after release.
40
Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (plaintiff whose suit is dismissed under three strikes
provision but has been released can refile and seek in forma pauperis status like any other non-prisoner litigant);
Cox v. Mayer, 332 F.3d 422, 425-26 (6th Cir. 2003); Dixon v. Page, 291 F.3d 485, 488 n.1 (7th Cir. 2002); Younker
v. Ohio State University Medical Center, 2013 WL 3222902, *5 (S.D.Ohio, June 25, 2013), report and
recommendation adopted, 2013 WL 3761130 (S.D.Ohio, July 16, 2013); Ahmed v. Dragovich, 297 F.3d 201, 210
(3d Cir. 2002); Dilworth v. Goldberg, 2011 WL 3501869, *15 (S.D.N.Y., July 28, 2011) (declining to dismiss case
refiled after release for non-exhaustion, notwithstanding that plaintiff previously filed some of the same claims
while incarcerated), report and recommendation adopted, 2011 WL 4526555 (S.D.N.Y., Sept. 30, 2011); Reddic v.
Evans, 2011 WL 2181311, *3 n.1 (N.D.Cal., June 3, 2011); Bloothoofd v. Danberg, 2011 WL 1230268, *3 (D.Del.,
Mar. 31, 2011) (approving plaintiff’s filing of new action after release to avoid the exhaustion requirement);
Bloothoofd v. Danberg, 2011 WL 1287973, *2-3 (D.Del., Mar. 17, 2011) (same); Michalski v. Krebs, 2010 WL
1032647, *2 (S.D.Ill., Mar. 17, 2010) (plaintiff whose case is dismissed for non-exhaustion can refile without
exhaustion after release); Ladd v. Dietz, 2007 WL 160762, *1 (D.Neb., Jan. 17, 2007); see Chrisman v. Smith, 2010
WL 503043, *2 (S.D.Cal., Feb. 5, 2010) (noting refiling where court dismissed for non-exhaustion).
41
Compare Lopez v. City of New York, 2009 WL 229956, *3-4 (S.D.N.Y., Jan. 30, 2009) (plaintiff jailed
repeatedly need not have exhausted where she filed when out of jail); Segalow v. County of Bucks, 2004 WL
1427137, *1 (E.D.Pa., June 24, 2004) (holding that a prisoner who was released, filed his complaint, was
reincarcerated, was released again, and then filed an amended complaint naming a new party was not a prisoner for
PLRA purposes); Dolberry v. Levine, 567 F.Supp.2d 413, 422 (W.D.N.Y. 2008) (claim filed while plaintiff was out

8

process is complete, then files suit after reincarceration, may be found to have failed to exhaust if
the grievance system remained available after release.42 A prisoner who delivers a complaint to
prison officials for mailing to court remains a prisoner for PLRA purposes even if the complaint
arrives at court after his or her release.43 Persons who join a previously filed case are prisoners if
they are incarcerated as of the date they join the case, not as of the date the case was first filed. 44
Prisoners cease to be prisoners upon death and therefore litigation on their behalf is not
subject to the PLRA,45 though a case filed by a prisoner before death remains a case brought by a
of prison was not governed by “three strikes” provision) with Napier v. Laurel County, Ky., 636 F.3d 218, 221 n.1
(6th Cir. 2011) (holding prisoner released, then reincarcerated on new charges when he filed suit was a prisoner for
PLRA purposes); Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003) (holding plaintiff who had been released but was
re-incarcerated at the time lawsuit filed was required to exhaust administrative remedies under the PLRA); Branham
v. Bryant, 2013 WL 1194843, *2-3 (D.S.C., Mar. 22, 2013); Jewkes v. Shackleton, 2012 WL 3028054, *5 (D.Colo.,
July 23, 2012); McCullough v. Yates, 2011 WL 773233, *3-4 (E.D.Cal., Feb. 28, 2011); Smedley v. Reid, 2010 WL
391831, *4 (S.D.Cal., Jan. 27, 2010); Shembo v. Bailey, 2009 WL 129974, *2-3 (W.D.N.C. 2009); Soto v.
Erickson, 2007 WL 1430201, *4 & n.4 (E.D.Wis., May 11, 2007), relief from judgment denied, 2007 WL 2209257
(E.D.Wis., July 27, 2007); Colby v. Sarpy County, 2006 WL 519396, *1 (D.Neb., Mar. 1, 2006); Gibson v. Brooks,
335 F.Supp.2d 325, 330-31 (D.Conn. 2004) (all holding the exhaustion requirement applied to a prisoner who was
released after the incident sued about, but did not file suit until he had been reincarcerated); see George v. Hogan,
2008 WL 906523, *6 (M.D.Pa., Mar. 31, 2008) (holding plaintiff who was an ICE detainee at the time of the
relevant events but was criminally committed when he filed suit was required to exhaust). But see Evans v.
Cameron, 2009 WL 3415160, *2 (W.D.Pa. 2009) (prisoner who was released before the grievance filing deadline,
but was reincarcerated before he filed suit, by which time the grievance deadline had passed, could go forward
without exhaustion as remedies were unavailable); Almond v. Tarver, 468 F.Supp.2d 886, 896-97 (E.D.Tex. 2006)
(holding that a prisoner who pursued the grievance process but was released before it concluded, then was
reincarcerated in a different system and filed suit while there, could not practicably be required to resume the
grievance process and had sufficiently exhausted). Under the majority view, a prisoner who was released after the
claim arose and then reincarcerated before filing would be obliged to try to exhaust upon reincarceration, relying on
any provision allowing late filings for good cause. Soto v. Erickson, 2007 WL 1430201, *4 & n.4. See Duvall v.
Dallas County, Tex., 2006 WL 3487024, *4 (N.D.Tex., Dec. 1, 2006) (directing defendants to submit proof of their
claim that the plaintiff was a prisoner at filing and subject to the PLRA); Lopez v. City of New York, 2009 WL
229956, *3-4 (S.D.N.Y., Jan. 30, 2009) (suggesting that prisoner who was repeatedly jailed, but never for long
enough to complete the grievance process, would not be required to have exhausted).
42
McCullough v. Yates, 2011 WL 773233, *3-4 (E.D.Cal., Feb. 28, 2011) (grievance policy was made available to
parolees, and notice of grievance decision provided after date of parole provided instructions for appeal). By
contrast, in Cohron v. City of Louisville, Ky., 2012 WL 1015789, *2-3 (W.D.Ky., Mar. 22, 2012), aff’d, 530
Fed.Appx. 534 (6th Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 1029 (2014), the court noted that the grievance
policy says that grievances, including pending ones, are mooted by release; a prisoner must follow the grievance
policy until released, but no longer, and the mooted grievance process need not be resumed upon reincarceration.
43
Gilliam v. Holt, 2008 WL 906479, *6 (M.D.Pa., Mar. 31, 2008).
44
Turner v. Grant County Detention Center, 2008 WL 821895, *5 (E.D.Ky., Mar. 26, 2008); In re Bayside Prison
Litigation, 2007 WL 327519, *4 (D.N.J., Jan. 30, 2007); see Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 258
(M.D.Pa. 2009) (newly added plaintiff is a prisoner if incarcerated when the amended complaint is filed, not when
plaintiffs seek leave to file it).
In the Bayside case, one of the numerous plaintiffs alleging abuse by prison staff had joined the action only
after he was released. Prison officials argued that his claim should be deemed to “relate back” to the filing of the
original complaint under Rule 15(c), Fed.R.Civ.P., when he was still in prison, so it would be barred The court held
that that Rule was completely inapposite, since it was intended to mitigate the effect of statutes of limitations, and
pointed out that the plaintiff would have been free to file a separate suit after release in any case.
45
Anderson v. County of Salem, 2010 WL 3081070, *2 (D.N.J., Aug. 5, 2010); Torres Rios v. Pereira Castillo, 545
F.Supp.2d 204, 206 (D.P.R., Aug. 28, 2007); Rivera-Quinones v. Rivera-Gonzalez, 397 F.Supp.2d 334, 340 (D.P.R.,
Oct. 28, 2005); Simmons ex rel. Estate of Simmons v. Johnson, 2005 WL 2671537, *2 (W.D.Va., Oct. 20, 2005);
Greer v. Tran, 2003 WL 21467558, *2 (E.D.La., June 23, 2003); Treesh v. Taft, 122 F.Supp.2d 887, 890 (S.D.Ohio.
2000); see Lister v. Prison Health Services, Inc., 2006 WL 1733999, *1-2 (M.D.Fla., June 22, 2006) (holding that a

9

prisoner.46 Prisoners’ relatives or estates bringing an action for a prisoner’s death are not
themselves prisoners.47 However, suits brought by prisoners’ conservators or guardians, who do
not have their own separate claims, have been held to be suits brought by prisoners.48 In cases
filed by both prisoners and non-prisoners as plaintiffs, the non-prisoners’ claims are not
governed by the PLRA.49 However, a non-prisoner who intervenes in a prisoner’s action may be
subject to PLRA requirements because the case was initially brought by a prisoner; filing a
separate complaint and seeking consolidation, though time-wasting, is more prudent.50 A
“protection and advocacy” organization is not a prisoner.51
Civil actions do not include habeas corpus and other post-judgment proceedings
challenging criminal convictions or sentences or their calculation.52 Most courts have now held
female prisoner suing over the death of her child was barred for non-exhaustion, but the estate of the child might
have a claim if it was born alive).
46
Tretter v. Pennsylvania Dept. of Corrections, 2012 WL 360029, *4 (M.D.Pa., Feb. 2, 2012) (“Mr. Bender's death,
the substitution of plaintiffs, and the amendment of the original complaint after his death, do not change Mr.
Bender's status as a prisoner at the time of filing his initial complaint.”).
47
Arms-Adair v. Black Hawk County, Iowa, 2013 WL 2149614, *3-4 (N.D.Iowa, May 16, 2013) (holding suit filed
by mother of deceased prisoner was not brought by a prisoner); Anderson v. County of Salem, 2010 WL 3081070,
*2 (D.N.J., Aug. 5, 2010); Torres Rios v. Pereira Castillo, 545 F.Supp.2d 204, 206 (D.P.R., Aug. 28, 2007) (noting
that an estate cannot be imprisoned or accused, convicted, or sentenced for a criminal violation, and it therefore not
a prisoner); Netters v. Tennessee Dept. of Correction, 2005 WL 2113587, *3 n.3 (W.D.Tenn., Aug. 30, 2005); Greer
v. Tran, 2003 WL 21467558, *2 (E.D.La., June 23, 2003); see Rivera-Rodriguez v. Pereira-Castillo, 2005 WL
290160, *5-6 (D.P.R., Jan. 31, 2005) (holding that a prisoner’s guardian is not a prisoner).
48
Braswell v. Corrections Corp. of America, 2009 WL 2447614, *4 (M.D.Tenn., Aug. 10, 2009), rev’d on other
grounds, Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622 (6th Cir. 2011) (unpublished). Braswell
cites cases in which the courts applied the PLRA to suits by guardians, but without discussion or specific holding on
the point.
49
See Arsberry v. Illinois, 244 F.3d 558 (7th Cir.) (holding that prisoner plaintiffs were barred for non-exhaustion
but non-prisoners’ claims could be decided on the merits), cert. denied, 534 U.S. 1062 (2001); Miller v. Hartley,
2012 WL 1229884, *7 n.3 (D.Colo., Apr. 12, 2012) (holding prisoner’s mother’s claim not governed by exhaustion
requirement); Carter v. Jones, 2006 WL 2320807, *6 (W.D.Okla., Aug. 9, 2006) (holding prisoner’s mother’s claim
not governed by exhaustion requirement); Apanovich v. Taft, 2006 WL 2077040, *4 (S.D.Ohio, July 21, 2006)
(dismissing prisoner’s claim about execution procedures for non-exhaustion, allowing claims of newspaper and nonprofit organization to go forward); Turner v. Wilkinson, 92 F.Supp.2d 697, 704 (S.D.Ohio 1999) (holding that a case
filed by a prisoner husband and his non-prisoner wife was not “brought by a prisoner” and therefore PLRA fees
limits did not apply). But see Johnson v. Martin, 2006 WL 1361771, *5 n.6 (W.D.Mich., May 15, 2006) (applying
PLRA attorneys’ fees limitations where only two plaintiffs–a religious organization and its president–were nonprisoners, where the “primary benefits” went to prisoners, and there was no “intelligent way” to differentiate
between hours spent on prisoner and non-prisoner claims). In Ray v. Evercom Systems, Inc., 2006 WL 2475264
(D.S.C., Aug. 25, 2006), appeal dismissed on other grounds, 234 Fed.Appx. 248 (5th Cir. 2007), like Arsberry a
challenge to telephone charges involving prisoner and non-prisoner plaintiffs, the court stated that all plaintiffs
would have to exhaust, but appears not to have considered the question whether the non-prisoners were actually
within the scope of the exhaustion requirement. 2006 WL 2475264, *4-5.
50
See Montcalm Pub. Corp. v. Com. of Va., 199 F.3d 168, 171-72 (4th Cir. 1999) (holding a publisher who
intervened in a prisoner’s challenge to prison censorship, rather than filing a separate complaint, was bound by the
PLRA attorneys’ fees provisions, since it intervened in an action brought by a prisoner).
51
Alabama Disabilities Advocacy Program v. Wood, 584 F.Supp.2d 1314, 1316 (M.D.Ala. 2008).
52
See, e.g., Jennings v. Natrona County Detention Center Officer, 175 F.3d 775, 779 (10th Cir. 1999); Alexander v.
U.S., 121 F.3d 312 (7th Cir. 1997); Thomas v. Federal Bureau of Prisons, 2009 WL 5111764, *3 n.2 (C.D.Cal., Dec.
17, 2009); Zapata v. Scibana, 2004 WL 1563239, *1 (W.D.Wis., July 9, 2004) (holding a habeas challenge to good
time calculation not subject to the PLRA), vacated on other grounds, 2005 WL 752243 (W.D.Wis., Mar. 31, 2005);
Neal v. Fleming, 2004 WL 792729, *2 (N.D.Tex., Apr. 14, 2004) (holding a prisoner challenging the failure to
release him early for completion of a drug program was not subject to PLRA exhaustion), report and

10

that habeas proceedings not arising from the original criminal conviction or sentence are also not
civil actions for PLRA purposes.53 Under that holding, habeas challenges to prison disciplinary
convictions resulting in the loss of good time are not governed by the PLRA, 54 though
subsequent damage actions would be. Habeas petitioners seeking release from disciplinary or
administrative confinement to general population have been held not subject to the PLRA,55
though it is questionable at this point whether habeas is a proper vehicle for such challenges. 56
In most circuits, including the Second, mandamus and other extraordinary writs are
treated as civil actions when the relief sought is similar to that in a civil action, but not when the
writ is directed to criminal matters.57 However, challenges to seizures of property related to
criminal proceedings have so far been treated as civil actions,58 as have motions for disclosure of
matters before a grand jury.59 Decisions are divided concerning motions made under the caption
recommendation adopted, 2004 WL 1175736 (N.D.Tex., May 26, 2004); Monahan v. Winn, 276 F.Supp.2d 196,
204 (D.Mass. 2003). In Garza v. Thaler, 585 F.3d 888, 889-90 (5th Cir. 2009), the court held that a district court
may not impose the PLRA filing fee installment payment scheme on an IFP litigant appealing a habeas decision,
either under the PLRA or as a matter of discretion.
53
Malave v. Hedrick, 271 F.3d 1139, 1140 (8th Cir. 2001), cert. denied, 537 U.S. 847 (2002); Walker v. O’Brien,
216 F.3d 626, 633-36 (7th Cir.), cert. denied, 531 U.S. 1029 (2000), overruling Newlin v. Helman, 123 F.3d 429
(7th Cir. 1997), cert. denied, 522 U.S. 1054 (1998); Blair-Bey v. Quick, 151 F.3d 1036, 1039-41 (D.C.Cir.), on
rehearing, 159 F.3d 591 (D.C.Cir. 1998); Davis v. Fechtel, 150 F.3d 486, 488-90 (5th Cir. 1998); McIntosh v. U.S.
Parole Commission, 115 F.3d 809, 811-12 (10th Cir. 1997).
54
Walker v. O’Brien, 216 F.3d at 638-39.
55
U.S. v. Basciano, 369 F.Supp.2d 344, 348 (E.D.N.Y. 2005) (holding that a petitioner seeking release from
administrative detention to general population was not subject to PLRA exhaustion, though habeas exhaustion rules
applied).
56
The Second Circuit has held that it is, see Abdul-Hakeem v. Koehler, 910 F.2d 66, 69-70 (2d Cir. 1990) (holding
that either habeas or § 1983 can be used to challenge the place of confinement), but has not re-examined that
conclusion in light of subsequent Supreme Court authority concerning the line between habeas and § 1983
proceedings. In my view, Abdul-Hakeem and similar decisions are at least implicitly overruled by Muhammad v.
Close, 540 U.S. 749 (2004) (per curiam), which held that a prisoner seeking damages for placement in segregation
“raised no claim on which habeas relief could have been granted,” 540 U.S. at 754, and stated: “This Court has
never followed the speculation in Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), that such a prisoner subject to
‘additional and unconstitutional restraint’ might have a habeas claim independent of § 1983. . . .” 540 U.S. 751 at
n.1.
57
See In re Kissi, 652 F.3d 39, 41 (D.C.Cir. 2011) (per curiam) (applying Grant holding to applicability of three
strikes provision); In re Grant, 635 F.3d 1227, 1230 (D.C.Cir. 2011) (holding “the filing-fee requirements of the
PLRA apply to a petition for a writ of mandamus filed in connection with a civil proceeding in the district court”);
In re Steele, 251 Fed.Appx. 772 (3d Cir. 2007) (per curiam) (unpublished) (holding “if a prisoner files a ‘mandamus
petition’ that actually would initiate an appeal or a civil action, the PLRA applies” (citing Madden v. Myers, infra));
In re Jacobs, 213 F.3d 289, 289 n.1 (5th Cir. 2000); In re Smith, 114 F.3d 1247 (D.C.Cir. 1997); Madden v. Myers,
102 F.3d 74, 77-78 (3d Cir. 1996) (holding mandamus petitions are neither civil actions nor appeals, and mandamus
petitions that are not the kind of litigation the PLRA sought to curb are not subject to the PLRA); In re Nagy, 89
F.3d 115 (2d Cir. 1996); Banks v. Balland, 2013 WL 786355, *2 (W.D.Pa., Jan. 18, 2013) (holding “bona fide writ
of prohibition” is not barred by PLRA three strikes provision, but this petitioner is not entitled to relief because he
could pursue his claim as a civil action), report and recommendation adopted, 2013 WL 786338 (W.D.Pa., Feb. 28,
2013); Keys v. Department of Justice, 2009 WL 648926, *3 (M.D.Pa., Mar. 10, 2009).
58
U.S. v. Minor, 228 F.3d 352 (4th Cir. 2000) (holding that an equitable challenge to a completed forfeiture is a
civil action); U.S. v. Jones, 215 F.3d 467, 469 (4th Cir. 2000) (holding that a motion under Rule 41(e),
Fed.R.Crim.P., for the return of seized property is a civil action); U.S. v. Lacey, 172 F.3d 880, 1999 WL 143881
(10th Cir., Mar. 17, 1999) (unpublished) (assuming that civil forfeiture case is subject to fees requirement); Pena v.
U.S., 122 F.3d 3 (5th Cir. 1997) (same as Jones); U.S. v. Belton, 2007 WL 3046254, *1-2 (E.D.Wis., Oct. 16, 2007)
(same as Jones).
59
U.S. v. Campbell, 294 F.3d 824, 826-29 (7th Cir. 2002).

11

of a criminal prosecution addressing conditions of confinement related to the prosecution.60 (At
least one court has held that such requests may not be entertained in a criminal action, since they
require exhaustion, and since the adverse party—the prosecution—may lack authority over
prison and jail conditions.61) In general, motions in already filed civil cases addressed to those
cases’ subject matter are not considered separate “actions” for purposes of the PLRA.62 Motions
involving new parties or new subject matter are considered new actions.63
The PLRA exhaustion requirement is not explicitly limited to civil actions; the statute
refers generally to “action[s] . . . with respect to prison conditions.”64 PLRA exhaustion law has

60

In U.S. v. Lopez, 327 F.Supp.2d 138, 140-42 (D.P.R. 2004), the court held that a motion challenging placement in
administrative segregation after the government decided to seek the death penalty against the defendant was not a
civil action requiring administrative exhaustion, and granted relief. In another case raising the same issue, the court
made a similar statement but ultimately disposed of the matter by holding that the motion was properly treated as a
habeas corpus proceeding to which the PLRA is inapplicable. U.S. v. Catalan-Roman, 329 F.Supp.2d 240, 250-51
(D.P.R. 2004). In U.S. v. Hashmi, 621 F.Supp.2d 76, 84-85 (S.D.N.Y. 2008), the court held that a motion in a
criminal case contesting “Special Administrative Measures” affecting communication between the defendant and his
counsel was not an “action,” a term which it defined to mean a separate proceeding, and plaintiff need not exhaust
administrative remedies. Accord, U.S. v. Savage, 2012 WL 5866059, *2 (E.D.Pa., Nov. 16, 2012) (holding
defendant “was not required to exhaust his administrative remedies before challenging aspects of the SAMs that
‘directly affected his ability to prepare his defense in this criminal action’”; this recharacterizes holding of prior
decision in same case; holding restrictions on visiting children could impair capital defendant’s preparation of
mitigation evidence); U.S. v. Savage, 2010 WL 4236867, *3-7 (E.D.Pa., Oct. 21, 2010) (following Hashmi;
cautioning that holding is limited to “challenges aspects of prison life that directly implicate the court's ability to
fairly and efficiently manage the defendant's criminal prosecution”); see U.S. v. Savage, 2012 WL 424993, *3 n.7
(E.D.Pa., Feb. 10, 2012) (“Because Defendant's complaints implicate regulations that affect his ability to prepare his
defense in this criminal action, he need not have exhausted his administrative remedies prior to raising these
concerns to the Court. applying prior holding to new restrictions.”). Other decisions are to the contrary, holding that
motions challenging SAMs or other pre-trial jail restrictions must be exhausted. See U.S. v. Khan, 540 F.Supp.2d
344, 349-52 (E.D.N.Y. 2007) (this court seems to confuse PLRA and habeas exhaustion requirements); U.S. v. Ali,
396 F.Supp.2d 703, 705-77 (E.D.Va. 2005). An appellate decision holds that a motion in a long-completed criminal
case challenging a prison policy forbidding inmates from retaining possession of pre-sentence reports should have
been treated as a separate civil action and that it required exhaustion. U.S. v. Antonelli, 371 F.3d 360, 361 (7th Cir.
2004). The Fifth Circuit held before the PLRA was enacted that a motion in a criminal proceeding to obtain grand
jury transcripts is a civil action, and that holding has now been applied under the PLRA. Nickerson v. Price, 2009
WL 1956284, *2 (E.D.Tex., July 6, 2009) (citing U.S. v. Miramontez, 995 F.2d 56, 58 (5th Cir. 1993)). One court
has cited the § 1997e(a) as requiring exhaustion before moving in the sentencing court with regard to sentence
calculation. U.S. v. Woods, 2009 WL 279098, *2 (N.D.Okla., Feb. 5, 2009). This is wrong. How long one is to be
confined is not the same as the conditions of confinement.
61
See U.S. v. Luong, 2009 WL 2852111, *2 (E.D.Cal., Sept. 2, 2009) (rejecting requests for orthopedic boots and
jail law library visits).
62
Ranke v. County of Saginaw, 2013 WL 3944472, *3 (E.D.Mich., July 31, 2013) (holding contempt motion is not
an action requiring exhaustion under PLRA); Biggins v. Biden, 2009 WL 631631, *1 (D.Del., Mar. 11, 2009)
(motion for relief from judgment should not have been treated as a separate action requiring new filing fee); Ayyad
v. Gonzales, 2008 WL 2955964, *2 (D.Colo., July 31, 2008) (motion for preliminary injunction against “Special
Administrative Measures” that interfered with access to counsel need not be exhausted); Clarkson v. Coughlin, 2006
WL 587345, *3 (S.D.N.Y., Mar. 10, 2006) (motion to enforce judgment in a class action does not require
exhaustion); Arce v. O’Connell, 427 F.Supp.2d 435, 440-41 (S.D.N.Y. 2006) (same as Clarkson); see Green v.
Peters, 2000 WL 1230246, *5 (N.D.Ill., Aug. 24, 2000) (when defendants move to terminate a judgment, plaintiffs
need not exhaust in order to contest the motion).
63
See Georgacarakos v. Wiley, 2009 WL 1594800, *4-5 (D.Colo., Mar. 23, 2009) (holding motion by new plaintiff
to intervene in pending action requires exhaustion); see also cases cited in n. 221, below.
64
42 U.S.C. § 1997e(a).

12

nonetheless generally not been applied in habeas proceedings, since habeas corpus has its own
pre-existing exhaustion requirement.65
There are other variations in the substantive scope of the PLRA prisoner litigation
provisions. For example, the filing fees provisions apply to all civil litigation brought by
prisoners,66 while the exhaustion of administrative remedies provision applies only to prisoners’
actions “with respect to prison conditions.”67 Always check the language of the particular
provision you are dealing with.

III.

Prospective Relief

The prospective relief sections of the PLRA, as noted above, apply to “civil action[s]
with respect to prison conditions,” i.e., “any civil proceeding arising under Federal law with
respect to the conditions of confinement or the effects of actions by government officials on the
lives of persons confined in prison, [excluding] habeas corpus proceedings challenging the fact
or duration of confinement in prison.”68 A “prison” is a facility “that incarcerates or detains
juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law.”69 Whether police and courthouse holding cells are prisons has not
been settled.70
Prospective relief is defined as “all relief other than compensatory money damages.”71
Several courts have held that special masters, court monitors, or other monitoring arrangements
designed to effectuate injunctive relief are not themselves relief subject to the prospective relief
restrictions,72 though the Second Circuit has expressed considerable doubt about that conclusion
without ruling on the question.73 One circuit has held that an order that does no more than
enforce an earlier order or decree is not prospective relief within the statute’s meaning. 74
65

See § IV.B.1, below.
28 U.S.C. § 1915(a)(2).
67
42 U.S.C. § 1997e(a).
68
18 U.S.C. § 3626(g)(2); see Valdivia v. Davis, 206 F.Supp.2d 1068, 1074 n. 12 (E.D.Cal. 2002) (holding
challenge to parole revocation procedures was not a “civil action with respect to prison conditions”).
69
18 U.S.C. § 3626(g)(5).
70
See n.4, above.
71
18 U.S.C. § 3626(g)(7).
72
See Williams v. Edwards, 87 F.3d 126, 128, 133 (5th Cir. 1996) (holding there was no prospective relief in a case
where an expert had been appointed to investigate and report on prison conditions); Coleman v. Brown, 2013 WL
6071977, *1 (E.D.Cal., Nov. 13, 2013) (holding direction to special master to monitor inpatient mental health
programs is not relief under the PLRA); Carruthers v. Jenne, 209 F.Supp.2d 1294, 1300 (S.D.Fla. 2002); Benjamin
v. Fraser, 156 F.Supp.2d 333, 342-43 and n.11 (S.D.N.Y. 2001), aff’d in part, vacated and remanded in part, 343
F.3d 35 (2d Cir. 2003), and cases cited; see also United States of America v. Territory of the Virgin Islands, 884
F.Supp.2d 399, 409 n.5 (D.V.I. 2012) (noting parties’ agreement to the same effect re special master appointment).
73
See Benjamin, 343 F.3d at 49 (dictum); see also Plata v. Schwarzenegger, 2005 WL 2932253, *25-28 (Oct. 3,
2005) (applying need-narrowness-intrusiveness analysis to appointment of a receiver for prison medical care).
74
Jones-El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004); accord, Coleman v. Brown, 2013 WL 3773963, *3 n.8
(E.D.Cal., July 12, 2013) (“To the extent that this order directs specific action by defendants or the Special Master it
implements a remedy that has already been ordered by the court. For that reason, the court is not required to make
the findings set forth in 18 U.S.C. § 3626(a) (1).”); see Coleman v. Brown, 2013 WL 6071977, *1 (E.D.Cal., Nov.
13, 2013) (holding no further PLRA findings are required for a further order in aid of the remedy required by an
older order finding liability).
A recent decision notes that in Jones-El, the parties agreed that the requirements of the later order were the
only available means to implement the earlier consent decree, and declined to follow Jones-El where a consent
66

13

Attorneys’ fees, even those awarded for monitoring compliance with an injunction, are not
prospective relief.75 Orders issued in the course of pre-trial case management are not prospective
relief.76 One federal circuit has held that punitive damages are prospective relief, a holding
discussed further below.77 A couple of district court decisions have dubiously characterized §
3626 as a limited waiver of sovereign immunity.78
A.

Limitations on Relief
1. Entry of Relief

Prospective relief in prison conditions litigation, whether contested or entered by consent,
must be supported by findings that it is narrowly drawn, extends no further than necessary to
correct a violation of federal rights, and is the least intrusive means of doing so 79 (the “neednarrowness-intrusiveness” standard). Courts have disagreed whether the findings must be made
on a provision-by-provision basis,80 or the order need only be considered as a whole.81 (One
federal appeals court has held that the provision-by-provision requirement applies to the
retention of relief in the face of a motion to terminate, but not to the initial entry of relief. 82 The
statutory language does not appear to me to support that distinction.) At least one circuit has
decree contained “general directives” to remedy various conditions, and subsequent orders “were increasingly more
specific and prescriptive, thus reducing—and sometimes eliminating—the discretion” defendants had under the
initial consent decree. United States of America, v. Territory of the Virgin Islands, 884 F.Supp.2d 399, 408-09
(D.V.I. 2012).
75
Carruthers v. Jenne, 209 F.Supp.2d at 1299-1300.
76
In re Arizona, 528 F.3d 652, 658 (9th Cir. 2008) (Martinez order (direction that defendants submit a report on
facts relevant to a pro se prisoner claim), was not “relief”), cert. denied, 557 U.S. 918 (2009).
77
See § III.F, below.
78
Tanner v. Federal Bureau of Prisons, 433 F.Supp.2d. 117, 122 n. 6 (D.D.C.2006); accord, McIntosh v. Lappin,
2012 WL 4442766, *10 (D.Colo., Aug. 13, 2012), report and recommendation adopted in part, 2012 WL 4442760
(D.Colo., Sept. 26, 2012), order entered, 2012 WL 4478973 (D.Colo., Sept. 28, 2012). In Tanner, the Federal
Bureau of Prisons was named as the defendant and asserted sovereign immunity, and the court responded that §
3626 “authorizes suits arising from prison conditions or actions of prison officials.” Tanner, id. Suits against prison
officials in their official capacities for injunctive relief have long been understood not to contravene sovereign
immunity. Cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (citing
“the presumed availability of federal equitable relief against threatened invasions of constitutional interests”).
Injunctive relief against the United States is authorized notwithstanding sovereign immunity under specified
circumstances by 5 U.S.C. § 702. There is no indication in § 3626 that it is intended to expand the government’s
amenity to suit any further than did pre-existing case and statutory law.
79
18 U.S.C. § 3626(a); see Fields v. Smith, 712 F.Supp.2d 830, 869-70 (E.D.Wis. 2010) (supplying required
findings to support injunction after initial merits decision), aff’d, 653 F.3d 550 (7th Cir. 2011); Jordan v. Pugh, 2007
WL 2908931, *2 (D.Colo., Oct. 4, 2007) (same). The findings need not recite the statutory language in haec verba
if they “are inescapable” from the court’s orders. Plata v. Schwarzenegger, 2009 WL 799392, *14 (N.D.Cal., Mar.
24, 2009), aff’d in part, dismissed in part, 603 F.3d 1088 (9th Cir. 2010).
80
See Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000); Ruiz v. United States, 243 F.3d 941, 950-951 (5th
Cir. 2001); Castillo v. Cameron County, 238 F.3d 339, 354 (5th Cir. 2001).
81
See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1071 (9th Cir. 2010) (“What is important, and what the PLRA
requires, is a finding that the set of reforms being ordered—the ‘relief’—corrects the violations of prisoners' rights
with the minimal impact possible on defendants' discretion over their policies and procedures.”); Benjamin v. Fraser,
156 F.Supp.2d 333, 342 (S.D.N.Y.2001), aff’d in part, vacated and remanded on other grounds, 343 F.3d 35 (2d
Cir. 2003) (expressing doubt point-by-point findings are required).
82
Gates v. Cook, 376 F.3d 323, 336 n.8 (5th Cir. 2004); Jones v. Gusman, 296 F.R.D. 416, 455 (E.D.La., June 6,
2013) (following Gates).

14

held that the findings need not have been explicitly made “so long as the record, the court's
decision ordering prospective relief, and relevant caselaw fairly disclose that the relief actually
meets the § 3626(b)(2) narrow tailoring standard.”83
The restriction to “federal rights” means that federal courts may not grant prospective
relief in prison litigation based on state law under their supplemental jurisdiction because § 3626
overrides 28 U.S.C. § 1367, the supplemental jurisdiction statute.84 Courts have also held that
they cannot grant prospective relief that is not directly related to the claims in the complaint.85 In
particular, some courts have held that they cannot grant relief with respect to obstructions to the
plaintiff’s ability to litigate the case.86 The latter holding appears wrong, as other decisions have
acknowledged, since courts have power under the All Writs Act, 28 U.S.C. § 1651(a), to issue
orders in aid of their own jurisdiction, against non-parties if necessary, and to “prevent
threatened injury that would impair the court's ability to grant effective relief in a pending
action.”87
Another section of the PLRA, governing the termination of injunctions, requires a
showing of a “current and ongoing” federal law violation to preserve previously granted relief.88
That requirement does not appear in, and does not apply to, the PLRA provision governing the
initial entry of relief.89
83

Gilmore v. California, 220 F.3d 987, 1007 n.25 (9th Cir. 2000) (quoted in Clark v. California, 739 F.Supp.2d
1168, 1228 (N.D.Cal. 2010)). Contra, United States of America, v. Territory of the Virgin Islands, 884 F.Supp.2d
399, 412 (D.V.I. 2012) (holding the PLRA “does not provide an avenue for district courts to make, post hoc and
nunc pro tunc, the findings required by the Act” (quoting Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999)).
84
Handberry v. Thompson, 446 F.3d 335, 344-46 (2d Cir. 2006).
85
See, e.g., Herrera v. Gardner, 2010 WL 4138426, *3 (E.D.Cal., Oct. 19, 2010) (holding plaintiff who sued about
parole issues could not get injunction on protection from harm claim without adding that claim by amended
complaint).
86
See, e.g., Wade v. Fresno Police Dept., 2010 WL 4006688, *2 (E.D.Cal., Oct. 12, 2010) (declining to enjoin
retaliation, require access to the law library, etc.; “Plaintiff is not entitled to any relief that is not narrowly drawn to
correct the violation of his rights at issue in this action.”), report and recommendation adopted, 2010 WL 5168988
(E.D.Cal., Dec. 14, 2010); West v. Federal Bureau of Prisons, 2009 WL 3112042, *2 (E.D.Cal., Sept. 23, 2009)
(declining to order transfer in assault case where plaintiff complained of new threats by his assailants), report and
recommendation adopted, 2009 WL 3837196 (E.D.Cal., Nov. 16, 2009); Buchanan v. Santos, 2009 WL 1322547,
*5 (E.D.Cal., May 8, 2009) (declining to enjoin future retaliation since doing so would not remedy the violations in
the complaint).
87
Turner v. Sacramento County Sheriff, 2010 WL 4237023, *1 (E.D.Cal., Oct. 21, 2010), report and
recommendation adopted, 2010 WL 5317331 (E.D.Cal., Dec. 20, 2010); accord, Edwards v. High Desert State
Prison, 2012 WL 469865, *1 n.1 (E.D.Cal., Feb. 7, 2012) (acknowledging in a PLRA case that All Writs Act may
allow relief against non-parties), report and recommendation adopted, 2012 WL 1081821 (E.D.Cal., Mar. 29,
2012); Mitchell v. Downing, 2010 WL 5060648, *1 n.2 (E.D.Cal., Dec. 6, 2010) (same), report and
recommendation adopted, 2011 WL 346315 (E.D.Cal., Feb. 1, 2011); Johnson v. Sullivan, 2008 WL 5396614, *7-8
(E.D.Cal., Dec. 23, 2008) (requiring a one-hour telephone call weekly between plaintiff and his counsel pending
trial; § 3626(a) cited but no analysis presented), reconsideration denied, 2009 WL 160250 (E.D.Cal., Jan. 21, 2009);
see Funtanilla v. Tristan, 2009 WL 539689, *1-2 (E.D.Cal., Feb. 27, 2009) (declining to order officials to return
materials needed to litigate, but requesting defendants’ counsel to file a report on the status of plaintiff’s access to
legal materials, and directing Magistrate Judge to remedy the situation “as justice requires”).
88
18 U.S.C. § 3626(b)(3).
89
18 U.S.C. § 3626(a)(1); see Thomas v. Bryant, 614 F.3d 1288, 1320 (11th Cir. 2010) (finding no indication the
“current and ongoing” language was intended to change “the well-established law that injunctive relief is available
in the first instance ‘to prevent a substantial risk of serious injury from ripening into actual harm,’ i.e., to prevent
future harm”); Austin v. Wilkinson, 372 F.3d 346, 360 (6th Cir. 2004), aff’d in part, rev’d in part and remanded on
other grounds, 545 U.S. 209 (2005). Contra, Indiana Protection and Advocacy Services Com'n v. Commissioner,

15

Courts are also to give substantial weight to adverse impacts on public safety or criminal
justice operations,90 though this requirement “does not require the court to certify that its order
has no possible adverse impact on the public. A court is required to consider the public safety
consequences of its order and to structure, and monitor, its ruling in a way that mitigates those
consequences while still achieving an effective remedy of the constitutional violation.”91 Further,
one court has pointed out that there may be dangers to public safety within the prison or jail at
issue which support the necessity for relief.92 Courts are also directed to avoid requiring or
permitting officials to violate state or local law unless necessary to correct violations of federal
rights.93
The restrictions of 18 U.S.C. § 3626(a) apply only to the fashioning of prospective
relief94 and have no implications for other aspects of litigation, e.g., decisions on class
certification95 or the contempt power.96 Common sense and the Federal Rules of Civil Procedure
Indiana Dept. of Correction, 2012 WL 6738517, *24 (S.D.Ind., Dec. 31, 2012); Kress v. CCA of Tennessee, LLC,
2011 WL 3154804, *2 (S.D.Ind., July 26, 2011), aff'd, 694 F.3d 890 (7th Cir. 2012).
90
18 U.S.C. § 3626(a)(1); see Sosa v. Grillo, 2014 WL 359673, *17 (M.D.Pa., Feb. 3, 2014) (same as Hammonds v.
Collins, applied to plaintiff’s request for transfer); Robertson v. Samuels, 2014 WL 347007, *7 (M.D.Pa., Jan. 30,
2014) (same as Hammonds v. Collins, applied to request for transfer and medical care); Hammonds v. Collins, 2013
WL 3525672, *8 (M.D.Pa., July 11, 2013) (stating that granting injunctive relief for a single prisoner could harm
“the public's interest in penological order”); Rivera v. Kalla, 2012 WL 7761498, *5 (D.Minn., Dec. 12, 2012)
(denying injunction re medical care where plaintiff had only raised his problem with doctors a few times; holding
“the harm of allowing an offender to bypass DOC policies and medical protocol” deserves “substantial weight”),
report and recommendation adopted, 2013 WL 1104786 (D.Minn., Mar. 18, 2013); Mitchell v. Skolnik, 2012 WL
2503075, *2 (D.Nev., June 28, 2012) (denying injunction, noting that plaintiff’s injunctive motion “does not attempt
to make any showing that the requested relief will not have an adverse impact on public safety or the operation of
the criminal justice system” and court cannot therefore make determinations about public interest and balance of
hardships); Abdul-Aziz v. Ricci, 2011 WL 6887182, *9 (D.N.J., Dec. 29, 2011) (holding request for restoration of
job and backpay would adversely impact prison operations, since plaintiff’s job had probably been filled); Funches
v. McDaniel, 2011 WL 1871304, *6 (D.Nev., Mar. 31, 2011) (citing risks to safety and security in declining
injunction against restraining plaintiff during movement around the prison), report and recommendation adopted,
2011 WL 1869809 (D.Nev., May 16, 2011); Coleman v. Schwarzenegger, 2010 WL 99000, *2 (E.D.Cal., Jan. 12,
2010) (where record showed that prison population could be reduced without adversely affecting safety, court would
not assess measures chosen by defendants; defendants directed to inform court if compliance requires violating state
law and address the statutory factors justifying such relief), aff’d sub nom. Brown v. Plata, ___ U.S. ___, 131 S.Ct.
1910, 1941-44 (2011).
The decisions cited above that disapprove of granting relief to an individual prisoner are in tension with
other decisions that, having found a violation to be remedied, restrict prospective relief to the individual plaintiff.
See n. 125, below.
91
Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1942 (2011). Cf. Braden v. Director, TDCJ-ID, 2013 WL
1870421, *2 (S.D.Tex., Apr. 30, 2013) (“Any injunction directed at state officials presumably causes some level of
inconvenience for them and requires the expenditure of some amount of taxpayer funds, thus resulting in damage to
Defendants and the public interest both.” (citing “adverse impact” clause of § 3626(a)(2))), report and
recommendation adopted, 2013 WL 2468041 (S.D.Tex., June 7, 2013).
92
Jones v. Gusman, 296 F.R.D. 416, 458 (E.D.La., June 6, 2013) (“Experts opined that OPP poses ‘clear and present
dangers’ of ‘life and death proportions’ with respect to suicide and inmate violence, and the risk of a tragic fire is
unacceptable. Inmate escapes are not uncommon, and the prospect of armed inmates, whether outside or inside
prison walls, is alarming. The evidence shows that OPP itself presents a public safety crisis, which endangers
inmates, staff, and the community at large.” (footnotes omitted)).
93
18 U.S.C. § 3626(a)(1)(B).
94
Williams v. Edwards, 87 F.3d 126, 133 (5th Cir. 1996).
95
Shook v. El Paso County, 386 F.3d 963, 969-71 (10th Cir. 2004), cert. denied, 544 U.S. 978 (2005); Anderson v.
Garner, 22 F.Supp.2d 1379, 1383 (N.D.Ga. 1997). In Shook, the district court on remand, notwithstanding having
been reversed, said: “The PLRA did not add new elements to the class certification process, and the PLRA’s

16

suggest that any determination about the propriety of particular relief be made only after a
violation of federal rights has been found. Since the statute requires relief to be supported by
findings that it is tailored to the violation, it is hard to see how a rational determination of
appropriate relief could be made until there is a finding of violation and a record that might
illuminate how best it can be corrected. Further, the Federal Rules of Civil Procedure provide
that “[e]very [non-default] final judgment should grant the relief to which each party is entitled,
even if the party has not demanded that relief in its pleadings.”97 Since the court is to determine
the proper relief at the end of the case, independently of the parties’ demands, there is no
apparent reason why remedial issues should—or can—be addressed at an earlier stage. In
particular, one recent decision states:
The “need-narrowness-intrusiveness” test, however, is a limitation on judicial
authority over prisons at the remedial stage, not a heightened-pleading
requirement imposed on the plaintiffs. . . .
The PLRA did not abrogate the longstanding rule that, at the motion-todismiss stage, a complaint is judged by whether it presents “enough facts to state
a claim to relief that is plausible on its face,” . . . not whether the relief requested
will be granted in full.98
Nonetheless, several misguided decisions have applied the § 3626(a) standards at the pleading
stage, usually where prisoners were proceeding pro se.99 Treating these standards as establishing
limitations on broad prospective relief are not determinative of the class certification issue, but neither can those
limitations be ignored. If this court does not have the authority to grant the injunctive relief requested, the purpose
of proceeding as a class action is defeated.” Shook v. Board of County Com’rs of County of El Paso, 2006 WL
1801379, *12 (D.Colo., June 28, 2006). On appeal from that decision, the appeals court reaffirmed its holding that
reliance on the PLRA’s restrictions as a basis for denying class certification was error, Shook v. Board of County
Com’rs of County of El Paso, 543 F.3d 597, 613 (10th Cir. 2008), though it affirmed the denial of certification on
Rule 23 grounds.
96
Kelly v. Wengler, ___ F.Supp.2d ____, 2013 WL 5797307, *4-5 (D.Idaho, July 12, 2013) (holding a PLRAcompliant consent decree can be enforced in contempt); Essex County Jail Inmates v. Treffinger, 18 F.Supp.2d 445,
462 (D.N.J. 1998) (noting that § 3626(a) has no effect on the contempt power).
97
Fed.R.Civ.P. 54(c).
98
Henderson v. Thomas, 2012 WL 3846439, *13 (M.D.Ala., Sept. 5, 2012) (citations omitted); accord, Goode v.
Bruno, 2013 WL 5448442, *7 (D.Conn., Sept. 30, 2013) (“The fact that the plaintiff may seek relief that is not
narrowly drawn or extends further than necessary or is not the least restrictive means necessary to correct the
violation of the federal right at issue is not a reason to dismiss all claims for injunctive relief at this stage of the
proceedings. If Goode were to prevail in this action, the court would be constrained by the requirements set forth in
18 U.S.C. § 3626 in awarding injunctive relief against the defendant.”); Echezarreta v. Kemmeren, 2013 WL
4080293, *4 (N.D.Ill., Aug. 13, 2013) (denying request to strike injunctive demand in motion to dismiss as
premature; “Although defendants boldly state that it is impossible to narrowly draw any injunctive relief that may be
awarded in this case, there is nothing in the complaint which supports such a contention”; noting issue may be raised
again on summary judgment); Royer v. Federal Bureau of Prisons, 934 F.Supp.2d 92, 95 (D.D.C. 2013) (on motion
to dismiss or for summary judgment, holding argument based on § 3626(a)(1) “is premature given the status of this
case and the Court will not consider it now.”).
99
See, e.g., Madrid v. Cates, 2013 WL 1222035, *4 (E.D.Cal., Mar. 25, 2013) (striking injunctive demand on
motion to dismiss where plaintiff sought an injunction “to follow the recommendations of the pain management
specialist, to provide Plaintiff with physical therapy, to refer Plaintiff to specialists, and to honor Plaintiff's
constitutional rights”; court stated it “cannot award this form of relief” under the PLRA); Wheeler v. Aliceson, 2013
WL 56960, *9 (E.D.Cal., Jan. 3, 2013) (holding that if plaintiff files an amended complaint, he must plead facts
“suggesting” the elements of the prospective relief standards); Jackson v. Yates, 2012 WL 14018, *5-6 (E.D.Cal.,
Jan. 4, 2012) (holding demand for injunctive relief to make defendants and non-parties “stop attacking disabled

17

a pleading requirement is contrary to the Supreme Court’s holding that new pleading
requirements cannot be judicially created but must be promulgated through the usual process for
amending the Federal Rules of Civil Procedure.100 Similarly, some courts have denied
preliminary relief on the ground that the prayer for relief in the motion did not conform to the
need-narrowness-intrusiveness standard.101
2. Settlements
Injunctive settlements must meet the standards and the findings requirement of § 3626(a)
in order to be enforceable in federal court.102 Settlements that do not meet the PLRA standards
are not prohibited, but these must be entered as “private settlement agreements” not enforceable
inmates, medical staff complete injury reports and immediately report assault and batteries upon inmates, and that
Plaintiff be transferred to Vacaville State Prison” went “beyond the constitutional violations alleged” and was not
cognizable); Smith v. Martuscello, 2012 WL 4450025, *7 (N.D.N.Y., May 24, 2012) (holding prayer for declaratory
relief inadequately pled under PLRA because it is “both vague and broad”), report and recommendation adopted,
2012 WL 4378125 (N.D.N.Y., Sep. 25, 2012); Victor v. Lawler, 2011 WL 3584699, *6 (M.D.Pa., May 25, 2011)
(“Victor's prayer for relief [in injunctive motion] is cast broadly and would invite the Court to intervene in prison
housing, discipline, grievance and library access issues, as well as proscribing the content of conversations between
Victor and prison staff.”), report and recommendation adopted, 2011 WL 6003923 (M.D.Pa., Nov. 30, 2011); I.S.B.
v. State of South Dakota Com'r of Admin., 2011 WL 1316594, *3 (D.S.D., Apr. 1, 2011) (holding relief demanded
required intrusion in state criminal justice system as well as management of county jails contrary to § 3626, and
complaint therefore failed to state a claim); Mitchell v. Skolink, 2011 WL 868300, *4 (D.Nev., Mar. 9, 2011)
(holding relief demanded in complaint excessively intrusive); Arnold v. Sullivan, 2009 WL 224077, *5 (E.D.Cal.,
Jan. 29, 2009) (holding at preliminary screening that the injunctive relief sought was vague and not appropriately
tailored to the violation, so the case should proceed only for damages); Cassini v. Lappin, 2009 WL 224147, *3
(E.D.Cal., Jan. 29, 2009) (holding at preliminary screening that relief sought was not tailored to the violation and the
plaintiff was not entitled to it); see also Still v. Schmidt, 2013 WL 1091745, *9 (D.Alaska, Mar. 15, 2013) (holding
general demand to enforce prison policy did not satisfy need-narrowness-intrusiveness requirement, but plaintiff
could amend to plead facts supporting his demand); Pinson v. Prieto, 2012 WL 7006131, *10 (C.D.Cal., July 2,
2012) (recommending striking plaintiff’s remedial demand in response to motion to dismiss), report and
recommendation adopted, 2013 WL 427108 (C.D.Cal., Feb. 1, 2013); Fitzpatrick v. Georgia Dept. of Corrections,
2012 WL 5207474, *13 (S.D.Ga., Sept. 12, 2012) (dismissing claim for injunctive relief on motion to dismiss in
counselled case), report and recommendation adopted as modified, 2012 WL 5207472 (S.D.Ga., Oct. 22, 2012);
Abdul-Aziz v. Ricci, 2011 WL 6887182, *9 (D.N.J., Dec. 29, 2011) (granting summary judgment because
injunctive relief requested was vague and request for restoration of job and backpay would adversely impact prison
operations).
100
Jones v. Bock, 549 U.S. 199, 216-17 (2007) (citing Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993)).
101
Breeland v. Fisher, 2012 WL 4105090, *6 (M.D.Pa., July 25, 2012) (stating plaintiff he “does not present a
prayer for relief which is ‘narrowly drawn, extend[s] no further than necessary to correct the harm . . ., and [is] the
least intrusive means necessary to correct that harm. 18 U.S.C. § 3626(a)(2).”), report and recommendation
adopted, 2012 WL 4104561 (M.D.Pa., Sept. 18, 2012). The court does not explain how it derives a pleading
requirement from the language of § 3626(a)(2), which it quotes selectively, and which is drafted to govern the orders
of courts and not the prayers for relief of litigants. Accord, Booze v. Wetzel, 2012 WL 6137561, *4 (M.D.Pa., Nov.
16, 2012) (holding preliminary injunction motion deficient because prayer for relief did not conform to neednarrowness-intrusiveness requirement), report and recommendation adopted, 2012 WL 6138315 (M.D.Pa., Dec. 11,
2012).
102
18 U.S.C. §§ 3626(a), 3626(c)(1); see, e.g., Henderson v. Thomas, 2013 WL 5493197, *8 (M.D.Ala., Sept. 30,
2013); McBean v. City of New York, 2007 WL 2947448, *2-3 (S.D.N.Y., Oct. 5, 2007) (approving settlement,
linking detailed requirements of order to record evidence of need for them); Laube v. Campbell, 333 F.Supp.2d 1234
(M.D.Ala. 2004) (approving settlement under PLRA standard). Compare Lancaster v. Tilton, 2006 WL 2850015,
*13-14 (N.D.Cal., Oct. 4, 2006) (refusing to approve a modified settlement in the absence of evidence of an ongoing
violation).

18

in federal court.103 The only federal court remedy permitted after such a settlement is
reinstatement of the action,104 though some litigants and courts have devised alternative means to
maintain the district court’s involvement in implementation of relief, such as providing for
mediation in the district court before commencing litigation in state court,105 or for the agreed
implementation of significant relief as an interim measure without the actual entry of
judgment.106
This requirement that an agreed injunctive order be supported by judicial findings of a
federal law violation is a major change from prior law107 and practice and has significant effects
on the conduct of litigation. Avoiding such findings is a major incentive for defendants to settle,
and they will often be unwilling to agree to such findings or subject themselves to the risk of
them. As a practical matter, the choice for many plaintiffs has become private settlement
agreement or trial. That said, the findings entered in PLRA settlement usually amount to little
more than an agreed recitation of the statutory terms,108 sometimes with reservations that
103

18 U.S.C. § 3626(c)(2); see Rowe v. Jones, 483 F.3d 791, 796 (11th Cir. 2007) (“judicial enforcement is . . . the
critical distinction between private settlement agreements and consent decrees”); Ingles v. Toro, 438 F.Supp.2d 203,
215-16 (S.D.N.Y. 2006) (approving settlement in use of force class action, noting the irrationality of having to
enforce it before a state court unfamiliar with the case).
104
See Ghana v. New Jersey State Parole Bd., 2011 WL 3608633, *3 (D.N.J., Aug. 15, 2011) (holding absent a
consent decree meeting PLRA requirements, plaintiff’s only federal court remedy for breach was reinstatement);
Rouser v. White, 707 F.Supp.2d 1055, 1060, 1072-73 (E.D.Cal. 2010) (granting injunction upon showing of
violation of federal rights despite prior private settlement agreement). Despite the statutory language, the ability to
reinstate after a private settlement agreement may depend on whether the case has been dismissed with prejudice
and whether the district court has indicated any intent to retain jurisdiction over the case. See Hazelton v. Wrenn,
2013 WL 1953354, *1-2 (D.N.H., Apr. 10, 2013) (so holding (citing Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 381-82 (1994)), report and recommendation approved, 2013 WL 1953517 (D.N.H., May 9, 2013).
105
In a statewide action challenging inadequate prison mental health services, the parties entered into an extensive
private settlement agreement providing that in the event of a claim of pervasive noncompliance and inability to
resolve the dispute through meeting and conferring, either party could seek mediation by the district judge. If
mediation failed, plaintiff could either seek reinstatement or ask the district judge to recommend a one-year
extension of the agreement, which recommendation the parties agreed would be binding. Disability Advocates, Inc.
v. New York State Office of Mental Health, No. 02 Civ. 4002 (GEL), Private Settlement Agreement, ¶ 11
(S.D.N.Y., Apr. 27, 2007).
106
In another statewide prison mental health case, the court approved what it characterized as a private settlement
while staying the litigation rather than entering judgment, stating that it was retaining the authority to enforce the
agreement but that the agreement would not be enforceable in contempt. It characterized this arrangement as “an
exercise of its inherent authority to decide how to manage its docket” and not as a grant of prospective relief.
Rather, “the court is only approving an Agreement that provides a means of obtaining relief for any future violation
of federal law and not now ordering any form of remedy.” Disability Law Center v. Massachusetts Dept. of
Correction, 2012 WL 1237760, *11-13 (D.Mass., April 12, 2012).
107
Federal courts approving settlements in class actions have generally been required to make only a general finding
of adequacy. See, e.g. Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000) (“fair, adequate, and reasonable, and not
a product of collusion”); Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (“fair, reasonable, and adequate”).
Consent judgments have not been required to be tailored closely to a federal court violation filed by the court.
Rather, their terms must only “spring from and serve to resolve a dispute within the court's subject-matter
jurisdiction, . . . com[e] within the general scope of the case made by the pleadings, . . . further the objectives of the
law upon which the complaint was based,” and not be otherwise unlawful. Local No. 93, Intern. Ass'n of
Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 525 (1986) (citations and internal quotation marks
omitted).
108
See, e.g., Henderson v. Thomas, 2013 WL 5493197, *8 (M.D.Ala., Sept. 30, 2013) (noting stipulation to
statutory terms); Etters v. Young, 2012 WL 1950415, *2 (E.D.N.C., May 30, 2012) (“The parties have stipulated,
and the court finds, that the relief provided in the parties' settlement agreement is narrowly drawn, extends no further

19

arguably undermine their import.109 Courts have held that they must make an independent
judgment whether the PLRA standards for settlement have been met,110 but it is not always clear
from opinions and orders to what extent the court has independently examined the question. As
noted below, courts have held that agreements between the parties may be evidence that the
agreed terms are PLRA-compliant,111 and some courts have extended that proposition to
agreements that the proposed order as a whole satisfies the PLRA.112
3. The Need-Narrowness-Intrusiveness Standard
The need-narrowness-intrusiveness standard is not much different from pre-PLRA law
governing federal court civil rights injunctions.113 The pre-PLRA rule that defendants must have

than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right.”)
109
See Jones v. Gusman, 296 F.R.D. 416, 463 (E.D.La., June 6, 2013) (noting stipulation refers to “the violations of
the federal rights as alleged by Plaintiffs in the Complaints” and provides “Any admission made for purposes of this
Agreement is not admissible if presented by Third Parties in another proceeding,” and stating: “Neither the PLRA
nor caselaw requires a plainly worded concession of liability. . . .”); Orndorff v. Jefferson County, No. 02-5096
RBL, Order Approving Settlement Agreement and Dismissing Litigation at 2-3 (W.D.Wash., Jan. 27, 2004)
(reciting conclusory PLRA findings and stating that order “shall not be construed or deemed as an admission . . . of
any liability or violations of any law . . . and . . . may not be used as evidence in any proceeding” except for
enforcement of the agreement); Duffy v. Riveland, No. C92-1596R, Stipulation and Order at 2-3 (W.D.Wash., Aug.
31, 1998) (including stipulation disclaiming admissions of liability or violation and conclusory recitation by court of
the PLRA findings); United States v. Clay County, Georgia, No. 4:97-CV-151, Consent Decree (M.D.Ga., filed
Aug. 20, 1997), approved, Order (M.D.Ga., Aug. 26, 1997) (stipulating to conclusory PLRA findings, stating that
liability had not been litigated, and disclaiming any preclusive effect except between the parties); Makinson v.
Bonneville County, Case No. CIV97-0190-E-BLW (D. Idaho, Apr. 30, 1997) (stipulating that agreements are not
findings of fact or conclusions of law with respect to the parties’ claims or defenses); Lozeau v. Lake County,
Montana, Cause No. CV95-82-M RMH, Decree at 15 (D. Montana, Oct. 23, 1996) (referring to “alleged” violation
of federal rights).
110
Jones v. Gusman, 296 F.R.D. 416, 429 (E.D.La., June 6, 2013) (“The parties to the consent judgment have
stipulated that it complies with the PLRA, but the Court conducts an independent inquiry.” (footnotes omitted));
Austin v. Hopper, 28 F.Supp.2d 1231, 1235 (M.D.Ala. 1998).
111
See cases cited in n. 132, below.
112
Henderson v. Thomas, 2013 WL 5493197, *8 (M.D.Ala., Sept. 30, 2013) (noting parties’ stipulation to PLRA
compliance, stating district court need not hear evidence or enter particularized findings about undisputed matters);
Martinez v. Maketa, 2011 WL 2222129, *1 (D.Colo., June 7, 2011) (noting parties’ stipulation that court should
make PLRA-required findings); Clark v. California, 739 F.Supp.2d 1168, 1229 (N.D.Cal. 2010) (noting parties’
agreement that relief in settlement met the statutory requirements for approval).
113
Gilmore v. California, 220 F.3d 987, 1006 (9th Cir. 2000); Smith v. Arkansas Dept. of Correction, 103 F.3d 637,
647 (8th Cir. 1996) (holding PLRA “merely codifies existing law and does not change the standards for determining
whether to grant an injunction”); Hadix v. Caruso, 461 F.Supp.2d 574, 586-87 (W.D.Mich. 2006) (holding PLRA’s
“actual standards are consistent with traditional norms of non-interference with state regulation of prisons”),
remanded on other grounds, 2007 WL 2753026 (6th Cir., Sept. 21, 2007) (per curiam); Morales Feliciano v.
Calderon Serra, 300 F.Supp.2d 321, 339-40 (D.P.R. 2004) (“This language mimics long standing requirements for
injunctive relief under Rule 65 of the Federal Rules of Civil Procedure. . . . [T]his is the old ‘over broadness’
doctrine used to measure garden variety injunctive relief under Rule 65.”), aff’d, 378 F.3d 42, 54-56 (1st Cir. 2004),
cert. denied, 543 U.S. 1054 (2005); Dodge v. County of Orange, 282 F.Supp.2d 41, 71-72 (S.D.N.Y. 2003), appeal
dismissed, remanded on other grounds, 103 Fed.Appx. 688, 2004 WL 1567870 (2d Cir. 2004). Compare, e.g.,
Toussaint v. McCarthy, 801 F.2d 1080, 1086-87 (9th Cir. 1986), cert. denied, 481 U.S. 1069); Dean v. Coughlin,
804 F.2d 207, 213 (2d Cir. 1986); Duran v. Elrod, 760 F.2d 756, 760-61 (7th Cir. 1985) (all stating pre-PLRA
restrictions on federal court injunctive powers).

20

an opportunity to propose remedies in the first instance is preserved under the PLRA,114 though it
is within the trial court’s discretion over trial management to require that remedies be proposed
at the hearing on the merits and not in a later separate proceeding.115 Injunctions entered under
the PLRA remain subject to appellate review for abuse of discretion.116
The Supreme Court has said: “Narrow tailoring requires a fit between the remedy's ends
and the means chosen to accomplish those ends.”117 However, “[n]arrow tailoring does not
require perfection.”118 The practical meaning of “narrowly drawn” and “least intrusive” is not
always clear,119 and many decisions address the subject on an ad hoc basis without stating any
general principles.120 Some decisions have cited this standard as a makeweight in support of
114

Henderson v. Thomas, 2012 WL 6681773, *39 (M.D.Ala., Dec. 21, 2012) (noting defendants will have an
opportunity to propose relief and the parties will then meet and seek agreement; specifying certain prerequisites for
relief); see also cases cited in n. 131, below.
115
Graves v. Arpaio, 623 F.3d 1043, 1047 (9th Cir. 2010) (citing Lewis v. Casey, 518 U.S. 343, 363 (1996)).
116
Fields v. Smith, 653 F.3d 550, 554 (7th Cir. 2011) (citing Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1957
(2011) (Scalia, J., dissenting)); Thomas v. Bryant, 614 F.3d 1288, 1321 (11th Cir. 2010); Crawford v. Clarke, 578
F.3d 39, 43 (1st Cir. 2009).
117
Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1939 (2011) (internal quotation marks omitted).
118
Jones v. Gusman, 296 F.R.D. 416, 429 (E.D.La., June 6, 2013) (quoting Bd. of Trustees v. Fox, 492 U.S. 469,
480 (1989)).
119
See Caruso v. Zenon, 2005 WL 5957979, *5 n.9 (D.Colo., Oct. 18, 2005) (pointing out that the more narrow a
remedy is, the more it may intrude on officials’ ability to exercise discretion).
120
See, e.g., G.B. ex rel T.B. v. Carrion, 486 Fed.Appx. 886, 889-90 (2d Cir. 2012) (unpublished) (holding district
court did not abuse its discretion in concluding that “prone restraints” against juvenile offenders may be necessary in
limited circumstances rather than banning them entirely); Morrison v. Garraghty, 239 F.3d 648, 661 (4th Cir. 2001)
(affirming injunction prohibiting refusing the plaintiff a religious exemption from property restrictions solely based
on his non-membership in the “Native American race”; emphasizing its narrowness); Lipscomb v. Pfister, 2014 WL
287269, *3 (C.D.Ill., Jan. 27, 2014) (suggesting measures that appear more or less likely to satisfy the PLRA
standards); Bakhtiari v. Walton, 2013 WL 6405794, *2 (S.D.Ill., Nov. 5, 2013) (holding medical condition was best
addressed by attention from a physician familiar with it, not a transfer to another prison), report and
recommendation adopted as modified, 2013 WL 6405796 (S.D.Ill., Dec. 6, 2013); Burgos v. Long, 2013 WL
5818093, *11 (E.D.Cal., Oct. 29, 2013) (holding request for order transferring plaintiff to a prison of his choice
“would not ‘be the least intrusive means necessary to correct the harm’”; court had ruled against plaintiff on the
merits, does not say what an appropriate remedy might have been); Rigsby v. Arizona, 2013 WL 4774775, *2-3
(D.Ariz., Sept. 5, 2013) (holding request for order directing defendants to “provide Plaintiff safety, protection,
human[e] conditions, and adequate grievance papers and grievance staff access, adequate outside exercise” was “far
too broad and general to satisfy the restrictions of the PLRA”); McCormack v. Burnett, 2013 WL 3967852, *3
(W.D.Wis., July 31, 2013) (holding plaintiff’s request for an out of state transfer “exceeds the scope [of] authorized
injunctive relief under the Prison Litigation Reform Act” and was “not narrowly drawn or the least intrusive means
to correct the alleged deliberate indifference” in case about denial of hernia surgery); Plata v. Brown, 2013 WL
3200587, *14-15 (N.D.Cal., June 24, 2013) (holding order removing prisoners at risk for Valley Fever from prisons
where it is prevalent complied with standard); Cudjo v. Delarosa, 2013 WL 2242456, *16 (E.D.Tex., May 21, 2013)
(holding request for an order “to take out of my file any and all negative statements and comments, off the computer
also” did not conform to the prospective relief standards); Roark v. Individuals of Federal Bureau of Prisons, 2013
WL 2153944, *1-2 (E.D.Tex., May 16, 2013) (holding request for population limit, medical and dental treatment,
rehabilitative treatment for injured arm, population limit, and functional tables in all cells was not shown to be
permissible under PLRA), aff’d, ___ Fed.Appx. ____, 2014 WL 1015312 (5th Cir. 2014); Still v. Schmidt, 2013 WL
1091745, *9 (D.Alaska, Mar. 15, 2013) (holding general request to comply with prison policy was not narrow and
non-intrusive as pled; request for expungement of disciplinary convictions arising from events at issue in case
satisfied § 3626(a)(1)); McNearney v. Washington Dept. of Corrections, 2013 WL 392490, *2-3 (W.D.Wash., Jan.
9, 2013) (granting motion to modify medical care order to terminate upon release), report and recommendation
adopted, 2013 WL 392489 (W.D.Wash., Jan. 31, 2013); Lopez v. Shiesha, 2012 WL 6719555, *3 (E.D.Cal., Dec.
26, 2012) (holding PLRA prohibits “generalized” relief against “medical department,” even though the case is

21

conclusions they seemingly have reached for other reasons.121 The requirement to avoid
unnecessary violations of state law has so far been little litigated.122
It is clear that enjoining defendants to follow the language of a statute they have violated
is appropriate under the PLRA.123 Most courts have held that upon finding a policy
unconstitutional in a non-class action, they can simply enjoin the policy, 124 though a few have
official capacity); Matthews v. Ambridge, 2012 WL 6589264, *10 (D.Nev., Dec. 17, 2012) (“Nor will the Court
issue an amorphous broad-based order barring use of ‘Plaintiff's artwork’ in prison disciplinary proceedings.” 18
U.S.C. § 3626(a)(1) “proscrib[es] broad-based intrusive injunctive orders in prison litigation”); White v. Lindermen,
2012 WL 5040850, *2 (D.Ariz., Oct. 18, 2012) (holding request for injunction allowing plaintiffs to possess as
many law books as necessary to understand the issues in the action was “too general and broad” under the PLRA);
Williamson v. Roberts, 2012 WL 4544348, *4 (W.D.Pa., Oct. 1, 2012) (holding “there are clearly less drastic and
less intrusive means for remedying Plaintiff's complaints [about legal property access] than by ordering Plaintiff's
transfer”); Gonzalez v. Zika, 2012 WL 4466584, *12 (N.D.Cal., Sept. 26, 2012) (declining to order agoraphobic
prisoner to be single celled, but ordering Interdisciplinary Treatment Team to reinstate its recommendation for
single celling, with plaintiff to seek further relief if necessary); Native American Council of Tribes v. Weber, 897
F.Supp.2d 828, 855-56 (D.S.D. 2012) (holding complete ban on tobacco denied religious rights of Native American
prisoners, but reinstating the prior policy allowing individual possession of tobacco was not the most narrowly
tailored remedy because of security concerns), injunction entered, 2013 WL 310633 (D.S.D., Jan. 25, 2013)
(discussing relationship of individual provisions to record), stay pending appeal denied, 2013 WL 3923451 (D.S.D.,
July 29, 2013); see Appendix A for additional authority on this point. But see Rezaq v. Nalley, 2010 WL 5157317,
*4 n.4 (D.Colo., Aug. 17, 2010) (holding transfer is not precluded as a remedy by prospective relief provisions),
report and recommendation adopted, 2010 WL 5157313 (D.Colo., Dec. 14, 2010).
121
See, e.g., Burns v. PA Dept. of Corrections, 642 F.3d 163, 182 (3d Cir. 2011).
122
See Coleman v. Brown, 952 F.Supp.2d 901, 903, 931 (E.D.Cal. 2013) (waiving all state and local laws that
would interfere with defendants’ compliance with a population limit); Robinson v. Delgado, 2010 WL 3448558, *13
(N.D.Cal., Aug. 31, 2010) (making findings permitting violation of state law if necessary); Coleman v.
Schwarzenegger, 2010 WL 99000, *2 (E.D.Cal., Jan. 12, 2010) (directing defendants to inform the court if
compliance with its orders requires violating state law, and to address the statutory factors justifying such relief),
aff’d sub. nom. Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910 (2011); Perez v. Hickman, 2007 WL 1697320, *2-4, 7
(N.D.Cal., June 12, 2007) (ordering increase in salaries paid to prison dentists, contrary to state law, and finding
PLRA standards met); Hadix v. Caruso, 2007 WL 162279, *1 (W.D.Mich., Jan. 16, 2007) (adopting parties’
agreement that medical personnel working for the court monitor should be employees of the monitor and not the
state; “The advantage of this amendment is that it avoids complications of state law which prevent hiring outside the
civil service system and likewise avoids possible violations of state collective bargaining agreements with state
employees.”).
123
Handberry v. Thompson, 446 F.3d 335, 347-48, 350-51 (2d Cir. 2006); see Rodley v. Lappin, 2006 WL 889744,
*2 (D.D.C., Mar. 30, 2006) (holding that the appropriate remedy for Bureau of Prisons’ violation of APA rulemaking provisions is for the plaintiff to participate in the rule-making process, which has now commenced, rather
than vacating the rule or enjoining its consequences).
124
See Fields v. Smith, 653 F.3d 550, 558-59 (7th Cir. 2011) (affirming injunction of state Inmate Sex Change
Prevention Act in its entirety based on holding that it is unconstitutional in all applications), aff’g 712 F.Supp.2d
830, 869 (E.D.Wis. 2010); Crawford v. Clarke, 578 F.3d 39, 43-44 (1st Cir. 2009) (granting injunction concerning
religious practices for all “special management units” in non-class suit brought by residents of one unit); Clement v.
California Dept. of Corrections, 364 F.3d 1148, 1152 (9th Cir. 2004) (affirming statewide injunction against
prohibition on receipt of materials downloaded from the Interent); Ashker v. California Dep’t of Corrections, 350
F.3d 917, 924 (9th Cir. 2003) (citations omitted) (affirming injunction against a requirement that “approved vendor
labels” be affixed to all books sent to prisoners, stating that the injunction “‘heel[s] close to the identified violation’
and is not overly intrusive because the prison still searches every incoming package and can determine from the
address label and invoice whether the package came directly from a vendor.”); Prison Legal News v. Columbia
County, 942 F.Supp.2d 1068, 1092 (D.Or., Apr. 24, 2013) (enjoining postcard-only jail mail policy, stating
injunction “will not provide for ongoing Court supervision and will not require Defendants to submit compliance
reports, institute trainings, or submit revised policies to the Court for review,” and therefore satisfied neednarrowness-intrusiveness standard); Couch v. Jabe, 737 F.Supp.2d 561, 574 (W.D.Va. 2010) (enjoining prison

22

held that they must restrict relief to the plaintiffs in the suit.125 Systemic relief is permissible if
supported by proof of a systemic violation;126 the command that remedies extend no further than
necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs”127 means
only that “the scope of the order must be determined with reference to the constitutional
violations established by the specific plaintiffs before the court.”128 Conversely, if a violation is
narrowly focused on one or a few individuals, or on part of a system, relief should be focused
accordingly.129 Allowing the defendants to propose a remedial plan in the first instance has been
censorship policy as facially unconstitutional, staying injunction to give defendants opportunity to draft a new one);
Jordan v. Pugh, 2007 WL 2908931, *4 (D.Colo., Oct. 4, 2007) (holding a nationwide injunction appropriate where a
rule was found facially overbroad under the First Amendment); Riley v. Brown, 2006 WL 1722622, *14 (D.N.J.,
June 21, 2006) (entering injunction to protect all prisoners from sex offender facility from assault notwithstanding
lack of class certification since the record shows that all of them were at risk because of their status; stating the
injunction “is not overly broad because it applies to a particular group of inmates who are likely to be targeted by
other state inmates and it does not apply to any inmates that are unlikely to be targeted.”); Williams v. Wilkinson,
132 F.Supp.2d 601, 604, 608-09, 611-12 (S.D.Ohio 2001) (finding an informal policy of refusing to call witnesses in
disciplinary hearings, rejecting defendants’ argument that the PLRA limited relief to the individual plaintiff,
directing defendants to promulgate a new policy); see also Ball v. LeBlanc, ___ F.Supp.2d ____, 2013 WL
6705141, *42 (M.D.La., Dec. 19, 2013) (granting unit-wide relief against excessive temperatures; it is necessary
since named plaintiffs could be moved to any location within the unit).
125
See Lindell v. Frank, 377 F.3d 655, 660 (7th Cir. 2004) (holding injunction against restrictions on receipt of
clippings overbroad insofar as it applied to other prisoners besides the plaintiff); Lipscomb v. Pfister, 2014 WL
287269, *3 (C.D.Ill., Jan. 27, 2014) (holding injunction protecting against throwing of bodily fluids during
recreation periods should apply only to the individual plaintiff); Thomas v. Baca, 2006 WL 2547321, *7 (D.Ariz.,
Aug. 31, 2006) (stating in dictum that a request to revise a policy to remove a disability-based exclusion from work
programs is more intrusive than a request to give the plaintiff the job he wants; contrary to Ninth Circuit Clement
and Ashker decisions cited above). In Ackerman v. Nevada Dept. of Corrections, 2012 WL 846581, *2 (D.Nev.,
Mar. 12, 2012), prisoners challenged the discontinuance of kosher meals in favor of a “Common Fare Diet,” and the
court restricted its preliminary injunction to the named plaintiff and those other prisoners who had expressly elected
to continue to receive kosher food. In Fulbright v. Jones, 2012 WL 4471207, *2 & n.8 (W.D.Okla., Sept. 26, 2012),
another kosher food case, the court relied on § 3626 in holding that a prior judgment on behalf of several prisoners
did not extend to another prisoner on an “intended beneficiary” theory. In Pinson v. Prieto, 2012 WL 7006131, *6-7
(C.D.Cal., July 2, 2012), report and recommendation adopted, 2013 WL 427108 (C.D.Cal., Feb. 1, 2013), the court
held that plaintiff's request for procedures to identify and segregate gang members and associates contravened §
3626 because it “reaches much farther than the harm at issue and extends to all prisoners” although the case was not
a class action.
In Soneeya v. Spencer, 851 F.Supp.2d 228, 251 (D.Mass. 2012), the court found a GID policy “is facially
invalid insofar as it determines, without exception, that certain accepted treatments for GID are never medically
necessary for inmates in GID custody,” but directed an individualized medical assessment, governed by community
standards, followed by a good faith security review, only for the plaintiff.
126
Armstrong v. Schwarzenegger, 622 F.3d 1058, 1073 (9th Cir. 2010) (holding system-wide injunction required
more evidence than “single incidents that could be isolated”).
127
18 U.S.C. § 3626(a)(1)(A).
128
Brown v. Plata, ___ U.S.___, 131 S.Ct. 1910, 1940 (2011). Thus, the Court held, a remedy for persistent failure
to provide constitutionally adequate medical and mental health services need not be restricted to persons presently
suffering from physical or mental illness. “Prisoners who are not sick or mentally ill do not yet have a claim that
they have been subjected to care that violates the Eighth Amendment, but in no sense are they remote bystanders in
California's medical care system. They are that system's next potential victims.” Id.
129
See Thomas v. Bryant, 614 F.3d 1288, 1324-26 (11th Cir. 2010) (affirming injunction against use of chemical
agents on prisoners with mental illness, noting limitation to the individual plaintiffs); Benjamin v. Fraser, 343 F.3d
35, 56-57 (2d Cir. 2003) (vacating finding of no constitutional violation in jail food service, directing district court
to make particular findings concerning three jails where the record showed serious sanitary problems); Gomez v.
Vernon, 255 F.3d 1118, 1130 (9th Cir.) (affirming injunction benefiting named individuals; though an
unconstitutional policy had been found, it had been directed at those persons), cert. denied, 534 U.S. 1066 (2001);

23

said to be the least intrusive means to correct violations,130 though one recent decision has
cautioned against adopting operational details of a defendants’ plan that are not required by
federal law.131 Agreements between the parties are “strong evidence,” if not dispositive, that
provisions reflecting those agreements comply with the needs-narrowness-intrusiveness
requirement,132 and tracking existing agency or institutional policy is further evidence of PLRA
compliance.133 Plaintiffs’ proposals may be deemed narrow and non-intrusive if the defendants
Robinson v. Tifft, 2012 WL 2675467, *3 (N.D.Fla., June 1, 2012) (holding plaintiff’s “requests for continuous audio
and video recording in every dormitory, and for the defendants to be charged with unidentified federal crimes is not
narrowly tailored to plaintiff's identified harm of being sprayed with a chemical agent”), report and recommendation
adopted, 2012 WL 2675469 (N.D.Fla., July 6, 2012); Hall v. Martin, 2012 WL 1579334, *16 (W.D.Mich., Mar. 29,
2012) (stating in dictum that an order reinstating plaintiff to a diet that was available in the prison would be less
intrusive than compelling implementation of a new menu system and would probably satisfy the PLRA), report and
recommendation adopted, 2012 WL 1579321 (W.D.Mich., May 3, 2012), reconsideration dismissed, 2012 WL
4856392 (W.D.Mich., Oct. 12, 2012); Robinson v. Delgado, 2010 WL 3448558, *11-14 (N.D.Cal., Aug. 31, 2010)
(enjoining officials to allow non-Jewish prisoner whose beliefs required a kosher diet to participate in kosher meal
program; declining broader relief as to operation of religious meal program).
130
Pierce v. County of Orange, 761 F.Supp.2d 915, 954 (C.D.Cal. 2011). Having said that, the court then specified
the requirements of such an order.
131
Westefer v. Neal, 682 F.3d 679, 682-86 (7th Cir. 2012) (disapproving injunctive settlement that was more
specific than constitutional requirements; injunction should direct adoption of policies complying with constitutional
requirements and then verify that the policies do so). An early application of this holding states: “The Court
understands this case to mean the injunction awarded is the general instruction to satisfy constitutional obligations;
the verification of the plan is simply a way to ensure compliance with the injunction.” Lipscomb v. Pfister, 2014
WL 287269, *2 (C.D.Ill., Jan. 27, 2014).
132
Benjamin v. Fraser, 156 F.Supp.2d 333, 344 (2001), aff’d in part, vacated and remanded in part on other
grounds, 343 F.3d 35 (2d Cir. 2003) (quoting Cason v. Seckinger, 231 F.3d at 785 n. 8 (noting particularized
findings are not necessary concerning undisputed facts, and the parties may make concessions or stipulations as they
deem appropriate)); accord, Henderson v. Thomas, 2013 WL 5493197, *8 (M.D.Ala., Sept. 30, 2013) (citing Cason
and noting parties’ agreement that the relief satisfied the statute); Clark v. California, 739 F.Supp.2d 1168, 1229
(N.D.Cal. 2010) (citing parties’ agreement that the agreed relief met the statutory requirements); McBean v. City of
New York, 2007 WL 2947448, *3 (S.D.N.Y., Oct. 5, 2007) (weighing parties’ agreement that detailed requirements
meet need-narrowness-intrusiveness standard); Morales Feliciano v. Calderon Serra, 300 F.Supp.2d 321, 334
(D.P.R. 2004) (“The very fact that the defendants chose to join the plaintiffs in selecting this remedy would seem to
mean–and must be taken to mean–that they understood it to be precisely tailored to the needs of the occasion, that it
is narrowly drawn and least intrusive–in fact not intrusive at all.”) (footnote omitted), aff’d, 378 F.3d 42, 54-56 (1st
Cir. 2004), cert. denied, 543 U.S. 1054 (2005); Little v. Shelby County, Tenn., 2003 WL 23849734, *1-2
(W.D.Tenn., Mar. 25, 2003) (“Where the parties in jail reform litigation agree on a proposed remedy, or
modification of a proposed remedy, the Court will engage in limited review for the purpose of assuring continued
compliance with existing orders and compliance with the Prison Litigation Reform Act. . . . Clearly, the least
intrusive means in this case is that advocated by the parties themselves and determined by the parties and the
court-appointed experts as being in the interest of both inmate and public safety.”). But see Lancaster v. Tilton,
2006 WL 2850015, *14 (N.D.Cal., Oct. 4, 2006) (declining to approve agreed order with “conclusory and collusive”
stipulated findings of violation). Cf. Native American Council of Tribes v. Weber, 897 F.Supp.2d 828, 855-56
(D.S.D. 2012) (holding decision that found “no tobacco” policy unlawfully restricted religious rights did not require
reinstatement of prior policy, which was not least intrusive; directing parties to confer and propose a narrowly
tailored injunction), stay pending appeal denied, 2013 WL 3923451 (D.S.D., July 29, 2013).
133
Thomas v. Bryant, 614 F.3d 1288, 1325 (11th Cir. 2010) (citing use of defendants’ existing policies in
formulating relief as evidence of non-intrusiveness); Benjamin v. Schriro, 370 Fed.Appx. 168, 171 (2d Cir. 2010)
(unpublished) (defendants’ remedial plan for jail ventilation “necessarily must provide a practicable means of
effectuating its objectives, otherwise, it stands to reason, the Department Plan would not have been proffered . . . in
the first instance.”); Benjamin v. Fraser, 156 F.Supp.2d at 344 (“Requiring the Department to follow its own rules
can hardly be either too broad or too intrusive.”). The court further rejected the argument that a requirement’s
existence in agency policy obviates the need for its inclusion in the judgment, since its presence in policy “obviously

24

do not come forward with anything.134 Assuming time deadlines must meet the neednarrowness-intrusiveness standard, defendants must justify any delay in implementation, since
“by providing defendants any time at all to implement the ordered relief the Court allows
defendants to further trespass on detainees’ constitutional rights.”135 A declaratory judgment
holding a practice unlawful “will not in any way be intrusive nor will it negatively impact public
safety,” though the court that said so additionally held that the plaintiff was entitled to a
permanent injunction.136
The needs-narrowness-intrusiveness test is applied with an eye towards practicality and
towards the potential intrusiveness of enforcement of the remedy. Thus, where the failure to
repair non-functioning jail windows was found to contribute to a constitutional violation, the
court ordered the defendants to repair the windows, noting that such a requirement is not overly
intrusive since it is “a routine task in any building,”137 and since “a comprehensive repair
program is the only rational means to correct the system-wide violation, and is far less intrusive
than the Court making window-by-window repair/replace determinations.”138
did not cure the violation.” Id. at 354-55; accord, Skinner v. Lampert, 2006 WL 2333661, *12 (D.Wyo., Aug. 7,
2006); Riley v. Brown, 2006 WL 1722622, *15 (D.N.J., June 21, 2006); Ruiz v. Johnson, 154 F.Supp.2d 975, 994
(S.D.Tex. 2001) (noting that defendants’ policies were constitutional but must be effectuated; “The court cannot
conceive of a less intrusive alternative, and neither party has proffered one.”); see Handberry v. Thompson, 446 F.3d
335, 350 (2d Cir. 2006) (affirming requirement to provide Temporary Education Plans for school-age prisoners as
consistent with defendants’ own policies or proposals); Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) (affirming
aspects of injunction even though defendants said they were already doing what they had been ordered to do; issue
framed as one of mootness). But see Westefer v. Neal, 682 F.3d 679, 682-86 (7th Cir. 2012) (disapproving
injunctive settlement that incorporated defendants’ revised operational procedures because the resulting order was
more specific than constitutional requirements; injunction should direct adoption of policies complying with
constitutional requirements and then verify that the policies do so). On remand in that case, the district court
declined plaintiffs’ request to order defendants to submit proposed amendments to the state Administrative Code
embodying their procedures. Westefer v. Snyder, 2012 WL 4904522, *2 (S.D.Ill., Oct. 15, 2012), order vacated on
other grounds, 2013 WL 1286971 (S.D.Ill., Mar. 27, 2013).
134
Plata v. Schwarzenegger, 2008 WL 4847080, *8 (N.D.Cal., Nov. 7, 2008) (noting state’s failure to propose less
intrusive measures, refusing to stay funding of court-mandated construction program); Gammett v. Idaho State Bd.
of Corrections, 2007 WL 2684750, *4-5 (D.Idaho, Sept. 7, 2007) (adopting plaintiffs’ proposal for treatment for
transsexual prisoner where defendants said they could not provide treatment). But see Thomas v. McNeil, 2009 WL
605306, *1 (M.D.Fla., Mar. 9, 2009) (where defendants defined to submit a proposal, court “[took] into
consideration” plaintiffs’ suggestions but drew from several sources including defendants’ terms, procedures, and
regulations governing related circumstances), judgment entered, 2009 WL 605306 (M.D.Fla., Mar. 9, 2009), aff’d,
Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010).
135
Benjamin, 156 F.Supp.2d at 344; accord, Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1944 (2011) (“When a
court is imposing a population limit, . . . [t]he court must . . . order the population reduction achieved in the shortest
period of time reasonably consistent with public safety.”); see Skinner v. Uphoff, 234 F.Supp.2d 1208, 1217
(D.Wyo. 2002) (directing that the parties propose remedies that “will promptly and effectively” abate the violations)
(emphasis supplied).
136
Lindh v. Warden, Federal Correctional Inst., Terre Haute, Ind., 2013 WL 139699, *16 (S.D.Ind., Jan. 11, 2013).
137
Benjamin, 156 F.Supp.2d at 350.
138
Id. On appeal, the court agreed emphatically. 343 F.3d at 53-54 (“. . . [I]t is ironic that the City . . . invokes the
PLRA, which was intended in part to prevent judicial micro-management, in support of the proposition that the
district court was required to examine every window. . . . Given the impracticability of the court examining each
window, ordering comprehensive repairs was a necessary and narrowly drawn means of effectuating relief–even
though the Constitution would certainly permit a broken window or two.”); accord, Graves v. Arpaio, 623 F.3d
1043, 1048-49 (9th Cir. 2010) (affirming order that all prisoners taking psychotropic medications be held in areas
that do not exceed 85 degrees; though some such medications are not hazardous in high temperatures, jail recordkeeping was inadequate to determine who was taking which medication; also affirming order requiring jail diet to

25

Although the PLRA requires that remedies be tailored to violations, it allows highly
intrusive or burdensome remedies where the record supports their necessity.139 In this
connection, one court has distinguished between intrusiveness and burden: “A demonstration
that an order is burdensome does nothing to prove that it was overly intrusive. . . . [T]he question
is . . . whether the same vindication of federal rights could have been achieved with less
involvement by the court in directing the details of defendants' operations.”140 The failure of
earlier less intrusive measures and recalcitrance by defendants or their agents may support more
intrusive relief.141 As one court put it, in ordering appointment of a receiver to take over a large
meet or exceed Department of Agriculture’s Dietary Guidelines in light of record showing inadequate jail diets for
“moderately active” persons); Thomas v. Bryant, 614 F.3d 1288, 1325-26 (11th Cir. 2010) (noting remedy does not
require “onerous continuous supervision by the court or judicial interference in running” the prison, and “adds but
one layer to a long list of existing prerequisites to the use of non-spontaneous force” that will affect only a few
instances); Handberry v. Thompson, 446 F.3d 335, 347 (2d Cir. 2006) (stating that a remedy may be PLRAcompliant even if “over-inclusive”; noting generally that a remedy may require more than the bare minimum of
federal law and may still be necessary and narrowly drawn); Coleman v. Schwarzenegger, 2011 WL 2946707, *3-4
(E.D.Cal., July 21, 2011) (requiring provision of suicide resistant beds for prisoners in mental health crisis center in
order to implement prior order to take necessary steps to reduce the suicide rate); Caruso v. Zenon, 2005 WL
5957979, *4-5 (D.Colo., Oct. 18, 2005) (directing provision of kosher meals to satisfy Muslim prisoner’s dietary
needs; directing defendants to provide head covering meeting certain criteria; stating that these directions do not
require ongoing supervision by the court); Balla v. Idaho Bd. of Correction, 2005 WL 2403817, *10 (D.Idaho, Sept.
26, 2005) (holding retention of population limits and time limits for plumbing repairs met PLRA standards; relying
on Benjamin), clarified on denial of reconsideration, 2005 WL 3412806 (D.Idaho, Dec. 9, 2005).
139
Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1928-29 (2011) (“Courts may not allow constitutional violations
to continue simply because a remedy would involve intrusion into the realm of prison administration.”); Coleman v.
Brown, 428 Fed.Appx. 743, 744-45 (9th Cir. 2011) (unpublished) (affirming order to double rate of admission to
two mental health facilities based on record of unconstitutional mental health care including failure to provide
inpatient care and suicides among prisoners awaiting admission); Gates v. Cook, 376 F.3d 323, 337, 341-42 (5th Cir.
2004) (requiring prison to meet American Correctional Association and National Commission on Correctional
Health Care standards in mental health program; requiring provision of 20 foot candles of light in cells); Indiana
Protection and Advocacy Services Com'n v. Commissioner, Indiana Dept. of Correction, 2012 WL 6738517, *24
(S.D.Ind., Dec. 31, 2012) (“The remedy may be as complex as the evidence of the violation. . . .”); Kosilek v.
Spencer, 889 F.Supp.2d 190, 250-51 (D.Mass., Sept. 4, 2012) (directing defendants to provide gender reassignment
surgery where the record showed that was the only satisfactory treatment for plaintiff’s condition; leaving questions
of where to perform the surgery, who would do it, and appropriate security measures and subsequent placement to
defendants pursuant to PLRA); Armstrong v. Brown, 2012 WL 113723, *15-18 (N.D.Cal., Jan. 13, 2012) (where
state prison system backed up prisoners into county jails, directing a statewide procedure for enforcing disability
rights of those state prisoners), modified and corrected on other grounds, 2012 WL 1225911 (N.D.Cal., Apr. 11,
2012), amended and superseded on other grounds, adhered to in pertinent part, 857 F.Supp.2d 919 (N.D.Cal.
2012), order aff’d, appeal dismissed, 732 F.3d 955 (9th Cir. 2013), pet. for cert. filed, No. 13-1056 (Mar. 3, 2014);
Plata v. Schwarzenegger, 2008 WL 4847080, *6-7 (N.D.Cal., Nov. 7, 2008) (declining to stay prior order requiring
provision of $250 million to receiver for improvements in medical care); Perez v. Hickman, 2007 WL 1697320, *25, 7 (N.D.Cal., June 12, 2007) (requiring increases in salaries for prison dentist contrary to state law, and requiring
the creation of a hiring unit within the prison system); see Appendix A for additional authority on this point. But see
Hadix v. Caruso, 2006 WL 1361415, *2 (W.D.Mich., May 15, 2006) (allowing defendants to substitute a $7.8
million fire safety program for previously ordered $98 million program where the court found it would satisfy
constitutional requirements), reconsideration denied, 2006 WL 1851231 (W.D.Mich., June 30, 2006).
140
Armstrong v. Schwarzenegger, 622 F.3d 1058, 1071 (9th Cir. 2010).
141
Plata v. Schwarzenegger, 603 F.3d 1088, 1097-98 (9th Cir. 2010) (affirming appointment and continuation of a
receiver for prison medical care system where less drastic measures had failed); Benjamin v. Schriro, 370 Fed.Appx.
168, 171 (2d Cir. 2010) (unpublished) (“The needs-narrowness-intrusiveness requirement of the PLRA
notwithstanding, we find that nearly a half-decade of untruthfulness, non-compliance and inaction constitutes
sufficient justification for the intrusiveness of a subsequent order to compel compliance with an original order
entered pursuant to the PLRA that has been ignored.” Court properly entered comprehensive order adopting

26

state prison medical care system, the PLRA “codifies the Court’s authority to issue prospective
relief that fully remedies a constitutional violation, while mandating that the relief not be overly
broad.”142 A provision stating that “[n]othing in this section shall be construed to authorize the
courts, in exercising their remedial powers, to order the construction of prisons or the raising of
taxes, or to repeal or detract from otherwise applicable limitations on the remedial powers of the
courts”143 does not prohibit these actions if they could have been taken under the courts’ existing
equitable powers.144
B.

Termination of Prospective Relief

Injunctions in prison conditions litigation may be terminated on motion if the neednarrowness-intrusiveness findings have not been made.145 Even if they were made, relief may be
terminated after the passage of specified time periods unless the court finds that there is a
“current and ongoing” violation of federal law; if the court makes such findings, relief must meet
the same need/narrowness/intrusiveness requirements as for the initial entry of relief.146 Most
defendants’ remedial plan in detail where earlier, general command had not been followed.); Morales Feliciano v.
Rullan, 378 F.3d 42, 54-56 (1st Cir. 2004) (finding remedy of privatization of medical care appropriate in light of
failure of less intrusive measures; “[d]rastic times call for drastic measures.”), cert. denied, 543 U.S. 1054 (2005);
Clark v. California, 739 F.Supp.2d 1168, 1233-35 (N.D.Cal. 2010) (granting further relief based on showing of
ongoing violation and non-compliance with prior orders); McBean v. City of New York, 2007 WL 2947448, *3
(S.D.N.Y., Oct. 5, 2007) (approving detailed requirements for ensuring compliance with law regarding strip
searches; noting violation of previously adopted policy and resistant “culture” within correction department);
Skinner v. Uphoff, 234 F.Supp.2d 1208, 1218 (D.Wyo. 2002) (stating that a remedy for inmate-inmate violence
must address the admitted “culture” impeding the effective supervision and discipline of staff; “systematic and
prophylactic measures” may be ordered if necessary to correct the violations); see Skinner v. Lampert, 2006 WL
2333661, *9-12 (D.Wyo., Aug. 7, 2006) (discussing operation of remedy for “culture” found in Skinner v. Uphoff).
142
Plata v. Schwarzenegger, 2005 WL 2932253, *25 (N.D.Cal., Oct. 3, 2005); see id., *27-28 (explaining why other
remedies would be ineffective).
143
18 U.S.C. § 3626(a)(1)(C).
144
Plata v. Schwarzenegger, 2008 WL 4847080, *7 (N.D.Cal., Nov. 7, 2008).
145
18 U.S.C. § 3626(b)(2); see United States of America v. Territory of the Virgin Islands, 884 F.Supp.2d 399
(D.V.I. 2012) (finding various orders subject to termination for failure to make required findings as to particular
relief; hearing on current conditions to be held); see also cases cited in nn. 81-83, above, concerning the
requirements for PLRA findings.
146
18 U.S.C. § 3626(b); see Pierce v. County of Orange, 526 F.3d 1190, 1208-13 (9th Cir. 2008) (finding ongoing
violations with respect to exercise and religious access in segregation, terminating other judgment provisions), cert.
denied, 555 U.S. 1031 (2008); Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) (affirming findings of continuing
and ongoing violations); Coleman v. Brown, 938 F.Supp.2d 955, 970-88 (E.D.Cal. 2013) (finding continuing and
ongoing constitutional violations in prison system’s mental health care); United States of America, v. Territory of
the Virgin Islands, 884 F.Supp.2d 399, 418-19 (D.V.I., Feb. 8, 2012) (holding five-year-old findings “too dated” to
bar termination, but could serve as “an appropriate factual foundation” if “properly updated”); Graves v. Arpaio,
2008 WL 4699770, *2-3 et passim (D.Ariz., Oct. 22, 2008) (partly terminating relief, partly preserving or modifying
relief based on current record; considering evidence covering a one-year period), aff’d, 623 F.3d 1043 (9th Cir.
2010); Hart v. Agnos, 2008 WL 2008966, *4-5 (D.Ariz., Apr. 25, 2008) (limiting discovery to evidence from
previous calendar year, stating parties must prove the relevance and admissibility of older evidence); Lancaster v.
Tilton, 2007 WL 4570185, *5 (N.D.Cal., Dec. 21, 2007) (though “current” means when termination motion is made,
“instantaneous snapshot” is impossible; court says record made over previous 13 months is adequate); U.S. v.
Commonwealth of Puerto Rico, 2007 WL 1119336, *2-3 (D.Puerto Rico, Apr. 10, 2007) (continuing and modifying
relief by agreement, supported by court monitor’s report describing current conditions); Skinner v. Lampert, 2006
WL 2333661, *6-13 (D.Wyo., Aug. 7, 2006) (partly terminating and partly continuing relief in inmate assault class
action); Balla v. Idaho Bd. of Correction, 2005 WL 2403817, *5-10 (D.Idaho, Sept. 26, 2005) (finding ongoing
violations merited retention of crowding-related relief), clarified, reconsideration denied, 2005 WL 3412806

27

courts hold that any existing relief should be adapted to conform to the current record if an
ongoing violation is found.147 Relief may not be continued based on the prospect of future
violations,148 but the court may reimpose relief after termination if a new showing of
constitutional violation is made and if the court has retained jurisdiction of other aspects of the
case.149 The majority of courts have held that the plaintiffs have the burden of proof in a
termination proceeding.150
The termination provision has been upheld against challenges based on separation of
powers, due process, and equal protection grounds.151
A motion to terminate may be filed immediately if the required findings were not made;
if the findings were made, the motion will lie two years after the grant or approval of prospective
(D.Idaho, Dec. 9, 2005); Benjamin v. Fraser, 161 F.Supp.2d 151 (S.D.N.Y.), on motions for reconsideration, 156
F.Supp.2d 333 (S.D.N.Y. 2001) (making additional findings of continuing and ongoing violations), aff’d in part,
vacated and remanded in part, 343 F.3d 35 (2d Cir. 2003).
One court has held that a termination motion may be made sua sponte. Jones’El v. Schneiter, 2006 WL
2168682, *1-3 (W.D.Wis., July 31, 2006).
147
One court has stated that the court must terminate relief that is found too broad or intrusive on the current record
rather than conform it to the new findings. Hines v. Anderson, 547 F.3d 915, 922 (8th Cir. 2008). The weight of
authority and of common sense holds that if the record shows that a constitutional violation remains, the relief
should be adapted to the current facts. Pierce v. Orange County, 526 F.3d 1190, 1204 n.13 (9th Cir. 2008), cert.
denied, 555 U.S. 1031 (2008); Laaman v. Warden, 238 F.3d 14, 19 (1st Cir. 2001); Graves v. Arpaio, 2008 WL
4699770, *3 (D.Ariz., Oct. 22, 2008), aff’d, 623 F.3d 1043 (9th Cir. 2010) (noting district court’s decision to modify
the relief rather than terminate it); see Benjamin v. Fraser, 156 F.Supp.2d at 345-55 (formulating relief based on
hearing record with little regard to prior consent judgment). That view is consistent both with judicial economy
(since otherwise a new proceeding would be required to address the current legal violation) and with the purpose of
§ 3626 to limit federal court intervention to current violations of federal law. See Benjamin v. Jacobson, 172 F.3d
163 (2d Cir. 1999) (en banc), cert. denied, 528 U.S. 824 (1999).
148
Para-Professional Law Clinic at SCI-Graterford v. Beard, 334 F.3d 301, 304-05 (3d Cir. 2003); Castillo v.
Cameron County, 238 F.3d 339, 353 (5th Cir. 2001); Cason v. Seckinger, 231 F.3d 777, 784 (11 th Cir. 2000). But
see Graves v. Arpaio, 2008 WL 4699770, *16 (D.Ariz., Oct. 22, 2008) (with respect to the use of portable beds, “the
Court may assume that if prospective relief is not granted, Maricopa County Jails are likely to return to the
longstanding practice discontinued only days before inspections for this litigation were to begin”; granting relief),
aff’d, 623 F.3d 1043 (9th Cir. 2010)
149
Hadix v. Caruso, 461 F.Supp.2d 574, 589 (W.D.Mich. 2006), remanded on other grounds, 2007 WL 2753026
(6th Cir., Sept. 21, 2007) (per curiam).
A later decision in this litigation holds that where a case was settled by consent judgment without a finding
of constitutional violation (i.e., before the PLRA), further relief is limited by the terms of the consent judgment as
well as the PLRA. Hadix v. Caruso, 2009 WL 891709, *8 (W.D.Mich., Mar. 31, 2009). There is no discernible
basis in the statute for this holding.
150
Guajardo v. Texas Dep’t of Criminal Justice, 363 F.3d 392, 395 (5th Cir. 2004) (per curiam); Laaman v. Warden,
238 F.3d 14, 20 (1st Cir. 2001); United States of America, v. Territory of the Virgin Islands, 884 F.Supp.2d 399,
415 (D.V.I., Feb. 8, 2012); Imprisoned Citizens Union v. Shapp, 11 F.Supp.2d 586, 604 (E.D.Pa. 1998), aff’d, 169
F.3d 178 (3d Cir. 1999). Contra, Gilmore v. California, 220 F.3d 987, 1007-08 (9th Cir. 2000) (analogizing a
PLRA termination proceeding to a Rule 60(b) motion to modify a judgment); accord, Graves v. Arpaio, 623 F.3d
1043 (9th Cir. 2010) (reaffirming Gilmore holding); Coleman v. Brown, 938 F.Supp.2d 955, 960 (E.D.Cal., Apr. 5,
2013) (applying Gilmore and Graves holdings, “holdings that are, after all, consistent with the ordinary rule that the
party seeking an order bears the burden of proof”).
151
Benjamin v. Jacobson, 172 F.3d 144 (2d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999); see Miller v. French,
530 U.S. 327 (2000) (adopting same separation of powers rationale as Benjamin); see also Hines v. Anderson, 547
F.3d 915, 919-20 (8th Cir. 2008) (plaintiffs do not have a property interest in a prison consent decree requiring any
particular degree of process for termination; court had allowed substantial discovery and submission of evidence but
did not hold an evidentiary hearing).

28

relief, and one year after the date of an order denying an earlier motion to terminate.152 One
court has recently held that appellate proceedings concerning the entry of prospective relief
deprive the district court of jurisdiction to entertain a new termination motion, even if otherwise
timely, until those proceedings are concluded and the case is returned to the district court. 153
Another has reopened discovery and required defendants to disclose their experts and their
reports at least 120 days before filing a termination motion.154
When a motion is filed to terminate prospective relief, the motion operates as a stay
(suspension) of the relief after 30 days, which may be extended to 90 days for good cause. 155
During that period, the suspended relief may not be coercively enforced, even if the termination
motion followed a request for enforcement.156 Appellate proceedings may “reset” the time
preceding the automatic stay so it starts anew when district court proceedings resume.157
The automatic stay provision, too, has been upheld against a separation of powers
challenge.158 Private settlement agreements not enforceable in federal court are not subject to the
termination provisons.159
C.

Prisoner Release Orders

In addition to the general provisions concerning prospective relief, the PLRA includes
special provisions restricting “prisoner release orders,”160 defined as “any order, including a
152

18 U.S.C. § 3626(b); Coleman v. Brown, 922 F.Supp.2d 1004, 1025 n.23 (E.D.Cal. 2013) (noting that motion to
terminate could not be filed less than two years after entry of relief), appeal dismissed, 134 S.Ct. 436 (2013).
153
Graves v. Arpaio, 2010 WL 4778000, *2-3 (D.Ariz., Nov. 17, 2010).
154
Plata v. Brown, 2013 WL 654996, *1 (N.D.Cal., Feb. 21, 2013) (holding it would be unfair for defendants to
have unlimited time to prepare while plaintiffs had only the time between the filing of the motion and the beginning
of the automatic stay to prepare, less the time for the hearing and a decision).
155
18 U.S.C. § 3626(e). The statute does not contain any guidance as to what “good cause” might mean, but courts
have found it where the record indicated some likelihood that a constitutional violation persisted. See Lancaster v.
Tilton, 2007 WL 4145963, *1 (N.D.Cal., Nov. 19, 2007) (holding evidence of continuing sanitary deficiencies were
good cause); U.S. v. Commonwealth of Puerto Rico, 2007 WL 1119336, *3-4 (D.Puerto Rico, Apr. 10, 2007)
(finding good cause to postpone automatic stay in juvenile conditions case because of allegations of physical and
mental abuse and delays and inaction in responding to them); Skinner v. Uphoff, 410 F.Supp.2d 1104, 1112
(D.Wyo. 2006) (finding good cause to postpone automatic stay in inmate violence case based on allegations of
ongoing violence, delays in defendants’ remedial actions, etc.), aff’d, 175 Fed.Appx. 255 (10th Cir. 2006).
156
U.S. v. Puerto Rico, 642 F.3d 103, 104 (1st Cir. 2011). In that case, the court declined on ripeness grounds to
review the propriety of denying enforcement in the hypothetical event that the termination motion was denied and
the relief reinstated. 642 F.3d at 108-09.
157
Lancaster v. Tilton, 2007 WL 4145963, *1 (N.D.Cal., Nov. 19, 2007) (citing Benjamin v. Jacobson, 172 F.3d
144, 166 (2d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999)).
158
Miller v. French, 530 U.S. 327 (2000); see also Merriweather v. Sherwood, 235 F.Supp.2d 339, 343-44
(S.D.N.Y. 2002) (upholding provision against due process challenge).
159
Shultz v. Wells, 73 Fed.Appx. 794, 2003 WL 21911330, *1 (6th Cir. 2003) (unpublished); Davis v. Gunter, 771
F.Supp.2d 1068, 1071-72 (D.Neb. 2011); York v. City of El Dorado, 119 F.Supp.2d 1106, 1108 (E.D.Cal. 2000).
160
18 U.S.C. § 3626(a)(3); see U.S. v. Cook County, Ill., 761 F.Supp.2d 794, 797 (N.D.Ill. 2011) (“we interpret the
statute as authorizing a prisoner release order if overcrowding is a primary cause of unconstitutional violations
beyond what would exist without overcrowding”); Coleman v. Schwarzenegger, 2008 WL 4813371, *4-6 (E.D.Cal.,
Nov. 3, 2008) (discussing requirement that crowding be the “primary cause” of constitutional violations to justify
relief); Bowers v. City of Philadelphia, 2007 WL 219651, *33-34 (E.D.Pa., Jan. 25, 2007) (order limiting number of
prisoners in a particular cell or limiting the time arrestees can be held before arraignment would not be a prisoner
release order; police holding cells are not prisons). This provision applies prospectively and does not disturb pre-

29

temporary restraining order or preliminary injunctive relief, that has the purpose or effect of
reducing or limiting the prison population, or that directs the release from or nonadmission of
prisoners to a prison.”161 These provisions were virtually unused until recently. 162 Such orders
may be entered only after “a court has previously entered an order for less intrusive relief that
has failed to remedy the deprivation of the Federal right sought to be remedied through the
prisoner release order,” and the defendants have had a reasonable amount of time to comply with
it.163 Such orders may be entered only by a three-judge federal court,164 which must make
findings by clear and convincing evidence that “(i) crowding is the primary cause of the violation
of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 165 The
actual remedy imposed by the court must also conform to the more general need-narrownessintrusiveness provisions discussed above.166 In framing a remedy, the court may make its own
judgment as to the likely efficacy of remedies proffered by defendants.167

existing orders. Castillo v. Cameron County, Texas, 238 F.3d 339, 348 (5th Cir. 2001); Berwanger v. Cottey, 178
F.3d 834, 836 (7th Cir. 1999).
161
18 U.S.C. § 3626(g)(4); see Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1929 (2011) (holding order limiting
population to a percentage of design capacity was a prisoner release order even though it could be complied with by
increasing capacity or transferring prisoners); Ruiz v. Estelle, 161 F.3d 814, 825-27 (5th Cir. 1998) (order limiting
population density is a prisoner release order), cert. denied, 526 U.S. 1158 (1999); Tyler v. Murphy, 135 F.3d 594,
595-96 (8th Cir. 1998) (holding order limiting technical probation violator population at a jail is a prisoner release
order). But see Plata v. Brown, 2013 WL 3200587, *8-10 (N.D.Cal., June 24, 2013) (holding order removing
prisoners at risk for Valley Fever from prisons where it is prevalent was not a prisoner release order; transfers for
reasons other than crowding relief are not governed by § 3626(g)(4)).
162
See Brown v. Plata, ___ U.S. ___, 131 S.Ct. at 1944-47 (affirming order that California reduce its prison
population to 137.5% of its design capacity); U.S. v. Cook County, Ill., 761 F.Supp.2d 794, 797 (N.D.Ill. 2011)
(holding prerequisites to release order met, directing narrowing of parties’ agreed order); Roberts v. County of
Mahoning, Ohio, 495 F.Supp.2d 784, 786 (N.D.Ohio 2007) (noting entry of prisoner release order by consent).
163
18 U.S.C. § 3626(a)(3)(i-ii); see Butler v. Kelso, 2013 WL 1883233, *10 (S.D.Cal., May 2, 2013) (denying
request to convene three-judge court for prisoner release order absent a prior order). Only a single order, followed
by time to comply, is required. A court may enter a series of orders to correct the problem, but the time required to
wait for results “must be assessed in light of the entire history of the court's remedial efforts.” Brown v. Plata, ___
U.S. ___, 131 S.Ct. at 1930-31 (holding that the lower court, having waited five and twelve years from the initial
remedial orders, need not wait comparable periods to assess the effects of recent orders, or impose a moratorium on
new orders before entering a release order).
164
See Coleman v. Schwarzenegger, 2007 WL 2122636 (E.D.Cal., July 23, 2007), appeal dismissed, 2007 WL
2669591 (9th Cir., Sept. 11, 2007); Plata v. Schwarzenegger, 2007 WL 2122657 (N.D.Cal., July 23, 2007) (both
requesting the Ninth Circuit to appoint a three-judge court to consider a population limit on the California prison
system), appeal dismissed, 2007 WL 2669591 (9th Cir., Sept. 11, 2007); Roberts v. County of Mahoning, Ohio, 495
F.Supp.2d 784, 786 (N.D.Ohio 2007) (noting appointment of three-judge court and entry of prisoner release order by
consent).
165
18 U.S.C. § 3626(f); see Brown v. Plata, ___ U.S.___, 131 S.Ct. at 1936 (affirming finding that overcrowding is
the primary cause of violations; stating “Overcrowding need only be the foremost, chief, or principal cause of the
violation. If Congress had intended to require that crowding be the only cause, it would have said so. . . .”). The
Court added: “The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to
fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited
the availability of limits on prison populations, but it did not forbid these measures altogether. . . . A reading of the
PLRA that would render population limits unavailable in practice would raise serious constitutional concerns.” 131
S.Ct. at 1937.
166
Brown v. Plata, ___ U.S. ___, 131 S.Ct. at 1940.
167
Brown v. Plata, ___ U.S. ___, 131 S.Ct. at 1937-39.

30

Certain law enforcement officials and other officeholders are entitled to intervention as
of right to oppose such an order.168 The prisoner release provisions are applicable to newly
imposed limits on prison population but not to the preservation of pre-existing relief in the face
of a termination motion.169
D.

Preliminary Injunctions

Preliminary injunctions must meet the same need-narrowness-intrusiveness standards as
other prospective relief.170 They are limited in duration to 90 days, but courts may enter
sequential preliminary injunctions if the factual justification for relief continues to exist.171
Preliminary relief has been denied in a number of cases under the requirement of § 3626(a)(2) to
“give substantial weight to any adverse impact on public safety or the operation of a criminal
justice system caused by the preliminary relief.”172 Preliminary relief may also be denied
168

18 U.S.C. § 3626(a)(3)(F); see Ruiz v. Estelle, 161 F.3d 814, 821-27 (5th Cir. 1998) (upholding intervention
provisions), cert. denied, 526 U.S. 1158 (1999); Coleman v. Schwarzenegger, 2007 WL 3020078, *1-3 (E.D.Cal.,
Oct. 10, 2007), on reconsideration in part, 2007 WL 3355071 (E.D.Cal., Nov. 9, 2007), vacated on reconsideration,
2008 WL 397295 (E.D.Cal., Feb. 8, 2008) (addressing roles of intervenors); Bowers v. City of Philadelphia, 2006
WL 2601604, *4-7 (E.D.Pa., Sept. 8, 2006) (all construing the prisoner release order provision).
169
Balla v. Idaho Bd. of Correction, 2005 WL 2403817 (D.Idaho, Sept. 26, 2005), clarified, reconsideration denied,
2005 WL 3412806, *1 (D.Idaho, Dec. 9, 2005).
170
18 U.S.C. § 3626(a)(2); Gates v. Fordice, 1999 WL 33537206 (N.D.Miss., July 19, 1999) (holding that the PLRA
did not change the standards for granting a preliminary injunction, but the relief must meet the PLRA standards); see
Stephens v. Jones, 494 Fed.Appx. 906, 911-12 (10th Cir. 2012) (unpublished) (affirming holding that pro se
plaintiff’s request for an injunction to “recover [his] confiscated legal materials,” “end prison-to-prison transfers and
DOC one cubic foot legal material limit rules,” “provide meaningful access to legal resources, tools, time access,
relevant legal-related internet information,” and “access to DOC procedures” was overbroad and too intrusive in
light of plaintiff’s conclusory allegations); Foster v. Ghosh, ___ F.Supp.2d ____, 2013 WL 6224572, *7 (N.D.Ill.,
Nov. 26, 2013) (granting preliminary injunction requiring defendants to send the cataract-afflicted plaintiff to an
ophthalmologist and follow his recommendations); Swearington v. California Dept. of Corrections and
Rehabilitation, 2012 WL 5386919, *3 (E.D.Cal., Nov. 1, 2012) (rejecting request for preliminary injunction that did
not specify the relief sought or the persons against whom it should run).
171
Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001); Farnam v. Walker, 593 F.Supp.2d 1000, 1004,
1018-19 (C.D.Ill. 2009) (holding successive preliminary injunctions are permissible; granting injunction and setting
conference date near 90-day deadline to discuss possible entry of successive injunction); Riley v. Brown, 2006 WL
1722622, *7-16 (D.N.J., June 21, 2006) (granting second injunction after expiration of first); see Gammett v. Idaho
State Bd. of Corrections, 2007 WL 2684750, *4 (D.Idaho, Sept. 7, 2007) (holding termination and automatic stay
procedures do not apply to preliminary injunctions). In reliance on the extension provision, one court has granted an
injunction longer than 90 days with respect to an annual event, directing that plaintiff be provided kosher food
during the following year’s Yahweh Passover Feast of Unleavened Bread. Porter v. Wegman, 2013 WL 3863925,
*4 (E.D.Cal., July 24, 2013), report and recommendation adopted, 2013 WL 4815435 (E.D.Cal., Sept. 6, 2013).
172
See Young v. Russell, 2013 WL 1965135, *2 (W.D.Wash., Apr. 1, 2013) (citing “adverse impact” provision in
denying preliminary relief to prisoner seeking freer access to law library), report and recommendation adopted,
2013 WL 1965079 (W.D.Wash., May 10, 2013); Stewart v. Davis, 2011 WL 4383662, *5 (S.D.Ohio, Sept. 19,
2011) (demand for “full-blown investigation of the day to day operations” of a jail plus the grant of all relief sought
in the complaint would be substantially intrusive; § 3626(a)(2) cited); Ocasio v. McDaniel, 2009 WL 4377541, *5
(D.Nev., Nov. 30, 2009) (applying adverse impact requirement to deny injunction to require prisoners to purchase
regular pens that have been used as weapons); Barendt v. Gibbons, 2009 WL 2982802, *4 (D.Nev., Sept. 11, 2009)
(same as Ocasio); Lyons v. Bisbee, 2009 WL 801821 (D.Nev., Mar. 25, 2009) (holding adverse impact provision
weighed against preliminary injunction limiting search practices); Leon v. Schaff, 2007 WL 3025694, *4 (D.N.J.,
Oct. 15, 2007) (citing adverse impact clause in denying injunction to remove plaintiff who was being investigated
for assault from segregation); Silva v. Mayes, 2005 WL 1111230 (W.D.Wash., May 9, 2005), report and
recommendation adopted, 2005 WL 1377906 (W.D.Wash., June 3, 2005). But see McNearney v. Washington Dept.
of Corrections, 2012 WL 3545267, *16 (W.D.Wash., June 15, 2012) (finding “no evidence in this case that either

31

because the plaintiff has not exhausted administrative remedies.173 At least one court has held
that the presence of a preliminary injunction request does not permit bypassing the preliminary
screening process174 or even call for an expedited screening.175
E.

Special Masters

The use of special masters has been limited in prison conditions litigation,176 though that
provision’s effect has been blunted by holdings that it does not apply to monitors or other court
agents that lack quasi-judicial powers.177 Nor does it displace the courts’ pre-existing equitable
authority to appoint a receiver.178 In addition, courts have held that the appointment of a special
master or monitor, and instructions to such an agent, do not constitute prospective relief.179
F.

Punitive Damages as Prospective Relief

Prospective relief is defined as “all relief other than compensatory money damages.”180
Applying this language literally would mean that punitive damages are prospective relief under
the PLRA. One federal appeals court has held just that, and that after a plaintiff’s verdict the
district court should have determined whether the jury’s punitive damage award was necessary
and in the proper amount to deter future violations.181 The court did not comment on the
potential Seventh Amendment problem its holding presents, since it calls for reexamination of

public safety or operation of the criminal justice system is impacted” by injunction requiring medical treatment),
report and recommendation adopted, 2012 WL 3545218 (W.D.Wash., Aug. 16, 2012), modified, 2013 WL 392489
(W.D.Wash., Jan. 31, 2013).
173
See § IV.H, below, for a more extensive discussion of this and related points.
174
See § IX, below.
175
Taylor v. Carter, 2013 WL 5754951, *2 (E.D.Cal., Oct. 23, 2013) (noting screening backlog in district;
“Petitioner's case will be screened in due course and appropriate orders will issue.”; preliminary injunction motion
dismissed).
176
18 U.S.C. § 3626(f); see Balla v. Idaho State Bd. of Correction, 2011 WL 108727, *2 (D.Idaho, Jan. 6, 2011)
(appointing special master to help resolve case pending 30 years); Roberts v. County of Mahoning, 495 F.Supp.2d
670, 692 (N.D.Ohio 2005) (finding case of overcrowded and understaffed jail sufficiently complex to warrant
appointment of a special master); see also Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (noting that the PLRA
has “substantially limited” the use of special masters in prison litigation), cert. denied, 540 U.S. 1110 (2004). Cf.
McCormick v. Roberts, 2012 WL 1448274, *2 (D.Kan., Apr. 26, 2012) (noting special masters are now permitted
only at the remedial stage).
177
Benjamin v. Fraser, 343 F.3d 35, 44 (2d Cir. 2003) (holding that a court monitor without quasi-judicial powers
was not a special master for PLRA purposes and that the PLRA special master provisions did not apply to preexisting court agents); accord, Handberry v. Thompson, 446 F.3d 335, 351-52 (2d Cir. 2006) (applying Benjamin
holding to find “special monitor” in jail education case not governed by PLRA special master provisions); Laube v.
Campbell, 333 F.Supp.2d 1234, 1239 (M.D.Ala. 2004) (applying Benjamin holding to find a “healthcare monitor”
not governed by PLRA special master provisions); Hadix v. Caruso, 465 F.Supp.2d 776, 810-11 (W.D.Mich. 2006)
(creating Office of Independent Monitor over medical care system without reference to special master provision),
amended on reconsideration, 2007 WL 162279 (W.D.Mich., Jan. 16, 2007), remanded on other grounds, 2007 WL
2753026 (6th Cir. 2007) (per curiam).
178
Plata v. Schwarzenegger, 603 F.3d 1088, 1093-96 (9th Cir. 2010).
179
See nn. 72-74, above.
180
18 U.S.C. § 3626(g)(7).
181
Johnson v. Breeden, 280 F.3d 1308, 1325 (11th Cir. 2002).

32

the jury’s judgment about the need for deterrence,182 and why it did not hold that the jury should
be instructed to apply the PLRA standards.
There are other good reasons to think Johnson is wrong. One of them is simply the
disparity between its holding and the ordinary usage of “prospective relief” to denote injunctive
and declaratory relief.183 Johnson acknowledged that argument but responded that “where the
statutory language provides an explicit definition we apply it even if it differs from the term’s
ordinary meaning.”184 However, the rest of the relevant statutory language is clearly directed at
injunctive relief. “Narrowly drawn” and “least intrusive” are the language of injunctive
jurisprudence and not damages.185 The stricture that “[t]he court shall not order any prospective
relief that requires or permits a government official to exceed his or her authority under State or
local law or otherwise violates State or local law, unless . . .”186 makes no sense applied to an
award of damages. The same is true of the provisions for termination of prospective relief.187
While it may be technically accurate to describe punitive damages as “prospective” in the sense
that their purpose is deterrent and therefore future-oriented, the notion that Congress would
attempt to legislate restrictions on them without naming them, employing language not
previously made applicable to them, is simply implausible. In my view, this holding invokes the
Supreme Court’s warning that “interpretations of a statute which would produce absurd results
are to be avoided if alternative interpretations consistent with the legislative purpose are
available.”188
To date there is little law actually applying the Johnson holding.189 However, one district
court has surpassed Johnson’s absurdity by holding that the prospective relief provisions abolish
punitive damages altogether in prison cases.190
182

See generally Smith v. Wade, 461 U.S. 30, 33 (1983) (noting jury was charged that punitive damages should be
assessed in “such sum as you believe will serve to punish that defendant and to deter him and others from like
conduct.”).
183
See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 170 (1996) (distinguishing “prospective relief” from
“retrospective monetary relief”); Landgraf v. USI Film Products, 511 U.S. 244, 273-74 (1994) (majority opinion)
and id. at 293 (dissenting opinion) (clearly using “prospective relief” to refer to injunctions); Franklin v. Gwinnett
County Public Schools, 503 U.S. 60, 75-76 (1992) (distinguishing prospective relief, an equitable remedy, from
monetary relief).
184
Id. at 1325 (citing Stenberg v. Carhart, 530 U.S. 914, 942 (2000)).
185
One court has observed: “At first blush, it seems that one can neither ‘narrowly draw’ punitive damages, not
adjust them to better ‘correct’ a violation of rights, nor render them any more or less ‘intrusive.’” Tate v.
Dragovich, 2003 WL 21978141, *6 n.7 (E.D.Pa., Aug. 14, 2003).
186
18 U.S.C. § 3626(a)(1)(B).
187
18 U.S.C. § 3626(b).
188
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982); see Benjamin v. Jacobson, 172 F.3d 144, 192 (2d
Cir. 1999) (in banc) (concurring opinion) (stating “a legislature can tell us to treat a banana the same way as an
apple. But if it seems to say that a banana is an apple, we should not hesitate to try to figure out what it really meant
to say”). But see Robbins v. Chronister, 435 F.3d 1238, 1241-44 (10th Cir. 2006) (rejecting absurdity doctrine in
connection with another PLRA provision).
189
One court concluded that Johnson supplemented rather than supplanted existing punitive damages law, and held
that a $10,000 punitive damages award satisfied Johnson in a case where $1.00 in compensatory damages had been
awarded for a “conniving and malicious” series of actions designed to retaliate for a prisoner’s use of the grievance
system. Tate v. Dragovich, 2003 WL 21978141, *6-7 (E.D.Pa., Aug. 14, 2003). The PLRA’s restrictions on
compensatory damages in cases involving mental or emotional injury, 42 U.S.C. § 1997e(e), justify such
disproportions between compensatory and punitive damages. Id., *9.
In Hudson v. Singleton, 2006 WL 839339 (S.D.Ga., Mar. 27, 2006), a jury awarded $1000 actual damages
and $10,000 in punitive damages against each of two officers in a use of force case. The court rejected defendants’

33

IV.

Exhaustion of Administrative Remedies
A.

The Statutory Requirement

The most-litigated provision of the PLRA is its exhaustion requirement, which provides:
“No action shall be brought with respect to prison 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.”191 However, the litigation is
almost entirely about the statute’s interpretation and application; the exhaustion requirement is
not facially unconstitutional.192
The Supreme Court has stated: “Beyond doubt, Congress enacted § 1997e(a) to reduce
the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded
corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.”193 The PLRA’s mandatory exhaustion requirement replaced the
former discretionary approach to exhaustion194 and, according to the Supreme Court, rendered

argument that the punitive award would have no deterrent effect because neither defendant was employed by the
prison system any longer, and the assaulter had been suspended and his pay docked for entering a prisoner’s cell in
violation of prison procedure. The court noted the jury’s apparent view that a punitive award was necessary to
punish or deter the officer’s actions, and that the administrative punishment was for violation of prison procedure
and not excessive force. It stated that the award might not deter these defendants but might well deter other
employees from using excessive force. The court concluded that a punitive award is “the least intrusive means
necessary to correct a correctional officer’s use of excessive force” under the circumstances, though it reduced the
award against the less culpable officer on non-PLRA grounds. 2006 WL 839339, *2; accord, Benton v. Rousseau,
940 F.Supp.2d 1370, 1379-80 (M.D.Fla. 2013) (awarding $15,000 in punitives in excessive force case as a deterrent
against defendants who no longer worked for the jail, noting the jail had not investigated or punished them); In
Rieara v. Sweat, 2007 WL 853465, *5-6 (S.D.Ga., Mar. 16, 2007), the court declined to dismiss a claim for punitive
damages on the ground that its propriety is initially for the trier of fact, subject to subsequent court review under the
Johnson v. Breeden rule.
190
Margo v. Bedford County, 2008 WL 857507, *10 (W.D.Pa., Mar. 31, 2008); accord, Crockett v. Miller, 2014
WL 585887, *4 (W.D.Pa., Feb. 14, 2014) (“Since by definition punitive damages are not compensatory damages
and do not ‘correct a violation’ of a plaintiff's rights, but rather are punishment for a defendant's wrongdoing, they
are precluded.”).
191
42 U.S.C. § 1997e(a).
192
Williams v. Wright, 2010 WL 1904570, *3-4 (S.D.Ga., Mar. 25, 2010), report and recommendation adopted,
2010 WL 1904563 (S.D.Ga., May 10, 2010).
193
Porter v. Nussle, 534 U.S. 516, 524-25 (2002); accord, Jones v. Bock, 549 U.S. 199, 219 (2007) (“We have
identified the benefits of exhaustion to include allowing a prison to address complaints about the program it
administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and
improving litigation that does occur by leading to the preparation of a useful record.”)
194
Salahuddin v. Mead, 174 F.3d 271, 274 n. 1 (2d Cir. 1999).
Exhaustion of available remedies has been held mandatory under the PLRA even if state law or prison rules
seem to make it optional. See Short v. Greene, 577 F.Supp.2d 790, 793 & n.4 (S.D.W.Va. 2008); accord, Ferrell v.
Miller, 2014 WL 131067, *3 (S.D.W.Va., Jan. 10, 2014); Wade v. Spencer, 2014 WL 51235, *3 (N.D.W.Va., Jan. 7,
2014) (same as Short v. Greene); Brandon v. Davis, 2010 WL 2985957, *1 (S.D.Miss., July 27, 2010) (holding
policy that said prisoners “may” file grievances was not optional; “the issue is what is required by the PLRA.”),
certificate of appealability denied, 2010 WL 3025136 (S.D.Miss., July 27, 2010); Short v. Walls, 2010 WL 839430,
*4 (S.D.W.Va., Mar. 5, 2010), aff’d, 412 Fed.Appx. 565 (4th Cir. 2011). But see In re Bayside Prison Litigation,
190 F.Supp.2d 755, 771-72 (D.N.J. 2002). In that case, the court held that a process that had no authority except to
“make recommendations for change,” and that prison officials asserted was optional and not mandatory and was not
intended to modify or restrict access to the judicial process, need not be exhausted. The court appeared to be
concerned mainly with the character of the remedy. See also Taber v. McCracken County, 2008 WL 4500859, *2

34

inapplicable “traditional doctrines of administrative exhaustion, under which a litigant need not
apply to an agency that has ‘no power to decree . . . relief,’ [citation omitted], or need not
exhaust where doing so would otherwise be futile.”195 Thus, the fact that prior grievance
decisions or standing prison policy seem to dictate the response does not justify nonexhaustion.196 However, the Court has more recently stated that the statutory term “exhausted”
has the same meaning as in administrative law,197 and it has drawn on the understanding of the
term in habeas corpus as well,198 leading one Justice to suggest that the exceptions to exhaustion
requirements recognized in those bodies of law should apply as well under the PLRA. 199 The
Court has done nothing yet to resolve the tension between these decisions.
The Supreme Court has cautioned in its most recent PLRA decision against judicial
embellishment of the exhaustion requirement, holding that the PLRA’s scheme for prison
litigation does not displace usual litigation practices, under the Federal Rules of Civil Procedure
or otherwise, and that the exhaustion requirement may not be enhanced based on judges’ policy
views.200

(W.D.Ky., Sept. 30, 2008) (procedure not stated to be mandatory or required to preserve the right to sue, and not the
exclusive means described to prisoners to solve their problems, would not be an “available” remedy).
Courts have differed over whether appeals are mandatory under the PLRA if characterized as optional
under the grievancy policy. See nn. 473-475, below.
195
Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); accord, Porter v. Nussle, 534 U.S. at 523-24; Boyd v.
Corrections Corporation of America, 380 F.3d 989, 998 (6th Cir. 2004) and cases cited (holding that prisoners’
subjective belief the process will be unresponsive does not excuse exhaustion), cert. denied, 544 U.S. 920 (2005);
Alexander v. Tippah County, Miss., 351 F.3d 626, 630 (5th Cir. 2003), cert. denied, 541 U.S. 1012 (2004); Jefferson
v. Corizon Health Care Providers, 2013 WL 3924095, *3 (M.D.Tenn., July 29, 2013) (holding plaintiff’s belief the
process was “crooked” did not excuse his abandoning it), report and recommendation adopted, 2013 WL 5236759
(M.D.Tenn., Sept. 17, 2013); Myers v. City of New York, 2012 WL 3776707, *4-5 (S.D.N.Y., Aug. 29, 2012),
aff’d, 529 Fed.Appx. 105 (2d Cir. 2013) (unpublished); Brown v. Brown, 2012 WL 2116575, *3 (E.D.Cal., June 6,
2012) (holding claim against Governor concerning prison staffing must be exhausted even though Governor doesn’t
work in the prison), report and recommendation adopted, 2012 WL 3886103 (E.D.Cal., Sept. 6, 2012); Aldin v.
Workman, 2010 WL 1444879, *4 (S.D.Ill., Mar. 17, 2010) (holding fact that plaintiff’s Ramadan-related grievance
could not be completed before Ramadan was over, and his feeling that he was dealing with “dictators,” did not
excuse non-exhaustion), report and recommendation adopted, 2010 WL 1444877 (S.D.Ill., Apr. 9, 2010); Camino v.
Scott, 2006 WL 1644707, *5-6 (D.N.J., June 7, 2006) (holding plaintiff’s belief that officials were “circl[ing] the
wagons” did not excuse failure to file a grievance).
196
Murray v. Arizona Dept. of Corrections, 2007 WL 2069831, *2 (D.Ariz., July 13, 2007) (regulation forbidding
lowering classification of death row prisoners did not excuse failure to appeal from a reclassification hearing
decision); Morrow v. Goord, 2005 WL 1159424, *3 (W.D.N.Y., May 17, 2005) (prior adverse grievance rulings did
not excuse non-exhaustion). But see Rose v. First Correctional Medical, 2007 WL 2873441, *4-5 (D.Del., Sept. 28,
2007) (refusing to dismiss where prisoner who had been told he had six months to live and it was a waste of time to
treat him did not appeal his grievance decision sending him back to the same practitioner who had refused to treat
him previously).
197
Woodford v. Ngo, 548 U.S. 81, 93 (2006).
198
Woodford, 548 U.S. at 92.
199
Id., 548 U.S. at 103-04 (Breyer, J., concurring); see § IV.E.7, below, concerning this point.
200
Jones v. Bock, 549 U.S. 199 (2007). In Jones, the Court held that exhaustion is not a pleading requirement, since
pleading is governed by the Federal Rules and they had not been amended to require exhaustion pleading. 549 U.S.
at 212. It also rejected the “total exhaustion” rule on the ground that the usual practice of litigation is to dismiss bad
claims but retain good ones. 549 U.S. at 221-24.

35

Though the PLRA exhaustion requirement is mandatory, it is not absolute, and the
Supreme Court has confirmed the view of most circuits that it is not jurisdictional.201 Most
circuits to consider the question have held that courts therefore can apply doctrines of waiver,
estoppel, and equitable tolling to excuse failure to exhaust.202 The Supreme Court has held that
non-exhaustion is an affirmative defense to be raised by defendants; 203 it follows that the defense
can be waived by failure to do so, as the Second Circuit had already held. 204 The Second Circuit
has also held that “special circumstances” may justify failure to exhaust and allow the prisoner to
proceed without exhaustion if remedies are no longer available. 205 It has suggested, in
considering these responses to a defense of non-exhaustion, that courts ought first to consider
any argument that administrative remedies were not available,206 which makes sense because a
finding that no remedies were available ends the inquiry as to exhaustion. Estoppel and special
circumstances arguments are more complex.207 These holdings are discussed in more detail in
appropriate sections below. The Supreme Court decision in Woodford v. Ngo,208 with its
subsequent adoption of a “proper exhaustion” requirement enforced by a procedural default rule,
appears to have had limited effect on that body of law.209
The Supreme Court has held that the provisions of the prison grievance or other remedial
procedure govern what steps a prisoner must take to exhaust.210 However, the scope and
applicability of PLRA provisions are questions of federal law determined by the language of the
statute regardless of contrary provisions in prison policy.211

201

Woodford v. Ngo, 548 U.S. at 101; accord, Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674,
677-78 (4th Cir. 2005); Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208 (10th Cir. 2003), cert. denied, 543
U.S. 925 (2004) and cases cited; Richardson v. Goord, 347 F.3d 431, 433-34 (2d Cir. 2003). Even now, some
government litigants have not gotten the message. Lineberry v. Federal Bureau of Prisons, 923 F.Supp.2d 284, 292
(D.D.C. 2013) (rejecting argument based on jurisdiction).
202
Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999); accord, Hemphill
v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (waiver and estoppel); Wright v. Hollingsworth, 260 F.3d 357, 358
n.2 (5th Cir. 2001) (reiterating Underwood holding after Booth v. Churner); Foulk v. Charrier, 262 F.3d 687, 697
(8th Cir. 2001); see generally §§ IV.G.3, below, concerning estoppel, § IV.D.2, concerning waiver, and nn. 874-878,
1156-1157 concerning equitable tolling.
203
Jones v. Bock, 549 U.S. 199, 213-17 (2007).
204
See Handberry v. Thompson, 446 F.3d 335, 342-43 (2d Cir. 2006) (finding waiver); Johnson v. Testman, 380
F.3d 691, 695-96 (2d Cir. 2004) (finding waiver); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (directing
court on remand to determine whether exhaustion had been waived); see § IV.D.2, below.
205
Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004); accord, Brownell v. Krom, 446 F.3d 305, 311-13 (2d Cir.
2006).
206
Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004).
207
An estoppel argument may have different results for different defendants depending on their involvement in the
conduct on which the argument is based, though it is not yet certain whether that is the case. See § IV.G.3, below;
see also Lewis v. Washington, 300 F.3d 829, 834-35 (7th Cir. 2002) (declining to apply equitable estoppel where the
defendants did not affirmatively mislead the plaintiff). An argument of justification, if accepted, will require
consideration of whether remedies that were once available remain available. Brownell v. Krom, 446 F.3d 305, 313
(2d Cir. 2006); Giano v. Goord, 380 F.3d 670, 679-80 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680, 690-91
(2d Cir. 2004).
208
548 U.S. 81 (2006).
209
See §§ IV.E.7 and IV.E.8, below.
210
Jones v. Bock, 549 U.S. 199, 218-19 (2007).
211
Bisgeier v. Michael [sic] Dept. of Corrections, 2008 WL 227858, *4 (E.D.Mich., Jan. 25, 2008) (parolees were
not required to exhaust even though they were covered by grievance procedures).

36

B.

What Cases Must Be Exhausted?
1. Scope of the Statute

The exhaustion requirement applies to prisoners’ “action[s] . . . brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner. . . .”212
Its terms are not restricted to “civil actions” as are some other PLRA provisions.213 However,
the Second Circuit has stated in dictum, and other courts have held, that the PLRA exhaustion
requirement does not apply to habeas corpus actions.214 Such a proceeding would still be subject
to the habeas corpus exhaustion requirement, which is arguably more rigorous.215 Decisions are
mixed on whether a motion by the defendant in a criminal proceeding that affects prison
conditions requires exhaustion.216 Prisoners’ challenges to prison conditions under federal
statutes (e.g., the Americans with Disabilities Act) must be exhausted under the PLRA even if
the ADA or other statute itself does not require exhaustion.217 A suit filed under the general

212

42 U.S.C. § 1997e(a). The meaning of the term “prisoner” is discussed in § II, above.
Compare, e.g., 42 U.S.C. § 1997e(e) (restricting civil actions for mental or emotional injury); 28 U.S.C. §
1915(a) (requiring filing fees of indigent prisoners in civil cases).
214
Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632-34 (2d Cir. 2001); accord, Zuspan v. O'Brien, 2013 WL
6805574, *4 (N.D.W.Va., Dec. 20, 2013); Dominguez v. Adler, 2010 WL 121112, *3 n.2 (E.D.Cal., Jan. 7, 2010)
(dictum); Lewis v. Whitehead, 2006 WL 3359639, *2 (D.S.D., Nov. 15, 2006); Monahan v. Winn, 276 F.Supp.2d
196, 204 (D.Mass. 2003). Occasionally a court gets this wrong, see, e.g., Yannucci v. Stansberry, 2009 WL
2421546, *3 (E.D.Va., July 28, 2009), and some decisions cite habeas and PLRA authority interchangeably. See,
e.g., Sines v. Caley, 2013 WL 5951523, *4 (D.Colo., Nov. 7, 2013), reconsideration denied, 2013 WL 6049822
(D.Colo., Nov. 15, 2013); Russell v. Caraway, 2012 WL 5510999, *4-5 (D.Md., Nov. 13, 2012); Nichols v.
Gonzales, 2012 WL 4849015, *1 (E.D.N.C., Oct. 11, 2012).
215
See Carmona, 243 F.3d at 633-34; U.S. v. Basciano, 369 F.Supp.2d 344, 348 (E.D.N.Y. 2005); see also
Muhammad v. Close, 540 U.S. 749, 751 (2005) (suggesting the PLRA exhaustion requirement is a “lower gate” than
the habeas requirement). On the other hand, the common law exhaustion rules that a court would apply in habeas
corpus proceedings arising from prison administrative matters allow a number of exceptions, including futility,
which may not be available under the PLRA, see Putnam v. Winn, 441 F.Supp.2d 253, 255-56 (D.Mass. 2006)
(noting that habeas exhaustion could be waived by court); Perez v. Zenk, 2005 WL 990696, *2 (E.D.N.Y., Apr. 11,
2005) (acknowledging futility and irreparable harm exceptions, though ruling adversely on merits), and also permit
district courts some generalized discretion to excuse non-exhaustion. See Zuspan v. O'Brien, 2013 WL 6805574,
*4, 8 (N.D.W.Va., Dec. 20, 2013) (waiving exhaustion in habeas proceeding on the ground that the case is ripe for
decision and dismissing would be a waste of judicial resource); see also nn. 726-728, below, for conflicting
Supreme Court dicta and separate opinions on this subject.
216
See n. 60, above. At least one court has held that such requests may not be entertained in a criminal action, since
they should be exhausted, and since the United States—the adverse party in a federal prosecution—may not have
authority over the criminal defendant’s custody. U.S. v. Luong, 2009 WL 2852111, *2 (E.D.Cal., Sept. 2, 2009)
(rejecting requests for orthopedic boots and jail law library visits).
217
O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060-61 (9th Cir. 2007) (holding there is no exception
to PLRA exhaustion for the ADA); Carlson v. Parry, 2012 WL 1067866, *12 (W.D.N.Y., Mar. 29, 2012); Spires v.
Burgos, 2006 WL 2802004, *1 (S.D.Ga., Sept. 28, 2006); Miller v. Wayback House, 2006 WL 297769, *5
(N.D.Tex., Feb. 1, 2006), aff’d, 253 Fed.Appx. 399 (5th Cir. 2007); Kearns v. Johnson County Adult Detention
Center, 2006 WL 148889, *2 (D.Kan., Jan. 19, 2006); McClure v. Oregon Dept. of Corrections, 2005 WL 425469,
*7 (D.Or., Feb. 23, 2005) and cases cited; Chamberlain v. Overton, 326 F.Supp.2d 811, 815-16 (E.D.Mich. 2004).
The exhaustion required by the PLRA would be exhaustion of the prison grievance system or other internal
complaint system. In New York, prison officials were partially successful in arguing that the ADA requires
exhaustion of the Department of Justice disability complaint procedure and the prison grievance system, though they
subsequently withdrew that argument. See nn. 929-935, below.
213

37

federal question jurisdiction statute, 28 U.S.C. § 1331, raising federal constitutional claims must
be exhausted.218
A motion to enforce the terms of a judgment is not a separate “action” requiring
exhaustion,219 nor is a request for further relief in already-filed litigation.220 Exhaustion will be
required if a prisoner seeks relief about matter not already part of the case,221 or if a non-party
seeks to intervene in an already filed case.222 Decisions are mixed with respect to motions for
conditions-related relief made under the caption of a criminal prosecution.223
The exhaustion requirement applies generally to private prisons and jails and to private
contractors operating in prisons and jails,224 although particular grievance systems may not be
available remedies in such cases because they exclude private contractors and their employees
from coverage, in terms or in practice.225
The phrase “under section 1983 . . . or any other Federal law” would appear to
encompass all federal question cases including those filed in state court and then removed,226 but

218

Vaughn v. Butcher, 2011 WL 4344206, *1, 3 (E.D.Tex., Sept. 14, 2011).
Ranke v. County of Saginaw, 2013 WL 3944472, *3 (E.D.Mich., July 31, 2013) (holding contempt motion based
on earlier consent judgment need not be exhausted); Clark v. California, 739 F.Supp.2d 1168, 1232 (N.D.Cal. 2010);
Clarkson v. Coughlin, 2006 WL 587345, *3 (S.D.N.Y., Mar. 10, 2006); Arce v. O’Connell, 427 F.Supp.2d 435,
440-41 (S.D.N.Y. 2006); see Green v. Peters, 2000 WL 1230246, *5 (N.D.Ill., Aug. 24, 2000) (when defendants
move to terminate a judgment, plaintiffs need not exhaust in order to contest the motion).
220
Coleman v. Schwarzenegger, 2008 WL 4813371, *2 (E.D.Cal., Nov. 3, 2008); see § IV.E.5, below, for a related
discussion. One court has also held that a motion for a preliminary injunction in an already-filed case seeking
improved attorney-client access is not a civil action requiring exhaustion. Ayyad v. Gonzales, 2008 WL 2955964,
*2 (D.Colo., July 31, 2008) (challenge to “Special Administrative Measures”).
221
Andreas v. Cate, 2009 WL 3817467, *2 (E.D.Cal., Nov. 13, 2009) (motion for injunctive relief about nonrenewal of medication, filed in case about exposure to excessive heat, dismissed for non-exhaustion); Williams v.
Blagojevich, 2009 WL 3579019, *1 (S.D.Ill., Oct. 27, 2009) (claim of retaliation for filing instant lawsuit must be
exhausted and filed separately).
222
Georgacarakos v. Wiley, 2009 WL 1594800, *4-5 (D.Colo., Mar. 23, 2009).
223
See n. 60, above.
224
See n. 10, above; Baker v. Allen, 2006 WL 2226351, *6 (D.N.J., Aug. 3, 2006) (holding exhaustion requirement
applies to private medical contractor); see also Pri-Har v. Corrections Corp. of America, Inc., 154 Fed.Appx. 886,
888, 2005 WL 3087891, *2 (11th Cir., Nov. 18, 2005) (unpublished) (holding a federal prisoner in a private prison
must exhaust the private prison’s remedy system, not the Bureau of Prisons’). Compare Watkins v. Corrections
Corporation of America, 2006 WL 581243, *1 (N.D.Ohio, Mar. 8, 2006) (stating it is “likely” that federal prisoner
in a private prison must use the federal prisoners’ grievance procedure; dismissing on that basis) with Benavidez v.
Stansberry, 2008 WL 4279559, *2 (N.D.Ohio, Sept. 12, 2008) (federal prisoner in private prison must use that
prison’s grievance system, not federal Bureau of Prisons system).
225
See Calhoun v. Horning, 2009 WL 2913418, *2-3 (D.Md., Sept. 2, 2009) (holding state grievance system was not
intended to provide a remedy against private health care contractors, so contractors could not raise the exhaustion
defense) (citing Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 753 A.2d 501 (Md. 2000)); accord,
Wallace v. Corizon Medical Services, 2013 WL 6815671, *5 n.2 (D.Md., Dec. 18, 2013); Wilson v. Maryland Div.
of Corrections, 2011 WL 2118956, *2 n.4 (D.Md., May 25, 2011); Marshall v. Friend, 2010 WL 2367360, *1 n.1
(D.Md. June 9, 2010); see also nn. 242, 1006-1008, citing additional relevant case law.
226
See Johnson v. State of La. ex rel. Dep’t of Public Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006) (“The
PLRA’s exhaustion requirement applies to all Section 1983 claims regardless of whether the inmate files his claim
in state or federal court.”); Gibbs v. Ozmints, 2010 WL 2926164, *7 (D.S.C., July 23, 2010) (applying exhaustion
requirement to constitutional claim filed in state court not under § 1983), aff’d, 421 Fed.Appx. 272 (4th Cir. 2011)
(unpublished); Blakely v. Ozmint, 2006 WL 2850545, *2 (D.S.C., Sept. 29, 2006) (applying exhaustion requirement
in § 1983 action removed from state court based on federal question); Hodge v. Louisville/Jefferson County Metro
219

38

not state law cases removed to federal courts under their diversity jurisdiction, since the latter are
not “brought” under “Federal law” as the statute prescribes. State law claims brought in
conjunction with federal claims cannot be dismissed for non-exhaustion under the PLRA,227
though the plaintiff must have satisfied any state law exhaustion requirement.228
One court has rejected the argument that it denies equal protection to apply the
exhaustion requirement to claims of sexual assault of juvenile prisoners, since it requires them to
put their consent to sex with an adult at issue, contrary to state statutes and common law. 229
Another court has held that it is not unconstitutional to require a prisoner who has been read his
or her Miranda rights to file grievances in order to pursue litigation about that incident.230
2. “Prison Conditions”
Prisoners are required to exhaust cases if they involve “prison conditions.” That phrase
applies “to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” 231 So prior
Jail, 2006 WL 1984723, *4 (W.D.Ky., July 12, 2006) (same); Alexander v. Walker, 2003 WL 297536, *2 (N.D.Cal.,
Feb. 10, 2003) (same).
227
Davis v. Abercrombie, 2013 WL 1568425, *9 (D.Haw., Apr. 11, 2013), reconsideration denied, 2013 WL
2468356 (D.Haw., June 6, 2013); Ayala v. Dhaliwal, 2013 WL 957590, *4 (D.Or., Mar. 11, 2013); Edison v. GEO
Group, 2013 WL 459891, *2 (E.D.Cal., Feb. 4, 2013); Lino v. Celaya, 2012 WL 4793115, *2 (S.D.Cal., Oct. 9,
2012); Wright v. Carrasco, 2012 WL 1094446, *4 (N.D.Cal., Mar. 30, 2012); Johnson v. Thaler, 2010 WL 3543266,
*14 (S.D.Tex., Sept. 10, 2010); Baker v. County of Sonoma, 2010 WL 1038401, *20 (N.D.Cal., Mar. 19, 2010); B
v. Duff, 2009 WL 2147936, *8 (N.D.Ill., July 17, 2009); Labat v. Louisiana Community and Technical College
System, 2009 WL 1181267, *2 (M.D.La., May 1, 2009); Grajeda v. Horel, 2009 WL 302708, *3 (N.D.Cal., Feb. 6,
2009); Hagopian v. Smith, 2008 WL 3539256, *3 (E.D.Mich., Aug. 12, 2008); Shaheed-Muhammad v. Dipaolo,
393 F.Supp.2d 80, 92 n.5 (D.Mass. 2005); Torres v. Corrections Corp. of America, 372 F.Supp.2d 1258, 1262
(N.D.Okla. 2005); Artis-Bey v. District of Columbia, 884 A.2d 626, 631 (D.C. 2005).
228
Hudson v. Spencer, 2013 WL 5305086, *12 (D.Mass., July 31, 2013) (noting state had passed its own exhaustion
requirement); Martinez v. California, 2009 WL 649892, *2-3 (E.D.Cal., Mar. 11, 2009) (holding plaintiff’s
supplemental tort claims required notice of claim, not prison grievance, under state law); Hendon v. Baroya, 2006
WL 1791349, *2 (E.D.Cal., June 27, 2006) (noting that plaintiff must satisfy any state law exhaustion requirement
to pursue a state law claim in federal court), report and recommendation adopted, 2008 WL 482868 (E.D.Cal., Feb.
20, 2008).
229
B v. Duff, 2009 WL 2147936, *12 (N.D.Ill., July 17, 2009).
230
Brewer v. Corrections Corp. of America, 2010 WL 398979, *4 (E.D.Ky., Jan. 27, 2010), motion to amend
denied, 2010 WL 2464967 (E.D.Ky., June 15, 2010).
231
Porter v. Nussle, 534 U.S. 516, 532 (2002); see, e.g., Cutter v. Wilkinson, 544 U.S. 709, 723 n. 12 (2005) (noting
claims under Religious Land Use and Institutionalized Persons Act must be exhausted); Krilich v. Federal Bureau of
Prisons, 346 F.3d 157, 159 (6th Cir. 2003) (holding that intrusions on attorney-client correspondence and telephone
conversations are prison conditions notwithstanding argument that attorney-client relationship “transcends the
conditions of time and place”); U.S. v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (holding that statutorily
required collection of DNA is a prison condition), cert. denied, 540 U.S. 1136 (2004); Castano v. Nebraska Dept. of
Corrections, 201 F.3d 1023, 1024 (8th Cir. 2000) (holding the failure to provide interpreters for Spanish-speaking
prisoners is a prison condition), cert. denied, 531 U.S. 913 (2000); Creech v. Reinke, 2012 WL 1995085, *5-9
(D.Idaho, June 4, 2012) (holding method of executing capital prisoners is a prison condition), appeal dismissed, No.
12-35453 (9th Cir., June 5, 2012); Woltz v. FCI Beckley, 2011 WL 4916102, *2-3 (S.D.W.Va., Oct. 17, 2011)
(holding complaint that prison staff improperly required inmates to name the prison as their place of residence for
the Census was about prison conditions); Searcy v. U.S., 668 F.Supp.2d 113, 121 (D.D.C., Nov. 9, 2009) (discipline
of prisoner for allowing another to use his telephone account was about prison conditions despite claim that it was
about “monies held in the Treasury”); Voits v. Washington County, 2009 WL 2392953, *2 (D.Or., July 29, 2009)
(allegation of removal of funds from prisoner’s account after disciplinary proceeding was about prison conditions);
Pryor v. Harper, 2006 WL 2583302, *2 (S.D.Ohio, Sept. 7, 2006) (holding an order by prison officials that the

39

decisions holding that use of force cases are not about “prison conditions” and need not be
exhausted are no longer good law. (This is a non-issue in use of force cases arising in the New
York City jails, since prisoners cannot bring “complaints pertaining to an alleged assault” under
that system’s grievance procedure, and therefore that system is not “available” to persons suing
about assaults.232) The line of cases in the Second Circuit holding that the phrase “prison
conditions” encompasses only conduct “clearly mandated by a prison policy or undertaken
pursuant to a systemic practice”233 is now overruled. If it happened in prison, most likely it’s a
prison condition.234
There is some ambiguity about when events or circumstances during post-arrest
processing involve prison conditions.235 Complaints that arise in halfway houses or residential
treatment programs are likely to be considered as about prison conditions if the plaintiff is there

plaintiff cease all attempts to contact his son is a prison condition); Ray v. Evercom Systems, Inc., 2006 WL
2475264, *5 (D.S.C., Aug. 25, 2006) (holding antitrust suit about telephone service charges was about prison
conditions), appeal dismissed on other grounds, 234 Fed.Appx. 248 (5th Cir. 2007); Dennis v. Taft, 2004 WL
4506891, *4 (S.D.Ohio, Sept. 24, 2004) (holding challenge to execution procedures is about prison conditions; it
involves “the effects of actions by government officials on the lives of persons confined in prison.”); Johnson v.
Luttrell, 2005 WL 1972579, *3 (W.D.Tenn., Aug. 11, 2005) (“Plaintiff’s inability to obtain an application for an
absentee ballot in a timely manner is a ‘prison conditions claim.’”); Reid v. Federal Bureau of Prisons, 2005 WL
1699425, *3 (D.D.C., July 20, 2005) (holding Privacy Act claim about inaccuracy in prison records affecting
classification was about prison conditions); Salaam v. Consovoy, 2000 WL 33679670, *4 (D.N.J., Apr. 14, 2000)
(holding that failure to provide proper parole hearing is a prison condition); see also Allen v. Hickman, 407
F.Supp.2d 1098, 1102-03 (N.D.Cal. 2005) (dismissing a request for a stay of execution pending receipt of medical
care for non-exhaustion because relief concerning medical care was available administratively even if a stay of
execution was not).
232
Appendix C, New York City Dep’t of Correction Directive 3375R, Inmate Grievance Resolution Program at §
II.B (March 4, 1985); see Mojias v. Johnson, 351 F.3d 606, 608-10 (2d Cir. 2003). The current directive states:
“Inmate allegations of physical or sexual assault or harassment by either staff or inmates are not subject to the IGRP
process.” Appendix H, New York City Dep’t of Correction Directive 3376, Inmate Grievance and Request Program
at § IV.B.2.b
(http://www.nyc.gov/html/doc/downloads/pdf/Directive_3376_Inmate_Grievance_Request_Program.pdf).
233
Marvin v. Goord, 255 F.3d 40, 42-43 (2d Cir. 2001), overruled in pertinent part, Porter v. Nussle, 534 U.S. 516
(2002).
234
A rare exception to this rule of thumb is Ayyad v. Gonzales, 2008 WL 203420, *3 (D.Colo., Jan. 17, 2008),
vacated on reconsideration on other grounds, 2008 WL 2955964 (D.Colo., July 31, 2008), which holds that denial
of a prisoner’s ability to meet with clinical law students was not a matter of prison conditions, in part because the
administrative dictates were made by the Attorney General and the Bureau of Prisons had no authority to remove or
amend them.
235
One court has held, dubiously, that an arrestee who alleged he was beaten first in the hall of the jail, and second
as he was being placed in a cell, was not complaining about prison conditions because, under that Circuit’s law, the
line between arrest and detention or incarceration is drawn after arrest, processing, and significant periods of time in
detention. Roach v. Bandera County, 2004 WL 1304952, *5 (W.D.Tex., June 9, 2004). It is questionable whether
this holding is responsive to the language of 42 U.S.C. § 1997e(a), which is applicable to any prisoner “confined in
any jail, prison, or other correctional facility,” and 18 U.S.C. § 3626(g), which defines “prisoner” as anyone subject
to “incarceration, detention, or admission to any facility who is accused of . . . violations of criminal law.” Compare
Brewer v. Philson, 2007 WL 87625, *2 (W.D.Ark., Jan. 10, 2007) (holding that excessive force on arrest is not a
prison condition but excessive force after arrest in a jail holding cell is); Lofton v. Cleveland City Jail Institution
Guard Badge No. 3701, 2006 WL 3022989, *2 (N.D.Ohio, Oct. 23, 2006) (similar to Brewer); see Bowers v. City of
Philadelphia, 2007 WL 219651, *34 n.40 (E.D.Pa., Jan. 25, 2007) (holding that police holding cells were not prisons
for purpose of prisoner release provisions of PLRA). But see Khatib v. County of Orange, 639 F.3d 898, 902-05
(9th Cir. 2011) (holding court holding cells were “jails” and “detention facilities” under 42 U.S.C. § 1997e), , cert.
denied, 132 S.Ct. 115 (2011).

40

because of a criminal conviction or charge and is not free to leave. 236 However, several courts
have held that issues involving prisoners’ placement in or transfer from halfway houses or
“community corrections centers” are not about prison conditions.237
Cases involving agencies outside the prison system may not be “prison conditions” cases
even if the plaintiff is a prisoner. For example, an unpublished appellate decision holds that a
prisoner’s placement on a watch list by the Department of Homeland Security “occurred outside
the prison gates” and was not a prison condition, but the consequences of the classification
imposed in prison (segregated housing, telephone restrictions, etc.) were.238 Similarly, another
court held that claims against police officers based on an interrogation and a refusal to allow the
plaintiff to call an attorney were not prison conditions claims, even though the interrogation took
236

See Witzke v. Femal, 376 F.3d 744, 752-53 (7th Cir. 2004) (holding a probationer required to reside in an
“intensive drug rehabilitation halfway house” was “confined,” if not in a “jail [or] prison,” then in an “other
correctional facility,” and his complaint about his medical treatment there was therefore about “prison conditions”);
Miller v. Wayback House, 2006 WL 297769, *4 (N.D.Tex., Feb. 1, 2006) (holding claim about halfway house to
which plaintiff was released on parole was about prison conditions, citing Witzke, but failing to analyze whether
plaintiff was confined or whether facility was a correctional facility), aff’d, 253 Fed.Appx. 399 (5th Cir. 2007);
William G. v. Pataki, 2005 WL 1949509, *2-3 (S.D.N.Y., Aug. 12, 2005) (holding that question whether persons
incarcerated pending parole revocation proceedings were entitled to be placed in less restrictive residential treatment
programs for mental illness and chemical addition involved prison conditions); see nn. 12, 27, above, concerning
whether such institutions are “prisons” and their residents “prisoners.”
237
See Bost v. Adams, 2006 WL 1674485, *5 (S.D.W.Va., June 12, 2006) (holding challenge to a restriction on the
time a prisoner could serve in a community corrections center was not about prison conditions); Belk v. Federal
Bureau of Prisons, 2004 WL 5352260, *14 (W.D.Wis., Oct. 15, 2004) (challenge to transfer from prison camp to
halfway house involved a “quantum change” in level of custody and was not about prison conditions); Tristano v.
Federal Bureau of Prisons, 2004 WL 5284511, *12 (W.D.Wis., Oct. 15, 2004) (same as Belk); Monahan v. Winn,
276 F.Supp.2d 196, 204 (D.Mass. 2003) (holding that a Bureau of Prisons rule revision that abolished its discretion
to designate certain offenders to community confinement facilities did not involve prison conditions).
238
Almahdi v. Ridge, 2006 WL 3051791, *2 (3d Cir., Oct. 27, 2006) (unpublished); accord, Singh v. U.S. Dept. of
Homeland Sec., 2013 WL 1704296, *20-21 (E.D.Cal., Apr. 19, 2013) (holding Privacy Act suit about Department of
Homeland Security misinformation re immigration detainer need not be exhausted within Bureau of Prisons, which
could not do anything about this problem), report and recommendation adopted, 2013 WL 2474497 (E.D.Cal., June
7, 2013); see Boyd v. Driver, 579 F.3d 513, 514 n. 2 (5th Cir. 2009) (per curiam) (allegation of misconduct in
criminal prosecution arising from altercation in prison was not about prison conditions); Crooker v. U.S., 2010 WL
3860597, *8 & n.12 (D.Mass., Sept. 29, 2010) (where prisoner’s mail was opened at prosecutors’ behest, stating
claim was “about misconduct by a prosecutor in a criminal investigation, not a challenge to prison conditions”);
Afeworki v. Hubert, 2008 WL 3243950, *5 (W.D.Wash., Aug. 5, 2008) (claim against attorney, now in prosecutor’s
office, for interference with plaintiff’s litigation need not be exhausted); Pate v. Clerk of Court, 10th Judicial Circuit,
2008 WL 1885477, *3 (M.D.Fla., Apr. 28, 2008) (claim that plaintiff was mis-classified in prison as a sex offender
was subject to exhaustion requirement, but claim that he was mistreated in the community because of the erroneous
listing was not); Crumpton v. Finnin, 2007 WL 2697461, *6 (D.Colo., Sept. 11, 2007) (holding complaint about
seizure of property in connection with criminal proceedings is not about prison conditions); Lee v. U.S. Dep’t of
Justice, 235 F.R.D. 274, 290 (W.D.Pa., Mar. 30, 2006) (holding alleged violation of Privacy Act resulting in
plaintiff’s and his agents’ being unable to access his outside bank accounts for a year “did not relate to prison life”
and need not be exhausted); Johnson v. Quinn, 1999 WL 116222, *3 (N.D. Ill., Feb. 26, 1999) (holding prisoner’s
claim that prosecutors and investigators conspired to harm him in jail because he had information about official
corruption was not a prison conditions claim even though it had an impact on prison conditions, and the exhaustion
requirement did not apply to it). But see Farnworth v. Craven, 2007 WL 793397, *5 (D.Idaho, Mar. 14, 2007)
(where plaintiff sought a new parole hearing, stating “all state prisoner cases that are not classified as habeas corpus
cases” are “prison conditions” cases, though also holding grievance policy only had authority over actions of Board
of Correction and not Parole Commission).
Some grievance systems explicitly exclude from their coverage claims involving persons or agencies
outside the prison system. See § IV.G.1, below.

41

place in the jail.239 These outcomes make sense because if the people responsible are not prison
employees, the prison grievance system likely cannot do anything about the problem, and the
remedy is not really “available” within the meaning of the statute.240 Outcomes are mixed with
respect to complaints about outside medical facilities241 and private medical providers within the
prison.242
Cases challenging the legitimacy of incarceration itself are not about prison conditions.243
Courts have reached differing decisions on matters related to parole release or revocation.244 In
239

Battle v. Whetsel, 2006 WL 2010766, *3 n.4 (W.D.Okla., July 17, 2006). But see Adger v. Wynn, 2008 WL
4186865, *2 (W.D.La., Aug. 13, 2008) (allegation that cell was searched by a police detective should have been
exhausted; court does not explain how the remedy is “available” for someone who doesn’t work for the jail).
240
See § IV.G, below, concerning the definition of “available.”
241
In Borges v. Administrator for Strong Memorial Hosp., 2002 WL 31194558, *3 (W.D.N.Y., Sept. 30, 2002), the
court expressed doubt that a claim that injuries inflicted on prisoners by dentists at an outside hospital involved
“prison conditions,” citing the unlikelihood that the prison grievance system had any authority to take action on the
complaint. Contra, Schlicker v. McAdams, 2013 WL 271695, *1 (N.D.Tex., Jan. 23, 2013) (dismissing for nonexhaustion against outside medical provider); Middleton v. Falk, 2009 WL 666397, *6 (N.D.N.Y., Mar. 10, 2009)
(holding exhaustion required of complaint against private hospital and private physician, since they treated plaintiff
at the behest of the prison and the grievance system would give it an opportunity to correct deficiencies—court does
not explain how; court does not discuss phrase “prison conditions”); Abdur-Raqiyb v. Erie County Medical Center,
536 F.Supp.2d 299, 304 (W.D.N.Y., Feb. 21, 2008) (claim arising at an outside hospital was about prison conditions
because the statute is supposed to be read broadly and the plaintiff was clearly a prisoner); see Collins v. Federal
Bureau of Prisons, 2011 WL 1532041, *6 (C.D.Cal., Mar. 8, 2011) (rejecting argument that exhaustion was
“meaningless” with respect to outside hospital as plaintiff’s “subjective opinion”), report and recommendation
adopted, 2011 WL 1532027 (C.D.Cal., Apr. 21, 2011). Cf. Holtz v. Monsanto, Inc., 2006 WL 1596830, *1 (S.D.Ill.,
June 6, 2006) (holding prisoner’s claim of “negligence, strict products liability, “deceit and misrepresentation,” and
breach of express or implied warranties arising out of Defendants’ involvement with the product Aspartame,” was
not about prison conditions).
242
Stevens v. Goord, 2003 WL 21396665, *5 (S.D.N.Y., June 16, 2003) (holding that private corporation that
managed specialty care in prison and provided off-site acute hospital care for prisoners failed to meet its burden of
showing that the prison grievance procedure would actually have authority over claims against it), adhered to on
reargument, 2003 WL 22052978 (S.D.N.Y., Sept. 3, 2003). Contra, Giampaolo v. Bartley, 2010 WL 2574203, *4
(S.D.Ill., June 23, 2010) (holding private contractor did not “fall[] outside the grievance process,” since it was not in
terms excluded and prison system supervised medical provider pursuant to contract), report and recommendation
adopted, 2010 WL 2574203 (S.D.Ill., June 23, 2010).
243
Regelman v. Weber, 2011 WL 1085685, *3 (W.D.Pa., Mar. 21, 2011) (holding false arrest plaintiff “is
complaining about the very fact of confinement, not the conditions of confinement, and the PLRA does not apply to
such claims”); White v. Thompson, 2007 WL 628121, *2-3 (S.D.Ga., Feb. 26, 2007) (holding false imprisonment
claims not about prison conditions); Fuller v. Kansas, 2005 WL 1936007, *2 (D.Kan., Aug. 8, 2005) (holding claims
of false arrest and imprisonment are not prison conditions claims under the statute), aff’d, 175 Fed.Appx. 234 (10th
Cir. 2006); Wishorn v. Hill, 2004 WL 303571, *11 (D.Kan., Feb. 13, 2004) (holding detention without probable
cause is not a prison condition). But see Ates v. Terry, 2012 WL 3096065, *2 (M.D.Ga., June 29, 2012) (holding
claim of failure to release timely should have been exhausted because grievance policy makes release date
calculation grievable; not addressing “prison conditions” language), report and recommendation adopted, 2012 WL
3096063 (M.D.Ga., July 30, 2012).
244
Compare Coleman v. Dumeng, 2012 WL 467133, *3 (S.D.N.Y., Feb. 14, 2012) (challenge to parole condition is
not about prison conditions), appeal dismissed, No. 12-1168 (2d Cir., Aug. 20, 2012); Hernandez-Vazquez v. OrtizMartinez, 2010 WL 132343, *4 (D.P.R., Jan. 8, 2010) (delayed parole hearing is not a prison condition); GarciaDelgado v. Puerto Rico, 2009 WL 2168811, *2 (D.P.R., July 17, 2009) (failure to decide a parole application is not
a prison condition); L.H. v. Schwarzenegger, 519 F.Supp.2d 1072, 1081 n.9 (E.D.Cal., Sept. 19, 2007) (holding
parole violation procedures are not prison conditions); Swimp v. Rubitschun, 2006 WL 3370876, *6 n.1
(W.D.Mich., Nov. 20, 2006) (holding challenge to a parole decision was not about prison conditions); Valdivia v.
Davis, 206 F.Supp.2d 1068, 1074 n.12 (E.D.Cal. 2002) (holding that a challenge to parole revocation procedures
was not a “civil action with respect to prison conditions” under 18 U.S.C. § 3626(g)(2)) with Morgan v. Messenger,

42

any case, if the litigant is still incarcerated, he or she must pursue relief for unlawful confinement
via habeas corpus, which is not governed by the PLRA exhaustion requirement.245 One court has
suggested—wrongly, in my view—that “all state prisoner cases that are not classified as habeas
corpus cases are considered cases ‘regarding prison conditions,’ and are subject to the
administrative exhaustion requirement of § 1997e(a).”246 Even if that rule were accepted, it
would not entirely settle matters, since courts continue to differ about the precise line between
habeas and civil litigation with respect to placement in or removal from segregated housing.247
One court has held that a claim that prisoners with mental illness were discharged without
receiving psychiatric medication and referrals is not about prison conditions.248
C.

What Happens If the Plaintiff Has Failed To Exhaust?

Section 1997e(a) says that “No action shall be brought . . . until such administrative
remedies as are available are exhausted.”249 Although the statute is silent on this point, the
Second Circuit, consistently with most others, has held that claims not exhausted before filing
must generally be dismissed, even if exhaustion has been completed by the time the court
reaches the exhaustion question.250 Most courts have held that the exhaustion requirement, like
other PLRA provisions, applies to cases filed during confinement even if the plaintiff has
subsequently been released,251 but some have declined to dismiss in those circumstances.252
2003 WL 22023108 (D.N.H., Aug. 27, 2003) (holding that sex offender treatment director’s disclosure of private
information from plaintiff’s treatment file to parole authorities and prosecutor involved prison conditions, since the
director was a prison employee and the action affected the duration of his prison confinement); Salaam v. Consovoy,
2000 WL 33679670, *4 (holding that the failure to provide proper parole release hearings is a prison condition).
Salaam may be distinguishable from Valdivia on the ground that parole release hearings involve a process
commenced in prison, while parole revocation proceedings are commenced and are based on events that took place
outside prison. See also Farnworth v. Craven, 2007 WL 793397, *2-3 (D.Idaho, Mar. 14, 2007) (holding demand
for new parole hearing was about “prison conditions” because it need not be pursued via habeas corpus, though the
grievance system was not available because it had no authority over the Parole Commission).
245
See, e.g., Zapata v. Scibana, 2004 WL 1563239 (W.D.Wis., July 9, 2004) (holding PLRA exhaustion requirement
inapplicable to habeas challenge to good time calculation), vacated on other grounds, 2005 WL 752243 (W.D.Wis.,
Mar. 31, 2005); Neal v. Fleming, 2004 WL 792729, *2 (N.D.Tex., Apr. 14, 2004) (holding complaint of improper
denial of early release was not about prison conditions and habeas proceeding was not subject to PLRA exhaustion
requirement), report and recommendation adopted, 2004 WL 1175736 (N.D.Tex., May 26, 2004).
246
Farnworth v. Craven, 2007 WL 793397, *3 (D.Idaho, Mar. 14, 2007).
247
Compare Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (stating § 2241 habeas actions extend to “prison
disciplinary actions, prison transfers, type of detention and prison conditions”); Medberry v. Crosby, 351 F.3d 1049,
1053 (11th Cir. 2003); Krist v. Ricketts, 504 F.2d 887, 887-88 (5th Cir. 1974) (per curiam) (holding that placement
in segregated or restricted confinement can or must be challenged via habeas corpus) with Cardona v. Bledsoe, 681
F.3d 533, 536-37 (3d Cir. 2012) (holding 28 U.S.C. § 2241 habeas jurisdiction did not extend to a petition seeking
release from Special Management Unit), cert. denied, 133 S.Ct. 805 (2012); Palma-Salazar v. Davis, 677 F.3d 1031,
1035-37 (10th Cir. 2012) (challenge to placement in highly restrictive ADX unit sought change in place of
confinement and not immediate or earlier release, so had to be pursued via Bivens claim and not habeas petition);
Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir. 2001); Brown v. Plaut, 131 F.3d 163, 167-68 (D.C.Cir.
1997), cert. denied, 524 U.S. 939 (1998); Toussaint v. McCarthy, 801 F.2d 1080, 1102-03 (9th Cir. 1986), cert.
denied, 481 U.S. 1069 (1987) (all holding a civil action provides the correct remedy for such claims).
248
Bolden v. Stroger, 2005 WL 283419, *1 (N.D.Ill., Feb. 1, 2005). However, the court held that a claim of
exclusion of persons with mental illness from pre-release programs was about prison conditions. Id., *2.
249
42 U.S.C. § 1997e(a).
250
See n. 476, below; see also nn. 483, below, concerning when a case is considered filed for this purpose.
251
See cases cited in nn. 35-37, above.

43

The Second Circuit, like most courts, has held that the PLRA eliminated the option to
stay a case pending exhaustion.253 In my view, now reinforced by the most relevant Supreme
Court decision, this holding should be re-examined in an appropriate case. While it is true that
the PLRA eliminated the provision of prior law instructing district courts to stay cases in which
they thought exhaustion was appropriate, the logical conclusion from that amendment and the
present statute’s silence on the subject is that the matter is now left to the courts’ discretion.
That discretion may be appropriately exercised to grant stays pending exhaustion in cases where
prisoners have tried to exhaust but have failed to do so because of misunderstanding or technical
mistakes or because of circumstances beyond their control, or because of other unusual
circumstances. No such factors were before the court in Neal v. Goord. There are a few cases in
which courts have granted such stays, or directed the functional equivalent of a stay, under such
circumstances.254 The view that such action should be permitted is supported by the Supreme

252

See cases cited in n. 480, below.
Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); accord, Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36
(1st Cir. 2002); Sharpe v. Medina, 2011 WL 3444230, *3 (D.N.J., Aug. 8, 2011), aff’d, 450 Fed.Appx. 109 (3d Cir.
2011); Jones v. Hartwig, 2014 WL 101983, *8 (D.S.C., Jan. 8, 2014); Williams v. Nash, 2009 WL 1955856, *2
(N.D.Cal., July 6, 2009); Mosley v. Hudson, 2009 WL 1044611, *2 (E.D.Tex., Apr. 20, 2009) (“No statutory basis
now exists for placing a stay on the action; instead, completion of the exhaustion process is a mandatory prerequisite
for filing the lawsuit.”); McCaffrey v. Winn, 2006 WL 344961, *1 (D.Mass., Feb. 14, 2006); Fleming v. Lindner,
2005 WL 3287488, *4 (E.D.Cal., Dec. 6, 2005); Lyons v. Trinity Services Group, Inc., 2005 WL 3273730, *1
(S.D.Fla., Aug. 29, 2005).
254
In Bucano v. Sibum, 2013 WL 2456009, *29-30 (M.D.Pa., June 6, 2013), in which the plaintiffs said they had
been unable to get grievance forms, the magistrate judge recommended that the case be dismissed but that the
plaintiffs be provided with forms and allowed to pursue grievances nunc pro tunc, after which they could re-file. In
Brown v. Walker, 2009 WL 2447977, *2 (S.D.Ill., July 7, 2009), report and recommendation adopted, 2010 WL
1415989 (S.D.Ill., Mar. 31, 2010), grievance officials required plaintiff to resubmit his grievance with additional
information, and they returned it to him again though they should have processed it. Since the plaintiff was not at
fault in failing to complete the process, the court stayed the case for six weeks so the grievance body could assess
the grievance. In Kennedy v. Mendez, 2004 WL 2280225, *1-2 (M.D.Pa., Oct. 7, 2004), the court stated: “Staying
of the present action would not create an exception to the exhaustion requirement, it would merely enforce the
exhaustion requirement through a different procedural mechanism. Ultimately, the congressional intent of the
exhaustion requirement is still served because the administrative process will fully review the matter before it is
reviewed by a court.” It concluded that on the facts before it–the litigation nearly complete, discovery over and a
motions deadline pending, exhaustion completed as to some claims and the unexhausted claims related to them–”the
interest of judicial economy is strongly served by litigating all of the claims within a single action, rather than
piecemeal.” In Campbell v. Chaves, 402 F.Supp.2d 1101, 1108-09 (D.Ariz. 2005), the court stayed the litigation
and directed the prison system to consider a grievance where the prisoner had filed a tort claim rather than a
grievance at staff direction, the tort claim had been rejected for jurisdictional reasons, and meanwhile the grievance
system rules had been changed so the matter would have been grievable. In Hause v. Smith, 2006 WL 2135537
(W.D.Mo., July 31, 2006), where the plaintiff alleged that his attempts to file grievances were “significantly
thwarted,” the court directed that the plaintiff be allowed to file a grievance and that its processing be expedited and
the results submitted to the court. 2006 WL 2135537, *1-2. Similarly, in Ouellette v. Maine State Prison, 2006 WL
173639 (D.Me., Jan. 23, 2006), aff’d, 2006 WL 348315 (D.Me., Feb. 14, 2006), where the plaintiff did not complete
exhaustion because of actions by grievance staff suggesting no further remedies were available to him, the court
stated: “Given that the spirit of § 1997e(a) is to allow the correctional institution an opportunity to address
allegations of civil rights abuses, if the defendants wish to file a motion to stay this action to allow the parties to
funnel Ouellette’s grievance through the second and third stages of the grievance procedure, such a request would
deserve consideration.” Id., *4; see also Kensu v. Rapelje, 2013 WL 1774637, *7 (E.D.Mich., Apr. 25, 2013)
(granting stay pending exhaustion for unexhausted claims or decision to drop them, based on concerns for judicial
economy and the likelihood of refiling); Nieves v. Ortiz, 2007 WL 1791256, *6 (D.N.J., June 19, 2007) (staying
defendants’ motion for summary judgment pending exhaustion, no reference to contrary case law).
But see
253

44

Court’s holding that courts applying the PLRA should not deviate from the usual practices of
civil litigation,255 which include the discretionary granting of stays.256
In cases where the prisoner has failed to exhaust for excusable reasons, such as actions by
prison staff that make the remedy unavailable in practice, the case can generally go forward
without exhaustion, or the prisoner will be deemed to have exhausted.257 However, one federal
appeals court has held that when “the failure to exhaust was innocent (as where prison officials
prevent a prisoner from exhausting his remedies), . . . he must be given another chance to
exhaust (provided that there exist remedies that he will be permitted by the prison authorities to
exhaust, so that he's not just being given a runaround). . . .”258 The court does not specify what it
means by “innocent” and by “runaround” and what relationship those terms might have with the
availability of remedies,259 or how its “another chance” holding can be justified under statutory
language that says, in substance, “exhaust available remedies” and, by implication, “you don’t
have to exhaust unavailable remedies.”260
Most courts that have addressed the question have held that, once an unexhausted claim
is dismissed, it must be re-filed, and may not be reinstated after exhaustion through a postjudgment motion,261 though such motions can be used to reinstate cases dismissed for non-

McCaffery v. Winn, 2005 WL 2994370, *1 (D.Mass., Nov. 8, 2005), on reconsideration, 2006 WL 344961, *1
(D.Mass., Feb. 14, 2006) (initially granting a stay, then concluding the court lacked authority to do so).
255
Jones v. Bock, 549 U.S. 199, 212-14 (2007).
256
See Cruz v. Jordan, 80 F.Supp.2d 109, 124-25 (S.D.N.Y. 1999) (holding PLRA’s change in exhaustion
requirement “does not mean that Congress intended to eliminate equitable stays where the interest of justice require
a stay rather than a dismissal”).
257
Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010) (holding prison officials' “improper screening of an
inmate's administrative grievances renders administrative remedies ‘effectively unavailable’ such that exhaustion is
not required under the PLRA”) (citing cases)). Such instances are discussed in §§ IV.E, IV.E.7, and G.2-3, passim.
258
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), cert. denied, 556 U.S. 1128 (2009); see Swisher v. Porter
County Sheriff's Dept., 2012 WL 3776363, *4 (N.D.Ind., Aug. 29, 2012) (holding remedies unavailable because
plaintiff was no longer in the jail and would not be allowed to use the grievance system, and it could no longer
change his jail conditions anway), reconsideration denied, 2013 WL 550507 (N.D.Ind., Feb. 11, 2013) .
259
There is extensive case law at this point, including in the Seventh Circuit, on circumstances which may make a
theoretically available remedy unavailable to a particular prisoner. See § IV.G.1, below. Pavey makes no reference
to this body of law, even prior Seventh Circuit precedents in the area. At least one early post-Pavey decision holds
that where defendants had refused to respond to several of plaintiffs’ grievances, “and have otherwise inhibited their
ability to file meaningful complaints,” plaintiffs “would be given the proverbial ‘runaround’” if required to try to
exhaust again, and therefore could proceed with their litigation. Kress v. CCA of Tenn., 2010 WL 2694986, *6
(S.D.Ind., July 2, 2010).
260
One other court has imposed a similar “do-over” requirement, though a more limited one. In Giano v. Goord,
380 F.3d 670, 680 (2d Cir. 2004), the Second Circuit held that a prisoner whose non-exhaustion is found to be
justified by “special circumstances” (as opposed to estoppel or unavailability of remedy) must seek to exhaust
remedies if they remain available; if not, the prisoner may proceed with the litigation.
261
Kath v. Ippolito, 132 Fed.Appx. 763, 2005 WL 1253961 (10th Cir., May 27, 2005) (unpublished); Gunther v.
Ohio Dept. Of Corrections, 198 F.3d 245 (6th Cir. 1999) (Table) (“Gunther's option was to file a new lawsuit, not
reopen this lawsuit, as he failed to exhaust his administrative remedies prior to filing this action.”); Thomas v.
Denno, 2013 WL 587663, *2 (N.D.Ohio, Feb. 13, 2013) (citing Gunther); Rhodes v. Dull, 2009 WL 839062, *2
(N.D.Cal., Mar. 30, 2009); Funk v. Schwarzenegger, 2009 WL 393652, *1 (E.D.Cal., Feb. 10, 2009) (advising
plaintiff that a new post-exhaustion complaint should not bear the docket number of the dismissed action; a new in
forma pauperis application or filing fee is required); Williams v. Ramirez, 2006 WL 2475339, *2 (E.D.Cal., Aug.
28, 2006), report and recommendation adopted, 2006 WL 3227722 (E.D.Cal., Nov. 6, 2006); Baggett v. Smith,
2006 WL 1851221, *1 (W.D.Mich., June 29, 2006); Okoro v. Krueger, 2006 WL 1494637, *1-2 (E.D.Mich., May

45

exhaustion as a result of mistakes,262 or in some instances where the case was dismissed under
legal rules that were subsequently invalidated.263 The Sixth Circuit has held that the plaintiff
need not pay a new filing fee when re-filing a claim that was previously dismissed for nonexhaustion.264 Other courts have generally assumed without analysis that a new filing fee is
due.265
In a few cases, dismissal for non-exhaustion has been accompanied by instructions to
prison officials with respect to the grievance process. In one case where a prisoner with mental
illness complained of denial of psychiatric treatment, the court directed prison officials to
appoint someone to assist the plaintiff in exhausting his claims.266 Another court directed that
the grievance appeal deadline be held open because the prisoner may have missed it out of
“excusable confusion.”267 In cases involving prisoners who had made substantial efforts to
exhaust, the courts have directed that prison officials “consider referral from this Court as a
mitigating circumstance,” allowing the plaintiff to pursue his grievance late,268 or have made
dismissal contingent upon officials’ allowing the prisoner to pursue a new grievance.269 An early

30, 2006). But see Bleau v. Diguglielmo, 2009 WL 764881, *16 n.33 (E.D.Pa., Mar. 20, 2009) (noting that the court
treated a post-dismissal “motion for reinstatement” after exhaustion as a motion to amend, and granted it).
262
Freeman v. King, 2006 WL 3751094, *1 (S.D.Miss., Dec. 18, 2006) (noting grant of Rule 60(b) relief where
plaintiff remedied a pleading error); Siddiq v. Champion, 2006 WL 958584, *3 (W.D.Mich., Apr. 10, 2006)
(allowing supplementation of grievance documentation to show that plaintiff had in fact exhausted).
263
See, e.g., Okoro v. Hemingway, 481 F.3d 873, 874 (6th Cir. 2007) (directing relief under Rule 60(b) based on
intervening Jones v. Bock decision). However, courts have generally declined to reopen long-concluded cases that
had been dismissed under rules invalidated in Jones v. Bock. See, e.g., Chambers v. Straub, 2009 WL 152135, *1
(E.D.Mich., Jan. 21, 2009); Saunders v. Goord, 2007 WL 1434974, *2 (S.D.N.Y., May 15, 2007), reconsideration
denied, 2007 WL 1650057 (S.D.N.Y., June 5, 2007); Harris v. Terrell, 2007 WL 593636, *1 (D.Kan., Feb. 21, 2007)
(same).
264
Owens v. Keeling, 461 F.3d 763, 772-74 (6th Cir. 2006). The court explained that the filing fee is required of
parties “instituting” a civil action, 28 U.S.C. § 1914(a), and that re-filing a now-exhausted claim is not “instituting”
suit but merely following the court-prescribed procedure for curing the initial complaint’s deficiency. Accord,
Hernandez-Arredondo v. Hollingsworth, 2012 WL 3046006, *1 (S.D.Ill., July 25, 2012) (dismissing for nonexhaustion, but waiving the filing fee if plaintiff refiles the same case after exhaustion); Goodson v. Cortney, 2006
WL 3314537, *1-2 (D.Kan., Oct. 24, 2006).
265
See, e.g., Miller v. Elam, 2011 WL 1549398, *3 (E.D.Cal., Apr. 21, 2011); Jones v. Nalley, 2010 WL 3805422,
*2 n.2 (S.D.Ill., Sept. 23, 2010); Almond v. Pollard, 2010 WL 3122553, *2 (W.D.Wis., Aug. 5, 2010); Rider v.
Goldy, 2010 WL 580985, *2 n.1 (E.D.Cal., Feb. 12, 2010) (“In addition, the new complaint should be accompanied
by a properly completed, updated application to proceed in forma pauperis.”), vacated on other grounds, 2010 WL
1854101 (E.D.Cal., May 6, 2010); Rhodes v. Dull, 2009 WL 839062, *2 (N.D.Cal., Mar. 30, 2009); McGuinness v.
Missouri Dept. of Corrections, 2009 WL 790614, *2 (W.D.Mo., Mar. 23, 2009); Caldwell v. Jin, 2008 WL
5115039, *2 (W.D.Pa., Dec. 4, 2008).
266
Ullrich v. Idaho, 2006 WL 288384, *3 (D.Idaho, Feb. 6, 2006).
267
Cardona v. Winn, 170 F.Supp.2d 131 (D.Mass. 2001). But see McCaffery v. Winn, 2006 WL 344961, *1
(D.Mass., Feb. 14, 2006) (after having directed the parties to cooperate in completing the administrative process,
concluding on reconsideration that the court lacked authority to do anything other than dismiss).
268
Burgess v. Morse, 259 F.Supp.2d 240, 247 (W.D.N.Y. 2003); accord, Hill v. Chalanor, 419 F.Supp.2d 255, 256,
259 (N.D.N.Y., Mar. 8, 2006) (finding failure to appeal resulted from “confusion or mis-communication” and not
official misconduct, directing that plaintiff’s renewed grievance appeal “shall be deemed timely” and directing
prison officials to make sure it reached its destination); see Coronado v. Goord, 2000 WL 52488 (S.D.N.Y., Jan. 24,
2000) (dismissing case, suggesting that a time extension for the grievance should be granted).
269
Rivera v. Goord, 253 F.Supp.2d 735, 753-54 (S.D.N.Y. 2003) (noting that plaintiff had relied on prior law that
indicated he was not required to exhaust).

46

post-Woodford v. Ngo270 case of this sort, though dismissing because the plaintiff failed to appeal
the lack of response to his grievances, held that his efforts had “earned him a response” and
directed the Bureau of Prisons to consider a new appeal timely and respond within 30 days. 271
Dismissal for non-exhaustion is generally without prejudice.272 Some courts, including
the Second Circuit, have held that it may be with prejudice if it is clear that remedies are no
longer available, e.g., because they are time-barred.273 (Others have held that after Woodford v.
Ngo, dismissal should always be with prejudice, a point on which the Court did not rule and
which seems a non sequitur.274) The Seventh Circuit has held–correctly, in my view–that all
dismissals for non-exhaustion should be without prejudice, since, inter alia, “[s]tates may allow
cure of failure to exhaust,” or plaintiffs may be able to proceed without exhaustion in state court,
and defenses to a new suit should be addressed directly in that suit.275 Further, defendants can

270

548 U.S. 81 (2006) (holding that the PLRA requires “proper exhaustion,” i.e., compliance with all rules of the
prison grievance system).
271
George v. Morrison-Warden, 2007 WL 1686321, *4 (S.D.N.Y., June 11, 2007).
272
Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (“Ordinarily, a dismissal based on a failure to exhaust
administrative remedies should be without prejudice.”); Bryant v. Rich, 530 F.3d 1368, 1379 (11th Cir. 2008), cert.
denied, 556 U.S. 1074 (2008); O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1059 (9th Cir. 2007); Boyd
v. Corr. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2004), cert. denied, 544 U.S. 920 (2005); Davis v. Buchanan,
2012 WL 3945312, *2 (D.S.C., July 30, 2012), report and recommendation adopted, 2012 WL 3945391 (D.S.C.,
Sept. 10, 2012); Wheeler v. Schuetzle, 2009 WL 1974312, *4 (D.N.D., July 8, 2009) (citing numerous Eighth
Circuit unpublished decisions), aff’d, 369 Fed.Appx. 764 (8th Cir. 2010).
273
Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004); Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1213
(10th Cir. 2003), cert. denied, 543 U.S. 925 (2004); Palermo v. Daly, 2013 WL 762092, *4 (D.N.H., Feb. 6, 2013)
(dismissing with prejudice where remedy would be time-barred), report and recommendation approved, 2013 WL
758423 (D.N.H., Feb. 26, 2013); Griffith v. Anderson, 2010 WL 993014, *13 (M.D.Ala., Feb. 17, 2010) (dismissing
with prejudice where prisoner was no longer in the same prison and the remedy was unavailable to him), report and
recommendation adopted, 2010 WL 993147 (M.D.Ala., Mar. 16, 2010); Brewer v. Corrections Corp. of America,
2010 WL 398979, *3 (E.D.Ky., Jan. 27, 2010), motion to amend denied, 2010 WL 2464967 (E.D.Ky., June 15,
2010). One district court has stated: “The dismissal of a prisoner's civil rights lawsuit based on his failure to
exhaust his administrative remedies typically warrants a dismissal with prejudice,” though the case at hand was one
where exhaustion would have been time-barred. Patterson v. Stanley, 2012 WL 3648018, *5 (E.D.Tex., Aug. 9,
2012), report and recommendation adopted, 2012 WL 3647986 (E.D.Tex., Aug. 23, 2012).
Other decisions have said that if a prisoner did not exhaust and has been released so the prison remedy is no
longer available, dismissal should be with prejudice. See Toomer v. County of Nassau, 2009 WL 1269946, *9
(E.D.N.Y., May 5, 2009); Edwards v. Peasant, 2008 WL 5427591, *5 (M.D.Ala., Dec. 30, 2008); McKinney v.
Smallwood Prison Dental Services, 2008 WL 4847071, *5 (M.D.Ala., Nov. 7, 2008). That holding makes no sense;
after release from prison, the plaintiff is no longer bound by the exhaustion requirement, and should be able to refile
without exhausting. See nn. 26-32, above.
274
See Pough v. Almager, V.M., 2010 WL 796748, *11 (S.D.Cal., Mar. 4, 2010) (holding Woodford v. Ngo
overrules prior Ninth Circuit law, and dismissal is with prejudice where grievance would be time-barred), objections
overruled, 2010 WL 1031153 (S.D.Cal., Mar. 19, 2010); Wilkinson v. Slankard, 2010 WL 308039, *5 (E.D.Cal.,
Jan. 19, 2010); Goudlock v. Hernandez, 2009 WL 2982825, *6 (S.D.Cal., Aug. 4, 2009) (same as Pough); Bean v.
McConnell Unit, 2007 WL 4354412, *5 (S.D.Tex., Dec. 11, 2007); Garcia v. Inmate Trust Fund, 2007 WL 419097,
*5 (S.D.Tex., Feb. 5, 2007).
275
Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004); accord, Biggs v. Hunt, 2012 WL 3613073, *3 (E.D.N.C.,
Aug. 21, 2012) (following Ford); Thompson v. Jones, 2012 WL 3686749, *6 (N.D.Ill., Aug. 24, 2012) (citing Ford,
noting plaintiff might be able to proceed in state court); McCloy v. Correction Medical Services, 794 F.Supp.2d 743,
751-52 (E.D.Mich., Mar. 31, 2011) (noting it is impossible to foresee the context in which the claim might be raised
again); Mathis v. Lange, 2011 WL 1118622, *7 (W.D.Mich., Mar. 10, 2011) (same as Lawson), report and
recommendation adopted, 2011 WL 1116785 (W.D.Mich., Mar. 25, 2011); Lawson v. Holmes, 2010 WL 2640419,
*6 (W.D.Mich., June 2, 2010) (rather than dismiss with prejudice, court should “wait and see whether the State

47

and sometimes do waive the exhaustion defense in litigation.276 These questions’ importance is
diminished after the Supreme Court’s holding that prisoners must comply with the procedural
rules of the prison’s administrative system, including time limits, or their claims will be
procedurally defaulted;277 most prisoners will be time-barred from curing their failure to exhaust
properly. It is only in cases where the defense is waived, the prisoner has properly completed
exhaustion after the litigation was filed, prison officials allow the filing of an out-of-time
grievance, or the prisoner has been released from prison and can refile without being subject to
the exhaustion requirement,278 that dismissal for non-exhaustion without prejudice will allow the
prisoner to re-file and litigate the claim.
One circuit has approved dismissal for non-exhaustion with prejudice with regard to the
prisoner’s ability to proceed in forma pauperis, stating that a prisoner who filed without
exhaustion “sought relief to which he was not entitled–that is, federal court intervention in prison
affairs prior to the prison having had the opportunity to address the complaint within its
grievance procedures.”279 Such a disposition is not only in my view an unauthorized and
unwarrantedly punitive response to what may be only the blunder of a pro se litigant, but is also
an outright denial of access to courts if the prisoner is indigent and unable to pay the filing fee up
front. Further, this rule has not been reexamined after Jones v. Bock280 and appears invalid under
that decision. In Jones, the Court held that PLRA provisions should not be read to overturn the
ordinary practices of litigation, under the Federal Rules and otherwise, without a clear direction

actually enforces its procedural rules.”), report and recommendation adopted, 2010 WL 2640418 (W.D.Mich., June
30, 2010).
One recent district court decision holds, in effect, that Ford v. Johnson has been overruled in this regard by
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), cert. denied, 556 U.S. 1128 (2009), which states that where the
failure to exhaust was the prisoner's fault, “the case is over.” See Reyes v. Randle, 2011 WL 7109199, *4 (S.D.Ill.,
Dec. 1, 2011), report and recommendation adopted, 2012 WL 253499 (S.D.Ill., Jan. 26, 2012). I do not think that
phrase in Pavey can be read as saying anything one way or the other about the nature of dismissal for nonexhaustion.
276
See § IV.D.3, below.
277
Woodford v. Ngo, 548 U.S. 81, 92-95 (2006).
278
Tomassini v. Correctional Health Services Corp., 2012 WL 1601528, *3-4 (D.P.R., May 7, 2012) (noting
dismissal without prejudice is appropriate where plaintiff has been released from prison and is not bound by the
exhaustion requirement).
279
Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999); accord, Craig v.
Deville, 2013 WL 2449196, *8 (W.D.La., May 31, 2013). At least one district court has held that this disposition is
appropriate only if the whole case is not exhausted. Cantoral v. Dretke, 2005 WL 2297222, *4 (E.D.Tex., Sept. 19,
2005). Another has held that dismissal with prejudice is inappropriate where the problem is ongoing and can be
grieved again. Perez v. Woodard, 2009 WL 838485, *3 (E.D.Tex., Mar. 27, 2009).
280
See, e.g., Logan v. Madison Parish Detention Center, 2014 WL 130333, *4 (W.D.La., Jan. 14, 2014); Barnes v.
Brownlow, 2008 WL 2704868, *3 (E.D.Tex., July 7, 2008); McGrew v. Teer, 2008 WL 2277818, *2 (M.D.La., June
3, 2008); Johns v. Edwards, 2007 WL 1958962, *3 (E.D.La., June 28, 2007) (all following Underwood v. Wilson).
Logan cites Underwood as “overruled by implication on other grounds” by Jones v. Bock without, apparently,
considering whether Underwood is also overruled with respect to this judge-made rule that the PLRA trumps the IFP
statutes.
One exception to the proposition in the text says in effect that the Underwood rule is supported by Jones v.
Bock: “. . . [T]he district courts may no longer dismiss unexhausted complaints sua sponte. Rather, taxpayers must
fund service by the Marshal, followed by motion practice offered by taxpayer-funded attorneys for the prison
officials, before the cases can be dismissed. These burdens make it important to discourage the filing of unexhausted
prisoner complaints.” Frank v. Batson, 2014 WL 801046, *3 (W.D.La., Feb. 28, 2014).

48

by Congress.281 There seems no apparent reason why the PLRA should require abandonment of
the usual practice under the in forma pauperis statutes without a clear statement to that effect.
D.

How Is Exhaustion Addressed Procedurally?

Some courts have held that when exhaustion is raised, the court should address it before it
reaches the merits of the case.282 However, plainly meritless claims can be dismissed on the
merits without considering exhaustion.283 Courts also have the power to decide the merits after
finding non-exhaustion, at least in cases where discovery has been completed and the merits
have been briefed, since non-exhaustion is not jurisdictional.284
1. Burden of Pleading
The Supreme Court has held that failure to exhaust is an affirmative defense that must be
raised by defendants, not a pleading requirement for plaintiffs.285 That means failure to exhaust
is not failure to state a claim except where non-exhaustion is apparent on the face of the

281

Jones, 549 U.S. at 212-16, 221-24.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (district court should address exhaustion and hold a hearing
to resolve disputed facts about it before allowing discovery on the merits), cert. denied, 556 U.S. 1128 (2009); Perez
v. Wisconsin Dept. of Corrections, 182 F.3d 532, 534 (7th Cir. 1999) (“Application of a law designed to prevent
decision on the merits cannot be avoided by making the very decision whose propriety is contested, then declaring
the decision-avoidance statute ‘moot’.”); Bacon v. Reyes, 2013 WL 5522263, *5 (D.Nev., Oct. 3, 2013) (staying
discovery pending decision of a motion to dismiss for non-exhaustion because exhaustion is a “preliminary issue
warranting a stay”); Martin v. Mohr, 2012 WL 5915501, *2 (S.D.Ohio, Nov. 26, 2012) (staying discovery pending
defendants’ filing of motion alleging non-exhaustion); McCoy v. Goord, 255 F.Supp.2d 233, 248-49 (S.D.N.Y.
2003); see Torrence v. Pesanti, 239 F.Supp.2d 230, 234 (D.Conn. 2003) (stating that exhaustion should be dealt with
quickly so plaintiffs’ claims are less likely to be time-barred if it is necessary to re-file after exhaustion). Torrence’s
holding has little practical relevance because most grievance deadlines are so short that a court will never resolve an
exhaustion issue before the deadline passes.
Even under Perez v. Wisconsin DOC, if material facts are disputed concerning exhaustion, but not the
merits, the court may proceed to summary judgment on the merits. See Gray v. Hinsley, 2008 WL 2005029, *1-4
(S.D.Ill., May 8, 2008); see also cases cited in n. 413, below.
283
42 U.S.C. § 1997e(c)(2); see Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1140-45 (10th Cir.
2005) (holding that notwithstanding the Perez holding, the court can reach the merits of arguably unexhausted
claims on summary judgment as well as on a motion to dismiss); Bowen v. Cady, 2010 WL 148843, *3 (E.D.Mich.,
Jan. 13, 2010) (same).
284
Fluker v. County of Kankakee, 741 F.3d 787, 793-94 (7th Cir. 2013) (rejecting argument that to reach the merits
of a case subject to dismissal for non-exhaustion is to render an advisory opinion); see Ramos v. Patnaude, 640 F.3d
485, 487-91 (1st Cir. 2011) (affirming summary judgment for defendant on the merits without reviewing district
court's alternative decision to dismiss for non-exhaustion); Wishnefsky v. Salameh, 445 Fed.Appx. 545, 549-50 (3rd
Cir. 2011) (unpublished) (affirming on the merits a district court's grant of summary judgment for the defendant
without reviewing conclusion that he had not exhausted); see also Thorson v. Epps, 701 F.3d 444, 445-46 (5th Cir.
2012), cert. denied,, 124 S.Ct. 53 (2013) (affirming summary judgment on the merits even though the defendant also
invoked the PLRA exhaustion defense in the district court). Contra, Snyder v. Harris, 406 Fed.Appx. 313, 316 (10th
Cir.2011) (unpublished) (“[E]ven if the district court could enter a disposition dismissing for lack of exhaustion and
alternatively dismissing because the claim failed on the merits, this court should not affirm the merits determination
if [the plaintiff] in fact failed to exhaust administrative remedies.”).
285
Jones v. Bock, 549 U.S. 199, 212-16 (2007); see Kinser v. County of San Bernardino, 2011 WL 4801899, *2
(C.D.Cal., Aug. 25, 2011) (plaintiff was not required to plead reason for not exhausting), report and
recommendation adopted, 2011 WL 4802850 (C.D.Cal., Oct. 11, 2011).
282

49

complaint.286 This holding resolved a conflict among circuits and overruled a body of law that
had required plaintiffs to plead exhaustion with specificity and support the pleading with
documentation when available, with district courts directed to dismiss sua sponte for
noncompliance with that requirement.287 One circuit had also held that prisoners cannot amend
their complaints to avoid dismissal under the PLRA, including to cure inadequate pleading of
exhaustion.288 That rule was rendered mostly meaningless by Jones’s holding that exhaustion
need not be pled at all. The holdout circuit has finally abandoned its rule and acknowledged its
inconsistency with Jones v. Bock’s broader holding that the PLRA’s screening requirement does
not justify deviating from the usual procedural practice of federal courts, which of course
includes amendment of complaints, without statutory language to that effect.289
The Jones v. Bock holding that non-exhaustion is an affirmative defense has significant
consequences for the initial processing of prisoner complaints: the PLRA’s provisions for
screening and sua sponte dismissal of cases that are frivolous or fail to state a claim290 are
inapplicable to exhaustion except where non-exhaustion is apparent on the face of the complaint.
Courts do have authority, even without statutory authorization, to dismiss on their own motion
based on non-exhaustion or other affirmative defenses.291 However, this authority, too, is
generally limited to non-exhaustion that is apparent on the face of the complaint.292 Further, the
Second Circuit has held that plaintiffs are “entitled to notice and an opportunity to be heard”
before such dismissal unless it is “unmistakably clear” that the complaint is subject to
dismissal.293
286

Jones v. Bock, 549 U.S. at 214-15 (noting that a complaint may fail to state a claim if its allegations establish an
affirmative defense); accord, Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 681 (4th Cir.
2005); Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999) (dictum); Henry v. Medical Dept. at SCI-Dallas,
153 F.Supp.2d 553, 555-56 (M.D.Pa. 2001).
287
Two circuits, the Sixth and the Tenth, had so held. See, e.g., Steele v. Federal Bureau of Prisons, 355 F.3d 1204,
1210 (10th Cir. 2003), cert. denied, 543 U.S. 925 (2004); Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert.
denied, 531 U.S. 1040 (2000); see also Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)
(acknowledging overruling).
288
Baxter v. Rose, 305 F.3d 486, 488 (6th Cir. 2002); McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir.1997).
289
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
290
See § IX, below, concerning screening and dismissal.
291
Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999); accord, Anderson v. XYZ Correctional Health
Services, Inc., 407 F.3d 674, 682 (4th Cir. 2005).
292
Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (“Because Mr. Aquilar-Avellaveda's
complaint was silent as to whether he had exhausted his administrative remedies—which is acceptable under
Jones—the district court erred in requesting Mr. Aquilar-Avellaveda to supplement the record on that issue.”); Ray
v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002) (“As a general proposition, sua sponte dismissal is inappropriate unless
the basis is apparent from the face of the complaint.”). Cf. Calvert v. Fischer, 2009 WL 5167648, *5 (N.D.N.Y.,
Dec. 18, 2009) (“Simply stated, if a prisoner says nothing or little about exhaustion in his pro se civil rights
complaint, he is likely protected from a Fed.R.Civ.P. 12(b)(6) motion to dismiss premised on failure to exhaust.
However, if he says too much about exhaustion in that complaint so that his non-exhaustion is readily apparent, he
may ‘plead himself out of court,’ as the saying goes.”).
293
Snider v. Melindez, 199 F.3d at 113; accord, Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.
2007). In a later decision, the Second Circuit stated that “the better practice in a given case may be to afford notice
and an opportunity to respond before dismissal when exhaustion is the basis for that action. . . . In future cases we
leave it to the district court to determine . . . which procedural practice is most appropriate.” Neal v. Goord, 267
F.3d 116, 123-34 (2d Cir. 2001). However, the court subsequently stated: “We now reiterate that notice and an
opportunity to respond are necessary in cases such as these. . . .” Mojias v. Johnson, 351 F.3d 606, 611 (2d Cir.
2003) (emphasis supplied). Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), restates this stronger position,
which must be regarded as the law in the circuit.

50

It is very difficult for non-exhaustion—i.e., failure to comply with the PLRA exhaustion
requirement—to be genuinely apparent on the face of the complaint, since there are so many
circumstances in which failure to exhaust does not violate the statute.294 Courts must “ensure
that any defects in exhaustion were not procured from the action or inaction of prison officials”
and that the prisoner is “without valid excuse” for non-exhaustion.295 One recent decision states
that non-exhaustion must be “crystalline” on the face of the complaint to justify dismissal.296
294

Mateo v. Bristow, 2013 WL 3863865, *3 (S.D.N.Y., July 16, 2013) (declining to dismiss where complaint made
clear plaintiff had not exhausted but also pled facts supporting an argument that the remedy was not available).
295
Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (“Because Mr. Aquilar-Avellaveda's
complaint was silent as to whether he had exhausted his administrative remedies-which is acceptable under Jones—
the district court erred in requesting Mr. Aquilar-Avellaveda to supplement the record on that issue.”); accord,
Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d at 682 & n.5 (“To determine whether an inmate has
exhausted his administrative remedies requires an understanding of the remedies available and thus likely would
require information from the defendant as well as the inmate.”); Hardimon v. Westchester County, 2013 WL
5952862, *4 (S.D.N.Y., Nov. 6, 2013) (denying motion to dismiss where plaintiff acknowledged failure to exhaust
but alleged that a staff member had refused to accept his grievance in segregation); Rosario v. Anson, 2013 WL
5236568, *7 (N.D.N.Y., Sept. 17, 2013) (declining to dismiss for non-exhaustion where complaint seemed to allege
obstruction at a second prison, and alleged unawareness of grievance policy at first prison might be attributable to
prison officials; citing liberal construction of pro se complaints); Simmons v. Cripps, 2013 WL 1285417, *3
(S.D.N.Y., Mar. 28, 2013) (citing principle of liberal construction of pro se complaints, declining to dismiss
ambiguous complaint for non-exhaustion); Butler v. Suffolk County, 289 F.R.D. 80, 92-93 (E.D.N.Y. 2013) (noting
that complaint was ambiguous as to exhaustion and exceptions to exhaustion requirement cannot be assessed on an
undeveloped record); Benjamin v. Flores, 2012 WL 5289513, *5 (E.D.N.Y., Oct. 23, 2012) (holding complaint
allegation that plaintiff filed a grievance and was told that the complaint was under investigation “by itself, does not
necessarily mean that plaintiff has not exhausted administrative remedies.”); Albadry v. Wiepper, 2012 WL
3726698, *5 (E.D.Tenn., Aug. 27, 2012) (declining to dismiss based on admission in complaint of non-exhaustion
where “aside from [plaintiff’s] alleged inability to read or write English, lack of access to an Arabic interpreter, and
lack of knowledge that he was required to satisfy the PLRA requirement, Defendants have not proven administrative
remedies were available to Plaintiff”); Justice v. McGovern, 2012 WL 2155275, *2 (E.D.N.Y., June 12, 2012)
(following White v. Schriro); White v. Schriro, 2012 WL 1414450, *6 (S.D.N.Y., Mar. 7, 2012) (noting incomplete
grievance allegations “do not rule out the possibility that one of several exceptions to the exhaustion requirement
applies”), report and recommendation adopted, 2012 WL 1450422 (S.D.N.Y., Apr. 23, 2012); Hernandez-Vazquez
v. Ortiz-Martinez, 2010 WL 132343, *3 (D.P.R., Jan. 8, 2010) (“Dismissal therefore is only warranted under Rule
12(b)(6) when the complaint on its face conclusively shows that the plaintiff could not have exhausted his
remedies.”) (emphasis supplied); see Meador v. Pleasant Valley State Prison, 333 Fed.Appx. 177, 178 (9th Cir.
2009) (unpublished) (concession that grievance was untimely did not establish non-exhaustion, since the grievance
rules allow late exhaustion under some circumstances, and plaintiff also alleged reasons he was unable to file
timely); Davis v. Talisman, 2009 WL 3416122, *1 (9th Cir., Oct. 23, 2009) (unpublished) (where complaint form
explained what had happened at first and second level, and then just said “third level” with no further details, the
complaint did not concede non-exhaustion on its face since it did not clearly show plaintiff had not completed the
third level); Hilson v. Maltese, 2011 WL 767696, *2 (N.D.N.Y., Feb. 28, 2011) (where plaintiff alleged he did not
exhaust because he “was mentally unstable at the time” and “had a mental break down,” whether exhaustion was
unexcused was not apparent on the face of the complaint); Ware v. Gallegos, 2010 WL 749852, *6 (D.Colo., Mar. 3,
2010) (plaintiff’s murky statements about circumstances of non-exhaustion “cast[] enough doubt” to bar dismissal
on the face of the complaint); Harper v. Urbano, 2010 WL 3629838, *3 (D.Colo., Feb. 9, 2010) (non-exhaustion was
not apparent on the face of the complaint where plaintiff admitted non-exhaustion but alleged it was caused by
threats and misconduct by prison staff), report and recommendation adopted, 2010 WL 3615025 (D.Colo., Sept. 10,
2010); see Appendix A for further authority on this point. But see Brand v. Hamilton, 2010 WL 4973358, *3
(N.D.Fla., Oct. 27, 2010) (inferring non-exhaustion because of brief interval between event complained of and
signing of complaint), report and recommendation adopted, 2010 WL 4955400 (N.D.Fla., Dec. 1, 2010); Tellefsen
v. McDevitt, 2010 WL 3156546, *1-2 (W.D.N.C., Aug. 10, 2010) (dismissing without consulting grievance policy
where plaintiffs alleged that “there was no procedure to handle the complaints stated in this case”); West v.
Harkleroad, 2010 WL 2867416, *1 (W.D.N.C., July 20, 2010) (inferring non-exhaustion solely from time between

51

The Second Circuit addressed this issue before Jones v. Bock, and has held that a court
may not dismiss for non-exhaustion without “establish[ing] the availability of an administrative
remedy from a legally sufficient source.”297 In that case, the district court had assumed that a
remedy was available solely because the prisoner had answered “Yes” to a question on a pro
se complaint form asking whether there was a grievance process in his prison.298 Such an answer
does not establish that the process was available for the particular problem at issue or to the
particular prisoner, as illustrated in a later case in which the court, on nearly identical facts,
strongly reiterated the need to establish “that an administrative remedy is applicable and that the
particular complaint does not fall within an exception. . . . Courts should be careful to look at the
applicable set of grievance procedures, whether city, state or federal.”299 (Nonetheless, the
pernicious practice of relying on check marks and questionnaire answers to determine exhaustion
persists in some jurisdictions.300)
filing of grievance and of complaint, and dismissing); Moultrie v. South Carolina Dept. of Corrections, 2009 WL
3124426, *1 (D.S.C., Sept. 29, 2009) (same); Miller v. Walker, 2009 WL 2135798, *2 (S.D.Ga., July 16, 2009)
(same); Henderson v. Kennell, 2007 WL 1424550, *1 (C.D.Ill., May 10, 2007) (same); see also Roman v.
Washington, 2011 WL 1331962, *2 (E.D.Cal., Apr. 5, 2011) (holding non-exhaustion apparent on the face of the
complaint where the prisoner said he didn’t exhaust because he was transferred, but the court says state regulations
don’t forbid exhaustion in that situation; but dismissing with leave to amend to plead some basis for excusing nonexhaustion).
296
Yasin v. Bragg, 460 Fed.Appx. 345, 346 (5th Cir. 2012) (unpublished).
297
Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999).
298
Snider, 199 F.3d at 113.
299
Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003); accord, Anderson v. XYZ Correctional Health Services,
407 F.3d 674, 683 n.5 (4th Cir. 2005); Walker v. Vargas, 2013 WL 4792765, *6 (S.D.N.Y., Aug. 26, 2013) (noting
warnings “that a pro se plaintiff's check-marks on a form complaint are not sufficient to establish the availability of
an administrative remedy” in case where plaintiff alleged he was not aware of the remedy; defendants must pursue
contrary claim via summary judgment); Daniels v. Caldwell, 2013 WL 85165, *3 (E.D.Va., Jan. 7, 2013) (“Without
information about the requirements of the Jail grievance procedure, the Court cannot ascertain whether Daniels's
complaint about medical care conducted outside of the Jail was grieveable. . . . Moreover, without more information
about the Jail grievance procedure and the timing of Daniels's transfer, the Court cannot assess whether Daniels's
transfer excuses any failure by Daniels to utilize the Jail grievance procedure.”) (footnote omitted).
In Mojias, the district court had dismissed a New York City jail excessive force claim apparently without
reviewing the City grievance policy, which made all claims of alleged assaults “non-grievable.” Other decisions
have erroneously dismissed the claims of New York City prisoners, citing a remedy set out in state regulations that
is available only to state prisoners and that has a different scope of grievable issues from the New York City
grievance system. See Kearsey v. Williams, 2002 WL 1268014 (S.D.N.Y., June 6, 2002), vacated, 2004 WL
2093548 (S.D.N.Y., Sept. 20, 2004); John v. N.Y.C. Dept. of Corrections, 183 F.Supp.2d 619, 624-25 (S.D.N.Y.
2002); Harris v. N.Y.C. Dept. of Corrections, 2001 WL 845448, *2-3 (S.D.N.Y., July 25, 2001).
300
See Conklin v. Director TDCJ-CID, 2012 WL 3637454, *6 (E.D.Tex., July 27, 2012), report and
recommendation adopted, TDCJ-CID, 2012 WL 3637025 (E.D.Tex., Aug. 21, 2012), appeal dismissed, 519
Fed.Appx. 322 (5th Cir. 2013) (unpublished); McMillan v. Weaver, 2012 WL 3704853, *2 (S.D.Ga., July 31, 2012),
report and recommendation adopted, 2012 WL 3704836 (S.D.Ga., Aug. 27, 2012); Tolbert v. Clark, 2009 WL
2423764, *1 (W.D.N.C., Aug. 3, 2009); Nickles v. Taylor, 2009 WL 2230931, *2 (D.N.J., July 24, 2009); Dynel v.
Liles, 2009 WL 1446294, *3 (E.D.Tex., May 21, 2009); Winfield v. Soloman, 2008 WL 2169521, *1-2 (E.D.Cal.,
May 23, 2008); White v. Director of Corrections, 2007 WL 4210405, *1 (E.D.Cal., Nov. 28, 2007), report and
recommendation adopted, 2008 WL 732783 (E.D.Cal., Mar. 17, 2008); Brisbane v. Dewitt, 2006 WL 3541858, *2
(D.S.C., Dec. 7, 2006); Williams v. Uy, 2004 WL 937598, *1 (N.D.Tex., Apr. 30, 2004), appeal dismissed, 111
Fed.Appx. 310 (5th Cir. 2004). In Randolph v. City of New York Dept. of Correction, 2007 WL 2660282, *7-8
(S.D.N.Y., Sept. 7, 2007), the court points out that reading such brief and ambiguous information to show nonexhaustion is inconsistent with the Supreme Court’s holding in Jones v. Bock that exhaustion is an affirmative
defense, as well as with the “case-specific” Second Circuit analysis of exhaustion questions, which requires a factual
record. Accord, Cole v. Stepp, 2010 WL 5647117, *3 (S.D.Fla., Nov. 1, 2010) (“It cannot be assumed . . . that

52

Consistently with Jones, a number of courts have rejected arguments that if the prisoner
includes any exhaustion-related information or documentation in the complaint, any gaps or
ambiguities in that presentation mean that non-exhaustion is apparent on the face of the
complaint.301 Others, however, continue to dismiss, or to demand that plaintiffs establish
exhaustion, based on mere inferences from their pro se pleadings.302
because the plaintiff checked no for availing himself of grievance procedures, that he did not actually file
grievances, nor is it clear what grievances were available to him if he was transferred to another facility. It is
apparent that any determination as to whether the operative complaint may be subject to dismissal under § 1997e(a),
will require further development of the record.”), report and recommendation adopted, 2011 WL 283327 (S.D.Fla.,
Jan. 24, 2011); Roland v. Wenz, 2010 WL 2834828, *4 (N.D.N.Y., July 16, 2010) (noting that check marks
indicating failure to use grievance system might refer to current prison and not institution where claim arose), report
and recommendation adopted, 2010 WL 2817485 (N.D.N.Y., July 16, 2010).
301
Coleman v. Sweetin, ___ F.3d ___, 2014 WL 958275, *4 (5th Cir. 2014) (holding dismissal in reliance on
grievance documentation attached to complaint which had no allegations re exhaustion was reversible error); Yasin
v. Bragg, 460 Fed.Appx. 345, 346 (5th Cir. 2012) (unpublished) (complaint allegation that plaintiff had asked for a
grievance form and not received one did not support dismissal based on an inference that he had he had not done
more); Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (holding exhaustion was not apparent on the face
of a complaint alleging that the plaintiff had filed several grievances and appealed them); Montanez v. Feinerman,
439 Fed.Appx. 545, 549-50 (7th Cir. 2011) (unpublished) (holding lack of appeal documentation among attachments
to complaint did not show non-exhaustion; plaintiff explained on appeal why the procedure was unavailable to him);
McDonald v. Cain, 426 Fed.Appx. 332, 333 (5th Cir. 2011) (unpublished) (reversing dismissal for non-exhaustion
where plaintiff acknowledged non-exhaustion but provided reasons for it, but district court held they were
conclusory and did not establish exhaustion); Brooks v. Potter, 2013 WL 6513356, *3 (S.D.Ohio, Oct. 31, 2013)
(rejecting argument that a complaint that said only that plaintiff “wrote a[n] incident report” must be dismissed for
failing to allege completion of the administrative process), report and recommendation adopted, 2013 WL 6513354
(S.D.Ohio, Dec. 12, 2013); Coleman v. Terrebonne Parish Criminal Justice Complex, 2013 WL 6004051, *2
(E.D.La., Nov. 13, 2013) (declining to dismiss based on statement “Didn’t need to [exhaust], cause went to see
Doctor,” where plaintiff also alleged that he could not appeal because he was transferred and forms were not
available); Johnakin v. NYC Dept. of Corrections, 2013 WL 5519998, *6 (E.D.N.Y., Sept. 30, 2013) (holding the
fact that he described the first step of the grievance procedure did not make it apparent that he had not completed the
others; Dabney v. Sawyer, 2013 WL 5494074, *6 (N.D.N.Y., Sept. 30, 2013); McNair v. Rivera, 2013 WL
4779033, *5 (S.D.N.Y., Sept. 6, 2013) (holding omissions from complaint form concerning exhaustion did not
establish non-exhaustion; “Plaintiffs have not pled that they did not exhaust; and at this stage in the litigation they do
not need to demonstrate that they did.”); Townsend v. Holt, 2013 WL 4459023, *9 (M.D.Pa., Aug. 16, 2013)
(declining to dismiss based on incomplete grievance because court did not know whether plaintiff had attached all
grievances to complaint); Heilman v. Cherniss, 2013 WL 3992420, *3 (E.D.Cal., July 31, 2013) (holding complaint
that alleged exhaustion was not subject to dismissal because attached grievances did not completely establish nonexhaustion). See Appendix A for additional authority on this point.
One district has virtually adopted a form response to this argument. See, e.g., Carson v. Monroe, 2008 WL
822150, *4 (W.D.Mich., Mar. 26, 2008) (“The fact that Plaintiff attaches grievances to his complaint or to other
pleadings that may not show exhaustion of every issue presented is of no consequence, because Plaintiff has no duty
to show exhaustion. The burden lies solely with a defendant to show that Plaintiff failed to exhaust grievance
remedies.”); accord, Titlow v. Correctional Medical Services, 2008 WL 2697306, *7 (E.D.Mich., July 3, 2008);
Threatt v. Arredia, 2008 WL 762232, *7 (W.D.Mich., Mar. 19, 2008); Carson v. Riley, 2008 WL 746850, *3
(W.D.Mich., Mar. 18, 2008); Branham v. Bergh, 2008 WL 724947, *4 (W.D.Mich., Mar. 17, 2008); Floyd v.
Caruso, 2008 WL 680419, *4 (W.D.Mich., Mar. 7, 2008). But see Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.
2008) (dismissal upheld where court gave prisoner the opportunity to address exhaustion and he made it clear that
his claim of exhaustion was based entirely on grievances attached to his complaint).
302
See, e.g., Bess v. Hassam, 2013 WL 5719525, *2 (W.D.N.C., Oct. 18, 2013) (dismissing on initial review where
prisoner attached documentation of the first step of the grievance process but not the subsequent ones); Canady v.
Parson, 2013 WL 2480311, * 1-2 (W.D.N.C., June 10, 2013) (dismissing on initial review where prisoner attached
documentation of the first steps of the grievance process but not the last step); Cullinan v. Mental Health
Management Correctional Services, Inc., 2012 WL 2178927, *3-4 (D.Mass., June 11, 2012) (denying motion to

53

In my view, in light of the numerous circumstances in which remedies may be
unavailable or failure to use them excusable, almost the only situations in which non-exhaustion
can legitimately be said to be apparent on the face of the complaint are those in which the
complaint affirmatively states that the prisoner did not exhaust, or abandoned the process, for
reasons that are inexcusable as a matter of law, such as disbelief in its efficacy,303 its ability to
provide a particular remedy,304 or filing of the complaint before the administrative process was
completed.305 Some courts have inferred non-exhaustion from their own calculations of the time
the case was filed compared to the usual length of the grievance process306 (though one federal

amend complaint to add new claims, holding references to sick call slips and filing of grievances did not show
proper exhaustion); Uman v. Monroe, 2012 WL 481760, *2 (D.Kan., Feb. 14, 2012) (dismissing based on fact that
complaint mentioned only grievances that predated the matter complained of); Kurgan v. Yates, 2011 WL 4841054,
*3 (E.D.Cal., Oct. 12, 2011) (holding non-exhaustion was apparent on the face of the complaint, and plaintiff must
show cause why it should not be dismissed for non-exhaustion, where plaintiff submitted some irrelevant grievance
material and did not answer questions on the form complaint about exhaustion); Markovich v. Kansas Dept. of
Corrections, 2010 WL 1563686, *2 (D.Kan., Apr. 19, 2010) (court concludes it is “very unlikely” that the plaintiff
exhausted and therefore plaintiff must demonstrate exhaustion); Williams v. City of Wadesboro, NC, 2010 WL
1009982, *3 (W.D.N.C., Mar. 16, 2010) (dismissing for non-exhaustion based on conclusion that grievances
attached to complaint did not address the claims asserted in the complaint); Brown v. Napoli, 687 F.Supp.2d 295,
297-98 (W.D.N.Y. 2009) (where plaintiff wrote letters to the Superintendent rather than grieving, and said he was
afraid to grieve, the lack of factual allegations to support his claim of fear meant that non-exhaustion was apparent
on the face of the complaint); Albritton v. Johnson, 2007 WL 7303552, *1 (E.D.Va., Dec. 20, 2007) (demanding
documentation or detailed statement of grievances and appeals filed and responses received).
303
See, e.g., Rubio v. MCI-H 2010 Staff, 2013 WL 6211742, *5 (D.Md., Nov. 27, 2013) (dismissing where plaintiff
said he did not exhaust because he felt frustrated with the responses he received from prison officials); Dartz v.
Vienna Correctional Center, 2013 WL 5435806, *2 (S.D.Ill., Sept. 30, 2013) (dismissing where plaintiff said he did
not use grievance procedure “because they are not the Court”); Peters v. DeRose, 2013 WL 5278500, *3 (M.D.Pa.,
Sept. 17, 2013) (dismissing for non-exhaustion where complaint stated plaintiff had not exhausted because “they
don't answer them it take a long time. The also give you washy answers back.”); Dunton v. W.V.R.J., 2009 WL
4348330, *1 (W.D.Va., Dec. 1, 2009) (“Dunton states that he filed this lawsuit instead of filing complaints and
grievances at WVRJ, because officials there are ‘known to misplace’ these items.”); Thornton v. Clemons, 2009 WL
236058, *4 (W.D.Okla., Jan. 30, 2009) (dismissing where plaintiff stated he did not grieve because the grievance
system did not work properly).
304
See, e.g., Braggs v. California, 2010 WL 234878, *1 (N.D.Cal., Jan. 14, 2010) (“Plaintiff states that he failed to
complete the appeals process because the requested relief available through the grievance process is ‘inadequate.’”).
305
See, e.g., Hudson v. Spencer, 2013 WL 5305086, *14 (D.Mass., July 31, 2013) (dismissing where complaint
alleged that the administrative process was not complete); Brown v. Brewton, 2012 WL 5287957, *2 (S.D.Ga., Sept.
24, 2012) (dismissing because questionnaire answer said “Awating” a final answer), report and recommendation
adopted, 2012 WL 5287955 (S.D.Ga., Oct. 24, 2012), reconsideration denied, 2012 WL 5874469 (S.D.Ga., Nov.
20, 2012); Shouse v. Madsen, 2010 WL 276543, *1 (W.D.Va., Jan. 19, 2010) (“Plaintiff states in his complaint that
he ‘hasn't finished exhausting his administrative remedies but has filed his informal complaint and grievance’ and
other request forms.”). Even so, if the plaintiff has waited for a final grievance response for longer than the
specified time for a response, the failure to receive an answer should not mean non-exhaustion. See nn. 463-467,
above.
306
Manick v. South Carolina Dept. of Corrections, 2013 WL 2242978, *3 (D.S.C., May 21, 2013) (finding nonexhaustion at screening where plaintiff filed suit one day after filing his grievance); Coleman v. Lappin, 2011 WL
4586922, *7-8 (E.D.Ky., Sept. 29, 2011); Moran v. Jindal, 2011 WL 2118735, *2 (M.D.La., May 25, 2011), appeal
dismissed, 450 Fed.Appx. 353 (5th Cir. 2011); Bazemore v. Castaneda, 2011 WL 1675394, *3 (W.D.Tex., Apr. 28,
2011); Clark v. Cain, 2011 WL 1743618, *3 (M.D.La., May 6, 2011); Foster v. Moore, 2011 WL 1447612, *2
(E.D.Ky., Apr. 14, 2011); Howard v. Phillips, 2011 WL 1428074, *2 n.3 (W.D.Va., Apr. 13, 2011) (dismissing
where plaintiff complained of events six days before the complaint); Schaller v. U.S., 2011 WL 1791591, *6
(N.D.Fla., Mar. 21, 2011) (holding non-exhaustion was apparent on the face of the complaint where plaintiff filed
suit before the time for a final response was expired, even if he never got a response), report and recommendation

54

circuit has held that even such a visible defect “would not have affected the complaint's
sufficiency” and the court should not have acted upon it307). In many cases that inference will be
correct, but such reasoning, applied at initial screening without benefit of a record, does not
“ensure that any defects in exhaustion were not procured from the action or inaction of prison
officials” and that the prisoner is “without valid excuse” for non-exhaustion,308 or that the
administrative remedy actually was available for the claim the plaintiff raised. 309 For these
reasons, the safest and fairest way to proceed is to allow for notice and opportunity to be heard
even where the failure to exhaust seems unequivocal on the face of the complaint. One
economical way to accomplish this end is to direct the plaintiff to show cause why the case
should not be dismissed for non-exhaustion,310 and to submit an amended complaint if that will
clarify matters.311 Alternatively, the court can dismiss for non-exhaustion with leave to amend
and to clarify whether the plaintiff has exhausted.312
Unfortunately devices such as these have often been used inappropriately, where the
complaint does not clearly reveal non-exhaustion. Some courts have essentially flouted Jones v.
Bock’s holding that non-exhaustion is an affirmative defense which must be raised by
defendants. One circuit had held before Jones that courts could raise exhaustion sua sponte even
where non-exhaustion was not apparent on the face of the complaint, as long as the prisoner
received an opportunity to respond; on this view, exhaustion’s being an affirmative defense does
not preclude a court’s “inquiring on its own motion into whether the inmate exhausted all
administrative remedies.”313
This rationale and result appear to conflict with Jones. The Anderson court noted its
prior holding that in habeas corpus proceedings, courts have the power to raise timeliness
defenses sua sponte, since doing so promotes judicial efficiency and conservation of judicial
resources. It continued: “Similar concerns of efficiency and conservation of scarce judicial
resources, of course, underlie the PLRA in general and its exhaustion requirement in
adopted, 2011 WL 1775687 (N.D.Fla., May 10, 2011); Williams v. Boardman, 2010 WL 367794, *1 (E.D.Cal., Jan.
27, 2010) (plaintiff filed before time to decide grievance had passed).
307
Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013). In Grullon, the district court had declined to
allow the plaintiff to amend his complaint based on its calculation indicating non-exhaustion; the appeals court held
this was an abuse of discretion. See Read v. Calabrese, 2013 WL 5506344, *10 n.5 (N.D.N.Y., Aug. 29, 2013)
(stating Grullon holding “appears contrary to existing law”).
308
Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
309
See Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003).
310
See McKay v. Cook County Dept. of Corrections, 2012 WL 567276, *1 (N.D.Ill., Feb. 17, 2012).
311
See Johnson v. Bryant, 2011 WL 5118415, *2-3 (N.D.Ill., Oct. 26, 2011).
312
Ortega v. Flavetta, 2013 WL 2557781, *3 (N.D.Cal., June 10, 2013) (where complaint seemed to indicate that
only some claims, if any, were exhausted, dismissed with leave to amend to show exhaustion); Dews v. Chen, 2013
WL 1903866, *2 (E.D.Cal., May 7, 2013) (where timing of complaint seemed to indicate that plaintiff could not
have exhausted, dismissed with leave to submit amended complaint pleading exhaustion or excuse from it);
Edmundson v. O'Fallon, 2013 WL 682824, *5 (D.Mont., Feb. 22, 2013).
313
Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th Cir. 2005) (emphasis supplied).
After Jones, the court reiterated that “even if it is not apparent from the pleadings that there are available
administrative remedies that the prisoner failed to exhaust, a complaint may be dismissed on exhaustion grounds so
long as the inmate is first given an opportunity to address the issue.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.
2008). In Moore, however, the court did not dismiss at initial screening; rather, defendants raised exhaustion in a
motion for judgment on the pleadings, and the court found non-exhaustion based on the materials the plaintiff
submitted in response to that motion. 517 F.3d at 724. Thus Moore, unlike Anderson, is not directly in conflict with
Jones.

55

particular.”314 This appears to be precisely the kind of reasoning the Supreme Court rejected in
holding that “courts should generally not depart from the usual practice under the Federal Rules
on the basis of perceived policy concerns.”315
In any case, some Fourth Circuit district courts have taken the Anderson holding to
authorize, notwithstanding Jones, a demand that prisoner plaintiffs establish exhaustion even if
non-exhaustion is not apparent on the face of the complaint, and in some cases before defendants
put it in issue.316
Such a requirement appears contrary to Jones’s holding that the defendants must raise the
exhaustion defense.317 The persistence of such demands reflects to some extent the essentially
inquisitorial procedures some courts had adopted for the handling of pro se prisoner complaints.
The Fifth Circuit has addressed this problem directly, holding that in that circuit’s longestablished “Spears hearing” practice,318 it is no longer permissible to resolve exhaustion before
it is raised in a responsive pleading, and adding: “It bears emphasis that a district court cannot by

314

Anderson, 407 F.3d at 682.
Jones v. Bock, 549 U.S. 199, 212 (2007).
316
Wilson v. Kalinski, 2014 WL 546692, *2 (W.D.N.C., Feb. 10, 2014) (holding at initial screening that where
plaintiff attached a grievance to the complaint, but no other grievance documents, “he has not shown that he grieved
his claim through all steps of the grievance process”; dismissed for non-exhaustion); Knox v. Davis, 2013 WL
5947782, *2 (W.D.N.C., Nov. 6, 2013) (dismissing for non-exhaustion where plaintiff pled exhaustion but did not
provide copies of documents demonstrating it, providing only a handwritten summary to satisfy “requirement that he
show exhaustion of his remedies”); Matthews v. Hull, 2013 WL 3322386, *3 (E.D.Va., July 1, 2013) (“Plaintiff
must show that he has exhausted his administrative remedies before his claims may proceed.”), appeal dismissed,
544 Fed.Appx. 226 (4th Cir. 2013); Galeas v. David, 2012 WL 6608250, *1 (W.D.N.C., Dec. 18, 2012) (noting that
the court had directed the plaintiff to file an “Administrative Remedy Statement”); Riddick v. Herlock, 2012 WL
6042351, *6 (E.D.Va., Nov. 30, 2012) (“Before this action may proceed, plaintiff will be required to submit
additional information concerning his exhaustion of administrative remedies.”), vacated and remanded on other
grounds, 531 Fed.Appx. 388 (4th Cir. 2013) (unpublished); Reaves v. Jackson, 2011 WL 1226020, *2 (W.D.Va.,
Mar. 30, 2011) (noting court directed plaintiff to submit information about exhaustion; dismissing based on
submission); Beahm v. Berkebile, 2010 WL 3220653, *1 (S.D.W.Va., Aug. 6, 2010) (noting court upon screening
the case set a show cause hearing, ordered plaintiff to produce documentary proof of exhaustion, and dismissed
when he did not produce it by the time of the hearing); Lay v. Diggs, 2010 WL 7920623, *2 (E.D.Va., June 15,
2010) (holding complaint does not state a claim, directing filing of amended complaint, and also that “plaintiff will
be required to submit additional information concerning his exhaustion of administrative remedies as to each claim
he wishes to assert in this federal action”); Carmichael v. Ozmint, 2009 WL 3805297, *2 (D.S.C., Nov. 12, 2009)
(court notes it used special interrogatories to determine non-exhaustion); Wiley v. Boone County Sheriff's Office,
2009 WL 2390164, *3 (E.D.Ky., Aug. 4, 2009) (citing Fourth Circuit law; noting it gave plaintiff an opportunity at
screening to submit documentation supporting exhaustion); Roddy v. West Virginia, 2008 WL 5191243, *3
(N.D.W.Va., Dec. 11, 2008) (noting magistrate judge issued an order on remand from reversal of a screening
dismissal directing plaintiff to provide proof of exhaustion); Mora v. Shah, 2008 WL 8837022, *2 (E.D.Va., Sept.
2008) (“Plaintiff has informed the Court that he filed a grievance based on this complaint, but it is unclear whether
plaintiff has fully exhausted his administrative remedies. Before this action may proceed, plaintiff will be required to
submit additional information concerning his exhaustion of administrative remedies.”); see Kelly v. Terrangi, 2008
WL 4707230, *5 (E.D.Va., Oct. 21, 2008) (requiring plaintiff to submit additional information concerning
exhaustion in response to a motion to dismiss).
317
Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (“Because Mr. Aquilar-Avellaveda's
complaint was silent as to whether he had exhausted his administrative remedies—which is acceptable under
Jones—the district court erred in requesting Mr. Aquilar-Avellaveda to supplement the record on that issue.”)
318
A Spears hearing is an evidentiary hearing, often held at the prison, to permit the prisoner to “clarify, amend, and
amplify” the pleadings at the point of consideration of in forma pauperis applications. Eason v. Holt, 73 F.3d 600,
602 n.15 (5th Cir. 1996); see Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985).
315

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local rule sidestep Jones by requiring prisoners to affirmatively plead exhaustion.”319 The same
court has acknowledged that use of a court-approved form complaint demanding exhaustionrelated information, and using that information to dismiss, is just another way to “sidestep
Jones,” invalid because “it is defendants’ job to raise and prove such an affirmative defense.” 320
However, similar practices persist in other jurisdictions, without yet having attracted appellate
attention.321
There are many other post-Jones decisions that either demand information, or additional
information, about exhaustion, or dismiss for lack of such information, at the initial screening of
the complaint, despite Jones. In some cases, the courts cite Jones but don’t seem to see the
connection between its holding and their actions.322 In other cases, Jones is not mentioned at
319

Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir. 2007); see Coleman v. Sweetin, ___ F.3d ___, 2014 WL
958275, *4 (5th Cir. 2014) (reiterating Carbe holding, also holding that relying either on Spears hearing testimony
or grievances attached to complaint was error); Beasley v. Ivy, 2012 WL 5613265, *8 (E.D.Tex., Oct. 23, 2012)
(holding district court could not rely on facts elicited in Spears hearing to dismiss for non-exhaustion where plaintiff
asserted he had exhausted), report and recommendation adopted, 2012 WL 5596036 (E.D.Tex., Nov. 15, 2012).
320
Torns v. Mississippi Dept. of Corrections, 301 Fed.Appx. 386, 389, 2008 WL 5155229 (5th Cir. 2008)
(unpublished). Notwithstanding the Carbe holding and this one, the court can be forgiving of such errors. See
McMillan v. Director, Texas Dept. of Criminal Justice, Correctional Institutions Div., 40 Fed.Appx. 358, 359 (5th
Cir. 2013) (unpublished) (noting impropriety of raising exhaustion sua sponte, but affirming because “the record
otherwise demonstrates” non-exhaustion and the court can affirm on any basis evident in the record).
321
See, e.g., Reiser v. Du Bois, 2013 WL 2456573, *4-5 (N.D.Cal., June 6, 2013) (noting that plaintiff did not use
the court’s civil rights complaint form, which calls for information on exhaustion, which the court refers to as
“pleading requirements”; Jones v. Bock not cited); Rose v. Bamberg, 2012 WL 1859146, *2 (D.S.C., Apr. 30, 2012)
(holding that “no” answer to exhaustion question on form complaint made non-exhaustion apparent on the face of
the complaint), report and recommendation adopted, 2012 WL 1858922 (D.S.C., May 22, 2012); Vejar v. California
Dept. of Correction, 2011 WL 6000769, *2 (C.D.Cal., Nov. 30, 2011) (“In order to make sure that a prisoner has
complied with the foregoing exhaustion requirements, this Court requires prisoners bringing § 1983 civil rights
actions to use the Court-approved civil rights complaint form, which contains instructions that are tantamount to
general orders of this Court and require the inmate to ‘attach copies of papers related to the grievance procedure.’”
(quoting form)) (dictum); McNaughton v. Maricopa County Correctional Health Services, 2010 WL 2927419, *8
(D.Ariz., July 21, 2010) (annexing form complaint instructing prisoners to “disclose whether you have exhausted the
inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures
were not available for any of your counts, fully explain why on the lines provided.”); Edwards v. Haws, 2008 WL
5377995, *2 (C.D.Cal., Dec. 23, 2008); Harvey v. Ponder, 2008 WL 5071131, *3 (N.D.Cal., Nov. 26, 2008); see
also Aliksanian v. Goodstein, 2009 WL 412199, *2 (C.D.Cal., Feb. 18, 2009) (noting that complaint not on the
approved form did not allege or show exhaustion). These decisions do not acknowledge Jones v. Bock. Compare
McNair v. Rivera, 2013 WL 4779033, *5 (S.D.N.Y., Sept. 6, 2013) (declining to infer non-exhaustion from failure
to provide a complete account of exhaustion in response to question on the complaint form); Catoe v. Byrnes, 2013
WL 1281934, *1 (D.S.C., Jan. 29, 2013) (declining to infer non-exhaustion from the prisoner’s failure to fill out the
space for a grievance number on the “Complaint sheet”), report and recommendation adopted, 2013 WL 1281927
(D.S.C., Mar. 26, 2013).
322
See Scott v. Contra Costa County Sheriff's Department of Martinez Detention Facility, 2013 WL 3354245, *1
(N.D.Cal., July 1, 2013) (at screening, “the Court ordered him to show cause why those claims should not be
dismissed for failure to exhaust administrative remedies, as required by 42 U.S.C. § 1997e(a)”); Jones v. Hejirika,
2012 WL 5207616, *1 n.1 (D.Md., Oct. 19, 2012) (noting at screening plaintiff provides no “evidence” of
exhaustion, stating he should provide copies of administrative proceedings if he refiles his claim), aff’d, 517
Fed.Appx. 134 (4th Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 518 (2013); Geddings v. Bullock, 2012 WL
1402467, *2-3 (W.D.N.C., Apr. 23, 2012) (citing Jones, but describing incomplete allegations about exhaustion and
stating non-exhaustion is shown on the face of the complaint); Jones v. Plessas, 2010 WL 2824767, *3 (E.D.Cal.,
July 15, 2010) (citing Jones, but stating that attached exhibits plus failure to mention exhaustion in complaint “raise
a presumption” of non-exhaustion, and since he is suing 28 defendants, “it is imperative” that he show exhaustion of
each claim before the court screens an amended complaint); Lowe v. Ball, 2010 WL 1141262, *1 (E.D.Ky., Mar. 22,

57

all.323 The same type of error crops up at later stages in other cases.324 Of course many other
decisions get Jones right.325 The correct approach was reiterated by the Seventh Circuit in a
2010) (citing Jones, but describing court’s practice of asking for a demonstration of exhaustion where a plaintiff
fails to complete the four pages of the complaint form that address administrative remedies); Brooks v. City of Pine
Knot, 2009 WL 3414929, *1 (E.D.Ky., Oct. 21, 2009) (citing Jones, but noting court had issued order at initial
screening seeking more information about exhaustion, and then dismissing based on the information provided); King
v. Rios, 2008 WL 4272178, *2-3 (E.D.Ky., Sept. 12, 2008) (citing Jones, but noting court had issued an order at
initial screening asking about plaintiff’s failure to allege or show that he completed the grievance process);
Spaulding v. Oakland County Jail Medical Staff, 2007 WL 2336216, *2 (E.D.Mich., Aug. 15, 2007) (where prisoner
pled that he didn’t file grievances because he “never could obtain one,” dismissing for non-exhaustion because he
“does not allege facts indicating that it was inconceivable or next to impossible for him to obtain a grievance form
nor that he made an effort to comply with the grievance procedure despite not having possession of a grievance
form”; Jones cited).
323
See Neufeld v. Bautista, 2014 WL 458358, *2 (N.D.Cal., Jan. 31, 2014) (dismissing with leave to amend to
establish exhaustion of all claims against each defendant where complaint was “unclear” about exhaustion); Axtle v.
County of Alameda, 2013 WL 5979201, *4 (N.D.Cal., Nov. 8, 2013) (dismissing with leave to amend to “prove that
he exhausted all of his claims against each Defendant before he filed this action”; court noted it did not seem there
was enough time for some claims to have been exhausted); Baker v. Whitener, 2013 WL 3467053, *3 (W.D.N.C.,
July 10, 2013) (dismissing for non-exhaustion where plaintiff alleged that he exhausted but “provided no evidence
that he has completed any of the three steps required”); Beamon v. Newhart, 2013 WL 442689, *4 (E.D.Va., Feb. 1,
2013) (“Plaintiff has failed to allege and present evidence that he completely exhausted his institution's
administrative remedies.”); Riddick v. Herlock, 2012 WL 6042351, *6 (E.D.Va., Nov. 30, 2012), vacated and
remanded on other grounds, 531 Fed.Appx. 388 (4th Cir. 2013) (unpublished); Stewart v. King County Health
Dept., 2012 WL 4719073, *3 (W.D.Wash., Sept. 26, 2012) (“The complaint is also defective because there is no
indication Mr. Stewart exhausted his administrative remedies at the King County Jail.”), report and recommendation
adopted as modified, 2012 WL 4717880 (W.D.Wash., Oct. 2, 2012); Myers v. Jackson, 2012 WL 3637742, *1-3
(D.Kan., Aug. 23, 2012) (dismissing at screening because materials filed with complaint did not prove exhaustion),
appeal dismissed, 505 Fed.Appx. 795 (10th Cir. 2012); see Appendix A for additional authority on this point. In
Ortega v. Ritchie, 2012 WL 2931242, *3 (N.D.Cal., July 18, 2012), the court noted its prior dismissal because it was
“not readily apparent” that plaintiff had exhausted, then paradoxically held that once he had alleged exhaustion, it
was the defendants’ burden to raise the defense. See also Victor v. Lawler, 2011 WL 1107013, *6 (M.D.Pa., Feb.
24, 2011) (citing failure to address exhaustion as a reason for denying motion for preliminary injunction), report and
recommendation adopted, 2011 WL 1059614 (M.D.Pa., Mar. 23, 2011); U.S. v. Woods, 2009 WL 279098, *2
(N.D.Okla., Feb. 5, 2009) (dismissing motion for clarification of criminal sentence raising sentence calculation
where plaintiff failed to attach copies of administrative dispositions or describe their disposition with specificity;
Jones not cited); U.S. v. Nelson, 2008 WL 4279806, *2 (N.D.Okla., Sept. 15, 2008) (same); see Lee v. Tache, 2009
WL 3818368, *2 (S.D.Cal., Nov. 12, 2009) (where complaint disclosed non-exhaustion, plaintiff must plead that an
exception to the exhaustion requirement applied).
324
Skates v. Vanbockstaele, 2013 WL 658253, *3 (S.D.N.Y., Feb. 25, 2013) (finding non-exhaustion on motion to
dismiss based on lack of exhaustion allegations in complaint); Booze v. Wetzel, 2012 WL 6137561, *8 (M.D.Pa.,
Nov. 16, 2012) (holding motion for preliminary injunction deficient because plaintiff has not “shown” exhaustion),
report and recommendation adopted, 2012 WL 6138315 (M.D.Pa., Dec. 11, 2012); Maynard v. Hale, 2012 WL
3401095, *7 (M.D.Tenn., Aug. 14, 2012) (granting motion to dismiss based on pleading rules overruled in Jones v.
Bock), report and recommendation approved, 2012 WL 4979842 (M.D.Tenn., Oct. 17, 2012); Payne v. Elie, 2012
WL 748285, *3 (D.Ariz., Mar. 7, 2012) (denying motion to amend based on futility because the plaintiff did not
allege exhaustion of the new claim); Rountree v. Livingston, 2010 WL 4919602, *2 (E.D.Tex., Oct. 27, 2010)
(granting motion to dismiss where plaintiff “has not demonstrated that he exhausted administrative remedies before
he filed this lawsuit”), report and recommendation adopted, 2010 WL 4919665 (E.D.Tex., Nov. 24, 2010); Baggett
v. Goings, 2010 WL 3489158, *2 (E.D.Tex., July 13, 2010) (granting motion to dismiss where plaintiff alleged that
after Hurricane Ike, no remedy existed, but “plaintiff offers no support for this assertion”), report and
recommendation adopted, 2010 WL 3489156 (E.D.Tex., Sept. 1, 2010); Berrios-Romero v. Compass Group North
America, 727 F.Supp.2d 54, 58 (D.P.R. 2010) (granting motion to dismiss where plaintiff neither pled exhaustion
nor informed the court about the details of his grievances); Rice v. Wayne County Dept. of Social Services, 2010
WL 2690347, *5 (E.D.N.C., Mar. 8, 2010) (recommending dismissal for non-exhaustion “[b]ecause Plaintiff has

58

recent unreported decision, in which the complaint did not mention exhaustion but the plaintiff
had made some relevant comments about it in a telephone conference: “The exception to the rule
that complaints should not be dismissed at screening for failure to exhaust requires that the
affirmative defense be obvious on the face of the complaint itself. . . .”326 Further, nonexhaustion must be obvious on the face of the current complaint; once the complaint is amended,
allegations from a superseded complaint are no longer in the case.327
One court has held that a plaintiff must demonstrate exhaustion in order to obtain a
default judgment.328
2. Burden of Proof
As with other affirmative defenses, the burden of proof concerning exhaustion follows
the burden of pleading, and defendants are obliged to establish non-exhaustion as well as to
assert it.329 On summary judgment, once defendants have produced evidence that arguably
meets their burden of showing non-exhaustion, the plaintiff has a burden of production to come
forward with evidence supporting exhaustion, though the ultimate burden of showing an absence

failed to allege that he has exhausted any available administrative remedies”), report and recommendation adopted,
2010 WL 2679991 (E.D.N.C., July 1, 2010); Mays v. Untig, 2010 WL 936206, *3 (D.N.J., Mar. 12, 2010) (granting
motion to dismiss, supported by a “certification” but not converted to summary judgment, because plaintiff’s
responses did not establish exhaustion); Whiteside v. Collins, 2009 WL 4281443, *3 (S.D.Ohio, Nov. 24, 2009)
(“The plaintiff-prisoner bears the burden of proving that a grievance has been fully exhausted. . . .”), report and
recommendation adopted, 2010 WL 1032424 (S.D.Ohio, Mar. 17, 2010); Johnson v. Vail, 2009 WL 1283142, *3
(W.D.Wash., May 7, 2009) (citing failure to allege exhaustion in granting motion to dismiss), aff’d, 397 Fed.Appx.
403 (9th Cir. 2010) (unpublished).
325
See, e.g., Smith v. U.S., 2010 WL 307942, *4-5 (E.D.Ky., Jan. 27, 2010) (“Unless the lack of exhaustion is
obvious on the face of the Complaint, it is up to the Defendants to raise or waive the issue of exhaustion.”),
amending and superseding 2009 WL 3756641, *3 (E.D.Ky., Nov. 6, 2009) (stating at screening: “It is a plaintiff's
burden to demonstrate exhaustion of his or her administrative remedies with regard to each claim and each
defendant, by either attaching copies of documents therefrom or by describing with particularity the administrative
steps he took and responses he or she received in the process.”).
326
Kincaid v. Sangamon County, 435 Fed.Appx. 533, 536 (7th Cir. 2011) (unpublished) (emphasis supplied);
accord, Sherman v. Aguilar, 2012 WL 1107752, *6 (S.D.Cal., Apr. 2, 2012) (passing references in plaintiff’s
deposition did not support dismissal on motion to dismiss), appeal dismissed, No. 12-55730 (9th Cir., May 29,
2012).
327
McAllister v. Wiekl, 2014 WL 795084, *3 (M.D.Pa., Feb. 27, 2014).
328
McCurdy v. Johnson, 2012 WL 3135906, *2 (D.Nev., Aug. 1, 2012). There is no apparent basis in the statute for
this requirement and the court does not explain its reasoning. As explained in § X, below, there is some question
whether default judgments are permitted in cases governed by the PLRA.
329
See Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (“Non-exhaustion is an affirmative defense under the
PLRA, with the burden of proof falling on the Bureau.”); Dillon v. Rogers, 596 F.3d 260, 266 (5 th Cir. 2010) (stating
defendants have the burden to establish “beyond peradventure all of the essential elements of the defense of
exhaustion to warrant summary judgment”); Roberts v. Barreras, 484 F.3d 1236, 1240-41 (10th Cir. 2007) (citing
established rules that the burden of proving affirmative defenses is on the defendant and that burden of proof follows
burden of pleading); Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th Cir. 2005);
Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam); Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th
Cir.), cert. denied, 540 U.S. 810 (2003) and cases cited; Turner v. Grant County Detention Center, 2008 WL
821895, *5 (E.D.Ky., Mar. 26, 2008). Contra, Timms v. Tucker, 2012 WL 2008599, *2 (M.D.Tenn., June 5, 2012)
(holding, erroneously, that once exhaustion is raised by defendants on a motion to dismiss, plaintiff must submit
evidence showing exhaustion), report and recommendation adopted, 2012 WL 2872053 (M.D.Tenn., July 12, 2012).

59

of material factual dispute remains with the defendants.330 Decisions suggesting that, e.g., once
defendants produce evidence of non-exhaustion, “the burden shifts to Plaintiff to establish that a
failure to exhaust was due to the unavailability of remedies,”331 are erroneous.332
One circuit in an unpublished case has stated, more subtly: “Although a defendant
generally bears the burden of proving an affirmative defense, like exhaustion, a plaintiff typically
bears the burden of establishing an exception to it. . . .”333 In that case, the prisoner argued that
the remedy was not available to him under the circumstances. In my view, it is mistaken to
characterize this argument as an “exception” to exhaustion. The exhaustion requirement is
statutory, and the statute states that prisoners must exhaust “such administrative remedies as are
available.”334 The exhaustion defense, stated more precisely, must be the claim that the prisoner
plaintiff did not comply with the statute. If defendants have the burden of proof of the defense,
they must have the burden of proving that the remedy was actually available, since availability is
an essential term of the statute and not an exception to it.335

330

Surles v. Andison, 678 F.3d 452, 456 (6th Cir. 2012) (rejecting argument that once defendants come forward on
summary judgment with some evidence of non-exhaustion, burden shifts to plaintiff to show exhaustion; defendants
must show the absence of factual disputes); Jackson v. Director of Corrections of California, 2013 WL 3923426, *4
(C.D.Cal., July 29, 2013) (“Should a defendant submit declarations and/or other documentation demonstrating an
absence of exhaustion, making a prima facie showing, the prisoner plaintiff has a burden of production to refute that
showing. . . .”); Young v. Moreno, 2012 WL 1836088, *4 (C.D.Cal., May 8, 2012) (same as Jackson, supra), report
and recommendation adopted, 2012 WL 1835631 (C.D.Cal. May 17, 2012).
331
Johnson v. District of Columbia, 869 F.Supp.2d 34, 38 (D.D.C. 2012) (emphasis supplied); accord, Williams v.
Gavins, 2013 WL 5408638, *6 (M.D.Pa., Sept. 25, 2013) (referring to plaintiff’s “exacting burden” to show nonexhaustion resulted from his being misled or impeded or by other extraordinary circumstances). So is Garcia v.
Steed, 2010 WL 3001849, *1 (D.Kan., July 28, 2010), in which the defendants, having pled non-exhaustion, moved
for a more definite statement concerning exhaustion. The court acknowledged that exhaustion is an affirmative
defense and not a pleading requirement, but stated:
Unless plaintiff now comes forth with actual facts or exhibits including the dates and contents of
his grievances and administrative appeals showing that he did exhaust all available administrative
remedies in a timely and proper manner on the claims raised in his complaint prior to filing his
complaint, this action is subject to being dismissed under § 1997e(g) for failure to exhaust.
Plaintiff will be given time to show that he fully and properly exhausted administrative remedies
on his claims.
Thus, the court apparently contemplated dismissal without requiring the defendants to come forward with any
evidence at all of non-exhaustion.
332
Surles v. Andison, 678 F.3d 452, 456 (6th Cir. 2012) (noting the argument contradicts Jones v. Bock’s holding
that exhaustion is an affirmative defense).
333
Moore v. Feinerman, 515 Fed.Appx. 596, 598-99 (7th Cir. 2013); accord, Still v. Schmidt, 2013 WL 1091745,
*5 (D.Alaska, Mar. 15, 2013) (holding that once defendants show lack of exhaustion, the plaintiff has the burden to
show the remedy was not available).
Similarly, a panel of the Ninth Circuit has recently stated: “A defendant's burden of establishing an inmate's
failure to exhaust is very low. . . . A defendant need only show the existence of remedies that the plaintiff did not
use.” Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012), rehearing en banc granted, 709 F.3d 994 (9th Cir. 2013).
This statement, while it may be correct in some cases, ignores the fact that numerous factual issues may arise
concerning either the availability of remedies or whether the plaintiff used or tried to use them, and defendants
should have the burden of proof as to each of them that are actually at issue, as discussed in this section.
Appropriately, the case has been ordered to be reheard en banc.
334
42 U.S.C. § 1997e(a).
335
The authority cited in Moore for its assertion of the plaintiff’s burden consists of cases about equitable tolling of
statutes of limitations, 515 Fed.Appx. at 599, which are more plausibly characterized as exceptions to the limitations
defense.

60

Defendants’ burden of establishing non-exhaustion336 encompasses, first, showing that
there was an available remedy at the relevant time and place for the particular complaint raised
by the prisoner, and what it was.337
Many decisions have held that it is defendants’ burden to establish that a remedy was
made known to prisoners.338 However, other decisions have held that officials are not obliged
336

Of course if the plaintiff does not respond to a summary judgment motion asserting non-exhaustion, the
defendants’ evidence or statement of material facts may be taken as admitted, and summary judgment granted
regardless of the adequacy of defendants’ evidence. Townsel v. Raupp, 2013 WL 6842474, *5 (E.D.Mich., Dec. 27,
2013) (holding evidence that might be inadequate if contested supported summary judgment when uncontested);
Bell v. Blume, 2009 WL 5172969, *3 (M.D.Pa., Dec. 30, 2009).
337
See Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (“Establishing, as an affirmative defense, the existence of
further ‘available’ administrative remedies requires evidence, not imagination.”); Gardner v. County of Baldwin,
2014 WL 171839, *17 (S.D. Ala., Jan. 15, 2014) (holding defendants failed to meet their burden where they failed
to submit the grievance policy that was in effect at the time of plaintiff’s grievances); Beltran-Ojeda v. Doe, 2013
WL 6059242, *1 (D.Ariz., Nov. 18, 2013) (“To demonstrate that there were remedies available, Defendants must
submit adequate and complete documents of the grievance system. . . .”), reconsideration denied, 2014 WL 1047148
(D.Ariz., Mar. 18, 2014); Lawrence v. Rucker, 2013 WL 3490956, *3 (M.D.Ga., July 10, 2013) (“Although Plaintiff
acknowledges that there was a grievance procedure at Wilcox State Prison, there is nothing in the record to show
what the grievance procedure entails. Defendants have failed to present evidence of the grievance procedure or
affidavits of prison officials describing the available grievance procedure. . . .”); Peterson v. Stephens, 2013 WL
1386673, *3 (D.S.C., Mar. 7, 2013) (denying summary judgment to defendants who presented no evidence
concerning the alleged remedy), report and recommendation adopted, 2013 WL 1386676 (D.S.C., Apr. 4, 2013);
Dubois v. Washoe County Jail, 2013 WL 100940, *2 (D.Nev., Jan. 7, 2013) (declining to dismiss where defendants
provided no information about the grievance policy or its availability to a prisoner transferred immediately); Lawson
v. Youngblood, 2012 WL 5356058, *3 (E.D.Cal., Oct. 30, 2012) (holding defendants failed to meet their burden by
establishing the grievance procedures), report and recommendation adopted, 2012 WL 6047161 (E.D.Cal., Dec. 5,
2012); see Appendix A for additional authority on this point; see also n.1032 (citing cases so holding with respect to
prisoners transferred away from the place where the claim arose before they had grieved). But see Napier v. Laurel
County, Ky., 636 F.3d 218, 224 (6th Cir. 2011) (holding that prisoners are obliged to try to use the grievance policy
unless it specifically precludes them from grieving; “We are not requiring that a prisoner utilize every conceivable
channel to grieve their case, but even when a policy is vague, a prisoner must do what is required by the grievance
policy.”). In Napier, the question was whether the grievance system could be used by a prisoner held in a different
prison operated by another jurisdiction. Cf. Johnson v. Visvardis, 2012 WL 1204389, *3 (N.D.Ill., Apr. 11, 2012)
(dismissing for non-exhaustion despite defendants’ failure to submit the grievance procedure; no discussion of
whether the complaint was within the scope of the policy.)
In Strole v. Coats, 2005 WL 1668900, *3 (M.D.Fla., July 11, 2005), the court took judicial notice of
documents in its files showing that there is a grievance procedure at a particular jail, without mentioning how or
whether it was established that that procedure was in effect at the time of the events complained of by the current
plaintiff. Accord, Lefebvre v. Pallito, 2012 WL 7198435, *5 n.9 (D.Vt., Dec. 17, 2012) (“The court takes judicial
notice of this grievance procedure, as it is ‘generally known’ in this jurisdiction, and ‘can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.’ Fed.R.Evid. 201(b)”), report and
recommendation adopted in part, rejected in part, 2013 WL 682741 (D.Vt., Feb. 25, 2013); see Trackling v.
Tillman, 2010 WL 724356, *2 n.2 (M.D.La., Mar. 2, 2010) (taking judicial notice of the existence of a grievance
process based on prior proceedings in other litigation in which the court had approved the prison rule book and
subsequent modifications to it).
338
Brown v. Drew, 452 Fed.Appx. 906, 908 (11th Cir. 2012) (unpublished) (noting in case where grievance response
arrived too late to appeal, “nothing in the record establishes that Brown was aware or could readily become aware of
his right to request an extension of time to resubmit his appeal”); Miller v. Shah, 2011 WL 2672257, *4 (S.D.Ill.,
June 8, 2011) (noting defendants showed only that there was only a brief reference in a 23-page rulebook to
complaint procedures, and no evidence of any further instruction), report and recommendation adopted, 2011 WL
2679091 (S.D.Ill., June 30, 2011); Hazel v. McElvogue, 2011 WL 1543880, *2 (D.S.C., Apr. 21, 2011) (noting
defendants failed to meet their burden to show that plaintiff received notice of the grievance policy), aff’d, 440
Fed.Appx. 213 (4th Cir. 2011) (unpublished); Brown v. Fischer, 2010 WL 5797359, *3 (N.D.N.Y., Dec. 8, 2010)

61

affirmatively to inform prisoners of a remedy as long as the prisoners have some means of
finding out about it.339
The burden to establish non-exhaustion encompasses showing that the plaintiff is a
prisoner who is required to exhaust (or was at the time suit was filed).340
Defendants must also reliably establish the failure to exhaust.341 Numerous courts have
found prison officials’ affidavits and documentation asserting that a prisoner had not exhausted
to be inadequate or outright inadmissible because they were conclusory,342 reflected an
(“Other than the limited advice provided by the librarian, the record does not establish that Brown received an
inmate handbook or any other guidance about DOCS administrative grievance program.”), report and
recommendation adopted, 2011 WL 552039 (N.D.N.Y., Feb. 9, 2011); Williams v. Turner, 2010 WL 3724827, *2
(W.D.Ark., Sept. 17, 2010) (noting defendants failed to provide any information about “how inmates . . . are
informed of the grievance procedure”); Reynolds v. Metcalf, 2009 WL 2971272, *3 (D.Or., Sept. 9, 2009) (having
previously held that defendants failed to meet their burden, court dismisses for non-exhaustion after defendants
made an appropriate record of their publicization and plaintiff’s knowledge of the remedy), aff’d, 398 Fed.Appx.
263 (9th Cir. 2010) (unpublished); Buckner v. Jones, 2009 WL 2136505, *6 (M.D.Ala., July 15, 2009) (evidence
that the plaintiff received a jail handbook in 1999 did not establish that he was informed of the procedures applicable
in 2007); Wetzel v. Slidell Police Dept., 2009 WL 1507575, *4 (E.D.La., May 28, 2009) (defendants must show a
remedy was made known to the plaintiff).
339
See nn. 1078-1089 for decisions on both sides of this question.
340
Holland v. Prince George's County, Md., 2011 WL 530559, *3 (D.Md., Feb. 8, 2011); Abner v. County of
Saginaw County, 496 F.Supp.2d 810, 823 (E.D.Mich. 2007), vacated in part on reconsideration on other grounds,
2007 WL 4322167 (E.D.Mich., Nov. 28, 2007); Duvall v. Dallas County, Tex., 2006 WL 3487024, *4 (N.D.Tex.,
Dec. 1, 2006); Dutcher v. County of LaCrosse, WI, 2005 WL 2100979, *2 (W.D.Wis., Aug. 30, 2005); Moore v.
Baca, 2002 WL 31870541, *2 (C.D.Cal. 2002). In Gulas v. Bernalillo County Sheriff, 2007 WL 2562847, *2 (10th
Cir., Sept. 5, 2007) (unpublished), the court reversed a district court initial screening dismissal of a complaint which
stated that the plaintiff had not exhausted, in part because the complaint on its face did not establish that he was a
prisoner at the time of filing.
341
One court in dicta usefully summarized what such a showing should involve:
. . . [T]he affidavit on such matters should include more detailed facts about what records the
person reviewed and why a review of those records should be dispositive of whether a grievance
was filed and exhausted. . . . The movant should provide the court with factual information from
which a reasonable person would be assured that a diligent search of the relevant records has been
conducted. The affidavit should, rather than being drafted as narrowly as possible, tell the story of
what the affiant did and explain to the court why that action establishes that a grievance was not
filed and exhausted with regard to the allegations in the suit.
Dupry v. Gehrig, 2009 WL 2579055, *3 (W.D.La., Aug. 20, 2009); accord, Baker v. County of Missaukee, 2011
WL 1670953, *8 (W.D.Mich., Mar. 28, 2011) (stating “defendants would be required to move for summary
judgment, supply the court with both the relevant grievance policies and an authenticated factual record of all
grievances pursued by plaintiff and the results thereof and demonstrate the manner in which plaintiff has failed to
exhaust each claim”), report and recommendation adopted, 2011 WL 1670949 (W.D.Mich., May 3, 2011);
Williams v. Turner, 2010 WL 3724827, *2 (W.D.Ark., Sept. 17, 2010) (noting failure to provide “an affidavit or any
other information stating that Plaintiff's jail file was searched and no grievances were submitted regarding the issues
in his complaint”); Kiger v. Clairborne, 2009 WL 2222710, *4 (W.D.La., July 24, 2009).
342
See Ray v. Kertes, 130 Fed.Appx. 541, 543 (3d Cir. 2005) (unpublished) (holding “conclusory statement” that
“does not constitute a factual report describing the steps Ray did or did not take to exhaust his grievances” did not
meet defendants’ burden); Jaros v. Illinois Department of Corrections, 2013 WL 5546189, *2-3 (S.D.Ill., Oct. 8,
2013) (holding staff affidavit stating grievance appeal was untimely, but without submission of supporting
documents, failed to establish actual date of appeal and whether plaintiff had received previous decision in time for a
timely appeal); Burke v. Baker, 2012 WL 1203350, *9 (W.D.Pa., Apr. 10, 2012) (holding submission of grievances
without authentication and sworn declaration that they were a complete and accurate record of plaintiffs’ grievance
proceedings did not meet defendants’ burden; noting plaintiff alleged that he had filed another grievance which was
improperly rejected); Branham v. Mansfield, 2009 WL 3102909, *5 (W.D.Mich., Sept. 23, 2009) (holding claim

62

inadequate or inadequately explained records search,343 failed to set out how records were
maintained or revealed an unreliable system,344 rested on hearsay,345 failed to address relevant
that plaintiff only filed one grievance concerning legal mail was inadequate when they did not also file a list of all
his grievances or an affidavit from the grievance coordinator in support, and where plaintiff referenced other
grievances that seemed to be relevant); Harrison v. Deen, 2008 WL 5435339, *1-2 (W.D.La., Dec. 31, 2008)
(conclusory affidavits that did not explain the operation of the grievance system or assert that the records had been
searched, merely asserted that plaintiff filed no grievances on the subject matter, rejected); Owens v. Campbell,
2007 WL 2128244, *4 n.3 (D.S.C., Mar. 26, 2007) (where plaintiff alleged he never received a response to his
grievance, defendants failed to meet their burden when they provided no evidence about their procedure or what
happened to his grievance), report and recommendation adopted in part, 2007 WL 2128287 (D.S.C., July 25, 2007);
Laws v. Walsh, 2003 WL 21730714, *3 n.3 (W.D.N.Y., June 27, 2003) (holding conclusory affidavit about records
search and lack of appeals inadmissible).
343
Roberts v. Neal, ___ F.3d ___, 2014 WL 929047, *2-3 (7th Cir. 2014) (noting it was unclear whether defendants’
records search would have uncovered the emergency grievance the plaintiff said he had submitted); Stout v. NorthWilliams, 476 Fed.Appx. 763, 765-66 (5th Cir. 2012) (unpublished) (noting absence of verified statement that
defendants had reviewed plaintiff’s grievance history for the relevant time period); Howard v. Gambino, 2011 WL
5189007, *1 (9th Cir., Nov. 2, 2011) (unpublished) (holding defendants’ presentation inadequate where they “relied
on a declaration by their attorney stating that she reviewed documents contained in her office file, rather than
conducting a complete search of the jail's tracking system for inmate grievances and their dispositions”); White v.
Whorton, 430 Fed.Appx. 621 (9th Cir. 2011) (unpublished) (holding defendants’ submission of unverified grievance
report “unaccompanied by a declaration describing its import or completeness, is insufficient to meet the defendants'
burden to show nonexhaustion”); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (noting that defendants’
affidavit does not state whether the plaintiff exhausted his appeals; their “Appeal Record” lacks a foundation and is
not shown to be complete), cert. denied, 540 U.S. 810 (2003); Crawford v. Prison Health Services, 2013 WL
6255375, *4 (W.D.Mich., June 28, 2013) (holding list of plaintiff’s grievances that was not authenticated, did not
adequately define the time period covered, and did not establish that they were his only grievances could not support
summary judgment for non-exhaustion), report and recommendation adopted, 2013 WL 6254331 (W.D.Mich.. Dec.
4, 2013); see Appendix A for additional authority on this point. But see Dupree v. Pierce, 2007 WL 4565021, *4
(C.D.Ill., Dec. 21, 2007) (accepting affidavit which did not state methodology for finding the absence of a record
where the plaintiff did not make allegations of specific grievances and their subjects).
344
Williams v. Bledsoe, 2013 WL 5522848, *5 (M.D.Pa., Oct. 3, 2013) (declining to accept assertions of nonexhaustion where such assertions as to another incident had proved unreliable); Sheridan v. Reinke, 2012 WL
1067079, *5 (D.Idaho, Mar. 28, 2012) (declining to dismiss where defendants did not retain copies of grievance
forms deemed to be insufficient, so defendants could not refute allegation that plaintiff received no response to his
submissions); Turley v. Cowan, 2012 WL 996957, *6-7 (S.D.Ill., Mar. 23, 2012) (finding defendants’ records
sufficiently inaccurate, based on documentation in the record, that the court declines to infer lack of exhaustion from
them); Badwi v. Hedgpeth, 2012 WL 479192, *4 (N.D.Cal., Feb. 14, 2012) (citing demonstrated inaccuracies in
prison’s grievance records); Kress v. CCA of Tenn., 2010 WL 2694986, *5-6 (S.D.Ind., July 2, 2010) (holding that
at a hearing “it became evident . . . that there was no reliable system” of record-keeping concerning prisoner
complaints); Ortiz v. Kilquist, 2007 WL 2908003, *3 (S.D.Ill., Oct. 3, 2007) (noting defendants’ failure to disclose
record-keeping practices in denying summary judgment); see Bickel v. Miller, 2009 WL 5111795, *4 (W.D.Pa.,
Dec. 18, 2009) (grievance documents without a supporting affidavit or authentication cannot conclusively establish
non-exhaustion); Davis v. Michigan Dept. of Corrections, 2008 WL 1820926, *1-2 (W.D.Mich., Apr. 4, 2008)
(unauthenticated documents could not be considered on a summary judgment motion).
345
Hicks v. Irvin, 2010 WL 2723047, *6 (N.D.Ill., July 8, 2010) (refusing to consider defendants’ “Sentry” records
system where they failed to establish its status as business records); Bey v. Williams, 2010 WL 1759573, *2 (D.Md.,
Apr. 29, 2010) (declining to dismiss for non-exhaustion where defendants cited documents, but did not produce
them because they were archived); Donahue v. Bennett, 2003 WL 21730698, *4 (W.D.N.Y., June 23, 2003)
(holding counsel’s hearsay affirmation about a telephone call with grievance officials did not properly support their
motion); see Mandeville v. Anderson, 2007 WL 4287724, *3-4 (D.N.H., Dec. 4, 2007) (declining to dismiss based
on a prison official’s characterization of plaintiff’s complaints where the actual complaints were not submitted to
court); see Mandeville v. Anderson, 2007 WL 4287724, *3-4 (D.N.H., Dec. 4, 2007) (declining to dismiss based on
a prison official’s characterization of plaintiff’s complaints where the actual complaints were not submitted to
court).

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issues raised by the plaintiff,346 or otherwise failed to establish officials’ claims.347 (In a
remarkable number of cases, plaintiffs have produced documentation of grievances that prison
officials did not produce, had no record of, or claimed did not exist.348) Several decisions have
held that defendants’ summaries or characterizations of prisoners’ grievances do not sufficiently
establish what matters were and were not exhausted.349 The absence of a record confirming
346

Surles v. Andison, 678 F.3d 452, 457 n.10 (6th Cir. 2012) (holding defendants must negate allegations that
defendants interfered with plaintiff’s efforts to exhaust).
347
See Surles v. Andison, 678 F.3d at 457 (showing earlier dismissal for non-exhaustion and subsequent grievance
rejections as untimely did not show non-exhaustion, since initial dismissal was under legal rules later overruled);
Littler v. Indiana Dept. of Corrections Com'r, 2013 WL 1149607, *6 (N.D.Ind., Mar. 19, 2013) (holding defendants
did not prove their claim that plaintiff filed his appeal in the wrong place without a declaration or affidavit to that
effect); Hubbard v. Hougland, 2012 WL 4469110, *7-8 (E.D.Cal., Sept. 27, 2012) (holding defendants had not met
their burden of refuting plaintiff’s testimony at an evidentiary hearing that he filed a grievance which vanished),
report and recommendation adopted, 2012 WL 5304773 (E.D.Cal., Oct. 25, 2012); Hisle v. Arevalo, 2012 WL
928405, *5 (C.D.Cal., Feb. 8, 2012) (declining to dismiss because plaintiff declared under penalty of perjury he had
taken the proper steps to file it, and defendants provided no declaration or other evidence to the contrary), report and
recommendation adopted, 2012 WL 928384 (C.D.Cal., Mar. 19, 2012); Baker v. Walker, 2012 WL 761596, *5
(E.D.Cal., Mar. 8, 2012) (declining to dismiss because there was a grievance which might have exhausted the claim
at issue but defendants did not place its substance in the record), report and recommendation adopted, 2012 WL
1075523 (E.D.Cal., Mar. 29, 2012); Hall v. Bendoff, 2011 WL 6288122, *6-7 (S.D.Ill., Nov. 18, 2011) (noting that
grievance officer denied receiving any grievances from plaintiff, but other prison records confirmed their
submission); see Appendix A for additional authority on this point.
348
See Abdul-Aziz v. Nwachukwu, 523 Fed.Appx. 128, 130 & n.3 (3d Cir. 2013) (unpublished) (noting that the
defendants denied that the grievance appeal the plaintiff produced had been filed, then admitted on appeal that it had
been filed); Whitmore v. Jones, 456 Fed.Appx. 747, 749-50 (10th Cir. 2012) (unpublished) (noting the state’s change
of position in response to plaintiff’s producing the grievance they denied was filed); Spires v. Harbaugh, 438
Fed.Appx. 185, 187 n.2 (4th Cir. 2011) (unpublished) (noting “the State alleged to the district court that Spires
availed himself of none of the avenues of administrative relief. This highly material fact is clearly disputed by
Spires' submission of copies of dismissals of his administrative remedy requests.”); Adams v. Sutmiller, 2014 WL
584749, *6 (W.D.Okla., Feb. 12, 2014) (noting plaintiff’s production of a file-stamped grievance contrary to
defendants’ claim that he filed no relevant grievances); Barghouti v. Pfister, 2014 WL 509328, *4 (S.D.Ill., Feb. 10,
2014) (crediting plaintiff’s testimony that grievance he produced was submitted despite lack of record); Alsobrook
v. Alvarado, 2013 WL 6246383, *8 (S.D.Fla., Dec. 3, 2013) (stating that plaintiff’s evidence of filing at least one
grievance showed that defendants’ declaration stating he had filed no grievances was unreliable); LaPointe v.
Bienovidas, 2013 WL 3439905, *5 (D.Ariz., July 9, 2013) (declining to infer from defendants’ lack of records that
certain documents were not submitted, since they had so claimed about a grievance appeal and the plaintiff had
produced the appeal); Green v. Nish, 2013 WL 4781732, *6 (M.D.Pa., Sept. 5, 2013) (noting plaintiff’s production
of an appeal of which defendants had no record); see Appendix A for additional authority on this point; see also
Kelly v. Tan, 2013 WL 4811913, *5 (W.D.N.Y., Sept. 10, 2013) (noting defendants’ acknowledgement of second
grievance after they had initially denied it).
349
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (holding the court must see “evidence . . . establishing
that the ‘Appeal Record’ is what defendants say it is”); Allen v. Prince, 2013 WL 5273300, *6 (D.Del., Sept. 17,
2013) (declining to dismiss where defendants did not submit all plaintiffs’ grievances, so the court could not
determine what issues were exhausted); Porter v. Neotti, 2013 WL 485858, *12 (S.D.Cal., Feb. 6, 2013) (holding
court cannot determine what plaintiff grieved where defendants provided only their responses to the grievances);
Willis v. Vasquez, 2012 WL 5388763, *7-8 (C.D.Cal., Sept. 27, 2012) (holding defendant did not meet its burden
because he did not show what issues were raised in plaintiff’s grievance appeal), report and recommendation
adopted, 2012 WL 5388664 (C.D.Cal., Nov. 1, 2012); Young v. Moreno, 2012 WL 1836088, *4 (C.D.Cal., May 8,
2012) (holding defendant “has not submitted the inmate appeal forms filed by Plaintiff so that the court can
determine the nature and scope of the grievance asserted by Plaintiff.” Review of the grievance body’s decisions is
not conclusive as to what the plaintiff complained of.), report and recommendation adopted, 2012 WL 1835631
(C.D.Cal., May 17, 2012); Young v. Wexford Health Sources, 2012 WL 621358, *10 n.5 (N.D.Ill., Feb. 14, 2012);
Jones v. McGuire, 2012 WL 439429, *2-3 (E.D.Cal., Feb. 9, 2012), vacated, 2012 WL 691626 (E.D.Cal., Mar. 2,
2012) (finding exhaustion established, ordering defendants to show cause why sanctions should not be imposed for

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exhaustion does not meet defendants’ burden if plaintiff’s claim is that prison officials failed to
follow the procedures that would have led to creation of such a record.350 If plaintiffs attach
exhaustion-related documentation to their complaints, officials may not establish non-exhaustion
simply by pointing to omissions in those documents, unless they also show that the documents
present the complete picture of the plaintiff’s exhaustion efforts.351 A plaintiff’s inability to
remember with certainty whether he pursued a grievance or not does not meet defendants’
burden of establishing non-exhaustion.352
Officials must also show what prisoners were required to do to exhaust.353 If officials
rely in court on procedural errors by the prisoner, they must show that they relied on those
procedural errors in rejecting the prisoner’s grievance.354
belated production of underlying documents); Mandeville v. Anderson, 2007 WL 4287724, *3-4 (D.N.H., Dec. 4,
2007) (declining to dismiss based on a prison official’s characterization of plaintiff’s complaints where the actual
complaints were not submitted to court); see Wood v. Reinke, 2013 WL 1186260, *6 (D.Idaho, Mar. 21, 2013)
(noting discrepancy between plaintiff’s handwritten grievance and prison’s electronic summary of it); Sawyer v.
Cole, 2012 WL 551900, *3 (D.Nev., Jan. 18, 2012) (noting discrepancies between summary report and actual
grievance documentation and “continuing problem” of defense lawyers’ failure to submit actual documents), report
and recommendation adopted, 2012 WL 553072 (D.Nev., Feb. 17, 2012).
In Collins v. McCaughtry, 2005 WL 503818, *2 (W.D.Wis., Feb. 28, 2005), the court held that a
declaration summarizing the contents of the plaintiff’s grievances was admissible under Fed.R.Ev. 1006, which
allows admission of summaries of voluminous writings, etc., that cannot conveniently be examined in court.
Accord, Zarco v. Burt, 355 F.Supp.2d 1168, 1174 (S.D.Cal. 2004) (holding grievance records summary admissible
under Fed.R.Ev. 803(7) and 901). In Collins, the plaintiff disputed defendants’ claim that he had failed to exhaust
and stated that certain of his grievances did raise the issues he was suing about. The court held that his declaration
was not sufficient to establish the content of his grievances, but since the defendants had the burden of proof, they
would have to submit copies of the disputed grievances. Accord, Burnette v. Bureau of Prisons, 2009 WL 1650072,
*3 (W.D.La., June 10, 2009) (content of grievances was not established by an affidavit or a computer-generated list).
350
Drew v. Ramos, 2013 WL 5212343, *8 (N.D.Ill., Sept. 17, 2013) (denying summary judgment for nonexhaustion despite lack of record of grievances where plaintiff averred that he filed grievances through the means
available to him, and that he was told by prison personnel they had been forwarded to the Administrative Review
Board and he should wait for a response); Harp v. Secretary of Corrections, 2013 WL 416645, *4 & n.7 (D.S.D.,
Jan. 31, 2013) (denying summary judgment for non-exhaustion; noting that if plaintiff’s account of a non-responsive
grievance system is true, documentation of his efforts would not be available to him); Bratchett v. Braxton
Environmental Services, Corp., 2012 WL 781099, *2 (E.D.Wis., Mar. 7, 2012); Badwi v. Hedgpeth, 2012 WL
479192, *4 (N.D.Cal., Feb. 14, 2012) (holding lack of a record of receiving appeal did not establish non-exhaustion;
“if a claim of non-receipt were sufficient to foreclose exhaustion, prison officials, in effect, would have complete
control over whether a prisoner could pursue a civil action in federal court. Moreover, a prisoner's rights would be
dependent upon the accuracy of the defendant's record-keeping priorities.”); Jacobs v. Woodford, 2011 WL
1584429, *4 (E.D.Cal., Apr. 26, 2011), report and recommendation adopted, 2011 WL 2262494 (E.D.Cal., June 7,
2011); see Appendix A for additional authority on this point.
351
Hackworth v. Torres, 2013 WL 3815882, *3 (E.D.Cal., July 22, 2013); Webb v. Caruso, 2012 WL 950039, *4
(W.D.Mich., Feb. 21, 2012) (holding defendants’ showing that grievance attached to the complaint did not exhaust
the claim did not establish that plaintiff had not exhausted through another grievance), report and recommendation
adopted, 2012 WL 949976 (W.D.Mich., Mar. 20, 2012); Edwards v. New Jersey, 2011 WL 4950192, *3 (D.N.J.,
Oct. 18, 2011); Marshall v. Sobina, 2011 WL 4729033, *11 (W.D.Pa., Sept. 16, 2011), report and recommendation
adopted, 2011 WL 4731122 (W.D.Pa., Oct. 5, 2011); Nible v. Knowles, 2010 WL 3245325, *3 (E.D.Cal., Aug. 17,
2010); Rebaldo v. Jenkins, 660 F.Supp.2d 755, 763 (E.D.La. 2009). This question also arises at initial screening.
See cases cited in nn. 301-302, above.
352
Brown v. Kochanowski, 2012 WL 4127959, *8 (D.Kan., Sept. 19, 2012), appeal dismissed, 513 Fed.Appx. 715
(10th Cir. 2013) (unpublished); Carter v. Morrison, 2010 WL 701799, *10 (E.D.Pa., Feb. 24, 2010), aff’d, 429
Fed.Appx. 114 (3d Cir. 2011).
353
Breeland v. Baker, 439 Fed.Appx. 93, 96 (3d Cir. 2011) (unpublished) (“Without any showing concerning the
specific policy that Breeland allegedly violated,” summary judgment for non-exhaustion was inappropriate);

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In practice, courts have sometimes rejected plaintiffs’ submissions as conclusory,
insufficiently detailed, or uncorroborated, in some instances doing so in ways arguably
inconsistently with the usual rules for assessing evidence.355
3. Waiver
As an affirmative defense, exhaustion may be waived by failure to raise it, or to raise it
timely.356 One court has distinguished between waiver (“the intentional relinquishment of a
Beltran-Ojeda v. Doe, 2013 WL 3742410, *3 (D.Ariz., July 17, 2013) (declining to dismiss where defendants
submitted different and contradictory accounts of their medical grievance process); Peterson v. Stephens, 2013 WL
1386673, *3 (D.S.C., Mar. 7, 2013), report and recommendation adopted, 2013 WL 1386676 (D.S.C., Apr. 4,
2013); Avery v. Pagel, 2013 WL 593438, *2 (E.D.Wis., Feb. 15, 2013) (“I cannot determine that plaintiff failed to
exhaust the Jail's grievance procedure if I do not know what that procedure is.”), reconsideration denied, 2013 WL
5570417 (E.D.Wis., Oct. 9, 2013); Lawson v. Youngblood, 2012 WL 6047161, *1 (E.D.Cal., Dec. 5, 2012); Lassiter
v. Sherrer, 2011 WL 4594203, *4 (D.N.J., Sept. 30, 2011) (declining to dismiss for non-exhaustion absent record
evidence of grievance appeal procedure as of the time plaintiff was in the jail); Lewis v. Morehouse Detention
Center, 2011 WL 1790466, *8 (W.D.La., Mar. 3, 2011) (declining to dismiss where defendants did not submit actual
grievance policy stating deadlines and filing requirements), report and recommendation adopted, 2011 WL 1790458
(W.D.La., May 10, 2011); Ingram v. Sanders, 2010 WL 4924791, *2 (W.D.Ark., Nov. 8, 2010) (citing defendants’
failure to “indicate how inmates obtain grievance forms, who the forms are submitted to, who respond[s] to the
grievances, and where the grievances are placed after they are submitted,” or to “set forth the steps of the grievance
procedure or [to] indicate[] if the use of facility forms is mandated”), report and recommendation adopted, 2010
WL 4924785 (W.D.Ark., Nov. 29, 2010); McKeown v. Kernell, 2010 WL 597191, *4 (D.S.C., Feb. 12, 2010);
Allen v. Warden of Dauphin County Jail, 2009 WL 4406121, *6 (M.D.Pa., Nov. 25, 2009) (defendants had the
burden of showing what steps were available to a prisoner who received no answer to his grievances); Perry v.
Torres, 2009 WL 2957277, *3-4 (S.D.N.Y., Sept. 16, 2009) (defendants had the burden of showing what procedures
plaintiff should have followed when he received no decision on his initial grievance); Houseknecht v. Doe, 653
F.Supp.2d 547, 560 (E.D.Pa. 2009) (defendants had the burden of showing that a prisoner who made an informal
complaint and was told his allegations would be investigated was also required to grieve formally); Brown v.
Bynum, 2009 WL 1298203, *4 (E.D.Va., May 8, 2009) (rejecting non-exhaustion where defendants did not show
that the rules and options they asserted actually existed or that prisoners were notified of them); Ayala v. C.M.S.,
2008 WL 2676602, *3 (D.N.J., July 2, 2008) (where plaintiff said he was unable to pursue administrative remedies,
defendants’ failure to establish their policy’s requirements made it impossible for the court to assess plaintiff’s
claim).
354
Olney v. Hartwig, 323 Fed.Appx. 598, 599 (9th Cir. 2009) (unpublished) (“There is no indication that Olney's
grievance was rejected for the procedural bases urged by the defendants, thus they have not met their burden of
demonstrating nonexhaustion.”). If prison officials decide the merits of a grievance despite procedural errors, those
defects are waived and cannot be relied upon to seek dismissal for non-exhaustion. See cases cited in nn. 796-797.
355
See 444-448, below for further discussion of this issue.
356
Handberry v. Thompson, 446 F.3d 335, 342-43 (2d Cir. 2006) and cases cited (finding waiver); Johnson v.
Testman, 380 F.3d 691, 695-96 (2d Cir. 2004) (holding the defense was waived by failure to assert it in the district
court); Smith v. Mensinger, 293 F.3d 641, 647 n.3 (3d Cir. 2002); Randolph v. Rodgers, 253 F.3d 342, 348 n. 11
(8th Cir. 2001); Perez v. Wis. Dept. of Corr., 182 F.3d 532, 536 (7th Cir. 1999); Henricks v. Pickaway Corr. Inst.,
2013 WL 4804983, *1-2 (S.D.Ohio, Sept. 9, 2013) (holding defense waived by two-year failure to answer the
complaint, absent a showing of diligence or excusable neglect); Ervin v. Wilson, 2013 WL 2317234, *2 (D.Colo.,
May 24, 2013) (holding defendant who did not raise exhaustion on motion to dismiss could not raise it in objections
to magistrate judge’s decision); Blake v. Maynard, 2012 WL 5568940, *3-4 (D.Md., Nov. 14, 2012) (holding
defendant who did not raise non-exhaustion in answer or in response to motion waived the defense, even though
another defendant successfully pursued it); Victor v. SCI Smithfield, 2011 WL 3584781, *9 (M.D.Pa., Aug. 12,
2011) (holding argument that plaintiff filed suit before completing exhaustion was waived where defendants pled
non-exhaustion generally but not lack of timely exhaustion); Leybinsky v. Millich, 2004 WL 2202577, *2
(W.D.N.Y., Sept. 29, 2004) (holding defense waived where it was omitted from answer and not raised until after
discovery closed and the case was trial ready); see Alexander v. Fritch, 396 Fed.Appx. 867, 873 (3d Cir. 2010)
(unpublished) (holding that acceding to filing of a supplemental complaint with unexhausted claims waives

66

known right”) and forfeiture (“the failure to make a timely assertion of a right”), and held that
the non-assertion of untimeliness by officials in the grievance process constituted forfeiture
where there was no evidence that it was intentional.357 Most courts do not make this distinction
and refer only to waiver.
Ordinarily, affirmative defenses including exhaustion are required to be pled in the
answer or raised by motion to dismiss.358 An omitted exhaustion defense may be asserted in an

exhaustion as to them). Compare Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 679-80 (4th
Cir. 2005) (rejecting the argument that exhaustion defense is “not forfeitable”) with Chase v. Peay, 286 F.Supp.2d
523, 531 (D.Md. 2003) (noting that in the Fourth Circuit affirmative defenses are not waived except for unfair
surprise or prejudice), aff’d, 98 Fed.Appx. 253 (4th Cir. 2004). See Johnson v. California, 543 U.S. 499, 528 n.1
(2005) (Thomas, J., dissenting) (stating that the majority assumed exhaustion is nonjurisdictional and waivable by
its failure to inquire about it). But see Vega v. Lantz, 2009 WL 3157586, *3 (D.Conn., Sept. 25, 2009) (defendants
raised the defense by pleading it generally and were not required to specify in their answer which claims were
unexhausted).
One circuit has held that because exhaustion is mandatory, it cannot be waived, and it concluded that
exhaustion is a pleading requirement rather than an affirmative defense on that basis. Steele v. Federal Bureau of
Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), cert. denied, 543 U.S. 925 (2004); accord, Turner v. Felzien, 2012
WL 7760049, *6 (D.Colo., Dec. 11, 2012), report and recommendation adopted, 2013 WL 1093001 (D.Colo., Mar.
15, 2013). The Supreme Court’s holding that exhaustion is not a pleading requirement presumably undermines
Steele’s reasoning about waiver. See Jones v. Bock, 549 U.S. 199, 212-16 (2007).
357
Jewkes v. Shackleton, 2012 WL 5332197, *4 (D.Colo., Oct. 29, 2012). Another court has made this distinction
in connection with waiver of procedural defects by decision of the merits of a grievance. Martin v. Loadholt, 2013
WL 1127607, *4-5 & n.5 (E.D.Cal., Mar. 18, 2013) (holding decision on the merits of a late grievance constitutes
estoppel, not waiver by defendants, since waiver is the intentional relinquishment of a known right), report and
recommendation adopted, 2013 WL 1800296 (E.D.Cal., Apr. 29, 2013).
358
Rule 8(c), Fed.R.Civ.P.; Ray v. Kertes, 285 F.3d 287, 295 & n.8 (3d Cir. 2002); Liner v. Fischer, 2013 WL
4405539, *13 n.10 (S.D.N.Y., Aug. 7, 2013) (holding exhaustion defense waived where not raised in motion to
dismiss); Littler v. Indiana Dept. of Corrections Com'r, 2013 WL 1149607, *5 (N.D.Ind., Mar. 19, 2013) (holding
exhaustion waived where it was not pled in answer or amended answer; defense of failure to state a claim did not
preserve exhaustion defense); Jones v. Montalbano, 2012 WL 847373, *2 n.1 (E.D.N.Y., Mar. 13, 2012) (holding
exhaustion waived by failure to raise it in an initial motion to dismiss); Edwards v. Horn, 2012 WL 473481, *9 n.9
(S.D.N.Y., February 14, 2012) (holding exhaustion waived by failure to raise it by motion to dismiss), report and
recommendation adopted, 2012 WL 760172 (S.D.N.Y., Mar. 8, 2012); Colton v. Scutt, 2011 WL 6090152, *2
(E.D.Mich., Dec. 7, 2011) (holding exhaustion waived by failure to raise it in initial motion to dismiss or at any
reasonable time thereafter); Blaylock v. Montalbano, 2011 WL 4711890, *2 n.2 (E.D.N.Y., Sept. 30, 2011) (holding
exhaustion waived by failure to raise it in the first responsive pleading); Johnson v. Doyle, 2011 WL 846141, *5
(E.D.Mo., Mar. 8, 2011) (holding exhaustion waived by omission from answer); Presti v. Dellacamera, 2010 WL
466006, *2-3 (D.Conn., Feb. 4, 2010) (defense held waived at summary judgment stage because defendants did not
plead it in their answer); Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 906 (N.D.Ill. 2009) (“An
affirmative defense is waived if it is not asserted in a party's answer or in a subsequent motion to dismiss.”
Defendants waived by raising defense only at summary judgment.); Anaya v. Campbell, 2009 WL 3763798, *3
(E.D.Cal., Nov. 9, 2009) (exhaustion defense was untimely where motion to dismiss was made after answer had
been filed), report and recommendation adopted, 2009 WL 5197892 (E.D.Cal., Dec. 23, 2009); Murray v. Goord,
668 F.Supp.2d 344, 356 (N.D.N.Y. 2009) (defendants waived exhaustion by failing to plead it, even though
complaint acknowledges non-exhaustion); Calvert v. State of New York, 2009 WL 3078864, *6 (W.D.N.Y., Sept.
24, 2009) (finding waiver where defendants didn’t plead exhaustion in their answer and filed their motion to amend
their answer after the court deadline for such motions); Charity v. Carroll, 2009 WL 2425712, *3 (E.D.Cal., Aug. 7,
2009) (similar to Anaya v. Campbell), report and recommendation adopted, 2009 WL 3164867 (E.D.Cal., Sept. 29,
2009); Mendez v. Kham, 2008 WL 821968, *4 (W.D.N.Y., Mar. 26, 2008) (omission from answer waived
exhaustion defense); Brown v. Kirk, 2007 WL 1377650, *8 (D.S.C., May 8, 2007) (holding failure to plead
exhaustion in answer waived the defense); see Appendix A for additional authority on this point. But see Chatman
v. Felker, 2010 WL 3271461, *2 (E.D.Cal., Aug. 18, 2010) (holding exhaustion defense, once pled, is not waived by

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amended answer,359 but courts may deny such amendments when they are sought late in the
case.360 The filing of an amended complaint ordinarily revives defendants’ right to raise
exhaustion and other defenses.361 There is some variation in procedural practice among federal
courts.362 For example, some courts allow exhaustion to be raised for the first time by summary
judgment motion,363 particularly if the court deems the defense raised at a “pragmatically
failure to raise it in first motion to dismiss, since a motion is not a pleading); Almashleh v. U.S., 2008 WL 356486,
*3 (W.D.Pa., Feb. 7, 2008) (holding omission of exhaustion from first motion to dismiss did not waive it).
Some courts have held that under the Ninth and Eleventh Circuit’s “matter in abatement” approach to
exhaustion, an exhaustion defense cannot be raised after the answer; “unenumerated” Rule 12(b) motions must be
made before the answer. Logan v. Chestnut, 2010 WL 3385026, *2 (M.D.Fla., Aug. 26, 2010); accord, Anaya v.
Campbell, 2011 WL 4458769, *9-11 (E.D.Cal., Sept. 23, 2011) (holding Rule 12(b) motion to dismiss for nonexhaustion untimely when filed many months after answers).
359
See Combs v. Lehman, 2010 WL 1537289 (W.D.Wash., Apr. 15, 2010) (allowing amendment of answer to assert
exhaustion defense); Stephenson v. Dunford, 320 F.Supp.2d 44, 48-49 (W.D.N.Y. 2004) (allowing amendment of
answer to assert exhaustion 22 months after Supreme Court decision showed the defense was available), vacated
and remanded on other grounds, 2005 WL 1692703 (2d Cir., July 13, 2005); Stevens v. Goord, 2003 WL
21396665, *4 (S.D.N.Y., June 16, 2003) (allowing revival of waived exhaustion defense), on reargument, 2003 WL
22052978 (S.D.N.Y., Sept. 3, 2003); see Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C.Cir. 2001)
(holding it was not an abuse of discretion to construe a “notice” by one party that it would rely on another party’s
exhaustion defense as an amended answer properly raising the defense).
360
Carr v. Hazelwood, 2008 WL 4556607, *4 (W.D.Va., Oct. 8, 2008) (defense waived where defendants did not
plead it until five months before trial and did not seek summary judgment based on it until two months before trial),
report and recommendation adopted, 2008 WL 4831710 (W.D.Va., Nov. 3, 2008); Mendez v. Barlow, 2008 WL
2039499, *2 (W.D.N.Y., May 12, 2008) (where the court has set a cut-off date for such motions, the liberal standard
for amendment of pleadings is inapplicable; waiver enforced based on “undue delay”); Abdullah v. Washington, 530
F.Supp.2d 112, 115 (D.D.C. 2008) (denying amendment to answer asserting exhaustion defense five years after
filing; plaintiff would be prejudiced because discovery was closed and plaintiff might have formulated discovery
differently if exhaustion had been asserted); Becker v. Indiana State Prison/Indiana Dept. of Correction, 2007 WL
2710474, *3-4 (N.D.Ind., Sept. 12, 2007) (denying defendants’ request to amend answer to assert non-exhaustion
because it was not filed until summary judgment motion was fully briefed); Thomas v. Keyser, 2004 WL 1594865,
*2 (S.D.N.Y., July 16, 2004) (declining to allow revival of defense); Hightower v. Nassau County Sheriff’s Dep’t,
325 F.Supp.2d 199, 205 (E.D.N.Y. 2004) (same), vacated in part on other grounds, 343 F.Supp.2d 191 (E.D.N.Y.,
Nov. 1, 2004).
361
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999), cert. denied, 532 U.S. 1065 (2001); Jackson v. Gandy, 877
F.Supp.2d 159, 176 (D.N.J. 2012) (holding exhaustion was not waived where raised in the answer to an amended
complaint); Howard v. City of New York, 2006 WL 2597857, *6 (S.D.N.Y., Sept. 6, 2006). But see Carr v.
Hazelwood, 2008 WL 4556607, *3 (W.D.Va., Oct. 8, 2008) (holding defendant cannot as a matter of right add a
new affirmative defense of exhaustion in response to an amended complaint that does not change the theory of
plaintiff’s case), report and recommendation adopted, 2008 WL 4831710 (W.D.Va., Nov. 3, 2008).
362
One court has asserted: “Failure to exhaust administrative remedies is not a defense that is waived by failing to
assert it prior to a responsive pleading, and it can be asserted at any time before or during trial. See Fed.R.Civ.P.
12(h).” Cohron v. City of Louisville, Ky., 2012 WL 1015789, *1 (W.D.Ky., Mar. 22, 2012), aff’d, 530 Fed.Appx.
534 (6th Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 1029 (2014).
363
Panaro v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005) (holding exhaustion and other affirmative
defenses may be raised at the summary judgment stage if the adverse party is not prejudiced); Ford v. Alexander,
2013 WL 66147, *3, *5 (N.D.Ohio, Jan. 4, 2013) (considering defense, noting plaintiff had notice and an
opportunity to respond to the motion); McGregor v. Jarvis, 2010 WL 3724133, *6 (N.D.N.Y., Aug. 20, 2010)
(district court could construe exhaustion defense raised by summary judgment motion as a request to amend the
answer to assert it), report and recommendation adopted, 2010 WL 3724131 (N.D.N.Y., Sept. 16, 2010); Parks v.
Falge, 2009 WL 4823386, *3 (D.Nev., Dec. 8, 2009) (applying Panaro); Baker v. Beard, 2006 WL 1725557, *3
(M.D.Pa., June 21, 2006) (similar to Panaro); see Knight v. Kaminski, 331 Fed.Appx. 901, 904 (3d Cir. 2009)
(defendants who failed to meet their burden on summary judgment could raise exhaustion again in a second
summary judgment motion), cert. denied, 558 U.S. 1003 (2009). Contra, Louis-Charles v. Courtwright, 2014 WL
457951, *5 (N.D.N.Y., Feb. 4, 2014) (holding defendants who failed to preserve non-exhaustion defense by

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sufficient time” with no prejudice to the plaintiff.364 One creative defendant has unsuccessfully
sought to raise an otherwise waived exhaustion defense by pretrial motion in limine.365
Pleading aside, the exhaustion defense may be waived by failing to pursue it reasonably
promptly during the course of the litigation.366 However, one recent appellate decision has
“decline[d] to read a strict timing requirement into the PLRA for prosecution of the affirmative
defense of failure to exhaust,” relying on the Supreme Court’s direction to lower courts not to
invent rules for PLRA exhaustion that are contrary to usual litigation practices without a textual
basis in the statute.367 There, the defendant had failed to seek dismissal for non-exhaustion until
seven months after the deadline for dispositive motions; the court held that the governing
standard was the requirement of Fed.R.Civ.P. 6(b) that requests to file a motion after the
deadline set in a scheduling order must be made by motion based on a finding of excusable
neglect.368 It is not clear whether the court intended to hold that missing the dispositive motions
pleading it “are not entitled to summary judgment on exhaustion grounds”); Santos v. Delaney, 2014 WL 199799,
*6 (E.D.Pa., Jan. 17, 2014) (holding failure to plead non-exhaustion bars defendant from “belatedly” raising it by
summary judgment motion); Wright v. Goord, 2006 WL 839532, *5 (N.D.N.Y., Mar. 27, 2006); Mayoral v. Illinois
Dept. of Corrections, 2002 WL 31324070, *1 (N.D.Ill., Oct. 17, 2002); see Burnette v. Bureau of Prisons, 2009 WL
1650072, *3 (W.D.La., June 10, 2009) (“An affirmative defense may be raised on a motion for summary judgment
only if that motion is the first pleading responsive to the substance of the allegations.”).
364
Campfield v. Tanner, 2011 WL 4368723, *5 (E.D.La., Aug. 16, 2011) (allowing exhaustion defense raised for
the first time in response to plaintiff’s summary judgment motion, since it was raised at a “pragmatically sufficient
time” and plaintiff was not prejudiced), report and recommendation adopted as modified, 2011 WL 4368842
(E.D.La., Sept. 19, 2011); Tyner v. Donald, 2007 WL 842131, *2 n.1 (M.D.Ga., Mar. 16, 2007) (holding defense
may be raised at a “pragmatically sufficient” time if there is no prejudice to the plaintiff; allowing defense to be
raised in third summary judgment motion).
365
Henderson v. Peterson, 2011 WL 2838169, *11 (N.D.Cal., July 15, 2011). But see Starr v. Moore, 849
F.Supp.2d 205, 211 (D.N.H. 2012) (holding belated exhaustion defense could not be raised by motion in limine, but
could be raised at trial).
366
Keup v. Hopkins, 596 F.3d 899, 904-05 (8th Cir. 2010) (holding exhaustion defense was waived by failure to
raise it at trial after earlier denial of summary judgment); Handberry v. Thompson, 446 F.3d 335, 342-43 (2d Cir.
2006) (holding that a defendant who disclaimed exhaustion at the pleading stage, then reasserted it later based only
on information available at the pleading stage, had waived); Johnson v. Testman, 380 F.3d 691, 695-96 (2d Cir.
2004) (finding waiver); Hackworth v. Torres, 2013 WL 3815882, *3 (E.D.Cal., July 22, 2013) (holding exhaustion
defense was waived by not pleading it within the deadline for dispositive motions); Norington v. Poland, 2009 WL
5069014, *1-2 (S.D.Ind., Dec. 15, 2009) (holding exhaustion defense that was pled, but not pursued for four years
until the time of trial, was waived); Jones v. Grubman, 2009 WL 3049216, *2 (S.D.Ill., Sept. 18, 2009) (defendants
waived exhaustion, even though they pled it in their answer, by failing to pursue the defense for two years until the
final pre-trial conference); Stevenson v. Hochberg, 2009 WL 1490828, *4 (D.N.J., May 26, 2009) (finding waiver
where defendant pled exhaustion in answer but then engaged in nine months of litigation without pursuing the
defense); Ludy v. Sherman, 2007 WL 320831, *7 (W.D.Pa., Jan. 30, 2007) (holding that court “is compelled to
address the merits” of a claim as to which defendants disavowed an exhaustion defense); Williams v. Illinois Dept.
of Corrections, 1999 WL 1068669, *3-4 (N.D.Ill., Nov. 17, 1999) (holding defendant who moved to dismiss for
non-exhaustion, withdrew the motion, and after two years had not reasserted it had waived). But see Giraldes v.
Prebula, 2012 WL 4747240, *4 (E.D.Cal., Oct. 4, 2012) (on reconsideration, holding that failure to pursue nonexhaustion before eve of trial and after close of motion deadline did not waive defense where it had been raised in an
amended complaint); Haj-Hamed v. Rushing, 2010 WL 2650174, *3 (N.D.Ohio, July 2, 2010) (defense was not
waived by failure to raise it in response to motion for a temporary restraining order); Short v. Walls, 2010 WL
839430, *4 (S.D.W.Va., Mar. 5, 2010) (defense was not waived by delay of a year and a half between its assertion in
answer and motion for summary judgment based on non-exhaustion), aff’d, 412 Fed.Appx. 565 (4th Cir. 2011)
(unpublished).
367
Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010) (citing Jones v. Bock, 549 U.S. 199 (2007)).
368
Drippe, 604 F.3d at 782-83 (citing Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)).

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deadline without excusable neglect is the only circumstance in which non-exhaustion, once pled,
can be procedurally waived.
Some courts, but not the Second Circuit, have tied waiver to a showing of prejudice.369
However, it is clear in any court including those in the Second Circuit that a claim of waiver is
strongly supported by a showing of prejudice.370 In some cases, courts have allowed relief from
waiver based on changes in exhaustion law during a case’s pendency.371

369

Curtis v. Timberlake, 463 F.3d 709, 711 (7th Cir. 2005) (noting that circuit holds affirmative defenses are waived
by late assertion only if the plaintiff was harmed as a result); Panaro v. City of North Las Vegas, 432 F.3d 949, 952
(9th Cir. 2005); Redd v. Daley, 2009 WL 2941527, *3-4 (N.D.Cal., Sept. 10, 2009) (holding exhaustion, omitted
from a summary judgment motion, could be raised by a motion to dismiss after the deadline for dispositive
motions); Burks v. Pate, 2005 WL 4859266, *4 (D.S.C., Aug. 5, 2005) (holding that defendants did not waive nonexhaustion by failing to raise it in their first summary judgment motion; stating affirmative defense is not waived if
defendant “raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to
respond”) (citation omitted).
370
See Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006) (noting that plaintiffs could have timely
exhausted and returned to court had the defense been timely raised); Giraldes v. Prebula, 2013 WL 1876500, *5-7
(E.D.Cal., May 3, 2013) (applying law of the case to adhere to earlier finding of waiver, despite later finding of nonexhaustion, in 11-year-old trial ready case where dismissal would bar claims because of expiration of limitations
period); Espey v. Spectrum Health System, Inc., 2011 WL 2516638, *12 (M.D.Tenn., June 23, 2011) (holding
defense waived where it was raised only in a summary judgment motion after plaintiff had been released from
prison and could not cure non-exhaustion, with a trial date in a month), report and recommendation adopted, 2011
WL 2946709 (M.D.Tenn., July 20, 2011); Bonilla v. Janovick, 2005 WL 61505, *2 (E.D.N.Y. Jan. 7, 2005)
(holding defense waived where it was not asserted for two years and eight months after Porter, plaintiff would have
to expend additional resources and his long-pending case would be delayed, and further discovery and additional
dispositions would be needed to determine whether special circumstances excusing failure to exhaust were present);
Thomas v. Keyser, 2004 WL 1594865, *2 (S.D.N.Y., July 16, 2004) (declining to allow assertion of non-exhaustion
after 21 months of delay, where plaintiff would be prejudiced by having to refile after investing time and effort in
completing discovery); Hightower v. Nassau County Sheriff’s Dep’t, 325 F.Supp.2d 199, 205 (E.D.N.Y. 2004)
(holding defense waived where raised only after trial, after 23 months’ delay and plaintiffs’ loss of opportunity to
take discovery), vacated in part on other grounds, 343 F.Supp.2d 191 (E.D.N.Y., Nov. 1, 2004); see also Rahim v.
Sheahan, 2001 WL 1263493, *6-7 & n.3 (N.D.Ill., Oct. 19, 2001) (noting that one plaintiff was deceased and would
not be able to exhaust and refile); Orange v. Strain, 2000 WL 158328 (E.D.La., Feb. 10, 2000) (finding waiver
where the defense was asserted after the passage of two years and the plaintiff’s transfer out of the county jail at
issue, presenting “myriad logistical difficulties” to his exhausting), aff’d, 252 F.3d 436 (5th Cir. 2001)
(unpublished).
371
See Wisenbaker v. Farwell, 2010 WL 3385303, *5 (D.Nev., June 7, 2010) (allowing defense to be raised after
Woodford v. Ngo changed circuit law), report and recommendation adopted, 2010 WL 3385310 (D.Nev., Aug. 24,
2010); Guizar v. Woodford, 2010 WL 520508, *4-5 (N.D.Cal., Feb. 8, 2010) (allowing defense to be pursued after
its omission from a 2006 summary judgment motion because Woodford v. Ngo and later Ninth Circuit decisions
clarified the law). In one case where the defendants sought relief from waiver on the ground that the law had
changed to bring the claim within the exhaustion requirement, the court conditioned the relief on prison officials’
permitting the prisoner to exhaust late, since the prisoner, too, had relied on prior law. As the court put it: “In other
words, DOCS cannot have it both ways.” Rivera v. Goord, 2003 WL 1700518, *13 (S.D.N.Y., Mar. 28, 2003). The
change in law was the Supreme Court’s decision in Porter v. Nussle, 534 U.S. 516 (2002), reversing the Second
Circuit’s holding that use of force claims were not subject to the exhaustion requirement. But see Robertson v.
Vandt, 2008 WL 752589, *8 (E.D.Cal., Mar. 19, 2008) (dismissing for non-exhaustion in situation like Rivera
where prisoner’s grievance filed after change in law was dismissed as untimely); Wilson v. Hendel, 2005 WL
775902, *3-4 (W.D.N.Y., Apr. 6, 2005) (holding defense waived where it was not asserted after Porter v. Nussle and
defendants did not respond to plaintiffs’ waiver argument).
Rivera’s holding has been overtaken by the broader one in Rodriguez v. Westchester County Jail
Correctional Dep’t, 372 F.3d 485, 487 (2d Cir. 2004), which held that a prisoner had acted reasonably in failing to
exhaust, and could therefore proceed without exhaustion if remedies were no longer available, because his actions

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Prison officials may also waive the defense in the administrative process; if they decide
the merits of the grievance, they cannot later rely on the prisoner’s procedural missteps as a basis
for dismissal.372 They may also waive compliance with particular rules simply by accepting noncompliant actions by the prisoner.373 One court has rejected the argument by a prison employee
that the correction agency could not waive or forfeit a procedural defense on the employee’s
behalf in the grievance process. The court held that since the exhaustion requirement is intended
to serve certain institutional purposes, and since the grievance system at issue did not give
individual employees a role in controlling the resolution of grievances, the employee was bound
by the grievance system’s failure to enforce particular rules.374
Even when the exhaustion defense as a whole is not waived, particular arguments may be
waived procedurally by failure to assert them timely.375
4. Procedural Vehicles for Raising Exhaustion
The courts are divided over how to decide exhaustion disputes. Since the Supreme Court
has held that exhaustion is an affirmative defense and not a pleading requirement,376 it cannot
properly be addressed at initial screening or by motion under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim, except in those cases where non-exhaustion is clear on the face of the complaint.377
Motions under Rule 12(b)(1), Fed.R.Civ.P., for lack of subject matter jurisdiction are equally
inapposite, since failure to exhaust is not jurisdictional.378 Courts have rejected efforts to litigate
exhaustion by motion in limine.379
Many courts have addressed exhaustion on motion for summary judgment as a matter of
course.
In some cases, motions under Rule 12(b)(6) are converted to summary judgment
380

were consistent with the erroneous legal position that the Second Circuit itself had adopted. But see Robertson v.
Vandt, 2008 WL 752589, *8 (E.D.Cal., Mar. 19, 2008) (dismissing for non-exhaustion in situation like Rivera
where prisoner’s grievance filed after change in law was dismissed as untimely).
372
See cases cited in nn. 796-797, below.
373
Rodriguez v. Miramontes, 2012 WL 1983340, *6 (D.Ariz., June 4, 2012) (even if defendant was not “appropriate
unit staff” to receive an Informal Resolution, once he accepted it, the plaintiff had the right to rely on the
acceptance).
374
Jewkes v. Shackleton, 2012 WL 5332197, *4-5 (D.Colo., Oct. 29, 2012).
375
Drew v. Ramos, 2013 WL 5212343, *9 (N.D.Ill., Sept. 17, 2013) (holding argument based on failure to name
employees of medical contractor individually was waived by asserting it only in a reply brief on a summary
judgment motion).
376
Jones v. Bock, 549 U.S. 199, 212-16 (2007). In courts where exhaustion was formerly viewed as a pleading
requirement, it was often addressed at the initial screening stage, and some courts held that it had to be. See Steele
v. Federal Bureau of Prisons, 355 F.3d 1204, 1211 (10th Cir. 2003), cert. denied, 543 U.S. 925 (2004); Baxter v.
Rose, 305 F.3d 486, 490 (6th Cir. 2002). Those decisions are overruled by Jones.
377
See § IV.D.1, above.
378
See n. 201, above.
379
Starr v. Moore, 849 F.Supp.2d 205, 211 (D.N.H. 2012) (holding belated exhaustion defense could not be raised
by motion in limine, but could be raised at trial); Salaam v. Merlin, 2011 WL 4073363, *1 (D.N.J., Sept. 9, 2011)
(converting motion in limine to summary judgment); Henderson v. Peterson, 2011 WL 2838169, *11 (N.D.Cal., July
15, 2011) (holding summary judgment the appropriate procedure).
380
See, e.g., Breeland v. Baker, 439 Fed.Appx. 93, 96 (3d Cir. 2011) (unpublished) (reversing summary judgment
on exhaustion without prejudice to renewed summary judgment motion); Hernandez v. Coffey, 582 F.3d 303, 30809 (2d Cir. 2009) (holding that the usual requirement to notify pro se litigants of the nature and consequences of
summary judgment applies to summary judgment motions asserting non-exhaustion); Fargas v. U.S., 334 Fed.Appx.
40 (8th Cir. 2009) (granting summary judgment, noting applicability of procedure to exhaustion); Hinojosa v.

71

because they are supported by extrinsic matter,381 sometimes with provisos for relevant
discovery.382 I am not sure why it makes sense to convert a mis-framed motion to dismiss, rather
than deny it without prejudice to the defendants’ filing a proper summary judgment motion. In
any case a number of courts have declined to convert when presented with extrinsic materials on
a motion to dismiss for non-exhaustion, sometimes citing, e.g., “plaintiff’s incarceration, his pro
se status, and the lack of any discovery, the Court declines to convert defendants' motion.”383
If there is a material factual dispute, summary judgment must ordinarily be denied, and
the factual dispute reserved for the trier of fact.384 Exhaustion disputes would therefore go to a
Johnson, 277 Fed.Appx. 370, 379-80 (5th Cir. 2008) (vacating grant of summary judgment, holding prisoner entitled
to opportunity for discovery in connection with motion); Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112-13
(10th Cir. 2007); Williams v. Beard, 482 F.3d 637, 639-40 (3d Cir. 2007) (reversing summary judgment on
exhaustion and remanding for further proceedings); Hunsaker v. Turley, 2012 WL 3613264, *2 (D.Utah, Aug. 22,
2012) (discussing summary judgment procedure re exhaustion), aff’d, 520 Fed.Appx. 717 (10th Cir. 2013)
(unpublished); Makdessi v. Clarke, 2012 WL 293155, *3 (W.D.Va., Jan. 31, 2012) (denying summary judgment
where plaintiff alleged prison staff interference with his exhaustion efforts); Frees v. Duby, 2010 WL 4923535, *3-4
(W.D.Mich., Nov. 29, 2010) (strongly arguing for summary judgment under Sixth Circuit law).
381
In McCoy v. Goord, 255 F.Supp.2d 233 (S.D.N.Y. 2003), the court stated that where non-exhaustion is not clear
from the face of the complaint, a motion to dismiss should be converted to a motion for summary judgment “limited
to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff’s efforts to exhaust,
whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused. . . .” 255
F.Supp.2d at 251.
382
Dirig v. Wilson, 2013 WL 5701075, *3 (N.D.Ind., Oct. 18, 2013) (converting motion to summary judgment but
granting plaintiff’s motion for a subpoena to obtain medical records needed to support his allegations); Stevens v.
City of New York, 2012 WL 4948051, *6-7 (S.D.N.Y., Oct. 11, 2012) (converting motion to summary judgment,
giving notice, directing discovery and a briefing schedule where plaintiff alleged grievance personnel told him
“there was nothing else I could do” and he had been “running back and forth to grievance”); Kellogg v. New York
State Dept. of Correctional Services, 2009 WL 2058560, *3 (S.D.N.Y., July 15, 2009) (converting motion to
summary judgment, finding factual conflict on existing record, directing discovery under Rule 56(f) on exhaustion
with leave to renew motion thereafter).
383
Dowdy v. Hercules, 2010 WL 169624, *4 (E.D.N.Y., Jan. 15, 2010); accord, McNair v. Rivera, 2013 WL
4779033, *6-7 (S.D.N.Y., Sept. 6, 2013) (declining to convert where defendants had not provided or alluded to any
documents that would be dispositive); Pratt v. City of New York, 929 F.Supp.2d 314, 319 (S.D.N.Y. 2013); Taylor
v. Hillis, 2011 WL 6341090, *4 (W.D.Mich., Nov. 28, 2011), report and recommendation adopted, 2011 WL
6370094 (W.D.Mich., Dec. 19, 2011); Huertas v. Sobina, 2010 WL 3304263, *6 (W.D.Pa., July 14, 2010), report
and recommendation adopted, 2010 WL 3304254 (W.D.Pa., Aug. 20, 2010); Robinson v. Caruso, 2009 WL
6315300, *10 (E.D.Mich., Sept. 25, 2009), report and recommendation rejected on other grounds, 2010 WL
1257497 (E.D.Mich., Mar. 29, 2010); Perez v. Westchester County Dept. of Corrections, 2007 WL 1288579, *3 n.6
(S.D.N.Y., Apr. 30, 2007); Doe v. Torres, 2006 WL 290480, *8 (S.D.N.Y., Feb. 8, 2006).
384
Numerous courts have so held in connection with exhaustion disputes. See, e.g., Ferguson v. Cole, 2011 WL
666103, *3 (N.D.N.Y., Jan. 24, 2011) (party opposing dismissal for non-exhaustion “may delay the ultimate
determination as to its validity until trial by showing that there is a genuine issue of material fact to be determined”
(citations omitted)), report and recommendation adopted, 2011 WL 666094 (N.D.N.Y., Feb. 14, 2011); Barner v.
Bentley, 2009 WL 366327, 4 (W.D.Va., Feb. 12, 2009); Maraglia v. Maloney, 499 F.Supp.2d 93, 94-97 (D.Mass.
2007); Rhodan v. Schofield, 2007 WL 1810147, *7 (N.D.Ga., June 19, 2007); Lunney v. Brureton, 2007 WL
1544629, *10 n.4 (S.D.N.Y., May 29, 2007), objections overruled, 2007 WL 2050301 (S.D.N.Y., July 18, 2007);
Piggie v. Moore, 2007 WL 1521440, *1 (N.D.Ind., May 22, 2007); Ramos v. Rosevthal, 2007 WL 1464436, *1 n.1
(D.Neb., May 17, 2007); Cain v. Dretke, 2006 WL 1663728, *3 (S.D.Tex., June 13, 2006); Blount v. Johnson, 373
F.Supp. 615, 619 (W.D.Va. 2005), vacated on other grounds, 2005 WL 2246558 (W.D.Va., Sept. 15, 2005);
Donahue v. Bennett, 2004 WL 1875019, *6 (W.D.N.Y., Aug. 17, 2004); Kendall v. Kittles, 2004 WL 1752818, *5
(S.D.N.Y., Aug. 4, 2004); Branch v. Brown, 2003 WL 21730709, *12 (S.D.N.Y., July 25, 2003), judgment granted
on other grounds, 2003 WL 22439780 (S.D.N.Y., Oct. 28, 2003); Williams v. MacNamara, 2002 WL 654096, *4
(N.D.Cal., Apr. 17, 2002); see also Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir. 2001) (resolving exhaustion
claim on appeal based on trial evidence); Parker v. Robinson, 2008 WL 2222040, *6-7 (D.Me., May 22, 2008)

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jury if one has been requested, and several courts have so held, in some cases because
affirmative defenses are usually for the jury,385 in others because factual disputes in general are
usually viewed as the province of the jury.386
However, a series of federal appellate decisions have departed from this usual practice
(and overruling some of the cited cases) in various ways, all of them leading to the conclusion
that exhaustion disputes are for court and not jury. The first of these was the Ninth Circuit’s
holding that failure to exhaust is “a matter in abatement, which is subject to an unenumerated
Rule 12(b) motion, rather than a motion for summary judgment,” since “summary judgment is on
the merits, whereas dismissal for failure to exhaust” is not.387 As a “matter in abatement,” the
court said, exhaustion is not subject to the same rules as matters going to the merits, and courts
may decide factual disputes concerning it on motion, subject only to the “clearly erroneous”
standard of appellate review.388 To this end, “the court may look beyond the pleadings.”389

(resolving exhaustion issue as part of bench trial on the merits); Moody v. Pickles, 2006 WL 2645124, *5 n.15
(N.D.N.Y., Sept. 13, 2006) (resolving exhaustion claim after judgment based on trial evidence); see Jewkes v.
Shackleton, 2012 WL 5332197, *1-3 (D.Colo., Oct. 29, 2012) (noting defendants who lost summary judgment
motion on exhaustion presented the same evidence at trial and then by Rule 50 motion).
385
Bailey v. Fortier, 2010 WL 4005258, *7 n.7 (N.D.N.Y., Aug. 30, 2010) (finding no “cogent basis . . . to
distinguish failure to exhaust from other affirmative defenses including, for example, statute of limitations, which
are often presented to juries or decided by the court based upon a jury's resolution of critical fact disputes”), report
and recommendation adopted, 2010 WL 3999629 (N.D.N.Y., Oct. 12, 2010); Maraglia v. Maloney, 499 F.Supp.2d
93, 94 (D.Mass. 2007) (noting that Jones v. Bock said to treat exhaustion like other affirmative defenses, and that
these are usually jury issues); Lunney v. Brureton, 2007 WL 1544629, *10 n.4 (S.D.N.Y., May 29, 2007) (same),
objections overruled, 2007 WL 2050301 (S.D.N.Y., July 18, 2007); see Finch v. Servello, 2008 WL 4527758, *8 &
n.5 (N.D.N.Y., Sept. 29, 2008) (denying summary judgment on sparse record, inviting renewed motion after
discovery with briefing whether exhaustion is for the jury or the court).
386
Abraham v. Costello, 861 F.Supp.2d 430, 435 (D.Del., May 17, 2012) (assuming disputed evidence of nonexhaustion is for the jury); Archuleta v. Nanney, 2012 WL 1340389, *1 (D.Colo., Apr. 18, 2012) (noting that
exhaustion was tried to a jury), aff’d, 507 Fed.Appx. 816 (10th Cir. 2013); Harris v. Brown, 2011 WL 2221167, *3
(E.D.Mich., Apr. 20, 2011) (stating a reasonable jury could believe plaintiff’s account of exhaustion), report and
recommendation adopted, 2011 WL 2183402 (E.D.Mich., June 6, 2011); Proper v. Crawford County Correctional
Facility, 2010 WL 3829640, *7 (W.D.Pa., Sept. 24, 2010) (credibility determinations about exhaustion “are best left
to the jury”); Jones v. Carroll, 628 F.Supp.2d 551, 558 (D.Del. 2009) (question whether plaintiff failed to exhaust
because he was too medicated after surgery to do so was for the jury); Daher v. Kasper, 2008 WL 553644, *4
(N.D.Ind., Feb. 26, 2008) (question whether plaintiff complied with a rule barring “multiple unrelated issues” was
for the jury); Kendall v. Kittles, 2004 WL 1752818, *5 (S.D.N.Y., Aug. 4, 2004) (holding credibility issues about
access to grievance forms and whether the plaintiff was told his claim was nongrievable “are properly for a jury.”).
387
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810 (2003).
Several decisions from one district court have suggested, bizarrely, that the Wyatt holding has been
undermined in this regard by the Supreme Court’s holding in Jones v. Bock, 549 U.S. 199, 216 (2007), that failure to
exhaust is an affirmative defense that defendants must plead and prove. See, e.g., Davis v. Calvin, 2008 WL
5869849, *8 (E.D.Cal., Oct. 1, 2008) (applying summary judgment rules rather than unenumerated motion to
dismiss rules), motion to certify appeal denied, 2009 WL 981920 (E.D.Cal., Apr. 10, 2009); Bryant v. Sacramento
County Jail, 2008 WL 410608, *2 (E.D.Cal., Feb. 12, 2008) (same), report and recommendation adopted, 2008 WL
780704 (E.D.Cal., Mar. 21, 2008); Percival v. Knowles, 2007 WL 2827789, *5 (E.D.Cal., Sept. 27, 2007), report
and recommendation adopted, 2008 WL 440330 (E.D.Cal., Feb. 15, 2008); Chatman v. Johnson, 2007 WL
2023544, *3 (E.D.Cal., July 11, 2007), report and recommendation adopted, 2007 WL 2796575 (E.D.Cal., Sept. 25,
2007). However, Wyatt too held that exhaustion is an affirmative defense, 315 F.3d at 1117-18, and indeed Jones
cited it for that proposition. See Jensen v. Knowles, 2008 WL 5156694, *2 (E.D.Cal., Dec. 9, 2008) and cases cited.
Wyatt may be wrong, but not for that reason.
388
Ritza v. Int’l Longshoremen’s and Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam), cited
in Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), cert. denied, 540 U.S. 810 (2003); see Wiseman v.

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Despite this seemingly definitive pronouncement, the relationship of the “matter in
abatement” approach to summary judgment, and to the ability of courts to resolve factual
disputes remains unsettled. Some district courts applying the matter in abatement procedure
have emphasized its similarity to summary judgment, stating that credibility issues cannot be
decided on motion.390 Others have not hesitated to make credibility judgments.391 In some
Sebok, 2012 WL 2361494, *3 (C.D.Cal., May 10, 2012) (emphasizing Ritza’s holdings re fact-finding prerogatives
of district court), report and recommendation adopted, 2012 WL 2194553 (C.D.Cal., June 15, 2012), aff’d, 543
Fed.Appx. 694 (9th Cir. 2013) (unpublished); Arias v. Bell, 2008 WL 4369309, *1 (S.D.Cal., Sept. 23, 2008)
(where plaintiff said a staff member misled him, defendants did not substantiate their non-exhaustion defense
without an affidavit from him); Hendon v. Baroya, 2007 WL 3034263, *3 (E.D.Cal., Oct. 16, 2007) (refusing to
credit plaintiff’s “bare assertion” that he had filed timely grievances absent unspecified “evidence” demonstrating it,
where defendants’ records did not show timely grievances), report and recommendation adopted, 2008 WL 482868
(E.D.Cal., Feb. 20, 2008); Guillory v. Snohomish County Jail, 2007 WL 2069856, *3-4 (W.D.Wash., July 16, 2007)
(rejecting sworn testimony that plaintiff received final decision but that his papers had been lost during transfer
where records contradicted it); Hazleton v. Alameida, 358 F.Supp.2d 926, 928-33 (C.D.Cal. 2005) (applying
Ritz/Wyatt rule); Zarco v. Burt, 355 F.Supp.2d 1168, 1171-74 (S.D.Cal. 2004) (same).
389
Akhtar v. Mesa, 698 F.3d 1202, 1209 (9th Cir. 2012) (citing Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Cir.2003)) (holding district court should have considered grievance documentation submitted by plaintiff).
390
Martinez v. Tilton, 2013 WL 5670869, *2 (E.D.Cal., Oct. 16, 2013) (rejecting request to decide credibility of
contradictory factual positions, denying motion to dismiss in pertinent part); Carreon v. Banke, 2012 WL 5381542,
*2 (E.D.Cal., Oct. 31, 2012) (stating “care must be taken not to resolve credibility on paper if it pertains to disputed
issues of fact that are material to the outcome”), report and recommendation adopted, 2012 WL 5880943 (E.D.Cal.,
Nov. 21, 2012); Soto v. Gines, 2012 WL 628265, *4 (S.D.Cal., Jan. 30, 2012) (holding court could not dismiss
where grievance had been rejected as untimely but prisoner contended that date stamped on grievance response did
not correctly reflect the date that he received), report and recommendation adopted, 2012 WL 628618 (S.D.Cal.,
Feb. 27, 2012); Williams v. Ferguson, 2012 WL 33055, *2 (E.D.Cal., Jan. 6, 2012) (“Thus, it appears that the
requirement under Rule 12(d) that motions raising affirmative defenses that require the submission of declarations or
other matters extrinsic to the complaint require that the motion be treated as a Rule 56 motion for summary
judgment, applies to motions raising the failure of a prisoner to exhaust administrative remedies.”); Chatman v.
Felker, 2010 WL 3431806, *1-2 & nn. 2-3 (E.D.Cal., Aug. 31, 2010), report and recommendation adopted, 2010
WL 3852834 (E.D.Cal., Sept. 29, 2010); Adams v. Subia, 2010 WL 3245248, *1-2 & nn. 2-3 (E.D.Cal., Aug. 16,
2010); Cherer v. Williams, 2010 WL 7697474, *5 (C.D.Cal., July 27, 2010) (holding court can’t resolve factual
disputes involving credibility on motion); Sutherland v. Herrmann, 2010 WL 2303206, *4-5 (E.D.Cal., June 7,
2010), report and recommendation adopted, 2010 WL 3184294 (E.D.Cal., Aug. 6, 2010); Tompkins v. Stephens,
2010 WL 703074, *2-3 (E.D.Cal., Feb. 25, 2010), report and recommendation adopted, 2010 WL 1239411
(E.D.Cal., Mar. 26, 2010); Jones v. Felker, 2010 WL 582131, *4 (E.D.Cal., Feb. 12, 2010), report and
recommendation adopted, 2010 WL 1034097 (E.D.Cal., Mar. 17, 2010); Roberts v. Salano, 2009 WL 1514440, *2
(E.D.Cal., May 27, 2009) (“While the Court may resolve disputed issues of fact on an unenumerated 12(b) motion, .
. . it cannot assess the credibility of the parties' differing versions of what occurred.”), report and recommendation
adopted, 2009 WL 2136890 (E.D.Cal., July 16, 2009); Fahie v. Tyson, 2007 WL 3046016, *2-3 (E.D.Cal., Oct. 18,
2007); see also Norton v. Contra Costa County Sheriff's Dept., 2008 WL 4279473, *1 n.1 (N.D.Cal., Sept. 11, 2008)
(noting analogy to summary judgment, holding court that looks beyond the pleadings must give the prisoner fair
notice of opportunity to develop a record). In Denson v. Gillispie, 2011 WL 1582441, *3 (D.Nev., Apr. 25, 2011),
the court denied a motion to dismiss under the matter in abatement rubric, but said the defendants could raise
exhaustion again at summary judgment—contrary to the statement in Wyatt v. Terhune, cited in n. 387, above, that
summary judgment is on the merits and is not appropriate for exhaustion controversies.
391
See, e.g., Coley v. Baca, 2013 WL 5773342, *5-6 (C.D.Cal., Oct. 23, 2013) (rejecting plaintiff’s testimony that
he filed a grievance that was never responded to in the absence of corroboration and in light of evidence that jail
officials responded when he complained to the ACLU; noting failure to submit a copy of the grievance undermined
his credibility); Hughes v. City of Mariposa, 2012 WL 6651146, *5-6 (E.D.Cal., Dec. 20, 2012) (finding prison staff
more credible than plaintiff on his claim that they threw his grievance away); DeVon v. Diaz, 2012 WL 4433318, *4
(E.D.Cal., Sept. 24, 2012) (finding plaintiff who timely signed his grievance incredible as to claim he mailed it
timely); Adducci v. Harrington, 2010 WL 4977569, *5 (E.D.Cal., Dec. 2, 2010) (finding plaintiff incredible based
on his prior statements in the administrative process); Tho Trong Le v. Resler, 2009 WL 5126124, *6 (S.D.Cal.,

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instances, courts have held evidentiary hearings to determine exhaustion questions, without
indicating whether a hearing is required, or in what circumstances it might be.392 Interestingly, a
recent unpublished Ninth Circuit decision in a factually contested exhaustion case holds that
credibility may be decided without an evidentiary hearing only “[i]n rare instances—instances in
which it is possible to ‘conclusively’ decide credibility based on documentary testimony and
evidence in the record,” and that in the absence of such certainty, defendants should request an
evidentiary hearing, and the court should hold one absent a request if it does not accept the
plaintiff’s declaration.393 It is hard to see much daylight between this “conclusiveness”
requirement and the summary judgment standard. The court did not refer to matters in
abatement, and cited the leading case on that subject, Wyatt v. Terhune, only in passing. Further,
the same court has also held that a motion to dismiss for non-exhaustion is subject to the same
rule as is a summary judgment motion requiring notice to pro se prisoners of the nature and
possible consequences of the motion and the need to respond with a factual presentation.394
The matter in abatement approach rests on apparently idiosyncratic Ninth Circuit
precedent, and for several years, courts outside the Ninth Circuit mostly rejected it or ignored
it.395 Some district courts have articulated strong reasons to reject it. Thus, one court has
pointed out that contrary to the Wyatt opinion, summary judgment is not necessarily on the
merits, and further, that the Federal Rules of Civil Procedure specify what defenses may be
raised by motion, and do so exclusively, meaning that there is no such thing under the rules as an
“unenumerated” Rule 12(b) motion.396 Another has added the observations that pleas in
abatement were abolished in 1938 by the adoption of the Federal Rules of Civil Procedure, and
that the most recent Sixth Circuit decision addressing a matter in abatement is more than 100
years old.397
The Eleventh Circuit, however, has adopted the matter in abatement approach after some
backing and filling. Several decisions in the Southern District of Georgia had previously held
Dec. 28, 2009) (discrediting plaintiff’s assertion that he filed a grievance because it didn’t appear in defendants’
records and his previous history showed failure to follow the rules); Valencia v. Reyna, 2009 WL 1507557, *7
(D.Ariz., May 28, 2009) (making credibility judgment against plaintiff on motion).
392
See Morton v. Hall, 599 F.3d 942, 944 (9th Cir. 2010).
393
Hubbard v. Houghland, 471 Fed.Appx. 625, 626-27 (9th Cir. 2012). But see Anderson v. McDonald, 2013 WL
211123, *8 (E.D.Cal., Jan. 18, 2013) (holding no hearing is required where decision does not turn on credibility, but
on the inadequacy of the plaintiff’s allegations).
394
Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012) (noting that such a motion is “closely analogous to a
motion for summary judgment”). The court further held that failure to provide the required notice “will be harmless
only in an unusual case, such as where judicial notice of district court records establishes that the pro se prisoner
plaintiff recently received a proper notice in a previous action or where the pro se prisoner plaintiff's response to the
motion to dismiss for failure to exhaust administrative remedies establishes that the plaintiff has a complete
understanding of the notice described in this opinion . . . [or] if the plaintiff cannot prove any set of facts that would
entitle him or her to relief.” 471 F.3d at 1009. Accord, Akhtar v. Mesa, 698 F.3d 1202, 1214-15 (9th Cir. 2012)
(enforcing Stratton holding).
395
See McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y. 2003) (noting lack of Second Circuit support for matter
in abatement approach).
396
Benavidez v. Stansberry, 2008 WL 4279559, *6-7 (N.D.Ohio, Sept. 12, 2008); accord, Frees v. Duby, 2010 WL
4923535, *3-4 (W.D.Mich., Nov. 29, 2010).
397
Frees v. Duby, 2010 WL 4923535, *3. But see Williams v. Ferguson, 2012 WL 33055, *1 n.1 (E.D.Cal., Jan. 6,
2012) (suggesting that it is only the plea in abatement that was abolished, and the proper terminology under the
Federal Rules is the motion with respect to a matter in abatement—which is of course alive and well in the Ninth
Circuit, as noted in the text).

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that “exhaustion constitutes a preliminary issue for which no jury trial right exists, and therefore
judges can and should make credibility determinations on exhaustion-excusal issues.”398 These
decisions were not precedent-based but rested on the court’s view of the policies underlying the
PLRA, an approach to PLRA exhaustion subsequently rejected in Jones v. Bock.399 Post-Jones
decisions in that district then adopted the matter in abatement approach to support their
conclusion, emphasizing courts’ ability to decide disputed factual questions on papers,400 even as
courts within the Ninth Circuit backed away from that aspect of the procedure. The Eleventh
Circuit then rejected this approach entirely in an unreported, non-precedential opinion, insisting
like most courts at the time that summary judgment rules govern when a court addresses matters
outside the pleadings on motion.401
A month later, however, the court issued a precedential opinion adopting the matter in
abatement approach,402 in response to a petition for rehearing en banc filed by the plaintiff in a
case where the court had affirmed judgment for the defendant under the usual summary
judgment rules.403 Although the published opinion presented the matter in abatement procedure
as civil procedure business as usual, mingling citations to Wright & Miller and Moore’s Federal
Practice with citations to Ninth Circuit cases, the dissenting member of the panel pointed out
that the Eleventh Circuit, unlike the Ninth, had previously treated affirmative defenses including
exhaustion of administrative remedies consistently as summary judgment matters, and stated that
the panel majority has disregarded Jones v. Bock’s instruction to follow the usual procedural
practice in adjudicating PLRA exhaustion issues.404 Nonetheless the matter in abatement
approach is now firmly established, and the Circuit has instructed district courts deciding
exhaustion disputes first to consider the factual allegations in defendants’ motion to dismiss and
398

Priester v. Rich, 457 F. Supp. 2d 1369, 1377 (S.D. Ga. 2006), aff’d on other grounds sub nom. Bryant v. Rich,
2007 WL 1558718 (11th Cir., May 31, 2007) (unpublished), superseded, 530 F.3d 1368 (11th Cir. 2008), cert.
denied, 555 U.S. 1074 (2008); accord, Stanley v. Rich, 2006 WL 1549114, *3 (S.D.Ga., June 1, 2006); Williams v.
Rich, 2006 WL 2534417, *4-5 (S.D.Ga., Aug. 30, 2006).
399
549 U.S. 199, 212 (2007).
400
See Bush v. Smith, 2007 WL 4224929, *2 (S.D.Ga., Nov. 27, 2007) (dictum); Poole v. Rich, 2007 WL 2238831,
*3 (S.D.Ga., Aug. 1, 2007), aff’d, 312 Fed.Appx. 165 (11th Cir. 2008), cert. denied, 555 U.S. 854 (2008); Rodriguez
v. Vazquez, 2007 WL 2002443, *1, 5 (S.D.Ga., July 5, 2007) (holding plaintiff’s version of events more persuasive
than defendants’); Stephens v. Howerton, 2007 WL 1810242, *1-3 (S.D.Ga., June 21, 2007) (“rejecting plaintiff’s
self-serving averments”), aff’d, 270 Fed.Appx. 750 (11th Cir. 2008) (unpublished), cert. denied, 555 U.S. 854
(2008); Sterling v. Smith, 2007 WL 1542538, *3 (S.D.Ga., May 23, 2007); Lucas v. Barnes, 2007 WL 1428884, *3
(S.D.Ga., May 14, 2007). See also Amador v. Superintendents of Dep’t of Correctional Services, 2007 WL
4326747, *5 n.7 (S.D.N.Y., Dec. 4, 2007) (finding it “proper” for exhaustion to be decided by court, providing little
explanation), appeal dismissed in part, and vacated and remanded in part on other grounds, 655 F.3d 89 (2d Cir.
2011).
401
Singleton v. Department of Corrections, 2008 WL 2043505, *1 (11th Cir., May 14, 2008).
402
Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008), cert. denied, 555 U.S. 1074 (2008).
403
Bryant v. Rich, 237 Fed.Appx. 429 (11th Cir., May 31, 2007), superseded, 530 F.3d 1368 (11th Cir. 2008), cert.
denied, 555 U.S. 1074 (2008); see Myles v. Miami-Dade County Correctional and Rehabilitation Dept., 476
Fed.Appx. 364, 366 (11th Cir. 2012) (vacating decision analyzing exhaustion on summary judgment, directing use
of matter in abatement procedure as elaborated by appellate court). But see Brewington v. Daniels, 2012 WL
6005780, *1 (M.D.Ala., Nov. 7, 2012) (stating that summary judgment remains appropriate when administrative
remedies are absolutely time barred or otherwise clearly infeasible), report and recommendation adopted, 2012 WL
6005382 (M.D.Ala., Nov. 30, 2012). Brewington inaptly cited Bryant v. Rich, 530 F.3d at 1375, for that
proposition.
404
Bryant, 530 F.3d at 1379-82 (citing Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 919-20 (2007)). Interestingly,
dissenting Judge Wilson had also been a member of the panel rejecting the Ninth Circuit rule in Singleton, as had
been Judge Birch, who concurred in the published Bryant panel opinion.

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plaintiff’s response, assume plaintiff’s version is true if there is a conflict, and if the case cannot
be dismissed for non-exhaustion on plaintiff’s version of the facts, make findings to resolve the
factual dispute.405 It has said nothing about discovery or hearings. Courts in the Eleventh
Circuit have been less inhibited than those in the Ninth about deciding credibility issues on
motion.406
The matter in abatement approach has procedural consequences that may victimize pro se
litigants, since the usual rule of summary judgment, that such litigants are to be given notice of
their obligations and of the consequences of failure to respond with evidence of their factual
assertions, does not apply.407
No other circuit has adopted the matter in abatement approach, though a few district
courts in other circuits have done so.408

405

Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
See, e.g., Singleton v. Department of Corrections, 323 Fed.Appx. 783, 785-86, 2009 WL 1028035 (11th Cir.
2009) (affirming rejection of prisoner’s claim that his appeal was filed in the required four days, rather than five, and
crediting of prison officials’ notation of date), cert. denied, 130 S.Ct. 1155 (2010); Williams v. Barrow, 2013 WL
256753, *1 (M.D.Ga., Jan. 23, 2013) (declining to find exhaustion even though signature acknowledging grievance
response did not appear to be plaintiff’s and plaintiff alleged that his attempts to appeal were ignored),
reconsideration denied, 2013 WL 1296402 (M.D.Ga., Mar. 26, 2013); Williams v. Abbett, 2012 WL 6803602, *4
(M.D.Ala., Dec. 13, 2012) (finding non-exhaustion notwithstanding plaintiff’s allegations re number of grievances
he filed and failure to receive responses to many), report and recommendation adopted, 2013 WL 85099 (M.D.Ala.,
Jan. 8, 2013); Sharpe v. Eutsey, 2010 WL 2178985, *2 (M.D.Ga., Apr. 28, 2010) (court finds that plaintiff did not
submit grievances, rejecting his assertion that he tried and they were rejected), report and recommendation adopted,
2010 WL 2178986 (M.D.Ga., May 28, 2010); Baker v. Chapman, 2010 WL 1258021, *3-4 (M.D.Ga., Mar. 29,
2010) (finding non-exhaustion where defendants filed 50 declarations to plaintiff’s one); Huddleston v. Johnson,
2009 WL 2208165, *7 (S.D.Ala., July 17, 2009) (plaintiff’s “self-serving, conclusory allegation” were insufficient
without documentary corroboration of exhaustion); Harmon v. Terry, 2009 WL 927951, *2 (M.D.Ga., Mar. 27,
2009) (finding facts in favor of plaintiff: it is more likely that the plaintiff did file his missing appeal than not, since
the matter is serious, plaintiff is experienced with the grievance process, and defendants admitted much inefficiency
in processing grievance appeals); Milner v. Jennings, 2008 WL 5381826, *5-6 (M.D.Ala., Dec. 23, 2008) (crediting
defendants’ evidence of non-exhaustion over plaintiff’s “conclusory allegations”). But see Perera v. Hagen, 2013
WL 3929132, *3 (N.D.Fla., July 29, 2013) (stating that an evidentiary hearing “appears to be favored by the
Eleventh Circuit” and directing that one be held); Chestnut v. McClendon, 2012 WL 5497899, *1 (N.D.Fla., Oct.
24, 2012) (dismissing under Bryant v. Rich rule after holding an evidentiary hearing), report and recommendation
adopted, 2012 WL 5497880 (N.D.Fla., Nov. 13, 2012).
407
See Ferguson v. Burnside, 2010 WL 3982240, *2-3 (M.D.Ga., Oct. 8, 2010) (dismissing where plaintiff stated he
had proof of exhaustion, but did not submit it; there is no indication the court gave a warning).
408
Perotti v. Marlberry, 2012 WL 3112425, *1-2 (E.D.Mich., July 31, 2012). Several district court decisions have
adopted the matter in abatement approach without acknowledging the split of authority or the openness of the
question in their circuits. See Twohig v. Riley, 2013 WL 3773365, *4 (E.D.Mich., July 17, 2013); Ward v.
ARAMARK Corrections Food Service, 2011 WL 1542108, *3 (W.D.Ky., Apr. 22, 2011); Brown v. Correct Care
Integrated Health, 2011 WL 590328, *1 (W.D.Ky., Feb. 10, 2011); Keister v. Turner, 2010 WL 4053556, *2
(W.D.Ark., Sept. 22, 2010), report and recommendation adopted, 2010 WL 4053551 (W.D.Ark., Oct. 14, 2010);
McCauley v. Correctional Medical Services, Inc., 2010 WL 3398743, *3 (W.D.Mich., July 26, 2010) (arguably
dictum), report and recommendation adopted, 2010 WL 3398704 (W.D.Mich., Aug. 27, 2010); McClain, Jr. v.
Alveriaz, 2009 WL 3467836, *3 n.1, *9 (E.D.Pa., Oct. 26, 2009) (finding the facts against the plaintiff based on
defendants’ claims about their routine practice, rather than any evidence about the particular case, and contrary to
plaintiff’s testimony); Anderson v. Pruitt, 2009 WL 211711, *1-2 (M.D.N.C., Jan. 29, 2009) (finding plaintiff
“makes no showing” he could not file a grievance, without explaining why it is the plaintiff’s burden, or
acknowledging Jones v. Bock); see Springer v. Brown No. 1, 2013 WL 865978, *3 n.2 (W.D.Va., Mar. 7, 2013)
(citing matter in abatement cases, concluding generally that exhaustion should be dealt with by dismissal rather than
406

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The Seventh Circuit has rejected the Ninth Circuit matter in abatement approach, but has
also departed from the usual litigation practice of summary judgment. It has held that whenever
exhaustion “is contested,” the district court should conduct a hearing on exhaustion, allowing
discovery limited to exhaustion, and decide the exhaustion question; only if the court finds the
plaintiff has exhausted will the case proceed to discovery on the merits.409 The court did not
explain whether “contested” means raised as a defense in the answer, raised by motion, or
turning on a material issue of fact and therefore not susceptible to summary judgment.
The court reasoned that not every factual issue is triable to a jury, citing issues of subject
matter jurisdiction, personal jurisdiction, venue, abstention, and relinquishment of supplemental
jurisdiction.410 Its expressed concern was to avoid presentation of exhaustion to the jury. It
stated that “juries do not decide what forum a dispute is to be resolved in. . . . Until the issue of
exhaustion is resolved, the court cannot know whether it is to decide the case or the prison
authorities are to.”411 Further, a jury finding of non-exhaustion may result in a new round of
administrative proceedings followed by another jury trial at which exhaustion might again be at
issue, threatening a further repetition. These points distinguish exhaustion from the statute of
limitation defense, an affirmative defense which is decided by juries. “A statute of limitations
defense if successfully interposed ends the litigation rather than shunting it to another forum.”412
The Pavey approach has not banished summary judgment as a means of resolving
exhaustion questions where material facts are undisputed. Litigants still seek and are granted
summary judgment in many cases,413 and upon the denial of summary judgment the court may
hold a hearing.414 In factually disputed cases, hearings on exhaustion have become a regular
practice,415 though some courts encourage litigants to proceed to the merits instead.416

summary judgment); Andrade v. Maloney, 2006 WL 2381429, *3 (D.Mass., Aug. 16, 2006) (expressing approval of
matter in abatement approach; it is not clear whether it actually adopts the Wyatt holding).
409
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), cert. denied, 556 U.S. 1128 (2009); see Cohron v. City of
Louisville, Ky., 2012 WL 1015789, *1, 4 (W.D.Ky., Mar. 22, 2012) (cancelling scheduled jury trial in favor of
Pavey hearing in response to belated motion re exhaustion), aff’d, 530 Fed.Appx. 534 (6th Cir. 2013), cert. denied,
134 S.Ct. 1029 (2014). Cf. Cerome v. Moshannon Valley Correctional Center, 2009 WL 874610, *4 (W.D.Pa., Mar.
27, 2009) (“Exhaustion is not a trial issue, rather it is a preliminary question of law to be determined by the court.”
(citing cases which do not support the holding)).
410
Pavey v. Conley, 544 F.3d at 741.
411
Pavey, 544 F.3d at 741.
412
Pavey, 544 F.3d at 741.
413
See Torres v. Fenoglio, 2013 WL 3808043, *5 (S.D.Ill., July 19, 2013) (holding there is no need for a Pavey
hearing where there are no factual disputes, only legal ones); Conley v. Mathes, 2010 WL 3199750, *4 (C.D.Ill.,
Aug. 10, 2010) (granting summary judgment to defendants on non-exhaustion).
414
See Swisher v. Porter County Sheriff's Dept., 2012 WL 3776363, *4 (N.D.Ind., Aug. 29, 2012) (stating scope of
Pavey hearing, allowing discovery), reconsideration denied, 2013 WL 550507 (N.D.Ind., Feb. 11, 2013); Phelps v.
Martin, 2010 WL 331721, *5 (N.D.Ill., Jan. 22, 2010) (denying summary judgment, scheduling a conference to
discuss holding an evidentiary hearing).
415
See, e.g., Norington v. Scott, 2013 WL 5209228, *5 (S.D.Ill., Sept. 13, 2013) (finding prisoner’s testimony
credible that he filed a grievance, which disappeared); Johnson v. Dismore, 2012 WL 1855031, *5-6 (S.D.Ill., Apr.
24, 2012) (finding prisoner’s testimony credible), report and recommendation adopted, 2012 WL 1854928 (S.D.Ill.,
May 21, 2012); Smith v. Buss, 2011 WL 1118065, *9 (N.D.Ind., Feb. 18, 2011) (finding in prisoner’s favor after
hearing), report and recommendation adopted, 2011 WL 1085009 (N.D.Ind., Mar. 24, 2011); Hopes v. Mash, 2010
WL 3490991 (S.D.Ill., Aug. 31, 2010) (dismissing for non-exhaustion after credibility findings against plaintiff at
hearing); Grayson v. Schuler, 2010 WL 3398879, *4-5 (S.D.Ill., July 20, 2010) (crediting plaintiff’s testimony that
he appealed, got no response, and got no response to his inquiries about it), report and recommendation adopted,

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Pavey’s approach does not appear well founded. The premise that exhaustion is a “what
forum?” question does not fit PLRA exhaustion, since the dispute resolved (or not resolved) in a
prison grievance proceeding (usually, whether facility or departmental rules or procedures have
been breached) is not the same as the dispute presented to a federal court, i.e., whether federal
rights were violated and if so what judicial remedy is appropriate. This contrasts with the more
usual administrative law judicial review situation, where the agency proceeding and the litigation
ultimately address the same question, e.g. whether the plaintiff is entitled to certain benefits or
not. In theory, there is more of a basis for the court’s concern that reserving exhaustion disputes
for the jury means that a finding of non-exhaustion may set in motion a new cycle of
administrative proceedings followed by a do-over of the litigation. In practice that is
exceedingly unlikely, since a jury trial will never take place within the short time limits that
characterize prison grievance systems.417 Further, the proposition that all discovery is postponed
except for exhaustion-related discovery appears to run afoul of the Supreme Court’s warning that
the exhaustion requirement does not displace usual litigation practices under the Federal Rules
of Civil Procedure, and that its explicit provisions may not be enhanced based on judges’ policy
views.418 The court does not address this holding of Jones v. Bock. Further, it contrives a
seemingly unprecedented (at least it cites no precedent) means of addressing facts that are
essential to the exhaustion decision but are also germane to the merits of the plaintiff’s claim:
insofar as such an overlap exists, the jury will find the merits facts “without being bound by (or
even informed of)” the district court’s determinations.419 Under this view, it is possible for two
2010 WL 3432842 (S.D.Ill., Aug. 30, 2010); Dupree v. Maue, 2009 WL 4678088, *2-3 (S.D.Ill., Dec. 7, 2009)
(finding plaintiff did what was necessary to exhaust and prison personnel did not act; rejecting defendants’
unsupported claim that plaintiff fabricated his account); Ducey v. Flagg, 2009 WL 3065045, *4 (S.D.Ill., Sept. 23,
2009) (finding credible plaintiff’s statement that he filed grievances with no response, despite defendants’ lack of a
record of them); see also Smith v. Buss, 2010 WL 1382121, *1 (N.D.Ind., Mar. 29, 2010) (appointing counsel; “A
Pavey hearing, and a possible trial on the merits, are procedurally too complicated for an untrained pro se litigant to
navigate.”). Contra, Bone v. Walker, 2011 WL 1869948, *1 (C.D.Ill., May 16, 2011) (declining to appoint counsel
for a Pavey hearing; “the issue of exhaustion is not complex”).
416
Franklin v. Fewell, 2014 WL 505341, *5 (N.D.Ind., Feb. 7, 2014) (directing defendants to file a notice stating
whether they wish to proceed to a Pavey hearing or waive the exhaustion defense); Hudson v. Francom, 2013 WL
1099802, *3 (S.D.Ind., Mar. 15, 2013) (stating court will schedule a Pavey hearing unless defendants withdraw the
exhaustion defense); Williams v. Lovett, 2012 WL 2400465, *3 (S.D.Ind., June 22, 2012) (directing defendant either
to drop claim of non-exhaustion or request a Pavey hearing); McLaughlin v. Freeman, 2010 WL 1049878, *5
(N.D.Ind., Mar. 16, 2010) (stating that where it denies summary judgment on non-exhaustion, “it is the practice of
this court to give the defendants the opportunity to withdraw their exhaustion defense and proceed to the merits. . .
.”); Henderson v. Brown, 2009 WL 2496559, *5 (N.D.Ill., Aug. 11, 2009) (denying summary judgment on
exhaustion, advising the defendants that “should [they] choose to stand on this defense,” the court would hold an
evidentiary hearing, but they might be better advised to move for summary judgment on the merits instead).
417
More recently, in another decision authored by the same judge, Judge Posner, the court enhanced its rationale for
keeping PLRA exhaustion issues from the jury, reiterating the Pavey reasoning and then distinguishing PLRA
exhaustion from the administrative charge-filing requirement of Title VII of the 1964 Civil Rights Act: “The
distinction is not a technical one. It reflects the different goals of the Prison Litigation Reform Act and Title VII.
The former is designed to keep prisoner grievances in prisons and out of courts, on the theory that the primary
responsibility for prison regulation should lie with prison officials rather than with federal judges. Title VII, in
contrast, is designed to provide a federal judicial forum, complete with jury if desired, for persons complaining
about employment discrimination.” Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012).
418
Jones v. Bock, 549 U.S. 199, 212 (2007) (rejecting treatment of PLRA exhaustion as a pleading requirement,
requirement that all litigation defendants have been named in the administrative grievance, and the “total
exhaustion” rule).
419
Pavey, 544 F.3d at 742; accord, Gebo v. Thyng, 2012 WL 4848883, *1 (D.N.H., Oct. 11, 2012).

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contradictory factual findings to coexist in the same case. This does not seem like a usual
litigation practice.
The Fifth Circuit has taken a less obtrusive path to the same result as Pavey, holding that
“the protections of Rule 56” are appropriate when courts consider evidence about exhaustion
outside the pleadings, but that “exhaustion is a threshold issue that courts must address to
determine whether litigation is being conducted in the right forum at the right time.”420 If
summary judgment is denied, therefore, “the judge may resolve disputed facts concerning
exhaustion, holding an evidentiary hearing if necessary.”421 Similarly to Pavey, the court added:
“In many cases, the judge will be able to rule on exhaustion without allowing any discovery.
However, in some cases, unique circumstances may arise that necessitate allowing some
discovery prior to ruling, such as where the availability of administrative remedies is
contested.”422
The Second Circuit has taken an approach similar to Pavey’s, in a case presenting the
question whether exhaustion is an issue for court or jury. The court noted the Supreme Court’s
statement that administrative exhaustion “govern[s] the timing of federal-court
decisionmaking”423 and adding that exhaustion is “a matter of judicial administration” going to
the question whether the court or prison authorities are to decide the case.424 The jury trial right
does not extend to “the ‘threshold issue[s] that courts must address to determine whether
litigation is being conducted in the right forum at the right time.’”425 The court added: “To
require a jury trial before it is certain that an inmate is entitled to be in federal court would
seriously undercut” the PLRA’s goals of encouraging the use of administrative steps, providing
prisons with an opportunity to correct their errors, and reducing the quantity and improving the
quality of prisoner suits.426 It distinguished statutes of limitations, which provide a nonjurisdictional defense as to which there is a right to jury trial, on the ground that exhaustion
“must be satisfied before the courts can act” on a prisoner’s claim, while a statute of limitations
“‘represent[s] a pervasive legislative judgment that it is unjust to fail to put the adversary on
notice to defend within a specified period of time’ . . . . In other words, one doctrine opens the
courthouse door and the other closes it.”427 The court also rejected the argument that “a jury trial
should be permitted if exhaustion is no longer possible, i.e., if a dismissal for failure to exhaust
will ‘end litigation rather than shunting it to another forum.”428 It stated: “The Seventh
Amendment does not promise a jury trial on all issues that might, as a practical matter, finally
dispose of a case. Rather, it guarantees the right to a jury’s resolution of the merits of the
420

Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010).
Dillon, 596 F.3d at 273; see Cowart v. Erwin, 2013 WL 6188731, *5 (N.D.Tex., Nov. 26, 2013) (declining to
dismiss after an evidentiary hearing; finding facts in favor of plaintiff); Busher v. Taylor, 2012 WL 3637138, *3
(E.D.Tex., Aug. 22, 2012) (finding factual dispute on summary judgment motion, then finding non-exhaustion by “a
preponderance of the credible evidence” after an evidentiary hearing), aff’d, ___ Fed.Appx. ____, 2013 WL
6570784 (5th Cir. 2013) Garner v. Richland Parish Detention Center, 2010 WL 2804313, *5 (W.D.La., Apr. 20,
2010) (ordering hearing pursuant to Dillon where non-exhaustion appeared likely but was not established “beyond
peradventure”), report and recommendation adopted, 2010 WL 2803082 (W.D.La., July 15, 2010).
422
Dillon, 596 F.3d at 273 n.4.
423
Messa v. Goord, 652 F.3d 305, 308 (2d Cir. 2011) (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)).
424
Messa v. Goord, id. (quoting Pavey, 544 F.3d at 741).
425
Messa, 652 F.3d at 309 (quoting Dillon, 596 F.3d at 272) (emphasis added).
426
Messa, 652 F.3d at 309 (citations omitted).
427
Messa, 652 F.3d at 309 (citation omitted).
428
Messa, 652 F.3d at 310 (quoting Pavey, 544 F.3d at 741).
421

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ultimate dispute”429—a proposition that fails to account for the jury right as to statutes of
limitations.
The Second Circuit in Messa did not comment explicitly on the procedural ramifications
of its holding, e.g., on the circumstances when a hearing is required, or on the availability of
discovery. It did, however, affirm a decision reached by the district court at an evidentiary
hearing scheduled just before the trial was scheduled to begin and after it had denied summary
judgment.430 In another case a few weeks later, however, it noted the existence of disputed facts
concerning exhaustion, and stated: “On remand, the District Court may request additional
discovery and briefing on this point in connection with a renewed dispositive motion, or proceed
directly to trial.”431 Thus it appears that district courts in this circuit will retain some discretion
in managing fact-finding concerning exhaustion.
Also, the Messa court began with the proposition that “[m]atters of judicial
administration often require district judges to decide factual disputes that are not bound up with
the merits of the underlying dispute,” and noted that in that case, the factual disputes about
exhaustion were not “intertwined with the merits.”432 Where exhaustion and merits issues are
intertwined, it appears that they must be reserved for the jury if one has been sought.433 That is
the implication of Messa, which cited with approval an earlier decision in which a factual dispute
that affected both jurisdiction and the merits was held to be reserved for the jury. 434 Certainly,
the Messa court said nothing about the Seventh Circuit’s approach in Pavey, described above,
under which the court would make an initial determination that would then be kept secret from
the jury if the claim survived.
Most recently, the Third Circuit has affirmed a district court’s decision of contested
exhaustion facts after an evidentiary hearing, declaring that “we agree with the Second, Fifth,
Seventh, Ninth, and Eleventh Circuits and hold that judges may resolve factual disputes relevant
to the exhaustion issue without the participation of a jury.”435 It did not adopt the matter in
abatement theory, mentioning it only in passing. It simply stated that exhaustion is a
429

Messa, 652 F.3d at 310.
Messa, 652 F.3d at 308, 310; see Johnson v. Schiff, 2013 WL 5466638, *8-9 (N.D.N.Y., Sept. 30, 2013) (holding
that an evidentiary hearing was required despite defendants’ opposition); Rivera v. New York City, 2013 WL
6061759, *7 (S.D.N.Y., Nov. 18, 2013) (directing defendants to state whether they prefer to have a hearing on
exhaustion or proceed with the merits, where court had found disputed facts barring summary judgment); Johnson v.
Schiff, 2013 WL 5466218, *4 (N.D.N.Y., Sept. 13, 2013) (recommending hearing on “triable issue” whether
defendants were estopped from asserting exhaustion), report and recommendation adopted, 2013 WL 5466638
(N.D.N.Y., Sept. 30, 2013); Bailey v. Fortier, 2013 WL 310306, *1 & n.1 (N.D.N.Y., Jan. 25, 2013) (noting that the
court appointed counsel, allowed limited discovery, and held an evidentiary hearing); Travis v. Morgridge, 2013 WL
227665, *5 (W.D.Mich., Jan. 22, 2013) (following Messa, denying summary judgment on exhaustion and
remanding to magistrate judge for evidentiary hearing if warranted).
431
Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011).
432
Messa, 652 F.3d at 309.
433
See Carlson v. Parry, 2013 WL 5354517, *1-2, *9-12 (W.D.N.Y., Sept. 24, 2013) (noting exhaustion issues
intertwined with merits had been submitted to a jury, which found non-exhaustion; jury instructions and trial
testimony discussed); Rickett v. Orsino, 2013 WL 1176059, *22-23 (S.D.N.Y., Feb. 20, 2013), report and
recommendation adopted, 2013 WL 1155354 (S.D.N.Y., Mar. 21, 2013).
434
Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006) (“If, however, the overlap
in the evidence is such that fact-finding on the jurisdictional issue will adjudicate factual issues required by the
Seventh Amendment to be resolved by a jury, then the Court must leave the jurisdictional issue for the trial. . . .”)
(cited in Messa, 652 F.3d at 309). Jurisdiction, like exhaustion, is a precondition to the exercise of judicial power.
435
Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013).
430

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precondition for prisoner litigation, and therefore a threshold issue like subject matter
jurisdiction, personal jurisdiction, and venue, which is for the court and not for the jury; it
distinguished statutes of limitations, like exhaustion a non-jurisdictional affirmative defense but
one triable to a jury, as did the Second Circuit in Messa.436 It added: “It would make sense from
an efficiency standpoint that exhaustion determinations be made before discovery, or with only
limited discovery.”437
This conflict among the circuits’ approaches will have to be resolved by the Supreme
Court, though it may not give much priority to hearing a conflict that is more significant in terms
of theory than in its practical results.438
Other circuits have either adhered without comment to the summary judgment
framework439 or have departed from it also without comment.440 A number of district courts
have held evidentiary hearings to resolve exhaustion issues with little or no theoretical discussion
of why such a procedure is appropriate.441

436

Small, 728 F.3d at 269-70 & n.4.
Small, id., 728 F.3d at 271 n.5 (citing Pavey, 544 F.3d at 742).
438
The Court denied certiorari in all of the major circuit decisions under discussion in which certiorari was sought.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), cert. denied, 556 U.S. 1128 1620 (2009); Bryant v. Rich, 530
F.3d 1368 (11th Cir. 2008), cert. denied, 555 U.S. 1074 (2008); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.
2003), cert. denied, 540 U.S. 810 (2003). There was no petition for certiorari in Dillon v. Rogers or in Messa v.
Goord..
Not all courts are impressed by the divergence among these decisions. In Butler v. Wards, 2008 WL
4643181, *7-8 (E.D.Ark., Oct. 16, 2008), the court cited Pavey, Wyatt, and Bryant, declared their reasoning sound
(even though Pavey rejects the reasoning of Wyatt and presumably Bryant), and recommended denial of summary
judgment, with leave to refile the summary judgment motion on the relevant claims and ask for an evidentiary
hearing on exhaustion or proceed with development of the merits of those claims.
439
See n. 380, above.
440
The First Circuit has in two cases remanded to district courts for fact-finding on exhaustion, but has not explained
the procedural basis for doing so or the appropriate response of a district court to disputed facts. See Cruz Berrios
v. Gonzalez-Rosario, 630 F.3d 7, 11 (1st Cir. 2010) (remanding for fact-finding on exhaustion without explaining
the procedural basis for this direction); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002), on remand, 2002
WL 1613715, *6 (D.Mass., July 22, 2002) (making findings after hearing), remanded on other grounds, 304 F.3d 75
(1st Cir. 2002). Cf. Starr v. Moore, 849 F.Supp.2d 205, 211 (D.N.H. 2012) (holding belated exhaustion defense
could not be raised by motion in limine, but could be raised at trial).
The Fourth Circuit “routinely deals with PLRA exhaustion issues following the entry of both dismissal and
summary judgment orders.” Springer v. Brown No. 1, 2013 WL 865978, *3 n.2 (W.D.Va., Mar. 7, 2013) (citing
cases); accord, Strickland v. Wang, 2013 WL 866075, *1 n.2 (W.D.Va., Mar. 7, 2013).
441
See, e.g., Lee v. Willey, 2014 WL 372652, *2-3 (E.D.Mich., Feb. 3, 2014) (granting motion for a bench trial on
exhaustion; finding “bench trial/evidentiary hearing is the most efficient way to proceed”); Travis v. Morgridge,
2013 WL 5939778, *1, 3 (W.D.Mich., Nov. 5, 2013); Strickland v. Wang, 2012 WL 5398655, *1 (W.D.Va., Nov. 5,
2012) (“Because the resolution of this dispute is potentially dispositive, the court finds that judicial resources are
well spent in an attempt to resolve it before proceeding further.”); Garcia v. PrimeCare Medical, Inc., 2012 WL
3704800, *8 (E.D.Pa., Aug. 28, 2012) (stating “[e]xhaustion is a question of law to be decided by the Court,”
without explanation, citing a decision that does not address the question), order issued, 2012 WL 3704806 (E.D.Pa.,
Aug. 28, 2012); Gebo v. Thyng, 2012 WL 965097, *6 (D.N.H., Mar. 21, 2012) (stating intent to hold evidentiary
hearing); Miller v. Taylor, 2011 WL 1045564, *6 (D.Del., Mar. 15, 2011) (same as Gebo); Shouse v. Ray, 2010 WL
3385185, *4 (W.D.Va., Aug. 26, 2010) (on summary judgment, court finds factual conflict and refers to magistrate
judge for fact-finding, including hearing if necessary); Bradley v. McVay, 2009 WL 256460 (E.D.Cal., Feb. 3,
2009), report and recommendation adopted, 2009 WL 800202 (E.D.Cal., Mar. 25, 2009); Sease v. Phillips, 2008
WL 2901966, *6 (S.D.N.Y., July 24, 2008); Peterson v. Roe, 2007 WL 432962, *1 (D.N.H., Feb. 2, 2007) (finding
officials credible as to failing to receive appeal, plaintiff credible as to mailing it and as to the unreliability of the
437

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Some district courts have pushed the envelope in order to dispose of exhaustion disputes
on motions to dismiss, or to grant summary judgment in spite of factual disputes. A number of
courts have taken a seemingly expansive view of their ability to consider grievance
documentation on a motion to dismiss,442 though this view has been cogently rejected in other
decisions.443 Other courts have granted summary judgment in contested cases, either declaring
internal mail); Parker v. Robinson, 2006 WL 2583730, *1 (D.Me., Sept. 6, 2006) (noting plaintiff had objected to
hearing in light of finding that factual disputes precluded summary judgment); Montgomery v. Johnson, 2006 WL
2403305, *1 (W.D.Va., Aug. 18, 2006), report and recommendation adopted, 2006 WL 3099651 (W.D.Va. Oct. 30,
2006); see also Johnson v. Garraghty, 57 F.Supp.2d 321, 329 (E.D.Va. 1999) (holding that disputed claim that
defendants obstructed exhaustion merits an evidentiary hearing). But see Mitchell v. Adams, 2008 WL 314129, *14
(E.D.Cal., Feb. 4, 2008) (reserving factual dispute for trial because the court lacks time and resources for an
evidentiary hearing), report and recommendation adopted, 2008 WL 595922 (E.D.Cal., Mar. 3, 2008).
One exception to the atheoretical character of decisions calling for evidentiary hearings is Middlebrook v.
Tennessee Department of Correction, 2010 WL 3432687 (W.D.Tenn., Aug. 31, 2010), which asserts the highly
dubious view that since the Sixth Circuit had adopted a heightened pleading rule for exhaustion to avoid “timeconsuming evidentiary hearings,” and the Supreme Court rejected that rule in Jones v. Bock, the Supreme Court has
implicitly called for evidentiary hearings. 2010 WL 3432687, *9 (citations omitted).
442
See, e.g., Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (“indisputably authentic” documents may be
considered without converting the motion to one for summary judgment); Steele v. Federal Bureau of Prisons, 355
F.3d 1204, 1212 (10th Cir. 2003) (holding court may consider documents attached to the complaint, or the
defendants can submit them if they are not attached, or submit a declaration), cert. denied, 543 U.S. 925 (2004);
Young v. Sposato, 2014 WL 109083, *6 n.7 (E.D.N.Y., Jan. 13, 2014) (stating grievances and grievance procedure
attached to the complaint were “properly considered”); Lefebvre v. Pallito, 2012 WL 7198435, *5 n.9 (D.Vt., Dec.
17, 2012) (taking judicial notice of grievance policy, holding doing so obviates the need to convert motion to one for
summary judgment), report and recommendation adopted in part, rejected in part, 2013 WL 682741 (D.Vt., Feb.
25, 2013); Richardson v. Folino, 2012 WL 6552916, *4 & n.3, 13 (W.D.Pa., Dec. 14, 2012) (holding grievance
documents submitted by defendants can be considered because they are public records; plaintiff’s documents can be
considered because they are attached to the complaint); Moorehead v. Keller, 845 F.Supp.2d 689, 693 & n.1
(W.D.N.C., Feb. 29, 2012) (granting judgment on the pleadings where defendants submitted a grievance decision
that post-dated the complaint; “When a document attached to the pleadings contradicts the allegations of the
complaint, the document controls in a Rule 12(b)(6) motion to dismiss.”), appeal dismissed (4th Cir., No. 12-6411,
Mar. 23, 2012); Faust v. Cabral, 2011 WL 4529374, *4 (D.Mass., Sept. 27, 2011) (on motion to dismiss, directing
defendants to file grievance documentation; court will then decide whether to hold an evidentiary hearing or call for
more briefing; no explanation why summary judgment is not appropriate for this consideration of extrinsic material);
Spruill v. Bailey, 2011 WL 577106, *3 (W.D.N.C., Feb. 8, 2011) (holding documents attached to defendants’
motion to dismiss were “integral to the Complaint” and made non-exhaustion “apparent”); see Appendix A for
additional authority on this point.
443
Some courts have pointed out that since exhaustion is an affirmative defense, documents pertaining to it are not
central or integral to the complaint, and are surplusage if attached to the complaint. See Adamson v. Poorter, 2007
WL 2900576, *2-3 (11th Cir. 2007) (unpublished) (holding Bureau of Prisons personnel’s affidavits were not
documents “central” to the complaint and could not be considered without converting to summary judgment); Facey
v. Dickhaut, 892 F.Supp.2d 347, 354 (D.Mass. 2012) (holding exhaustion was not “central” to the complaint and
grievance documentation was not “merged” with the complaint); Hernandez v. Banulos, 2012 WL 3845885, *2 &
n.2 (D.Colo., Sept. 2, 2012) (rejecting affidavit from custodian of records on motion to dismiss, converting to
summary judgment); Taylor v. Hillis, 2011 WL 6341090, *3 (W.D.Mich., Nov. 28, 2011); Frees v. Duby, 2010 WL
4923535, *2 (W.D.Mich., Nov. 29, 2010) (holding grievance documentation cannot be considered as “integral to the
complaint” because exhaustion is not a part of plaintiff’s claim; nor are “internal prison records whose accuracy is
not susceptible of confirmation by public sources” public records amenable to judicial notice); see also Romano v.
Rambosk, 2014 WL 103171, *6 (M.D.Fla., Jan. 9, 2014) (holding grievances submitted with and repeatedly
referenced in the complaint could be considered on a motion to dismiss; defendants’ affidavits could not). Other
courts have rejected the notion that grievance records are public records amenable to judicial notice. Taylor v.
Hillis, supra, 2011 WL 6341090, *3; Davis v. Caruso, 2009 WL 877964, *6 n.6 (E.D.Mich., Mar. 30, 2009) (noting
that only the existence of grievance records may be judicially noticed; facts contained in them cannot be considered
on a motion to dismiss); Hicks v. Irvin, 2008 WL 2078000, *2 (N.D.Ill., May 15, 2008) (refusing to take judicial

83

the pro se plaintiffs’ representations too conclusory or insufficiently detailed to raise a dispute of
material fact,444 rejecting prisoners’ statements for lack of corroboration,445 or simply finding the
facts against the plaintiff.446 In some cases, as where prisoners’ claims are not only conclusory
but also suspect because they contradict the prisoners’ pleadings or deposition testimony,447
skepticism may be justified. But in most cases, such deviation from the usual summary
judgment practice under the Federal Rules is not consistent with the Supreme Court’s reasoning
notice of exhaustion documentation on motion to dismiss); Gabby v. Luy, 2006 WL 167673, *1 (E.D.Wis., Jan. 23,
2006) (rejecting “public record” argument, converting motion to dismiss supported by grievance documents into
summary judgment motion).
444
See, e.g., Frazier v. Barker, 2013 WL 798240, *3 (D.Colo., Feb. 11, 2013) (rejecting as “conclusory and selfserving” plaintiff’s statement that he was told on a specified date “that he would be limited to just one grievance
every 120 days . . . yet he was actually denied access to use of the grievance process completely from that day until
his transfer out of the BCCF a year later”), report and recommendation adopted, 2013 WL 799681 (D.Colo., Mar. 5,
2013); Lowery v. Strode, 2012 WL 4433560, *4 (W.D.Ky., Sept. 25, 2012) (granting summary judgment against
prisoner who said he was refused grievance forms but “fails . . . to describe the attempts, if any, he made to obtain a
grievance form from Defendants or other officers within 48 hours of the incident and the circumstances surrounding
their alleged denial/refusal”); De'lonta v. Johnson, 2012 WL 2921762, *5 (W.D.Va., July 17, 2012) (granting
summary judgment against prisoner who said she could not appeal because she “was on strip-cell mental health
status” and had no access to mail, noting that she did “not allege that she handed her appeal to a BUCC official for
mailing or how any BUCC official refused to process her appeal”), order entered, 2012 WL 2921539 (W.D.Va.,
July 17, 2012), aff’d, 490 Fed.Appx. 579 (4th Cir. 2012); Smith v. U.S., 2011 WL 7414011, *9 (M.D.Pa., Nov. 18,
2011) (“We find that Plaintiff's self-serving averment in his Declaration that he failed to receive notice of an
extension does not sufficiently dispute Defendants' evidence which indicates that Plaintiff did in fact receive notice
of the extension.” Defendants’ evidence was a “P” on a form which they said meant notice was delivered); see
Appendix A for additional authority on this point. Contra, Ojo v. Medic, 2012 WL 7150497, *6-7 (D.N.H., Dec. 17,
2012) (noting that plaintiff’s deposition was quite explicit as to details of obstruction of his exhaustion, even though
he didn’t cite it in summary judgment motion), report and recommendation approved, 2013 WL 593485 (D.N.H.,
Feb. 14, 2013); Gayle v. Benware, 2009 WL 2223910, *5 (S.D.N.Y., July 27, 2009) (denying summary judgment
where plaintiff alleged he was denied a grievance form and access to a grievance representative, and gave a
grievance to staff for mailing that never arrived, though he did not name the staff members involved).
445
Frazier v. Barker, 2013 WL 798240, *3 (D.Colo., Feb. 2013) (“The absence of any evidence, other than
plaintiff's bald allegation in his response, is insufficient.”), report and recommendation adopted, 2013 WL 799681
(D.Colo., Mar. 5, 2013); Fuentes v. Balcer, 2013 WL 276679, *6 (W.D.N.Y., Jan. 24, 2013) (stating plaintiff’s
testimony of assault and intimidation could not support a jury finding of unavailability “in the absence of any
supporting documentation or deposition testimony”); Prall v. Ellis, 2012 WL 6707735, *9 (D.N.J., Dec. 26, 2012)
(citing lack of documentary corroboration in rejecting plaintiff’s and a witness’s testimony), reconsideration denied,
2013 WL 1314731 (D.N.J., Mar. 28, 2013); Tyler v. Jones, 2010 WL 3843491, *6 (D.Colo., Sept. 19, 2010)
(refusing to credit plaintiff’s claim of filing final grievance appeal on summary judgment without corroboration),
report and recommendation adopted, 2010 WL 3943653 (D.Colo., Sept. 23, 2010); Damron v. Sims, 2010 WL
3075119, *1 (S.D.Ohio, Aug. 3, 2010) (holding plaintiffs must submit “some probative evidence” contrary to
defendants’ claims, even though their verified complaint conflicted with those claims); Jones v. Carroll, 628
F.Supp.2d 551, 557 (D.Del. 2009) (holding plaintiff’s affidavit stating that a correction officer had told him housing
and security could not be addressed by the grievance program did not raise a material factual issue absent supporting
evidence); Martos v. Washington County, 2009 WL 1531692, *7 (W.D.Pa., June 1, 2009) (granting summary
judgment despite plaintiff’s sworn testimony that he tried to grieve and was obstructed, on ground that testimony
was not corroborated); Perotti v. Medlin, 2009 WL 929013, *12-13 (N.D.Ohio, Apr. 2, 2009) (granting summary
judgment where plaintiff’s “self-serving affidavit” was not corroborated by other evidence of exhaustion).
446
Kargbo v. Brown, 2013 WL 6533230, *3 (D.N.H., Dec. 13, 2013) (finding that plaintiff was not denied forms for
a grievance because he had been able to file other grievances and that he “chose” not to file a grievance); Vinegar v.
Beebe, 2013 WL 5663835, *3 (C.D.Ill., Oct. 17, 2013) (finding that plaintiff who said his grievance went
unanswered “simply failed to submit a grievance” properly).
447
See, e.g., Witte v. Culton, 2013 WL 639309, *4 (E.D.Mo., Feb. 21, 2013) (noting unsupported claims
contradicted pleadings).

84

in Jones v. Bock.448 Certainly it seems a questionable practice to grant summary judgment
against a pro se litigant (as are the vast majority of prisoner plaintiffs) for lack of detail and
specificity or corroboration, rather than to allow discovery on exhaustion under Fed.R.Civ.P.
56(f) and allow the motion to be renewed after completion of discovery.449
One decision characterized a failure to exhaust as a failure to prosecute, allowing the
court to dismiss sua sponte,450 a view that has little to recommend it but originality.
5.

Appealing Exhaustion Decisions

The refusal to dismiss for non-exhaustion may not be appealed interlocutorily,451 unless
the district court certifies it for appeal.452 Dismissal without prejudice, the usual mode of

448

McDonald v. Dallas County, 2007 WL 2907824, *3 (N.D.Tex., Oct. 5, 2007) (citing Jones v. Bock, 549 U.S.
199, 212-13 (2007)). Under standard summary judgment doctrine, a sworn statement by the plaintiff that states he
or she has done what is necessary to exhaust should be sufficient to defeat summary judgment. See, e.g., Roberts v.
Neal, ___ F.3d ___, 2014 WL 929047, *1 (7th Cir. 2014) (rejecting summary judgment granted because “there was
no evidence besides Roberts’s say-so” that he had filed a grievance; “A swearing contest requires an evidentiary
hearing to resolve, and none was held.”); Abdul-Aziz v. Nwachukwu, 523 Fed.Appx. 128, 130 (3d Cir. 2013)
(unpublished) (holding plaintiff’s claim that he had filed a grievance appeal and defendants’ denial that he had
created a material issue of fact barring summary judgment); Cowart v. Erwin, 2013 WL 3970790, *5 (N.D.Tex.,
Aug. 2, 2013) (“Although Defendants are correct that Plaintiff's claim of exhaustion ‘is an easy claim to make as it
cannot be disproved,’ . . . the reason that it cannot be disproved at the summary judgment stage is because it is a
disputed question of fact.”); Hernandez v. Donovan, 2013 WL 1246799, *3 (D.Del., Mar. 25, 2013) (holding
affidavit stating plaintiff filed three grievances created a material issue of fact despite defendants’ affidavits stating
their records showed he filed no grievances); Lopez v. Bushey, 2013 WL 1294477, *6-7 (N.D.N.Y., Mar. 4, 2013)
(holding minor discrepancies in plaintiff’s evidence created credibility issues inappropriate for summary judgment),
report and recommendation adopted, 2013 WL 1293819 (N.D.N.Y., Mar. 28, 2013); McClain v. Kale, 2012 WL
2192242, *5 (M.D.Pa., Apr. 23, 2012) (holding affidavit describing failed attempts to get grievances filed barred
summary judgment), report and recommendation adopted, 2012 WL 2192271 (M.D.Pa., June 14, 2012); Lott v.
Crawford, 2009 WL 2900259, *10 & n.21 (W.D.Mo., Sept. 3, 2009); Eads v. Castle, 2009 WL 2824774, *6-7
(S.D.W.Va., Aug. 28, 2009) (declaration stating that plaintiff appealed his grievance but his documentation had been
lost in a transfer raised a factual issue barring summary judgment); Banks v. Cox, 2009 WL 1505579, *2
(W.D.Wis., May 28, 2009) (sworn statement that plaintiff mailed his appeal barred summary judgment despite
argument that plaintiff must “state that the appeal was mailed in an envelope with adequate prepaid postage properly
addressed to the CCE”); Short v. McKay, 2008 WL 753894, *3 (S.D.W.Va., Feb. 29, 2008) (plaintiff’s affidavit,
without documentary support, was sufficient to raise a factual dispute barring summary judgment), report and
recommendation adopted in part, rejected in part on other grounds, 2008 WL 748112 (S.D.W.Va., Mar. 19, 2008);
Mitchell v. Department of Correction, 2008 WL 744041, *7 (S.D.N.Y., Feb. 20, 2008) (verified complaint stating
that plaintiff filed a grievance at a particular jail on the subject matter of the complaint raised a factual dispute
barring summary judgment), report and recommendation adopted as modified on other grounds, 2008 WL 744039
(S.D.N.Y., Mar. 19, 2008).
449
See Harp v. Secretary of Corrections, 2013 WL 416645, *4 & n.7 (D.S.D., Jan. 31, 2013) (holding plaintiff’s
statements about non-responsive grievance system were sufficient to raise a material issue of fact barring summary
judgment; noting that if his account is true, documentation of his efforts would not be available to him); Kellogg v.
New York State Dept. of Correctional Services, 2009 WL 2058560, *3 (S.D.N.Y., July 15, 2009).
450
Sanchez v. U.S., 2006 WL 1464789, *1 (S.D.Miss., Mar. 27, 2006), reconsideration denied, 2006 WL 1454752
(S.D.Miss., May 18, 2006).
451
Langford v. Norris, 614 F.3d 445, 456-57 (8th Cir. 2010) (holding denial of summary judgment for nonexhaustion is not an appealable collateral order); Davis v. Streekstra, 227 F.3d 759, 762-63 (7th Cir. 2000) (same,
for denial of motion to dismiss); see Fobbs v. Davis, 515 Fed.Appx. 330, 332 (5th Cir. 2013) (unpublished)
(rejecting claim that denial of summary judgment for exhaustion could not be reviewed on appeal from a final
judgment, citing Langford and Davis).

85

dismissal in exhaustion disputes,453 is appealable under some circuits’ law.454 In other circuits
where the general rule is different, dismissal for non-exhaustion may still be appealable as a
practical matter when the reason for dismissal cannot be cured,455 as when the time for filing a
grievance has expired,456 the prisoner has been released and can no longer pursue prison
grievances,457 or the statute of limitations has expired on the claim.458 At least one court has held
that a partial dismissal for non-exhaustion should not be entered as an appealable final judgment
because of the policy against piecemeal appeals. 459 District courts’ rulings on whether a plaintiff
has exhausted are reviewed de novo.460
E.

What Is Exhaustion?

Exhaustion under the PLRA means “proper exhaustion,” i.e., “compliance with an
agency’s deadlines and other critical procedural rules.”461 It also means completing the
administrative process by appealing an adverse decision to the highest level of the administrative
system.462
Having appealed, prisoners are obliged to wait to sue until the time for prison officials to
render a final decision has expired. Most courts agree that “[a] prisoner’s administrative
remedies are deemed exhausted when a valid grievance has been filed and the state’s time for
452

See 28 U.S.C. § 1292(b) (allowing certification for appeal of “controlling question of law” under specified
circumstances, subject to court of appeals’ discretion); Pavey v. Conley, 2006 WL 3715019 (N.D.Ind., Dec. 14,
2006) (certifying question of proper procedural handling of exhaustion for interlocutory appeal); Beltran v. O’Mara,
2006 WL 240558, *4 (D.N.H., Jan. 31, 2006) (declining to certify for interlocutory appeal question whether “total
exhaustion” doctrine should be applied).
453
See nn. 272-275, above.
454
See, e.g., Salim Oleochemicals v. M/V SHROPSHIRE, 278 F.3d 90, 93 (2d Cir. 2002), cert. denied, 537 U.S.
1088 (2002).
455
See Al-Amin v. Shear, 218 Fed.Appx. 270, 273, 2007 WL 579762, *2 (4th Cir. 2007) (holding an exhaustion
dismissal that could not be cured by amending the complaint was appealable).
456
Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Mitchell v. Horn, 318 F.3d 523, 528-29 (3d Cir. 2003).
457
Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002).
458
Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002); Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001),
cert. denied, 535 U.S. 992 (2002).
459
Juarez v. Alameda, 2007 WL 2989628, *2 (E.D.Cal., Oct. 11, 2007).
460
Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009); Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005),
cert. denied, 548 U.S. 925 (2006).
461
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006); see § IV.E.7, below, concerning the “proper exhaustion” rule.
462
“It is well established that to exhaust–literally, to draw out, to use up completely, see Oxford English Dictionary
(2d ed. 1989)–‘a prisoner must grieve his complaint about prison conditions up through the highest level of
administrative review’ before filing suit.” McCoy v Goord, 255 F.Supp.2d 233, 246 (S.D.N.Y. 2003) (citations
omitted); accord, Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); White v. McGinnis, 131 F.3d 593,
595 (6th Cir. 1997); Smith v. Stubblefield, 30 F.Supp.2d 1168, 1174 (E.D.Mo. 1998) and cases cited; see Dole v.
Chandler, 438 F.3d 804, 811-12 (7th Cir. 2006) (holding that a prisoner who followed all required steps but whose
grievance vanished, and who received no instructions what to do next, had exhausted). Failure to appeal some
grievances is not a failure to exhaust as long as the grievances that were exhausted address the issues before the
court. Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005); Tormasi v. Hayman, 2011 WL 463054, *3 (D.N.J., Feb.
4, 2011) (prisoner who did not appeal an initial grievance decision, but filed a later grievance about the same issue
and completed the administrative process, exhausted). But see Jordan v. Adams County, 2012 WL 2029980, *2-3
(D.Colo., Jan. 17, 2012) (holding failure to appeal was not failure to exhaust where grievance policy seemed to say
that grievance would be submitted to higher-level review without action by the prisoner), report and
recommendation adopted, 2012 WL 2029970 (D.Colo., June 5, 2012), aff’d, 507 Fed.Appx. 752 (10th Cir. 2013),
cert. denied, 133 S.Ct. 2742 (2013).

86

responding thereto has expired.”463 It is hard to see how the rule could be otherwise, since once
the deadline is passed, a prisoner generally has no way of knowing whether a decision is actually
forthcoming or whether the appeal has been lost or diverted in some fashion.464 Still, some
courts have held that prisoners must wait longer—how long is not specified—than the prescribed
time for decision.465 Such a rule unfairly disregards the need for a bright-line rule so prisoners
463

Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999); accord, Smith v. U.S., 432 Fed.Appx. 113, 117 (3rd Cir. 2011)
(per curiam) (unpublished) (citing federal regulation providing prisoners may treat the absence of a timely response
as a denial); Whitington v. Ortiz, 472 F.3d 804, 807-08 (10th Cir. 2007); Underwood v. Wilson, 151 F.3d 292, 295
(5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999); Lyons v. Leach, 2013 WL 6178578, *4 (E.D.Mich., Nov. 25,
2013) (same as Courts v. Smith; “To conclude otherwise would mean that a grievant who never received a Step III
response would forever be unable to exhaust his or her administrative remedies.”); Courts v. Smith, 2013 WL
6047554, *7-8 (W.D.Mich., Nov. 14, 2013) (holding plaintiff exhausted when the 120-day period for completing the
grievance process passed with no decision on final appeal); James v. Mehta, 2013 WL 5934397, *4 (E.D.Cal., Nov.
5, 2013) (holding the failure to provide a timely final response for months past the deadline made the remedy
unavailable), report and recommendation adopted, 2014 WL 109502 (E.D.Cal., Jan. 9, 2014); Toscani v. Litton,
2013 WL 5144355, *6 (D.S.C., Sept. 12, 2013) (holding grievance exhausted where there was no timely decision as
a result of staffing problems); Williams v. Reynolds, 2013 WL 4522574, *4 (D.S.C., Aug. 27, 2013) (“When a
prisoner files a grievance and has not received a timely determination, the grievance may be considered exhausted
under the PLRA.”); Wilder v. McCabe, 2012 WL 6935346, *5 (D.S.C., Oct. 19, 2012) (holding plaintiff who filed
suit after not receiving timely final decisions raised factual issue “whether Defendant hindered Plaintiff's ability to
exhaust his administrative remedies”), report and recommendation adopted, 2013 WL 300825 (D.S.C., Jan. 25,
2013); Rodgers v. Lewis, 2012 WL 4158506, *3-4 (M.D.La., Sept. 18, 2012) (holding plaintiff who filed suit over
100 days after filing his grievance, where final decision was supposed to be rendered in 90 days, sufficiently
exhausted notwithstanding grievance office nofication that a more detailed investigation was warranted); Hudson v.
Wade, 2012 WL 4485607, *8-9 (E.D.Mich., Aug. 30, 2012) (holding plaintiff “did not pre-empt” the grievance
process when he filed three weeks after the date the entire process should have been completed, though there was no
specific deadline for a response at the final stage), report and recommendation adopted, 2012 WL 4475442
(E.D.Mich., Sept. 27, 2012); Rodgers v. Lewis, 2012 WL 4158506, *3 (M.D.La., Sept. 18, 2012) (holding plaintiff
exhausted after waiting past the deadline for final response, even though officials notified him after the deadline’s
expiration that “more detailed” investigation was needed); see Appendix A for additional authority on this point; see
also Cottrell v. Wright, 2010 WL 4806910, *6 (E.D.Cal., Nov. 18, 2010) (where plaintiff’s second level appeal was
subject to lengthy delay and third level appeal was rejected for lack of second-level decision, plaintiff had
exhausted), report and recommendation adopted, 2011 WL 319080 (E.D.Cal., Jan. 28, 2011); Sims v. Rewerts,
2008 WL 2224132, *5-6 (E.D.Mich., May 29, 2008) (declining to dismiss where plaintiff filed before the expiration
of a time limit that had been changed without notice); Lawyer v. Gatto, 2007 WL 549440, *8 (S.D.N.Y., Feb. 21,
2007) (prisoner whose grievance was referred to the Inspector General was not required to wait until the IG
investigation was finished absent a rule to that effect in the policy). But see Mejia v. Goord, 2005 WL 2179422, *5
(N.D.N.Y., Aug. 16, 2005) (holding a prisoner who filed suit on the day his final appeal was decided did not
exhaust). Cf. Petteay v. Avenal State Prison, 2008 WL 5246159, *2 (E.D.Cal., Dec. 15, 2008) (where delays in
response at intermediate stages prolonged the grievance process, plaintiff was still required to wait until the final
decision was issued before filing suit), report and recommendation adopted, 2009 WL 188151 (E.D.Cal., Jan. 26,
2009); Portugal v. Hopkins, 2008 WL 4712605, *1 (N.D.Cal., Oct. 21, 2008) (same).
One court has treated the filing of the final appeal as the effective date of exhaustion because the prison
policy stated that exhaustion is completed upon filing. Hall v. Dormire, 2009 WL 648883, *3 (W.D.Mo., Mar. 10,
2009).
464
As discussed below, see nn. 495-496 et seq., it is not uncommon for prisoners to receive no response at all to
their grievances or appeals.
465
See, e.g., Sweat v. Reynolds, 2013 WL 593660, *5 (D.S.C., Feb. 15, 2013) (stating the determination of whether
the prisoner waited long enough after the deadline “inherently depends on a thorough, holistic examination of the
totality of the circumstances in which the filing and response of the grievance took place,” though declining
summary judgment for non-exhaustion where plaintiff had waited 150 days for a response and the deadline was 70
days). In a similar vein, the court in Shepard v. Cohen, 2011 WL 284958, *3 (E.D.Cal., Jan. 25, 2011), stated:
Administrative remedies are not “effectively unavailable” and a prisoner is not equitably excused
from the exhaustion requirement under § 1997e(a) where a delay in a prisoner's administrative

87

may know when they can file suit, since dismissal for non-exhaustion at best results in
considerable effort and expense to refile a claim that has received a grievance decision after
filing, and complete uncertainty as to how to proceed if there still has been no decision. It may
also result in a claim’s being time-barred if the limitations period has run.466 But a few decisions
are worse, stating without qualification that exhaustion is not completed until the prisoner
receives a final decision, without addressing what happens if that decision never comes.467

appeal: 1) does not involve a time-sensitive grievance; and 2) is not a result of a prison's action
which thwarts a prisoner's attempt to properly exhaust administrative remedies, thus prejudicing a
prisoner's ability to bring a federal suit.
In Shepard, where the grievance appeal had been pending a year and the deadline was 60 days, the grievance
authorities attributed the delay to “the large volume of appeals,” and the court said the situation did not appear to be
one “where prison officials are exploiting the grievance process, nor does the delay prejudice Plaintiff in seeking a
remedy for [his] one time [complaint].” Id. However, there is no indication that anyone communicated the reason
for the delay to the plaintiff, or that he was given any indication of when he could expect a decision on his appeal.
See also Jamison v. Franko, 2013 WL 5166626, *2-3 & n.3 (N.D.Ill., Sept. 13, 2013) (holding prisoner who filed
suit less than two weeks after a decision was due did not exhaust; “Exactly where the line is between a late response
and an unavailable process is unclear. What is clear, however, is that the prison's delay and the inmate's efforts must
be far greater than in this case for the process to be deemed unavailable.”); Rupe v. Beard, 2013 WL 2458398, *16,
21 (E.D.Cal., June 6, 2013) (stating “the Court is not suggesting that a minor delay in processing inmate appeals will
automatically excuse an inmate's abandonment of the administrative grievance process . . . . But . . . after the inmate
has waited a reasonable period of time and has received no response or notice of delay, the failure by prison officials
to abide by inmate-grievance regulations must excuse the inmate's failure to exhaust”; here, 20 days was a
reasonable period); Williams v. Handmen, 2013 WL 342702, *1 (S.D.N.Y., Jan. 29, 2013) (dismissing for nonexhaustion where plaintiff filed before receiving final response, disregarding that the response was long overdue);
King v. Hubbard, 2011 WL 3319708, *3 (E.D.Cal., July 29, 2011) (holding prisoner who filed suit a few days after
expiration of the period for answer did not exhaust where officials notified him months later that a response would
be forthcoming); Torres v. Carry, 672 F.Supp.2d 338, 345-46 (S.D.N.Y. 2009) (where plaintiff’s appeal had not
been decided for four years, court directs defendants to bring it to the grievance body’s attention within 30 days and
holds plaintiff may re-file if there is no decision within 30 days thereafter), reconsideration denied, 672 F.Supp.2d
346 (S.D.N.Y. 2009); Gomez v. Scribner, 2009 WL 2058537, *4 (E.D.Cal., July 14, 2009) (holding prisoner didn’t
exhaust when he filed suit a month after the deadline for final decision, but knew that officials were still working on
his grievance); Ibanez v. Garza, 2007 WL 433185, *3 (S.D.Cal., Jan. 25, 2007); Wyatt v. Doe, 2006 WL 1407636,
*1 (S.D.Tex., May 19, 2006) (holding a prisoner whose grievance had remained “under exhaustion” for eight
months after his appeal had been ignored “does not establish that the investigation has been delayed unreasonably”).
Similarly, a decision dismissing for non-exhaustion where a prisoner’s grievance appeal had not been initially
processed as a result of “administrative oversight” is probably erroneous, depending on how long the appeal was
lost. See Mendez v. Artuz, 2002 WL 313796, *2 (S.D.N.Y., Feb. 27, 2002).
466
See n. 1148, below.
467
Hairston v. Holder, 2013 WL 5963003, *4 (E.D.Va., Nov. 7, 2013) (stating “the administrative appeal is
completed only when counsel issues a ruling”); Hudson v. Spencer, 2013 WL 5305086, *13 (D.Mass., July 31,
2013) (“Exhausting administrative remedies involves receiving a decision regarding any pending grievances,
requests or appeals.”); Bennett v. Wesley, 2013 WL 1798001, *5 (S.D.N.Y., Apr. 29, 2013) (“A final decision by
the CORC is required in order to exhaust administrative remedies, and because there is no indication that Plaintiff
ever received such a decision, he has failed to exhaust his administrative remedies”); White v. Drake, 2011 WL
4478988, *3-4 (N.D.N.Y., Aug. 11, 2011) (holding plaintiff “will be required to re-commence this action and reserve Drake even though the exhaustion requirement has now been satisfied and where the delay in completing the
administrative process was apparently caused solely by DOCCS delay at the final appeal stage”; appeal decision was
delayed several months), report and recommendation adopted, 2011 WL 4478921, *1, *3 (N.D.N.Y., Sept. 26,
2011); Ross v. Duby, 2010 WL 37322234, *1 (W.D.Mich., Sept. 17, 2010); Urena v. Fischer, 2010 WL 2134564, *6
(N.D.N.Y., Apr. 16, 2010), report and recommendation adopted, 2010 WL 2133928 (N.D.N.Y., May 27, 2010);
Petrusch v. Oliloushi, 2005 WL 2420352, *4 (W.D.N.Y., Sept. 30, 2005) (dictum); Rodriguez v. Hahn, 209
F.Supp.2d 344, 347-48 (S.D.N.Y. 2002); see also Hayes v. Rosser, 2009 WL 2601238, *4-7 (C.D.Cal., Aug. 20,

88

Of course if a prisoner receives a late response before filing suit, the prisoner should
appeal.
However, if a prisoner files suit after the time limit for decision has passed, and then
grievance authorities issue a late decision, most courts hold the prisoner has exhausted; the late
response does not “un-exhaust” his claim.469 In some systems, the grievance policy provides that
grievance officials may extend the deadline for decision, and such extensions are binding if the
prisoner receives notice.470
468

2009) (prisoner who never received second level appeal response until he filed suit still had remedies available;
court does not address how he could have used them without a response);
468
Corbett v. Fleming, 2013 WL 4866502, *4 (D.S.C., Sept. 11, 2013).
469
Rupe v. Beard, 2013 WL 2458398, *15 n.13 (E.D.Cal., June 6, 2013) (stating “just as post-filing exhaustion does
not excuse a plaintiff's failure to exhaust before bringing the claim, a subsequent untimely response by prison
officials after suit has been filed cannot serve to ‘unexhaust’ the claim and justify dismissal”); Williams v. Jones,
2013 WL 1187028, *6 (D.S.C., Jan. 23, 2013) (declining to dismiss for non-exhaustion where plaintiff filed suit
after waiting 10 1/2 months for a first stage decision, which he received two months later), objections overruled,
2013 WL 1187042 (D.S.C., Mar. 20, 2013); Thomas v. Sheppard-Brooks, 2009 WL 3365872, *6 (E.D.Cal., Oct. 16,
2009) (“Plaintiff's actions in pursuing higher levels of appeal when he finally received a response after he initiated
this lawsuit did not ‘un-exhaust’ his claims.”), report and recommendation adopted, 2009 WL 4042876 (E.D.Cal.,
Nov. 20, 2009); accord, Frierson v. Bell, 2010 WL 3878732, *5 (D.S.C., Sept. 28, 2010) (“Defendants cannot
rectify their failure years after a plaintiff files a complaint with the federal court. Such a result might incentivize
prison officials to delay their response to an inmate's claims until after he filed a federal suit in order to provide
another way to delay judicial review.”); Lino v. Small, 2010 WL 3075754, *3 (S.D.Cal., May 28, 2010) (declining
to dismiss where prisoner submitted second-level appeal, received no response or explanation for the non-response,
filed suit after four months, and received an invitation to appeal further four months after that), report and
recommendation adopted, 2010 WL 3075751 (S.D.Cal., Aug. 5, 2010); Rouser v. White, 2010 WL 843764, *4 &
n.5 (E.D.Cal., Mar. 10, 2010) (rejecting position that prisoners must wait until lateness of response is “exceptional”
before filing suit); Wolfe v. Cooper, 2009 WL 2929442, *4 (D.S.C., May 20, 2009) (where plaintiff filed suit after
waiting seven months for a response that had a 40-day deadline, and response was provided 15 months after
grievance was filed, plaintiff deemed to have exhausted), report and recommendation rejected on other grounds,
2009 WL 2929438 (D.S.C., Sept. 2, 2009); see Appendix A for additional authority on this point; see also Cooper v.
Beard, 2007 WL 1959300, *5 (M.D.Pa., July 2, 2007) (where Request for Religious Accommodation was a
prerequisite for a grievance, and plaintiff did not get a timely response and went forward with a grievance before
receiving a late response, he exhausted); Daker v. Ferrero, 2004 WL 5459957, *2 (N.D.Ga., Nov. 24, 2004)
(prisoner who was prevented from appealing lack of decision at intermediate stage, filed suit, and was later afforded
an opportunity to appeal had exhausted as of the time he was prevented from appealing). But see Sergent v. Norris,
330 F.3d 1084, 1085-86 (8th Cir. 2003) (affirming dismissal for non-exhaustion where time for response had passed
before suit was filed, but prisoner had not made that clear to the district court); Morris v. McGrath, 2006 WL
2228944, *4 (N.D.Cal., July 31, 2006) (dismissing for non-exhaustion where the final grievance decision was late,
but the authorities had been in touch with the plaintiff for more information and he knew they were working on his
grievance); see also Rainey v. Ford, 2006 WL 3513687, *2, 4-5 (D.S.C., Dec. 5, 2006) (holding that where a
prisoner’s grievance was not timely decided, he had exhausted; but where a decision was issued later and the
prisoner indicated he did not wish to appeal, the case was moot). In Alex v. Stalder, 2007 WL 4919781 (W.D.La.,
Dec. 3, 2007), the plaintiff did not receive a timely decision, filed suit, and then received a notice that grievance
officials had given themselves more time. The court held that the plaintiff should have dismissed his complaint
without prejudice and refiled it after the process was completed. The court said: “This may seem a bit harsh,
considering the circumstances, but this court is besieged with unexhausted prisoner complaints.” 2007 WL
4919781, *4. By contrast, in Zoph v. Doe, 2014 WL 459798, *4 (S.D.Ill., Feb. 4, 2014), the plaintiff received an
appeal decision stating incorrectly that his appeal was untimely and the matter would not be considered further; he
filed suit, and then the appeal body issued a decision on the merits. The court declined to dismiss for nonexhaustion.
470
Smith v. U.S., 2011 WL 7414011, *9 (M.D.Pa., Nov. 18, 2011); see Woods v. Carey, 2012 WL 6021371, *4
(E.D.Cal., Dec. 4, 2012) (holding plaintiff did not exhaust where second-level appeal decision was late, but officials
advised plaintiff of the need for more time because the matter was complex, and plaintiff filed suit without waiting
for the third level decision). But see Rodgers v. Lewis, 2012 WL 4158506, *3 (M.D.La., Sept. 18, 2012) (holding

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Systems with no deadline for the final appeal present a more difficult problem, and courts
have not resolved how long a prisoner must wait in the absence of a final deadline. 471 (For
sexual abuse complaints, the National Standards to Prevent, Detect, and Respond to Prison Rape,
recently promulgated under the Prison Rape Elimination Act (PREA), require that final decisions
be issued within 90 days of the grievance’s filing, excluding the time taken by prisoners in
preparing their appeals, and providing for agencies to extend the time by up to 70 days with
written notice to the prisoner.472)
A few decisions have held that where the obligation to appeal is framed in permissive
terms, the prisoner need not complete the appellate stage before filing suit.473 While these
decisions are arguably supported by the proposition that complying with the grievance rules
satisfies the exhaustion requirement, it is equally arguable that they are inconsistent with the
fundamental obligation to exhaust, and by the meaning of that word, imposed by § 1997e(a).
Other decisions so hold.474 The latter is probably the better argument; after all, seeking any sort
plaintiff exhausted after waiting past the deadline for final response, even though officials notified him after the
deadline’s expiration that “more detailed” investigation was needed).
471
The Seventh Circuit has held, in connection with a grievance system that called for appeals to be decided within
60 days “whenever possible,” that the remedy did not become “unavailable” because decision took six months.
“Even six months is prompt compared with the time often required to exhaust appellate remedies from a
conviction.” Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004). The analogy to judicial proceedings seems
inapposite in connection with a grievance process in which the prisoner has none of the normal safeguards of the
judicial process but is subject to forfeiture of claims based on failure to meet deadlines much shorter than those
generally found in the judicial process. See § IV.E.7, below, concerning the “proper exhaustion” rule; see also
Mlaska v. Shah, 428 Fed.Appx. 642, 645 (7th Cir. 2011) (unpublished) (following Ford v. Johnson where decision
was due within two months if “reasonably feasible”); Gregory v. Santos, 2010 WL 750040, *1 (S.D.Ill., Mar. 3,
2010) (in case from same system as Ford, plaintiff who filed shortly after the six months had expired had not
exhausted, since state courts had held the deadline directory rather than mandatory).
Other courts that have considered similar delays have not found a failure to exhaust. See Hambrick v.
Morton, 2009 WL 1759564, *1-2 (S.D.Ga., June 19, 2009) (where plaintiff’s grievance had been pending 21 months
with no response and he alleged he had been refused an appeal form, defendants were not entitled to summary
judgment for non-exhaustion); Olmsted v. Cooney, 2005 WL 233817, *2 (D.Or., Jan. 31, 2005) (holding prisoner
who waited seven weeks after filing last appeal was not shown to have failed to exhaust); Thompson v. Koneny,
2005 WL 1378832, *5 (E.D.Mich., May 4, 2005) (holding that a decision delayed six and a half months was not
“timely” and case could not be dismissed for non-exhaustion where prisoner filed after five and a half months);
McNeal v. Cook County Sheriff’s Dep’t, 282 F.Supp.2d 865, 868 n.3 (N.D.Ill. 2003) (holding that 11 months is long
enough, citing cases holding that seven months is long enough and one month is not); see Taylor v. Doctor
McWeeney, 2005 WL 1378808 (S.D.Ohio, May 27, 2005) (holding that prisoner who waited a little over two
months past a 30-day deadline for decision had waited a “reasonable” time and had exhausted). But see Woodruff v.
Booth, 2007 WL 614001, *3 (M.D.Pa., Feb. 21, 2007) (holding four months was not “inordinate delay,” no
reference to deadline for decision if any).
472
28 C.F.R. § 115.52(d)(1-3).
473
See Woodard v. O'Brien, 2010 WL 148301, *15 (N.D.Iowa, Jan. 14, 2010); Campbell v. Johnson, 2008 WL
222691, *7 (N.D.Fla., Jan. 25, 2008); Artis-Bey v. District of Columbia, 884 A.2d 626, 634 (D.C. 2005).
474
See Johnson v. Thyng, 369 Fed.Appx. 144, 147-48 (1st Cir. 2010) (unpublished); Holmes v. St. Tammany Parish
Sheriff's Office, 2013 WL 5530335, *5 n.7 (E.D.La., Oct. 7, 2013); Smith v. City of New York, 2013 WL 5434144,
*10 (S.D.N.Y., Sept. 26, 2013); Contino v. City of New York, 2013 WL 4015816, *6-7 (S.D.N.Y., Aug. 7, 2013);
Carter v. Bailey, 2012 WL 602201, *2-3 (C.D.Cal., Jan. 10, 2012), report and recommendation adopted, 2012 WL
602207 (C.D.Cal., Feb. 23, 2012); Green v. Cox, 2011 WL 5025145, *7 (D.Nev., Sept. 1, 2011); Leatherwood v.
Cohen, 2011 WL 4435807, *3 n.4 (D.S.C., Sept. 23, 2011); Rhinehart v. Scutt, 2011 WL 679699, *6 (E.D.Mich.,
Jan. 14, 2011) (stating “§ 1997e(a) does not require a prisoner to exhaust all ‘mandatory’ remedies; it requires him
to exhaust all ‘available’ remedies), report and recommendation adopted, 2011 WL 674736 (E.D.Mich., Feb. 16,
2011); Tate v. Howes, 2010 WL 2231812, *2 (W.D.Mich., June 2, 2010) (“The procedural rule for exhaustion does
not come from MDOC's internal policies, but rather from federal law, specifically, 42 U.S.C. § 1997e(a).”); Warren

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of remedy is generally optional, and an exception for permissively phrased appeal provisions
would likely defeat the exhaustion requirement very widely. A different situation is presented by
grievance systems which limit the circumstances under which appeal is appropriate; those
restrictions govern under the “proper exhaustion” standard, and a prisoner need not take an
appeal that is not authorized by the policy.475
Most courts including the Second Circuit have held that exhaustion must be completed
before suit is brought.476 Exceptions to the exhaust-first requirement have on rare occasions
been allowed based on individual circumstances.477 The majority of courts have held that initial
v. Fort Dodge Correctional Facility, 2009 WL 1473955, *3 (N.D.Iowa, May 27, 2009), reconsideration denied,
2009 WL 2905544 (N.D.Iowa, Sept. 4, 2009), aff’d, 372 Fed.Appx. 685 (8th Cir. 2010); Wilks v. King County,
2008 WL 4681430, *1 (W.D.Wash., Oct. 20, 2008) (policy stating a prisoner “may” appeal does not make appeal
permissive for PLRA purposes); see also Short v. Greene, 577 F.Supp.2d 790, 793 & n.4 (S.D.W.Va. 2008)
(holding PLRA made filing a grievance mandatory even concerning subjects as to which state law made it optional);
accord, Wade v. Spencer, 2014 WL 51235, *3 (N.D.W.Va., Jan. 7, 2014). Cf. Turner v. Burnside, 541 F.3d 1077,
1083-84 (11th Cir. 2008) (prisoner whose grievance was torn up by the warden was not required to re-file it or
grieve the warden’s action, since the rules did not say so, and was not required to file an emergency grievance, since
that procedure was an optional alternative to the regular process he had tried to use).
475
See Toomer v. BCDC, 537 Fed.Appx. 204, 206 (4th Cir. 2013) (noting instructions with grievance decision said
prisoner should appeal only if dissatisfied); Buck v. Hartman, 2013 WL 3421891, *3-4 (S.D.Ill., July 8, 2013)
(noting appeal is appropriate under prison policy if “the offender still feels that the problem, complaint or grievance
has not been resolved to his or her satisfaction”); Prochaska v. Heidorn, 2012 WL 359694, *7 (E.D.Wis., Feb. 2,
2012) (noting prisoners are obliged to appeal under grievance rules only if the decision is “adverse” or the prisoner
is “dissatisfied”); Maeshack v. Avenal State Prison, 2011 WL 3439194, *5 (E.D.Cal., Aug. 4, 2011) (holding
prisoner instructed that “if you are dissatisfied with this decision, you may appeal to the Second Formal Level” was
not obliged to appeal if he was satisfied), report and recommendation adopted, 2011 WL 6780906 (E.D.Cal., Dec.
27, 2011); Sims v. VEAL, 2010 WL 3431803, *6 (E.D.Cal., Aug. 31, 2010) (noting “the applicable regulations
provide that review beyond the First Level is reserved for appeals that were denied at the First Level”), report and
recommendation adopted, 2010 WL 3853005 (E.D.Cal., Sept. 30, 2010); Manning v. Dolce, 2010 WL 3515718, *3
(E.D.Mich., July 12, 2010) (“The Policy does not contemplate an appeal to Step II unless the grievant “is dissatisfied
with the grievance response received at Step I or if he did not receive a timely response.”), report and
recommendation adopted, 2010 WL 3515715 (E.D.Mich., Sept. 8, 2010); Wilks v. Stowers, 2010 WL 2104153, *2
(W.D.Wash., May 25, 2010) (where policy permitted appeals only if new facts arise or the facts are incorrect as
stated, mere disagreement with a decision did not support an appeal); Roy v. Dominguez, 2010 WL 1568611, *3
(N.D.Ind., Apr. 16, 2010) (where policy said to appeal if dissatisfied with the initial response, and initial response
was to set up a meeting with the warden, plaintiff was not obliged to appeal).
476
Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); accord, Gonzalez v. Seal, 702 F.3d 785, 787-88 (5th Cir. 2012)
(overruling contrary authority); Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (citing cases, overruling
prior authority); Ellington v. Clark, 2010 WL 3063267, *3-4 (E.D.Cal., Aug. 3, 2010) (exhaustion after filing but
before service of process is not adequate); see Christ v. Weiglen, 2013 WL 2360920, *3 (E.D.Cal., May 29, 2013)
(holding exhaustion must precede filing in state court § 1983; exhaustion before removal to federal court is not
adequate). If a prisoner files suit in a situation where remedies are not available, and then later exhausts when those
circumstances no longer exist, the suit is not rendered retroactively unexhausted at filing. Jones v. Miami
Correctional Facility, 2011 WL 1296755, *6 (N.D.Ind., Mar. 31, 2011).
477
See Curry v. Scott, 249 F.3d 493, 502 (6th Cir. 2001) (stating that pre-filing exhaustion is “the preferred
practice,” but allowing exhaustion prior to filing an amended complaint because the suit was filed shortly after the
PLRA’s enactment and involved some pre-PLRA conduct, and the plaintiff filed a grievance early in the
proceedings); Gibson v. Zavaras, 2010 WL 3790994, *5 (D.Colo., Aug. 10, 2010) (holding dismissal of claim
exhausted after suit was filed would not serve the purposes of exhaustion, since officials by then would have
addressed the claim and an administrative record had been made), report and recommendation adopted, 2010 WL
3790894 (D.Colo., Sept. 22, 2010), reconsideration denied, 2010 WL 3928012 (D.Colo., Oct. 6, 2010);
Georgacarakos v. Wiley, 2010 WL 1291833, *24 (D.Colo., Mar. 30, 2010) (following Underwood), motion to
amend denied, 2011 WL 940803 (D.Colo., Mar. 16, 2011); Jenkins v. Vail, 2009 WL 2900258, *3 n.2 (E.D.Wash.,
July 22, 2009), report and recommendation rejected on other grounds, 2009 WL 2900255 (E.D.Wash., Aug. 31,

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non-exhaustion of a claim cannot generally be cured by reasserting it in an amended or
supplemental complaint after exhaustion, despite the general rule that an amended complaint
replaces the prior complaint for all purposes,478 though there are a few contrary decisions.479 A
2009); see Appendix A for additional authority on this point. In one case where the plaintiff alleged that his attempts
to file grievances were “significantly thwarted,” the court directed that the plaintiff be allowed to file a grievance
and that its processing be expedited and the results submitted to the court. Hause v. Smith, 2006 WL 2135537, *1-2
(W.D.Mo., July 31, 2006); see § IV.C, n. 254, above, for additional instances in which courts allowed exhaustion
after filing, by staying the litigation pending exhaustion or otherwise; see § IV.H, below, concerning claims that a
problem is too urgent to wait for exhaustion.
The Fifth Circuit has recently overruled its earlier holding that courts can excuse premature filing where
“dismissal would be inefficient and would not further the interests of justice or the Congressional purposes behind
the PLRA,” e.g., where exhaustion is completed by the time the court addresses the issue. See Underwood v.
Wilson, 151 F.3d 292, 296 (5th Cir. 1998), overruled by Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per
curiam). Gonzalez relied on statements in the subsequent Supreme Court decisions Woodford v. Ngo and Jones v.
Bock that unexhausted claims cannot be considered. Id. Overruled with Underwood is Collins v. Stalder, 335
Fed.Appx. 450, 453-54 n.11 (5th Cir. 2009) (unpublished) (declining to dismiss where case filed before exhaustion
had been exhausted for 18 months by the time the magistrate judge decided it, noting that a contrary “would not only
facilitate and encourage gamesmanship by defendants, who could wait until an inmate's statute of limitations has run
before moving for dismissal, but would also contravene our practice of dismissing premature filings without
prejudice to permit a plaintiff to exhaust.”). Shortly before Gonzalez, the court in Thorson v. Epps, 701 F.3d 444,
446 (5th Cir. 2012), cert. denied, 134 S.Ct. 53 (2013), held that the district court could reach the merits in an
unexhausted case where the defendants sought (and obtained) summary judgment on the merits, stating that “the
purposes of PLRA exhaustion would be confounded by requiring administrative exhaustion at this stage.” Id.
Thorson did not rely on Underwood and probably remains good law.
478
See, e.g., Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (unpublished) (“The only facts pertinent to
determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed
his original complaint.”); Cox v. Mayer, 332 F.3d 422, 428 (6th Cir. 2003) (holding failure to exhaust cannot be
cured by a supplemental complaint recounting post-filing exhaustion); Cornelio v. Hirano, 2013 WL 5964648, *5
(D.Hawai'i, Nov. 7, 2013); Jackson v. Saverhood, 2013 WL 4507865, *5-6 (E.D.Mich., Aug. 23, 2013) (holding
newly exhausted claims in a supplemental complaint could not proceed because they were the same claims filed
unexhausted in the original complaint); Brown v. Warden Ross Correctional Inst., 2012 WL 3527274, *11
(S.D.Ohio, Aug. 15, 2012) (holding amended complaint cannot cure an initial failure to exhaust), report and
recommendation adopted, 2012 WL 3962817 (S.D.Ohio, Sept. 11, 2012); Siguenza v. Cotero, 2012 WL 3069933,
*3-4 (S.D.Cal., June 6, 2012) (holding filing of an amended complaint post-exhaustion did not cure initial nonexhaustion), report and recommendation adopted, 2012 WL 3067573, *1-2 (S.D.Cal., July 27, 2012); Brummett v.
Sillen, 2011 WL 5826533, *2-3 (E.D.Cal., Nov. 17, 2011) (claims which had been added in an amended complaint
before exhaustion could not be preserved by another amended complaint after exhaustion, but had to be dismissed
and filed separately); Malouf v. Turner, 814 F.Supp.2d 454, 463 (D.N.J., Aug. 31, 2011); Huggins v. Owens, 2010
WL 4063830, *1 (M.D.Ga., Oct. 15, 2010) (“If the action was improperly brought, it cannot be cured through
amendment.”); Chatman v. Horsley, 2010 WL 3743637, *3 (N.D.Cal., Sept. 17, 2010), reconsideration denied,
2010 WL 4225770 (N.D.Cal., Oct. 21, 2010); Pina v. Tilton, 2010 WL 2803396, *2 (N.D.Cal., July 14, 2010);
Puckett v. North Kern State Prison Employees, 2010 WL 1796722, *4 (E.D.Cal., May 3, 2010), aff’d, 436
Fed.Appx. 801 (9th Cir. 2011) (unpublished); Burriola v. Nevada, 2010 WL 2326118, *5 (D.Nev., Feb. 8, 2010)
(“The commencement of the action—not the filing of the amended and operative complaint—is the date by which a
plaintiff must have completely exhausted his administrative remedies. . . .”), aff’d, 2010 WL 2326089, *3 (D.Nev.,
June 8, 2010) (unpublished); Fisher v. Ohio Dept. of Corrections, 2009 WL 2246183, *5 (S.D.Ohio, July 23, 2009);
Bailey v. Cate, 2009 WL 2366456, *2 (C.D.Cal., July 29, 2009); Abedi v. Butler, 2009 WL 981664 (E.D.Cal., Apr.
10, 2009); Manago v. Knowles, 2007 WL 1725652, *3 (E.D.Cal., June 13, 2007), report and recommendation
adopted in part, 2007 WL 2382087 (E.D.Cal., Aug. 17, 2007), adhered to on reconsideration, 2007 WL 2505514
(E.D.Cal., Aug. 31, 2007).
479
See, e.g., Demouchet v. Rayburn Correctional Center, 2009 WL 3052673, *1, *3 (E.D.La., Sept. 17, 2009);
Dickerson v. Strain, 2009 WL 2023866, *3 (E.D.La., July 9, 2009) (point “is at least arguable”); Plaster v. Kneal,
2008 WL 4090790, *4 n.1 (M.D.Pa., Aug. 29, 2008); Martinson v. Menifee, 2007 WL 2106516, *4 n.2 (S.D.N.Y.,
July 18, 2007) (holding claims unexhausted at initial filing, but exhausted at the time of an amended complaint

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few courts have held that an amended complaint filed after the plaintiff’s release, when the
exhaustion requirement would not apply to a new complaint, cures non-exhaustion.480 However,
the majority adheres to the view that the time of initial filing, and not of subsequent amended
pleadings, determines whether a case was “brought . . . by a prisoner” under § 1997e(a), and
therefore must have been exhausted.481 A prisoner who is released before the statute of
limitations expires can seek to dismiss his case voluntarily and re-file after release, and thereby
avoid the exhaustion requirement.482
The weight of authority holds that suit is “brought” for this purpose when the complaint
is first tendered to the clerk’s office, not when the formalities of filing are completed, which may
take some time in a pro se case where the plaintiff seeks to proceed in forma pauperis.483 If a
case subject to the exhaustion requirement is filed in state court and removed to federal court,
exhaustion must be completed before the state court filing and not just before removal to federal
court.484
Courts have differed over whether new claims added by amended or supplemental
complaint (including claims involving newly joined parties) must have been exhausted before the
filing of the original complaint,485 or whether they need only be exhausted before the plaintiff
reasserting them, need not be dismissed); Lawson v. McDonough, 2006 WL 3844474, *22 (N.D.Fla., Dec. 27, 2006)
(noting that local rule prescribed that amended complaints completely replace prior complaints, so exhaustion will
be considered from the date of the amended complaint).
480
See cases cited in n. 37, above.
481
See cases cited in n. 35, above.
482
See cases cited in n.40, above.
483
See Vaden v. Summerhill, 449 F.3d 1047, 1050-51 (9th Cir. 2006); Ford v. Johnson, 362 F.3d 395, 399-400 (7th
Cir. 2004); Drake v. Berg, 2010 WL 309034, *3 (N.D.Cal., Jan. 26, 2010); Gillet v. Anderson, 577 F.Supp.2d 828,
833-34 (W.D.La. 2008) (case was “brought” for exhaustion purposes when complaint was first submitted, even
though it was returned to plaintiff for submission on a required form). Contra, Ellis v. Guarino, 2004 WL 1879834,
*6 (S.D.N.Y., Aug. 24, 2004) (holding the plaintiff exhausted where the final step in the grievance process took
place during the 11 months between submission of the complaint and the completion of processing in the pro se
office; citing contrary cases). Under the “prison mailbox” rule, a prisoner’s complaint is generally deemed filed
when it is placed in the prison mail system. See nn. 7, above, and 1561, below.
If a prisoner submits to court something other than a complaint, the action may be deemed to have been
“brought,” or not, depending on how the court treated the nonconforming document. Compare Williams v. Walker,
2009 WL 981383, *1-2 (E.D.Cal., Apr. 10, 2009) (where court treated plaintiff’s letter as a complaint, with leave to
submit an amended complaint, he did not exhaust because process was not complete at time of letter) with Skurdal v.
Federal Detention Center, 2013 WL 5313192, *4 (W.D.Wash., May 21, 2013) (where plaintiff sent letter complaints
to court while incarcerated, and court granted IFP status without directing service, action was not commenced for
PLRA purposes until post-release when he submitted his “first cognizable legal complaint”—even though it was
deemed an amended complaint), report and recommendation adopted as modified, 2013 WL 3897772 (W.D.Wash.,
July 29, 2013); Rouser v. Rutherford, 2008 WL 4283231, *2 (E.D.Cal., Sept. 15, 2008) (where plaintiff submitted a
purported criminal complaint before exhaustion was complete, court ordered it disregarded and that the plaintiff file
a proper complaint, and he submitted a civil complaint after exhaustion was completed, action was commenced after
exhaustion), report and recommendation adopted, 2009 WL 54899 (E.D.Cal., Jan. 8, 2009). Cf. Walton v.
California Dept. of Corrections and Rehabilitation, 2010 WL 503065, *2 (E.D.Cal., Feb. 4, 2010) (where plaintiff’s
letter to court was clearly marked “Complaint” under § 1983 and other statutes, and stated his legal claims, it was
clearly intended to be a civil complaint and exhaustion was assessed as of the filing date of that document).
484
Claiborne v. Shockley, 2008 WL 276573, *2 (E.D.Cal., Jan. 30, 2008), report and recommendation adopted,
2008 WL 795573 (E.D.Cal., Mar. 24, 2008).
485
See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (holding that claims post-dating the original
complaint and exhausted after its filing could not be added); accord, Smith v. Baker, 2012 WL 6948839, *3-4
(N.D.N.Y., Nov. 13, 2012), report and recommendation adopted, 2013 WL 317018 (N.D.N.Y., Jan. 28, 2013);

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seeks to add them to the case.486 Much of the authority for the first proposition was concentrated
in a single judicial district, and has now been overruled.487
Nunn v. Hunt, 2012 WL 3870365, *2-3 (E.D.N.C., Sept. 6, 2012); Green v. Nish, 2012 WL 4049834, *4 (M.D.Pa.,
Aug. 27, 2012), report and recommendation adopted, 2012 WL 4049974 (M.D.Pa., Sept. 13, 2012); Long v. Obi,
2012 WL 3133805, *1 (E.D.Ark., July 31, 2012); Wood v. Chadwick, 2012 WL 1473400, *1-2 (E.D.N.C., Apr. 27,
2012), aff’d, 487 Fed.Appx. 800 (4th Cir. 2012); Green v. Fayette Correctional Facility, 2011 WL 5245525, *2
(W.D.Pa., Oct. 11, 2011), report and recommendation adopted, 2011 WL 5245595 (W.D.Pa., Nov. 2, 2011); Burgie
v. Golden, 2011 WL 1774761, *2 (E.D.Ark., Apr. 21, 2011), report and recommendation adopted, 2011 WL
1774273 (E.D.Ark., May 9, 2011); Garrison v. Byrd, 2011 WL 250122, *2 (E.D.Ark., Jan. 6, 2011), report and
recommendation adopted, 2011 WL 249786 (E.D.Ark., Jan. 26, 2011); Gann v. Neotti, 2010 WL 2486826, *3
(S.D.Cal., June 15, 2010); Jenkins v. Vail, 2010 WL 2196777, *2 (E.D.Wash., May 6, 2010); Wilkes v. Kemp, 2010
WL 1929877, *5 (S.D.Ga., Feb. 23, 2010), report and recommendation adopted as modified, 2010 WL 1930083
(S.D.Ga., May 12, 2010); Hartley v. Clark, 2010 WL 1187880, *1 n.1 (N.D.Fla., Feb. 12, 2010), report and
recommendation adopted, 2010 WL 1187879 (N.D.Fla., Mar. 23, 2010); Sua v. Espinda, 2010 WL 184314, *2
(D.Haw., Jan. 19, 2010); see Appendix A for additional authority on this point; see generally Brown v. Warden Ross
Correctional Inst., 2012 WL 3527274, *11-13 (S.D.Ohio, Aug. 15, 2012) (canvassing conflicting authority), report
and recommendation adopted, 2012 WL 3962817 (S.D.Ohio, Sept. 11, 2012).
One court has recently invented the rule that intervenors must have exhausted before the filing of the
original complaint. Damron v. Sims, 2010 WL 4809090, *1 (S.D.Ohio, Nov. 17, 2010).
486
See Cano v. Taylor, 739 F.3d 1214, 1221 (9th Cir. 2014) (holding that “federal claims which are added to a suit
via an amendment and which are administratively exhausted prior to that amendment, comply with the PLRA's
exhaustion requirement”); Smith v. Olsen, 2011 WL 6792776, *2 (5th Cir., Dec. 28, 2011) (unpublished) (holding
new exhausted claims asserted in an amended complaint, later required to be pursued in a separate action, should go
forward); Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (holding newly added claims need be exhausted
only by the time those claims are tendered to the court; filing of a new complaint “supercedes [sic] any earlier
complaint, rendering the original complaint non-existent and, thus, its filing date irrelevant”); Cannon v.
Washington, 418 F.3d 714, 719-20 (7th Cir. 2005) (rejecting defendants’ argument that new claims could not be
added by amendment even if they had been exhausted); accord, Akhtar v. Mesa, 698 F.3d 1202, 1209 (9th Cir.
2012) (following Rhodes v. Robinson); Barnes v. Briley, 420 F.3d 673, 677-78 (7th Cir. 2005); Brown v. Davis,
2013 WL 6405514, *3 (S.D.Ill., Dec. 6, 2013); Darris v. Mazzaie, 2013 WL 5291940, *4-5 (D.Colo., Sept. 17,
2013); Crouchman v. Pickens County LEC Jail, 2013 WL 2109691, *11 n.9 (D.S.C., Mar. 22, 2013), report and
recommendation adopted, 2013 WL 2109590 (D.S.C., May 15, 2013); Kensu v. Rapelje, 2013 WL 1774637, *4
(E.D.Mich., Apr. 25, 2013); Robbins v. Payne, 2012 WL 4812495, *3-4 (E.D.Mich., Oct. 10, 2012); Tivis v. Stock,
2012 WL 3609789, *17 n.7 (D.Colo., Apr. 6, 2012) (following Rhodes v. Robinson), report and recommendation
adopted in part, rejected in part on other grounds, 2012 WL 3609778 (D.Colo., Aug. 22, 2012); Mathis v. GEO
Group, Inc., 2011 WL 2899135, *5 (E.D.N.C., July 18, 2011) (holding new plaintiffs joined in an amended
complaint need not have exhausted before initial complaint was filed), report and recommendation adopted and stay
granted, 2012 WL 43586, *3 (E.D.N.C., Jan. 9, 2012); Carter v. Smith, 2011 WL 2313862, *18 n.10 (E.D.Pa., June
13, 2011), order entered, 2011 WL 2312293 (E.D.Pa., June 13, 2011); Shulick v. Michigan Dept. of Corrections,
2010 WL 6859770, *4 (W.D.Mich., Mar. 25, 2010), report and recommendation adopted as modified, 2011 WL
2654261 (W.D.Mich., July 6, 2011); see Appendix A for additional authority on this point; see also Miles v.
Daniels, 2004 WL 2110708, *3 (D.Or., Sept. 21, 2004) (declining to dismiss for non-exhaustion where the plaintiff
filed a habeas action without exhausting, then filed a Bivens complaint after exhausting, and the Bivens complaint
was docketed as an amended complaint in the habeas action), report and recommendation adopted as modified,
2005 WL 708422 (D.Or., Mar. 28, 2005).
487
See Rhodes v. Robinson, 621 F.3d at 1005, overruling, e.g., Williams v. Sullivan, 2009 WL 3624997, *6
(E.D.Cal., Oct. 29, 2009); Knapp v. Cate, 2009 WL 3297309, *8 (E.D.Cal., Oct. 13, 2009); Cohea v. Pliler, 2009
WL 720964, *3 (E.D.Cal., Mar. 13, 2009) (acknowledging conflict with other jurisdictions), report and
recommendation adopted, 2009 WL 899965 (E.D.Cal., Mar. 31, 2009), vacated and reinstated, 2009 WL 961527
(E.D.Cal., Apr. 7, 2009).
Some courts in this circuit remained attached to the prior rule and have limited the Rhodes v. Robinson
holding to new claims that could not have been exhausted before the original complaint was filed. See Garcia v.
Rivera, 2012 WL 4050307, *4 (S.D.Cal., Aug. 7, 2012), report and recommendation adopted, 2012 WL 4050303,
*1 (S.D.Cal., Sept. 13, 2012); Young v. California Dept. of Corrections and Rehabilitation, 2012 WL 691670, *4

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The Ninth Circuit, which has explored this question most thoroughly, has explained that
it must be approached
“in the larger context of the pleading framework established by the Federal Rules
of Civil Procedure. As a general rule, when a plaintiff files an amended
complaint, [t]he amended complaint supercedes the original, the latter being
treated thereafter as non-existent. Nothing in the PLRA's exhaustion requirement
creates an exception to this basic premise of our jurisprudence on pleadings.” . . .
Therefore, for purposes of the exhaustion requirement, the date of the [amended
complaint’s] filing is the proper yardstick.488
A different route to the same conclusion hews more closely to the plain language of §
1997e(a), which provides that “[n]o action shall be brought” without exhaustion, and by the
Supreme Court’s holding that “action” is boilerplate when applied to multi-claim cases, and
exhaustion should therefore be assessed claim by claim.489 A prisoner who exhausts Claim A,
and “brings” it by filing suit, and later exhausts Claim B, and “brings” it by amending or
supplementing his complaint, has filed nothing without exhausting it, and has not violated the
statute.
The contrary position, in addition to contravening the statutory language, abrogates
prisoner-plaintiffs’ rights under Rule 15, Fed.R.Civ.P., concerning amendment and
supplementation of pleadings. Some courts have said that the terms of this rule cannot prevail
over the substantive requirements of the later-enacted § 1997e(a).490 But the Supreme Court has
said just the opposite: that the exhaustion requirement should not be read to overturn ordinary
practice under the Federal Rules of Civil Procedure unless Congress so specified. 491 This
holding suggests that the PLRA does not displace ordinary practice under Rule 15, which would
allow amendment to add exhausted claims whether they pre-date or post-date the original
filing.492 Jones’s holding also suggests that if claims are appropriately brought in the same case
(E.D.Cal., Mar. 2, 2012), report and recommendation adopted, 2012 WL 1068701, *1-2 (E.D.Cal., Mar. 29, 2012),
reconsideration denied, 2012 WL 2196109 (E.D.Cal., June 14, 2012); Crayton v. Hedgpeth, 2011 WL 1988450, *8
(E.D.Cal., May 20, 2011); Jones v. Felker, 2011 WL 533755, *4-5 (E.D.Cal., Feb. 11, 2011), report and
recommendation adopted, 2011 WL 1299454 (E.D.Cal., Mar. 29, 2011); accord, Boone v. Nose, 530 Fed.Appx.
112, 113 n.1 (3d Cir. 2013) (unpublished) (citing Rhodes); Pinet v. Zickefoose, 2013 WL 6734241, *9 (D.N.J., Dec.
19, 2013) (following Boone); Shaw v. Hall, 2013 WL 5571235, *10 & n.5 (M.D.Ga., Oct. 9, 2013) (following
Boone). As explained in the text, there is no basis for this restrictive view. See Wolf v. Reinke, 2011 WL 1898914,
*3 n.2 (D.Idaho, May 18, 2011) (“This Court does not read Rhodes so narrowly as to require that claims must have
arisen after the filing date of the original complaint to be eligible for later amendment.”)
In any case, these
decisions have now been overruled by Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014), which extended the
holding of Rhodes explicitly to exhausted claims that arose before the filing of the initial complaint.
488
Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014) (quoting Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir.
2010)).
489
Jones v. Bock, 549 U.S. 199, 924 (2007); accord, Brown v. Davis, 2013 WL 6405514, *3 (S.D.Ill., Dec. 6, 2013)
(relying on “boilerplate” language from Jones).
490
See Koch v. Neubarth, 2010 WL 1791141, *1 (E.D.Cal., May 3, 2010); Hall v. Hedgpeth, 2010 WL 532445, *3
(N.D.Cal., Feb. 9, 2010); Colon v. Tilton, 2009 WL 3816905, *2 (E.D.Cal., Nov. 13, 2009); Deherrera v. Mahoney,
2008 WL 5435322, *4 (D.Mont., Aug. 1, 2008).
491
Jones v. Bock, 549 U.S. 199, 212-16 (2007).
492
See Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014) (stating “a district court’s discretion to allow the
addition of a new claim in an amended complaint should not be curtailed where it is not required by law or statute”;
noting the PLRA does not justify deviating from the usual procedural practice in this regard); Brown v. Davis, 2013
WL 6405514, *3 (S.D.Ill., Dec. 6, 2013) (relying on Jones); Roundtree v. Adams, 2007 WL 1232173, *8-9

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consistently with Rules 18 and 20, Fed.R.Civ.P., which govern joinder, the exhaustion
requirement should not be interpreted to require that they be brought separately, as would be the
case under a rule against adding later-exhausted claims.493 Requiring otherwise joinable claims
to be litigated separately also does not advance the statute’s purpose to ease the burden of prison
litigation on the judiciary.494
What if the prisoner files a grievance and gets no response? The case law is replete with
such instances.495 Failure to respond cannot mean failure to exhaust; otherwise prison officials
(E.D.Cal., Apr. 25, 2007) (relying on Jones). Some decisions have focused on Rule 15(d), which permits
supplemental complaints adding claims that arose only after the filing of the original complaint. Since those claims
cannot be exhausted before the filing of the original complaint, barring their joinder would do away with
supplemental complaints in prisoner cases. Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (citing Jones v. Bock,
supra); Murphy v. Grenier, 2009 WL 3816905, *19-20 (E.D.Mich., Apr. 20, 2009) (holding that barring the
assertion of new claims under Rule 15(d) would be an impermissible repeal by implication of that Rule in prisoner
cases). These cases’ reasoning should be equally applicable to new claims that did arise before the filing of the
original complaint as long as they are exhausted before the plaintiff seeks to add them by amendment. To hold
otherwise would be as inconsistent with Rule 15(a) as the barring of supplemental complaints is with Rule 15(d).
See Lee v. Birkett, 2009 WL 3465210, *2 (E.D.Mich., Oct. 23, 2009) (noting claims initiated, or where any part of
the exhaustion occurred, after the original filing are governed by Rule 15(d); claims arising or fully exhausted before
the original filing are governed by Rule 15(a)) , objections overruled, 2009 WL 3806262 (E.D.Mich., Nov. 12,
2009).
493
See, e.g., Benyamini v. Sharp, 2009 WL 5205355, *1 (E.D.Cal., Dec. 17, 2009) (holding that a defendant who
had been dismissed for non-exhaustion could not be joined again after exhaustion was completed, but had to be sued
in a separate action). But see Hagan v. Rogers, 570 F.3d 146, 154-55 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d
852, 855-56 (7th Cir. 2004) (both holding that the PLRA does not overturn the joinder rules in other respects).
494
Jones v. Bock, 549 U.S. 199, 223 (2007) (noting that total exhaustion rule prompting prisoners to file claims in
separate suits “would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits”);
accord, Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014) (noting that making the plaintiff file some of his
claims as a separate suit would not further the PLRA’s policy goals); Riggs v. Valdez, 2010 WL 4117085, *5
(D.Idaho, Oct. 18, 2010) (noting waste of resources if claims had to be filed separately and then consolidated), on
reconsideration in part, 2010 WL 5391313 (D.Idaho, Dec. 22, 2010); Rouser v. White, 2010 WL 843764, *3
(E.D.Cal., Mar. 10, 2010) (“The state’s position lacks common sense. Such an interpretation of the PLRA would
make it impossible for prisoners to amend complaints to reflect new events or circumstances in continuing violation
cases. Instead, they would always be required to file new complaints in order to bring claims arising out of conduct
occurring after the filing of the complaint, including retaliation for filing a complaint.”).
495
See, e.g., Small v. Camden County, 728 F.3d 265, 273 (3d Cir. 2013) (noting that plaintiff received no response
to multiple grievances); Santiago v. Anderson, 2012 WL 3164293, *6 (7th Cir. 2012) (unpublished) (noting
summary judgment evidence showed submission of an unanswered grievance), cert. denied, 133 S.Ct. 769 (2012);
Davis v. Corrections Corp. of America, 463 Fed.Appx. 748, 750 (10th Cir. 2012) (unpublished) (noting concession
that prison staff did not respond to informal grievances as prison rules required); Castellanos v. Pfister, 2014 WL
377742, *3 (C.D.Ill., Feb. 3, 2014) (finding grievance process unavailable because of failure to respond to
emergency grievance appeal); Lucio v. Santos, 2013 WL 5340913, *6 (S.D.Ill., Sept. 23, 2013) (finding after a
hearing that the plaintiff did not receive responses to some grievances); Hudson v. Francum, 2013 WL 5320997, *2
(S.D.Ind., Sept. 23, 2013) (noting testimony of plaintiff, whom the court found credible, that he filed seven
grievances and received a response only to one); Munson v. Gaetz, 957 F.Supp.2d 951, 959 (S.D.Ill., July 17, 2013)
(finding after a hearing that plaintiff did not get a response despite his follow-up correspondence to prison officials);
Raybon v. Totten, 2013 WL 3456968, *3 (E.D.Cal., July 9, 2013) (declining to dismiss for non-exhaustion where it
was undisputed there was no response to plaintiff’s second and third level appeals), report and recommendation
adopted, 2013 WL 4407268 (E.D.Cal., Aug. 14, 2013); Garcia v. Heath, 2013 WL 3237445, *5 (S.D.N.Y., June 25,
2013) (noting that plaintiff wrote repeated letters of inquiry about the failure to respond to his grievance); Norington
v. Scott, 2013 WL 1857156, *4 (S.D.Ill., Apr. 19, 2013) (finding after a hearing that plaintiff resubmitted a
grievance as instructed but got no response); Gaspard v. Hedgpeth, 2013 WL 1819335, *2-3 (N.D.Cal., Apr. 30,
2013); Wiseman v. Cate, 2013 WL 1003536, *3 (E.D.Cal., Mar. 13, 2013) (noting defendants’ failure to dispute
plaintiff’s evidence of non-response), report and recommendation adopted, 2013 WL 1750015 (E.D.Cal., Apr. 23,

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could keep prisoners out of court by simply ignoring their grievances. 496 Hence, as noted, once a
prisoner has filed the final appeal and the deadline for a final response has passed, exhaustion is
complete.497 At least one federal court has declined to grant injunctive relief requiring prison
officials to process a grievance.498 State courts may take a different view.499
As to failures to respond at an earlier stage, many courts have held that if the grievance
system allows prisoners to treat non-response as a denial of the grievance, their failure to appeal
the non-response is a failure to exhaust.500 (The National Standards to Prevent, Detect, and
2013); Smith v. Smith, 2012 WL 5462676, *3 (S.D.Ind., Oct. 18, 2012) (finding that prisoner filed grievances which
were never processed), report and recommendation adopted, 2012 WL 5462674 (S.D.Ind., Nov. 8, 2012); Palmer v.
Hessbrook, 2012 WL 4364654, *4-5 (E.D.Mich., Sept. 25, 2012) (denying summary judgment based on plaintiff’s
averments that he filed grievances without response and sought to appeal and requested appeal forms without
response); Brown v. Kochanowski, 2012 WL 4127959, *8-9 (D.Kan., Sept. 19, 2012) (quoting deposition where
plaintiff describes pattern of non-response), appeal dismissed, 513 Fed.Appx. 715 (10th Cir. 2013) (unpublished);
Garrett v. Schwatz, 2012 WL 3048364, *4 (S.D.Ill., June 1, 2012) (finding after a hearing that plaintiff’s grievance
went unanswered), report and recommendation adopted, 2012 WL 3046987, *1 (S.D.Ill., July 25, 2012); see
Appendix A for additional authority on this point; see also Williams v. Sanders, 2010 WL 5652767, *2-3 (D.S.C.,
Oct. 7, 2010) (denying summary judgment where plaintiff, supported by several other prisoners, stated that neither
the plaintiff nor anyone else received responses to grievances), report and recommendation adopted, 2011 WL
291253 (D.S.C., Jan. 27, 2011); Bailey v. Himelick, 2010 WL 5423723, *5 (N.D.Ind., Dec. 27, 2010) (note that was
not actually responsive to grievance was not a response triggering appeal obligation).
496
Brown v. Koenigsmann, 2003 WL 22232884, *4 (S.D.N.Y., Sept. 29, 2003); accord, Peoples v. Fischer, 2012
WL 1575302, *6 (S.D.N.Y., May 3, 2012) (“When a prisoner ‘complie[s] with all of the administrative requirements
and ma[kes] a good-faith effort to exhaust, he should not be denied the opportunity to pursue his grievance in federal
court simply because the final administrative decision maker has ... neglected ... to issue a final administrative
determination.’ (citation omitted)), on reconsideration in part, 2012 WL 2402593 (S.D.N.Y., June 26, 2012);
Brunson v. Jonathan, 727 F.Supp.2d 195, 198-99 (W.D.N.Y. 2010) (where prisoner’s appeals were never decided
despite his compliance with the rules, defendants were estopped and/or special circumstances excused nonexhaustion); Torres v. Carry, 672 F.Supp.2d 338, 344-45 (S.D.N.Y. 2009) (plaintiff who had waited four years for a
final decision had not exhausted, but was entitled to an exception to the exhaustion requirement), reconsideration
denied, 672 F.Supp.2d 346 (S.D.N.Y. 2009); Duke v. Hardin County, 2008 WL 918136, *2 (W.D.Ky., Mar. 31,
2008) (holding prisoner exhausted where he received a response stating the matter had been investigated and turned
over to the Jailer, and the Jailer never responded); Levi v. Briley, 2006 WL 2161788, *3 (N.D.Ill., July 28, 2006)
(declining to dismiss where the prisoner had waited two years for a final decision); Jones v. Blanas, 2005 WL
1868826, *3 (E.D.Cal., Aug. 3, 2005); White v. Briley, 2005 WL 1651170, *6 (N.D.Ill., July 1, 2005); Casarez v.
Mars, 2003 WL 21369255, *6 (E.D.Mich., June 11, 2003) (holding that prison officials’ lack of response to a Step
III grievance did not mean failure to exhaust); John v. N.Y.C. Dept. of Corrections, 183 F.Supp.2d 619, 625
(S.D.N.Y. 2002) (rejecting argument, three years after grievance appeal, that plaintiff must continue waiting for a
decision).
497
See n. 463, above.
498
Fulton v. Vasquez, 2011 WL 70497, *2 (E.D.Cal., Jan. 10, 2011).
499
In re Fosselman, No. HC 5680, Order (Superior Ct., Monterey Cty., Feb. 8, 2008) (finding two grievances had
been improperly screened out and directing officials to process them).
500
Turner v. Burnside, 541 F.3d 1077, 1083-84 (11th Cir. 2008) (where prisoner alleged that the warden tore up his
grievance, he would have been obliged to file an appeal from the lack of a decision, except that the warden also
threatened him); Cox v. Mayer, 332 F.3d 422, 425 n.2 (6th Cir. 2003); Johnson v. Schriro, 2013 WL 5718474, *4
(S.D.N.Y., Oct. 15, 2013); Dabney v. Pegano, 2013 WL 5464776, *9-10 (N.D.N.Y., Sept. 30, 2013) (holding
prisoner should have appealed the non-response where he alleged that prison staff threw his grievance away);
Holmes v. St. Tammany Parish Sheriff's Office, 2013 WL 5530335, *4 (E.D.La., Oct. 7, 2013); Garcia v. Heath,
2013 WL 3237445, *5 (S.D.N.Y., June 25, 2013) (dismissing for non-exhaustion for failing to appeal a nonresponse even though plaintiff made numerous inquiries about the fate of his grievance); Gantt v. Horn, 2013 WL
865844, *6 (S.D.N.Y., Mar. 8, 2013); Spigelman v. Samuels, 2013 WL 147846, *1-2 (E.D.Ky., Jan. 14, 2013),
reconsideration denied, 2013 WL 1898268 (E.D.Ky., May 7, 2013); Rouse v. Baca, 2012 WL 4498866, *5
(D.N.M., Sept. 25, 2012); Barbati v. Bureau of Prisons, 2012 WL 4119300, *5 (S.D.W.Va., Aug. 22, 2012), report

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Respond to Prison Rape, recently promulgated under the Prison Rape Elimination Act (PREA),
require that grievance systems allow prisoners to treat non-response to sexual abuse complaints
as a denial of the grievance.501) A prisoner who does appeal under these circumstances cannot
be faulted for failing to wait for a decision that is long past the prison’s own deadline for
response502—though if a late decision arrives before suit is filed, the prisoner is obliged to appeal
the decision rather than proceed to court.503 Some decisions say that if appealing a non-response
is not mandatory under grievance rules, prisoners who did not appeal remain in the position of
waiting for a very late decision.504 That presumably means they can appeal from the lack of a
decision even after dismissal for non-exhaustion, and re-file upon completion of the process.
However, if the prisoner cannot appeal without a decision that he does not receive, and is denied
a decision, the prisoner has sufficiently exhausted “available” remedies.505
and recommendation adopted, 2012 WL 4119865 (S.D.W.Va., Sept. 19, 2012); Malik v. City of New York, 2012
WL 3345317, *7 (S.D.N.Y., Aug. 15, 2012), report and recommendation adopted, 2012 WL 4475156 (S.D.N.Y.,
Sept. 28, 2012); Kelley v. Anderson, 2012 WL 606823, *2 (E.D.Ark., Feb. 1, 2012), report and recommendation
adopted, 2012 WL 606721 (E.D.Ark., Feb. 24, 2012); Williams v. Janis, 2011 WL 6817886, *4 (S.D.W.Va., Nov.
21, 2011); Alba v. Randle, 2011 WL 4565752, *3 (S.D.Miss., Sept. 29, 2011); Hernandez v. Harrington, 2010 WL
3843773, *1 (W.D.Mich., Sept. 28, 2010) (prisoner who got no response to his grievance or to his inquiry about its
status was obliged to appeal the non-response); Gayle v. Benware, 716 F.Supp.2d 293, 298 (S.D.N.Y. 2010);
Wallace v. Hanratty, 2010 WL 680342, *2-3 (N.D.Fla., Feb. 18, 2010); Garrott v. LeFrancis, 2010 WL 605310, *3
(W.D.Wash., Feb. 18, 2010) (plaintiff who received no response should have filed another grievance or appealed);
Alatorre v. Reese, 2009 WL 1587091, *3 (S.D.Miss., June 5, 2009); see Appendix A for additional authority on this
point; see also George v. Morrison-Warden, 2007 WL 1686321, *4 (S.D.N.Y., June 11, 2007) (dismissing because
the plaintiff failed to appeal the lack of response to his grievances, but holding that his efforts had “earned him a
response” and directing the Bureau of Prisons to consider a new appeal timely and respond within 30 days). But see
Williams v. Jones, 2013 WL 1187028, *6 (D.S.C., Jan. 23, 2013) (declining to dismiss for non-exhaustion where
plaintiff filed suit after waiting 10 1/2 months for a first stage decision), objections overruled, 2013 WL 1187042
(D.S.C., Mar. 20, 2013); Hicks v. Irvin, 2010 WL 2723047, *7 (N.D.Ill., July 8, 2010) (holding where right to
appeal lack of decision depends on date grievance was logged, a prisoner who never gets a receipt indicating the
date of logging can never timely appeal, and has exhausted).
One court has gone so far as to hold that a prisoner who did not get a timely response, but did not appeal
the non-response, instead waiting for the late response and appealing from that, was properly found to have
procedurally defaulted. Flores v. Lappin, 2013 WL 4711663, *2 (E.D.Tex., Aug. 29, 2013).
501
28 C.F.R. § 115.52(d)(4).
502
Risher v. Lappin, 639 F.3d 236, 241 (6th Cir. 2011) (holding prisoner who did not receive a response timely was
entitled under the rules to appeal and was not obliged to track down the errant response; “When pro se inmates are
required to follow agency procedures to the letter in order to preserve their federal claims, we see no reason to
exempt the agency from similar compliance with its own rules.”); Kyles v. Mathy, 2010 WL 3025109, *4 (C.D.Ill.,
Aug. 2, 2010). But see Hull v. Cox, 2012 WL 3100600, *6, 8 (D.Nev., June 6, 2012) (holding long delay at
intermediate stage did not justify filing suit before last step was completed; plaintiff could have appealed when
responses became overdue), report and recommendation adopted, 2012 WL 3096476 (D.Nev., July 30, 2012).
In Ward v. Byars, 2013 WL 1403220, *6 (D.S.C., Mar. 11, 2013), report and recommendation adopted,
2013 WL 1404918 (D.S.C., Apr. 5, 2013), the plaintiff waited four and a half years for a Step 1 response and then
filed suit immediately after filing a Step 2 appeal. The court declined to recommend dismissal for exhaustion,
noting that grievances in that system were supposed to be advanced automatically to the next step without action by
the prisoner; it held that the claim should be deemed exhausted at the end of the maximum time allowed for the
grievance process.
503
Adusah v. Stevens, 2011 WL 867517, *1 (S.D.Ga., Mar. 10, 2011).
504
Pritchett v. Anderson, 2007 WL 1035140, *3 (S.D.Ga., Apr. 3, 2007) (stating plaintiff “remains in the process”
of exhaustion); Sewell v. Ramsey, 2007 WL 201269, *4 (S.D.Ga., Jan. 24, 2007).
505
Dole v. Chandler, 438 F.3d 804, 811-12 (7th Cir. 2006) (holding prisoner had exhausted when he did everything
necessary to exhaust but his grievance simply disappeared, and he received no instructions as to what if anything to
do about it); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (holding prisoner who received no decision

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Some courts have held that prisoners are obligated to make some effort to follow up
when they receive no response to their grievances.506 This holding appears incorrect in light of
Jones v. Bock in the absence of a prison rule instructing prisoners what to do in that situation.507
had exhausted where the grievance policy did not say what to do absent a decision); Foulk v. Charrier, 262 F.3d 687,
698 (8th Cir. 2001); Brown v. Davis, 2013 WL 6405514, *3 (S.D.Ill., Dec. 6, 2013) (similar to Dole v. Chandler);
McNeil v. Atchison, 2013 WL 6405778, *2 (S.D.Ill., Dec. 6, 2013) (similar to Dole v. Chandler); Gebo v. Thyng,
2012 WL 965097, *5 (D.N.H., Mar. 21, 2012) (holding remedies may be unavailable where staff member refuses to
respond to “request slip” and prisoner cannot obtain a grievance form without the response); Wilson v. Hosey, 2012
WL 957488, *5-6 (N.D.Ill., Mar. 15, 2012); Cosme v. Furman, 769 F.Supp.2d 110, 114 (W.D.N.Y. 2011); Fortune
v. Giorla, 2011 WL 6739470, *5 (E.D.Pa., Dec. 22, 2011) (declining to dismiss for non-exhaustion where
defendants submitted no evidence of a means to appeal a non-response); see Appendix A for additional authority on
this point; see also Perry v. Torres, 2009 WL 2957277, *3-4 (S.D.N.Y., Sept. 16, 2009) (where plaintiff received no
decision, defendants had the burden of showing what he should have done; where appeal was supposed to be filed
on the form bearing the decision plaintiff did not receive, defendants would be estopped from requiring use of the
form); Reyes v. McGinnis, 2003 WL 23101781 (W.D.N.Y., Apr.10, 2003) (holding that plaintiff who alleged that he
never received any response to his grievances, but appealed anyway, did not exhaust untimely because the time
deadlines only started to run as of the response he didn’t receive). Contra, Murray v. Palmer, 2010 WL 1235591, *2
(N.D.N.Y., Mar. 31, 2010) (holding prisoner who was assigned no grievance number must nonetheless appeal). Cf.
Lewis v. Federal Bureau of Prisons, 2013 WL 65412, *3 (N.D.W.Va., Jan. 3, 2013) (holding prisoner did not
exhaust where he said he mailed his final grievance form to “central office,” which never answered, and he couldn’t
prove he mailed it because his property was lost in transit; court says he never “successfully” filed his appeal form),
aff’d, 539 Fed.Appx. 187 (4th Cir. 2013).
506
Norwood v. Johnson, 457 Fed.Appx. 74, 77 (3d Cir. 2012) (unpublished) (“Proper exhaustion means using all of
the steps the agency holds out, . . . including, here, the unremarkable step of resubmitting a form the agency lost, or
resubmitting a form to clarify for the agency the exact nature of one's claim.”), cert. denied, 132 S.Ct. 1930 (2012);
Williams v. LeClair, 128 Fed.Appx. 792, 793 (2d Cir. 2005) (unpublished) (affirming dismissal for non-exhaustion
where the plaintiff alleged that an unidentified prison official had discarded his grievance, but failed to explain why
he did not pursue the matter when he realized his grievance had not been filed); Goldsmith v. Zolecki, 2013 WL
5699302, *6 (N.D.Ill., Oct. 18, 2013) (same as Stallings v. Cook County); Willis v. Mohr, 2013 WL 5773932, *5
(S.D.Ohio, Oct. 24, 2013); Stallings v. Cook County, 2013 WL 3669623, *5 (N.D.Ill., July 12, 2013) (“Simply
submitting a grievance and not receiving a response is insufficient to establish that the grievance process is
unavailable.”); Mable v. Beard, 2013 WL 2435295, *18 (M.D.Pa., June 4, 2013) (holding prisoner who received no
response “could have inquired or filed a request slip inquiring about the matter”; not explaining why filing a second
grievance, which was rejected, did not satisfy his obligation in the absence of policy guidance); Taylor v. Cook
County, 2013 WL 2285806, *4 (N.D.Ill., May 23, 2013) (“Simply submitting a grievance and not receiving a
response is insufficient to establish that the grievance process is unavailable. . . . Rather, an inmate must attempt to
follow up on the status of their grievance.”); Belile v. Griffin, 2013 WL 1776086, *8 (N.D.N.Y., Feb. 12, 2013)
(where grievances disappeared, plaintiff should have given them directly to the grievance supervisor who toured the
housing unit), report and recommendation adopted, 2013 WL 1291720 (N.D.N.Y., Mar. 27, 2013); Chestnut v.
McClendon, 2012 WL 5497899, *4 (N.D.Fla., Oct. 24, 2012) (noting prisoner’s concession that he should have filed
a second grievance when he did not get an answer to the first grievance), report and recommendation adopted, 2012
WL 5497880 (N.D.Fla., Nov. 13, 2012); see Appendix A for additional authority on this point; see also Atkins v.
Haws, 2012 WL 1569606, *7-8 (C.D.Cal., Mar. 20, 2012) (holding plaintiff who waited seven months to follow up
on unanswered grievance and upon receiving an explanation and invitation to resubmit, failed to do so, failed to
exhaust), report and recommendation adopted, 2012 WL 1569596 (C.D.Cal., May 3, 2012), motion for relief from
judgment denied, 2013 WL 828758 (C.D.Cal., Mar. 5, 2013).
507
See Small v. Camden County, 728 F.3d 265, 273 (3d Cir. 2013) (rejecting argument that prisoner should have
appealed lack of response to grievances where the grievance policy did not provide for such appeals); Williams v.
Ezell, 534 Fed.Appx. 699, 703 (10th Cir. 2013) (rejecting argument that plaintiff should have filed a grievance about
defendants’ unresponsiveness to his grievances absent any policy to that effect); Davis v. Corrections Corp. of
America, 463 Fed.Appx. 748, 750 (10th Cir. 2012) (unpublished) (rejecting argument that plaintiff should have
taken additional measures when his informal grievances were not answered; “We will not impose a requirement that
is never mentioned in the applicable written policies.”); Risher v. Lappin, 639 F.3d 236, 241 (6th Cir. 2011)
(rejecting argument that prisoner who did not receive a timely response was obliged to track it down, rather than

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If there is such a rule, of course, prisoners are obliged to follow it.508 At least one court has held
that a policy saying only that non-response “shall entitle the offender to move to the next stage of
the process” does not sufficiently instruct the prisoner what to do, so failure to appeal does not
constitute non-exhaustion.509 Other courts have simply held that prisoners who grieve but do not
get a response have satisfied the exhaustion requirement, usually without inquiring whether they
were technically entitled to appeal the lack of response.510
appeal as the rules provided); Barghouti v. Pfister, 2014 WL 509328, *4 (S.D.Ill., Feb. 10, 2014) (rejecting
argument that pliantiff whose grievance disappeared at the prison should have filed a grievance with the central
Administrative Review Board; “Such an argument would place the burden on Plaintiff to ensure that the grievance
process works, a burden which he cannot possibly shoulder.”); Lawson v. Youngblood, 2014 WL 273854, *3
(E.D.Cal., Jan. 23, 2014) (in system where verbal grievances were permitted, rejecting contention that plaintiff was
required to “provide unspecified ‘follow-up’” not set out in policy), report and recommendation adopted, 2014 WL
669779 (E.D.Cal., Feb. 20, 2014); Cowart v. Erwin, 2013 WL 6188731, *5 (N.D.Tex., Nov. 26, 2013) (holding
plaintiff was not obliged to take action when he did not receive interim response to his grievance because the rules
did not specify any such action); Ransom v. Aquirre, 2013 WL 5923104, *8 (E.D.Cal., Nov. 1, 2013) (stating “there
is no rule or regulation requiring Plaintiff to take further action. Once Plaintiff indicates that he has done what is
required, Defendants cannot defeat his statements simply by contending that he should have done more.”), report
and recommendation adopted, 2014 WL 994606 (E.D.Cal., Mar. 12, 2014); Cowart v. Erwin, 2013 WL 3970790, *4
(N.D.Tex., Aug. 2, 2013) (rejecting defendants’ claim that plaintiff should have filed a second grievance upon not
receiving a receipt for the first, since “the Jail's policy does not require any such action in order to exhaust
remedies”); Facey v. Dickhaut, 892 F.Supp.2d 347, 353-54 (D.Mass. 2012) (declining to dismiss where plaintiff
alleged he appealed non-response to grievance, received no response to his appeal, and regulations provided no
further procedural steps in that situation); Thomas v. Wilber, 2012 WL 2358590, *3 (E.D.Cal., June 20, 2012)
(stating “prisoners are not required to conceive of ways to work around the failure of prison officials to respond to
properly submitted appeals”) (dicta), report and recommendation adopted, 2012 WL 3201778 (E.D.Cal., Aug. 3,
2012); Rodriguez v. Miramontes, 2012 WL 1983340, *7 (D.Ariz., June 4, 2012) (declining to require prisoners to
file a grievance about the failure to decide a required Informal Resolution request, a response to which was
necessary to file a grievance, though he pursued other inquiries; declining to require transferred prisoner to complain
about lack of response to sending state where grievance procedure does not so provide); Stansbury v. U.S.
Government, 2012 WL 1292505, *3 (E.D.Cal., Apr. 13, 2012) (holding “prisoners are not required to conceive of
ways to work around the failure of prison officials to respond to properly submitted appeals, and in this Circuit, the
failure to exhaust may be excused where the administrative remedies are rendered effectively unavailable”);
Davitashvili v. Schomig, 2012 WL 12767, *5-6 (D.Ariz., Jan. 4, 2012) (declining to dismiss for non-exhaustion
where plaintiff says he got no response to his informal grievance, and policy provided no instruction as to what to do
in that situation); see Appendix A for additional authority on this point; see also Johnson v. Meier, 842 F.Supp.2d
1116, 1118-19 (E.D.Wis. 2012) (declining to require a prisoner to file another grievance where his initial grievance
yielded a nonsensical but non-appealable response). But see Wiseman v. Sebok, 2012 WL 2361494, *6-8 (C.D.Cal.,
May 10, 2012) (dismissing for non-exhaustion where plaintiff’s initial grievance disappeared, he filed a grievance
about the lack of a response, and then failed to follow instructions given in the response to that grievance as to how
to proceed), report and recommendation adopted, 2012 WL 2194553 (C.D.Cal., June 15, 2012), aff’d, 543
Fed.Appx. 694 (9th Cir. 2013) (unpublished).
508
Neal v. Howard, 2012 WL 6000309, *3 (E.D.Okla., Nov. 30, 2012) (noting policy provides “a mechanism to
advise the administrative review authority that . . . grievances are not being answered”); Johnson v. Johns, 2011 WL
1304268, *6 (W.D.Okla., Mar. 4, 2011), report and recommendation adopted, 2011 WL 1258354 (W.D.Okla., Apr.
1, 2011); Pope v. Wiedow, 2009 WL 3698475, *5 (W.D.Okla., Nov. 4, 2009) (holding prisoner must grieve the
failure to respond to a grievance if the grievance policy so requires).
509
Malone v. Ball, 2009 WL 1376848, *3 (S.D.Ind., May 15, 2009), report and recommendation adopted, 2009 WL
1657902 (S.D.Ind., June 11, 2009); accord, Knighten v. Mitcheff, 2011 WL 96663, *3 (S.D.Ind., Jan. 10, 2011)
(noting that appeal procedures required prisoner to attach the appeal response and fill in the grievance number,
which he would not have absent a response).
510
Boyd v. Corrections Corporation of America, 380 F.3d 989, 996 (6th Cir. 2004) (holding that “administrative
remedies are exhausted when prison officials fail to timely respond to a properly filed grievance,” though
distinguishing a case where the prisoner could proceed without a decision), cert. denied, 540 U.S. 920 (2005); Lewis

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Prisoners whose grievances are rejected with no avenue of appeal available, e.g. by
returning them unrecorded or “unprocessed,” have satisfied the exhaustion requirement. 511 The
same is true of prisoners who resort to an emergency or “sensitive” grievance procedure and
have their grievances rejected as not being genuine emergencies, but with no instructions in the

v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding failure to respond makes remedy unavailable); Clay v.
Downs, 2012 WL 6720616, *4 (N.D.Ill., Dec. 27, 2012) (holding 15-month delay in deciding a grievance appeal
made the remedy unavailable); Haskins v. DeRose, 2011 WL 2654115, *3 (M.D.Pa., May 20, 2011), report and
recommendation adopted, 2011 WL 2654112 (M.D.Pa., July 6, 2011); Williams v. Byrd, 2011 WL 1044917, *3
(E.D.Ark., Feb. 24, 2011) (alleged lack of response and absence of record from file raised a factual issue whether
plaintiff had exhausted), report and recommendation adopted, 2011 WL 1058584 (E.D.Ark., Mar. 22, 2011); Roy v.
Dominguez, 2010 WL 1568611, *3 (N.D.Ind., Apr. 16, 2010); Proctor v. Board of County Com'rs of County of
Pottawatomie, 2010 WL 711198, *3 (W.D.Okla., Feb. 25, 2010) (holding non-response meant plaintiff had
exhausted); additional authority for this point is collected in Appendix A; see Abney v. County of Nassau, 237
F.Supp.2d 278, 282-83 (E.D.N.Y. 2002) (holding that plaintiff was not obliged to appeal a non-response where the
grievance policy did not provide for such an appeal); Artis-Bey v. District of Columbia, 884 A.2d 626, 634 (D.C.
2005) (holding that where regulations required prison officials to respond within 15 days and said a prisoner “may”
appeal if no timely response is received, prisoner was not obliged to appeal absent a response). In Artis-Bey, the
court stated: “In addition to being grounded in the language of the regulation, our interpretation serves the purpose
of resolving inmate complaints, if possible, at the lowest administrative level, without escalating the grievance
process unnecessarily. . . . If every unconsented delay in response to a grievance required appeal, inmates would
have to appeal to higher authorities over grievances that could and should be resolved at lower levels, simply to
avoid forfeiting their right to an eventual civil action.” 884 A.2d at 635. But see Allen v. Tobia, 2003 WL 260708,
*4 (N.D.Ill., Jan. 29, 2003) (holding that a month’s delay in responding to a non-emergency grievance did not entitle
the plaintiff to go directly to federal court where the rules allowed six months for a decision).
511
Santos v. Delaney, 2014 WL 199799, *6 (E.D.Pa., Jan. 17, 2014) (holding evidence of failure either to enter
plaintiff’s 23 grievances and requests to staff into “Lock & Track” system, or to return them to him for revision,
barred summary judgment for non-exhaustion); Travis v. Morgridge, 2013 WL 4499002, *1 (W.D.Mich., Aug. 20,
2013) (denying summary judgment for non-exhaustion where grievance coordinator did not assign grievance a
number and plaintiff could not appeal without one); Sanders v. Davis, 2012 WL 5830423, *4-5 (S.D.Ill., Oct. 15,
2012) (holding remedies unavailable where officials refused to sign off and to process plaintiff’s grievance), report
and recommendation adopted, 2012 WL 5830401 (S.D.Ill., Nov. 16, 2012); Johnson v. Meier, 842 F.Supp.2d 1116,
1118-19 (E.D.Wis., Feb. 6, 2012) (where grievance was rejected erroneously for failure to present a single issue and
decision was not appealable, plaintiff had exhausted); Devbrow v. Gallegos, 2011 WL 4709062, *1 (N.D.Ind., Oct.
4, 2011) (where grievance was rejected without assigning a grievance number, “it is not realistic to speak of
appealing,” and plaintiff had exhausted); Smith v. Maypes-Rhynders, 2011 WL 4448944, *11 (S.D.N.Y., July 28,
2011) (finding special circumstances excusing exhaustion where grievance appeal was returned without instructions
as to correcting defects or other steps to be taken), report and recommendation adopted, 2011 WL 4444214, *4
(S.D.N.Y., Sept. 26, 2011); Henry v. Cox, 2011 WL 2693014, *6 (S.D.Ill., June 20, 2011) (where prisoner could not
get a response at the prison and appeal body returned his appeal for failure to attach the responses he could not get,
prisoner had exhausted), report and recommendation adopted, 2011 WL 2683180 (S.D.Ill., July 11, 2011); Wolf v.
Reinke, 2011 WL 1898914, *5 (D.Idaho, May 18, 2011) (where staff rejected plaintiff’s grievance, claiming the
problem was solved, and told him not to complain about it again, he had exhausted); Williams v. Shelton, 2010 WL
1948347, *5 (D.Or., Feb. 24, 2010), report and recommendation adopted, 2010 WL 1881769 (D.Or.. May 11,
2010), adhered to on reconsideration, 2010 WL 3186637 (D.Or., Aug. 11, 2010); Miller v. Catlett, 2010 WL
444734, *3 (S.D.Cal., Feb. 1, 2010) (where prisoner’s staff complaint was rejected on the ground it was really a
disciplinary appeal, with no instruction as to what to do to file a staff complaint, plaintiff did not fail to exhaust); see
Appendix A for additional authority on this point.
In Schoenlein v. Halawa Correctional Facility, 2008 WL 4761791, *5-6 (D.Haw., Oct. 29, 2008), the
plaintiffs had filed suit before the grievance process was complete, and prison officials had terminated the grievance
process as “moot.” Although plaintiffs’ premature resort to litigation required the dismissal of the complaint, the
court disapproved the termination of the grievance process, suggesting that the plaintiffs had satisfied the exhaustion
requirement for purposes of re-filing their case.

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grievance policy as to what to do next.512 Conversely, if a grievance is rejected without decision,
but there is some means to pursue it further, the prisoner must take advantage of it.513
Courts have held that prisoners satisfied the exhaustion requirement in cases where they
have failed to appeal because the grievance system or its personnel told them they could not
appeal,514 or gave other responses that proved to be misleading or confusing.515 The Second
512

Glick v. Walker, 385 Fed.Appx. 579, 583 (7th Cir. 2010); Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005);
Quigley v. Hardy, 2013 WL 5781737, *3-4 (N.D.Ill., Oct. 24, 2013) (following Glick and Thornton); Mims v.
Hardy, 2013 WL 2451149, *6-7 (N.D.Ill., June 5, 2013) (following Glick and Thornton); Dixon v. Schaefer, 2013
WL 941971, *3 (N.D.Ill., Mar. 11, 2013) (following Glick and Thornton); Stansbury v. U.S. Government, 2012 WL
1292505, *3 (E.D.Cal., Apr. 13, 2012) (holding when plaintiff had submitted two “sensitive” grievances without
response, defendants were obliged to show further remedies were available, and did not); Johnson v. Ghosh, 2011
WL 2604837, *4 (N.D.Ill., June 30, 2011); Haywood v. Hathaway, 2011 WL 1775734, *4-5 (S.D.Ill., Apr. 22,
2011), report and recommendation adopted, 2011 WL 1770821 (S.D.Ill., May 10, 2011). But see Boclair v. Illinois
Dept. of Corrections, 2012 WL 463236, *4 (S.D.Ill., Jan. 24, 2012) (dismissing for failure to pursue rejected
emergency grievance as regular grievance, ignoring just-cited authority), report and recommendation adopted, 2012
WL 878219, *3 n.3 (S.D.Ill., Mar. 14, 2012).
513
See Moore v. Bennette, 517 F.3d 717, 729-30 (4th Cir. 2008) (where rules allowed only one grievance at a time
except for emergencies, and plaintiff labelled his second grievance an emergency but it did not meet the criteria in
the grievance rules for an emergency and was dismissed, plaintiff’s failure to resubmit it when his first grievance
was decided was a failure to exhaust). Several California decisions have held that where a grievance was “screened
out” but the prisoner was advised of a means of challenging that decision, he was obliged to pursue it. See cases
cited in n.749, below. But see Turner v. Burnside, 541 F.3d 1077, 1083-84 (11th Cir. 2008) (prisoner who alleged
that the warden tore up his grievance was not obliged to resubmit it through the optional emergency grievance
procedure); Devbrow v. Gallegos, 2011 WL 4709062, *1 (N.D.Ind., Oct. 4, 2011) (where grievance was “rejected”
without possibility of appeal, and plaintiff directed to tort claim system, plaintiff had exhausted, since compliance
with grievance system is what is required).
514
Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (where appeal was screened out with a form stating the
decision was not appealable, prisoner was not required to appeal further); Brown v. Valoff, 422 F.3d 926, 935 (9th
Cir. 2005) (holding “a prisoner need not press on to exhaust further levels of review once he has . . . been reliably
informed by an administrator that no remedies are available”); Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999)
(holding that grievance decision that stated it was non-appealable need not have been appealed); Franklin v. Fewell,
2014 WL 505341, *4 n.2 (N.D.Ind., Feb. 7, 2014) (holding plaintiff who was notified in writing “[p]er policy, you
cannot appeal a rejected grievance” could not be penalized for failing to appeal); Spence v. Armor Correctional
Health, 2013 WL 3189165, *2 (E.D.N.Y., June 18, 2013) (holding plaintiff’s allegation that a staff member told him
he could not appeal barred granting of motion to dismiss); Baker v. Yates, 2013 WL 812388, *1 (E.D.Cal., Mar. 5,
2013) (holding where officials told prisoner his issue could not be appealed, non-exhaustion was excused); Morgan
v. Tilton, 2012 WL 3862345, *3 (E.D.Cal., Sept. 5, 2012) (where grievance that was screened out with a notice
stating “This screening decision may not be appealed,” plaintiff’s failure to follow up on it directly was not a failure
to exhaust), report and recommendation adopted, 2012 WL 4482025 (E.D.Cal., Sept. 28, 2012); Rye v. Erie County
Prison, 689 F.Supp.2d 770, 774 (W.D.Pa. 2009) (sworn statement that deputy warden told plaintiff there was no
further appeal and his decision was final barred summary judgment as to availability of remedies); Harris v. Duc,
2008 WL 3850214, *5 (E.D.Cal., Aug. 15, 2008) (prisoner who was told his grievance would be investigated as a
“staff complaint” and he would not be told the outcome reasonably concluded no further relief was available), report
and recommendation adopted, 2008 WL 4463604 (E.D.Cal., Oct. 2, 2008); Jones v. Santos, 2008 WL 2077933, *56 (D.Or., May 14, 2008) (prisoner who was told that his sexual assault complaint had been referred to the district
attorney, and was directed to address further communications to that office, could reasonably conclude no further
relief was available through the grievance system); Tinsley v. Giorla, 2008 WL 901697, *5 (E.D.Pa., Apr. 1, 2008)
(if a prison official told a prisoner a decision could not be appealed, contrary to written grievance policy, the
grievance procedure could be found unavailable); see Appendix A for additional authority on this point. Prisoners’
reliance on misinformation from prison staff is discussed further at nn. 1074-1076, below.
515
Gay v. Terrell, 2013 WL 5437045, *13 (E.D.N.Y., Sept. 27, 2013) (holding plaintiff could have reasonably
believed a grievance request stating that “your rqst for treatment has been forwarded to the appropriate department
for review” meant that his request was processed and he need not pursue remedies further); Lopez v. Swift, 2013

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Circuit has held that a prisoner who failed to appeal his property claim was justified by special
circumstances in his failure to exhaust because he followed prison officials’ erroneous advice to
pursue a grievance instead.516 It has also held that a prisoner who did not appeal because he
repeatedly received favorable grievance decisions that were not implemented, a failure which did
not become apparent until after the appeal deadline had passed, had no further available remedies
and had satisfied the exhaustion requirement.517
Exhaustion must be done personally; except in class actions, a prisoner cannot rely on
another prisoner’s exhaustion,518 unless of course prison procedures so permit.519 If officials
WL 4718972, *5-6 (E.D.Wash., Sept. 3, 2013) (holding plaintiff was not obliged to appeal response that said “The
concerns you state in your grievance have been noted and will be addressed,” since there was nothing in it to appeal,
and the response implied some further response was forthcoming); Warren v. Purcell, 2004 WL 1970642, *6
(S.D.N.Y. Sept. 3, 2004) (holding “baffling” grievance response that left prisoner with no clue what to do next
estopped defendants from claiming the defense and constituted special circumstances justifying failure to exhaust);
Lee v. Walker, 2002 WL 980764, *2 (D.Kan., May 6, 2002) (holding that prisoner who sent his grievance appeal to
the wrong place would be entitled to reconsideration of dismissal if he showed that the prison handbook said it was
the right place); Goodman v. Carter, 2001 WL 755137, *2-3 (N.D.Ill., July 2, 2001) (holding that a prisoner who got
no response to his grievance, and complained to the Administrative Review Board, which told him to file another
grievance, had sufficiently exhausted); Feliz v. Taylor, 2000 WL 1923506, *2-3 (E.D.Mich., Dec. 29, 2000)
(holding that a plaintiff who was told his grievance was being investigated, then when he tried to appeal later was
told it was untimely, had exhausted, since he had no reason to believe he had to appeal initially); see Thornton v.
Snyder, 428 F.3d 690, 694-96 (7th Cir. 2005) (holding that a prisoner who filed under an emergency grievance
procedure, and was told his complaint was not an emergency, but was not instructed either by the response or by the
rules that he should therefore file a regular grievance, did not fail to exhaust), cert. denied, 547 U.S. 1192 (2006).
516
Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006); accord, Kendall v. Cuomo, 2013 WL 5425780, *2, 5
(S.D.N.Y., Sept. 27, 2013) (holding statement by hearing officer that he was “not a Federal Judge, only a hearing
officer in the Department of Corrections. We are not in a Federal Court here” might sufficiently suggest nongrievability to constitute special circumstances); Rosales v. LaValley, 2013 WL 992547, *6 (N.D.N.Y., Mar. 13,
2013) (finding special circumstances justifying non-exhaustion where plaintiff was misinformed about the proper
procedure and submitted a grievance but got no response). Brownell was consistent with the court’s prior holdings
that non-exhaustion may be justified if prisoners act on a reasonable, even if incorrect, understanding of the rules,
see Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680, 689-90 (2d Cir. 2004),
and that the actions of prison personnel that inhibit exhaustion may estop them from raising the defense. Hemphill,
380 F.3d at 688-89.
517
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004). The Abney holding appears to be in substantial tension
with those of Ruggiero v. County of Orange, 467 F.3d 170, 178-79 (2d Cir. 2006), and Braham v. Clancy, 425 F.3d
177 (2d Cir. 2005), which held that prisoners who received relief before commencing the formal grievance process
were nonetheless required to pursue that process. These decisions are discussed in more detail in the next section.
518
Rumsey v. Michigan Dept. of Corrections, 2013 WL 5517888, *2 (W.D.Mich., Oct. 1, 2013); Jamison v. Franko,
2013 WL 5166626, *2 (N.D.Ill., Sept. 13, 2013); Douglas v. Marvin, 2013 WL 2631875, *3 (W.D.Ark., June 12,
2013) (“Douglas cannot rely on a grievance filed by another inmate to comply with the exhaustion requirement.”);
Castillon v. Corrections Corp. of America, Inc., 2013 WL 2446480, *11 (D.Idaho, June 4, 2013) (holding vicarious
exhaustion unavailable in a non-class action); Boyer v. Taylor, 2013 WL 1332443, *4 & n.6 (D.Del., Mar. 30, 2013)
(holding plaintiff could not rely on co-plaintiff’s exhaustion); Templeton v. Anderson, 2013 WL 1222111, *4
(D.Colo., Mar. 25, 2013) (holding prisoners who have exhausted cannot “represent the[] interests” of those who
have not); Heng v. Donald, 2011 WL 925726, *5 (M.D.Ga., Jan. 25, 2011), report and recommendation adopted as
modified, 2011 WL 867556 (M.D.Ga., Mar. 14, 2011); Ambrose v. Walker, 2010 WL 2653342, *4 (S.D.Ill., July 1,
2010); Shariff v. Coombe, 655 F.Supp.2d 274, 286 (S.D.N.Y. 2009); Doss v. Gilkey, 649 F.Supp.2d 905, 913
(S.D.Ill. 2009) (holding imprisoned husband’s grievance did not exhaust incarcerated wife’s complaint about
inability to correspond with him); Davis v. Shaw, 2009 WL 1490609, *3 (S.D.N.Y., May 20, 2009); Johnson v.
Killian, 2009 WL 1066248, *5 n.1 (S.D.N.Y., Apr. 21, 2009), amended on denial of reconsideration, 2009 WL
1787724 (S.D.N.Y., June 23, 2009); King v. Caruso, 2008 WL 4534076, *1 (W.D.Mich., Sept. 30, 2008); Newman
v. Montana Dept. of Corrections, 2007 WL 2461937, *3 & n.2 (D.Mont., Aug. 27, 2007); Cooey v. Taft, 2007 WL
1202718, *2 (S.D.Ohio, Apr. 23, 2007), stay of execution denied, 484 F.3d 424 (6th Cir. 2007); Carvajal v. Lappin,

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consolidate several prisoners’ grievances and issue a joint response, they cannot thereafter obtain
dismissal of individual grievants’ claims on the ground that a particular grievant did not initially
raise all the issues in the consolidated grievance.520
1. What If the Prisoner Wins the Grievance?
Common sense and a large body of case law outside the Second Circuit hold that if the
prisoner wins the grievance at an early stage (either by favorable decision or simply by getting
the relief sought), it’s over and the prisoner has exhausted.521 This is true a fortiori where prison
2007 WL 869011, *5 (N.D.Tex., Mar. 22, 2007); see § IV.K on exhaustion issues in class actions. Information from
other prisoners’ grievances may, however, be probative of relevant facts such as whether the remedy is available for
particular problems or under particular circumstances. See Ellis v. Schwarzenegger, 2010 WL 715721, *3
(E.D.Cal., Feb. 26, 2010).
One recent decision reached the opposite conclusion, applying the concept of vicarious exhaustion, also
known as the single-filing rule, to hold that if a single plaintiff in multi-plaintiff litigation has exhausted, that
exhaustion suffices for the other plaintiffs as well, regardless of whether class certification has been granted or even
sought. Jarboe v. Maryland Dept. of Public Safety and Correctional Services, 2013 WL 1010357, *11-15 (D.Md.,
Mar. 13, 2013).
519
At least one prison system permits “group grievances” which may be filed by one prisoner on behalf of himself
and others, subject to certain requirements. See Shirley v. Tuggle, 331 Fed.Appx. 484, 485 (9th Cir. 2009)
(defendants failed to establish non-exhaustion where it appeared grievance had been treated as a group grievance);
Mitchell v. Cate, 2013 WL 635964, *7-10 (E.D.Cal., Feb. 20, 2013) (holding plaintiff sufficiently showed he
exhausted as part of a group grievance), report and recommendation adopted, 2013 WL 1625390 (E.D.Cal., Apr.
15, 2013); Smith v. Tuggles, 2007 WL 685836, *3 (E.D.Cal., Mar. 5, 2007) (dismissing case where group grievance
exhaustion was claimed, because grievance omitted required information on inmates’ housing locations), report and
recommendation adopted, 2007 WL 1544712 (E.D.Cal., May 25, 2007); see also Ellis v. U.S., 2009 WL 440390, *7
n.5 (W.D.Pa., Feb. 23, 2009) (plaintiff could not rely on provision for exhaustion by “recognized inmate
organization” where the organization was not recognized); Clark v. Sherman, 2009 WL 57085, *7 (W.D.Pa., Jan. 8,
2009) (plaintiff could not rely on prior exhaustion by “recognized inmate organization” where the prior exhaustion
did not comply with grievance rules for such exhaustion), report and recommendation adopted, 2009 WL 137138
(W.D.Pa., Jan. 20, 2009).
520
Pugh v. Goord, 571 F.Supp.2d 477, 491-93 (S.D.N.Y. 2008).
521
Patterson v. Stanley, ___ Fed.Appx. ____, 2013 WL 6044128, *2 (5th Cir. 2013) (unpublished) (holding plaintiff
whose disciplinary conviction was reversed at Step 1, with no indication he could have gotten more relief at Step 2,
had exhausted); Toomer v. BCDC, 537 Fed.Appx. 204, 206 (4th Cir. 2013) (“After receiving a favorable outcome
on the merits of his grievance at a lower step in the process, Toomer was not obligated to pursue an administrative
appeal to Step III in order to exhaust his administrative remedies.”); Diaz v. Palakovich, 2011 WL 4867549, *4 (3rd
Cir., Oct. 14, 2011) (holding there is no need to appeal outcomes of “grievance resolved” or “uphold inmate”);
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (holding “a prisoner need not press on to exhaust further levels
of review once he has either received all ‘available’ remedies at an intermediate level of review or been reliably
informed by an administrator that no remedies are available”); Ross v. County of Bernalillo, 365 F.3d 1181, 1186-87
(10th Cir. 2004) (holding a prisoner who fell in the shower and then filed a Pre-Grievance Request Form asking that
a mat be placed in the shower had exhausted when the prison put a mat in the shower, since no further relief was
available); Hubbard v. Hougland, 2014 WL 530238, *6 (E.D.Cal., Feb. 7, 2014) (holding prisoner who grieved
requesting to see the doctor and have his ribs x-rayed, and obtained both forms of relief, need not have appealed);
Jackson v. Warren, 2014 WL 169882, *2 (E.D.Ark., Jan. 15, 2014) (stating a requirement to appeal favorable
decisions “to be counterintuitive given the objectives of the administrative exhaustion requirement”); Buck v.
Hartman, 2013 WL 3421891, *3-4 (S.D.Ill., July 8, 2013) (holding that a prisoner who received the medical
attention he sought need not continue the grievance process since damages were not available); Martin v. Cook
County Dept. of Corrections, 2013 WL 1181491, *5 (N.D.Ill., Mar. 20, 2013) (holding that a prisoner who filed a
grievance seeking dental care and receive a response stating he had been referred for dental services in the near
future need not continue the grievance process); Johnson v. Cantrall, 2012 WL 5398473, *1 (W.D.Okla., Sept. 17,
2012) (holding plaintiff who obtained medical and psychiatric treatment, an internal investigation, and instruction

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officials refuse to process a grievance or appeal on the ground that the prisoner has already
received the relief sought.522 Similarly, if a prisoner grieves and receives a favorable decision,
but prison staff then ignore or fail to carry out the decision, the prisoner need not grieve the
noncompliance, since otherwise “prison officials could keep prisoners out of court indefinitely
by saying ‘yes’ to their grievances and ‘no’ in practice”523—though decisions are not unanimous
on this point.524
of the officer in how to conduct a pat search after a preliminary complaint need not have filed a grievance where
defendants failed to show any further relief was available; the policy excludes damages and discipline of staff, and
he had already been transferred), report and recommendation adopted, 2012 WL 5398469 (W.D.Okla., Nov. 2,
2012); Alcala v. Martel, 2011 WL 2671507, *6 (E.D.Cal., July 6, 2011) (holding a prisoner who sought medical
care, and got it after filing an informal grievance, was not shown to have further remedies available), report and
recommendation adopted, 2011 WL 3319712 (E.D.Cal., July 29, 2011); Davis v. Correctional Medical Services,
760 F.Supp.2d 469, 477 (D.Del. 2011), aff’d, 436 Fed.Appx. 52 (3d Cir. 2011); see Appendix A for additional
authority on this point. Contra, Beard v. Bureau of Prisons, 2013 WL 5951160, *5 (N.D.Tex., Nov. 7, 2013)
(dismissing for non-exhaustion where grievance response said “Resolved” and recounted that plaintiff had received
medication that was helping with his medical problem, and plaintiff did not appeal further); Loyde v. Shelby
County, 2013 WL 5604374, *5 (W.D.Tenn., Oct. 11, 2013) (holding prisoner who grieved denial of medication
during first days of confinement, and received a response noting his acknowledgement that by then he was receiving
it, did not exhaust because he did not appeal further); Logan v. Emerson, 2012 WL 3292829, *4 (N.D.Ill., Aug. 9,
2012) (holding receipt of medical care did not absolve plaintiff from appealing his grievance about denial of medical
care); see also cases cited in nn. 526-527, below. Cf. Hollis v. York, 2012 WL 5207583, *4 (E.D.Cal., Oct. 22,
2012) (holding grievance that plaintiff withdrew because he expected the problem to be resolved did not exhaust),
report and recommendation adopted, 2013 WL 1278419 (E.D.Cal., Mar. 26, 2013).
522
McIver v. MCI-H (DOC) CMS Inc., 2010 WL 457547, *3 (D.Md., Feb. 3, 2010) (declining to dismiss where
grievance had been declared moot); Brooks v. Frank, 2009 WL 1227880, *4 (D.Hawai'i, May 1, 2009) (grievance
officials had declared the matter moot; “If prison officials expect a prisoner to pursue all steps of the grievance
process, and intend to rely on a prisoner's failure to do so as a defense in court, they should not inform prisoners that
they have no recourse to the grievance process when denying the grievances and appeals.”); James v. Davis, 2006
WL 2171082, *17 (D.S.C., July 31, 2006) (declining to dismiss for non-exhaustion where prison officials returned
grievances as “unprocessed” and stated that the actions he requested had been accomplished, suggesting no need to
appeal); Elkins v. Schrubbe, 2006 WL 1663779, *55 (E.D.Wis., June 15, 2006) (holding prisoner had no remaining
“available” remedy where grievances were rejected as moot because the issue had already been resolved in his favor
in that he received the requested relief).
523
Sulton v. Wright, 265 F.Supp.2d 292, 298-99 (S.D.N.Y. 2003); accord, Harvey v. Jordan, 605 F.3d 681, 685 (9th
Cir. 2010) (citing Abney); Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004); Hawthorne v. Mendoza-Power,
2011 WL 4375286, *3 (E.D.Cal., Sept. 19, 2011) (following Harvey as to recurrence of problems resolved in earlier
grievance), report and recommendation adopted, 2011 WL 4963146 (E.D.Cal., Oct. 18, 2011); Vitasek v. Maricopa
County Sheriff's Office, 2011 WL 1253263, *5-6 (D.Ariz., Apr. 4, 2011) (similar to Abney); Nesbitt v. Villanueva,
2011 WL 737617, *4 (N.D.Ill., Feb. 24, 2011) (ruling on facts similar to Abney’s); Manning v. Dolce, 2010 WL
3515718, *3-4 (E.D.Mich., July 12, 2010) (prisoner who had won his grievance about dietary restrictions need not
exhaust again when that grievance resolution was disobeyed), report and recommendation adopted, 2010 WL
3515715 (E.D.Mich., Sept. 8, 2010); Brookins v. McDonald, 2010 WL 2572949, *3-4 (E.D.Cal., June 22, 2010)
(prisoner who prevailed at an early stage on request for a prosthetic leg was not required to file a new grievance a
year later when fittings were discontinued), report and recommendation adopted, 2010 WL 3212862 (E.D.Cal.,
Aug. 12, 2010); Beckhum v. Hirsch, 2010 WL 582095, *9-10 (D.Ariz., Feb. 17, 2010) (citing Abney); Collins v.
Mendoza-Powers, 2007 WL 2900494, *5 (E.D.Cal., Oct. 1, 2007) (holding prisoner whose request for surgery was
granted at an early stage but the surgery was not performed for 14 months had exhausted); Lay v. Hall, 2007 WL
137155, *6 (E.D.Cal., Jan. 17, 2007) (holding prisoner whose grievance decision said he would receive the surgery
he sought reasonably believed no further remedy was available), report and recommendation adopted, 2007 WL
704560 (E.D.Cal., Mar. 6, 2007); Kaplan v. New York State Dept. of Correctional Services, 2000 WL 959728, *3
(S.D.N.Y., July 10, 2000); McGrath v. Johnson, 67 F.Supp.2d 499, 510 (E.D.Pa. 1999), aff’d, 35 Fed.Appx. 357,
2002 WL 1271713 (3d Cir. 2002); see Allen v. Reynolds, 2011 WL 2174427, *6-7 (D.Colo., Apr. 28, 2011)
(holding plaintiff exhausted available remedies where his grievance about noncompliance with earlier decision was

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Unfortunately this seemingly simple proposition has led to complications. Some courts
have held that an administrative decision does not obviate the need for an appeal unless it is so
completely favorable that no further relief is possible,525 and others have said that a plaintiff who
rejected as duplicative), report and recommendation adopted, 2011 WL 2174424 (D.Colo., June 3, 2011); Chatman
v. Felker, 2011 WL 445685, *6 (E.D.Cal., Feb. 3, 2011) (holding rejection of second grievance as improper, after
first grievance favorable decision was not implemented, meant remedies were not available), report and
recommendation adopted, 2011 WL 1118702 (E.D.Cal., Mar. 28, 2011); Hoskins v. Zank, 2008 WL 283053, *6
(E.D.Wis., Jan. 31, 2008) (declining to dismiss where prisoner received a favorable decision, then appealed late
when it wasn’t implemented).
524
See Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002) (observing that “[r]equiring a prisoner who has won his
grievance in principle to file another grievance to win in fact,” risking the prospect of a “never-ending cycle of
grievances,” “could not be tolerated”; but accepting prison officials’ claim that the prisoner could have taken a
further appeal to the Director if the situation had not been resolved after 30 days); Gore v. Bureau of Prisons, 2014
WL 533271, *2 (S.D.Ind., Feb. 7, 2014) (“If the BOP approved Gore's surgery and medication and he has not
received it, he is still required to attempt to resolve this denial of care through the administrative remedy process
prior to filing a complaint.”); Wardlow v. Neely, 2012 WL 2051102, *2 (W.D.N.C., June 7, 2012) (holding that a
prisoner who won a grievance decision promising surgery but did not get it should have filed another grievance),
aff’d, 482 Fed.Appx. 863 (4th Cir. 2012) (per curiam); McCullough v. Federal Bureau of Prisons, 2012 WL 718845,
*3-4 (E.D.Cal., Mar. 5, 2012) (holding that a disciplinary appeal resulting in expungement of the conviction did not
exhaust a complaint that the expungement was not carried out; plaintiff should have filed a grievance); Lewis v.
Allen, 2011 WL 7121451, *5 (D.Nev., Dec. 16, 2011) (prisoner should have filed another grievance where favorable
decision was not carried out), report and recommendation adopted, 2012 WL 275263 (D.Nev., Jan. 31, 2012),
appeal dismissed, No. 12-15325 (9th Cir., June 20, 2012); Vasquez v. Oklahoma ex rel. Dept. of Corrections, 2011
WL 4588902, *4 (W.D.Okla., Aug. 30, 2011) (holding plaintiff did not exhaust despite his claim that his complaints
were responded to for a while and then the failure to provide medication resumed; grievance rules prescribed filing
another grievance), report and recommendation adopted, 2011 WL 4584782 (W.D.Okla., Sept. 30, 2011); Bonds v.
Piper, 2007 WL 3038036, *3-4 (E.D.Mich., Oct. 18, 2007) (holding that prisoner was required to grieve a failure to
obey an earlier grievance resolution). A particularly absurd and hyper-technical result appears in Stanfield v.
Callaway, 2010 WL 234871 (E.D.Cal., Jan. 14, 2010), in which the plaintiff obtained relief through an informal
appeal, then brought suit when the decision was ignored. The court said:
Had Plaintiff immediately filed suit after his grievance was granted, Plaintiff may have a valid
claim for exhaustion. However, Plaintiff waited for the relief to be effectuated and discovered that
the nurses were ignoring the doctor's order he received when his informal grievance was granted.
Thus, it was apparent to Plaintiff that further relief remained available because he could have
pursued higher levels of appeal and notified higher prison administrators of his complaint.
2010 WL 234871, *5.
525
Ross v. County of Bernalillo, 365 F.3d 1181, 1186-87 (10th Cir. 2004) (“When there is no possibility of any
further relief, the prisoner’s duty to exhaust available administrative remedies is complete.”) (emphasis supplied);
see Rozenberg v. Knight, 542 Fed.Appx. 711, 713 (10th Cir. 2013) (holding prisoner removed from job he
complained about by Inspector General did not thereby exhaust because he did not get relief on his grievance
requests seeking reprimand of staff and reform of kitchen supervision); Johnson v. Gregoire, 2008 WL 5156428, *910 (W.D.Wash., Dec. 9, 2008) (holding plaintiff who did not appeal did not exhaust where his substantive problem
was resolved but he did not receive relief on his complaint that a particular employee should have a better attitude);
Coleman v. Los Angeles, 2008 WL 4449598, *3 (C.D.Cal., Sept. 30, 2008) (plaintiff who sought two hours a week
in the law library but obtained only a vague promise of some additional time should have continued the process);
Green v. Cahal, 2004 WL 1078988, *2-3 (D.Or., May 11, 2004) (holding that a prisoner whose complaint of
medical care delay resulted in a decision that treatment was forthcoming should nonetheless have appealed); Rivera
v. Pataki, 2003 WL 21511939, *7 (S.D.N.Y., July 1, 2003) (noting it “made sense” for a prisoner to appeal where an
intermediate decision granted him some relief but did not change the challenged policy); see also Johnson v. Thyng,
369 Fed.Appx. 144, 148-49 (1st Cir. 2010) (unpublished) (holding prisoner who sought protective custody did not
exhaust where his assailant was transferred as a result of his initial grievance, he did not appeal, but he continued to
complain that other prisoners were threatening him); Galindo v. State of Cal., 2005 WL 3031100, *3 (E.D.Cal.,
Nov. 9, 2005) (holding that a complaint that was “granted” by referring it for investigation, which did not
substantiate the complaint, did not exhaust where the plaintiff did not seek to appeal). In Ransom v. Sheehy, 2008

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seeks judicial relief not obtained in the grievance process—including damages, which are almost
never available administratively—must have followed the process to the end.526 Indeed, some
courts have virtually turned the question into a tautology, stating that a plaintiff who is satisfied
with an intermediate grievance result has no claim, and the fact of filing litigation shows that a
plaintiff who did not take the process to the end did not exhaust.527
WL 5000140, *4 (S.D.Cal., Nov. 21, 2008), the court held that even though the plaintiff obtained all the relief he
sought, he should have appealed further to get a ruling on whether the defendants have violated his constitutional
right to court access—contrary to decisions that hold that prisoners do not have to exhaust legal theories. See n. 562,
below.
526
See King v. Iowa Dept. of Corrections, 598 F.3d 1051, 1053 (8th Cir. 2010) (where plaintiff received some relief
in response to his workplace conditions complaint, but then sued for damages and for additional medical care, he
had not exhausted), cert. denied, 131 S.Ct. 499 (2010); Salley v. PA Dept. of Corrections, 2006 WL 1410825, *4
(3d Cir., May 23, 2006) (unpublished) (holding prisoner who complained he was denied access to his legal mail,
grieved, and was told the problem was corrected had not exhausted when he sued for damages); Williamson v.
Wexford Health Sources, Inc., 131 Fed.Appx. 888, 890 (3d Cir. 2005) (unpublished) (holding plaintiff who grieved
to get his medication, and got his medication, failed to exhaust because he didn’t appeal); O'Neal v. Dillard, 2010
WL 2735625, *2 (C.D.Cal., May 6, 2010) (similar to Covert), report and recommendation adopted, 2010 WL
2735627 (C.D.Cal., July 9, 2010); Covert v. Graham, 2010 WL 1292756, *9 (N.D.Cal., Mar. 31, 2010) (plaintiff
who gets relief at an intermediate level but still wants damages must continue the administrative process to exhaust).
Contra, Rosa v. Littles, 336 Fed.Appx. 424, 429 (5th Cir. 2009) (holding prisoner who got available relief at first
stage need not further pursue damages where the grievance system did not provide them); Fields v. Masiel, 2012
WL 6692017, *1-2 (E.D.Cal., Dec. 21, 2012) (noting defendants conceded damages were not available through the
grievance process); Johnson v. Cantrall, 2012 WL 5398473, *1 (W.D.Okla., Sept. 17, 2012) (holding where
damages were not available and defendants did not identity any other remedy available in grievance process,
plaintiff did not fail to exhaust), report and recommendation adopted, 2012 WL 5398469 (W.D.Okla., Nov. 2,
2012); Franklin v. Ward, 2012 WL 5499836, *4 (D.S.C., Sept. 11, 2012) (holding acceptance of first level
grievance response without appeal exhausted where plaintiff received the relief sought; he could pursue damages in
subsequent lawsuit), report and recommendation adopted, 2012 WL 5499830 (D.S.C., Nov. 13, 2012); Taylor v.
Miller, 2010 WL 1292756, *3 (E.D.Ky., Sept. 22, 2010) (holding “if the inmate has received the remedy he
requested through prison administrative procedures, he is not foreclosed from seeking money damages in federal
court”). Most courts hold that when prisoners do complete the grievance process, they need not specifically request
damages. See n. 706, below.
527
See Chioniere v. Citchen, 2010 WL 1064357, *2 (E.D.Mich., Mar. 22, 2010) (“To the extent that Plaintiff is
satisfied with the resolution of any of his grievances, his claims are moot. To the extent that he seeks further relief,
he is required to exhaust the available administrative remedies.”); accord, August v. Caruso, 2013 WL 5291577, *5
(E.D.Mich., Sept. 19, 2013) (dismissing for non-exhaustion where plaintiff grieved firing from job and was
reinstated with backpay, but did not further appeal; “If August was somehow dissatisfied with the resolution of this
grievance, she was required by the Policy to pursue the grievance through Step III.”), report and recommendation
adopted, 2013 WL 6816472 (E.D.Mich., Dec. 24, 2013); Williams v. Hull, 2009 WL 1586832, *7 (W.D.Pa., June 4,
2009) (“Because there is no futility excepton to the PLRA’s exhaustion requirement, Plaintiff is required to exhaust
through all levels of the administrative process as to this issue even though he arguably won at the initial level of
review.” Prisoner who complained about interception of legal mail, and obtained his mail and an instruction to staff
not to do it again, did not exhaust because he did not appeal.); Levy v. Washington State Dept. of Corrections, 2009
WL 1107698, *7-8 (W.D.Wash,. Apr. 23, 2009) (holding that the fact plaintiff wished to bring legal action showed
that he was not satisfied with the relief he had obtained and should therefore have continued the grievance process to
seek discipline of the staff involved); Fagans v. Nooth, 2009 WL 1067047, *2 (D.Or., Apr. 17, 2009) (“Plaintiff
[who obtained surgery midway through the grievance process] can not have it both ways. If he received the relief
sought through the grievance process, he has no basis for a claim in this proceeding. If plaintiff's claims are based on
the same matters he grieved, he failed to exhaust the grievance process.”); Feliz v. Taylor, 2000 WL 1923506, *2
(E.D.Mich., Dec. 29, 2000) (“A prisoner’s alleged satisfaction with a Step I grievance does not constitute exhaustion
of administrative remedies and does not form the predicate basis for a civil suit. To the contrary, if a prisoner is
satisfied with the result of a Step I grievance, it can be presumed that the matter is settled and litigation is
avoided.”).

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The Ninth Circuit has moved in the opposite direction from these latter decisions. After
initially holding that a prisoner need not exhaust further levels of review after receiving all
“available” remedies at an intermediate stage or having been “reliably informed by an
administrator that no remedies are available,”528 it has now broadened its view of exhaustion
considerably, and in contradiction to its prior holding and that of other courts:
An inmate has no obligation to appeal from a grant of relief, or a partial grant that
satisfies him, in order to exhaust his administrative remedies. . . .
That [the plaintiff] initially requested alternative forms of relief does not change
our analysis. Once the prison officials purported to grant relief with which he was
satisfied, his exhaustion obligation ended. His complaint had been resolved, or so
he was led to believe, and he was not required to appeal the favorable decision.
Were we to reach the contrary conclusion, any prisoner who expressed his
willingness to accept more than one form of relief—demonstrating a flexibility
that increases the likelihood of an outcome satisfactory to both the prisoner and
the prison officials—would have no recourse when prison officials purported to

This view might have some merit in an injunctive case. It has none if the claim is for damages for pain,
suffering, disability, etc., up to the point the problem was resolved, unless the grievance system provided damages
as a remedy. See also Carter v. Rojas, 2009 WL 256110, *3 (E.D.Cal., Feb. 4, 2009) (holding that plaintiff who did
not take his final appeal because his problem had been solved did not exhaust, since he had also asked for a detailed
description of the offending employee’s conduct, and he could also have received an apology or a change in rules
and regulations), report and recommendation adopted, 2009 WL 813465 (E.D.Cal., Mar. 27, 2009).
528
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Brown relied for this proposition both on Ross v. County of
Bernalillo, cited above, and Abney v. McGinnis, discussed below. See Buckley v. Ritola, 2013 WL 4012784, *2
(E.D.Cal., Aug. 6, 2013) (rejecting “tentative conclusory statement” that some further relief “could” have been
granted”); Horonzy v. Correctional Corp. of America, 2013 WL 3148674, *6-7 (D.Idaho, June 19, 2013) (holding
defendants did not meet their burden to show that further remedies were available after plaintiff’s request for
investigation was granted); Aubert v. Elijah, 2010 WL 3341915, *5-6 (E.D.Cal., Aug. 24, 2010) (prisoner who was
told his grievance was partly granted, his complaint had been investigated, and no more information would be
provided could reasonably conclude that no further remedies were available), report and recommendation adopted,
2010 WL 3825609 (E.D.Cal., Sept. 28, 2010); Chism v. Woodford, 2009 WL 734687, *2 (N.D.Cal., Mar. 18, 2009)
(where prisoner who was told by the grievance reviewer to consider his appeal exhausted, he was reliably informed
that no more remedies were available, and had exhausted); Schoenlein v. Halawa Correctional Facility, 2008 WL
4761791, *5 n.10 (D.Haw., Oct. 29, 2008) (grievance responses that said the prison was addressing the problem
“effectively resolved Plaintiffs’ complaints”); see also Johnson v. Cantrall, 2012 WL 5398473, *1 (W.D.Okla., Sept.
17, 2012) (declining to dismiss for non-exhaustion where defendants did not identify any remedy available to
plaintiff, since the grievance system did not provide for damages, the grievance policy excluded staff discipline as a
remedy, the prisoner had already been transferred, and officials had authorized medical and psychiatric treatment,
underttaken an internal investigation, and instructed the officer in how to conduct a pat search), report and
recommendation adopted, 2012 WL 5398469 (W.D.Okla., Nov. 2, 2012); see Appendix A for additional authority
on this point. Compare Williams v. Kuenzi, 2007 WL 1771479, *3-4 (N.D.Cal., June 18, 2007) (holding a prisoner
who was twice assured in grievance responses that he would be seen by a dentist, but did not appeal, failed to
exhaust, since he could have sought further relief—not specified by the court—by appealing); Rodriguez v. Ortiz,
2007 WL 1544770, *1 (E.D.Cal., May 25, 2007) (holding plaintiff who complained about being housed in a cell
with blood and fecal matter left by an AIDS patient did not exhaust when he obtained only a medical appointment in
his first stage grievance). In Glenn v. Thompson, 2008 WL 4107800, *6-7, 9 (E.D.Tex., Sept. 3, 2008), the court
cited unpublished authority to conclude that the Fifth Circuit rejects the holding of Brown v. Valoff, cited above, and
requires a prisoner who is informed that his complaint will be investigated to complete the grievance process
anyway.

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grant one of those alternative forms of relief, but then failed to implement their
decision.529
Even under this permissive standard, the question remains whether a seemingly favorable
grievance decision actually has decided the issue the prisoner wishes to litigate; if not, the
prisoner must continue rather than abandon the process.530
The Second Circuit has taken a troublesome position on this point. Initially, it held that a
prisoner who received repeated favorable non-final grievance decisions, which were then not
implemented, had exhausted.531 It rejected as “impracticable” and “counter-intuitive” the State’s
529

Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). In Harvey, as noted, the grant of relief was not
implemented, but the decision is not in terms limited to those circumstances; the Harvey court’s holding states a
general standard for assessing whether exhaustion has been completed. Accord, Gastile v. Virga, 2013 WL
3731733, *7 (E.D.Cal., July 12, 2013) (informal complaint challenging double celling policy which elicited
statement “Your concerns are duly noted” exhausted challenge to policy); Taylor v. Clark, 2010 WL 3069243, *6
(E.D.Cal., Aug. 4, 2010) (partial grant of relief sufficed to exhaust; citing Harvey), report and recommendation
adopted, 2010 WL 5393533 (E.D.Cal., Dec. 22, 2010); Jones v. Pleasant Valley State Prison, 2010 WL 2197655, *4
(E.D.Cal., May 28, 2010) (same), report and recommendation adopted, 2010 WL 2736874 (E.D.Cal., July 12,
2010). Cf. Benitez v. Arpaio, 2013 WL 4478901, *4 (D.Ariz., Aug. 21, 2013) (holding a grievance that appeared
resolved did not exhaust where the plaintiff declared it not resolved by filing another grievance, but then did not
appeal).
Some district courts have missed or resisted Harvey’s holding. See Winffel v. Pomazal, 2013 WL 178188,
*4 (E.D.Cal., Jan. 16, 2013) (refusing to apply Harvey to partial grant of relief requested); Romero v. Alonzo, 2012
WL 3689554, *4 (C.D.Cal., June 11, 2012) (refusing to apply Harvey holding where plaintiff was not satisfied in all
respects with mid-level grievance decision), report and recommendation adopted, 2012 WL 3689519 (C.D.Cal.,
Aug. 24, 2012); Cunningham v. Ramos, 2011 WL 3419503, *3-4 (N.D.Cal., Aug. 4, 2011) (holding that decision
granting confidential inquiry into allegations of misconduct, ultimately resolved against those allegations, did not
exhaust under Harvey because it did not grant relief on the merits); Stansbury v. U.S. Government, 2011 WL
2553381, *3 (E.D.Cal., June 27, 2011) (“If Plaintiff could choose not to exhaust administrative remedies simply by
declaring he was satisfied at an intermediate level, such an application would render the exhaustion requirement of
the PLRA ‘into a largely useless appendage’ and frustrate the prison's administrative review process.”); Walker v.
Whitten, 2011 WL 587556, *3-4 (E.D.Cal., Feb. 9, 2011) (prisoner who withdrew his grievance because he was
satisfied with informal resolution did not exhaust; court analogizes to voluntary dismissal of lawsuit) (dictum),
report and recommendation adopted as modified, 2011 WL 1466882 (E.D.Cal., Apr. 18, 2011). Cf. Trevino v.
Martel, 2013 WL 1283154, *3 (N.D.Cal., Mar. 26, 2013) (prisoner who obtained some relief, but not relief he had
asked for, did not exhaust).
530
Jackson v. Pletcher, 2013 WL 3354457, *6 (E.D.Cal., July 3, 2013) (holding grievance seeking a medical
specialist appointment did not exhaust a complaint about what the specialist subsequently did), report and
recommendation adopted, 2013 WL 5946174 (E.D.Cal., Nov. 6, 2013); Bell v. Peery, 2012 WL 6562443, *6
(D.Nev., Nov. 28, 2012) (holding plaintiff did not exhaust where complaint asserted the same issues that were
supposedly resolved in his grievances), report and recommendation adopted, 2012 WL 6562222 (D.Nev., Dec. 10,
2012); Coles v. Cate, 2011 WL 6260372, *3, 5 (E.D.Cal., Dec. 15, 2011) (holding response that “[a]lthough
conversion is not possible, you may continue to study and worship Judaism without fear of denial of your religious
rights” did not exhaust plaintiff’s claim concerning conversion, or his other claims about specific infringements on
religious practice); see Bey v. Napel, 2013 WL 5146504, *4 (W.D.Mich., Sept. 13, 2013) (holding prisoner who
sought protective custody and brought suit about failure to provide it did not complete exhaustion when he received
a decision removing him from general population and then transferring him to another prison).
531
Abney v. McGinnis, 380 F.3d 663, 666, 669 (2d Cir. 2004); see Antrobus v. Department of Corrections, 2009
WL 773277, *4 (S.D.N.Y., Mar. 24, 2009) (where a prisoner receives a favorable decision but there is no procedure
governing its implementation, the prisoner has exhausted); Shaheen v. Hollins, 2005 WL 2179400, *4 (N.D.N.Y.,
Sept. 7, 2005) (holding that a prisoner who received a review of protective custody, but was not removed from it as
he requested, “reasonably may not have believed that an appeal . . . was necessary due to the partially favorable
decision from the Superintendent”), report and recommendation adopted, 2005 WL 2334387 (N.D.N.Y., Sept. 23,
2005). But see Pritchett v. Portuondo, 2005 WL 2179398, *3 (N.D.N.Y., Sept. 9, 2005) (holding prisoners who

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argument that prisoners should file appeals of favorable decisions just in case they are not
implemented.532 Later, however, it held that a prisoner who had used the prison’s informal
procedure to seek a cell change to avoid assault, and who had received the cell change (though
only after being assaulted), had not exhausted because he had not gone on to pursue the formal
grievance procedure, since that process could have granted further relief such as changes in
policy or discipline of staff.533 It is unclear why the same was not true of Abney, where the
prisoner might have obtained such relief by appealing his favorable grievance decision. The
court later reaffirmed this reasoning, holding that a prisoner who prevailed informally was
required to exhaust the grievance process because of “the larger interests at stake,” i.e., that filing
a grievance “still would have allowed prison officials to reconsider their policies and discipline
any officer who had failed to follow existing policies.”534
These decisions can be distinguished from other “favorable decision” cases in that these
prisoners obtained the relief they sought without ever engaging the formal grievance process.
However, the courts’ reasoning does not turn on that distinction, but seems instead to support an
unlimited requirement, one with no basis in the grievance policies the prisoners relied upon, of
appealing favorable administrative decisions to a level at which policies are reconsidered—
presumably the highest level. These decisions do not acknowledge the same court’s prior
rejection as “impracticable” and “counter-intuitive” of the argument that prisoners should appeal
favorable decisions just to be safe.535 The notion that prisoners should pursue further
administrative proceedings when they have already obtained the relief they sought, on the ground
that higher officials might take broader action addressing “larger interests,” seems equally
impracticable and counter-intuitive. The Seventh Circuit has acknowledged this point, holding
that a prisoner who sought and obtained a transfer out of a dangerous cell had exhausted even
though he didn’t appeal, and stating that “we do not think it [the prisoner’s] responsibility to
notify persons higher in the chain when this notification would be solely for the benefit of the
prison administration.”536 Further, the apparent holding of the Second Circuit decisions is

successfully grieved denial of programs and received back pay did not exhaust as to the amount of back pay because
they did not separately grieve that issue), report and recommendation adopted, 2005 WL 2437024 (N.D.N.Y., Sept.
30, 2005).
532
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“Once Abney received a favorable ruling from the
Superintendent on his IGP grievances, no further administrative proceedings were available to propel him out of
stasis.”); see also Christian v. Goord, 2006 WL 1459805, *5 (N.D.N.Y., May 22, 2006) (holding that where a
prisoner received a sufficiently favorable decision he was not obliged to appeal and had exhausted, even though he
did file an appeal and then brought suit without waiting for a decision). In Abney, the failure to carry out the
favorable grievance decisions occurred at a point where it was too late to appeal on that ground. Compare Carr v.
Kaminsky, 2010 WL 2162597, *3 (N.D.Ind., May 26, 2010) (where plaintiff could have appealed the failure to
implement, his failure to do so merited dismissal for non-exhaustion).
533
Braham v. Clancy, 425 F.3d 177, 182-83 (2d Cir. 2005). The court did acknowledge that having received the cell
change might be the sort of “special circumstance” that would justify an uncounselled prisoner in thinking he had
satisfied the exhaustion requirement. Id. at 182.
534
Ruggiero v. County of Orange, 467 F.3d 170, 178-79 (2d Cir. 2006).
535
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004). In Braham v. Clancy, the court characterized Abney as a
case where “a disposition of a grievance provided the relief requested but was never implemented,” and dismissed it
as inapposite without further discussion. 425 F.3d at 182-83.
536
Thornton v. Snyder, 428 F.3d 690, 696-97 (7th Cir. 2005), cert. denied, 547 U.S. 1192 (2006). The court further
noted that appealing a favorable result risks reversal, which in turn “would tend to increase, not decrease, the
number of inmate suits,” contrary to the PLRA’s policy “to reduce the quantity and improve the quality of prisoner
suits.” Id. (citation omitted). It concluded that arguing that the plaintiff “should have appealed to higher channels

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dangerously open-ended. Since no matter what relief the prisoner obtains, there will always be
something else prison officials could do,537 it amounts to a holding that prisoners should always
appeal favorable decisions to preserve their right to sue, notwithstanding its own prior rejection
of that very point.
One court has held that if a grievance is resolved favorably, the only judicial relief that is
available is damages for injuries pre-dating the resolution.538 That categorical holding goes too
far, since (as in Abney), a favorable grievance decision may not be implemented; it is not
apparent why the prisoner could not receive damages for a continuing violation of rights. Or, for
example, a prisoner seeking to end a prison policy or practice prospectively might win a
grievance relieving him or her on narrow grounds from the policy’s immediate application, but
leaving the policy generally in place and the prisoner at risk of future application of it. Under
those circumstances, the prisoner should be entitled to pursue injunctive relief if there is
sufficient risk of recurrence to confer standing,539 and damages both for injuries suffered before
the grievance resolution and for any actual recurrence of the challenged conduct afterwards.
2. Specificity of Grievances
The Supreme Court has said: “The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that defines the boundaries of proper exhaustion.”540
Prison rules that require information that the prisoner cannot get may present a question of
constitutionality.541
At present, it appears that most prison grievance systems do not require great specificity–
though that may change in light of Jones v. Bock as prison officials realize that making their
systems more demanding may make it easier to get prisoners’ lawsuits dismissed.542 The New
after receiving the relief he requested in his grievances is not only counter-intuitive, but it is not required by the
PLRA. . . .” Id.
537
See Carter v. Rojas, 2009 WL 256110, *3 (E.D.Cal., Feb. 4, 2009) (holding that plaintiff who did not take his
final appeal because his problem had been solved did not exhaust, since he had also asked for a detailed description
of the offending employee’s conduct, and he could also have received an apology or a change in rules and
regulations), report and recommendation adopted, 2009 WL 813465 (E.D.Cal., Mar. 27, 2009); see also cases cited
in nn. 526-527, above.
538
Dixon v. Goord, 224 F.Supp.2d 739, 750-51 (S.D.N.Y. 2002).
539
See, e.g., Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302 (1979) (holding that plaintiff has
standing to challenge a criminal statute if the fear of prosecution is “not imaginary or wholly speculative”).
540
Jones v. Bock, 549 U.S. 199, 218 (2007); see Woodford v. Ngo, 548 U.S. 81 (2006) (adopting proper exhaustion
rule).
541
Maxwell v. Correctional Medical Services, Inc., 538 Fed.Appx. 682, 688-89 (6th Cir. 2013) (unpublished).
Alternatively, such a requirement might merely be viewed as making the remedy unavailable. See Espinal v. Goord,
558 F.3d 119, 127 n. 6 (2d Cir. 2009); Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir. 2000) (stating “a
grievance procedure that requires a prisoner to provide information he does not have and cannot reasonably obtain is
not a remedy that is ‘available’ to the prisoner”). See nn. 656, 658, below, on this point.
542
The Michigan grievance system at issue in Jones required both that grievances “be as specific as possible” and
that they be “brief and concise,” but contained no specific requirements for content. Jones, 549 U.S. at 218.
Subsequently, the policy was amended to require “[d]ates, times, places and names of all those involved in the issue
being grieved.” Michigan Dep’t of Corr. Policy Dir. No. 03.02.130 (Dec. 19, 2003).
In Illinois, after the Seventh Circuit held that the required level of specificity was prescribed by the prisons’
grievance policy and observed that there was no specificity requirement in the policy, see Strong v. David, 297 F.3d
646, 650 (7th Cir. 2002), the prison system revised its policy to require “factual details regarding each aspect of the

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York State prison system requires only that grievances “contain a concise, specific description of
the problem and the action requested and indicate what actions the grievant has taken to resolve
the complaint, i.e., specific persons/areas contacted and responses received.”543 The New York
City jail grievance directive that was effective until March 2008 says nothing about specificity in
its text; the grievance form itself says only “Please describe problem as briefly as possible” (with
four and a half lines for the answer) and “Action requested by inmate” (two and three-quarters
lines).544 The March 2008 revision borrows part of the New York State formulation: in addition
to the prisoner’s identifying information, the grievance “must contain . . . a concise, specific
description of the problem/complaint and the action requested.”545 It also retains the above
quoted language on the grievance form itself.546 The September 2012 revision similarly requires
“a description of the grievance or request [and] a specific action requested” in addition to
offender’s complaint, including what happened, when, where, and the name of each person who is the subject of or
who is otherwise involved in the complaint. This provision does not preclude an offender from filing a grievance
when the names of individuals are not known, but the offender must include as much descriptive information about
the individual as possible.” 20 Ill.Admin. Code § 504.810(b); see Lipscomb v. Pfister, 2013 WL 4675813, *3
(C.D.Ill., Aug. 30, 2013) (holding grievance stating plaintiff was stripped and placed in a cell without items required
by rules did not exhaust claim that he was “taken out of shackles in a degrading manner, placed in a position with
his butt in the air while officers made lewd comments about his rectum, or made to walk naked to his cell after being
stripped naked while inmates watched and made lewd and sexual comments.”); Winfrey v. Walker, 2011 WL
2199721, *5 (S.D.Ill., May 2, 2011) (holding grievance about back problems does not exhaust specific claim about
denial of a back brace or cane under regulation), report and recommendation adopted, 2011 WL 2199720 (S.D.Ill.,
June 6, 2011); Nelson v. Miller, 2007 WL 294276, *5-6 (S.D.Ill., Jan. 30, 2007) (holding plaintiff’s complaint that
as a Christian he was denied a Muslim bean pie and orange meal did not satisfy the new fact-pleading standard,
though it might have passed muster under the older notice pleading standard; a claim about abstaining from all meat
is not exhausted under the new standard by grievances about refusing to eat “the flesh meat of four-legged
animals”). The regulations’s requirement of “factual particularity” is applied with absurd rigor in one case in which
the prisoner was said to have failed to spell out “when [and] where” a supposed failure to investigate and
sanctioning/condoning of abuses took place, without consideration of how a prisoner could know the answer, or
indeed whether these events can be said to have had any location other than in administrators’ minds. Santiago v.
Smithson, 2010 WL 1132564, *4-5 (S.D.Ill., Mar. 22, 2010), reconsideration denied, 2010 WL 4386477 (S.D.Ill.,
Oct. 29, 2010).
In California, where the rules formerly required prisoners only to “describe the problem and action
requested,” a 2011 amendment requires them to identify by name and title or position each staff member alleged to
be involved, along with the dates of each staff member’s involvement, or if unavailable, to provide any other
available information that would assist in identifying the staff members, and describe all staff members’
involvement. Snowden v. Prada, 2013 WL 4804739, *7 (C.D.Cal., Sept. 9, 2013) (citing regulations).
543
Appendix D, New York State Dep’t of Correctional Services, Directive 4040, Inmate Grievance Process at §
701.5(a)(2) (July 1, 2006). One court has further observed: “By its own terms, DOCS policy appears to favor a
liberal reading of the scope of grievances, as the [grievance program] itself is ‘not intended to support an adversary
process, but is designed to promote mediation and conflict resolution.’” Branch v. Brown, 2003 WL 21730709, *10
(S.D.N.Y., July 25, 2003), judgment granted on other grounds, 2003 WL 22439780 (S.D.N.Y., Oct. 28, 2003)
(quoting New York State Dep’t of Correctional Services Directive 4040, Part I). The current version of the policy
retains similar language. See Appendix D, Directive 4040 at § 701.1(b) (July 1, 2006); see also Appendices E and F
(earlier versions). The Tenth Circuit, in refusing to dismiss a claim for non-exhaustion, emphasized similar
language in the federal Administrative Remedy Program policy, noting that that system is an inquisitorial one in
which officials are responsible for investigating grievances thoroughly. Kikumura v. Osagie, 461 F.3d 1269, 1284
(10th Cir. 2006).
544
Appendix C, New York City Department of Correction, Directive 3375R, Inmate Grievance Resolution Program,
at attachment (March 4, 1985).
545
Appendix G, New York City Dep’t of Correction Directive 3375R-A, Inmate Grievance Resolution Program at §
IV.B.1.a (March 13, 2008) (http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf).
546
Appendix G, id., at Attachment C.

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identifying information, date of incident or indication that it is ongoing, and whether the prisoner
has also complained to a court or other agency.547
The Seventh Circuit, applying the same “proper exhaustion” requirement the Supreme
Court has now adopted, has held: “When the administrative rulebook is silent, a grievance
suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a
notice pleading system, the grievant need not lay out the facts, articulate legal theories, or
demand particular relief. All the grievance need do is object intelligibly to some asserted
shortcoming.”548 That standard has been endorsed by the Second and Tenth Circuits as well,549
and in substance by the Ninth Circuit.550 General statements about specificity in a grievance
policy that do not identify any particular content that a grievance must include will not overcome
this default rule.551 Its leniency is shown by the Seventh Circuit’s holding that a prisoner
547

Appendix H, New York City Dep’t of Correction Directive 3376, Inmate Grievance and Request Program at §
IV.D.1 (September 10, 2012)
(http://www.nyc.gov/html/doc/downloads/pdf/Directive_3376_Inmate_Grievance_Request_Program.pdf).
548
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).
The federal court notice pleading standard requires only a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Rule 8(a), Fed.R.Civ.P. Under that standard, pro se plaintiffs are held “to less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
549
Kikumura v. Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004); accord, Milan v. Chen, 2008 WL 2229215, *5 (C.D.Cal., Feb. 5, 2008), report and recommendation
adopted, 2008 WL 2116930 (C.D.Cal., May 14, 2008) and 2008 WL 2116959 (C.D.Cal., May 14, 2008).
The Second Circuit adopted this rule not as a default rule but on policy grounds, noting that the exhaustion
requirement is designed to provide “time and opportunity to address complaints internally” before suit is filed, and
they must therefore “provide enough information about the conduct of which they complain to allow prison officials
to take appropriate responsive measures.” Johnson v. Testman, 380 F.3d at 697 (quoting Porter v. Nussle, 534 U.S.
at 524-25). It would appear that after Jones v. Bock, this rule is a default rule, valid to the extent that prison policy
does not state a different standard of specificity.
550
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“A grievance need not include legal terminology or legal
theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not
contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is
to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.”). Griffin adopted
the Strong v. David approach without citing the “object intelligibly” language. See James v. Mehta, 2013 WL
5934397, *3 (E.D.Cal., Nov. 5, 2013) (holding grievance mentioning lack of physical therapy exhausted complaint
alleging lack of physical and occupational therapy; it “included sufficient detail to put prison officials on notice of
plaintiff's claim that he was receiving inadequate medical care for his ALS and wanted care consistent with [a
physician’s] orders), report and recommendation adopted, 2014 WL 109502 (E.D.Cal., Jan. 9, 2014); Zepeda v.
Tate, 2010 WL 4977596, *4 (E.D.Cal., Dec. 2, 2010) (holding complaint about pain possibly related to a digestive
disorder did not fail to exhaust by reason of plaintiff’s failure to mention his esophagus); Ryles v. Felker, 2010 WL
2880177, *3 (E.D.Cal., July 21, 2010) (holding factual variations about staff assault between grievance and
deposition testimony did not support non-exhaustion argument where suit and grievance both alleged an unprovoked
assault); Sanders v. Williams, 2010 WL 1631767, *13 (D.N.M., Mar. 20, 2010) (holding that claim of prisoner
assault was exhausted by grievance addressing the staff actions that put the plaintiff at risk without actually
describing the assault and injuries).
551
Skinner v. Schriro, 2007 WL 2177326, *4 (D.Ariz., July 27, 2007) (holding grievance that stated “I was given no
disciplinary report,” and cited the disciplinary policy, sufficiently grieved a claim that there is a “secret board that
enacted its own policy in violation of ADC disciplinary procedures” and that the plaintiff was denied notice and a
hearing, under a grievance policy directing prisoners to “state briefly but completely the problem on which you
desire assistance. Provide as many details as possible.”) That approach is consistent with Jones v. Bock, which held
that the Michigan grievance policy, which said to “be as specific as possible” but did not prescribe any specific
content for grievances, did not require naming of defendants. Jones, 549 U.S. at 218. On remand, the district court
cited the “as specific as possible language” and the arguably conflicting instruction on the mandatory grievance
form to be “brief and concise,” and held that an the plaintiff’s complaint that he was forced to work beyond his

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sufficiently exhausted a claim against prison staff that he was sexually assaulted through their
deliberate indifference with a grievance that said: “[T]he administration don’t [sic] do there [sic]
job. [A sexual assault] should’ve never [sic] happen again,” and asked that the assailant be
criminally prosecuted552 (though the Second Circuit has required a surprising degree of
specificity in one case applying it553). The limits of this approach are illustrated in a recent
decision in which the plaintiffs argued that their religious rights complaint “ ‘should not be read
as asserting a claim for dismantling the sweat lodge; a separate claim for denying access to
and/or use of tobacco; and a third separate and distinct claim for transferring [group religious]
practitioners away from the prison . . . ,’ ” rather Plaintiffs' complaint should be read as a single
claim ‘alleging an ongoing scheme of religious suppression, which utilized a variety of means to
physical capacities gave fair notice of his claims despite the absence of detail about his injuries. Jones v. Michigan,
2010 WL 1002633, *6 (E.D.Mich., Mar. 18, 2010). But see Ballew v. Black, 2007 WL 914181, *3 (E.D.Ky., Mar.
23, 2007) (holding grievance alleging failure to provide diabetes medication did not exhaust because plaintiff failed
to mention having been injured or wanting $2.5 million in damages; grievance policy required grievant to state “all
aspects of the issue”).
552
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (describing grievance as “at the border of intelligibility”),
cert. denied, 544 U.S. 904 (2005); see also Westefer v. Snyder, 422 F.3d 570, 580-81 (7th Cir. 2005) (holding that
plaintiffs sufficiently exhausted complaints about transfers to a high-security prison by listing “Transfer from
Tamms” as a requested remedy, or by expressing concern about not being given a reason for the transfer, in
grievances about the conditions at that prison); Barnes v. Briley, 420 F.3d 673, 678-79 (7th Cir. 2005) (holding a
grievance “in regards to a request for [sic] for medical test and treatment. I have requested several times to be tested
for Tuberculosis, H.I.V., Hepatitis, etc. for the past few years” exhausted as to the past failure to respond to such
requests by a doctor not named in the grievance and no longer employed at the prison); Standley v. Ryan, 2012 WL
3288728, *4 (D.Ariz., Aug. 13, 2012) (holding complaint that Step–Down Program is merely a “mockery” and not a
viable means to exit administrative segregation sufficiently exhausted a complaint about indefinite confinement in
segregation); Roland v. Smith, 907 F.Supp.2d 385, 390 (S.D.N.Y. 2012) (holding complaint that transfer to mental
hospital was done to “cover up” beating at prison sufficiently exhausted the beating); Spotts v. Hock, 2011 WL
5024437, *4 (E.D.Ky., Oct. 19, 2011) (reading grievance to complain about officer’s course of conduct in labelling
plaintiff a “snitch,” not just the recent incident emphasized; “While a grievance must be clear and specific enough to
describe the subject matter, a high degree of particularity is not required—the point of the exhaustion requirement is
to give the agency notice of the problem and a chance to fix it, not to litigate the issue.”); see Appendix A for
additional authority on this point. But see Saleh v. Wiley, 2012 WL 4356219, *2 (D.Colo., Sept. 24, 2012) (general
complaint of unsafe housing area did not exhaust specific claim of failure to protect prisoner at special risk because
he had been labeled a snitch), judgment amended, 2013 WL 1751885 (D.Colo., Apr. 23, 2013); Johnson v. Vord,
2008 WL 2186381, *2-3 (E.D.Cal., May 23, 2008) (grievance holding failure to provide proper care for a rash
caused by the shower water did not exhaust claim about the quality of the shower water), report and
recommendation adopted, 2008 WL 2917188 (E.D.Cal., July 28, 2008); Jones v. Snyder, 2008 WL 786023, *5
(W.D.Mich., Mar. 20, 2008) (grievance seeking to discover why plaintiff’s kosher diet had not been approved did
not exhaust complaint that defendant sabotaged his request by failing to submit his correct answers to the “Kosher
test”); Maddox v. Berge, 2007 WL 2055199, *3-4 (W.D.Wis., July 16, 2007) (holding grievance that described
deprivations at “supermax” prison, in context of challenging the disciplinary proceeding that sent plaintiff there, did
not give notice that he was complaining about the conditions); Beltran v. O’Mara, 405 F.Supp.2d 140, 152 (D.N.H.
2005) (holding that allegations the plaintiff was “being punished for no reason” and isolated from other prisoners
were “too vague” to allow officials to make any response), on reconsideration, 2006 WL 240558 (D.N.H., Jan. 31,
2006); Aguirre v. Feinerman, 2005 WL 1277860, *6 (S.D.Ill. May 10, 2005) (holding that a grievance that
specifically mentioned physical therapy, but mentioned other medical care only generally, did not exhaust as to the
failure to diagnose the plaintiff’s congestive heart failure; “While specifically identifying the ailment would not be
required, there must be some indication as to what medical issues the plaintiff was complaining about.”); Ball v.
McCaughtry, 2004 WL 1013362, *2 (W.D.Wis., May 6, 2004) (holding that a prisoner who complained about
seized papers that he identified only as “gay materials,” even when asked for more information, was insufficiently
specific to satisfy a grievance policy calling for sufficient facts to allow an examiner to investigate the complaint).
553
See Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006), discussed later in this section.

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do so.’ ” 554 The court made it clear that exhaustion would be assessed separately for each factual
pattern alleged.
Decisions of other courts before Jones v. Bock were generally consistent with the notion
of a notice pleading standard,555 and those decisions remain good law where the administrative
rules do not demand more.556 Many decisions have taken a similar approach without much
theoretical discussion.557 One recent decision finds a “useful analog” in Title VII exhaustion law,
554

Rumsey v. Michigan Dept. of Corrections, 2013 WL 5517888, *2 (W.D.Mich., Oct. 1, 2013).
One federal appeals court has stated that the prisoner should provide “as much relevant information . . . as the
prisoner reasonably can provide.” Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000). But it is doubtful that
prison officials really want grievances setting out “every known fact,” and a judicial exhaustion rule so requiring “
might be completely unworkable or at least counter-productive,” since in almost all cases defendants could identify
some omitted fact, leading to “fact-intensive litigation over exhaustion at the outset of nearly every prisoner case.”
Curtis v. Solomon, 2006 WL 1653608, *3 (N.D.Fla., June 7, 2006). Further, Brown would appear to have been
overruled by Jones v. Bock. See Wilsey v. Merrit, 2007 WL 2376074, *3 (N.D.Fla., Aug. 14, 2007) (noting
apparent overruling of Brown; Florida regulations require only that the grievance form be legible, signed, and dated,
that the facts be stated accurately, and only one issue be presented per grievance).
556
See Johnson v. Johnson, 385 F.3d 503, 517-18 (5th Cir. 2004) (agreeing that legal theories need not be presented
in grievances; holding that a prisoner who complained of sexual assault, made repeated reference to his sexual
orientation, and said nothing about his race had exhausted his sexual orientation discrimination claim but not his
racial discrimination claim); Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003) (holding grievance need not “allege
a specific legal theory or facts that correspond to all the required elements of a particular legal theory”); Miller v.
Wisconsin Dept. of Corrections, 2008 WL 4159192, *2-3 (W.D.Wis., Sept. 4, 2008) (where grievance policy said to
confine grievance to one issue and “clearly identify” it, complaint that plaintiff was deprived of a cane and couldn’t
walk around the prison without it exhausted his disability statutes claim that he was excluded from programs and
services); Parker v. Robinson, 2008 WL 2222040, *7 (D.Me., May 22, 2008) (point of exhaustion requirement “is
not to make sure prisoners identify their potential litigable civil rights claims early on but it is to give the
correctional institution the opportunity to address (and hopefully resolve) the grieved-of conduct/condition before
the dispute moves to litigation. The administrative grievance process is not a dress-rehearsal hurdle to civil
litigation. . .”); see Appendix A for additional authority on this point. But see Barrett v. Wallace, 2013 WL 4483063,
*6 (W.D.Wis., Aug. 20, 2013) (holding that that grievance stating “every time I act out due to my mental illness, I'm
punished for it” did not exhaust specific claims about a cell extraction, conduct reports, placement in segregation,
and extension of sentence; “these grievances are far too vague to put prison officials on notice of the nature of the
specific wrongs at issue”); Morales v. Horel, 2007 WL 2212892, *3 (N.D.Cal., July 31, 2007) (holding prisoner who
complained that some prisoners were allergic to the state-issued soap, but failed to say specifically that he was
allergic, failed to exhaust); Davis v. Knowles, 2007 WL 214598, *2-3 (E.D.Cal., Jan. 25, 2007) (holding that
prisoner’s complaint that he had been denied treatment for his finger at every prison he had been transferred to did
not exhaust the claim that he had been denied access to an orthopedic surgeon on a particular date and then
transferred, resulting in a denial of care), report and recommendation adopted, 2007 WL 1141583 (E.D.Cal., Apr.
17, 2007); Walker v. James, 2007 WL 210404, *6 (E.D.Pa., Jan. 23, 2007) (holding a grievance complaining about
DNA sampling based on false classification as a sex offender did not exhaust the false classification complaint);
Robins v. Atchue, 2006 WL 1283470, *3 (E.D.Cal., May 10, 2006) (holding that “incidental mention” of strip
searches in grievances concerning inappropriate racial and harassing statements did not exhaust as to the strip
searches), report and recommendation adopted, 2006 WL 1882940 (E.D.Cal., July 7, 2006).
In Pleasant v. Jenkins, 2005 WL 2250849 (E.D.Tex., Sept. 15, 2005), the court held that a prisoner’s
failure to include certain details of his complaint in a Step 2 grievance was not a failure to exhaust because they had
been included in the Step 1 grievance and the Step 2 decisionmaker would have had access to the information. 2005
WL 2250849, *3.
557
See Maxwell v. Correctional Medical Services, Inc., 538 Fed.Appx. 682, 688-89 (6th Cir. 2013) (unpublished)
(holding complaint about denial of hip replacement surgery was not vague because of lack of information about the
precise time and place where the decision was made); Jackson v. Ivens, 2007 WL 2261552, *4 (3d Cir., Aug. 8,
2007) (unpublished) (“As long as there is a shared factual basis between the two, perfect overlap between the
grievance and a complaint is not required by the PLRA.”); Westefer v. Snyder, 422 F.3d 570, 580-81 (7th Cir. 2005)
(holding that prisoners who mentioned concern with their transfers to a high-security prison in the course of
555

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which holds that matters are exhausted “which can reasonably be expected to grow out of” or are
“reasonably related” to the charges in the administrative filing. 558 Of course if the grievance
process actually addresses an issue, it should be deemed exhausted no matter how well or badly
the prisoner set it out, since the purpose of exhaustion will clearly have been served. 559 The

grievances complaining about the conditions there exhausted their claims about transfer); McAlphin v. Toney, 375
F.3d 753, 755 (8th Cir. 2004) (per curiam) (treating claim that two defendants failed to treat plaintiff’s dental
grievances as emergency matters and others refused to escort him to the infirmary for emergency treatment were
both part of a single exhausted claim of denial of emergency dental treatment); Kikumura v. Hurley, 242 F.3d 950,
956 (10th Cir. 2001) (holding complaint sufficient to meet the exhaustion requirement where the plaintiff
complained that he was denied Christian pastoral visits, though the defendants said his claim should be dismissed
because he had not stated in the grievance process that his religious beliefs include elements of both the Buddhist
and Christian religions); Morris v. Newberry Correctional Facility, 2013 WL 5966274, *3 (E.D.Mich., Nov. 8,
2013) (holding conclusory complaint about denial of proper medical treatment did not exhaust because it didn’t
“state specifically what Quinlan, a nurse, did or when she did it”); Medina v. Nassau County Sherriff Dept., 2013
WL 4832803, *7 (E.D.N.Y., Sept. 10, 2013) (“Prison officials did not engage in misconduct by requesting more
information from plaintiff when his grievance form stated that he was misdiagnosed ‘several times’ but did not list
the specific medical conditions or dates for which he believes he received improper treatment.”); see Appendix A for
additional authority on this point. But see Tester v. Hurm, 2009 WL 1424009, *3-4 (E.D.Ky., May 20, 2009)
(holding inadequate a grievance demanding “a standard of medical care conforming with constitutional
requirements,” and mentioning “continuous deliberate indifference, utilization of privileged knowledge of the
inmates vulnerabilities to manipulate him into circumstances whereby punitive action is exacted toward the inmate,
wanton infliction of pain, rebuffs to humiliate, dealing with the inmate untruthfully and indifferently, pain and
suffering inflicted upon the inmate” without providing specific examples).
558
Flanagan v. Shipman, 2009 WL 4043063, *6 n.4 (N.D.Fla., Nov. 20, 2009) (holding that a grievance about
failure to make arrangements for Native American religious services exhausted the subsequent failure to conduct the
services and their removal from the schedule of services). A good example of this approach is Asberry v. Cate, 2013
WL 876289 (E.D.Cal., Mar. 7, 2013), report and recommendation adopted, 2013 WL 4647975 (E.D.Cal., Aug. 29,
2013), in which the plaintiff complained of assault by a cellmate who appeared to have a mental illness, and asked
that his placement in a double cell with plaintiff be investigated. The court stated: “Liberally construed, plaintiff's
factual allegations should have led prison officials to investigate inmate Wilson's classification for double cell
housing, and, because plaintiff noted inmate Wilson's mental disorder, should also have led prison officials to
review Wilson's psychiatrist's recommendation or evaluation concerning Wilson's double cell status, if any.” 2013
WL 876289, *7.
559
Patterson v. Stanley, ___ Fed.Appx. ____, 2013 WL 6044128, *2 (5th Cir. 2013) (unpublished) (holding claim
exhausted where appeal decision acknowledged it and said it had been referred to Office of Professional Standards
and plaintiff was scheduled for an ophthalmology exam); Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)
(medical care complaint not raised explicitly in grievance was exhausted where grievance decision addressed it;
medical care complaint stated in very general terms was exhausted where grievance decision addressed plaintiff’s
care with specificity); Riccardi v. Louis, 2013 WL 5770668, *4 (N.D.Fla., Oct. 24, 2013) (holding vague allegation
of denial of medical treatment exhausted where grievance response showed that grievance staff investigated the right
incident); Allen v. Shawney, 2013 WL 2480658, *16 (E.D.Mich., June 10, 2013) (holding that since plaintiff’s
hepatitis/liver complaints were addressed in grievance responses, they were exhausted); Furnace v. Nuckles, 2013
WL 1964927, *24 (N.D.Cal., May 10, 2013) (similar to Espinal); Mitchell v. Snowden, 2011 WL 846861, *3
(E.D.Cal., Mar. 7, 2011), report and recommendation adopted, 2011 WL 1675051 (E.D.Cal., May 2, 2011); Stoltie
v. Geringson, 2010 WL 1463517, *7 (E.D.Cal., Apr. 9, 2010), report and recommendation adopted, 2010 WL
2011590 (E.D.Cal., May 19, 2010); Braxton v. Nichols, 2010 WL 1010001, *12 (S.D.N.Y., Mar. 18, 2010) (the fact
that the grievance appeal body advised the plaintiff to take up the issue of “pervasive” indoor smoking with security
staff shows that they understood he was complaining about widespread violation of the no-smoking rule); Castro v.
Terhune, 2010 WL 724683, *2 (N.D.Cal., Mar. 1, 2010) (grievance responses showed that prison officials
understood that plaintiff was challenging his gang validation and not just the process at a hearing); Granger v.
Kayira, 2009 WL 3824710, *7 (N.D.Ill., Nov. 12, 2009) (grievance must have been sufficiently detailed where issue
was decided); Douglas v. Skellie, 2009 WL 935806, *7 (N.D.N.Y., Apr. 3, 2009); see Appendix A for additional
authority on this point; see J.P. v. Taft, 439 F.Supp.2d 793, 826 (S.D.Ohio 2006) (holding defendants who said they

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converse is not true: if a prisoner adequately grieves an issue, the failure of the grievance
decision to address it does not mean the prisoner failed to exhaust.560 Several courts have held
grievances to have effectively exhausted despite grievance decisions stating that the grievances
were insufficiently specific.561
As noted above, courts have said that legal theories need not be exhausted.562 Despite the
foregoing, some courts have insisted on what amounts to pleading of legal theories in certain
“consistently tried” to satisfy the juvenile plaintiff’s request for an attorney could not be heard to claim they were
not sufficiently on notice from his grievance of his request for an attorney. “Defendants cannot have it both ways.”).
This point is a variation of the principle that even under a procedural default standard, if the administrative
body addresses the merits of a grievance, the prisoner has exhausted notwithstanding any procedural errors in the
grievance process. See nn. 796-797, below.
560
Pintado v. Dora, 2011 WL 794607, *6 (S.D.Fla., Jan. 28, 2011) (where grievance response focused on medical
complaints, but grievance and appeal mentioned prisoner was required to do work he was not trained for, latter issue
was exhausted), report and recommendation adopted, 2011 WL 777887 (S.D.Fla., Mar. 1, 2011); Loeb v. Runnels,
2007 WL 4463491, *2 (E.D.Cal., Dec. 17, 2007); McKinney v. Kelchner, 2007 WL 2852373, *4 (M.D.Pa., Sept. 27,
2007); Masterson v. Campbell, 2007 WL 2536934, *13 n.6 (E.D.Cal., Aug. 31, 2007); Skinner v. Schriro, 2007 WL
2177326, *4 (D.Ariz., July 27, 2007).
561
See Joseph v. Gorman, 2012 WL 4089012, *5 (N.D.Fla., Mar. 12, 2012) (holding prisoner whose grievance said
he was injured by action of a staff member exhausted his claim despite failure to characterize action as abuse rather
than negligence), report and recommendation adopted, 2012 WL 4088945 (N.D.Fla., Sept. 17, 2012); Shoucair v.
Warren, 2008 WL 2033714, *7-8 (E.D.Mich., May 9, 2008) (rejecting claim of vagueness where prisoner provided
enough information to investigate and grievance policy required investigation); Cordova v. Frank, 2007 WL
2188587, *7 (W.D.Wis., July 26, 2007) (rejecting grievance officials’ determination that grievance was not specific
enough, despite rule in jurisdiction against revisiting prisons’ procedural determinations); Mayes v. University of
TX Medical Branch, 2007 WL 1577670, *3 (W.D.Tex., May 30, 2007) (refusing to be bound by dismissal for
failing to name the medication plaintiff said he was being denied, where the court found that the information
appeared in the response to the initial grievance). Concerning the general question whether courts are bound by the
decisions of prison grievance bodies, see § IV.E.7, nn. 803-814, below.
562
Tennille v. Quintana, 443 Fed.Appx. 670, 672-73 (3rd Cir. 2011) (unpublished) (holding plaintiff exhausted even
though he “did not cite the specific constitutional grounds on which his complaint is based”); McCollum v.
California Dept. of Corrections and Rehabilitation, 647 F.3d 870, 877 (9 th Cir. 2011) (holding grievance
complaining of lack of paid Wiccan chaplain need not articulate underlying legal theory); Griffin v. Arpaio, 557
F.3d 1117, 1120 (9th Cir. 2009) (“A grievance need not include legal terminology or legal theories unless they are in
some way needed to provide notice of the harm being grieved.”); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004); Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003) (holding grievance need not “allege a specific legal theory
or facts that correspond to all the required elements of a particular legal theory”); Johnson v. Johnson, 385 F.3d 503,
517-18 (5th Cir. 2004); Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); see Lesane v. Byars, 2013 WL 4495988,
*10 (D.S.C., Aug. 20, 2013) (holding grievance stating plaintiff was maliciously catheterized sufficiently exhausted
without mentioning cruel and unusual punishment, due process, illegal search and seizure, and excessive force);
Manning/Rogers v. Meinzer, 2013 WL 3753982, *3 (E.D.Ark., July 15, 2013) (holding due process claim exhausted
although grievance mentioned only religious rights); Perez v. Turner, 2013 WL 3216147, *7 (D.N.J., June 25, 2013)
(holding plaintiff exhausted his claim when he referred “to his ailments, his disagreement about the quality and
effectiveness of the care he was receiving, his questions about some Defendants' professional qualifications, and his
continuing pain. While he fails to mention terms like ‘violation of Eighth Amendment rights’ or ‘Bivens action,’
Plaintiff's descriptions are sufficient to put the Bureau of Prisons on notice of the ‘nature of the wrong’ that now
forms the substance of the Complaint he has filed in this Court.”); Hewlett v. Gram, 2013 WL 868378, *5 (D.Minn.,
Feb. 12, 2013) (holding plaintiff exhausted his due process claim, though he did not use those words, where at each
stage he “challenged his placement in the SHU, the prison staff's refusal to identify the BOP regulation of which he
was accused, or his transfer”), report and recommendation adopted, 2013 WL 848779 (D.Minn., Mar. 7, 2013); Hall
v. Leclaire, 2011 WL 832839, *3 (S.D.N.Y., Mar. 4, 2011) (grievance need not give notice that any of the named
defendants were aware of risk from unsafe wheelchair and refused to act on it); Doe v. Wooten, 2010 WL 2821795,
*2 (N.D.Ga., July 16, 2010) (prisoner who complained of being in a high security prison and expressed fear for his
safety was not required to invoke the Constitution in his grievance); Meraz v. Reppond, 2010 WL 2672002, *3

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kinds of grievances. In Brownell v. Krom,563 the plaintiff complained about loss of property
including legal papers, and then brought suit alleging that the loss had resulted from intentional
misconduct by prison staff, based on information that he did not have at the time of his
grievance. The court held the grievance insufficient, stating that “the grievance may not be so
vague as to preclude prison officials from taking appropriate measures to resolve the complaint
internally,” and weighing heavily prison officials’ assertion that an allegation of intentional
misconduct would trigger a different level of investigation than an ordinary property claim.564
This is a surprising holding–if the obligation is to “object intelligibly to some asserted
shortcoming,” from the prisoner’s standpoint, the shortcoming visible to him was just that he
didn’t have his property.565 The Brownell court tempered its holding by reversing the dismissal
of the case on the ground that there were special circumstances excusing the plaintiff’s failure to
exhaust properly, because the necessary information came to him long after the grievance
deadline had passed and the grievance form did not inform him that late grievances could be
allowed based on “mitigating circumstances,” leading to a reasonable belief he could not raise
the new facts in another grievance.566 Still, the implication that prisoners ordinarily must file
(N.D.Cal., July 2, 2010) (legal theory of bystander liability need not be grieved; doing so would be “particularly
difficult” for prisoners “who have only 15 days to file an inmate appeal and who have limited access to any legal
materials”); Sanders v. Williams, 2010 WL 1631767, *13 (D.N.M., Mar. 20, 2010) (legal issues of supervisory
liability and Eighth Amendment basis of claim need not be grieved); Smith v. Deluaux, 2009 WL 3482280, *1-2
(W.D.Wis., Oct. 26, 2009) (prisoner challenging disciplinary hearing need not have grieved facts about confinement
conditions that would support a claim of a liberty interest to exhaust); Baker v. McDonough, 2009 WL 2244500, *5
(N.D.Fla., July 25, 2009) (rejecting argument that plaintiff exhausted his claim of lack of statutory authority but not
his constitutional claims about the same actions); Brown v. Grove, 647 F.Supp.2d 1178, 1185 (C.D.Cal. 2009)
(allegation that plaintiff needed medical care, asked for it, and didn’t get it exhausted his deliberate indifference
claim); Young v. McNeil, 2009 WL 2058923, *5 (N.D.Fla., July 13, 2009). But see Whitley v. Aldridge, 2013 WL
4520883, *3 (M.D.Fla., Jan. 15, 2013) (finding non-exhaustion of Eighth Amendment claim where grievance
referred to defendants as “tortfeasors” and stated the “tort” wasn’t intentional).
563
446 F.3d 305 (2d Cir. 2006).
564
Brownell, 446 F.3d at 310-11.
565
A similar scenario is presented by an unreported Seventh Circuit case holding that a prisoner who complained in
his grievance of missing property items, including his Bibles, failed to exhaust his Free Exercise Clause claim by
failing to state that the Bibles’ loss was “infringing on his religious practice.” Dye v. Kingston, 130 Fed.Appx. 52,
56 (7th Cir. 2005) (unpublished); accord, Doss v. Maples, 2012 WL 3762452, *2-3 (E.D.Ark., Aug. 3, 2012)
(prisoner who complained of deprivation of Bible Concordance did not exhaust First Amendment claim because she
failed to mention that claim in her grievance), report and recommendation adopted, 2012 WL 3759018 (E.D.Ark.,
Aug. 29, 2012); Henderson v. Sebastian, 2004 WL 1946398 (W.D.Wis., Aug. 25, 2004), modification denied, 2004
WL 2110773 (W.D.Wis., Sept. 21, 2004). On its face, that holding appears inconsistent with an “object intelligibly”
standard that does not require the grievant to articulate legal theories. The “perceived shortcoming” was that the
prisoner didn’t have his Bibles, and that fact surely gave prison officials sufficient notice that they should find the
Bibles or replace them; it is difficult to see how adding language about religious practice to the grievance would
have assisted them in resolving his problem. Of course if the prison provided a separate complaint mechanism for
complaints about religious practice, then the plaintiff would be obliged to identify his complaint as religious in
nature. See Stuard v. Carlin, 2010 WL 4791739, *1-2 (D.Idaho, Nov. 16, 2010).
An example closer to the line is Ashker v. Schwarzenegger, 2007 WL 1725417, *8-9 (N.D.Cal., June 14,
2007), amended on reconsideration on other grounds, 2007 WL 2781273 (N.D.Cal., Sept. 20, 2007), in which the
plaintiff’s grievance stated that defendants had presented him with a “Hobson’s choice” between informing about
gangs and having program participation, and refusing to inform and remaining permanently in segregation. The
court held that this grievance did not give officials sufficient notice of his legal claim that the demand violated his
Fifth Amendment right against self-incrimination. See also Brown v. Mantel, 2007 WL 2349282, *2 (N.D.Cal.,
Aug. 14, 2007) (holding prisoner did not exhaust his claim of denial of court access resulting from deprivation of
legal papers where his grievance referred to “personal property” without mentioning legal papers).
566
446 F.3d at 312-13.

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multiple grievances about the same event as they learn new information about it, even though the
grievance procedure does not provide for amended or supplementary grievances, is startling.
Some courts have similarly held that grieving a retaliatory act is not sufficient, and the
prisoner must also allege retaliatory motive in the grievance,567 though others disagree, in some
cases characterizing the presence of retaliatory motive as a legal theory that need not be

567

See, e.g., Emmett v. Ebner, 423 Fed.Appx. 492, 493 (5th Cir. 2011) (unpublished); Torry v. Lloyd, 2013 WL
6869474, *2 (W.D.Wis., Dec. 31, 2013) (holding retaliation claim required exhaustion even though it arose from the
same transaction or occurrence as an exhausted claim); Toenniges v. Ammons, 2014 WL 66589, *5-6 (M.D.Ga.,
Jan. 8, 2014); Zebrowski v. U.S. Bureau of Prisons, 2013 WL 838009, *3 (S.D.Miss., Mar. 6, 2013), aff’d, ___
Fed.Appx. ____, 2014 WL 762784 (5th Cir., Feb. 27, 2014); Gonzalez v. Adams, 2013 WL 636730, *4-5 (E.D.Cal.,
Feb. 20, 2013) (holding allegation plaintiff was moved “due 602 log number COR–06–1736” sufficiently alleged
retaliatory motive; dismissing another retaliation claim without such grievance allegation); Murillo v. Flournoy,
2013 WL 773472, *6-10 (S.D.Cal., Jan. 30, 2013), report and recommendation adopted, 2013 WL 773470
(S.D.Cal., Feb. 27, 2013), order modified, 2013 WL 1147628 (S.D.Cal., Mar. 19, 2013); Wellington v. Snider, 2012
WL 3999871, *6 (D.Nev., June 19, 2012) (ignoring prisoner’s claim that he learned of the retaliatory motive too late
for his grievance), report and recommendation adopted, 2012 WL 3999851 (D.Nev., Sept. 10, 2012); Goolsby v.
Ridge, 2012 WL 1068881, *13-14 (S.D.Cal., Mar. 29, 2012) (holding prisoner who learns late of a retaliatory
grievance must add the claim in the later stages of the grievance process or file a new grievance about it); Spencer v.
City of Philadelphia, 2012 WL 1111141, *6 (W.D.Pa., Apr. 2, 2012), affirmed as modified, 543 Fed.Appx. 209 (3rd
Cir. 2013); Maestas v. Legrand, 2011 WL 7416359, *5 (D.Nev., Dec. 9, 2011); Hagan v. Beard, 2011 WL 4592388,
*5 (M.D.Pa., Sept. 30, 2011); see Appendix A for further authority on this point; see also Ferguson v. Hall, 2012
WL 5355760, *6 (E.D.Cal., Oct. 30, 2012) (holding plaintiff need not label conduct as retaliation where it
immediately followed plaintiff’s complaint about the same staff member); Perry v. Dickinson, 2012 WL 2559426,
*6 (E.D.Cal., June 29, 2012) (“While plaintiff did not have to use the term ‘retaliation,’ he was required to provide
facts that would put jail staff on notice that plaintiff believed his placement in administrative segregation was due to
the filing of inmate grievances and requests.”); Conkleton v. Muro, 2011 WL 1135370, *12-13 (D.Colo., Jan. 31,
2011) (plaintiff sufficiently exhausted retaliation where the facts he recited were sufficient to convey his belief that
he had suffered retaliation), report and recommendation adopted in part, rejected in part on other grounds, 2011
WL 1119869 (D.Colo., Mar. 28, 2011); Brown v. Grove, 647 F.Supp.2d 1178, 1185 (C.D.Cal. 2009) (plaintiff
sufficiently exhausted retaliation where he did not use that word but a “fair reading” of his grievance showed that he
alleged that the acts at issue were retaliatory); Myers v. Johns, 2008 WL 5115249, *11 (N.D.N.Y., Dec. 4, 2008)
(where prisoner grieved that defendants treated him improperly based on a prior grievance, he need not have used
the word “retaliation”); Gregory v. Ayers, 2006 WL 548444, *3 (E.D.Cal., Mar. 3, 2006) (holding prisoner’s
grievance allegations of underlying conduct by staff did not exhaust his claim that they conspired so other staff
members could retaliate against him), report and recommendation adopted, 2006 WL 845846 (E.D.Cal., Mar. 31,
2006); Lindell v. O’Donnell, 2005 WL 2740999, *28 (W.D.Wis., Oct. 21, 2005) (holding retaliation claims
unexhausted where the reason plaintiff stated for the retaliation was different in grievances from the lawsuits; “In
order to exhaust his claims, plaintiff must have alleged sufficient facts to put respondents on notice so they could
respond to his complaints. In the context of retaliation claims, this minimal requirement is satisfied when a prisoner
specifies the protected conduct and the act of retaliation in which defendants are alleged to have engaged.”); see also
Bonty v. Plaster, 2007 WL 1558500 *3 n.6 (W.D.Okla., May 25, 2007) (holding prisoner who mentioned retaliation
need not have identified the legal right at issue too), vacated in part on other grounds, 2007 WL 2458789
(W.D.Okla., Aug. 24, 2007). One court has held that where “minor misconduct hearings” were not grievable, the
prisoner was obliged to exhaust by raising his complaint of retaliation during the hearing. McDonald v. Briggs,
2010 WL 727583, *10 (E.D.Mich., Feb. 24, 2010). Cf. Watson-El v. Wilson, 2010 WL 3732127, *9 (N.D.Ill., Sept.
15, 2010) (holding prisoner could not litigate claim that account was encumbered in order to put pressure on him
without having exhausted that “new theory of recovery”).
One decision has taken the converse position: that a prisoner who alleged retaliation could not subsequently
press due process, equal protection, or Eighth Amendment claims. Council v. Nash, 2007 WL 1686512, *2-3
(D.N.J., June 8, 2007). In Council, however, the difference among claims was not just legal theories. The equal
protection claim rested on an alleged difference in treatment between the plaintiff and Latino prisoners, and the
Eighth Amendment claim alleged various medical consequences of defendants’ conduct.

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specified.568 There is a similar disagreement over whether conspiracy claims must be explicitly
grieved569 or whether they too are legal theories that need not be specified.570 Most decisions
have held that claims of discrimination require the prisoner to have alleged a retaliatory motive,
in addition to describing the adverse conduct, in the administrative process.571 The courts are
568

See Norwood v. Robinson, 436 Fed.Appx. 799, 800 (9th Cir. 2011) (unpublished) (“Although the grievance did
not advance the legal theory of retaliation, it gave the prison adequate notice of the harm being grieved.”); Wilson v.
Mata, 348 Fed.Appx. 237, 238 (9th Cir. 2009) (unpublished) (holding a grievance that describes the retaliatory act is
sufficient to exhaust, treating retaliatory motive as a legal theory); Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.
2003) (holding that a prisoner who claimed retaliatory discipline exhausted by appealing the disciplinary decision to
the highest level); Richardson v. Reyes, 2013 WL 5800769, *3 (N.D.Cal., Oct. 28, 2013) (holding a complaint that
the prisoner was improperly denied medical care exhausted a retaliation claim without specific reference to
retaliation); Percelle v. S. Pearson, 2013 WL 3945022, *4 (N.D.Cal., July 29, 2013) (“Although the grievance did
not mention the legal theory of retaliation, it nonetheless provided enough information about the problem to allow
prison officials to take appropriate responsive measures. . . .”); Jackson v. Director of Corrections of California,
2013 WL 3923426, *3 (C.D.Cal., July 29, 2013) (holding a prisoner who alleged a First Amendment violation in his
grievance sufficiently exhausted a retaliation claim); Hernandez-Arredondo v. Hollingsworth, 2012 WL 3047735,
*5 (S.D.Ill., June 29, 2012) (holding claims of retaliatory conduct need not be exhausted separately from the
underlying facts), report and recommendation adopted, 2012 WL 3046006 (S.D.Ill., July 25, 2012); see Appendix A
for additional authority on this point.
569
Siggers v. Campbell, 652 F.3d 681, 694-95 (6th Cir. 2011) (failure to mention alleged conspiracy in grievance
meant claim was not exhausted); Spencer v. City of Philadelphia, 2012 WL 1111141, *6 (W.D.Pa., Apr. 2, 2012)
(failure to allege conspiracy in initial grievance meant it was not exhausted), affirmed as modified, 543 Fed.Appx.
209 (3rd Cir. 2013); Jackson v. Harrison, 2010 WL 3895478, *11 (C.D.Cal., Aug. 25, 2010) (failure to grieve the
presence of an agreement meant plaintiff failed to give notice of the nature of his claims), report and
recommendation adopted, 2010 WL 3895468 (C.D.Cal., Sept. 28, 2010); Negron v. Bryant, 2010 WL 746727, *5
(M.D.Fla., Mar. 3, 2010); Smith v. U.S., 2008 WL 7313360, *9 (M.D.Pa., Dec. 29, 2008) (conspiracy claim was not
exhausted where grievance did not mention conspiracy), report and recommendation adopted, 2009 WL 498317
(M.D.Pa., Feb. 26, 2009), on reconsideration, 2009 WL 4937580 (M.D.Pa., Dec. 14, 2009); Means v. Lambert,
2007 WL 4591251, *3 (W.D.Okla., Dec. 28, 2007) (dismissing claim for failure to allege an agreement); Sisney v.
Reisch, 2007 WL 951858, *6 (D.S.D., Mar. 26, 2007) (same). Cf. Ketzner v. Williams, 2008 WL 4534020, *17
(W.D.Mich., Sept. 30, 2008) (allusion to “combined effort” arguably exhausted conspiracy claim).
570
Espinal v. Goord, 558 F.3d 119, 127-28 (2d Cir. 2009) (holding that conspiracy is a legal theory which prisoners
need not grieve; it is sufficient to describe the alleged misconduct adequately); Hernandez-Arredondo v.
Hollingsworth, 2012 WL 3047735, *5 (S.D.Ill., June 29, 2012) (claims of conspiratorial conduct need not be
exhausted separately from the underlying facts), report and recommendation adopted, 2012 WL 3046006 (S.D.Ill.,
July 25, 2012); Ramos v. Monteiro, 2008 WL 4184644, *11 (C.D.Cal., Sept. 8, 2008); see Underwood v. Mendez,
2006 WL 860142, *5 (M.D.Pa., Mar. 31, 2006) (holding prisoner who complained of a retaliatory transfer need not
also have mentioned conspiracy in his grievance, since it was just a factual allegation supporting his retaliation
claim).
571
See Johnson v. Johnson, 385 F.3d 503, 518 (5th Cir. 2004) (holding that a prisoner who complained of sexual
assault, made repeated reference to his sexual orientation, but said nothing about his race had exhausted his sexual
orientation discrimination claim but not his racial discrimination claim); Waddy v. Sandstrom, 2012 WL 2023519,
*4 (W.D.Va., June 5, 2012) (holding racial discriminal claim unexhausted where plaintiff grieved a use of force but
did not mention the racial comments on which the claim was based), order entered, 2012 WL 2023543 (W.D.Va.,
June 5, 2012); Spencer v. City of Philadelphia, 2012 WL 1111141, *6 (W.D.Pa., Apr. 2, 2012), affirmed as
modified, 543 Fed.Appx. 209 (3rd Cir. 2013); Andrews v. Evert, 2011 WL 4479480, *2 (N.D.Cal., Sept. 23, 2011)
(grievance about shackling that did not mention race did not exhaust discrimination claim); Finch v. Lopez, 2011
WL 6133648, *3 (C.D.Cal., July 6, 2011) (allegation of failure to provide “extra care” for disabled prisoner per
prison policy did not exhaust claim of unequal treatment), report accepted in part, rejected in part on other grounds,
2011 WL 6148660 (C.D.Cal., Dec. 6, 2011); see Appendix A for additional authority on this point. Cf. Gay v. Cate,
2012 WL 3728014, *6 (N.D.Cal., Aug. 24, 2012) (holding plaintiff’s allegation that he did not get a single cell
based on his medical condition but a person with mental illness would have received a single cell sufficiently
exhausted his equal protection claim); Reece v. Low, 2009 WL 2761923, *7 (W.D.Okla., Aug. 27, 2009) (Plaintiff
who “did not raise a claim of discrimination at every level, [but] included several allegations that the job transfer by

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also divided over whether claims asserted under the Religious Land Use and Institutionalized
Persons Act that were exhausted before that statute was enacted must be exhausted again.572 One
court has held that a medical care complaint was not exhausted because the prisoner failed to
allege in the grievance, as he did in his complaint, that his injury was related to the medical
provider’s cost-cutting.573 All of these cases should arguably result in a finding of exhaustion
under an “object intelligibly” standard. Perhaps more importantly, even if the prisoners’
omissions in these cases are considered to be defects, for the most part they are defects that the
prisoner would be permitted to amend to correct in litigation–an option that is generally not
available in the administrative process.574
3. Exhausting All Issues
Each claim raised in a suit must have been exhausted in order to be heard. 575 That is the
case whether a claim is raised in the initial complaint or added by subsequent amendment. 576 To
Stufflebeam without following the proper procedure was indicative of her practice to discriminate,” gave sufficient
notice of his racial discrimination claim); Banks v. Kartman, 2009 WL 2045942, *3 (W.D.Wis., July 13, 2009)
(complaint about discrimination exhausted racial discrimination claim even if it did not specify race); Douglas v.
Caruso, 2008 WL 4534061, *8 (W.D.Mich., Sept. 30, 2008) (allegation that plaintiff was treated differently from
others similarly situated exhausted equal protection claim). But see Parker v. Mulvaney, 2008 WL 4425579, *5
(W.D.Mich., Sept. 26, 2008) (grievance need not assert claim of discrimination, since legal theories are not required
in grievances).
572
Compare DeHart v. Horn, 390 F.3d 262, 273-74 (3d Cir. 2004) (holding that case exhausted under RFRA need
not be exhausted again under RLUIPA because the standards are the same; thereby distinguishing Wilson v. Moore,
infra); Orafan v. Goord, 2003 WL 21972735, *5 (N.D.N.Y., Aug. 11, 2003) (“In light of the relative informality of
the inmate grievance system and the short limitations period, inmates cannot be prohibited from bringing a suit in
federal court based on causes of action that became available only after the inmates pursued administrative
remedies.”) with Wilson v. Moore, 2002 WL 950062, *6 (N.D.Fla., Feb. 28, 2002) (“While a prisoner is not
required to identify a formal legal theory in his grievance, the administrative resolution of the ‘problem’ cannot
occur if the law governing the problem has yet to take effect.”) The Second Circuit’s adoption of the “object
intelligibly” standard, discussed above, would seem to be consistent with the holding of Orafan and not Moore.
573
Vickery v. Allwood, 2010 WL 2680643, *2 (E.D.Mich., July 6, 2010).
574
Jones v. Stalder, 2007 WL 2164243, *2 (W.D.La., July 23, 2007) (noting that the plaintiff attempted to file a
supplementary grievance to add information and was not allowed to do so); Davison v. MacLean, 2007 WL
1520892, *6-7 (E.D.Mich., May 22, 2007) (noting that prisoner initially grieved harassing acts, later grieved
retaliatory motive for them, but later grievance was dismissed as untimely), reconsideration denied, 2007 WL
1806204 (E.D.Mich., June 21, 2007). In some grievance systems, prisoners are required or permitted to refile
grievances which have been rejected for procedural or formal defects.
575
Jones v. Bock, 549 U.S. 199, 219-20 (2007); Johnson v. Johnson, 385 F.3d 503, 517-19 (5th Cir. 2004) (holding
that a prisoner who complained of sexual assault and referred to his sexual orientation in his grievance, but said
nothing about his race, did not exhaust his racial discrimination claim); Butala v. Gerlicher, 2014 WL 241865, *6-8
(D.Minn., Jan. 22, 2014) (holding that a grievance protesting a transfer for having a romantic relationship with a
staff member did not exhaust a complaint about being transferred to a maximum security prison when his custody
credit level did not so warrant); Toenniges v. Ammons, 2014 WL 66589, *8 (M.D.Ga., Jan. 8, 2014) (holding a
general grievance about medical care does not exhaust a subsequent complaint about the actions of a particular staff
member); Gresham v. Caruso, 2012 WL 7802496, *3 (W.D.Mich., June 11, 2012), report and recommendation
adopted, 2013 WL 1214014 (W.D.Mich., Mar. 25, 2013) (holding a grievance about a rape does not exhaust a
complaint about a cover-up); Kaufman v. Baynard, 2012 WL 844480, *14-15 (S.D.W.Va., Feb. 3, 2012) (holding
grievance about excessive force did not exhaust all related “new claims” such as subsequent transfer, failure to
transfer medical records with her, alleged misconduct at disciplinary hearing, etc.), report and recommendation
adopted, 2012 WL 844408 (S.D.W.Va., Mar. 12, 2012); Rebaldo v. Jenkins, 2011 WL 2293129, *3 (E.D.La., June
8, 2011) (holding claim of sexual assault did not exhaust claim about failure to provide mental health treatment
afterward); Bibbs v. Singh, 2011 WL 1884336, *3 (N.D.Cal., May 18, 2011) (grievance about excessive force

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be exhausted, claims must have been sufficiently recognizable in the grievance to give prison
officials notice that the prisoner was complaining about them.577 One decision finds a “useful
incident did not exhaust claim that two different staff members shoved the plaintiff into a wall on the way to the
medical unit afterwards); Sherman-Bey v. Marshall, 2010 WL 2949256, *3 (C.D.Cal., July 22, 2010) (grievance
about denial of possession of fez did not exhaust complaints about limitation of fez-wearing to cell and religious
services); Toy v. Hayman, 2009 WL 1209277, *3 (D.N.J., May 1, 2009) (request to find out the smoking policy and
complaint about a smoking cellmate, resulting in a cell change, did not exhaust complaint of an inadequate smoking
policy); Black v. Goord, 2007 WL 3076998, *4 (W.D.N.Y., Oct. 19, 2007) (holding grievances about the length of
time the plaintiff was held in full restraints did not exhaust his complaint about pain and inability to exercise or
about lack of due process in renewing the restraint orders); Hart v. Farwell, 2007 WL 2049845, *5 (D.Nev., July 12,
2007) (holding grievance about imposition of lockdowns, which mentioned consequences such as lack of access to
law library, education, and other programs, failed to exhaust a claim that lockdown restrictions interfered with
religious practice); see Appendix A for additional authority on this point.
576
See nn. 485-480, above, concerning amendment of complaints and the exhaustion requirement.
577
Barnes v. Allred, 482 Fed.Appx. 308, 311-12 (10th Cir. 2012) (unpublished) (holding grievance seeking the
cause of plaintiff’s abdominal pain did not exhaust a claim about the failure to order a timely liver biopsy and
delaying treatment for hepatitis); McCollum v. California Dept. of Corrections and Rehabilitation, 647 F.3d 870,
876 (9th Cir. 2011) (holding various grievances about inadequate Wiccan religious accommodation did not exhaust
challenge to lack of a paid Wiccan chaplain because they did not identify that practice as burdening religious
exercise); Olivares v. U.S., 2011 WL 3489300, *2-3 (3d Cir. 2011) (unpublished) (holding grievance seeking
medical furlough to obtain knee surgery did not exhaust request for a knee brace); Morton v. Hall, 599 F.3d 942,
945-46 (9th Cir. 2010) (holding grievance about being denied visits with his children because plaintiff was a sex
offender did not give sufficient notice to exhaust his complaint of being assaulted because of the prison’s disclosure
of his record to other prisoners); O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062 (9th Cir. 2007)
(holding requests for a lower bunk because of a prior brain injury do not exhaust a claim for mental health
treatment); Hamilton v. Daniels, 2013 WL 6795008, *3 (E.D.N.C., Dec. 20, 2013) (holding grievances about lack of
access to medical care did not exhaust complaints about failure to provide wheelchair, safety net, and assistance
from inmate orderly); Norington v. Payne, 2013 WL 5963093, *1-2 (N.D.Ind., Nov. 6, 2013) (holding grievance
complaining of placement on nutra-loaf despite a medical diet did not exhaust claims that the nutra-loaf was raw and
there was not enough of it); Jones v. FCI Beckley Medical Employees, 2013 WL 5670858, *18-19 (S.D.W.Va., Oct.
15, 2013) (holding grievance that exhausted claim that a medical cart struck plaintiff and injured his arm did not
exhaust his claim that staff did not stop and render aid and that he was not given an MRI); Ingram v. Hamkar, 2013
WL 3786715, *2, 5 (E.D.Cal., July 18, 2013) (holding claim about confiscation of knee brace was not exhausted by
earlier grievance about failure to provide an adequate knee brace), report and recommendation adopted, 2013 WL
4496662 (E.D.Cal., Aug. 21, 2013); Gonzalez v. Mullen, 2013 WL 1333560, *4 (N.D.Cal., Mar. 29, 2013) (holding
a grievance about denial of an earring did not exhaust a claim that male prisoners should be allowed all property
items that women were allowed); LeFlore'El v. Bouchonville, 2013 WL 815985, *5 (E.D.Wis., Mar. 5, 2013)
(holding grievance that stated it was about sexually offensive touching did not exhaust complaint about excessive
force mentioned in passing as a “physical altercation”); Williamson v. Martinez, 2013 WL 211118, *3-4 (E.D.Cal.,
January 16, 2013) (holding grievance alleging excessive force and asking for relief against one officer did not
exhaust complaint that a second officer also engaged in excessive force), report and recommendation adopted, 2013
WL 1309438 (E.D.Cal., Apr. 1, 2013); Miles v. Cate, 2012 WL 6738214, *4-5 (E.D.Cal., Dec. 28, 2012) (holding
grievance requesting transfer away from danger of Rift Valley Fever did not exhaust complaint about failure to take
protective measures at prison of residence); Escobar v. Smith, 2012 WL 5465889, *3-4 (E.D.Cal., Nov. 7, 2012)
(holding grievance about denial of pain medication did not exhaust complaint about denial of surgery for the same
condition), report and recommendation adopted, 2012 WL 6560741 (E.D.Cal., Dec. 14, 2012); Gregge v. Kate,
2012 WL 5210772, *3 (E.D.Cal., Oct. 22, 2012 (holding grievance complaining of transfer to prison where Rift
Valley Fever was prevalent and asking for a transfer out did not exhaust claim about a departmental policy); Hallett
v. Davis, 2012 WL 4378020, *4 (S.D.N.Y., Sept. 25, 2012) (holding claim of denial to plaintiff of a diabetic diet
was unexhausted where plaintiff’s grievance did not say he was a diabetic and referred only to deprivations of
diabetic meals to other diabetics); Gay v. Cate, 2012 WL 3728014, *5-6 (N.D.Cal., Aug. 24, 2012) (holding
grievances about medical treatment for incontinence did not exhaust claims that prisoner was at risk of attack by
others because of incontinence); Gaskins v. Whitehead, 2012 WL 3526671, *5 (D.Utah, Aug. 14, 2012) (holding
grievances about medical care which mentioned use of force that caused injuries did not exhaust use of force claim);

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analog” in Title VII exhaustion law, which holds that matters are exhausted “which can
reasonably be expected to grow out of” or are “reasonably related” to the charges in the
administrative filing.578 Other courts have rejected the argument that grievance form and
complaint must be identical: “As long as there is a shared factual basis between the two, perfect
overlap between the grievance and a complaint are not required by the PLRA.”579
Some courts formerly held that if any claim has not been exhausted, the entire case must
be dismissed; the Supreme Court has now rejected this “total exhaustion” theory.580
Exactly what constitutes a separate claim for exhaustion purposes is not clear. Some
courts have defined them broadly in determining what has been exhausted.581 Others, however,
Wright v. Langford, 2012 WL 1074508, *3 (M.D.Ga., Mar. 29, 2012) (holding grievance stating only: “My hand is
fractured your officers handcuffed me behind my back” did not exhaust a use of force claim), reconsideration
denied, 2012 WL 2989602 (M.D.Ga., July 20, 2012); Tatum v. Shoemaker, 2012 WL 899633, *8 (W.D.Va., Mar.
16, 2012) (holding a use of force grievance did not exhaust claim of excessively tight handcuffs where they were not
mentioned); Elvik v. Nevada, 2011 WL 7121452, *7 (D.Nev., Oct. 5, 2011) (grievance which stated that “grievant is
lock[ed] up in the med/mental unit, grievant is not getting any treatment” did not exhaust concerning acts and
omissions that led to his suicide attempt), report and recommendation adopted, 2012 WL 275396 (D.Nev., Jan. 31,
2012); see Appendix A for additional authority on this point; see Reynolds v. Starcevich, 2012 WL 602935, *6
(E.D.Cal., Feb. 23, 2012) (holding addition of a request for a policy change to a grievance on appeal “changed the
issue” and the plaintiff did not exhaust), aff’d, 513 Fed.Appx. 688 (9th Cir. 2013). But see Williams v. Miller, 2013
WL 1089708, *4 (N.D.Cal., Mar. 15, 2013) (holding grievance exhausted claim of denial of outdoor recreation even
though it “focused more” on failure to provide clean clothing), appeal dismissed, No. 13-15670 (9th Cir., Aug. 7,
2013); Mikko v. Smock, 2012 WL 1079806, *9 (E.D.Mich., Mar. 7, 2012) (holding grievance stating “[t]he unit
ventilation system was deliberately left on while the chemical spray was used” exhausted that issue even though the
grievance mainly referred to delays in medical care), report and recommendation adopted in part, rejected in part
on other grounds, 2012 WL 1079811 (E.D.Mich., Mar. 30, 2012); Prochaska v. Heidorn, 2012 WL 359694, *8-9
(E.D.Wis., Feb. 2, 2012) (complaint about failure to obtain medical records exhausted claim about treatment where
plaintiff had been told he would get the care if the practitioners got the records); Pough v. Almager, V.M., 2010 WL
796748, *11 (S.D.Cal., Mar. 4, 2010) (plaintiff exhausted claim about kitchen workers’ lack of hairnets, since he
raised it and it was acknowledged at each level, even though his grievance primarily alleged the denial of hot meals),
objections overruled, 2010 WL 1031153 (S.D.Cal., Mar. 19, 2010).
578
Flanagan v. Shipman, 2009 WL 4043063, *6 n.4 (N.D.Fla., Nov. 20, 2009).
579
Jackson v. Ivens, 244 Fed.Appx. 508, 518 (3d Cir. 2007) (unpublished); accord, e.g., Mack v. Yost, ___
F.Supp.2d ____, 2013 WL 5774024, *7 (W.D.Pa., Oct. 24, 2013); Jackson v. Carroll, 643 F.Supp.2d 602, 614
(D.Del. 2009).
580
Jones v. Bock, 549 U.S. 199, 220-24 (2007); see § IV.E.6, below.
581
See, e.g., Gomez v. McDonald, 2013 WL 3833048, *7 (E.D.Cal., July 23, 2013) (holding complaint that
segregation unit conditions fell below those generally prevailing in segregation exhausted claim about lack of
personal hygiene items even though it wasn’t mentioned in grievance), report and recommendation adopted, 2013
WL 4515933 (E.D.Cal., Aug. 26, 2013); Rhinehart v. Cate, 2013 WL 322533, *2 (N.D.Cal., Jan. 28, 2013) (holding
that grievance about lockdowns exhausted conditions of lockdowns, such as lack of exercise); Passer v. Steevers,
2010 WL 3210850, *7-8 (E.D.Cal., Aug. 10, 2010) (holding medical care grievances exhausted general adequacy of
care for the injuries named, not restricted to particular treatments mentioned), report and recommendation adopted,
2010 WL 3636198 (E.D.Cal., Sept. 14, 2010); Masterson v. Campbell, 2007 WL 2536934, *14 (E.D.Cal., Aug. 31,
2007) (holding plaintiff had exhausted his “broad retaliation claim” even though he did not identify all those
responsible or describe each alleged instance); Muhammad v. Crosby, 2007 WL 2376050, *3 (N.D.Fla., Aug. 16,
2007) (holding that prisoner who had grieved the failure to provide a Halal diet sufficiently exhausted a motion for a
preliminary injunction to provide such diet by means of bag lunches); Grant v. Cathel, 2007 WL 119158, *5 (D.N.J.
Jan. 10, 2007) (holding that a prisoner’s complaint that he was not receiving prescribed cancer treatment and
medication and was in great pain care sufficiently exhausted a claim that defendants failed to provide an escort to
get him to his medical appointments and defendants failed to supervise his medical care; plaintiff’s grievance
“discuss[ed] the primary grievance underlying his claims, his allegedly inadequate medical treatment”); see
Appendix A for additional authority on this point.

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have treated as separate claims closely related issues that arise from the same transaction or
occurrence. Thus, some decisions have held that a grievance about the actions of line prison
staff fails to exhaust with respect to claims of supervisory liability for those actions. 582 A similar
problem may be presented where prison staff are sued for failing to intervene in the
unconstitutional actions of other staff members.583 These propositions have at least been limited
by the Supreme Court’s rejection of the argument that every person sued must have been named
in the prisoner’s administrative complaint,584 and some courts have rejected them entirely.585 As

582

Kikumura v. Osagie, 461 F.3d 1269, 1285-86 (10th Cir. 2006) (claim of supervisory liability for failure to
provide timely medical care was not exhausted by grievance requesting action to discipline persons who violated
agency policy or to “introduce new policy so that the same wrong-doing won’t happen again”; this did not
sufficiently alert prison officials that the injuries might have been caused by inadequate training and disciplinary
programs); Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003) (holding that a prisoner who grieved about
the officers who abused him, but did not raise in his grievance claims that their supervisor refused to take action
against the officers, failed to train them, and retaliated against him for his complaints, had not exhausted his claim
against the supervisor); accord, Davis v. Powell, 2013 WL 3339024, *4 (M.D.Ga., July 2, 2013) (dismissing
supervisory liability claim based on policy of excessive force in the absence of a grievance against the supervisor
raising that claim); Heaton v. Wray, 2010 WL 5387521, *2 (D.S.C., Dec. 22, 2010) (holding claims for failure to
discipline staff must be grieved explicitly); Cottrell v. Wong, 2009 WL 3011250, *7 (E.D.Cal., Sept. 17, 2009),
report and recommendation adopted, 2009 WL 5198091 (E.D.Cal., Dec. 22, 2009); Adams v. Bouchard, 591
F.Supp.2d 1191, 1196 (W.D.Okla. 2008) (holding supervisory liability claims are distinct claims that must be
exhausted separately); Nichols v. Logan, 2004 WL 2851944, *8 (S.D.Cal., Nov. 23, 2004). This problem is also
discussed at nn. 677-678, below.
583
Todd v. LaMarque, 2007 WL 1982789, *3 (N.D.Cal., July 2, 2007) (dismissing for non-exhaustion claims
against bystanding officers at a use of force whose conduct was not described in the grievance). But see Moore v.
Thomas, 653 F.Supp.2d 984, 1006 (N.D.Cal. 2009) (grievance alleging excessive force by one officer and referring
to the presence of others exhausted as to their failure to intervene).
584
Jones v. Bock, 549 U.S. 199, 218 (2007); see Jensen v. Knowles, 2008 WL 5156694, *5 (E.D.Cal., Dec. 9,
2008) (citing Jones to reject argument that supervisory defendants must have been named in grievance to be sued).
585
Wisenbaker v. Crawford, 331 Fed.Appx. 494, 495 (9th Cir. 2009) (“By outlining the attack and resulting injuries
he suffered and the correctional officers' purportedly deficient response, Wisenbaker's grievance placed the
defendants on sufficient notice that he was grieving the existence and absence of policies and procedures that led to
his injuries.”); Steece v. Corrections Corp. of America, Inc., 2012 WL 761923, *5 (D.Idaho, Mar. 8, 2012) (holding
allegations of inadequate staffing, failure to train and discipline staff, failure adequately to investigate assaults and
refer for prosecution, etc., were not claims requiring exhaustion, but factual indicia supporting plaintiff’s claim for
liability for assault—though court emphasizes he was no seeking relief from them); Rebaldo v. Jenkins, 2011 WL
2293129, *3 (E.D.La., June 8, 2011) (holding failure to train and supervise “does not constitute a separate violation.
. . . The legal theory espoused against Miller simply makes him potentially liable for a constitutional injury meted
out by one of his inferior officers.” No additional constitutional injury or damages were attributable to the
supervisor.); Sanders v. Williams, 2010 WL 1631767, *13 (D.N.M., Mar. 20, 2010) (holding supervisory liability is
a legal theory that need not be grieved); see Appendix A for additional authority on this point; see also Etters v.
Bennett, 2011 WL 976472, *7-8 (E.D.N.C., Mar. 16, 2011) (holding sexual abuse supervisory claims were
exhausted by allegations that officials took no action after report and grievance were submitted, and that officials
failed to report allegations or prevent the assaults from happening again, and that the institution should be held
accountable for not fulfilling their job duties), appeal dismissed, 444 Fed.Appx. 686 (4th Cir. 2011); Taylor v.
Clark, 2011 WL 917382, *23 (E.D.Cal., Feb. 16, 2011) (holding supervisory claims exhausted; “Plaintiff’s request
that Defendant McKesson be counseled about his aggression, that Defendant McKesson immediately see a
professional for his anger management, and that the matter be investigated were sufficient to alert the prison of the
problem with Defendant McKesson's anger and use of force and Plaintiff's desires for Defendant McKesson's
supervisors to take action. It matters not that Plaintiff did not use the words ‘train,’ ‘supervise,’ or ‘discipline.’
Plaintiff clearly requested action that could only be taken by those in positions of supervision over Defendant
McKesson.”), report and recommendation adopted as modified, 2011 WL 904241 (E.D.Cal., Mar. 16, 2011); Hooks
v. Rich, 2006 WL 595909, *6 (S.D.Ga., Mar. 7, 2006) (holding prisoner’s complaint of a long history of abusing

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one recent decision put it in a case alleging systemic failure to protect from prisoner-prisoner
violence, prisoners who have been assaulted
. . . cannot reasonably have been expected . . . to know of more systemic failures
at [the prison] that allegedly contributed to the incidents; instead, they reasonably
perceived a small slice of what is now alleged to be symptomatic of a much wider
problem. . . . Issues such as inadequate staffing, a failure to train, a failure to
discipline correctional officers and other prisoners, the lack of sufficient written
findings when assaults occurred, and a pervasive “code of silence,” are not
matters that an individual prisoner who has been beaten in one or two separate
incidents can be expected to know without a full investigation that is beyond his
capacity and authority to conduct. If these issues exist, a thorough investigation
by prison officials into the failure to protect issues that were brought to their
attention would presumably uncover them.586
Nevertheless, defendants continue to argue, and some courts continue to hold, that the
supervisory actions or omissions that allegedly caused or allowed the alleged misconduct must
be explicitly grieved.587 A variation of the same problem arises in connection with “name the
defendant” rules, discussed in the next section.588
prisoners sufficiently alerted officials to problems of supervision and management without actually naming
supervisors in the grievance).
586
Riggs v. Valdez, 2010 WL 4117085, *13 (D.Idaho, Oct. 18, 2010), on reconsideration in part, 2010 WL
5391313 (D.Idaho, Dec. 22, 2010); accord, Nestor v. Director of Northeast Region Bureau of Prisons, 2012 WL
6691791, *8 (D.N.J., Dec. 20, 2012) (holding allegation in grievance of sexual assault “could reasonably be
construed as stating a claim of deliberate indifference on the part of the officials who failed to protect Plaintiff from
such an assault. Accordingly, the Bureau should have been on notice of a problem it may have had in keeping
Plaintiff protected from violent attacks by other prisoners.”), order issued, 2012 WL 6697298 (D.N.J., Dec. 20,
2012); Conley v. Birch, 2012 WL 4202702, *4-5 (S.D.Ill., Sept. 19, 2012) (holding complaint of delayed medical
care sufficiently exhausted against medical provider and as to relevant policies; grievance “alerted prison
administrators to the alleged problem with scheduling medical treatment and procedures at Vienna and permitted
prison administrators (who knew that Wexford was the healthcare contractor for the prison) to examine whether
Wexford's policies or practices had caused a delay in Conley's treatment. Conley was not required to identify
specific Wexford policies or grieve specific Wexford practices.”); Steece v. Corrections Corp. of America, Inc.,
2012 WL 761923, *5 (D.Idaho, Mar. 8, 2012) (“[Failure to protect] was the problem as he perceived it from his
vantage point, and to the extent that a broader pattern and practice of administrative failures may have fostered the
environment that led to the harm, as Plaintiff now alleges, an investigation by ICC officials into his grievance should
have reasonably uncovered them.”); Rebaldo v. Jenkins, 2011 WL 2293129, *3-4 (E.D.La., June 8, 2011) (holding
grievance adequate to exhaust training and supervision claim where it “recounted the . . . incident in graphic detail,
and prison officials were clearly armed with sufficient facts to thoroughly investigate the incident”) (emphasis
supplied).
587
See Holloway v. Hobbs, 2013 WL 5935625, *2 (E.D.Ark., Oct. 30, 2013) (noting that plaintiff’s grievance did
not mention anyone’s failure to train); Pitts v. Davis, 2013 WL 3863904, *6 (E.D.Cal., July 24, 2013) (“None of the
inmate appeals described above complains that any of the moving defendants promulgated, enforced or ratified a
policy that would have been the ‘moving force’ behind the medication delays that plaintiff experienced.”), report
and recommendation adopted, 2013 WL 6170042 (E.D.Cal., Nov. 21, 2013); Fletcher v. Sheets, 2011 WL 3206856,
*6 (S.D.Ohio, June 10, 2011) (reference to warden’s “unprofessional acts” did not exhaust claim of inadequate
training), report and recommendation adopted, 2011 WL 3206842 (S.D.Ohio, July 28, 2011); Delaney v. Tilton,
2009 WL 1405008, *4 (E.D.Cal., May 19, 2009) (grievance about officer’s sexual harassment did not exhaust claim
of failure to respond to complaints about officer), report and recommendation adopted, 2009 WL 1953174
(E.D.Cal., July 7, 2009); Hernandez v. Harrison, 2008 WL 4836046, *8-9 (C.D.Cal., Oct. 29, 2008) (grievance
about medical care exhausted as to treatment at the prison but not as to the appeal/review process in the central
office); Delaney v. Tilton, 2008 WL 5054106, *2-3 (E.D.Cal., Nov. 19, 2008) (grievance about harassment and

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A recent appellate decision steers a middle course between a holding that supervisory
issues must be explicitly grieved and one that a grievance reciting what happened to the plaintiff
exhausts all issues of policy and supervision underlying that event. In a case seeking injunctive
relief for an unreasonable risk of sexual abuse by staff, which plaintiffs alleged resulted from
deficiencies in screening, assigning, training, and supervising male staff, and the staff generally,
about sexual misconduct; reporting and investigatory mechanisms; and investigating and
responding to complaints of sexual misconduct,589 the court held that it was sufficient for the
prisoner simply to complain of a failure to protect, without specifying the precise nature of
policy or supervisory failings.
The issue is whether a claim of a failure to protect is sufficient exhaustion with
regard to litigation seeking systemic relief. The issue, in our view, is whether a
reasonable corrections official would recognize a complaint alleging a failure to
protect a female inmate from a sexual assault by a male officer as raising issues
regarding DOCS policies and procedures. We believe that it would. To be sure, a
“grievance may not be so vague as to preclude prison officials from taking
appropriate measures to resolve the complaint internally.” . . . However, a failure
to protect involves conduct by officials superior to the officer accused of the
misconduct and suggests the need for policy and procedural reform. While the
complaint asks for a result—protection—rather than specifying the means used to
reach that result, the need for the result is clearly articulated and the appropriate
means are far more within the expertise of DOCS than the individual prisoner.590

sexual abuse did not exhaust claim against supervisors for inadequate training and supervision), report and
recommendation adopted, 2008 WL 5411932 (E.D.Cal., Dec. 24, 2008); Edwards v. Dwyer, 2008 WL 243943, *6-7
(E.D.Mo., Jan. 25, 2008) (grievance about officer’s sexual harassment did not exhaust claim of inadequate training
and supervision), motion to amend denied, 2008 WL 687419 (E.D.Mo., Mar. 11, 2008); Alls v. Friedman, 2007 WL
806515, *3 (N.D.Cal., Mar. 15, 2007) (holding plaintiff’s grievance alleging bad medical care exhausted his claim
against the doctors, but not his claim that it was caused by budget problems for which higher-ups were responsible).
In Brown v. Grove, 647 F.Supp.2d 1178, 1184 (C.D.Cal. 2009), the court ruled that it sufficiently exhausted a
supervisory claim to name the supervisor and state that he directed a use of force; it was not necessary to say that he
had failed to train and supervise the officers. The court acknowledged Jones v. Bock but did not address its holding
that naming of defendants is not necessary unless the grievance policy requires it. But see Riker v. Gibbons, 2009
WL 910971, *6 (D.Nev., Mar. 31, 2009) (rejecting argument that grievance about plaintiff’s medical treatment
failed to exhaust as to inadequacy of medical care policies).
588
See n. 677 et seq., below.
589
Amador v. Andrews, 655 F.3d 89, 92-94 (2d Cir. 2011).
590
Amador, 655 F.3d at 104 (citation omitted). One prisoner was found to have satisfied the exhaustion requirement
with a grievance stating that she had been harassed for three months, retaliated against, and sexually assaulted by an
officer, and that “This officer is still working on this unit and its not right. I feel that [the officer] should seek
counseling [and be] removed. . ., fired and any other [precaution] that is there.” Amador, 655 F.3d at 103-04.
Another wrote: “I am seeking monetary damages for the reason that the State had a duty to protect me and failed to
do so, thus rendering their misactions as a ‘Failure to Protect’, a most serious dereliction of their duty to provide for
my care, custody and control.” Amador, id. A third complained that “sexual abuse was a problem affecting other
inmates and that no one kept track of what the officers were doing. We believe that this complaint sufficiently raises
systemic issues relating to policies and procedures regarding the prevention of sexual abuse. To be sure, she did not
ask for the precise relief sought in this action, but she adequately alerted the authorities as to her claim of systemic
issues.” Amador, 655 F.3d at 102, 104. Similarly, in a damages case, the Seventh Circuit held that a grievance that
said “the administration don’t [sic] do there [sic] job. [A sexual assault] should’ve never [sic] happen again”
sufficiently alerted prison officials to the need for “better steps ex ante to separate potential aggressors from
potential victims.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004), cert. denied, 544 U.S. 904 (2005).

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Supervisory liability aside, some “exhaust all claims” decisions, in effect, require
uncounselled prisoners to make fine distinctions that many lawyers would miss.591 As one court
has pointed out, this approach would permit prison officials to “obstruct legal remedies to
unconstitutional actions by subdividing the grievances, arguing, e.g., that the Christians,
Muslims, and Jews must each grieve denial of access to their own communal services,”592 though
courts have generally rejected extreme attempts to manufacture non-exhaustion by subdividing
prisoners’ complaints.593 Other decisions have dismissed claims because, even though the facts
591

See, e.g., Perry v. Dickinson, 2012 WL 2559426, *3 (E.D.Cal., June 29, 2012) (holding grievance about the risk
of assault did not exhaust as to the actual assault two months later); Johnson v. Thaler, 2012 WL 1202138, *5
(S.D.Tex., Apr. 9, 2012) (holding that grievance which said a prison staff member fell asleep while driving a vehicle
did not exhaust deliberate indifference claim about driving because the grievance mainly focused on getting medical
care for the resulting injuries), aff’d, 507 Fed.Appx. 370 (5th Cir. 2013) (unpublished); Williams v. Kuenzi, 2007
WL 1771479, *4-5 (N.D.Cal., June 18, 2007) (holding plaintiff’s grievance complaining that he was kept in
restraints for a medical examination and seeking an examination without restraints did not exhaust his complaint that
correctional staff improperly kept him in restraints for the test); Monsalve v. Parks, 2001 WL 823871 (S.D.N.Y.,
July 19, 2001) (holding that even if the plaintiff exhausted concerning his 45-day disciplinary detention, he had to
exhaust again with respect to his retention in administrative detention for the same alleged misconduct).
592
Lewis v. Washington, 197 F.R.D. 611, 614 (N.D.Ill. 2000) (construing grievances about placement in
“unapproved protective custody” status as encompassing complaints about conditions in that unit). But see English
v. Redding, 2003 WL 881000, *4 (N.D.Ill., Mar. 6, 2003) (refusing to apply Lewis v. Washington holding where
prisoner had grieved being removed from protective custody at a different prison, and being disciplined for the fight
in which he was injured, but not the injury he was suing about).
593
See, e.g., Goldtooth v. Szoke, 2014 WL 183910, *3 (S.D.Ill., Jan. 16, 2014) (where plaintiff grieved inadequate
medical care for testicle, leg, and side pain, which proved to stem from a lower back problem, rejecting argument
that plaintiff was obliged to grieve the back problem); Griffith v. Clark, 2013 WL 6000913, *2-3 (E.D.N.C., Nov.
12, 2013) (rejecting claim of non-exhaustion asserting that “plaintiff's complaint alleges that defendants ordered him
to leave the dining hall because he refused to remain seated while awaiting his meal tray, whereas, grievance
number 4880–Blue–0030 merely states that he was given a choice to either sit, while waiting for his tray, or return
to his cell”); Foster v. Statti, 2013 WL 5348098, *3-4 (E.D.Cal., Sept. 23, 2013) (rejecting argument that, in addition
to grieving individual instances of deprivation of yard time, plaintiff must also file a grievance about the cumulative
effect of those deprivations in order to pursue his Eighth Amendment claim), report and recommendation adopted,
2014 WL 931830 (E.D.Cal., Mar. 7, 2014); Furnace v. Nuckles, 2013 WL 1964927, *24 (N.D.Cal., May 10, 2013)
(rejecting defendants’ attempt to divide use of force complaint into two complaints, because plaintiff was beaten in
two different rooms; noting highest-level decision acknowledged events in second room); Young v. Moreno, 2012
WL 1836088, *3 (C.D.Cal., May 8, 2012) (holding that the prisoner asserted a single retaliation claim manifested in
two incidents, and not two separate unexhausted retaliation claims), report and recommendation adopted, 2012 WL
1835631 (C.D.Cal., May 17, 2012); Tolliver v. Collins, 2012 WL 1537603, *6 (S.D.Ohio, April 30, 2012) (rejecting
argument that plaintiff complaining of ongoing exposure to tobacco smoke had not timely exhausted each instance
of exposure he described), report and recommendation adopted, 2012 WL 1940635 (S.D.Ohio, May 29, 2012);
Frederick v. California Dept. of Corrections and Rehabilitation, 2012 WL 1143826, *5 (N.D.Cal., Mar. 30, 2012)
(rejecting argument that grievance exhausted only the failure to clear the plaintiff medically for firecamp, not the
failure to place him there); Johnson v. Yancey, 2005 WL 2290253 (E.D.Ark., Sept. 16, 2005), in which the plaintiff
complained that the jail regularly served him food he believed was not kosher and could not eat. Defendants
asserted that he really had three claims: that the food wasn’t kosher, that the defendants lied about whether it was
kosher, and that he had missed meals. The court held that this reading “defies logic.” 2005 WL 2290253, *2.
Similarly, in Underwood v. Mendez, 2005 WL 2300361 (M.D.Pa., Sept. 9, 2005), report and recommendation
adopted, 2006 WL 860142 (M.D.Pa., Mar. 31, 2006), the plaintiff alleged that he had been transferred for retaliatory
and racial reasons, and the defendants argued that his assertions that defendants falsified his progress report and
conspired against him had to be specifically exhausted. The court said these were “integrally related” to his
exhausted claim and rejected the argument. 2005 WL 2300361, *3; see Alcala v. Martel, 2011 WL 2671507, *7
(E.D.Cal., July 6, 2011) (rejecting supposed distinction between need for medical care raised in plaintiff’s grievance
and question of deliberate indifference of prison staff), report and recommendation adopted, 2011 WL 3319712
(E.D.Cal., July 29, 2011); Allah v. Virginia, 2011 WL 251214, *3-4 (W.D.Va., Jan. 25, 2011) (rejecting argument

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(e.g., loss of property, improper discipline) were grieved, other allegations underlying a
particular legal claim (e.g., discriminatory or retaliatory intent) were not raised in the
grievance.594 Such decisions are arguably contrary to the holding of the Second Circuit and other
courts that prisoners need only “object intelligibly to some asserted shortcoming” and need not
plead legal theories in their grievances to satisfy the exhaustion requirement.595
These decisions are also arguably inconsistent with the Supreme Court’s holding that
“issue exhaustion”–by which it appeared to mean presentation in the administrative process of all
arguments why a challenged decision is wrong–is not required in appeals to the Social Security
Appeals Council, since the relevant statute does not explicitly require it, and the arguments for
issue exhaustion are weakest when administrative proceedings are not adversarial in character.596
Four Justices then observed that Social Security proceedings are inquisitorial rather than
adversarial, with the ALJ responsible for developing the issues, and with no separate
representative advocating the Commissioner’s position before the ALJ; that the regulations
characterize review as done in an “informal, nonadversary manner”; and that many Social
Security claimants are unrepresented or represented by non-attorneys. For these reasons, they
said, issue exhaustion is not required.597
Prison grievance systems, too, generally operate in an informal, nonadversarial manner
without representation by counsel. For example, the New York State prison grievance procedure
states that it is “not intended to support an adversary process, but is designed to promote
mediation and conflict reduction.”598 The federal prison grievance system similarly is intended
“to solve problems and be responsive to issues inmates raise.”599 Thus the Sims plurality
analysis would seem applicable to them and to imply that as long as the basic facts affecting the
prisoner are stated in a grievance, and the grievance policy contains no greater specificity
requirements, the prisoner should be able to raise in litigation any legal argument arising from
those facts. On the other hand, Sims involved an administrative appellate process and did not
that plaintiff who requested recognition of Five Percenters, then filed a grievance about the lack of a response,
grieved only the non-response and not the underlying issue of recognition); Caldwell v. Correctional Medical
Services, 2010 WL 4959859, *4 (E.D.Ark., Nov. 12, 2010) (rejecting argument that plaintiff had failed to exhaust
his rectal bleeding problem, since he repeatedly exhausted the failure to give him Metafiber, the treatment for his
rectal bleeding), report and recommendation adopted, 2010 WL 4955873 (E.D.Ark., Dec. 1, 2010); Knowlin v.
Raemisch, 2009 WL 1850697, *1 (W.D.Wis., June 26, 2009) (rejecting attempt to separate claim about failure to
protect from assault into claims about failure to protect from four named individuals and failure to protect him
against others); Sullivan v. Caruso, 2008 WL 356878, *9 (W.D.Mich., Feb. 7, 2008) (rejecting argument that
plaintiff’s grievance about failure to process his demand for a religious diet did not exhaust his First Amendment
claim for failure to provide a religious diet); Lindell v. Schneiter, 531 F.Supp.2d 1005, 1013 (W.D.Wis., Jan. 7,
2008) (holding that grievance seeking “daily sun-exposure,” filed when there was no outdoor exercise yard,
exhausted present situation where prisoners had some, but not daily, sun exposure in a new yard), motion to amend
denied on other grounds, 2008 WL 4280396 (W.D.Wis., May 5, 2008); Mark v. Imberg, 2005 WL 3201115, *7
(W.D.Wis., Nov. 28, 2005) (holding that grievance about the removal of Wiccan magic seals from cell walls and
doors exhausted a claim about their destruction, since the gist of both was interference with religious exercise by
denial of the seals).
594
See nn. 567-571, above.
595
See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004); see nn. 548-553, 562, for further discussion of these
propositions.
596
Sims v. Apfel, 530 U.S. 103, 109-10 (2000).
597
Id. at 110-12. (Justice O’Connor joined the plurality on narrower grounds. Id. at 112-14.)
598
Appendix D, New York State Dep’t of Correctional Services Directive No. 4040, Inmate Grievance Program §
701.1(b) (July 1, 2006).
599
Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006) (quoting policy).

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address what might be required of the complainant at the initial stage. Relatively few courts
have considered what effect Sims might have on PLRA exhaustion questions, though two circuits
cited it in support of the view (later adopted in Jones v. Bock) that prisoners need not have
named all defendants in their grievances in order to sue them later.600
Further, decisions which have the practical effect of freezing the prisoner’s legal claims
as of the filing of the administrative grievance are arguably contrary to the Federal Rules of Civil
Procedure’s direction that leave to amend complaints shall be “freely given.”601 There is no
indication that Congress intended to repeal that provision sub silentio for prisoners, and the
Supreme Court has cautioned that the PLRA should not be construed as overturning the usual
rules of litigation except where Congress has so stated. 602 At a minimum, those concerns
counsel a liberal construction of what was exhausted by a particular grievance.
A related question is whether a prisoner who has grieved a particular type or course of
conduct must separately grieve all new incidents of that conduct. The answer is that courts
disagree and context makes a difference. The Second Circuit has held, in a case involving
persistent failure to provide adequate medical care, that once the prisoner had received a
favorable grievance decision on the subject, he had exhausted, even though the denial of
treatment continued: “A prisoner who has not received promised relief is not required to file a
new grievance where doing so may result in a never-ending cycle of exhaustion.”603
This narrow holding does not address the situation where the prisoner does not receive a
favorable decision. However, its logic would seem equally applicable to cases where the
prisoner has exhausted unsuccessfully. Though a few courts seem to reject the proposition that a
grievance can ever exhaust with respect to post-grievance events,604 the more common—and
600

Kikumura v. Osagie, 461 F.3d 1269, 1284-85 (10th Cir. 2006); Thomas v. Woolum, 337 F.3d 720, 734-35 (6th
Cir. 2003) (dictum; acknowledging that circuit precedent bound it to a contrary holding). Cf. Woodford v. Ngo,
548 U.S. 81, 91 n.2 (2006) (declaring Sims irrelevant to the question before it, the meaning of “exhausted”).
601
Rule 15(a), Fed.R.Civ.P.
602
Jones v. Bock, 549 U.S. 199, 212-16, 221-24 (2007).
603
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004); see Rodenhurst v. State of Hawaii, 2009 WL 2365433, *5
(D.Hawai'i, July 30, 2009) (declining to require a new grievance unless defendants show that such a requirement
was in effect and communicated to the plaintiff). But see Pritchett v. Portoundo, 2005 WL 2179398, *3 (N.D.N.Y.,
Sept. 9, 2005) (holding prisoners who successfully grieved denial of programs and received back pay did not
exhaust as to the amount of back pay because they did not separately grieve that issue), report and recommendation
adopted, 2005 WL 2437024 (N.D.N.Y., Sept. 30, 2005).
604
See Mayo v. Snyder, 166 Fed.Appx. 845, 848 (7th Cir. 2006) (unpublished) (holding grievance seeking medical
care for back pain did not exhaust as to events after the filing of the grievance); Diaz v. Martel, 2012 WL 6097135,
*4 (E.D.Cal., Dec. 7, 2012) (holding medical care grievance did not exhaust against doctor who had not treated the
patient at the time of the grievance), report and recommendation adopted, 2013 WL 417615 (E.D.Cal., Jan. 30,
2013); Toney v. Hakala, 2012 WL 1185028, *3 (E.D.Mo., Apr. 9, 2012) (holding “an IRR alleging inadequate
medical care does not serve to exhaust administrative remedies for incidents or conditions that occur after an IRR is
filed”); Taylor v. Holmes, 2009 WL 2170250, *6 (W.D.Mich., July 21, 2009); Vantassel v. Rozum, 2009 WL
1833601, *3 (W.D.Pa., June 25, 2009) (rejecting notion that a grievance can exhaust post-grievance events in
medical care cases); Washington v. Reed, 2008 WL 2230704, *2 (W.D.Mo., May 29, 2008); Laubach v. Scibana,
2008 WL 281545, *6 (W.D.Okla., Jan. 31, 2008), aff’d, 2008 WL 5169352 (10th Cir. 2008); Coltar v. Jacinto, 2007
WL 184808, *4 (E.D.Cal., Jan. 19, 2007) (holding incidents post-dating filing of complaint were “necessarily
unexhausted” in case involving course of treatment of breast lump); Percival v. Knowles, 2006 WL 1581796, *2
(E.D.Cal., June 5, 2006) (holding a grievance about an injury and delay in treatment of it did not exhaust with
respect to a claim that after treatment was provided (and after the grievance was filed), aftercare instructions were
not followed); Kane v. Winn, 319 F.Supp.2d 162, 223 (D.Mass. 2004) (holding prisoner with ongoing medical
complaints had exhausted only up to the date of his grievance).

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more sensible—view is that a single grievance should suffice for ongoing problems such as a
course of inadequate medical care for a single disease or injury, such that every new occurrence
or new consequence of the lack of care need not be the subject of a new grievance,605 within
reason.606 The same should be true for complaints about other sorts of ongoing violations.607
605

See Parzyck v. Prison Health Services Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (each new denial of an
orthopedic consultation need not be grieved separately, even if they support claims against new defendants);
Plummer v. Wexford Health Sources, Inc., 2014 WL 321531, *5-6 (S.D.Ill., Jan. 29, 2014) (holding grievance
recounting incidents during four-month period was not limited to that period where the plaintiff alleged his problems
resulted from a corporate policy of saving money by refusing to refer to specialists, a continuing violation); Schultz
v. California Dept. of Corrections, 2013 WL 5883677, *2 (E.D.Cal., Oct. 30, 2013) (holding grievance about
“ongoing and accumulating” pain was not limited to time period up to filing of grievance); Hoddenback v. Chandler,
2013 WL 1285806, *4 (N.D.Ill., Mar. 27, 2013) (declining to dismiss claim of ongoing medical problem as to doctor
who examined plaintiff in response to his grievance); McNeil v. Hayes, 2012 WL 5989356, *4 (E.D.Cal., Nov. 29,
2012) (similar to Parzyck; claim involves 35-day denial of medication), report and recommendation adopted, 2013
WL 450858 (E.D.Cal., Feb. 4, 2013); Montanez v. Gonzalez, 2012 WL 5208639, *3 (E.D.Cal., Oct. 22, 2012)
(similar to Parzyck; claim involves denial of medication), report and recommendation adopted, 2012 WL 6053628
(E.D.Cal., Dec. 5, 2012); Lopez v. Florez, 2012 WL 3778858, *4 (E.D.Cal., Aug. 31, 2012) (similar to Parzyck,
supra; claim involves denial of medication), report and recommendation adopted, 2012 WL 4207306 (E.D.Cal.,
Sept. 18, 2012); Cowan v. Allen, 2012 WL 3042438, *4 (N.D.Ala., July 5, 2012) (holding once the plaintiff had
exhausted the denial of interferon therapy, subsequent reaffirmation of that decision was exhausted), report and
recommendation adopted, 2012 WL 3042386 (N.D.Ala., July 25, 2012); Johnson v. Florida Dept. of Corrections,
826 F.Supp.2d 1319, 1322-24 (N.D.Fla. 2011) (plaintiff who exhausted at one prison need not re-exhaust failure to
accommodate hearing impairment after transfer where the problem was not fundamentally altered at the new prison;
relying on Parzyck); Hightower v. Schwarzenegger, 2011 WL 2620376, *8 (E.D.Cal., June 30, 2011) (“Repeated
exhaustion of ongoing inadequate medical care is not required.”), report and recommendation adopted, 2011 WL
3665021 (E.D.Cal., Aug. 19, 2011); Rowe v. Department of Corrections, 2010 WL 5071015, *1 (E.D.Cal., Dec. 7,
2010) (similar to Parzyck); Oliverez v. Albitre, 2010 WL 5059616, *6 (E.D.Cal., Dec. 6, 2010) (complaint was
exhausted with respect to a defendant who became involved only after plaintiff’s grievances were filed), report and
recommendation adopted, 2011 WL 127113 (E.D.Cal., Jan. 14, 2011); see Appendix A for further authority on this
point; see also Ellis v. Vadlamudi, 568 F.Supp.2d 778, 783-84 (E.D.Mich. 2008) (treating course of treatment for a
chronic condition as a continuing violation for purpose of assessing timeliness); Marshall v. Hubbard, 2007 WL
1627534, *4 (E.D.Ark., June 4, 2007) (rejecting doctor’s argument that he had not treated the plaintiff at the time his
grievance was filed; noting that plaintiff mentioned this doctor’s treatment in his appeals, so officials knew of the
complaint). But see White v. Lee, 510 Fed.Appx. 640, 641-42 (9th Cir. 2013) (unpublished) (holding claims against
two doctors unexhausted where grievance was filed before they treated plaintiff and did not reference them or their
actions); Asberry v. Cate, 2013 WL 876289, *8-9 (E.D.Cal., Mar. 7, 2013) (holding medical care claim unexhausted
as to two doctors who were not mentioned in the grievance and whose conduct postdated the events described in it),
report and recommendation adopted, 2013 WL 4647975 (E.D.Cal., Aug. 29, 2013).
In Tillis v. Lamarque, 2006 WL 644876 (N.D.Cal., Mar. 9, 2006), the court rejected the argument that a
prisoner who sought injunctive relief in a medical care case, but was transferred after he had grieved the issue, had
to start over at the new prison because those officials had not yet had the opportunity to review his medical situation;
such a rule “would allow prison officials to indefinitely delay an inmate’s suit seeking medical care by transferring
him to a new facility when he has exhausted his prison appeals and suit it imminent. . . .” 2006 WL 644876, *6.
Accord, Voorhis v. Gaetz, 2009 WL 2230763, *2 (C.D.Ill., July 22, 2009); Patel v. Federal Bureau of Prisons, 2006
WL 1307733, *3 (E.D.Ark., May 11, 2006) (same holding as to plaintiff transferred in the course of the grievance
process). But see Watson v. Sisto, 2011 WL 5155175, *40 (E.D.Cal., Oct. 28, 2011) (declining to allow amendment
to assert injunctive medical care claim after transfer because it was not exhausted at the new prison); Maeshack v.
Avenal State Prison, 2011 WL 3439194, *4 (E.D.Cal., Aug. 4, 2011) (holding grievance about medical care
rendered by one doctor did not exhaust against another doctor who saw the plaintiff after transfer), report and
recommendation adopted, 2011 WL 6780906 (E.D.Cal., Dec. 27, 2011).
606
Where the line should be drawn will probably have to be determined ad hoc. In Perry v. Geo Group, Inc., 2009
WL 3698473, *8-9 (W.D.Okla., Nov. 4, 2009), the plaintiff had last grieved his medical problems four years
previously, and three days before he filed suit a prison doctor had requested another appointment for the plaintiff
with an orthopedic specialist. Reasonably enough, the court found his claim insufficiently exhausted, since there

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Courts have applied this principle when the basis for liability of one or more defendants is their
failure to correct the violation in the course of the grievance process.608 The Fifth Circuit has
also taken this approach, while indicating its limits, in a decision in which the plaintiff alleged an
ongoing course of failure to protect him from sexual assault. The court held he had not
exhausted as to any incidents that occurred more than 15 days before his first grievance (15 days
being the grievance time limit), but once he had alerted prison officials to the repeated assaults,
he had exhausted as long as they continued.609 But, the court cautioned, a grievance would not
exhaust as to future incidents of a more discrete nature (e.g., a month apart).610
A similar analysis should apply to challenges to prison policies: once a prisoner has
grieved a prison policy, courts have held he can challenge new applications or consequences of
was no administrative record of his current medical status and treatment. Similarly, the court found non-exhaustion
in Barrett v. Cate, 2011 WL 6753993, *4-5 (E.D.Cal., Dec. 23, 2011), in which the prisoner relied on a 2003
grievance but complained that in 2005-06 different doctors at a different prison improperly reevaluted him rather
than following an earlier doctor’s opinions. Accord, Patten v. Walker, 2013 WL 6056446, *6 (C.D.Cal., Nov. 13,
2013) (holding a grievance about bad dental care in 2008 did not exhaust a claim about bad dental care in 2009 at
another prison involving different practitioners). See also Lopez v. Swift, 2013 WL 4718972, *4 (E.D.Wash., Sept.
3, 2013) (rejecting continuing violation argument, holding each new suicide attempt was a a discrete event from
which the grievance time limit ran, since the plaintiff’s depression varied in severity from moderate to suicidal).
607
See Williams v. Horel, 2011 WL 4372141, *3-5 (N.D.Cal., Sept. 19, 2011) (rejecting the argument that a
grievance about nutritionally and religiously inadequate vegetarian diets exhausted only as to the particular meal
described in the grievance).
608
Bailey v. Correctional Corp. of America, LLC, 2014 WL 693330, *3-4 (D.Idaho, Feb. 21, 2014) (holding
plaintiff need not grieve the inadequacy of the grievance process to seek liability for the underlying claim based on
grievance personnel’s nonfeasance); Gay v. Cate, 2012 WL 3728014, *6 (N.D.Cal., Aug. 24, 2012) (“Defendants'
argument, if accepted in this case, would mean that prisoners would have to pursue multiple rounds of grievances
challenging the denial of rounds of grievances. This is an unduly burdensome expansion of the exhaustion
requirement.”); Fuller v. California Dept. of Corrections, 2008 WL 619159, *8 (E.D.Cal., Mar. 4, 2008), report and
recommendation adopted, 2008 WL 883244 (E.D.Cal., Mar. 31, 2008); Davis v. Knowles, 2007 WL 2288317, *2
(E.D.Cal., Aug. 8, 2007) (noting that those involved “were put on notice of plaintiff’s claims by virtue of their
positions”), report and recommendation adopted, 2007 WL 2711220 (E.D.Cal., Sept. 14, 2007). In such a case, the
claim is not that denying a grievance in itself violates rights, but that the consequence of the denial (here, lack of a
single cell) does so. Id. In a “name the defendant” system, the opposite outcome would obtain. See Doss v.
Maples, 2012 WL 3762452, *3 (E.D.Ark., Aug. 3, 2012), report and recommendation adopted, 2012 WL 3759018
(E.D.Ark., Aug. 29, 2012). Some grievance systems will not address allegations added during the course of the
grievance process and require that relevant personnel be named at the initial stage of the process. See cases cited in
nn. 620, 670, 672, below concerning other aspects of this problem.
609
Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (“As a practical matter, Johnson could not have been
expected to file a new grievance every fifteen days, or each time he was assaulted. . . . Further, the TCDJ rules
specifically direct prisoners not to file repetitive grievances about the same issue and hold out the threat of sanctions
for excessive use of the grievance process.”); accord, Howard v. Waide, 2008 WL 2814821, *15-16 (10th Cir. 2008)
(prisoner who had grieved the risk of assault and rape by gang members was not required to file another grievance
when he actually was raped); see Hixon v. MCSP Admin. Office, 2007 WL 2390417, *4 (E.D.Cal., Aug. 20, 2007)
(holding complaint of sexual and verbal harassment because of sexual orientation exhausted as to conduct “related”
to the actions he had grieved; “Regardless of the exact details of the harassment, the prison was put on notice that
such harassment could in fact be occurring.”), report and recommendation adopted, 2007 WL 2793272 (E.D.Cal.,
Sept. 26, 2007).
610
Johnson v. Johnson, 385 F.3d at 521 n.13; accord, Trigo v. TDCJ-CID Officials, 2010 WL 3359481, *20
(S.D.Tex., Aug. 24, 2010) (applying Johnson to complaint about Hepatitis C treatment); Howard v. Waide, 2008
WL 2814821, *16 (holding grievances about history and risk of gang assault did not exhaust as to gang threats and
assault after he had been transferred out of state and returned to a different unit). But see Ellis v. Vadlamudi, 568
F.Supp.2d 778, 784-85 (E.D.Mich. 2008) (declining to apply Johnson to denial of care for chronic medical
condition, instead analogizing to continuing violation rule in statute of limitations analysis).

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the policy without further exhaustion.611 This view should apply to instances where the plaintiff
is transferred to a different prison or unit but remains subject to the same policy.612
Such holdings may not extend to more discrete or factually dissimilar incidents.613 For
example, one court has held that a grievance complaining generally of censorship procedures
does not exhaust with respect to each item censored under the procedures, since publications
611

Turley v. Rednour, 729 F.3d 645, 6503 (7th Cir. 2013) (holding challenge to lockdown policy was not limited to
specific lockdowns cited in plaintiff’s grievance; “In order to exhaust their remedies, prisoners need not file
multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable
condition is continuing.”); Johnson v. Killian, 680 F.3d 234, 238-39 (2d Cir. 2012) (holding a 2005 grievance about
a policy sufficiently exhausted where the policy was changed but then reinstated in 2007; warning that holding does
not extend to “generalized complaints regarding the conditions of confinement” but is “necessarily limited to cases
in which a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a
lawsuit.”); Sousa v. Wegman, 2014 WL 334596, *6-7 (E.D.Cal., Jan. 29, 2014) (holding a 2009 grievance exhausted
a 2011 claim of ongoing religious deprivation notwithstanding that the plaintiff had received partial relief in 2009,
which was later terminated; “A prisoner who has not received promised relief is not required to file a new grievance
where doing so may result in a never-ending cycle of exhaustion.” (quoting Abney v. McGinnis, 380 F.3d 663, 669
(2d Cir.2004))), report and recommendation adopted, 2014 WL 806943 (E.D.Cal., Feb. 28, 2014); Mitchell v.
Felker, 2012 WL 2521827, *5 (E.D.Cal., June 28, 2012) (holding grievance about lockdowns at a particular time did
not exhaust as to earlier ones, but did exhaust as to later ones since no further remedy was available once plaintiff’s
central complaint was rejected), report and recommendation adopted, 2012 WL 3070084 (E.D.Cal., July 27, 2012);
Holley v. Swarthout, 2012 WL 639452, *6-7 (E.D.Cal., Feb. 27, 2012) (prisoner who grieved policy of race-based
lockdowns and got decision upholding the policy need not grieve subsequent lockdowns; “If the Department's
written statements are to be taken seriously, it is pointless for this inmate to return for another round of exhaustion
over the same issue of race based lockdowns.”), report and recommendation adopted, 2012 WL 1130706 (E.D.Cal.,
Mar. 29, 2012); see Appendix A for additional authority on this point. But see Parthemore v. Knipp, 2013 WL
3941996, *4 (E.D.Cal., July 30, 2013) (holding grievance about restraint policy could not exhaust claims about
particular instances of restraint against different officers), report and recommendation adopted, 2013 WL 5567996
(E.D.Cal., Oct. 9, 2013).
612
Florer v. Johnson, 2007 WL 2900179, *4-5 (W.D.Wash., Oct. 2, 2007) (holding grievance at one prison about
lack of kosher diet exhausted the issue at another prison where officials had said the decision was made at the state
level and would not change by location); Mohammad v. Kelchner, 2005 WL 1138468, *6 (M.D.Pa., Apr. 27, 2005)
(holding prisoner who had exhausted his complaint of denial of a prayer rug in the “Special Management Unit” need
not exhaust again after being transferred to the “Long Term Segregation Unit” where he was subjected to the same
policy). In Crump v. Michigan Dept. of Corrections, 2011 WL 7627252, *3-4 (E.D.Mich., Nov. 14, 2011) report
and recommendation adopted, 2012 WL 1019616 (E.D.Mich., Mar. 26, 2012), which arose in a system that, as
noted elsewhere, has a “name the defendant” grievance policy, see nn. 542, above, and 659, below, the court held
that a grievance at the sending prison about a policy governing religious practice did not exhaust with respect to
staff’s actions at the receiving prison, but it held that plaintiff had raised a material factual issue with regard to
exhaustion of his claim against the Commissioner and another statewide official. But see Pinson v. St. John, 2013
WL 765639, *1 (N.D.Ala., Feb. 25, 2013) (holding that a 2008 grievance re policy of opening legal mail outside
prisoner’s presence did not exhaust as to 2009-10 incidents under the same policy at another prison).
613
See Avery v. Elia, 2012 WL 6738312, *5 (E.D.Cal., Dec. 28, 2012) (holding a successful grievance seeking
reinstatement to Kosher meal program did not exhaust a later incident of revocation of Kosher privileges), report
and recommendation adopted, 2013 WL 1281769 (E.D.Cal., Mar. 27, 2013); Bartholomew v. Solorzano, 2012 WL
6561743, *5 (E.D.Cal., Dec. 14, 2012) (holding grievance filed after one instance of harassment did not exhaust as
to others, though one was allegedly in retaliation for the grievance); Wolfel v. Collins, 2011 WL 14457, *2
(S.D.Ohio, Jan. 4, 2011) (holding challenge to racial assignment policy in 2004 did not exhaust as to 2007 incident);
Benjamin v. Commissioner N.Y. State Dept. of Correctional Services, 2007 WL 2319126, *11 (S.D.N.Y., Aug. 10,
2007) (holding grievance concerning double celling with a smoker, which resulted in plaintiff’s being moved to a
single cell, did not exhaust his subsequent complaint that there was second-hand smoke in the unit where he was
single-celled). But see Masterson v. Campbell, 2007 WL 2536934, *13-14 (E.D.Cal., Aug. 31, 2007) (holding
plaintiff had exhausted his “broad retaliation claim” even though he did not identify all those responsible or describe
each alleged instance).

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may present different regulatory and constitutional issues depending on their content.614 Another
has held similarly with respect to complaints of “rampant” mishandling of legal mail. 615
However, another court held that a prisoner who grieved prison staff’s eavesdropping on his
legal telephone calls exhausted as to calls made after as well as before the grievance decision.616
A grievance challenging a policy does not exhaust as to a new and revised policy that
substantially changes or eliminates the provisions at issue in the grievance.617 Conversely, a
change in policy that does not eliminate the plaintiff’s objection to the prior version should not
require the plaintiff to start exhaustion over. “The PLRA serves as a threshold; once it is met, a
suit may not be dismissed so long as the claims remain the same.”618
Some recent decisions hold that events which postdate the filing of the original grievance
can be exhausted if they are raised in the grievance appeal process,619 assuming the grievance
rules permit their consideration—which they often do not.620 As with other procedural issues, if
614

Daker v. Chatman, 2007 WL 4061961, *2 (N.D.Ga., Oct. 31, 2007); accord, Miskam v. McAllister, 2011 WL
1549339, *4-5 (E.D.Cal., Apr. 21, 2011) (holding challenge to censorship policy and to one publication did not
exhaust policy’s application to other publications or existence of a list of banned publications). A grievance
challenging the policy does, of course, exhaust with respect to a facial challenge to the policy. Meisberger v.
Donahue, 245 F.R.D. 627, 629 (S.D.Ind. 2007).
615
Kirkwood v. Ives, 2011 WL 6148665, *4-5 (E.D.Ky., Dec. 9, 2011); accord, Hayes v. Radford, 2012 WL
4481213, *7 (D.Idaho, Sept. 28, 2012) (holding exhaustion of several periods of opening legal mail did not exhaust
as to a later period after the initial exhaustion).
616
Evans v. Inmate Calling Solutions, 2011 WL 7470336, *9-10 (D.Nev., July 29, 2011).
617
Welch v. California Dept. of Corrections, 2007 WL 2156243, *3, 5 (E.D.Cal., July 25, 2007), report and
recommendation adopted, 2007 WL 2792405 (E.D.Cal., Sept. 26, 2007); O’Bryan v. Bureau of Prisons, 2006 WL
1494024, *4 (E.D.Mich., May 25, 2006).
618
Moussazadeh v. Texas Dept. of Criminal Justice, 703 F.3d 781, 789-90 (5th Cir. 2012) (where plaintiff grieved
the failure to provide a kosher diet in the dining hall, defendants provided such a diet, but then transferred the
plaintiff to a new prison where he could only obtain kosher food by purchasing it, he need not re-exhaust; plaintiff’s
claim “relates to conduct that continues to occur”); Chapman v. Frank, 2007 WL 2220266, *5 (E.D.Wis., Aug. 1,
2007); Ayyad v. Gonzales, 2007 WL 324564, *6 (D.Colo., Jan. 30, 2007) (holding prisoner challenging “Special
Administrative Measures” (SAMs) restricting his communications need not re-exhaust annually when those
measures were renewed with slight modifications, since the result would be “an endless cycle of exhaustion
regarding the same issue. . . .”). But see Hale v. Ashcroft, 683 F.Supp.2d 1189, 1193-94, 1200 (D.Colo. 2009)
(where SAMs were lifted by Department of Justice, and Bureau of Prisons imposed similar but not identical
restrictions, claim was moot and plaintiff must exhaust as to new restrictions).
619
Bouman v. Robinson, 2008 WL 2595180, *2 (W.D.Wis., June 27, 2008) (allowing consideration of issue raised
on appeal where no rule was cited barring amending a grievance appeal and officials considered the issue); Morris v.
Hickison, 2008 WL 2261431, *3 (E.D.Cal., June 2, 2008) (holding prisoner complaining of retaliation for filing of
grievance could raise that claim in an appeal of the initial grievance), report and recommendation adopted, 2008
WL 3976924 (E.D.Cal., Aug. 20, 2008); Edwards v. Hook, 2007 WL 1756347, *4-5 (E.D.Cal., June 18, 2007)
(holding plaintiff who grieved an officer’s conduct and complained about the lack of a thorough investigation of it in
his grievance appeals had exhausted all of the claims; neither the PLRA nor grievance rules required him to “re-start
the grievance process” when a new related claim emerges during the process), report and recommendation adopted,
2007 WL 2225993 (E.D.Cal., Aug. 2, 2007); Marshall v. Hubbard, 2007 WL 1627534, *4 (E.D.Ark., June 4, 2007)
(similar holding in medical care case where post-grievance events were raised in grievance appeals).
620
See Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009) (holding issue raised on appeal was not exhausted where
regulations prohibited amending grievance on appeal); Bailey-El v. Federal Bureau of Prisons, 2007 WL 2461764,
*2 (3d Cir., Aug. 29, 2007) (unpublished) (citing 28 C.F.R. § 542.15(b)(2)); Chaisson v. Grounds, 2014 WL
294301, *3 (E.D.Tex., Jan. 27, 2014); Rhodes v. Robinson, 2013 WL 2190100, *3 (E.D.Cal., May 20, 2013) (noting
grievance rules required all issues to be introduced at the first level), report and recommendation adopted, 2013 WL
4056247 (E.D.Cal., Aug. 9, 2013); Reynolds v. Starcevich, 2012 WL 602935, *6 (E.D.Cal., Feb. 23, 2012) (holding
prisoner who added a request for a policy change on appeal changed the issue and hence did not exhaust), aff’d, 513

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the grievance body decides the merits of a grievance appeal raising new matter, rather than
invoking its rules to reject it, the matter is exhausted.621
All of these comments, and the decisions underlying them, are of course limited by the
Supreme Court’s holding that “it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.”622 But in the absence of a specific policy provision that each
of a sequence of similar incidents must be explicitly grieved, the above cited case law should
serve to establish the default rules.
Many of the cases that engage in close issue-parsing involve disciplinary appeals that are
separate from the prison grievance procedure. Most courts have held that the validity of a
disciplinary rule, the merits of conduct underlying disciplinary charges or related to them, and
conditions of punitive confinement are not exhausted by a disciplinary appeal.623 A suit that
attacks the conduct of the disciplinary hearing itself is clearly exhausted by a disciplinary
appeal,624 unless the grievance rules provide otherwise.625 The next question is whether issues
Fed.Appx. 688 (9th Cir. 2013); Johnson v. Norris, 2009 WL 3823727, *4 (E.D.Ark., Nov. 16, 2009) (“An inmate is
not permitted to add additional staff members or issues at the appeal level.”); see also Newson v. Steele, 2010 WL
3123295, *5 (E.D.Mich., July 1, 2010) (“Plaintiff cannot raise a new issue in a grievance appeal and have it be
deemed exhausted, unless the MDOC proceeded to address that new claim on the merits.”), report and
recommendation adopted, 2010 WL 3123288 (E.D.Mich., Aug. 9, 2010).
621
Conkleton v. Muro, 2011 WL 1135370, *11 (D.Colo., Jan. 31, 2011), report and recommendation adopted in
part, rejected in part on other grounds, 2011 WL 1119869 (D.Colo., Mar. 28, 2011). But see Rodgers v. Tilton,
2011 WL 3925085 (E.D.Cal., Sept. 1, 2011) (holding that a new issue added during the course of exhaustion, but not
mentioned in the final decision, was not exhausted).
622
Jones v. Bock, 549 U.S. 199, 218 (2007).
623
See Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (disciplinary appeal of contraband and smuggling charges
did not exhaust claim of confiscation of papers and personal effects where confiscation was not a “constituent
element of the disciplinary hearing”); Pryor v. Webb, 2013 WL 3270870, *4 (C.D.Cal., June 24, 2013) (holding
successful defense of disciplinary proceeding did not exhaust claims of retaliation and deliberate indifference);
Hayes v. Walsh, 2013 WL 2285365, *4 (M.D.Pa., May 23, 2013) (disciplinary appeal did not exhaust complaint
about conditions in segregation); Franklin v. Nusbaum, 2012 WL 7148203, *5 (N.D.Ohio, Oct. 29, 2012)
(disciplinary appeal did not exhaust plaintiff’s use of force claim), report and recommendation adopted, 2013 WL
587570 (N.D.Ohio, Feb. 13, 2013), motion for relief from judgment denied, 2014 WL 814912 (N.D.Ohio, Feb. 21,
2014); Clevenger v. Corrections Corp. of America, Inc., 2012 WL 761769, *5 (D.Idaho, Mar. 8, 2012) (disciplinary
appeal disputing factual basis of charges did not exhaust claim of failure to protect); Armstrong v. Small, 2011 WL
5569641, *3 (S.D.Cal., Nov. 15, 2011) (dismissal of disciplinary report charging participation in riot did not exhaust
plaintiff’s claims that correctional staff had known about the impending riot and failed to act to prevent it); Taylor v.
Van Lanen, 2011 WL 4344233, *1 (E.D.Wis., Sept. 14, 2011) (“the purpose of disciplinary proceedings is to assess
the conduct of the inmate, not that of the prison staff”; a grievance would have put plaintiff’s claim before the proper
decision-makers); see Appendix A for additional authority on this point. Contra, Mitchell v. Horn, 318 F.3d 523,
531 (3d Cir. 2003) (holding that a prisoner who claimed retaliatory discipline exhausted by appealing the
disciplinary decision to the highest level); Harper v. Harmonn, 2006 WL 2522409, *3-4 (E.D.Cal., Aug. 29, 2006)
(holding that a disciplinary appeal exhausted the plaintiff’s claim that staff members falsified the charges against
him); Samuels v. Selsky, 2002 WL 31040370, *8 (S.D.N.Y., Sept. 12, 2002) (holding that propriety of confiscation
of religious materials had been exhausted via a disciplinary appeal from the resulting contraband and
“demonstration” charges; “issues directly tied to the disciplinary hearing which have been directly appealed need not
be appealed again collaterally through the Inmate Grievance Program”); see Hopkins v. Coplan, 2005 WL 615746,
*2 (D.N.H., Mar. 16, 2005) (holding that a disciplinary appeal did not exhaust a claim of a staff-prompted inmate
assault, which it did not focus on or set out in detail; stating in dictum that if the appeal had set out the claim in
detail and identified the relevant parties and their wrongful conduct, the court might treat it as “the functional
equivalent of an exhausted grievance”).
624
Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (disciplinary appeal exhausted due process claim; plaintiff’s
argument that SHU conditions were atypical and significant so as to require due process did not require a separate

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that are directly related to the disciplinary hearing or charges, but do not challenge the conduct of
the hearing itself, can be exhausted by a disciplinary appeal. In theory that question is answered
by the prisons’ own designation of appropriate remedies under the Supreme Court’s “proper
exhaustion” holding.626 In practice, prison systems do not necessarily give clear guidance on
such questions. In a New York State case, the Second Circuit has held that a prisoner was

grievance); Jenkins v. Haubert, 179 F.3d 19, 23 n.1 (2d Cir. 1999) (holding that disciplinary appeals exhausted
plaintiff’s challenge to the resulting disciplinary sanctions); Smith v. Deluaux, 2009 WL 3482280, *1-2 (W.D.Wis.,
Oct. 26, 2009) (same as Davis v. Barrett); Portley-El v. Steinbeck, 2008 WL 697383, *10 (D.Colo., Mar. 14, 2008)
(holding that a disciplinary appeal exhausted due process claims under rule stating grievance procedure may not be
used to seek review of disciplinary convictions; rejecting defendants’ argument that constitutional claims could be
grieved); Rivera v. Goord, 2003 WL 1700518, *10 (S.D.N.Y., Mar. 28, 2003) (holding that a claim of hearing
officer misconduct was exhausted by a disciplinary appeal); Muhammad v. Pico, 2003 WL 21792158, *8 n.22
(S.D.N.Y., Aug. 5, 2003) (holding due process claims exhausted by disciplinary appeal); Sweet v. Wende
Correctional Facility, 253 F.Supp.2d 492, 496 (W.D.N.Y. 2003) (holding an appeal from a disciplinary hearing may
exhaust if it raises the same issues as the subsequent federal complaint). But see Lopez v. Wall, 2010 WL 4225944,
*5 (D.R.I., Aug. 19, 2010) (holding rule making “discipline decisions” non-grievable did not apply to allegations of
lack of impartiality and falsification of evidence, which were required to be grieved), report and recommendation
adopted, 2010 WL 4225872 (D.R.I., Oct. 25, 2010), motion to reopen denied, 2011 WL 3667592 (D.R.I., Aug. 22,
2011); Spencer v. Cain, 2008 WL 4712825, *2 (M.D.La., Oct. 23, 2008) (claim that disciplinary charges were
retaliatory for exercise of free speech was not exhausted by being mentioned in a disciplinary appeal); Rivera v.
Nelson, 2006 WL 2038393, *1 (D.Colo., July 17, 2006) (holding that disciplinary appeals exclusively addressed
only “the conviction that resulted from the disciplinary hearing and the placement that resulted from the
administrative segregation hearing,” and due process claims should have been the subject of separate grievances);
accord, Ross v. Gibson, 2006 WL 2567853, *2 (D.Colo., Aug. 8, 2006).
625
Fortney v. Schultz, 2010 WL 376932, *2 (W.D.Wis., Jan. 27, 2010) (noting that disciplinary appeals in this
prison system exhaust as to sufficiency of the evidence, but procedural errors must be challenged through a
subsequent grievance).
626
Woodford v. Ngo, 548 U.S. 81 (2006); see Lane v. Zirkle, 2012 WL 6860255, *6 (W.D.Pa., Dec. 21, 2012)
(holding that plaintiff was required to grieve claims of retaliation, denial of access to courts, due process and equal
protection violations even though they arose from a disciplinary incident), report and recommendation adopted,
2013 WL 164488 (W.D.Pa., Jan. 15, 2013); James v. Dicus, 2012 WL 6849719, *3 (E.D.Ark., Dec. 5, 2012)
(holding that though disciplinary claims cannot be grieved, retaliation and discrimination claims related to the
discipline can be grieved), report and recommendation adopted, 2013 WL 140891 (E.D.Ark., Jan. 11, 2013); Crump
v. Best, 2012 WL 1056806, *16 (E.D.Mich., Mar. 5, 2012) (holding claim that charges were retaliatory was not nongrievable under “clarified” rule stating “Decisions made in hearings conducted by hearing officers of the State
Office of Administrative Hearings and Rules . . . and issues directly related to the hearing process (e.g., sufficiency
of witness statements; timeliness of misconduct review; timeliness of hearing)” are “non-grievable.”), report and
recommendation adopted, 2012 WL 1021703 (E.D.Mich., Mar. 27, 2012), reconsideration denied, 2012 WL
1443817 (E.D.Mich., Apr. 26, 2012); Ragland v. City of St. Louis, Mich., 2012 WL 511827, *4 (E.D.Mich., Jan. 9,
2012) (holding disciplinary appeal did not exhaust claim that charges were retaliatory), report and recommendation
adopted, 2012 WL 511801, *2 (E.D.Mich., Feb. 16, 2012); Keal v. Washington, 2007 WL 1977155, *2
(W.D.Wash., July 3, 2007) (noting disciplinary appeal must be used to challenge infraction or sanction for
infraction, but staff misconduct grievance was the remedy for use of force complaint); Parks v. Dooley, 2011 WL
847011, *16-17 (D.Minn., Feb. 11, 2011) (holding claims of retaliatory false disciplinary charges, threats, coercion,
and false testimony at a disciplinary hearing should have been grieved; actual disciplinary dispositions were
exhausted through the disciplinary appeal system), report and recommendation adopted in pertinent part, 2011 WL
841278 (D.Minn., Mar. 8, 2011). If the designated remedy is a disciplinary appeal, but the prisoner cannot appeal
because he pled guilty to the offense, the remedy is not available. Marr v. Fields, 2008 WL 828788, *5-7
(W.D.Mich., Mar. 27, 2008).
In Akhtar v. Mesa, 698 F.3d 1202, 1210-11 (9th Cir. 2012), in which the plaintiff challenged his
disciplinary conviction by grievance under the relevant rules, he also exhausted his claim about the denial to him of
the benefit of a decision that he was entitled for medical reasons to a lower bunk.

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justified by special circumstances627 in filing only a disciplinary appeal, and not a grievance,
based on a reasonable belief that his complaint about the retaliatory fabrication of evidence
against him could only be pursued in that manner.628 Remarkably, New York has not clarified
the distinction between grievances and appeals since that decision.629 Indeed, it has made in
court precisely the opposite argument from that in Giano, arguing that a prisoner who did file a
627

In the Second Circuit such a finding means the prisoner is not deemed to have exhausted, but must seek to
exhaust remedies if they remain available; if not, the prisoner may proceed with the litigation. Giano v. Goord, 380
F.3d 670, 680 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680, 690-91 (2d Cir. 2004); see Torres v. Carry, 672
F.Supp.2d 338, 345-46 (S.D.N.Y., Oct. 19, 2009) (where plaintiff’s appeal had not been decided for four years,
court directs defendants to bring it to the grievance body’s attention within 30 days and holds plaintiff may re-file if
there is no decision within 30 days thereafter), reconsideration denied, 672 F.Supp.2d 346 (S.D.N.Y. 2009).
628
Giano v. Goord, 380 F.3d 670, 679 (2d Cir. 2004) (stating that even if the plaintiff was wrong, “his interpretation
was hardly unreasonable”; the regulations “do not differentiate clearly between grievable matters relating to
disciplinary proceedings, and non-grievable issues concerning the ‘decisions or dispositions’ of such proceedings.”);
accord, Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (stating when a civil rights claim is “so interrelated” to a
challenge of a disciplinary hearing, that an inmate “could not be expected to distinguish them,” an appeal of the
disciplinary hearing may be sufficient to exhaust the civil rights claim); Johnson v. Testman, 380 F.3d 691, 696-97
(2d Cir. 2004) (remanding claim that “because under BOP regulations the appellate process for disciplinary rulings
and for grievances was one and the same, [plaintiff] reasonably believed that raising his complaints during his
disciplinary appeal sufficed to exhaust his available administrative remedies,” since it “cannot be dismissed out of
hand, especially since the district court has not had the opportunity to examine it.”); Lewis v. Havernack, 2013 WL
1294592, *2-3 (N.D.N.Y., Mar. 28, 2013) (similar to Giano); Pacheco v. Drown, 2010 WL 144400, *21 (N.D.N.Y.,
Jan. 11, 2010) (finding factual question as to special circumstances and estoppel where plaintiff’s grievance about
SHU conditions was erroneously rejected and it was too late to file a disciplinary appeal); Branch v. Goord, 2006
WL 2807168, *3 (S.D.N.Y., Sept. 28, 2006) (finding plaintiff’s misunderstanding that all matters concerning
disciplinary hearings were exempt from grievance process was “reasonable” under Giano); see Ray v. Kertes, 130
Fed.Appx. 541, 544 (3d Cir. 2005) (unpublished) (citing Giano); Woods v. Lozer, 2007 WL 173704, *3
(M.D.Tenn., Jan. 18, 2007) (holding a prisoner exhausted when he appealed a grievance decision that his use of
force claim was not grievable because it was mistakenly said to seek review of disciplinary procedures and
punishments); Harper v. Harmonn, 2006 WL 2522409, *3-4 (E.D.Cal., Aug. 29, 2006) (holding plaintiff exhausted
where he raised his claim of falsified disciplinary charges in a disciplinary appeal and the conviction was thrown
out); Parish v. Lee, 2004 WL 877103, *4 (E.D.La., Apr. 22, 2004) (“The inmates must be given the benefit of the
doubt based on what appears to be the written policy to which they are bound.”); see Vasquez v. Hilbert, 2008 WL
2224394, *4 (W.D.Wis., May 28, 2008) (declining to dismiss where plaintiff exhausted his medical claim late
because medical treatment was mentioned in a disciplinary report and the rules said a grievance raising “any issue
related to the conduct report” must await completion of the disciplinary process; plaintiff acted reasonably in
waiting).
In Braham v. Clancy, 425 F.3d 177 (2d Cir. 2005), the court directed the district court on remand to
consider whether the prisoner’s informal requests, his argument about prison officials’ unresponsiveness presented
in his disciplinary appeal, or some combination of the two, gave prison officials sufficient notice to allow them to
take responsive measures, “thereby satisfying the exhaustion of administrative remedies requirement.” 425 F.3d at
183. To the extent Braham suggested that the disciplinary appeal might satisfy the exhaustion requirement, as
opposed to merely justifying the failure to exhaust, the Second Circuit has now held it overruled by the “proper
exhaustion” rule of Woodford v. Ngo, 548 U.S. 81 (2006), discussed in §§ IV.E.7-8, below. This holding appears to
undermine subsequent district court decisions assuming that a disciplinary appeal can satisfy the exhaustion
requirement with respect to issues other than the disciplinary proceeding itself as long as the appeal gives sufficient
notice of those other issues. See Benjamin v. Commissioner New York State Dept. of Correctional Services, 2006
WL 783380, *2-3 (S.D.N.Y., Mar. 28, 2006); Allah v. Greiner, 2006 WL 357824, *5 (S.D.N.Y., Feb. 15, 2006).
629
It has, seemingly, attempted to shift the cost of unclear rules to the prisoners. The most recent revision to its
grievance policy states: “Note: If an inmate is unsure whether an issue is grievable, he/she should file a grievance
and the question will be decided through the grievance process in accordance with section 701.5, below.” Appendix
D, New York State Dep’t of Correctional Services Directive 4040, Inmate Grievance Program at § 701.3(e) (July 1,
2006). This provision, however, does not deal with the situation addressed in Giano where the prisoner reasonably
believes the issue is not grievable.

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grievance about a claim of retaliatory false discipline should instead have pursued a disciplinary
appeal.630
Unclarity in the rules distinguishing grievances and disciplinary appeals is by no means
limited to the New York State prisons.631 There is also evidence that on some occasions, prison
personnel have treated complaints as non-grievable, contrary to prison rules, simply because a
disciplinary proceeding had been commenced concerning the same subject matter.632 On the
other hand, in some prison systems, it is in fact the rule that any overlap with a disciplinary
proceeding makes the matter non-grievable or not immediately grievable.633 In that situation, the
prisoner may be obliged to raise the overlapping issue in the disciplinary process.634
630

Larkins v. Selsky, 2006 WL 3548959, *9 (S.D.N.Y., Dec. 6, 2006) (stating that Giano “nearly mirrors this case
on all fours”). Similarly, Michigan officials argued unsuccessfully in court that a prisoner who had requested a
rehearing of his disciplinary proceeding was also required to file a grievance in order to exhaust; the prisoner
showed that when he had done that in the past, they had rejected his grievance on the ground that the matter was
non-grievable and rehearing of his disciplinary proceeding was the proper remedy. Siggers v. Campbell, 2008 WL
5188791, *4 (E.D.Mich., Dec. 10, 2008). Cf. Hoyt v. LeBlanc, 2014 WL 66484, *4 (M.D.La., Jan. 8, 2014)
(declining to dismiss for non-exhaustion where plaintiff’s grievance concerning failure to reclassify him pursuant to
a successful disciplinary appeal had been held non-grievable)
631
See McCullough v. Federal Bureau of Prisons, 2012 WL 718845, *3 (E.D.Cal., Mar. 5, 2012) (holding that a
disciplinary appeal resulting in expungement of the conviction did not exhaust a complaint that the nominally
expunged conviction was retained in the prisoner’s file); Riggs v. Valdez, 2010 WL 4117085, *9-10 (D.Idaho, Oct.
18, 2010) (noting lack of clarity of rule barring grievances about disciplinary “hearing process including findings
and sanctions,” and prison officials’ rebuffing those prisoners who tried to grieve), on reconsideration in part, 2010
WL 5391313 (D.Idaho, Dec. 22, 2010); Ortego v. Forcht Wade Correctional Center, 2010 WL 2985830, *3
(W.D.La., Apr. 29, 2010) (noting conflict over whether retaliatory discipline should be pursued via grievance or
disciplinary appeal), report and recommendation adopted in part, rejected in part, 2010 WL 2990067 (W.D.La.,
July 27, 2010); Cahill v. Arpaio, 2006 WL 3201018, *2 (D.Ariz., Nov. 2, 2006) (stating jail rules concerning what
aspects of a disciplinary incident can be grieved are “sufficiently confusing such that Plaintiff’s interpretation that he
could not grieve his excessive force claim is reasonable”); see also Shaw v. Jahnke, 607 F.Supp.2d 1005, 1011
(W.D.Wis. 2009) (noting confusion of grievance personnel and state lawyers about the relation of exhaustion to
disciplinary appeals, suggesting state clarify its rules).
632
Marsalis v. Cain, 2014 WL 51215, *3 (M.D.La., Jan. 7, 2014) (holding remedy was unavailable where plaintiff
sought to grieve his extended confinement in lockdown, stating he was not challenging disciplinary or review board
proceedings, but grievances were rejected as concerning non-grievable disciplinary or review proceedings anyway),
report and recommendation adopted, 2014 WL 407457 (M.D.La., Jan. 31, 2014); Houston v. Torres, 2012 WL
5398794, *2, 5 (E.D.Cal., Nov. 2, 2012) (holding grievance was “improperly screen[ed]” where officials treated
complaint about staff conduct as an appeal from the related disciplinary proceeding, and rejected it), report and
recommendation adopted in part, rejected in part on other grounds, 2013 WL 500363 (E.D.Cal., Feb. 11, 2013);
Smith v. Gagnard, 2012 WL 3016705, *4 (M.D.La., May 17, 2012) (denying summary judgment for non-exhaustion
where plaintiff’s use of force grievance did not challenge any aspect of his disciplinary proceeding but was
nonetheless dismissed as a “disciplinary matter”), report and recommendation adopted, 2012 WL 3011731
(M.D.La., July 23, 2012); Fobbs v. Davis, 2012 WL 3683523, *3 (M.D.La., Apr. 2, 2012) (similar to Smith v.
Gagnard), report and recommendation approved, 2012 WL 3683500 (M.D.La., Aug. 24, 2012); Pacheco v. Drown,
2010 WL 144400, *21 (N.D.N.Y., Jan. 11, 2010) (declining to dismiss where prisoner’s grievance about SHU
conditions was mistakenly rejected on the ground that disciplinary matters are non-grievable); Woods v. Lozer, 2007
WL 173704, *3 (M.D.Tenn., Jan. 18, 2007) (holding a prisoner exhausted when he appealed a decision that his use
of force claim was not grievable because it was mistakenly said to seek review of disciplinary procedures and
punishments); Livingston v. Piskor, 215 F.R.D. 84, 86-87 (W.D.N.Y. 2003) (holding that evidence that grievance
personnel refused to process grievances where a disciplinary report had been filed covering the same events created
a factual issue precluding summary judgment).
633
See Tedder v. Johnson, 527 Fed.Appx. 269, 275 (4th Cir. 2013) (unpublished) (reversing summary judgment for
non-exhaustion where prisoner was told he could not grieve a disciplinary proceeding until it was finished, and then
that his grievances were exhausted); Barrett v. Wallace, 2013 WL 4483063, *7 (W.D.Wis., Aug. 20, 2013)

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In some cases, courts have held that disciplinary appeals do not exhaust as to issues
ancillary to the conduct of the disciplinary hearing, but they have generally done so without
closely examining the scope of review of disciplinary appeals. 635 That question is now central
under the proper exhaustion rule of Woodford v. Ngo: if the issue that the prisoner seeks to
litigate is reasonably understood as within the prescribed scope of review of a disciplinary
appeal, a disciplinary appeal exhausts it. That conclusion applies a fortiori where the grievance
system restricts review of matters related to disciplinary proceedings. More generally, where
prison policy provides insufficient guidance to prisoners as to which remedy to pursue, they
should be deemed to have exhausted if they pursue either, since doing so will serve the statute’s
purpose of giving prison officials “time and opportunity to address complaints internally before
allowing the initiation of a federal case.”636 Raising an issue in a disciplinary appeal certainly
creates that opportunity, whether prison officials choose to take advantage of it or not.637
4. Exhausting Each Defendant
The Supreme Court has held that “exhaustion is not per se inadequate simply because an
individual later sued was not named in the grievances,”638 overruling contrary decisions in
(declining to dismiss for non-exhaustion, citing rule relied on in Sanders and Vasquez, below); Sanders v.
Lundmark, 2011 WL 4699139, *4 (W.D.Wis., Oct. 5, 2011) (holding retaliation claim had to be exhausted through
disciplinary appeal before using the grievance system where grievance rules so stated for issues “related to” a
conduct report); Vasquez v. Hilbert, 2008 WL 2224394, *4 (W.D.Wis., May 28, 2008) (citing rule that a grievance
raising “any issue related to the conduct report” must await completion of the disciplinary process); James v.
McCall, 2007 WL 752161, *5 (D.S.C., Mar. 8, 2007) (citing rule stating “[w]hen an inmate is involved in an
incident that results in a disciplinary, that issue/complaint becomes non-grievable”); Lindell v. O’Donnell, 2005 WL
2740999, *27, 31 (W.D.Wis., Oct. 21, 2005) (rejecting argument that plaintiff should have filed an inmate complaint
where the relevant policy forbade using inmate complaints for “any issue related to a conduct report.”); see also
Rivera v. Lindmeier, 2013 WL 6806188, *2-4 (E.D.Wis., Dec. 20, 2013) (stating court’s belief that “any issue
related to the conduct report” refers only to disciplinary hearing procedures, but reaching the merits because “it is
conceivable” that plaintiff’s complaint about being restrained might be within the scope of the regulation); Shaw v.
Jahnke, 607 F.Supp.2d 1005, 1008 (W.D.Wis. 2009) (ambiguous rules could be read to make non-grievable a use of
force about which there was a disciplinary report). But see Rivera v. Nelson, 2006 WL 2038393, *1 (D.Colo., July
17, 2006) (holding disciplinary appeal was exclusive only only as to the disciplinary conviction and not as to due
process claims related to it, and that these must be grieved based on a policy statement that the grievance procedure
applies to “a broad range of complaints”).
634
See McDonald v. Briggs, 2010 WL 727583, *10 (E.D.Mich., Feb. 24, 2010) (holding prisoner alleging retaliation
in “minor misconduct hearing” which was not grievable was required to raise his claim in the hearing, though
“major misconduct hearings” could be grieved). The McDonald decision does not discuss whether the plaintiff had
notice from the prison policy that such issues not directly related to the conduct of the hearing itself could be raised
in the disciplinary proceeding.
635
See, e.g., Benjamin v. Goord, 2002 WL 1586880, *2 (S.D.N.Y., July 17, 2002), reconsideration denied, 2002
WL 31202708 (S.D.N.Y., Oct. 1, 2002); Cherry v. Selsky, 2000 WL 943436, *7 (S.D.N.Y., July 7, 2000).
636
Porter v. Nussle, 534 U.S. at 525.
637
One court has disagreed, stating that “policy concerns militate against” allowing disciplinary appeals to exhaust
conditions of confinement claims because in the federal prison system, disciplinary appeals go directly to the
Regional Director rather than to officials at the prisoner’s institution, and the purpose of letting officials correct their
own mistakes would be thwarted. Laubach v. Scibana, 2008 WL 281545, *7 (W.D.Okla., Jan. 31, 2008), aff’d,
2008 WL 5169352 (10th Cir. 2008). The Supreme Court has in a different context cautioned lower courts against
allowing their notions of policy to affect interpretation of the exhaustion requirement and has held that the
requirements of the administrative system dictate what prisoners are required to do to exhaust. Jones v. Bock, 549
U.S. 199, 212-16, 221-24 (2007).
638
Jones v. Bock, 549 U.S. 199, 218 (2007); see Patterson v. Stanley, ___ Fed.Appx. ____, 2013 WL 6044128, *1-2
(5th Cir. 2013) (unpublished) (holding omission of staff member’s name did not matter where the grievance

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several circuits. Notice to persons who might later be sued “has not been thought to be one of
the leading purposes of the exhaustion requirement.”639 (Some courts seem not to get this point
even after Jones.640) This holding applies equally to damage claims and injunctive claims.641
response showed that officials understood the problem); Woods v. Smith, 2013 WL 655731, *3 (S.D.Tex., Feb. 20,
2013) (plaintiff exhausted where his grievance was sufficient to initiate a review of his medical records, even if he
did not identify the doctor), aff’d, ___ Fed.Appx. ____, 2014 WL 554562 (5th Cir. 2014); Montanez v. Gonzalez,
2012 WL 5208639, *3 (E.D.Cal., Oct. 22, 2012) (similar to Lewis v. Naku, below), report and recommendation
adopted, 2012 WL 6053628 (E.D.Cal., Dec. 5, 2012); Naseer v. Hill, 2010 WL 3472355, *4 (W.D.Wis., Sept. 3,
2010) (“An inmate is only required to put the prison on notice of his claims, not the correct name of each particular
actor.” Plaintiff mis-named one officer in his grievance); Johnson v. Norris, 2009 WL 3147807, *3 (E.D.Ark., Sept.
25, 2009) (holding grievance stating that prisoner had not seen a medical practitioner about his ailment, without
mentioning any names, sufficiently exhausted claims against private prison corporation and staff); Lewis v. Naku,
2007 WL 3046013, *5 (E.D.Cal., Oct. 18, 2007) (holding plaintiff who complained of inadequate medical care for
ongoing conditions sufficiently exhausted even though some defendants had not yet treated him at the time of his
grievances).
639
Jones v. Bock, 549 U.S. at 219 (quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful
that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial
litigation”)); accord, Schlemm v. Frank, 2013 WL 5442293, *1 (W.D.Wis., Sept. 30, 2013) (“The purpose of
administrative exhaustion is not to protect the rights of correctional officers, but to give prison officials a chance to
resolve the complaint without judicial intervention.”); Allen v. Shawney, 2013 WL 2480658, *15 (E.D.Mich., June
10, 2013); Castillo v. Ryan, 2012 WL 2590545, *5 (D.Ariz., July 5, 2012).
640
See, e.g., Longoria v. Davis, 2013 WL 5399994, *3 (S.D.Ill., Sept. 26, 2013) (citing Jones for the opposite of its
holding: “one of the leading purposes of the exhaustion requirement is to notify those who might later be sued”);
Kensu v. Rapelje, 2013 WL 1774637, *4 (E.D.Mich., Apr. 25, 2013) (stating “a plaintiff fails to exhaust
administrative remedies as to a particular defendant not identified in the grievance if the plaintiff specifically
identifies other defendants by name and nothing in the grievance would put the unnamed defendants on notice”);
Wolfe v. Lappin, 2013 WL 1308952, *4 (S.D.Ill., Jan. 16, 2013) (“Plaintiff has presented no grievance that would
have placed Defendants Lappin, Nalley, or Bledsoe on timely notice of a majority of his claims against them.”),
report and recommendation adopted in part, rejected in part on other grounds, 2013 WL 1309732 (S.D.Ill., Mar.
27, 2013); Rains v. Harrington, 2013 WL 510139, *10 (S.D.Tex., Feb. 12, 2013) (“Without their names on the
grievances, Vatani or Dr. Panchbhavi did not have fair notice that he had a complaint against them.”); Richardson v.
Folino, 2012 WL 6552916, *14 (W.D.Pa., Dec. 14, 2012) (holding grievance “was not enough to put Dr. Parks on
notice that Plaintiff sought to hold him liable for any alleged misconduct on his part”); Cochran v. Farver, 2012 WL
5354961 (E.D.Ark. June 19, 2012) (holding a bystander officer named in a use of force grievance “was, or should
have been, on notice that he was included” in the grievance), report and recommendation adopted in part, rejected
in part on other grounds, 2012 WL 5354992 (E.D.Ark., Oct. 29, 2012); Lilly v. Norman, 2012 WL 996567, *2
(E.D.Mo., Mar. 23, 2012) (“By failing to put Defendant Reed on notice of such claim, Plaintiff failed to exhaust the
administrative remedies afforded to him by the PLRA.”); Boyles v. Hobbs, 2008 WL 5088174, *9 (E.D.Ark., Nov.
26, 2008) (stating that plaintiff’s grievance did not give notice to individuals of their actions or inactions); Vandiver
v. Correctional Medical Services, 2008 WL 117857, *4 (W.D.Mich., Jan. 10, 2008) (naming some parties implied
that “no other parties need worry about claims against them”), aff’d in part, rev’d in part, and remanded, 326
Fed.Appx. 885 (6th Cir. 2009) (approving lower court’s finding that grievance “failed to give the defendants fair
notice that the grievance was directed against them”).
A novel variation on this theme was raised and rejected in Eichler v. Tilton, 2009 WL 188783 (E.D.Cal.,
Jan. 27, 2009), report and recommendation adopted, 2009 WL 679519 (E.D.Cal., Mar. 13, 2009), where defendant
officials argued that they could not be held liable unless grievances had been submitted during their tenure in their
respective positions. The court observed that this argument would imply “that if an administrator violates, or allows
the violation of, a prisoner's civil rights, they would be able to escape liability for their actions simply by
transferring to another position and/or retiring prior to the prisoner filing an inmate grievance. The court does not
find this scenario meets the spirit nor the requirements of the PLRA.” 2009 WL 188783, *3.
641
Peterson v. Morin, 2012 WL 1694775, *1 (S.D.Tex., May 15, 2012) (citing Johnson v. Johnson, 385 F.3d 503,
515–16 (5th Cir. 2004), noting its citation with approval in Jones v. Bock), report and recommendation adopted as
modified, 2012 WL 1694775, *1-2 (S.D.Tex., May 15, 2012).

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However, the Court also said that, as with other aspects of exhaustion, “it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”642 Thus if the
grievance system itself requires naming the responsible personnel, prisoners must comply in
order to exhaust.
At present, the New York State and New York City grievance systems do not contain
such requirements,643 nor do the majority of grievance procedures nationwide.644 Courts will not
reach to infer a requirement of naming defendants from more general requirements in a
grievance policy.645 Nor will they accept assertions of such a rule that is not supported by
written policy.646 One federal appeals court has held that a policy that does require naming of
defendants may not be enforceable where the grievance form does not reflect that requirement
and instead calls only for a “brief summary” of the grievance.647 The fact that some defendants
are named in a grievance in a system without a name the defendant rule does not mean that the
plaintiff did not exhaust with respect to those whose names are omitted.648
642

Jones v. Bock, id.
Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (2d Cir. 2009) (naming defendants not required by New York
State grievance policy that called for a “concise, specific description of the problem and the action requested” and
what the grievant had done to resolve the problem); Appendix C, New York City Department of Correction,
Directive 3375R, Inmate Grievance Resolution Program, at attachment (March 4, 1985); Appendix D, New York
State Dep’t of Correctional Services, Directive 4040, Inmate Grievance Process at § 701.5(a)(2) (July 1, 2006);
Appendix G, New York City Dep’t of Correction Directive 3375R-A, Inmate Grievance Resolution Program at §
IV.B.1.a and Attachment E (March 13, 2008); Appendix H, New York City Department of Correction, Directive
3376, Inmate Grievance and Request Program, § IV.D.1 and Attachment B
(http://www.nyc.gov/html/doc/downloads/pdf/Directive_3376_Inmate_Grievance_Request_Program.pdf). But see
Snyder v. Whittier, 2009 WL 691940, *8 (N.D.N.Y., Mar. 12, 2009) (where claims against two defendants were
distinct, failure to name one of the defendants was a failure to exhaust).
644
Jones v. Bock, 549 U.S. at 219 (citing amicus survey of grievance policies); see Moore v. Bennette, 517 F.3d
717, 726 (4th Cir. 2008) (naming defendants was not required where grievance policy said only to fill out a form,
which did not call for defendants’ names); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005) (same).
645
Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (rule that accused staff member is “direct party” to the
grievance who has the right to be heard and to appeal is not an identification requirement); Doyle v. Broussard, 2010
WL 5663012, *6 (W.D.La., Dec. 7, 2010) (declining to infer a name the defendant rule from the word “who” in the
grievance form instructions), report and recommendation adopted, 2011 WL 308901 (W.D.La., Jan. 28, 2011);
Holloway v. Correctional Medical Services, 2007 WL 1445701, *3 (E.D.Mo., May 11, 2007) (grievance policy that
said “the offender should provide whatever material/information is available to her/him” does not require naming
defendants); Skinner v. Schriro, 2007 WL 2177326, *3 (D.Ariz., July 27, 2007) (grievance policy said “state briefly
but completely the problem on which you desire assistance. Provide as many details as possible.”). But see StuartEl v. Miller, 2013 WL 3456938, *2-3 (S.D.Tex., July 8, 2013) (finding name the defendant requirement in a
grievance form that instructed “state who, what, when, where”).
646
In Johnson v. Dovey, 2010 WL 1957420, *3 (E.D.Cal., May 14, 2010), report and recommendation adopted,
2010 WL 2363970 (E.D.Cal., June 9, 2010), the court rejected the state grievance system supervisor’s declaration
stating that policy required all relevant individuals to be identified, since the policy had been authoritatively
construed to the contrary by the appellate court with jurisdiction. Accord, Chatman v. Felker, 2010 WL 3431806, *5
(E.D.Cal., Aug. 31, 2010), report and recommendation adopted, 2010 WL 3852834 (E.D.Cal., Sept. 29, 2010); see
Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005).
647
Conley v. Anglin, 513 Fed.Appx. 598, 601 (7th Cir. 2013) (unpublished) (citing Maddox v. Love, 655 F.3d 709,
722 (7th Cir. 2011)), cert. denied, 134 S.Ct. 794 (2013).
648
Graham v. Runnels, 2012 WL 3028007, *11 (E.D.Cal., July 24, 2012) (where there was no dispute that a
defendant had authorized the plaintiff’s cell extraction, omission of his name from a grievance that mentioned
another participant did not mean he failed to exhaust against the former); Burke v. Enenoh, 2012 WL 2358595, *6
(E.D.Cal., June 20, 2012), report and recommendation adopted, 2012 WL 2995489 (E.D.Cal., July 23, 2012). The
same issue has arisen in systems that do have a name the defendant rule, with courts disagreeing over the
643

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Some systems do require naming of staff,649 and some have added such requirements in
recent years.650 Even where grievance rules do not require identifying individual staff members,
if the grievance does not address particular individuals’ conduct, courts may hold the claim
against them is not exhausted,651 though this requirement need not be exacting652 and decisions
on the point are far from unanimous.653
proposition that even in such a system, if the grievance body decides the merits, the claim is exhausted. See nn. 690696, below.
649
See, e.g., Leonard v. Mohr, 2012 WL 423771, *5 (S.D.Ohio, Feb. 9, 2012) (applying requirement of “if
applicable, the name or names of personnel involved”), report and recommendation adopted, 2012 WL 936410
(S.D.Ohio, Mar. 20, 2012); Boyles v. Hobbs, 2008 WL 5088174, *8-9 (E.D.Ark., Nov. 26, 2008); Figgs v. Evans,
2008 WL 4328229, *1-2 (S.D.Ill., Sept. 18, 2008) (noting requirement to include name of each involved person, or
describe any person whose name is not known); Talley v. Johnson, 2008 WL 2223259, *2 (M.D.Ga., May 1, 2008)
(noting requirement to “state fully the time, date, names of facility staff and inmates involved, witnesses, and a
narrative of the event”), report and recommendation adopted, 2008 WL 2223258 (M.D.Ga., May 23, 2008); Olney
v. Hartwig, 2007 WL 438781, *1 (D.Or., Feb. 6, 2007) (citing Oregon policy requiring a separate grievance against
each responsible staff member); Jones v. Courtney, 2006 WL 3306850, *4 (D.Kan., Nov. 13, 2006) (noting that
Kansas grievance policy requires stating “who is the subject of the complaint” and “what effect the . . . person is
having on the grievant”); Lane v. Harris County Jail Medical Dept., 2006 WL 2868944, *5 (S.D.Tex., Oct. 5, 2006)
(noting that jail policy demands a written statement that “fully and truthfully explains the incident that occurred,”
along with the “date, time and location of the incident,” and the “names of any Deputies, Staff Members or inmates
who were involved or are witnesses”). Some grievance systems do not require naming of defendants but do require,
e.g., “sufficient information to identify staff.” Gordon v. Joyner, 2010 WL 3001967, *4 (W.D.Ky., July 28, 2010)
(quoting state policy).
Policy is not always clear about naming requirements. See Cutler v. Correctional Medical Services, 2010
WL 339760, *5 (D.Idaho, Jan. 22, 2010) (noting that requirement of names is listed in only one of four documents
addressing grievance policy).
650
See n. 542, above, concerning revisions in Michigan, Illinois, and California grievance procedures.
651
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (exhaustion of some problems “will often require, as a
practical matter, that the prisoner's grievance identify individuals who are connected with the problem”); Bryant v.
Strong, 2013 WL 504893, *3 (S.D.Tex., Feb. 7, 2013) (following Johnson), appeal dismissed, No. 13-20152 (5th
Cir. 2013); Palmer v. Fenoglio, 2012 WL 1466562, *5-6 (S.D.Ill., Apr. 2, 2012) (holding grievance about medical
problem did not exhaust as to doctor who became involved only after the grievance; name the defendant rule cited),
report and recommendation adopted, 2012 WL 1466511, *3-4 (S.D.Ill., Apr. 27, 2012), motion to amend denied,
2012 WL 2254213 (S.D.Ill., June 15, 2012), aff’d, 510 Fed.Appx. 476 (7th Cir. 2013); Toney v. Hakala, 2012 WL
1185028, *3-4 (E.D.Mo., Apr. 9, 2012) (holding grievances about medical problem did not exhaust as to doctor who
became involved only after the grievances); Coomer v. DeFilippo, 2012 WL 870730, *6 (D.N.J., Mar. 14, 2012)
(holding plaintiff’s naming of one staff member as responsible for his problem meant that he failed to exhaust as to
two others, citing policy requiring grievance information to be “clear,” “complete,” and “specific”), appeal
dismissed, No. 12-1895 (3d Cir., Aug. 3, 2012) (unpublished); Hudson v. McAnear, 2011 WL 67199, *5 (S.D.Tex.,
Jan. 10, 2011) (holding plaintiff did not exhaust when he neither named a defendant, described him, or described his
conduct), reconsideration denied, 2011 WL 486236 (S.D.Tex., Feb. 7, 2011); Goudlock v. Hernandez, 2009 WL
2982825, *6 (S.D.Cal., Aug. 4, 2009) (grievance complaining about failure to respond when he fell from a top bunk
did not exhaust as to subsequent inadequate medical care by other defendants); Ammons v. Gerlinger, 2007 WL
5514719, *10 (W.D.Wis., Feb. 12, 2007) (grievance asking to see a doctor did not exhaust claim that staff members
had concealed his request for medical assistance), reconsideration denied, 2007 WL 5659413 (W.D.Wis., Mar. 12,
2007); Sanchez v. Penner, 2008 WL 544591, *6-7 (E.D.Cal., Feb. 26, 2008), report and recommendation adopted,
2008 WL 892760 (E.D.Cal., Mar. 31, 2008); Todd v. LaMarque, 2007 WL 1982789, *3 (N.D.Cal., July 2, 2007)
(holding plaintiff failed to exhaust against officers who failed to intervene in an excessive force incident where their
conduct was not described in the grievance); Mason v. Sassi, 2007 WL 672095, *3 (S.D.N.Y., Mar. 6, 2007) (“the
grievance must, at least, allude generally to the named defendants or to their conduct”).
652
Miles v. Rich, 2013 WL 1181454, *3 (E.D.Tex., Feb. 15, 2013) (complaints about deprivation of pain relief and
delayed appointments resulting from inadequate security staff were adequately grieved because prison officials
could investigate them without the prisoner naming names), report and recommendation adopted, 2013 WL

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Courts are generally in agreement that under a name-the-defendant policy, if an
individual is not sufficiently identified in a grievance, that person cannot be sued.654 The more
drastic view, that if any defendant was not identified the entire case must be dismissed, is ruled
out by the Supreme Court’s rejection of the “total exhaustion” rule under which the presence of
any unexhausted claim required dismissal of the entire case.655
The more difficult question is what if the plaintiff did not know the individual
defendant’s identity at the time a grievance had to be filed? It seems clear that a prisoner’s claim
cannot be barred for failing to include in a grievance information he did not have. An
identification requirement that did not allow for situations where the prisoner could not identify
the responsible parties would raise the question “whether a state’s procedural rules could be so
onerous or impractical as to render administrative remedies unavailable and PLRA exhaustion
inapplicable”656—a question that has been answered affirmatively in other contexts.657 One

1181453 (E.D.Tex., Mar. 18, 2013); Roland v. Smith, 907 F.Supp.2d 385, 390 (S.D.N.Y. 2012) (allegation that
prisoner was transferred to a mental hospital to “cover up” an assault at a prison sufficiently exhausted, since prison
officials could identify the officers involved); Reed v. Brackbill, 2008 WL 4155600, *4-5 (D.Nev., Sept. 5, 2008)
(complaint against “Medical Department” about hemorrhoid treatment exhausted against person who disapproved
surgery); Pierce v. Hillsborough County Dept. of Corrections, 2008 WL 215716, * 5 (D.N.H., Jan. 24, 2008)
(grievances indicating that identified officers, and others not identified, assaulted the plaintiff exhausted against all
involved); see Espinal v. Goord, 558 F.3d 119, 126-27 (2d Cir. 2009) (“as long as the prisoner provides enough
information about the alleged misconduct . . . the State will normally be able to identify any direct party to a
grievance on its own through investigation”; where prisoner said he was beaten by two named officers and
“countless” others, gave the date, time, and location, and stated he was beaten for retaliatory reasons, he had given
enough information for prison officials to investigate and determine who was involved); Hill v. Arnold, 2011 WL
31193, *2-3 (N.D.Cal., Jan. 5, 2011) (holding a grievance alleging excessive force, focusing on one deputy, but
mentioning that other staff were present, exhausted against the other staff; the grievance “provided enough
information about the incident that a reasonable investigation of it would have uncovered (if true) that sergeant
Sanchez was a participant”).
653
For example, several decisions hold that once a prisoner has grieved his medical care claim, he need not file
repeated grievances as additional practitioners become involved. See n. 605, above. This problem is
indistinguishable from the one discussed above in § IV.E.3 under the rubric “Exhausting All Issues.”
654
See, e.g., Josey v. Beard, 2009 WL 1858250, *5 (W.D.Pa., June 29, 2009); Walker v. Hofbauer, 2007 WL
2710823, *4 (W.D.Mich., Sept. 13, 2007) (holding defendants not named must be dismissed given Michigan’s
revised grievance policy). There may also be a question of what it means to name the defendants. In McKinney v.
Kelchner, 2007 WL 2852373, *4 (M.D.Pa., Sept. 27, 2007), the court held that a grievance stating it was “on” two
staff members in a use of force case, but also named other involved staff, sufficiently identified the latter that they
could be sued; the grievance system’s failure to acknowledge and decide the culpability of those persons was not a
failure by the plaintiff to exhaust. In Spearman v. Smith, 2007 WL 2710097, *4 (E.D.Mich., Aug. 31, 2007), the
court held that the plaintiff exhausted against L. Smith, notwithstanding misidentifying her as S. Smith, since the
grievance process ruled on the merits of the claim.
655
Jones v. Bock, 549 U.S. 199, 220-24 (2007); see § IV.E.6, below, concerning this now-defunct rule.
656
Espinal v. Goord, 558 F.3d 119, 127 n. 6 (2d Cir. 2009).
Some grievance rules recognize this possibility at least in part. Thus, the Illinois rule says that if the
grievant does not know someone’s name, he or she can describe the person. See Figgs v. Evans, 2008 WL 4328229,
*1 (S.D.Ill., Sept. 18, 2008) (citing 20 Ill. Admin. Code § 504.810(b)); see also Workman v. Reinke, 2011 WL
4431748, *4-5 (D.Idaho, Sept. 22, 2011) (noting rule that if identity of responsible official is unknown, other
“specific information” may suffice—here, the grievances were “reasonably specific as to the actions that he was
challenging and the range of dates over which those actions had occurred, and there is no indication that
administrators were confused about the nature of his problem”). In Campbell v. Harris, 2012 WL 3204912, *3
(E.D.Ark., Aug. 3, 2012), aff’d, 525 Fed.Appx. 522 (8th Cir. 2013), cert. denied, 134 S.Ct. 987 (2014), the court
said the prisoner could have identified defendants by titles or duties in his grievance rather than just referring to
them as “security.” However, this does not allow for the possibility that the prisoner will not know of someone’s

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district court decision notes that under the federal court notice pleading standard, litigants are
allowed to amend their complaints to identify the proper defendants; that the prisoner plaintiff
was not in a position to identify them in his grievance because he did not have “personal
knowledge of the decision making structure within the prison”; and that in order to have an
unqualified name the defendant rule, prison officials would have to have a discovery-like system
so inmates could obtain the correct names within the deadline for filing. Otherwise the
requirement would likely be invalid as in conflict with the federal policy underlying § 1983.658
The pre-Jones v. Bock court-made “name the defendant” rules presented the same
problems for the courts as do current current prison-made rules. Some decisions applying them
have been absurdly harsh, while others have attempted to strike a balance between the demands
of the “proper exhaustion” rule and officials’ need for notice and what is reasonably possible for
prisoners to understand and carry out.659
Courts generally acknowledge that a prisoner cannot be required to provide information
he or she does not possess.660 As the Seventh Circuit has colorfully put it in a case involving a
involvement at all at the time the grievance is filed, a problem that is likely to arise with claims of supervisory
liability.
657
See nn. 772-802, below, on the validity and enforceability of grievance rules; nn. 1055-1063, below, on whether
grievance rules can make remedies unavailable in practice.
658
Freeman v. Berge, 2004 WL 1774737, *3-4 (W.D.Wis., July 28, 2004); accord, McKinnie v. Heisz, 2009 WL
3245410, *2 (W.D.Wis., Oct. 7, 2009); Wine v. Pollard, 2008 WL 4379236, *2 (W.D.Wis., Sept. 23, 2008);
Czapiewski v. Bartow, 2008 WL 2622862, *1-2 (W.D.Wis., July 1, 2008) (both reiterating point after Woodford v.
Ngo and Jones v. Bock); see Heggie v. Michigan Dept. of Corrections, 2008 WL 5459338, *5 (W.D.Mich., Nov. 26,
2008) (noting that the prisoner stated prison officials had refused to provide him with the names of staff members
for his grievance; “The Court refuses to interpret the PLRA so as to immunize prison officials from liability when
they refuse to provide a prisoner with relevant information necessary to ‘properly’ pursue a grievance.”), report and
recommendation adopted in pertinent part, rejected in part, 2009 WL 36612 (W.D.Mich., Jan. 5, 2009).
659
The majority of decisions cited in this discussion are from the Michigan prison system, since Michigan prisoners
have been subject to a prolifically litigated name the defendant rule both under pre-Jones case law and post-Jones
prison policy, though some courts have disputed whether the current Michigan rules actually require naming all
defendants. Coleman v. Naples, 2012 WL 4501648, *3 (W.D.Mich., Sept. 28, 2012) (holding that Michigan does
not have a name the defendant rule because the command to provide “names of all those involved” is not a
procedural rule; it is not on the list of procedural reasons to reject a grievance); Stevenson v. Michigan Dept. of
Corrections, 2008 WL 623783, *11 (W.D.Mich., Mar. 4, 2008) (a policy requiring plaintiff to provide “the facts”
including “who” did not require naming all defendants). Cf. Binion v. Glover, 2008 WL 4155355, *3 (E.D.Mich.,
July 28, 2008) (commenting on variety of approaches to question), report and recommendation adopted, 2008 WL
4097407 (E.D.Mich., Aug. 29, 2008). But see Younker v. Ohio State University Medical Center, 2013 WL
3222902, *4 (S.D.Ohio, June 25, 2013) (holding “Reed-Bey exception” inapplicable because decision on the merits
did not address the liability of particular defendants), report and recommendation adopted, 2013 WL 3761130
(S.D.Ohio, July 16, 2013).
660
Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir. 2000); accord, Gravley v. Tretnik, 414 Fed.Appx. 391, 394
(3rd Cir. 2011) (unpublished) (holding plaintiff exhausted where he relied on mis-identification of defendant by
another staff member); Davis v. Swallers, 2013 WL 5925805, *1, 3, 5 (S.D.Ill., Nov. 5, 2013) (declining to dismiss
claim against author of policy for non-exhaustion where at the time of grieving the plaintiff did not know of the
policy and simply grieved what happened to him); Mable v. Beard, 2013 WL 2435295, *17-18 (M.D.Pa., June 4,
2013) (holding grievance about a policy was not procedurally defaulted by failure to name the policymakers, since
there was no evidence the prisoner knew who they were); Victor v. SCI Smithfield, 2011 WL 3584781, *6-8
(M.D.Pa., Aug. 12, 2011) (holding requirement to name defendants “where practical” meant that only unexplained
failure to name defendants constituted non-exhaustion; plaintiff did not know of one defendant’s name until final
appeal was pending, videotape was missing that would have identified others, and the rules did not provide for a
new grievance about the same incident based on new information; plaintiff’s grievance allegation of attack by
multiple staff members and denial of medical care notified defendants about the nature of his complaint, and prison

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classification decision and a cell assignment: “At the source of the decisions in question was a
mystifying web of rules and procedures, and behind those an army of administrators; it would be
unreasonable to expect that, for every set of facts, an inmate will be able to peel back layers of
bureaucracy and match a disputed decision with the prison employee responsible for that
decision.”661 Some have held that a name the defendant requirement can be satisfied by a
description of the defendant’s position or conduct,662 or by providing enough information that
acknowledged the need to investigate the incident); Funk v. Stanish, 2011 WL 1304737, *9 (M.D.Pa., Mar. 31,
2011) (holding plaintiff exhausted where he relied on misinformation about defendant’s identify); Sanks v. Franklin,
2010 WL 234785, *6 (M.D.Ga., Jan. 13, 2010) (requiring information that “the prisoner can reasonably provide”;
stating issue is “whether Plaintiff knew or reasonably should have known who was responsible” for the alleged
deprivation; relying on Brown v. Sikes); Nelson v. Madan, 2005 WL 2416036, *2 (M.D.Fla., Sept. 30, 2005). But
see Jones v. Hobbs, 2010 WL 3767741, *4 (E.D.Ark., Aug. 31, 2010) (dismissing argument that plaintiff did not
know necessary identities when he filed his grievance, listing “other ADC employees whose identities I[did] not
know,” and that policy that did not permit amending grievances to add persons whose names became known), report
and recommendation adopted, 2010 WL 3777829 (E.D.Ark., Sept. 21, 2010).
661
Glick v. Walker, 385 Fed.Appx. 579, 582 (7th Cir. 2010) (unpublished); accord, Sanders v. Beard, 2013 WL
1703582, *7 (M.D.Pa., Apr. 19, 2013) (holding it was not practical to expect prisoners to name persons responsible
for maintenance at the prison), reconsideration denied, 2013 WL 2650215 (M.D.Pa., June 13, 2013), motion to
vacate denied, 2013 WL 3353502 (M.D.Pa., July 2, 2013), appeal dismissed, No. 13-3215 (3d Cir., Sept. 26, 2013);
Green v. Wexford Health Sources, 2013 WL 139883, *5 (N.D.Ill., Jan. 10, 2013) (holding that “where the plaintiff
is claiming a systemic problem with food safety and a broad denial of treatment by the health care unit as a whole,
he will not be found at fault for failing to name each, individual defendant in his grievances”); Harper v. Henton,
2012 WL 6595159, *6 (S.D.Ill., Nov. 30, 2012) (holding where prisoner “received sub-par care due in part to the
manpower and financial issues in the healthcare unit,” officials were put on notice of a claim based on policy and
procedures of the medical provider), report and recommendation adopted, 2012 WL 6594954 (S.D.Ill., Dec. 18,
2012); Wojtaszek v. Litherland, 2011 WL 4499692, *4 (S.D.Ill., Sept. 27, 2011) (so holding where prisoner
requested and was denied the names of defendants, and where the responsibility of a private medical provider
appeared in a contract which the plaintiff had no reason to know existed and was denied access to); Chencinski v.
David, 2011 WL 916555, *4 (S.D.Ill., Feb. 25, 2011) (so holding where plaintiff named medical provider in
grievance but had no way of knowing what individual made his treatment decisions), report and recommendation
adopted, 2011 WL 938705 (S.D.Ill., Mar. 16, 2011); Dolis v. Loftus, 2010 WL 3834426, *12 (C.D.Ill., Sept. 20,
2010) (so holding where “[p]laintiff articulated that he needed to have some cavities filled; had been advised the a
dentist that he would receive dental service within 4-6 months; but later was told by someone there was a two-year
waiting list. He provided the facts the prison officials could reasonably expect from a prisoner in his position.”).
662
See Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004) (holding identification of Unit Classification
Committees was sufficient to exhaust as to their members); Cowgill v. Hobbs, 2013 WL 4816684, *5 (E.D.Ark.,
Sept. 10, 2013) (declining to dismiss against defendant identified only as “the guard” where he was identified in the
plaintiff’s deposition); Monroe v. Diguglielmo, 2013 WL 3949074, *5 (E.D.Pa., July 31, 2013) (holding grievance
reference to “John Doe” officers who took or destroyed legal papers sufficed where plaintiff was confined in
segregated housing and was unable to obtain their names); Robinson v. Davis, 2013 WL 3716543, *3 (E.D.Ark.,
July 12, 2013) (holding grievance reference to “two nurses” sufficed to identify them); Harsh v. Barone, 2013 WL
1194924, *8 (W.D.Pa., Feb. 12, 2013) (holding reference to doctor, physician’s assistant, and nurse gave defendants
sufficient notice), report and recommendation adopted, 2013 WL 1194867 (W.D.Pa., Mar. 22, 2013); Charles v.
Shaw, 2011 WL 2633743, *5 (N.D.Ill., July 5, 2011) (holding identification of defendant as “The Sgt.” was
sufficient); Brown v. Darnold, 2010 WL 3702373, *5 (S.D.Ill., Aug. 17, 2010) (holding identification of defendant
as nurse on duty, with some information about physical appearance, sufficient to exhaust), report and
recommendation adopted, 2010 WL 3613934 (S.D.Ill., Sept. 8, 2010); Jarrett v. Pramstaller, 2010 WL 584029, *4
(W.D.Mich., Feb. 16, 2010) (holding “AMF doctor” sufficient); Jackson v. Hornick, 2006 WL 1766839, *2
(W.D.Mich., June 21, 2006) (holding a plaintiff who identified the defendant by the initials of his position (A.DDW
of SCC) had exhausted); Iacovone v. Wilkinson, 2005 WL 3299032, *5 (S.D.Ohio, Dec. 2, 2005) (holding that
failure to name defendants was not a failure to exhaust where the plaintiff’s detailed description of his complaint
permitted their identification and he did not know their correct identities), report and recommendation adopted as
modified, 2006 WL 689102 (S.D.Ohio, Mar. 14, 2006); Gibson v. Shabaaz, 2005 WL 1515396, *7 (S.D.Tex., June

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grievance officials could figure out easily enough who was involved.663 Grievances that state the
prisoner’s lack of knowledge of responsible persons but sufficiently describe the problem have
been held adequate.664 Some courts have held that naming the relevant entity can sufficiently
identify the proper individual defendant,665 and vice versa.666 Similarly, some courts have held
23, 2005) (holding reference to nurse and optometrist were sufficient to exhaust; defendants could have reviewed
plaintiff’s medical records and learned their identities); Blackshear v. Messer, 2003 WL 21508190, *2 (N.D.Ill.,
June 30, 2003) (holding that prisoner who failed to identify the nurse he was complaining about had exhausted,
since that person could be identified from other information in his grievance “with a little follow-up investigation by
the Jail”). Contra, Kittle v. Squier, 2012 WL 5473142, *2 (W.D.Mich., Nov. 9, 2012) (holding reference to health
care staff member “MP-4” did not sufficiently identify two defendants where plaintiff did not identify them by
initials or position, allege he was complaining about the entire health department, ask for the defendants’ names in a
way that would identify them, or make factual allegations pertaining to them); Gardner v. Outlaw, 2012 WL
4888466, *3 (E.D.Ark., Oct. 1, 2012) (naming “all administrating staff” does not exhaust under name the defendant
rule), report and recommendation adopted, 2012 WL 4866496 (E.D.Ark., Oct. 12, 2012); Harris v. LePlante, 2008
WL 822146, *3 (W.D.Mich., Mar. 26, 2008) (naming “unit staff” does not exhaust under a name the defendant
rule); Peterson v. Riverside Correctional Facility, 2006 WL 753126, *2 (W.D.Mich., Mar. 23, 2006) (holding
grievance referring to “kitchen staff [and] officers,” “food service,” and the “inspector’s office” did not sufficiently
identify parties).
663
Zoph v. Doe, 2014 WL 459798, *4 (S.D.Ill., Feb. 4, 2014) (noting that plaintiff’s claim of failure to comply with
the ADA and train officers to deal with disabled prisoners could only be addressed by the Warden, who was placed
on notice by the grievance); Bryant v. Hobbs, 2014 WL 37802, *9 (E.D.Ark., Jan. 6, 2014) (declining to dismiss
where the plaintiff did not name a doctor but referred to her actions and she was the only one providing him cardiac
care and was responsible for ordering the allegedly delayed tests); Henz v. Heck, 2013 WL 4478923, *7-8 (S.D.Ill.,
Aug. 18, 2013) (declining to dismiss for non-exhaustion where grievance alleged misconduct by a placement officer
and by various internal affairs officers and administrators, and was not rejected by the grievance body, indicating it
had enough information to address the plaintiff’s complaint); Harper v. Henton, 2012 WL 6595159, *5 (S.D.Ill.,
Nov. 30, 2012) (holding grievance was sufficient where it described injury and medical encounters sufficiently that
defendants could identify the staff involved from his medical records; noting officials decided the grievance on the
merits), report and recommendation adopted, 2012 WL 6594954 (S.D.Ill., Dec. 18, 2012); Workman v. Reinke,
2011 WL 4431748, *4 (D.Idaho, Sept. 22, 2011) (noting grievances were sufficient where they were “reasonably
specific as to the actions that he was challenging and the range of dates over which those actions had occurred, and
there is no indication that administrators were confused about the nature of his problem”); White v. Bass, 2011 WL
1303393, *6 (N.D.Ill., Mar. 31, 2011) (holding double-celling grievance including details of cellmate’s assault
contained sufficient detail for prison officials to address the shortcoming); Conley v. Mathes, 2010 WL 3199750, *3
(C.D.Ill., Aug. 10, 2010); Hall v. Raja, 2010 WL 1258204, *4 (E.D.Mich., Mar. 30, 2010); Childers v. Bates, 2010
WL 1268143, *6-7 (S.D.Tex., Jan. 14, 2010), report and recommendation rejected on other grounds, 2010 WL
1268139 (S.D.Tex., Mar. 26, 2010); Burton v. Kakani, 2009 WL 3101046, *2-3 (E.D.Mich., Sept. 23, 2009)
(finding substantial compliance where plaintiff provided enough information for officials to identify the defendants,
and stating that if the policy requires names under those circumstances, that requirement is not a “critical” rule for
exhaustion purposes); Pickelhaupt v. Jackson, 2008 WL 4457823, *12 (E.D.Mich., July 22, 2008), report and
recommendation adopted in part, rejected in part on other grounds, 2008 WL 4457807 (E.D.Mich., Sept. 30, 2008).
But see Allen v. Feinerman, 2010 WL 894063, *10 (S.D.Ill., Mar. 10, 2010) (plaintiff did not satisfy naming
requirement by attaching 79 pages of exhibits from which their identities could have been gleaned).
664
Childers v. Bates, 2010 WL 1268143, *6-7 (S.D.Tex., Jan. 14, 2010) (remedy was not “personally available” to
plaintiff who couldn’t identify a defendant because of a head injury with loss of memory), report and
recommendation rejected on other grounds, 2010 WL 1268139 (S.D.Tex., Mar. 26, 2010); Contor v. Caruso, 2008
WL 878665, *3 (W.D.Mich., Mar. 28, 2008) (plaintiff who said he did not know who denied his requests for
medical care, and asked in his grievance for that person’s name, sufficiently put defendants on notice of his claim
against a medical provider employee).
665
Wagle v. Skutt, 2011 WL 6004344, *3 (E.D.Mich., Nov. 7, 2011) (naming the medical providers exhausted
against an individual doctor); Chimenti v. Mohadjerin, 2008 WL 2551603, *4-5 (M.D.Pa., June 24, 2008) (where
the plaintiff did not know of the Secretary of Correction’s involvement, but he named the Department of Corrections
as an entity and challenged a departmental policy or inaction, officials received adequate notice and it was not
“practicable” for plaintiff to name the Secretary); Stevenson v. Michigan Dept. of Corrections, 2008 WL 623783,

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that naming a department or functional unit that is generally responsible for the subject matter of
the prisoner’s complaint is sufficient,667 and some have held that if the prisoner identifies the
problem so the responsible department is obvious, the prisoner has exhausted.668 Indeed, one has
*11 (W.D.Mich., Mar. 4, 2008) (naming TriCounty Orthopedic was sufficient to exhaust against a doctor employed
by it).
666
Milliner v. Diguglielmo, 2014 WL 413873, *3 (E.D.Pa., Jan. 31, 2014) (holding grievance naming a Prison
Health Services doctor exhausted against PHS as well; “PHS fails to cite any authority for the proposition that an
inmate must name PHS itself, rather than its employees, in a grievance in order to exhaust administrative remedies. .
. .”); McAdory v. Engelsgjerd, 2010 WL 1131484, *3 (E.D.Mich., Feb. 11, 2010) (following Owens), report and
recommendation adopted, 2010 WL 1132548 (E.D.Mich., Mar. 23, 2010); Owens v. Correctional Medical Services,
Inc., 2008 WL 4534424, *5 (W.D.Mich., Sept. 30, 2008) (grievance naming a doctor employed by a private medical
provider exhausted against the provider, since an organization can only act through its employees); Kelley v.
DeMasi, 2008 WL 4298475, *3 (E.D.Mich., Sept. 18, 2008) (naming a Correctional Medical Services employee
effectively put CMS on notice). Contra, Russell v. Correctional Medical Services, Inc., 2012 WL 3596002, *3
(E.D.Ark., May 21, 2012) (grievance naming “CMS medical employees” did not exhaust against private medical
provider itself), report and recommendation adopted, 2012 WL 3595998 (E.D.Ark., Aug. 20, 2012); Basat v.
Caruso, 2008 WL 275679, *4 (E.D.Mich., Jan. 31, 2008) (plaintiff could not name the Department of Correction in
his ADA suit because he didn’t name it in his grievance, even though he had named the individual Department
employees); Vandiver v. Martin, 304 F.Supp.2d 934, 943-44 (E.D.Mich. 2004) (holding plaintiff failed to exhaust
against the corporate medical provider, even though he named individual medical practitioners employed by the
provider, because his grievance said only that the provider would be liable if his foot was amputated).
667
Green v. Wexford Health Sources, 2013 WL 139883, *5 (N.D.Ill., Jan. 10, 2013) (holding that “where the
plaintiff is claiming . . . a broad denial of treatment by the health care unit as a whole, he will not be found at fault
for failing to name each, individual defendant in his grievances”); Hall v. Raja, 2011 WL 4692281, *4 (E.D.Mich.,
Oct. 6, 2011) (reference to medical staff sufficiently identified private medical provider, especially since grievance
was decided on the merits); Carter v. Smith, 2011 WL 2313862, *18 (E.D.Pa., June 13, 2011) (claims against “the
S.C.I.G. hospital staff” and “the medical department” and reference to “internal medical appointments” sufficiently
identified private medical provider), order entered, 2011 WL 2312293 (E.D.Pa., June 13, 2011); Wojtaszek v.
Litherland, 2011 WL 4499692, *4 (S.D.Ill., Sept. 27, 2011) (where plaintiff put forth the facts he knew, court
refuses to dismiss against private health provider where plaintiff was denied information about defendants and
access to medical services contract); Montilla v. Prison Health Services, Inc., 2011 WL 4467712, *3 (E.D.Pa., Sept.
23, 2011) (references to “medical staff” combined with grievance response stating respondent had “followed up with
Medical” and plaintiff should “work with the Medical Department” sufficiently identified the defendants), aff’d on
other grounds, 457 Fed.Appx. 212 (3d Cir. 2012); Cutler v. Correctional Medical Services, 2010 WL 339760, *5
(D.Idaho, Jan. 22, 2010) (complaint about inadequate medical care sufficiently notified private medical provider and
its supervisory personnel of allegation that provider was not performing its duty); Gregory v. Santos, 2010 WL
750047, *5 (S.D.Ill., Jan. 19, 2010) (grievance referring to “the medical department” was sufficient to exhaust
against the prison’s medical director, who had authority over the plaintiff’s medical care, and the corporate medical
provider), report and recommendation adopted as modified, 2010 WL 750040 (S.D.Ill., Mar. 3, 2010); see Appendix
A for additional authority on this point; see also Christian v. Michigan Dept. of Corrections - Health Services, 2013
WL 5348832, *5 (E.D.Mich., Sept. 24, 2013) (holding reference to “health services” was sufficient where the
plaintiff also cited 17 prior “kites” by date and issue). But see Haynes v. Ivens, 2010 WL 420028, *5-6 (E.D.Mich.,
Jan. 27, 2010) (grievance naming “Health Care” did not exhaust against a particular physician’s assistant); Jennings
v. Bergh, 2008 WL 4534417, *4 (W.D.Mich., Sept. 29, 2008) (“supervisor and admin” was too vague and
conclusory to identify any specific parties).
668
Harper v. Henton, 2012 WL 6595159, *6 (S.D.Ill., Nov. 30, 2012) (holding grievance describing medical
problem and stating prisoner “received sub-par care due in part to the manpower and financial issues in the
healthcare unit” sufficiently notified officials that he was complaining about policies or procedures of the private
medical provider), report and recommendation adopted, 2012 WL 6594954 (S.D.Ill., Dec. 18, 2012); Reichart v.
Prison Health Services, SCI-Camp Hill, 2012 WL 2411838, *2 (M.D.Pa., June 26, 2012) (“Although plaintiff does
not specifically name PHS in his grievance papers . . . [he] is clearly questioning the medical care he is receiving for
his eyes, including whether he should be referred to ophthalmic specialists other than Premiere Eye Care. Such
matters would be in the discretion of the contract health-care providers at SCI–Camp Hill, which is PHS.”); Hall v.
Raja, 2011 WL 7975464, *4 (E.D.Mich., October 7, 2011) (holding grievance about lack of access to a specialist

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held that naming “the institution” was sufficient in a case that implicated conditions of the
physical plant.669
Some courts have held that exhaustion is adequate where individuals have been named in
appeals and not the initial stage,670 where the response to the prisoner’s grievance identifies a
defendant or indicates that officials know his or her identity,671 or where the claim arises from
and a lack of diagnostic testing gave fair notice to prison officials of plaintiff’s claim against the medical provider
CMS; stating name the defendant requirement “relaxed when the purpose of the grievance has been achieved (i.e.,
where the prisoner's grievance gives prison officials ‘fair notice of the alleged mistreatment or misconduct that
forms the basis of the constitutional or statutory claim made against a defendant in a prisoner's complaint.’) (quoting
Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (internal quotation marks and citation omitted)), report and
recommendation adopted, 2012 WL 1033417 (E.D.Mich., Mar. 27, 2012). Contra, Mitchell v. Correctional Medical
Service, 2012 WL 3248192, *4 (E.D.Mich., May 23, 2012) (grievance that named a practitioner but did not name
the corporate medical provider or cite a corporate policy did not exhaust against the provider), report and
recommendation adopted, 2012 WL 3241270, *1-2 (E.D.Mich., Aug. 8, 2012).
669
Wallace v. Doe, 2011 WL 2461949, *3 (M.D.Pa., June 17, 2011) (holding sufficient a complaint of being burned
on an uncovered radiator after prior complaints to “the institution” about uncovered radiators); see Sanders v. Beard,
2013 WL 1703582, *7 (M.D.Pa., Apr. 19, 2013) (holding it was not practical to expect prisoners to identify and
grieve specifically against persons responsible for maintenance), reconsideration denied, 2013 WL 2650215
(M.D.Pa., June 13, 2013), motion to vacate denied, 2013 WL 3353502 (M.D.Pa., July 2, 2013).
670
Nunez v. Porter, 2014 WL 130471, *7 (E.D.Cal., Jan. 10, 2014) (“There is no authority to support defendants'
argument that plaintiff's allegations against Caraballo and Till are foreclosed because initially raised” in the
prisoner’s request for appellate review of the initial grievance decision.”); Soto v. Hobbs, 2011 WL 5402906, *4
(E.D.Ark., Oct. 27, 2011) (plaintiff exhausted against a defendant mis-named in the initial grievance whose name he
had learned and included in the second stage appeal), report and recommendation adopted, 2011 WL 5374577
(E.D.Ark., Nov. 7, 2011); Downing v. Correction Medical Services Inc., 2009 WL 511849, *6 (W.D.Mich., Feb. 26,
2009) (policy required naming defendants, but not necessarily at Step I); Douglas v. Caruso, 2008 WL 4534061, *8
(W.D.Mich., Sept. 30, 2008) (naming a defendant at Step III, when plaintiff first became aware of that person’s
involvement, satisfied the grievance policy, which does not say all defendants have to be named in Step I);
Stevenson v. Michigan Dept. of Corrections, 2008 WL 623783, *11 (W.D.Mich., Mar. 4, 2008) (naming some
defendants at the second grievance stage exhausted against them); Marshall v. Hubbard, 2007 WL 1627534, *4
(E.D.Ark., June 4, 2007) (plaintiff exhausted against a doctor whom he did not name in the original grievance
because he had not seen him at the time); see Hernandez v. Texas, 2013 WL 1276511, *13 (E.D.Tex., Feb. 12,
2013) (noting prisoner provided additional information on potential defendants on appeal in system, without rule
requiring identification of responsible staff), report and recommendation adopted, 2013 WL 1248137 (E.D.Tex.,
Mar. 26, 2013). Contra, Flanory v. Bonn, 2011 WL 4434923, *5 (W.D.Mich., Sept. 23, 2011) (on grievance
appeals, prisoner may present additional factual detail but may not name defendants for the first time); Maxwell v.
Correctional Medical Services, 2011 WL 1458468, *7 (W.D.Mich., Jan. 18, 2011), report and recommendation
adopted, 2011 WL 1458547 (W.D.Mich., Apr. 15, 2011); Ketzner v. Williams, 2008 WL 4534020, *16 (W.D.Mich.,
Sept. 30, 2008) (“It is necessary to undertake a more focused examination of the individuals named in each
grievance and the factual allegations made against that individual.” Persons must be named in the Step I grievance,
and not later in the process, to be named as defendants.); see also cases cited in n. 608, above, in which defendants’
liability was premised on their failure to act in response to grievances, and in n. 620, above, concerning systems in
which grievance rules forbid naming additional persons at later stages of the administrative process.
671
Diaz v. Palakovich, 2011 WL 4867549, *5 (3rd Cir., Oct. 14, 2011) (noting that one defendant had
acknowledged receiving the grievance, and that the grievance response acknowledged that the grievance officer had
discussed the grievance with mail room staff); Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004); Reid v. Kelly,
2014 WL 320419, *3 (E.D.Ark., Jan. 29, 2014) (declining to dismiss where defendants were identified in the
grievance response, in plaintiff’s appeal, and in the appeal response); Roller v. Zoldessy, 2013 WL 4823155, *4
(E.D.Ark., Sept. 9, 2013) (declining to dismiss based on failure to name defendant where that defendant was
identified in the grievance response); Sanders v. Beard, 2013 WL 1703582, *7 (M.D.Pa., Apr. 19, 2013) (finding
exhaustion against two defendants where one authored the responses to the grievances and copied those grievances
to the other defendant), reconsideration denied, 2013 WL 2650215 (M.D.Pa., June 13, 2013), motion to vacate
denied, 2013 WL 3353502 (M.D.Pa., July 2, 2013), appeal dismissed, No. 13-3215 (3d Cir., Sept. 26, 2013);

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the defendant’s role in processing the grievance.672 Others have held that naming of defendants
is not required where the prisoner’s complaint concerns a policy and not the unauthorized
conduct of staff,673 or where the prisoner’s complaint of a long history of abusing prisoners has
sufficiently alerted officials to problems of supervision and management without actually
naming supervisors in the grievance.674
At least one prison system has adopted a requirement concerning claims against certain
supervisory officials that appears designed to be impossible to meet. Grievances naming the
warden or inspector of institutional services must show that those officials were “personally and
knowingly involved in a violation of law, rule or policy, or personally and knowingly approved
or condoned such a violation.”675
The importance supervisory liability exhaustion rules cannot be overemphasized, given
the personal involvement requirement of liability under 42 U.S.C. § 1983 and the notorious
difficulties pro se prisoners have in identifying and naming all the proper defendants even
within the statute of limitations for judicial proceedings.676 This concern is particularly
McClain v. Kale, 2012 WL 2192242, *4 (M.D.Pa., Apr. 23, 2012) (holding grievance investigator who the plaintiff
said lied about his lost property was sufficiently identified by his involvement in the grievance process), report and
recommendation adopted, 2012 WL 2192271 (M.D.Pa., June 14, 2012) ; Montilla v. Prison Health Services, Inc.,
2011 WL 4467712, *3 (E.D.Pa., Sept. 23, 2011) (citing grievance response stating respondent had “followed up
with Medical” and plaintiff should “work with the Medical Department” in finding that plaintiff had sufficiently
identified the defendants); Hudson v. DeForest, 2010 WL 1141609, *1 (E.D.Mich., Mar. 24, 2010); Kelley v.
DeMasi, 2008 WL 4298475, *3 (E.D.Mich., Sept. 18, 2008); Plaster v. Kneal, 2008 WL 4090790, *3-4 (M.D.Pa.,
Aug. 29, 2008) (declining to dismiss where plaintiff identified the security department, but was told he should
appeal to “Central Office Medical,” indicating officials were on notice of the relevant persons); Sides v. Cherry,
2007 WL 1411841, * 3 (W.D.Pa., May 10, 2007) (holding policy satisfied where grievance response said “[a]ll staff
involved were interviewed regarding your claims” and the defendants were specifically named in the response);
Reaves v. Caruso, 2006 WL 2077589, *3 (E.D.Mich., July 24, 2006).
672
Diaz v. Palakovich, 448 Fed.Appx. 211, 217 (3rd Cir. 2011) (noting that one defendant responded to the
grievance); Williams v. Beard, 482 F.3d 637, 639-40 (3d Cir. 2007) (where the defendant not named in the
grievance was the person who received the grievance, and his response showed his knowledge and involvement,
plaintiff exhausted); Watkins v. Ghosh, 2011 WL 5981006, *5 (N.D.Ill., Nov. 28, 2011) (contrary rule “could result
in a never-ending cycle of grievances that would needlessly delay a prisoner's access to judicial relief”); Fuller v.
California Dept. of Corrections, 2008 WL 619159, *8 (E.D.Cal., Mar. 4, 2008), report and recommendation
adopted, 2008 WL 883244 (E.D.Cal., Mar. 31, 2008); Sisney v. Reisch, 2007 WL 951858, *5 (D.S.D., Mar. 26,
2007).
673
See Harris v. Moore, 2005 WL 1876126, *2 (E.D.Mo., Aug. 8, 2005); Smeltzer v. Hook, 235 F.Supp.2d 736,
741-42 (W.D.Mich. 2002) (declining to apply rule to policy challenge, since failure to name individuals did not
hamper the defendants’ investigation).
674
See Hooks v. Rich, 2006 WL 595909, *6 (S.D.Ga., Mar. 7, 2006).
675
Ohio Admin Code 5120–9–31, § M (2011) (quoted in Morgan v. Beightler, 2011 WL 2111082, *4 (N.D.Ohio
May 26, 2011)). The Morgan court dismissed for non-exhaustion where the plaintiff failed to “state his grievance
with particularity” against the Warden. Accord, Fletcher v. Sheets, 2011 WL 3206856, *6 (S.D.Ohio, June 10, 2011)
(characterizing rule as “critical procedural rule”), report and recommendation adopted, 2011 WL 3206842
(S.D.Ohio, July 28, 2011). However, in Brown v. Parish, 2012 WL 27298, *3 (S.D.Ohio, Jan. 5, 2012), the court
found the requirement satisfied by the plaintiff’s allegations “that the Warden must have been aware of the problem
because of a class action which Mr. Brown filed in the Ohio Supreme Court”; although the defendants argued that
this allegation was unsupported, the court pointed out that the requirement does not demand evidentiary support),
report and recommendation adopted, 2012 WL 2829861 (S.D.Ohio, July 10, 2012).
676
See, e.g., Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006) (noting the inability of incarcerated persons
to conduct their own investigations); Sulton v. Wright, 265 F.Supp.2d 292, 298 (S.D.N.Y. 2003) (citing Valentin v.
Dinkins, 121 F.3d 72, 74 (2d Cir. 1997) (noting pro se prisoners’ difficulty in identifying defendants)); Lira v.
Director of Corrections of State of California, 2002 WL 1034043, *4 (N.D.Cal., May 17, 2002) (“. . . [D]efendants’

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important in connection with claims of supervisory liability, which prisoners are especially
unlikely to be aware of at the time they file a prison grievance. The case law is sharply divided
between decisions holding that supervisors must have been identified in grievances to be sued 677
and decisions holding, in substance, that if the prisoner grieves what happened to him or her,
allowing prison officials to determine who was at fault, the plaintiff has exhausted. The latter
view is more consistent with the statute’s central purpose of giving prison officials notice so they
can solve problems before litigation is commenced,678 and with the impossibility or
impracticability of requiring prisoners to make that determination in many cases.679
argument that Lira must exhaust by filing a grievance naming the specific persons he ultimately seeks to sue goes
too far, as an inmate may not know all the names of the defendants until after he files a civil action and conducts
discovery, in which case, he would have to dismiss his action and file anew under defendants’ reasoning.”), reversed
and remanded on other grounds, 427 F.3d 1164 (9th Cir. 2005), cert. denied, 549 U.S. 1204 (2007).
677
See Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003) (dismissing claims against supervisor for
failure to control officers who abused the plaintiff because the supervisor was not named in the grievance);
Holloway v. Hobbs, 2013 WL 5935625, *2 (E.D.Ark., Oct. 30, 2013) (dismissing claim of inadequate training
where plaintiff did not name anyone who had failed to train defendant); Porter v. Beard, 2010 WL 2573878, *3-4
(W.D.Pa., May 12, 2010) (dismissing bystander and supervisory claims not raised in plaintiff’s grievance though he
knew supervisors’ identity),`report and recommendation adopted, 2010 WL 2541752 (W.D.Pa., June 21, 2010);
Josey v. Beard, 2009 WL 1858250, *5 (W.D.Pa., June 29, 2009) (dismissing claims in counseled case against
officials responsible for making and enforcing Hepatitis C treatment protocol and blocking plaintiff’s care where
prisoner’s grievance named only his immediate treatment provider); Williams v. Forrest, 2005 WL 820551
(N.D.Tex., Apr. 6, 2005) (holding plaintiff was required to name supervisors of staff members who carried out a
retaliatory transfer in order to sue the supervisors), report and recommendation adopted, 2005 WL 1163301
(N.D.Tex., May 9, 2005); see also Evans v. Correctional Medical Services, 2008 WL 1805375, *4 (E.D.Ark., Apr.
18, 2008) (holding prisoner did not exhaust his otherwise exhausted claim against a private medical provider
because his grievances failed to “allege any facts that CMS directly participated in a constitutional violation, learned
of an alleged constitutional violation and failed to act, created a policy or custom allowing or encouraging illegal
acts, or managed its employees in a way that was grossly negligent”). See also nn. 582-587, above, concerning this
issue.
In Kikumura v. Osagie, 461 F.3d 1269, 1285-86 (10th Cir. 2006), the court held that the plaintiff’s claim of
supervisory liability for correctional staff’s failure to get him timely medical care was not exhausted because his
grievance requesting action to discipline persons who violated agency policy or to “introduce new policy so that the
same wrong-doing won’t happen again” did not sufficiently alert prison officials that the injuries might have been
caused by inadequate training and disciplinary programs.
678
As one court put it, grievances that placed defendants on notice of line officers’ conduct “identified the core
issue; from them, defendants could have discovered any possible wrongdoing related to [them], including their
supervisor's failure to train them.” Czapiewski v. Bartow, 2008 WL 2622862, *1-2 (W.D.Wis., July 1, 2008)
(declining to dismiss inadequate training claim for non-exhaustion; “Basic notions of fairness support the conclusion
that an inmate need not identify responsible individuals or legal theories related to an incident in every case.”);
accord, Cutler v. Correctional Medical Services, 2010 WL 339760, *6 (D.Idaho, Jan. 22, 2010) (“The simple and
more prudent way to interpret the grievance process is that once an inmate has availed himself of all of the grievance
procedures as to his problem, he is free to sue any state actor who could have liability under the provision of law
governing his cause of action.”); Davis v. Rhoomes, 2009 WL 415628, *5, 6 (S.D.N.Y., Feb. 12, 2009) (plaintiff
who exhausted underlying allegations of misconduct was not barred from pursuing supervisory liability against
another defendant); Brown v. Runnels, 2006 WL 2849871, *4 (E.D.Cal., Oct. 3, 2006) (declining to dismiss for nonexhaustion based on failure specifically to grieve that supervisory defendants failed to rectify the problem). In
Sacred Feather v. Merrill, 2008 WL 2510100, *3 n.7 (D.Me., June 19, 2008), report and recommendation adopted,
2008 WL 4791897 (D.Me., Oct. 29, 2008); the court cogently stated:
. . . [I]t would be ludicrous to argue that the failure to name a warden (or a commissioner) in the
grievance itself could defeat a claim against them vis-à-vis the issue complained of; it would
basically require an inmate to anticipate that he was not going to get any relief through the
grievance process and that a 42 U.S.C. § 1983 action was inevitable. That is not in keeping with
the stated purpose of the prison's grievance policy or the 42 U.S.C. § 1997e(a) exhaustion

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In this regard, the Woodford/Jones v. Bock holding that the requirements of the grievance
policy are the measure of exhaustion is in considerable tension both with the statutory
requirement that remedies be “available” to invoke the exhaustion requirement680 and with
Jones’ own holding that the PLRA should not be construed to depart from the usual federal
litigation practice unless Congress has said so.681 An integral part of the usual federal practice is
that leave to amend complaints shall be “freely given,”682 a policy that allows for amendment not
only based on newly discovered facts, but also based on a better understanding of the law and of
the legal significance of already known facts. That point is true a fortiori for cases filed pro se in
which counsel only appears later, often by court appointment based on the court’s perception of
the merit of the case.683
For that reason, an “exhaust each defendant” rule, whether made by courts or prison
officials, undermines both the policy of Rule 15(a) and the purpose of appointing counsel by
freezing the prisoner’s claims and theories of liability in place as of the uncounselled filing of a
grievance within a few days or weeks of the incident complained of. There is nothing in the
statute or its legislative history to suggest that Congress had any such intention.684
One approach to this problem (though not, in my view, a very good one) is for prisoners
to file new grievances naming persons they have newly discovered or recognized bear some

requirement, which is meant to assure that the prison officials get the first crack at rectifying an
alleged wrong.
Accord, Czapiewski v. Bartow, 2008 WL 2622862, id. (“In most instances, it is not necessary to identify the
responsible parties in an inmate complaint to achieve the purpose of administrative exhaustion, which is to give
prison officials a chance to resolve the complaint without judicial intervention.”).
679
See, e.g., Glick v. Walker, 385 Fed.Appx. 579, 582 (7th Cir. 2010) (unpublished) (noting unreasonableness of
expecting prisoners to parse “mystifying web of rules and procedures” behind which was “an army of
administrators”); Robinson v. Johnson, 343 Fed.Appx. 778, 781-82 (3d Cir. 2009) (unpublished) (declining to
dismiss claims against commissioner and superintendent not named in grievance where policies they were
responsible for and persons responsible for them were not made known to prisoners, and where the grievance
response addressed policies anyway); Cutler v. Correctional Medical Services, 2010 WL 339760, *5 (D.Idaho, Jan.
22, 2010) (“If the inmate is grieving a general issue, there may not be any personnel involved, or perhaps the issue
involves all personnel working at a facility if they are implementing the policy complained of. In such an instance, it
would be impossible or impracticable to name the personnel involved.”).
680
See § IV.G, below, concerning availability of remedies, and § IV.E.7, below, concerning the prospect that
officials may promulgate rules designed “for the purpose of tripping up all but the most skillful prisoners.”
Woodford v. Ngo, 548 U.S. 81, 102-03 (2006).
681
Jones v. Bock, 549 U.S. 199, 212-16, 221-24 (2007).
682
Rule 15(a), Fed.R.Civ.P.
683
See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
684
The Tenth Circuit has more comprehensively compiled the reasons an exhaust each defendant approach is
inappropriate regardless of the requirements of prison policy: the undesirability of technicalities in a process that lay
persons pursue pro se, the very short time limits for filing grievances, the limited space allowed on the forms for
prisoners’ complaints, the inability of incarcerated persons to investigate their own claims, the lack of a procedural
mechanism for amending a grievance to identify additional defendants or provide new information about their
claims, the relevant regulations’ prohibition on raising new issues in administrative appeals, and the conflict
between a requirement of naming defendants and the policy of keeping grievances simple for the sake of timeliness
and efficiency. The court further noted the federal grievance system is an inquisitorial system in which prison
officials are responsible for thoroughly investigating complaints. Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th
Cir. 2006).

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responsibility for the problem at issue.685 Grievance systems generally do not seem to make
provision for such supplemental filings,686 which is not surprising, since those systems were
never designed as a rehearsal for litigation, but as quick and informal problem-solving
mechanisms.687 In some systems, grievances adding new names to prior complaints have been
dismissed as “duplicative,” and decisions are mixed as to whether such a grievance fails to
exhaust.688 Other decisions seem to hold prisoners to a standard of procedural clairvoyance,
dismissing their cases for failing to take actions that do not seem to be prescribed in the
grievance rules.689
685

See Brodie v. Benoit, 2013 WL 1195572, *5 (W.D.Mich., Mar. 4, 2013) (holding it “incumbent” upon a prisoner
who learned of a mistake in naming an officer involved in the incident he was suing about to file a grievance naming
that individual promptly), report and recommendation adopted, 2013 WL 1194704 (W.D.Mich., Mar. 22, 2013);
Parks v. Corizon Inc., 2012 WL 4049243, *2 (E.D.Ark., Aug. 23, 2012) (holding prisoner who did not learn
defendants’ names before the grievance deadline expired should have filed untimely grievances naming them),
report and recommendation adopted, 2012 WL 4024682 (E.D.Ark., Sept. 12, 2012), rev’d, 511 Fed.Appx. 588 (8th
Cir. 2013).
686
See Victor v. SCI Smithfield, 2011 WL 3584781, *7-8 (M.D.Pa., Aug. 12, 2011) (noting grievance rules provide
“an inmate may only file a single grievance for a particular matter”). Cf. Jones v. Quinn, 2013 WL 5346474, *3
(C.D.Ill., Sept. 24, 2013) (noting staff’s refusal to process a grievance adding a new party to an already-grieved
complaint).
687
Eichler v. Tilton, 2009 WL 188783, *3 (E.D.Cal., Jan. 27, 2009) (“The administrative grievance system is less
about future litigation and more about reaching an internal and speedy resolution of the prisoner's problems.”),
report and recommendation adopted, 2009 WL 679519 (E.D.Cal., Mar. 13, 2009); Parker v. Robinson, 2008 WL
2222040, *7 (D.Me., May 22, 2008) (point of exhaustion requirement “is to give the correctional institution the
opportunity to address (and hopefully resolve) the grieved-of conduct/condition before the dispute moves to
litigation. The administrative grievance process is not a dress-rehearsal hurdle to civil litigation. . .”).
688
Compare Wells v. Neva, 234 F.3d 1271, 2000 WL 1679441, *2 (6th Cir., Nov. 1, 2000) (unpublished) (“If [a
prisoner] had filed a grievance that was denied as duplicative he would have exhausted administrative remedies and
been permitted to file a complaint.”); Robertson v. McDaniel, 2012 WL 4458147, *2-3 (E.D.Ark., Aug. 30, 2012)
(holding rejection as duplicative of a grievance identifying party in a previous grievance raised a factual issue
barring summary judgment), report and recommendation adopted, 2012 WL 4450826 (E.D.Ark., Sept. 25, 2012);
Woods v. Gaetz, 2012 WL 1107758, *3 (S.D.Ill., Apr. 2, 2012) (noting that labelling a grievance as duplicative
either means that the issues were already grieved or that the defendants are making the remedy unavailable);
Martinez v. Robinson, 2010 WL 3001381, *3 (N.D.Cal., July 29, 2010) (holding plaintiff exhausted his retaliation
claim against one defendant where officials repeatedly rejected his grievance as duplicative of an earlier one about
other aspects of that incident); Moffat v. Michigan Dept. of Corrections, 2010 WL 3906115, *7 (E.D.Mich., May
21, 2010) (holding grievance adding new defendants that was dismissed as duplicative indicated the agency’s belief
that the issues had been exhausted), report and recommendation adopted, 2010 WL 3905354 (E.D.Mich., Sept. 27,
2010); Jones v. Frontera, 2010 WL 707342, *3 (W.D.Mich., Feb. 22, 2010) (holding grievance adding new
defendant exhausted despite dismissal as duplicative); Taylor v. Higgins, 2009 WL 224953, *3 (N.D.Cal., Jan. 29,
2009) (holding dismissal of grievance naming a new defendant as duplicative implied claim had been exhausted in
an earlier grievance); Bey v. Luoma, 2008 WL 4534427, *4 (W.D.Mich., Sept. 30, 2008) (same); Torrez v. McKee,
2008 WL 4534126, *9 (W.D.Mich., Sept. 30, 2008) (holding a grievance that named new defendants was not
duplicative); Cromer v. Chaney, 2008 WL 4056314, *8 (W.D.Mich., Aug. 27, 2008) (same as Torrez); Parker v.
Mulvaney, 2008 WL 4425579, *4 (W.D.Mich., Sept. 26, 2008) (stating plaintiff who learns the identity of persons
not identified in a Step 1 grievance should file a new step 1 grievance identifying them); Sullivan v. Caruso, 2008
WL 356878, *10 (W.D.Mich., Feb. 7, 2008) (same as Torrez) with Laster v. Pramstaller, 2008 WL 474146, *5
(E.D.Mich., Feb. 15, 2008) (holding a grievance naming a defendant that is dismissed as duplicative of an earlier
grievance not naming that defendant fails to exhaust); see Lindensmith v. Wallace, 2013 WL 3895823, *6 n.2
(E.D.Mich., July 29, 2013) (noting but not addressing defendants’ argument that a grievance naming formerly
unknown defendants, which officials reject as duplicative, does not exhaust).
689
In Dunbar v. Jones, 2007 WL 2022083, *8 (M.D.Pa., July 9, 2007), the court rejected the argument that the
plaintiff should have amended his grievance to name a defendant whose identity he did not initially know, since the
rules did not provide for such amended grievances, but dismissed the claim against that defendant because the

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Courts have held that even under a name the defendant rule, a grievance that is decided
on the merits exhausts with respect to all persons involved, whether they are named in the
grievance or not, consistently with the general rule that procedural defaults are waived if the
administrative body reaches the merits despite them.690 Previously, some Michigan district
courts had credited the argument that if the plaintiff names any individuals, officials have no way
of knowing during the grievance process whom the prisoner might later sue, so their first
opportunity to address the failure to name them does not occur until litigation has commenced.691
plaintiff didn’t add her name in his grievance appeals—without citing anything in the grievance policy that permits
adding new material in grievance appeals. Another district court accepted the argument that the plaintiff was
obliged to file a late and duplicative grievance upon learning who was responsible for the action he complained of,
without any discussion of whether the rules provided for such a grievance. Fulgham v. Snyder, 2008 WL 785524, *3
(W.D.Mich., Mar. 21, 2008). The Second Circuit has addressed a similar problem—a prisoner who obtained new
information, though not the identity of defendants—more fairly by holding that the prisoner should have filed a new
grievance under the grievance system’s provision allowing late grievances based on “mitigating circumstances,” but
declining to dismiss because that procedural option was not made sufficiently clear in the grievance rules. Brownell
v. Krom, 446 F.3d 305, 313 (2d Cir. 2006). More reasonable still is the decision in Chencinski v. David, 2011 WL
916555, *5 (S.D.Ill., Feb. 25, 2011), report and recommendation adopted, 2011 WL 938705 (S.D.Ill., Mar. 16,
2011), which rejects the argument that a new grievance was required upon learning (from the initial grievance
response) the responsible party’s identity, since the grievance rules made no provision for such grievances, and
starting the process again would not serve the purpose of helping prison officials address shortcomings.
690
See, e.g., Reed-Bey v. Pramstaller, 603 F.3d 322, 324-26 (6th Cir. 2010) (“When the State nonetheless decides to
reject the claim on the merits, who are we to second guess its decision to overlook or forgive its own procedural
bar?”); Glick v. Walker, 385 Fed.Appx. 579, 582-83 (7th Cir. 2010) (unpublished); Robinson v. Johnson, 343
Fed.Appx. 778, 781-82 (3d Cir. 2009) (unpublished) (declining to dismiss claims against commissioner and
superintendent not named in grievance where the grievance response addressed their policies anyway); Zoph v. Doe,
2014 WL 459798, *4 (S.D.Ill., Feb. 4, 2014); Harris v. Hammil, 2013 WL 5435214, *6 (N.D.Ill., Sept. 30, 2013)
(noting that giving notice to individuals is not a major purpose of the statute); Sercye v. Weatherford, 2013 WL
4041415, *3 (C.D.Ill., Aug. 7, 2013) (declining to dismiss where grievance did not name but “directly and by
inference implicate[d] the health care staff . . . as well as the Wardens” and the merits were decided); Allen v.
Shawney, 2013 WL 2480658, *15 (E.D.Mich., June 10, 2013) (holding “leading purposes of the exhaustion
requirement have been met where prison officials were alerted to the plaintiff's complaints, the MDOC addressed all
of plaintiff's allegations on their merits, and the litigation was improved by the preparation of useful record,”
regardless of whether defendants were named); Hernandez v. Texas, 2013 WL 1276511, *13 (E.D.Tex., Feb. 12,
2013) (noting that grievances were decided and were not denied for failure to name defendants in Step 1), report
and recommendation adopted, 2013 WL 1248137 (E.D.Tex., Mar. 26, 2013); Harper v. Henton, 2012 WL 6595159,
*5 (S.D.Ill., Nov. 30, 2012), report and recommendation adopted, 2012 WL 6594954 (S.D.Ill., Dec. 18, 2012);
Smith v. Correctional Medical Services, Inc., 2012 WL 4483529, *2 (W.D.Ark., Aug. 24, 2012), report and
recommendation adopted, 2012 WL 4483551 (W.D.Ark., Sept. 28, 2012); Hall v. Raja, 2012 WL 1033417, *4-5
(E.D.Mich., Mar. 27, 2012) (reference to “medical staff” rather than naming the medical provider sufficed where the
merits were decided); Taylor v. Gayle, 2012 WL 1831740, *2 (S.D.Ill., Mar. 19, 2012) (where plaintiff alleged he
was denied medication and his grievance was decided at final stage and found to be resolved because he had
received his medication, failure to name the defendant in the grievance did not matter), report and recommendation
adopted, 2012 WL 1831705 (S.D.Ill., May 18, 2012); Dolis v. Loftus, 2010 WL 3834426, *12 (C.D.Ill., Sept. 20,
2010); Wheeler v. Merchant, 2010 WL 3526452, *2-3 (S.D.Ill., Sept. 2, 2010); Allen v. Correctional Medical
Services, Inc., 2010 WL 2663194, *5 (E.D.Mich., July 2, 2010) (applying Reed-Bey); Velez v. Michigan Dept. of
Corrections, 2010 WL 1254852, *2 (E.D.Mich., Mar. 28, 2010); Smith v. Correctional Medical Services, 2009 WL
3242568, *6 (W.D.Mich., Sept. 30, 2009), reconsideration denied, 2010 WL 1753138 (W.D.Mich., Apr. 27, 2010).
691
See, e.g., Downing v. Correction Medical Services Inc., 2009 WL 511849, *8 (W.D.Mich., Feb. 26, 2009);
Vartinelli v. Cady, 2009 WL 706083, *8 (E.D.Mich., Mar. 13, 2009); Sanders v. Bachus, 2008 WL 5422857, *6
(W.D.Mich., Dec. 10, 2008); Basat v. Caruso, 2008 WL 4457828, *15 (E.D.Mich., Sept. 30, 2008); Owens v.
Correctional Medical Services, Inc., 2008 WL 4534424, *7 (W.D.Mich., Sept. 30, 2008). In any case, since the
point of the exhaustion requirement is not to give defendants a way to get claims dismissed, but to facilitate prison
dispute resolution, arguably defendants should have to show that the failure to name defendants in the grievance

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These decisions would seem to be overruled by the Sixth Circuit’s unqualified holding in ReedBey v. Pramstaller that a decision on the merits waives procedural errors. However, some courts
have reasserted the argument even after Reed-Bey.692 In any case, since the point of the
exhaustion requirement is not to give defendants a way to get claims dismissed, but to facilitate
prison dispute resolution, arguably defendants should have to show that the failure to name
defendants in the grievance demonstrably impaired officials’ ability to investigate and resolve
the prisoner’s complaint—a difficult showing if they already have decided the grievance.693
There is a similar tension in the Eighth Circuit, where the court has adopted the general
proposition that procedural defects are waived by a grievance decision on the merits,694 and has
applied it to a “name the defendant” rule in unpublished decisions,695 but several district courts
have pushed back against such application to the Arkansas name the defendant rule. 696 Some
have stated that the conflicting case law “can be harmonized by focusing on whether—despite
the procedural flaw associated with the prisoner's failure to name a defendant in his grievances—

demonstrably impaired their ability to investigate and resolve the prisoner’s complaint—a difficult showing if they
already have decided the grievance. See also Binion v. Glover, 2008 WL 4155355, *11 (E.D.Mich., July 28, 2005)
(stating that the argument “begs the question—is the requirement to name all those involved a ‘critical procedural’
requirement under Woodford?”).
692
Christian v. Michigan Dept. of Corrections - Health Services, 2013 WL 5348832, *5 (E.D.Mich., Sept. 24, 2013)
(holding “Reed–Bey should not be read to provide a ‘catch-all’ exception for prisoner grievances” when the merits
are decided, but that a reference to “health services” along with references to prior “kites” specifying medical
problems satisfied the name the defendants rule where the merits were decided); Kensu v. Rapelje, 2013 WL
1774637, *4 (E.D.Mich., Apr. 25, 2013) (holding “a plaintiff fails to exhaust administrative remedies as to a
particular defendant not identified in the grievance if the plaintiff specifically identifies other defendants by name
and nothing in the grievance would put the unnamed defendants on notice,” not mentioning Reed-Bey); Vandiver v.
Vasbinder, 2012 WL 4358192, *3 (E.D.Mich., June 21, 2012) (adopting Downing v. Correctional Medical Services
argument, holding Reed-Bey reliance misplaced where the plaintiff named some defendants), report and
recommendation adopted, 2012 WL 4355536 (E.D.Mich., Sept. 24, 2012); see also Jackson v. Warner, 2013 WL
2002690, *3 & n.1 (E.D.Ark., May 2, 2013) (declining to dismiss where no defendants were named, distinguishing
case where some were named), report and recommendation adopted, 2013 WL 1966237 (E.D.Ark. May 13, 2013).
693
See Binion v. Glover, 2008 WL 4155355, *11 (E.D.Mich., July 28, 2005) (stating that the argument “begs the
question—is the requirement to name all those involved a ‘critical procedural’ requirement under Woodford?”).
694
Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir.2012) (per curiam).
695
Bower v. Kelley, 494 Fed.Appx. 718, 2012 WL 6199266, *1 (8th Cir. 2012) (unpublished) (also citing ReedBey); accord, Parks v. Corizon, Inc., 511 Fed.Appx. 588, 589 (8th Cir. 2013) (unpublished) (citing Hammett v.
Cofield).
696
Chance v. Burl, 2014 WL 198792, *5 (E.D.Ark., Jan. 15, 2014) (distinguishing Bower and Hammett because
plaintiff named one defendant and others in his grievance, but not other defendants; claims against unexhausted
defendants were not waived under those circumstances); Williams v. Marchbanks, 2014 WL 130492, *4 (E.D.Ark.,
Jan. 14, 2014) (refusing to apply Hammett and Bower where prisoner named one defendant but not the other);
Vanzant v. Morris, 2013 WL 495598, *4 (E.D.Ark., Feb. 8, 2013) (declining to find waiver where the relevant
conduct, as well as the defendants’ names, were omitted from the grievance; distinguishing Hammett on the ground
that its rule did not serve PLRA policies in this situation); Burns v. Eaton, 2013 WL 357563, *3 (E.D.Ark., Jan.29,
2013) (similar to Vanzant). But see Butler v. Corizon, Inc., 2013 WL 5673587, *6 (E.D.Ark., Oct. 15, 2013) (noting
Hammett decision, also noting that defendant not named in the grievance is referred to in documents attached to it
and acknowledged her involvement in plaintiff’s medical care in a declaration); Jones v. Meinzer, 2013 WL
5676886, *4 (E.D.Ark., Aug. 30, 2013) (noting Hammett, finding exhaustion “especially” since two defendants were
members of the Board of Correction and others were referred to as “John Does”), report and recommendation
rejected on other grounds, 2013 WL 5676801 (E.D.Ark., Oct. 18, 2013).

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prison officials proceed to reach and decide the merits of the specific claims asserted against
each defendant.”697
These holdings pose the question what is it that is to be exhausted: the prisoner’s
problem, or the personal culpability of particular individuals for it? The Supreme Court’s
exhaustion decisions strongly suggest that problem-solving is the primary aim. In Jones v. Bock,
the Court stated: “We have identified the benefits of exhaustion to include allowing a prison to
address complaints about the program it administers before being subjected to suit, reducing
litigation to the extent complaints are satisfactorily resolved, and improving litigation that does
occur by leading to the preparation of a useful record.”698 It also stated that notice to prison staff
that they might be sued “has not been thought to be one of the leading purposes of the exhaustion
requirement,” and quoted a Fifth Circuit case stating that “[w]e are mindful that the primary
purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint that
initiates adversarial litigation.”699 It seems fair to conclude that if a grievance body can, and
does, address the merits of a prisoner’s complaint despite the failure to identify individuals, a
court should in effect take it at its word and deem the complaint exhausted and any defendantnaming requirement waived.
5. Exhausting Items of Relief
Courts have held that prisoners need not “demand particular relief” to exhaust
administrative remedies,700 though courts have enforced grievance rules requiring prisoners to
demand some relief in their grievances.701 The Supreme Court held in Booth v. Churner that the
697

Scott v. Burl, 2013 WL 5522404, *3 n.5 (E.D.Ark., Oct. 1, 2013); accord, Waller v. Kelley, 956 F.Supp.2d 1007,
1013 (E.D.Ark., July 9, 2013) (stating “the Court's holding in Hammett only applies in cases where prison officials
overlook or ignore procedural flaws in a prisoner's grievances (which otherwise would have allowed them to deny
the grievances) and reach and decide the merits of the specific claims asserted against specifically named
individuals”; decision on merits of medical care grievance did not decide plaintiff’s claim that a defendant had
failed to correct the inadequate medical care). Cf. Bryant v. Hobbs, 2014 WL 37802, *8 (E.D.Ark., Jan. 6, 2014)
(declining to apply Hammett where the plaintiff not only failed to name all but one defendant, but failed to complain
about the other defendants’ conduct).
698
Jones v. Bock, 549 U.S. 199, 219 (2007); see also Booth v. Churner, 532 U.S. 731, 737 (2001) (citing
defendants’ argument that “requiring exhaustion in these circumstances would produce administrative results that
would satisfy at least some inmates who start out asking for nothing but money, since the very fact of being heard
and prompting administrative change can mollify passions even when nothing ends up in the pocket.”).
699
Jones, 549 U.S. at 923 (quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)); see Eichler v. Tilton,
2009 WL 188783, *3 (E.D.Cal., Jan. 27, 2009) (“The administrative grievance system is less about future litigation
and more about reaching an internal and speedy resolution of the prisoner's problems.”), report and recommendation
adopted, 2009 WL 679519 (E.D.Cal., Mar. 13, 2009); Parker v. Robinson, 2008 WL 2222040, *7 (D.Me., May 22,
2008) (point of exhaustion requirement “is to give the correctional institution the opportunity to address (and
hopefully resolve) the grieved-of conduct/condition before the dispute moves to litigation. The administrative
grievance process is not a dress-rehearsal hurdle to civil litigation. . .”).
700
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002)).
701
Iloilo v. Ang, 2010 WL 3260027, *5 (C.D.Cal., May 28, 2010) (finding no exhaustion where plaintiff requested
only “an acknowledgment of right to file a law suit” and monetary compensation, and grievances were rejected as
“outside the scope of the appeals process”), report and recommendation adopted, 2010 WL 3260020 (C.D.Cal.,
Aug. 10, 2010); Edwards v. Rainey, 2009 WL 742165, *2 (E.D.Okla., Mar. 20, 2009) (dismissing for nonexhaustion where policy required a request for relief but plaintiff’s grievances said only that he wanted to exhaust
his administrative remedies).

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applicability of the exhaustion requirement turns on whether the grievance system will address
the prisoner’s complaint, not whether it provides the remedy that the prisoner prefers. 702 The
Seventh Circuit held that even under its procedural default rule, now adopted by the Supreme
Court,703 “no administrative system may demand that the prisoner specify each remedy later
sought in litigation–for Booth v. Churner . . . holds that § 1997e(a) requires each prisoner to
exhaust a process and not a remedy.”704 Once a prisoner’s claim is exhausted, therefore, “[a]ny
claim for relief that is within the scope of the pleadings” may be litigated without further
exhaustion.705
In particular, prisoners’ damages claims are not barred for failure to ask for damages in
grievance processes (which generally do not provide for damages anyway). 706 This holding is
702

Booth, 532 U.S. at 740-41.
Woodford v. Ngo, 548 U.S. 81 (2006).
704
Strong v. David, 297 F.3d at 649; accord, Smith v. Buss, 2011 WL 1118065, *9 (N.D.Ind., Feb. 18, 2011)
(holding grievance body improperly rejected grievance for requesting damages), report and recommendation
adopted, 2011 WL 1085009 (N.D.Ind., Mar. 24, 2011); Patel v. Federal Bureau of Prisons, 2006 WL 1307733, *3
(E.D.Ark., May 11, 2006) (holding it inconsequential that the prisoner did not specifically request a transfer to a
medical facility; “It is the responsibility of [prison officials] to provide inmates with needed medical care whether
that means the inmate is housed in a medical facility or other institution that has the capability of providing the
appropriate care.”); Sample v. Lappin, 424 F.Supp.2d 187, 191 (D.D.C., Mar. 31, 2006) (holding prisoner seeking
wine during Sabbath and Passover observances need not spell out how it should be provided or who should be
responsible); Lira v. Director of Corrections of State of California, 2002 WL 1034043, *4 (N.D.Cal., May 17, 2002),
reversed and remanded on other grounds, 427 F.3d 1164 (9th Cir. 2005), cert. denied, 549 U.S. 1204 (2007).
The suggestion to the contrary in Luckerson v. Goord, 2002 WL 1628550, *2 (S.D.N.Y., July 22, 2002), is
erroneous. In that case, where the plaintiff initially grieved and requested that asbestos tests be conducted, and then
sued complaining of asbestos-related problems and seeking damages, medical monitoring, etc., the real issue is not
the plaintiff’s failure to ask for particular remedies in the grievance system, but his failure to grieve a claim of actual
exposure to asbestos as opposed to a request that the presence of asbestos be determined. Similarly, the holding in
Saunders v. Goord, 2002 WL 31159109, *4 (S.D.N.Y., Sept. 27, 2002), that the prisoner failed to exhaust in part
because he failed to specify the action he wished taken, is erroneous under Booth. A closer case is presented by
Singh v. Goord, 520 F.Supp.2d 487, 497-98 (S.D.N.Y., Oct. 9, 2007), which holds that a prisoner who prevailed in
his disciplinary appeal did not exhaust his claim for an injunction against further discipline for refusing work
assignments contrary to his religious beliefs; that relief would have required a separate grievance. In Miller v.
Lawler, 2012 WL 629280, *11 (M.D.Pa., Feb. 3, 2012), report and recommendation adopted, 2012 WL 638796
(M.D.Pa., Feb. 27, 2012), vacated on reconsideration on other grounds, 2012 WL 1340346 (M.D.Pa., Apr. 18,
2012), the court held that a grievance seeking medical care based on conditions of confinement did not exhaust a
request to repair heat and hot water. Though framed in terms of relief (the grievance policy requires prisoners to
state the relief sought), this seems to be a case where the plaintiff did not understandably raise his present complaint
in the grievance process. Cf. Clark v. Williams, 619 F.Supp.2d 95, 105 (D.Del., May 31, 2009) (where grievance
was declared non-grievable because plaintiff asked for an apology, the remedy was not available).
705
Jones’El v. Berge, 172 F.Supp.2d 1128, 1134 (W.D.Wis. 2001); accord, Doe v. Wooten, 2010 WL 2821795, *3
(N.D.Ga., July 16, 2010) (“A prisoner is not required to exhaust a specific relief sought.” A grievance stating that a
prisoner was unsafe at one prison exhausted his demand for an order barring his return to that prison.); Coleman v.
Schwarzenegger, 2008 WL 4813371, *2-3 (E.D.Cal., Nov. 3, 2008) (where court had found unconstitutional
medical and mental health care, request to reduce population so care could be provided required no new exhaustion);
Muhammad v. Crosby, 2007 WL 2376050, *3 (N.D.Fla., Aug. 16, 2007) (holding that prisoner who had grieved the
failure to provide a Halal diet sufficiently exhausted a motion for a preliminary injunction to provide such diet by
means of bag lunches; the PLRA requires exhaustion of claims, not particular forms of relief).
706
Buck v. Hartman, 2013 WL 3421891, *3-4 (S.D.Ill., July 8, 2013) (declining to require further exhaustion where
plaintiff got the relief he sought at an intermediate stage and damages were not an available remedy); Del Rio v.
Morgado, 2012 WL 2092401, *4 (C.D.Cal., May 1, 2012) (rejecting claim that prisoner whose grievance was
granted at an intermediate stage failed to exhaust because he did not pursue claim for damages in his grievance),
report and recommendation adopted, 2012 WL 2106369 (C.D.Cal., June 11, 2012); Lopez v. Adams, 2009 WL
703

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not unanimous; some courts have held the opposite,707 and some have held or suggested that
prisoners must exhaust damages demands if the grievance policy so prescribes.708 But the
argument to the contrary, stated above, is based on the central reasoning of the decision in Booth
v. Churner, and it seems unlikely that the Court in promulgating its “proper exhaustion” rule
overruled it in the absence of any statement by the Court to that effect.
6. “Total Exhaustion”
The Supreme Court has rejected the “total exhaustion” rule, which said that if a prisoner
includes any unexhausted claims in a complaint, the whole case had to be dismissed.709 Under
its decision, only the unexhausted claims need be dismissed. Before Jones v. Bock, the Ninth
Circuit had held that when claims were “closely related and difficult to untangle,” the presence
of unexhausted claims among them supported dismissal of the entire complaint, but otherwise
1575195, *2-3 (E.D.Cal., June 3, 2009) (requiring plaintiff to request damages in a grievance would be inconsistent
with Booth), report and recommendation adopted, 2009 WL 2058540 (E.D.Cal., July 14, 2009); Woodson v.
Rodriguez, 2009 WL 799403, *7 (N.D.Cal., Mar. 24, 2009) (plaintiff need not have requested damages in order for
defendants to have notice of the problem he raised); Henderson v. Bettus, 2008 WL 899251, *4 (M.D.Fla., Mar. 31,
2008) (holding plaintiff need not have requested damages, noting grievance rules did not require specifying all relief
requested); Chaidez v. Johnson, 2007 WL 4536599, *2 (S.D.Cal., Dec. 19, 2007) (failure to ask for damages in
grievance was not a failure to exhaust); Roberson v. McShan, 2006 WL 2469368, *3 (S.D.Tex., Aug. 24, 2006)
(holding plaintiff need not have presented his request for damages; citing Booth holding that prisoners must exhaust
regardless of the type of relief sought).
Some courts have held that a prisoner who obtains relief at an intermediate stage of the grievance process,
but who also seeks damages, must exhaust the remaining administrative steps even if damages are not available in
the grievance system. See n. 526, above.
In some cases, grievances have been rejected because the prisoner asked for damages. Garcia v. Wright,
2013 WL 3381269, *2-3 (D.Colo., July 8, 2013) (dismissed for non-exhaustion where plaintiff persisted in asking
only for damages even though remedies were limited by rule to “modification of facility policy” and “assurance that
abuse will not recur”); see Smith v. Buss, 2011 WL 1118065, *9 (N.D.Ind., Feb. 18, 2011) (holding rejection based
solely on asking for monetary compensation would be improper), report and recommendation adopted, 2011 WL
1085009 (N.D.Ind., Mar. 24, 2011).
707
Jennings v. Brown, 2011 WL 2160952, *3 (W.D.Tex., June 1, 2011) (holding prisoner whose informal complaint
resulted in officer’s termination but who did not grieve his damages claim did not exhaust); Hart v. Baldwin, 2009
WL 2185904, *8 (N.D.Iowa, July 23, 2009) (holding that prisoner who failed to ask for damages in his grievance
did not exhaust), report and recommendation adopted in part, rejected in part on other grounds, 2009 WL 3055304
(N.D.Iowa, Sept. 21, 2009), aff’d, 372 Fed.Appx. 684 (8th Cir. 2010); see also Pyle v. Martel, 2012 WL 2847909,
*6 (C.D.Cal., June 1, 2012) (holding grievance body properly screened out grievance where claim for money
damages was added at an intermediate stage), report and recommendation adopted, 2012 WL 2847787 (C.D.Cal.,
July 9, 2012), aff’d, 531 Fed.Appx. 820 (9th Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 1032 (2014).
708
King v. Iowa Dept. of Corrections, 598 F.3d 1051, 1053 (8th Cir. 2010) (“Where prison grievance procedures
clearly require an inmate to state all the relief he seeks, even monetary relief that may be beyond the authority of
grievance officials to grant, it is certainly arguable that ‘proper’ exhaustion requires compliance with that rule. . . .),
cert. denied, 131 S.Ct. 499 (2010); Sanders v. Beard, 2013 WL 1703582, *6 (M.D.Pa., Apr. 19, 2013) (noting
grievance policy required prisoners to specify if they seek “compensation or other legal relief normally available
from a court,” barring plaintiffs who failed to do so from pursuing damages claims), reconsideration denied, 2013
WL 2650215 (M.D.Pa., June 13, 2013), motion to vacate denied, 2013 WL 3353502 (M.D.Pa., July 2, 2013), appeal
dismissed, No. 13-3215 (3d Cir., Sept. 26, 2013); Collins v. Walsh, 2012 WL 3536803, *3 (M.D.Pa., Aug. 15,
2012).
709
Jones v. Bock, 549 U.S. 199, 220-24 (2007). The Second and Ninth Circuits had already so held. Ortiz v.
McBride, 380 F.3d 649 (2d Cir. 2004), cert. denied, 543 U.S. 1187 (2005); accord, Lira v. Herrera, 427 F.3d 1164,
1170 (9th Cir. 2005), cert. denied, 549 U.S. 1204 (2007). Jones overruled contrary decisions in several other
circuits. See, e.g., Jones Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005), cert. granted, judgment vacated, 549 U.S.
1190 (2007).

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rejected total exhaustion.710 Some district courts have continued to use that analysis.711 In my
view there is no support for preservation of the Lira exception in Jones v. Bock’s categorical
rejection of total exhaustion.
7. The “Proper Exhaustion” Requirement
The Supreme Court, resolving a conflict among circuits,712 has held that the PLRA
exhaustion requirement is governed by a procedural default rule, i.e., that if a prisoner’s
administrative complaint is rejected for procedural reasons, a subsequent federal court suit will
be barred for non-exhaustion.713 More precisely, it held that “the PLRA exhaustion requirement
requires proper exhaustion,”714 which “demands compliance with an agency’s deadlines and
other critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” 715 Conversely, compliance
with grievance rules satisfies the statute: “it is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.”716 (The National Standards to Prevent, Detect, and
Respond to Prison Rape, recently promulgated under the Prison Rape Elimination Act, may limit
this holding in some respects for sexual abuse complaints.717)
The Court dismissed the possibility that prisons might “create procedural requirements
for the purpose of tripping up all but the most skillful prisoners,” since the case did not present
that situation,718 notwithstanding the concern that numerous courts had previously (and have
subsequently) expressed about this possibility.719 Several post-Woodford decisions have cited
710

Lira v. Herrera, 427 F.3d at 1175-76.
See Jones v. Paramo, 2013 WL 4517829, *6 (S.D.Cal., Aug. 19, 2013); Freeman v. California Dept. of
Correction and Rehabilitation, 2010 WL 761246, *4 (C.D.Cal., Mar. 1, 2010); Smith v. Woodford, 2009 WL
415612, *4 (N.D.Cal., Feb. 19, 2009); Peoples v. Davis, 2008 WL 4189672, *5 (C.D.Cal., Aug. 29, 2008); Candler
v. Woodford, 2007 WL 3232435, *3-4 & n.2 (N.D.Cal., Nov. 1, 2007); Taylor v. Calipatria, 2007 WL 2712225, *6
& n.4 (S.D.Cal., Sept. 13, 2007) (stating “Lira is consistent with Jones, although Lira provides more detailed
analysis”).
712
Compare Thomas v. Woolum 337 F.3d 720 (6th Cir. 2003) with Pozo v. McCaughtry, 286 F.3d 1022, 1023-24
(7th Cir.), cert. denied, 537 U.S. 949 (2002).
713
Woodford v. Ngo, 548 U.S. 81 (2006).
714
Woodford, 548 U.S. at 106.
715
Woodford, 548 U.S. at 90-91; accord, Jones v. Bock, 549 U.S. 199, 218 (2007) (“Compliance with prison
grievance procedures . . . is all that is required by the PLRA to ‘properly exhaust.’”).
716
Jones v. Bock, 549 U.S. 199, 218 (2007).
Some courts have held that if grievance rules make exhaustion or appealing optional, then they are optional
for PLRA purposes as well. See nn. 194, 473-475, above. This probably pushes the Jones v. Bock principle too far,
i.e., to the point of conflict with the statute’s basic requirement. There is contrary authority in any case.
717
See § IV.E.7.i, below.
718
Woodford, 548 U.S. at 102-03 (dismissing concern about “procedural requirements that are designed to trap
unwary prisoners and thus to defeat their claims”).
719
See, e.g., Thompson v. California, 2012 WL 6691930, *11 (E.D.Cal., Dec. 21, 2012) (crediting “evidence of
Plaintiff's persistent and vehement pleas that his 602 appeals complaining about staff abuse were rejected for
improper reasons or not allowed to proceed to the final level of review”), report and recommendation adopted in
part, 2013 WL 504694 (E.D.Cal., Feb. 8, 2013); Thurmond v. Cool, 2012 WL 601251, *5-7 (D.Nev., Jan. 9, 2012)
(“Plaintiff exhausted all available remedies by supplying prison officials with his property inventory sheet,
addressing his property issue with his caseworker, and filing numerous grievances, which thoroughly explained his
simple request. In response, prison officials requested additional unnecessary documents, denied grievances, and
frustrated plaintiff's attempts to exhaust his administrative remedies.”), report and recommendation adopted, 2012
WL 590021 (D.Nev., Feb. 21, 2012); Kyle v. Feather, 2011 WL 1102735, *2 (W.D.Wis., Mar. 23, 2011)
711

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that statement in holding that prisoners who didn’t fully comply with procedural requirements,
but who were arguably “tripped up” by them, should not have their cases dismissed for
non-exhaustion.720
The Court also dismissed the argument that
(expressing concern about incentives “for officials to make the grievance process as complicated and difficult as
possible, so long as they left a route open for those prisoners savvy enough to find it”); Barker v. Belleque, 2011
WL 285228, *4 (D.Or., Jan. 26, 2011) (finding “the record reflects that plaintiff's good faith effort to [exhaust] was
stymied by defendants' unreasonable interpretation and hyper-technical application of the grievance rules”); Allah v.
Virginia, 2011 WL 251214, *5 (W.D.Va., Jan. 25, 2011) (“That VDOC has evidently chosen to defend Allah's
complaints on procedural vagaries does not demonstrate a failure to exhaust on Allah's part.”); Ortego v. Forcht
Wade Correctional Center, 2010 WL 2985830, *5 (W.D.La., Apr. 29, 2010) (“The exhaustion doctrine is not served
by employing traps to defeat an inmate's claim, especially when the inmate (many of whom are barely literate or
illiterate) is not attempting to avoid the administrative procedure.”), report and recommendation adopted in part,
rejected in part, 2010 WL 2990067 (W.D.La., July 27, 2010); Hooks v. Rich, 2006 WL 565909, *5 (S.D.Ga., Mar.
7, 2006) (“The exhaustion requirement is a gatekeeper, not a ‘gotcha’ meant to trap unsophisticated prisoners who
must navigate the administrative process pro se.”); Ouellette v. Maine State Prison, 2006 WL 173639, *3 n.2
(D.Me., Jan. 23, 2006) (noting that once suit is filed, “the defendants in hindsight can use any deviation by the
prisoner to argue that he or she has not complied with 42 U.S.C. § 1997e(a) responsibilities”), aff’d, 2006 WL
348315 (D.Me., Feb. 14, 2006); Campbell v. Chaves, 402 F.Supp.2d 1101, 1106 n.3 (D.Ariz. 2005) (noting danger
that grievance systems might become “a series of stalling tactics, and dead-ends without resolution”); LaFauci v.
New Hampshire Dept. of Corrections, 2005 WL 419691, *14 (D.N.H., Feb. 23, 2005) (“While proper compliance
with the grievance system makes sound administrative sense, the procedures themselves, and the directions given to
inmates seeking to follow those procedures, should not be traps designed to hamstring legitimate grievances.”);
Rhames v. Federal Bureau of Prisons, 2002 WL 1268005, *5 (S.D.N.Y., June 6, 2002) “While it is important that
prisoners comply with administrative procedures designed by the Bureau of Prisons, rather than using any they
might think sufficient, . . . it is equally important that form not create a snare of forfeiture for a prisoner seeking
redress for perceived violations of his constitutional rights.”).
720
See Timberlake v. Buss, 2007 WL 1280659, *2-3 (S.D.Ind., May 1, 2007) (declining to dismiss challenge to
execution protocols where they were not disclosed to plaintiff and he had no reason to have known about them);
Lampkins v. Roberts, 2007 WL 924746, *2-3 (S.D.Ind., Mar. 27, 2007) (declining to dismiss for missing a five-day
deadline that was not shown to have been made known to prisoners); Brookins v. Vogel, 2006 WL 3437482, *3
(E.D.Cal., Nov. 28, 2006) (holding that a prisoner who filed a grievance, got no response, and was told it had never
been received, and whose subsequent attempts were rejected as untimely, had exhausted under the pre-Woodford
rule that exhaustion occurs when prison officials fail to respond to a grievance within the policy time limits; stating
prisoner asserted without contradiction that he was “prevented from complying with the exhaustion requirement”),
report and recommendation adopted, 2007 WL 433155 (E.D. Cal., Feb. 8, 2007); Parker v. Robinson, 2006 WL
2904780, *7-12 (D.Me., Oct. 10, 2006) (refusing to dismiss where the prisoner sent his appeal to the Commissioner
who was supposed to decide it, not the person who was supposed to forward it to the Commissioner under the rules);
Thomas v. Hickman, 2006 WL 2868967, *9 (E.D.Cal., Oct. 6, 2006) (declining to dismiss where the prisoner’s
grievance was untimely but the prisoner did not know about the violation until long after the deadline had passed);
see Henderson v. Phillips, 2010 WL 3894574, *3 (N.D.Ind., Sept. 29, 2010) (refusing to credit rejection of
grievance for lack of a signature where there was no signature line; stating that is “the sort of maneuver that
sandbags unsuspecting inmates, depriving them of their right to seek redress in federal court for violations of their
constitutional rights”); Marshall v. Peterson, 2007 WL 925851, *3 n.4 (S.D.Cal., Mar. 14, 2007) (stating prisoner
whose grievances were returned because he didn’t sign them, then ruled untimely when he signed and returned
them, even though the rules did not authorize returning grievances for lack of signature, was victimized by a “trap
for the unwary”); Flory v. Claussen, 2006 WL 3404779, *3-4 (W.D.Wash., Nov. 21, 2006) (holding Woodford did
not authorize creating a “trap for the unwary”; prisoner who followed officials’ advice as to which remedy to use
exhausted); see also Rosenblum v. Mule Creek State Prison Medical Officials, 2009 WL 2424558, *5 (E.D.Cal.,
Aug. 6, 2009) (citing “the undersigned's experience in considering an onslaught of motions to dismiss prisoner civil
rights complaints for failure to exhaust administrative remedies. There would appear to be little doubt that appeals
coordinators in California prisons of late are “screening out” prisoner grievances on procedural grounds in record
number.”).

158

requiring proper exhaustion is harsh for prisoners, who generally are untrained in
the law and are often poorly educated. This argument overlooks the informality
and relative simplicity of prison grievance systems like California’s, as well as the
fact that prisoners who litigate in federal court generally proceed pro se and are
forced to comply with numerous unforgiving deadlines and other procedural
requirements.721
This statement contrasts sharply with the Court’s prior statement that “technicalities are
particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers
initiate the process,”722 and with the leniency traditionally accorded to pro se litigants.723
The Woodford Court presented its decision as an interpretation of the statutory term
“exhausted,” which it said Congress intended “to mean what it means in administrative law,
where exhaustion means proper exhaustion.”724 It also noted that the habeas corpus exhaustion
doctrine is “substantively similar” to the administrative law of exhaustion.725 In response,
Justice Breyer, concurring in the judgment, observed:
Administrative law, however, contains well established exceptions to exhaustion.
See Sims v. Apfel, 530 U.S. 103, 115 (2000) (BREYER, J., joined by Rehnquist,
C. J., and SCALIA and KENNEDY, JJ., dissenting) (constitutional claims);
Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000)
(futility); McKart v. United States, 395 U.S. 185, 197-201 (1969) (hardship);
McCarthy v. Madigan, 503 U.S. 140, 147-148 (1992) (inadequate or unavailable
administrative remedies); see generally II R. Pierce, Administrative Law Treatise
§ 15 (4th ed.2002). Moreover, habeas corpus law, which contains an exhaustion
requirement that is “substantively similar” to administrative law’s and which
informs the Court’s opinion, ante, at 2386, also permits a number of exceptions.
See post, at 2396, n. 5 (STEVENS, J., dissenting) (noting that habeas corpus law
permits “petitioners to overcome procedural defaults if they can show that the
procedural rule is not firmly established and regularly followed, if they can
demonstrate cause and prejudice to overcome a procedural default, or if enforcing
the procedural default rule would result in a miscarriage of justice” (citations
omitted)).726

721

Woodford, 548 U.S. at 103.
Love v. Pullman, 404 U.S. 522, 526 (1972) (addressing Title VII administrative charge-filing requirement).
The National Center for Education Statistics reported in 1994 that seven out of ten prisoners perform at the
lowest literacy levels. Karl O. Haigler et al., U.S. Dept. of Educ., Literacy Behind Prison Walls: Profiles of the
Prison Population from the National Adult Literacy Survey xviii, 17- 19 (1994) (available at
http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=94102).
723
See, e.g., Hughes v. Rowe, 449 U.S. 5, 9 (1980) (noting “settled law” that pro se complaints are held to less
stringent standards than those drafted by lawyers); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro
se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might
otherwise apply if he were represented by counsel.”); see also Flory v. Claussen, 2006 WL 3404779, *3 4
(W.D.Wash., Nov. 21, 2006) (quoting Love v. Pullman in refusing to find non-exhaustion where plaintiff had
followed officials’ advice as to which remedy to use).
724
Woodford, 548 U.S. at 93.
725
Woodford, 548 U.S. at 92.
726
Woodford, 548 U.S. at 103-04 (concurring opinion).
722

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The Woodford majority does not comment on these assertions. They are contrary at least
in part to the observation in Booth v. Churner that the PLRA rendered inapplicable “traditional
doctrines of administrative exhaustion, under which a litigant need not apply to an agency that
has ‘no power to decree . . . relief,’ [citation omitted], or need not exhaust where doing so would
otherwise be futile.”727 On the other hand, the Woodford majority’s assertion that exhaustion
means the same thing under the PLRA that it does in administrative law appears equally
inconsistent with the Booth observation. Several courts have cited Justice Breyer’s comments in
allowing claims to go forward despite lack of complete compliance with grievance rules.728
The central question after Woodford is how absolute its “proper exhaustion” holding is.729
Wholly apart from the established exceptions to exhaustion rules in general administrative and
habeas law cited by Justice Breyer–which had seemed to be ruled out by Booth v. Churner–a
number of lower courts applying the PLRA had previously set out circumstances under which
failure to exhaust according to prison procedures would not bar litigation.730 The Second Circuit
had developed the most systematic approach to that question, which it summarized as follows:
First, the court must ask: whether administrative remedies were in fact
“available” to the prisoner. [Second], [t]he court should also inquire . . . whether
the defendants’ own actions inhibiting the inmate’s exhaustion of remedies may
estop one or more of the defendants from raising the plaintiff’s failure to exhaust
as a defense. [Third], [i]f the court finds that administrative remedies were
available to the plaintiff, and that the defendants are not estopped and have not
forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not
exhaust available remedies, the court should consider whether special
circumstances have been plausibly alleged that justify the prisoner’s failure to
comply with administrative procedural requirements. . . .
. . . What constitutes justification in the PLRA context “must be determined by
looking at the circumstances which might understandably lead usually
uncounselled prisoners to fail to grieve in the normally required way.”731
Post-Woodford decisions to date indicate that the Second Circuit analysis remains good
law. The Second Circuit has not revisited it in a published opinion,732 though it has assumed the
727

Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); see Wigfall v. Duval, 2006 WL 2381285, *2-3 (D.Mass., Aug.
15, 2006) (acknowledging tension between the Breyer opinion and Booth, indicating its view that estoppel is
applicable notwithstanding Woodford).
728
See Brookins v. Vogel, 2006 WL 3437482, *3 (E.D.Cal., Nov. 28, 2006), report and recommendation adopted,
2007 WL 433155 (E.D. Cal., Feb. 8, 2007); Parker v. Robinson, 2006 WL 2904780, *8, 11 (D.Me., Oct. 10, 2006);
Thomas v. Hickman, 2006 WL 2868967, *9 (E.D.Cal., Oct. 6, 2006); Collins v. Goord, 438 F.Supp.2d 399, 411
n.13 (S.D.N.Y. 2006); see nn. 735-737, below, for further discussion of this point.
729
One court’s proclamation that “In Ngo, the Supreme Court was emphatic that the PLRA requires punctiliously
proper exhaustion of administrative remedies,” Andrade v. Maloney, 2006 WL 2381429, *8 (D.Mass., Aug. 16,
2006), clearly outruns Woodford’s language.
730
These lines of cases are addressed more comprehensively in § IV.G.2, below.
731
Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d
Cir. 2004)); Giano v. Goord, 380 F.3d 670, 686 (2d Cir. 2004).
732
See Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011); Reynoso v. Swezey, 238 Fed.Appx. 660, 662 (2d Cir.
2007) (unpublished), cert. denied, 552 U.S. 1207 (2008); Boddie v. Bradley, 228 Fed.Appx. 5, 6-7, 2007 WL
595247 (2d Cir. 2007) (unpublished) (all declining to consider effect of Woodford on circuit precedent where
plaintiff could not prevail under that precedent anyway).

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framework remains intact in non-precedential decisions,733 and in one such decision wrote:
“Although Ngo requires that prisoners ‘properly’ exhaust the available remedies under the
PLRA, it certainly does not abrogate the unavailability defense to nonexhaustion.”734 An early
and typical post-Woodford district court decision stated that Woodford “appears to leave open the
question of whether exhaustion applies in situations such as those identified in Hemphill and its
companion cases where, for example, administrative remedies are not ‘available’ to the prisoner
at the time of the grievable incident or where prison authorities actively interfere with an
inmate’s ability to invoke such remedies” (though Woodford may not be compatible with the
results of all the cases applying Hemphill); it specifically noted Justice Breyer’s approving
citation of Giano v. Goord, which held that exhaustion is “mandatory” but subject to the
“caveats” outlined in Hemphill v. New York.735 Subsequent district court decisions have
generally made the same assumption,736 some explicitly noting Justice Breyer’s acknowledgment
of Second Circuit caselaw.737 As one court put it:

733

Snyder v. Whittier, 428 Fed.Appx. 89, 91 (2d Cir. 2011) (unpublished); Davis v. New York, 311 Fed.Appx. 397,
399 (2d Cir. 2009) (unpublished). Neither decision refers to any question about the viability of its approach after
Woodford.
734
Johnston v. Maha, 460 Fed.Appx. 11, 15 n.6 (2d Cir. 2012) (unpublished).
735
Collins v. Goord, 438 F.Supp.2d 399, 411 n.13 (S.D.N.Y. 2006) (citing Giano v. Goord, 380 F.3d at 677-78).
Justice Breyer urged district courts to continue to consider “any challenges that [the prisoner] may have concerning
whether his case falls into a traditional exception that the [PLRA] implicitly incorporates.” Woodford, 548 U.S. at
104 (Breyer, J., concurring in judgment).
736
See Smith v. City of New York, 2013 WL 5434144, *9 (S.D.N.Y., Sept. 26, 2013); Mena v. City of New York,
2013 WL 1352081, *6 (S.D.N.Y., Apr. 4, 2013) (citing cases), report and recommendation adopted, 2013 WL
3580057 (S.D.N.Y., July 10, 2013), appeal dismissed, No. 13-3232 (2d Cir., Jan. 29, 2014); Hartry v. County of
Suffolk, 755 F.Supp.2d 422, 431 (E.D.N.Y. 2010); Cousin v. Dodrill, 2010 WL 986411, *6 (N.D.N.Y., Feb. 25,
2010), report and recommendation adopted, 2010 WL 986405 (N.D.N.Y., Mar. 17, 2010); Pacheco v. Drown, 2010
WL 144400, *21 (N.D.N.Y., Jan. 11, 2010) (finding special circumstances where plaintiff’s grievance was
incorrectly rejected as non-grievable); Torres v. Anderson, 674 F.Supp.2d 394, 397-98 (E.D.N.Y. 2009); Winston v.
Woodward, 2008 WL 2263191, *6 (S.D.N.Y., May 30, 2008) (collecting cases); Hill v. U.S. Attorney's Office,
E.D.N.Y., 2009 WL 2524914, *3-5 (E.D.N.Y., Aug. 14, 2009); Shomo v. Goord, 2007 WL 2693526, *6 (N.D.N.Y.,
Sept. 11, 2007); Snyder v. Goord, 2007 WL 957530, *9-10 (N.D.N.Y., Mar. 29, 2007); MacDonald v. Pedro, 2007
WL 283045, *4-5 (D.Or., Jan. 24, 2007); Hernandez v. Schriro, 2006 WL 2989030, *4 (D.Ariz., Oct. 18, 2006);
Hairston v. LaMarche, 2006 WL 2309592, *6 n.9 (S.D.N.Y., Aug. 10, 2006); James v. Davis, 2006 WL 2171082,
*16-17 (D.S.C., July 31, 2006); Hernandez v. Coffey, 2006 WL 2109465, *3 (S.D.N.Y., July 26, 2006) (all applying
Hemphill analysis after Woodford), vacated on other grounds, 582 F.3d 303 (2d Cir. 2009); see also Petty v. Goord,
2007 WL 724648, *8 (S.D.N.Y., Mar. 5, 2007) (holding two months-plus in a mental hospital while plaintiff’s
grievance was being processed supported a claim of special circumstances excusing failure to complete exhaustion).
737
Murray v. Gillani, 2013 WL 838351, *6 & n.9 (N.D.N.Y., Feb. 11, 2013), report and recommendation adopted,
2013 WL 838306 (N.D.N.Y., Mar. 6, 2013), appeal dismissed, No. 13-952 (2d Cir., June 27, 2013); Smith v. Baker,
2012 WL 6948839, *3 & n.5 (N.D.N.Y., Nov. 13, 2012), report and recommendation adopted, 2013 WL 317018
(N.D.N.Y., Jan. 28, 2013); Holmes v. LeClair, 2012 WL 5880360, *6 n.14 (N.D.N.Y., Oct. 11, 2012), report and
recommendation adopted, 2012 WL 5880690 (N.D.N.Y., Nov. 21, 2012); Stevens v. City of New York, 2012 WL
4948051, *5 (S.D.N.Y., Oct. 11, 2012) (“The better view . . . is that Justice Breyer accurately described the nature
and scope of the Court's reasoning in Woodford.”); Simmons v. Bezio, 2012 WL 3054127, *4 & n.5 (N.D.N.Y.,
June 21, 2012), report and recommendation adopted, 2012 WL 3062441 (N.D.N.Y., July 26, 2012); Alvarez v.
Fischer, 2012 WL 555202, *3 & n.2 (N.D.N.Y., Jan. 27, 2012) (stating it appears Woodford did not overrule
Second Circuit decisions; citing Justice Breyer’s favorable citation of Giano), report and recommendation adopted,
2012 WL 555398 (N.D.N.Y., Feb. 21, 2012); Madison v. Hoey, 2009 WL 818956, *6 (N.D.N.Y., Mar. 26, 2009);
Gonzalez v. Whittaker, 2009 WL 789577, *3-4 (N.D.N.Y., Mar. 20, 2009); Withrow v. Taylor, 2007 WL 3274858,
*6 (N.D.N.Y., Nov. 5, 2007); Green v. McBride, 2007 WL 2815444, *2 (S.D.W.Va., Sept. 25, 2007); Bell v. Beebe,
2007 WL 1879767, *4 n.8 (N.D.N.Y., June 29, 2007); Miller v. Covey, 2007 WL 952054, *3 (N.D.N.Y., Mar. 29,

161

. . . [A] reading of Woodford that called Hemphill into question would fail to
appreciate the significance of the Court's reliance on administrative and habeas
corpus doctrine, overextend its policy reasoning, and undervalue its sensitivity to
circumstances where malfeasance by prison administrators effectively destroys
any chance of legal remedy. For these reasons, Justice Breyer's view that
Woodford is compatible with precedent like Hemphill reflects not merely Justice
Breyer's view, but the better reading of the Court's opinion in Woodford. Indeed,
with a strict background rule like Woodford, decisions like Hemphill play an even
more critical role in avoiding the potential for injustice wrought by a procedural
regime that values efficiency, administrative review, and federalism over
potentially meritorious claims that unsophisticated inmates seek in good faith to
remedy through the grievance process.738
Another noteworthy New York district court decision applying the Second Circuit
“special circumstances” rule also distinguished Woodford on the ground that the prisoner before
it had not “bypass[ed] prison grievance procedures” or “attempt[ed] to circumvent the exhaustion
requirements.”739 Rather, he had tried hard and in multiple ways to bring his complaint to the
attention of responsible officials. “[A]lthough each of his efforts, alone, may not have fully
complied, together his efforts sufficiently informed prison officials of his grievance and led to a
thorough investigation of the grievance as to satisfy the purpose of the PLRA or to constitute
‘special circumstances’ [to] justify any failure to fully comply with DOCS’ exhaustion
requirements.”740

2007); Bester v. Dixion, 2007 WL 951558, *7-8 (N.D.N.Y., Mar. 27, 2007); Fox v. Brown, 2007 WL 586724, *5
(N.D.N.Y., Feb. 21, 2007).
738
Stevens v. City of New York, 2012 WL 4948051, *6 (S.D.N.Y., Oct. 11, 2012).
739
Hairston v. LaMarche, 2006 WL 2309592, *8, 11 (S.D.N.Y., Aug. 10, 2006); see Parker v. Robinson, 2006 WL
2904780, *7-12 (D.Me., Oct. 10, 2006) (declining to dismiss for non-exhaustion where plaintiff sent his appeal
directly to the Commissioner, rather than sending it to the Grievance Review Officer to forward to the
Commissioner); Rainge-El v. Moschetti, 2006 WL 1980287, *1 (D.Colo., July 12, 2006) (questioning Woodford’s
applicability where the plaintiff “did not entirely ignore the prison’s administrative grievance machinery”).
In Williams v. Hurley, 2007 WL 1202723 (S.D.Ohio, Apr. 23, 2007), the plaintiff’s cancer was not
diagnosed for two years; by the time he learned of it, he was receiving appropriate treatment, albeit too late. The
court adopted the Second Circuit “special circumstances” analysis and held that “the nature of his illness, the
number of years which passed since the Defendants’ alleged malfeasance, the seriousness of the Defendants’ alleged
actions, and the inability of the prison to provide Plaintiff with any relief pertaining to his Complaint” comprised
special circumstances. 2007 WL 1202723, *6. This unusual result appears mainly to reflect the seriousness of the
injury to the plaintiff.
740
Hairston, 2006 WL 2309592, *8. Mr. Hairston, who complained of excessive force, did not file a grievance
within the prescribed time frame. However, he had been placed in segregated housing, and stated that contrary to
prison policy, he was unaware of any grievance staff making rounds in the SHU, creating a factual question whether
the remedy was actually available to him or whether defendants should be estopped from relying on non-exhaustion.
His wife wrote to the Superintendent requesting an investigation within the prescribed time period for grievances.
While such a letter does not suffice to exhaust by itself, if it results in an Inspector General’s investigation, it may
constitute “special circumstances” satisfying the PLRA’s purposes, and causes the same result as invoking the
prison system’s expedited grievance procedure. Since the plaintiff never received notice of any decision on his
complaint (he received the results of the Inspector General’s investigation only in discovery after filing suit), he had
no opportunity to appeal it. Meanwhile, Mr. Hairston received a disciplinary hearing, and attempted to raise his
claim of assault, but was not allowed to do so there; he raised it in his disciplinary appeal as well. Once he was
released from SHU and advised by another prisoner to do so, he filed a grievance, which both rejected it on its
merits and stated it was untimely; he did not appeal because he thought he could not appeal an untimely grievance,

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Though as noted, the Second Circuit has not generally reviewed the status of its analysis
post-Woodford, it has retreated from one extension of its analysis. In Braham v. Clancy,741 the
court had held or suggested that if a prisoner’s informal complaints provide sufficient notice to
prison officials to allow them to take appropriate responsive measures, the prisoner has
exhausted.742 The Circuit has now held that aspect of Braham overruled by Woodford. It stated
that the PLRA requires both “substantive exhaustion” (notice to officials) and “procedural
exhaustion” (following the rules), and that “after Woodford notice alone is insufficient.”743 The
court did not address its earlier holding, reiterated in Braham, that a prisoner’s reasonable
interpretation of confusing grievance rules may justify the failure to follow procedural rules
correctly.744
The Second Circuit analysis has been followed in part by some other federal courts. The
Seventh Circuit–the first circuit to adopt the procedural default rule later embraced by
Woodford–has, after Woodford, adopted the Hemphill framework for determining when prison
officials’ threats or intimidation make remedies “unavailable.”745 The Eleventh Circuit has done
the same, citing the Seventh Circuit decision as well.746 Similarly, the Ninth Circuit, citing the
Seventh and Eleventh Circuit decisions and a more recent statement of the Second Circuit
standard, has held that a litigant’s failure of timely exhaustion was excused because he took
“reasonable and appropriate steps to exhaust . . . and was precluded from exhausting, not through
his own fault but by the Warden’s mistake.”747 It later added: “If prison officials screen out
[reject] an inmate's appeals for improper reasons, the inmate cannot pursue the necessary

which the court finds reasonable. Id., *9-11; see Pierre v. County of Broome, 2007 WL 625978, *4 (N.D.N.Y., Feb.
23, 2007) (holding the sensitive nature of plaintiff’s medical complaints, her wish to maintain privacy, and “most
significantly, the lack of any response to her complaints” including repeated attempts to file a grievance, justified
her failure to comply with the grievance process).
741
425 F.3d 177 (2d Cir. 2005).
742
Braham, 425 F.3d at 183 (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)).
743
Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007).
744
Macias, 495 F.3d at 43 n.1 (citing Hemphill v. New York, 380 F.3d 680, 690 (2d Cir. 2004)); see Benjamin v.
Commissioner N.Y. State Dept. of Correctional Services, 2007 WL 2319126, *14 (S.D.N.Y., Aug. 10, 2007)
(following Macias, noting that plaintiff could not have believed a disciplinary appeal was his only remedy for a use
of force complaint). Compare Sumpter v. Skiff, 2008 WL 4518996, *6 (N.D.N.Y., Sept. 30, 2008) (finding special
circumstances justifying failure to follow administrative appeal rules where administrative decision gave
instructions that contradicted the rules).
745
Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006).
746
Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (“Remedies that rational inmates cannot be expected to
use are not capable of accomplishing their purposes, and so are not available”; following Hemphill and Kaba). But
see Cole v. Secretary Dept. of Corrections, 2011 WL 6184433, *1 (11th Cir., Dec. 14, 2011) (unpublished) (holding
a continuing threat of unfounded disciplinary charges “would not deter a reasonable inmate from pursuing his
grievance”). The Cole holding is contrary to decisions applying the same standard in First Amendment retaliation
cases. See, e.g., Brown v. Crowley, 312 F.3d 782, 789 (6th Cir. 2002) (holding disciplinary charges that were
dismissed were sufficiently adverse because they “subjected [plaintiff] to the risk of significant sanctions”); Lashley
v. Wakefield, 367 F. Supp. 2d 461, 466–67 (W.D.N.Y. 2005) (repeated disciplinary charges that were dismissed but
resulted in 20 days of pre-hearing confinement).
747
Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). In Nunez, the plaintiff did not file his final appeal timely
because in an intermediate response, the Warden cited a Program Statement which the plaintiff believed in good
faith he needed in order to appeal, and he spent months trying to obtain it. 591 F.3d at 1225-26. The dissenting
judge said there was no reason the prisoner could not have appealed his claim of an improper strip search without a
copy of the program statement. 591 F.3d at 1230.

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sequence of appeals, and administrative remedies are therefore plainly unavailable.”748 (Some
subsequent decisions have held that a prisoner whose grievance is screened out improperly must
administratively contest the screening decision if there is a means to do so.749)
Other courts have been less willing to adopt the “special circumstances” prong of Second
Circuit law, and at least one circuit has rejected it outright.750 Other circuits have adopted other
formulations, though generally with less systematic analysis than the Second Circuit,751 and
sometimes directed to a narrow set of facts.752
748

Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). The court continued: “To fall within this exception, a
prisoner must show that he attempted to exhaust his administrative remedies but was thwarted by improper
screening. In particular, the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued
through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in
federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or
unsupported by applicable regulations.” 623 F.3d at 823-24. However, it did not “foreclose the possibility that
exhaustion might also be excused where repeated rejections of an inmate's grievances at the screening stage give rise
to a reasonable good faith belief that administrative remedies are effectively unavailable.” Id. at 826; see Simpson
v. Feltsen, 2010 WL 5288181, *5 n.4 (E.D.Cal., Dec. 17, 2010) (holding Sapp does not shift burden to prisoner to
show that screening was improper).
749
Barrett v. Cate, 2011 WL 6753993, *9-10 (E.D.Cal., Dec. 23, 2011); Williams v. Cate, 2011 WL 444788, *8-9,
*11 (E.D.Cal., Feb. 8, 2011) (holding that plaintiff need only use a reconsideration procedure once if the rejection is
upheld), report and recommendation adopted in part, rejected in part on other grounds, 2011 WL 1121965
(E.D.Cal., Mar. 24, 2011); Anderson v. Tilton, 2011 WL 11483, *6 (N.D.Cal., Jan. 4, 2011) (holding prisoner must
follow instructions to cure deficiency and resubmit grievance, or contest the screening out); see Gray v. Virga, 2014
WL 309530, *12 (E.D.Cal., Jan. 27, 2014) (holding remedy unavailable where the plaintiff complied with screenout orders and resubmitted his grievances, and received no response).
750
Dillon v. Rogers, 596 F.3d 260, 270 (5th Cir. 2010) (holding that “reprehensible” circumstances do not “grant[]
us license to carve out new exceptions to the PLRA’s exhaustion requirement,” and that disruption in a grievance
system should be addressed as a matter of availability of remedies). The Ninth Circuit acknowledged a prisoner’s
claim that “special circumstances entitle him to an equitable exception to the PLRA's exhaustion requirement” based
on “his significant difficulty in following the grievance process, his reasonable belief that he could not pursue the
grievance process any further, his limited education, and the fact that he did not deliberately bypass the
administrative scheme. . . .” Sapp v. Kimbrell, 623 F.3d at 827. However, the court did not decide whether such a
claim could be maintained, since it said the plaintiff would not have been entitled to it anyway. See Butala v.
Gerlicher, 2014 WL 241865, *11 (D.Minn., Jan. 22, 2014) (noting the Eighth Circuit has not adopted the special
circumstances rule).
751
See, e.g., Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (stating “an administrative remedy is not
considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of
it”); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (stating when “the failure to exhaust was innocent (as
where prison officials prevent a prisoner from exhausting his remedies), . . . he must be given another chance to
exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's
not just being given a runaround). . . .”), cert. denied, 556 U.S. 1128 (2009).
One formulation that has been repeated many times in the Third Circuit district courts is that:
This broad rule favoring full exhaustion admits of one, narrowly defined exception. If the actions
of prison officials directly caused the inmate's procedural default on a grievance, the inmate will
not be held to strict compliance with this exhaustion requirement.
Williamson v. Roberts, 2013 WL 967693, *4 (W.D.Pa., Mar. 12, 2013); accord, e.g., Miller v. Coning,, 2014 WL
808023, *5 n.11 (D.Del., Feb. 28, 2014) (citation omitted); Eggleston v. Lewis, 2014 WL 690555, *8 (M.D.Pa., Feb.
24, 2014).
752
See, e.g., Toney v. Bledsoe, 427 Fed.Appx. 74, 78 (3d Cir. 2011) (unpublished) (noting prior holding that
“erroneous instructions or other impediments to pursuing administrative relief may render those remedies
‘unavailable’ for the purposes of § 1997e(a)” (citing Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002)), cert.
denied, 132 S.Ct. 334 (2011); Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622, 625 (6th Cir. 2011)
(unpublished) (stating “a prisoner is required to exhaust only those procedures that he is reasonably capable of

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More specific questions remaining after Woodford, some of them directly related to preexisting Second Circuit law, include the following:
a)

What If Procedural Requirements Are Not Clear?

Prison grievance systems are not all characterized by “relative simplicity” in all their
aspects. The Second Circuit recognized this fact in Giano v. Goord,753 in which a prisoner
pursued his complaint of retaliatory disciplinary charges and falsified evidence through a
disciplinary appeal rather than a grievance. The court held that the prisoner’s interpretation
might be wrong (a question it did not decide), but that prison rules “do not differentiate clearly
between grievable matters relating to disciplinary proceedings, and non-grievable issues
concerning the ‘decisions or dispositions’ of such proceedings,” and the prisoner had acted
reasonably; the court noted that a “learned” district judge had interpreted the prison
administrative rules in the same way as the plaintiff.754
This lack of clarity in grievance systems–either in the written rules or in prison officials’
actions or instructions in particular cases755–is a recurrent theme in prison exhaustion cases.756
exhausting”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (stating “a remedy that prison officials prevent a
prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a)....”).
753
Giano v. Goord, 380 F.3d 670 (2d Cir. 2004).
754
Giano, 380 F.3d at 679; accord, Malik v. District of Columbia, 574 F.3d 781, 785-86 (D.C.Cir. 2009) (declining
to find non-exhaustion where transfers were non-grievable and policy did not say whether claim of retaliation would
make the transfer grievable); Torres v. Anderson, 674 F.Supp.2d 394, 400 (E.D.N.Y. 2009) (declining to find lack of
proper exhaustion for failure to file post-transfer grievance at the prison where the claim arose, rather than the
receiving prison, where rule could be read as permissive and not mandatory); Wilson v. Budgeon, 2007 WL 464700,
*5 (M.D.Pa., Feb. 13, 2007) (declining to dismiss for non-exhaustion where rules did not clearly instruct the
prisoner whether to raise his retaliation claim in a disciplinary appeal or a grievance), appeal dismissed, 248
Fed.Appx. 348 (3d Cir. 2007). But see Mccloud v. Roy, 2010 WL 985731, *4 (N.D.N.Y., Feb. 22, 2010) (declining
to excuse non-exhaustion based on prisoner’s misunderstanding that did not stem from reliance on prison rules),
report and recommendation adopted, 2010 WL 985737 (N.D.N.Y., Mar. 16, 2010).
A scenario similar to Giano but with an opposite result is presented in Marshall v. Knight, 2006 WL
3714713 (N.D.Ind., Dec. 14, 2006), in which a prisoner who alleged that he had been retaliated against in
classification and disciplinary matters did not file a grievance because classification and disciplinary matters are
excluded from the grievance system. The court held that he had failed to exhaust because retaliation claims might
be grievable. 2006 WL 3714713, *1. Unlike Giano, the decision gave no consideration to the reasonableness of
Mr. Marshall’s interpretation of the rules.
More recently, one court has held on policy grounds that prisoners should be required to exhaust even
where the complaint is of doubtful grievability or even “where it appears not to be permitted” by the grievance
system. Ramos v. Flynn, 2009 WL 2207191, *12 (D.Mass., July 22, 2009). The fairness or unfairness of expecting
an uncounselled prisoner to appreciate the need to grieve a seemingly ungrievable complaint was not part of the
court’s analysis. The court also did not consider whether its holding is consistent with the statutory language
mandating exhaustion only of “available” remedies, and the Supreme Court’s definition of “available”: a remedy
that does not lack “authority to provide any relief or to take any action whatsoever in response to a complaint.”
Booth v. Churner, 532 U.S. 731, 736 (2001) (emphasis supplied). Under Booth, if a remedy lacks such authority,
the prisoner cannot be required to exhaust it.
755
“Though California's grievance system may be informal and straightforward in the abstract, see Woodford v. Ngo,
. . . the process was marked with confusion in this particular case.” Kidd v. Biggs, 2009 WL 2151836, *4 (E.D.Cal.,
July 16, 2009) (noting “muddled” notifications and instructions to plaintiff), report and recommendation adopted,
2009 WL 3157536 (E.D.Cal., Sept. 28, 2009); see Adams v. Sutmiller, 2014 WL 584749, *8-9 (W.D.Okla., Feb. 12,
2014) (finding remedy unavailable where plaintiff’s Request to Submit a Misconduct/Grievance Appeal Out of
Time was never answered and the grievance policy provided “no remedy or direction” in that situation); Thomas v.
Hernandez, 2012 WL 4496826, *3 (S.D.Cal., Sept. 28, 2012) (noting rule that said appeal must be “forwarded to”

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Thus, in Brownell v. Krom, the court cited prison officials’ erroneous advice that the plaintiff’s
lost property was not the responsibility of the prison he had been transferred to, which resulted in
a failure to investigate; a prison official’s advice to abandon his property claim and pursue a
grievance instead, resulting in loss of the ability to appeal the property claim; and the lack of any
apparent provision in the grievance system for raising newly discovered facts in a previously
filed grievance.757 Such examples can be multiplied, in the Second Circuit758 and elsewhere.
Thus, the Seventh Circuit–notwithstanding having adopted a procedural default standard well
before Woodford–held that prison officials did not establish a failure to exhaust available
remedies where their policies did not “clearly identif[y]” the proper remedy and there was no
“clear route” for prisoners to challenge certain decisions.759 Similarly, there are many cases in
the appeals coordinator did not clearly exclude giving it to other staff for forwarding); Perkins v. Farris, 2012 WL
2525651, *5 (N.D.Ill., June 28, 2012) (declining to dismiss for non-exhaustion where initial grievance elicited a
response that the allegations were being investigated, which “would not necessarily warrant an appeal,” and
subsequent grievances and attempts to appeal were rejected); Rahim v. Holden, 882 F.Supp.2d 638, 642-43 (D.Del.,
June 22, 2012) (declining to dismiss for non-exhaustion; “The instructions for submitting a ‘regular’ grievance
specifically state that parole decisions are ‘non-grievable.’ Nonetheless, defendants expect plaintiff, who appears pro
se, to submit a grievance based upon the legal distinction between procedural complaints against State defendants in
the parole process and substantive complaints against the Board of Parole in making its parole decision.”); Lemons
v. Dragmister, 2010 WL 530073, *2 (N.D.Ind., Feb. 9, 2010) (refusing to enforce rule requiring signing of
grievances where grievance form did not have a signature line; to do otherwise “would effectively sand-bag
unsuspecting inmates”); Cutler v. Correctional Medical Services, 2010 WL 339760, *5 (D.Idaho, Jan. 22, 2010)
(noting that requirement to identify responsible staff members is listed in only one of four documents addressing
grievance policy; “While lawyers and judges can print and lay out the policy, directive, form, and handout side by
side for comparison and contrast, inmate laypersons would be able to do so only with significant difficulty.”);
Woodard v. O'Brien, 2010 WL 148301, *15 (N.D.Iowa, Jan. 14, 2010) (finding plaintiff complied with procedure
“to the best of his ability to understand it,” citing ambiguous appeal rule, the grievance officer’s failure to recognize
his attempts at informal resolution, and officer’s failure to advise him what more he needed to do).
756
Particular note should be taken of Adams v. Haford, 2013 WL 951230, *9 (W.D.La., Feb. 13, 2013), report and
recommendation adopted, 2013 WL 951216 (W.D.La., Mar. 12, 2013), in which the defendants’ witnesses were
unable to agree on what the third stage of their grievance system was. The court held the plaintiff to a two-stage
process.
757
Brownell, 446 F.3d at 312; accord, Rosales v. LaValley, 2013 WL 992547, *6 (N.D.N.Y., Mar. 13, 2013)
(finding special circumstances justifying non-exhaustion where plaintiff was given incorrect instructions and prison
staff admitted they were not correctly following the grievance policy at the time).
758
See Abney v. McGinnis, 380 F.3d 663, 668-69 (2d Cir. 2004) (noting the lack of instruction in the grievance
rules as to what to do where a favorable grievance decision is not carried out); Johnson v. Testman, 380 F.3d 691,
696-97 (2d Cir. 2004) (holding the district court should consider the reasonableness of that a federal prisoner’s
belief that he had adequately raised his inmate-inmate assault claim through an appeal of the disciplinary proceeding
that arose from the incident); Hemphill v. New York, 380 F.3d 680, 689-90 (2d Cir. 2004) (holding that plaintiff’s
arguments about lack of clarity in grievance regulations supported the reasonableness of his belief that he could
exhaust by writing directly to the Superintendent); Torres v. Anderson, 674 F.Supp.2d 394, 400 (E.D.N.Y. 2009)
(holding rule governing place of filing grievance after transfer was not clearly mandatory; “the failure to
communicate with sufficient clarity that which defendants contend is a mandatory procedure is a ‘special
circumstance’ that would excuse compliance”); Davis v. Rhoomes, 2009 WL 415628, *5 (S.D.N.Y., Feb. 12, 2009)
(holding prisoner could reasonably have believed that post-grievance retaliatory actions could be raised in grievance
appeal rather than in new grievance); Sumpter v. Skiff, 2008 WL 4518996, *6 (N.D.N.Y., Sept. 30, 2008) (finding
special circumstances justifying failure to follow administrative appeal rules where administrative decision gave
instructions that contradicted the rules); Bellamy v. Mount Vernon Hosp., 2008 WL 3152963, *5 (S.D.N.Y., Aug. 5,
2008) (where allowance for late grievances was limited to 45 days after an “alleged occurrence,” and the plaintiff
thought the “occurrence” was his surgery and not his knowledge of its side-effects, he reasonably believed no
remedy remained available to him); see Appendix A for additional authority on this point.
759
Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005); accord, Vasquez v. Hilbert, 2008 WL 2224394, *4
(W.D.Wis., May 28, 2008) (holding plaintiff exhausted when he grieved his medical claim late because medical

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which officials’ actions or instructions with respect to particular grievances create uncertainty as
to how to proceed.760 In other cases, the prisoner’s knowledge of the facts does not permit
timely compliance with the grievance rules.761 In some cases an unsettled legal situation
treatment was mentioned in a disciplinary report, and the rules said a grievance raising “any issue related to the
conduct report” must await completion of the disciplinary process; plaintiff acted reasonably in waiting; “. . .
[W]hen prison officials fail to ‘clearly identif[y]’ the proper route for exhaustion, they cannot later fault the prisoner
for failing to predict the correct choice. . . . The burden is on the Department of Corrections to make grievance
procedures clear and easy to follow.”). For additional examples of cases where prison complaint procedures are not
“relatively simple,” because procedures are unclear, actual procedures deviate from written procedures, or prisoners
receive confusing or misleading responses or misinformation or no information about grievance rules, see nn. 514516, above, and nn. 1074-1078, below.
760
Turner v. Burnside, 541 F.3d 1077, 1083-84 (11th Cir. 2008) (holding a prisoner whose grievance was torn up by
the warden was not required to file another one or grieve the warden’s action; “[n]othing in [the rules] requires an
inmate to grieve a breakdown in the grievance process”); Dole v. Chandler, 438 F.3d 804, 811-12 (7th Cir. 2006)
(holding a prisoner had exhausted when he did everything necessary to exhaust but his grievance simply
disappeared, and he received no instructions as to what if anything to do about it); Lee v. Willey, 2012 WL 666646,
*4, 6 (E.D.Mich., Feb. 1, 2012) (declining to dismiss for failure to appeal where plaintiff could not get grievance
forms and submitted his grievance three times on plain paper without receiving a response or instructions how to
proceed; “A prisoner is required to comply with a prison's grievance procedure to the extent it is available. He is not,
however, required to make Herculean efforts when confronted with prison officials who attempt to thwart his efforts
to comply with prison policy.”), report and recommendation adopted, 2012 WL 662199 (E.D.Mich., Feb. 29, 2012);
Joyner v. O'Neil, 2012 WL 560199, *6 & n.13 (E.D.Va., Feb. 21, 2012) (declining to dismiss for non-exhaustion
where policy required prisoner to receive “a written response ... contain [ing] the reason for the decision” to appeal,
but the response said only that complaint was referred to the Professional Standards Office; “The Court views the
exhaustion requirement through the objective lens of the reasonable, similarly situated prisoner.”); Oliverez v.
Albitre, 2010 WL 5059616, *6 (E.D.Cal., Dec. 6, 2010) (“Plaintiff is not required to conceive of ways to work
around the failure of the reviewer to respond to his properly submitted appeals. . . . The regulations governing the
inmate appeals process apply with equal force to inmates and prison officials. If an inmate complies with the
procedural rules, but staff members fail to respond to the appeal in compliance with applicable procedural rules or
otherwise thwart the process, it becomes unavailable.”), report and recommendation adopted, 2011 WL 127113
(E.D.Cal., Jan. 14, 2011); Kyles v. Mathy, 2010 WL 3025109, *4 (C.D.Ill., Aug. 2, 2010) (declining to dismiss for
non-exhaustion where grievance decision was three months late, no one answered plaintiff’s inquiries, so he went
ahead and appealed without a decision; “. . . [T]he defendants cannot ask the court to hold the plaintiff to a strict
standard while asking the court to find that the nearly five month delay was reasonable for the defendants.”); see
Appendix A for additional authority on this point. But see Dade v. Gaudenzia DRC, Inc., 2014 WL 47766, *5
(E.D.Pa., Jan. 7, 2014) (holding that officials’ improper failure to to schedule a meeting to discuss plaintiff’s
grievance did not excuse him from pursuing his effort to exhaust despite his resulting confusion); Weiser v. Castle,
2011 WL 322656, *3 (E.D.Ky., Jan. 31, 2011) (plaintiff who alleged that his grievance was torn up did not exhaust
where he did not try to appeal the torn-up grievance or file another grievance about the destruction of his grievance);
Williams v. McGrath, 2007 WL 3010577, *6 (N.D.Cal., Oct. 12, 2007) (holding a prisoner whose grievance was
rejected for failure to provide necessary documentation, and who was then denied access to the documentation,
should have resubmitted his appeal without the documentation, or should have filed a new grievance, despite
prisoner’s concerns that his grievance had already been rejected once for lack of the documentation and that if he
filed a second grievance he would be in violation of the rule against duplicative grievances), aff’d, 320 Fed.Appx.
728 (9th Cir. 2009) (unpublished).
761
Allard v. Anderson, 260 Fed.Appx. 711, 2007 WL 4561110, *2 (5th Cir., Dec. 28, 2007) (unpublished) (holding
remedies unavailable for injuries plaintiff did not discover until he was out of the institution and not permitted to use
the grievance system), cert. denied, 555 U.S. 858 (2008); Starnes v. Raminieni, 2009 WL 2016384, *4 (N.D.N.Y.,
July 7, 2009) (holding plaintiff who learned of medical condition and failure to address it after time limits had
expired and he was at another prison might not have a remedy available); Thomas v. Maricopa County Bd. of
Supervisors, 2007 WL 2995634, *4 (D.Ariz., Oct. 12, 2007) (declining to dismiss where the prisoner did not have
knowledge of the violation until after his release and the grievance policy did not provide for grievances after
release); Thomas v. Hickman, 2006 WL 2868967, *9 (E.D.Cal., Oct. 6, 2006) (declining to dismiss where the
prisoner’s grievance was untimely but the prisoner did not know about the violation until long after the deadline had

167

concerning the exhaustion requirement itself has been held to constitute special circumstances
justifying failure to exhaust correctly.762 In one state, an exasperated court has noted that
exhaustion controversies before it, which defendants often lose, are “a reflection of the negligent
handling of prisoner grievances within the prison institutions . . . [I]it appears as if there is no
documented system for tracking grievances as they make their way through the various phases of
exhaustion.”763
In my view the most sensible conclusion is that Woodford v. Ngo does not address
situations where the grievance system, on its face or as applied to a particular problem, is not
characterized by “relative simplicity,” and that the Second Circuit’s “special circumstances” rule
remains valid in such cases.764 Further, to the extent that lack of clarity in the grievance rules or
their application makes the remedy unavailable, Woodford has no effect, since it did not purport
to address the statutory term “available.”
Frequently the actual practice in prison grievance systems diverges from the formal
written procedure. The Seventh Circuit, applying a procedural default rule in anticipation of
Woodford, has held that a prisoner who complies with the informal practice has satisfied the

passed); Borges v. Piatkowski, 337 F.Supp.2d 424, 427 n.3 (W.D.N.Y. 2004) (holding that a prisoner who did not
have reason to know he had a medical care claim until he had been transferred to another prison and the 14-day
deadline had long expired was justified by special circumstances in not exhausting); see Brownell v. Krom, 446 F.3d
at 312 (citing system’s lack of provision for supplementing or re-filing existing grievances to reflect new
information).
762
In Rodriguez v. Westchester County Jail Correctional Dept., 372 F.3d 485, 487 (2d Cir. 2004), the court held that
the plaintiff’s belief that he did not have to exhaust an excessive force claim was reasonable, since the court had
adopted the same view until reversed by the Supreme Court in Porter v. Nussle, 534 U.S. 516 (2002). Accord,
Wilkinson v. Banks, 2007 WL 2693636, *6 (W.D.N.Y., Sept. 10, 2007) (holding grievance filed a few weeks after
Booth v. Churner held damages claims must be exhausted satisfied the requirement); Barad v. Comstock, 2005 WL
1579794, *7 (W.D.N.Y., June 30, 2005) (“the question here for special circumstances is not the actual state of the
law (or the retroactive application of new decisional law . . .), but the inmate’s belief of what the law was when he
should have grieved the matter and whether that belief is reasonable.”); Rivera v. Pataki, 2005 WL 407710, *12
(S.D.N.Y., Feb. 7, 2005) (“Rivera did the best he could to follow DOCS regulations while responding to an evolving
legal framework”; noting he had filed at a time when it appeared that his claim need not be exhausted, and had tried
to exhaust after dismissal for non-exhaustion mandated by a subsequent Supreme Court decision).
763
Spivey v. Chapman, 2012 WL 4936623, *4 (S.D.Ill., Sept. 14, 2012), report and recommendation adopted, 2012
WL 4952395 (S.D.Ill., Oct. 17, 2012); accord, Spivey v. Love, 2012 WL 5268656, *5 (S.D.Ill., Sept. 14, 2012),
report and recommendation adopted, 2012 WL 5268635 (S.D.Ill., Oct. 23, 2012).
764
In Hairston v. LaMarche, 2006 WL 2309592 (S.D.N.Y., Aug. 10, 2006), as part of its post-Woodford discussion
of special circumstances, the court noted the unclarity of New York State administrative appeal procedures in cases
where a Superintendent has referred a complaint to the Inspector General for investigation. Id., *9-10. Similarly, in
Sumpter v. Skiff, 2008 WL 4518996, *6 (N.D.N.Y., Sept. 30, 2008), where the rules governing certain administrative
appeals were directly contradicted by the instructions on the decision from which the plaintiff sought to appeal, the
court found special circumstances justifying failure to follow the formal appeal rules. Accord, Case v. Smith, 2012
WL 4107809, *3 (N.D.N.Y., April 23, 2012) (finding special circumstances where plaintiff alleged that he filed a
grievance that was ignored, that a member of the grievance staff told him that his complaint was not grievable, that
he was refused assistance, and that he was transferred to another facility where he could not access the law library),
report and recommendation adopted, 2012 WL 4107812 (N.D.N.Y., Sept. 19, 2012); Triplett v. Rendle, 2012 WL
913711, *5 (N.D.N.Y., Feb. 9, 2012) (finding special circumstances barring summary judgment where prisoner
“was justifiably confused by his transfers and the responses to his inquiries and could not determine how to grieve in
the normally required way”), report and recommendation adopted, 2012 WL 913043 (N.D.N.Y., Mar. 16, 2012);
Torres v. Anderson, 674 F.Supp.2d 394, 400 (E.D.N.Y. 2009) (finding special circumstances in failure to make clear
whether rule on place of filing post-transfer grievance was mandatory).

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exhaustion requirement.765 Conversely, courts have refused to enforce compliance with
supposed grievance rules that do not appear in the written policy or are not made clearly known
to prisoners.766
b)

What If the Prisoner Is Misled or His Exhaustion
Efforts Obstructed By Prison Staff?

Numerous cases hold that non-exhaustion caused by misinformation or obstructive
actions by prison staff does not bar the prisoner from proceeding with a subsequent lawsuit.767
765

Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005); accord, Greenup v. Lee, 2014 WL 471715, *5-6
(W.D.La., Feb. 5, 2014) (declining to hold plaintiff to time limits in state regulations where the prison warden made
up his own procedures with different time limits); Smith v. Merline, 719 F.Supp.2d 438, 445 (D.N.J., June 15, 2010)
(“Courts have recognized that an inmate may satisfy the exhaustion requirement where he follows an accepted
grievance procedure, even where that procedure contradicts a written policy.”); see Marr v. Fields, 2008 WL
828788, *6 (W.D.Mich., Mar. 27, 2008) (if policy requiring administrative appeals rather than grievances in
disciplinary cases was applied broadly in practice to related matters such as claims of retaliatory discipline,
grievance process was not an available remedy for such complaints).
766
Jackson v. Ivens, 2007 WL 2261552, *4 (3d Cir. 2007) (unpublished) (“We will not condition exhaustion on
unwritten or ‘implied’ requirements.”) (citing Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004)); accord, Conley v.
Anglin, 513 Fed.Appx. 598, 601-02 (7th Cir. 2013) (unpublished) (declining to enforce regulation requiring name or
description of persons involved where the grievance form still called only for “Brief Summary of Grievance”;
refusing to credit claim that adding additional facts to grievance appeal violated rules absent some evidence that
such a rule existed), cert. denied, 134 S.Ct. 794 (2013); Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011) (refusing
to find non-exhaustion where prisoner violated apparent “secret supplement to the state's administrative code,
requiring that claims of good cause for an untimely filing be accompanied by evidence”), cert. denied, 132 S.Ct. 168
(2011); Glick v. Walker, 385 Fed.Appx. 579, 583 (7th Cir. 2010) (declining to hold prisoner to a supposed grievance
rule not found in the Administrative Code); Goebert v. Lee County, 510 F.3d 1312, 1322-23 (11th Cir. 2007)
(holding grievance appeal was not an available remedy where prisoners were not informed of its existence and had
no way to find out); LaPointe v. Bienovidas, 2013 WL 3439905, *5, 7 (D.Ariz., July 9, 2013) (declining to hold
plaintiff to supposed rules that defendants did not show were in the grievance policy); James v. Cartwright, 2013
WL 3353922, *6 (S.D.Ill., July 3, 2013) (rejecting claim of rule against third parties submitting grievances where it
could not be found in the grievance regulations); Mims v. Hardy, 2013 WL 2451149, *8 (N.D.Ill., June 5, 2013)
(rejecting officials’ affidavits supporting grievance requirements not reflected in the administrative code); Jackson v.
City of Philadelphia, 2012 WL 2135506, *7-8 (E.D.Pa., June 13, 2012) (declining to dismiss where plaintiff failed
to use an appeal procedure not mentioned in the grievance policy; “Perhaps this is the way things actually work, but
the practice described by Ms. Daniels is not reflected in any of the written polices and procedures provided to the
Court. As such, we do not know how or when (or even if) prisoners are informed of this medical grievance appeal
process.”), appeal dismissed, 535 Fed.Appx. 64 (3rd Cir. 2013) (unpublished); Rodriguez v. Miramontes, 2012 WL
1983340, *6 (D.Ariz., June 4, 2012) (declining to credit officials’ statement that grievance should have been filed in
grievance box where policy stated that it should be filed through facility mail or in person); Alexander v. Nevada,
2012 WL 2190837, *4-5 (D.Nev., Mar. 12, 2012) (declining to dismiss where grievance appeal was rejected for not
attaching the grievance decision appealed from, but the rules did not contain such a requirement and the plaintiff
complied with everything actually in the rules), report and recommendation adopted, 2012 WL 2190810 (D.Nev.,
June 14, 2012); Calloway v. Byrd, 2011 WL 7172207, *4 (D.S.C., Oct. 18, 2011) (declining to dismiss where
defendants claimed that grievance was deemed abandoned because the plaintiff was masturbating when they sought
to serve the response, absent a policy requiring such result, or a request and refusal to the plaintiff to stop and accept
the response), report and recommendation adopted, 2012 WL 405691 (D.S.C., Feb. 8, 2012); see Appendix A for
additional authority on this point. Cf. Turner v. Burnside, 541 F.3d 1077, 1083-84 (11th Cir. 2008) (where warden
tore up prisoner’s grievance, he was not required to re-file his grievance or grieve the warden’s action, neither of
which were prescribed by grievance rules); Miller v. Berkebile, 2008 WL 635552, *7-9 (N.D.Tex., Mar. 10, 2008)
(where official refused to process grievances contrary to policy, prisoners were not required to take steps not
prescribed in the policy to get around him; PLRA law applied in § 2241 case); Crawford v. Berkebile, 2008 WL
323155, *7-8 (N.D.Tex., Feb. 6, 2008) (same).

169

No such fact pattern was before the Court in Woodford, and it did not purport to address the
question. This body of law is therefore undisturbed by Woodford, especially insofar as many of
the cases hold that under the circumstances, administrative remedies were not “available,” a
statutory term Woodford did not address.
c)

What If the Prisoner Is Threatened or Intimidated
by Prison Staff into Not Following the Grievance
Procedure?

The Second Circuit has held that threats or other intimidating conduct may make
administrative remedies in general, or the usual grievance remedy in particular, unavailable to a
prisoner; may estop the defendants from asserting the exhaustion defense; or may constitute
justification for not exhausting or not exhausting consistently with the grievance rules. 768 The
court specifically observed that threats or other intimidation might deter prisoners from filing an
internal grievance but not from appealing directly to persons in higher authority in the prison
system or to external authority such as state or federal courts. Consequently the grievance
remedy might be unavailable, or failure to use it justifiable, on a particular set of facts. 769 Since
no such claim was presented in Woodford, this body of law should be viewed as unaffected by it.
Other circuits have, in fact, adopted the Second Circuit’s approach to such circumstances after
Woodford.770
d)

Is There Any Limit to the Procedural Rules That
Can Be Enforced by Procedural Default?771

As noted, Woodford declined to address the possibility of rules created to trip prisoners
up,772 though that concern had been expressed in numerous pre-Woodford decisions.773 The
Seventh Circuit, the first circuit to adopt a procedural default rule, stated:
The only constraint is that no prison system may establish a requirement
inconsistent with the federal policy underlying § 1983 and § 1997e(a). See
Robertson v. Wegmann, 436 U.S. 584 (1978). Thus, for example, no
administrative system may demand that the prisoner specify each remedy later
sought in litigation—for Booth v. Churner, 532 U.S. 731 (2001), holds that §
1997e(a) requires each prisoner to exhaust a process and not a remedy.774

767

See nn. 1074-1078, below.
Hemphill v. New York, 380 F.3d at 686-90. In Hemphill, the plaintiff, who alleged he was threatened and
physically assaulted to prevent him from complaining, wrote a letter to the Superintendent rather than filing a
grievance. See nn. 1042-1052, below, for further comment on this subject.
769
Hemphill, 380 F.3d at 688, 690; see Ziemba v. Wezner, 366 F.3d 161, 164 (2d Cir. 2003) (directing district court
to consider whether a complaint to the FBI and subsequent investigation could amount to exhaustion by a plaintiff
subjected within the prison to threats, beatings, and denial of writing implements and grievance forms).
770
See n. 1044, below.
771
The National Standards to Prevent, Detect, and Respond to Prison Rape, recently promulgated under the Prison
Rape Elimination Act, contain certain requirements and prohibitions for grievance systems in handling sexual abuse
complaints. See § IV.E.7.h, below.
772
Woodford, 548 U.S. at 102-03.
773
See cases cited in n. 719, above.
774
Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002).
768

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One would think that there are several federal policies, not necessarily limited to § 1983
and § 1997e(a), implicated by the Woodford procedural default rule, among them the policies of
notice pleading and of leniency in construing the pleadings of pro se litigants, the policy that
procedural rules should not be applied to set traps for unwary litigants, and the policy allowing
complaints to be freely amended within and sometimes beyond the limitations period, all of
which may be compromised by demanding rules and short deadlines in prison grievance
systems.775 (Rules that are merely burdensome to comply with are enforced.776)
Woodford itself states that “[p]roper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its proceedings.” 777 The
implication is that there are some procedural rules whose violation is not “critical” and does not
threaten the system’s functioning.778 This view is consistent with the earlier holding of the Third
775

See, respectively, §§ IV.E.2 and IV.E.4, above. In some grievance systems, prisoners who violate procedural
rules are at least in some cases instructed to correct the mistake and resubmit their grievances. See n. 815, below.
776
Payette v. Gerth, 2011 WL 3438562, *3-4 (W.D.Mich., July 14, 2011) (finding non-exhaustion where plaintiff
had failed to make required copies, even though he would have had to make the copies by hand with carbon paper),
report and recommendation adopted, 2011 WL 3439258 (W.D.Mich., Aug. 5, 2011).
777
Woodford, 548 U.S. at 90-91.
778
The Court does not suggest what these might be or how a lower court is to determine what is “critical.” So far
there is little development of this issue in the lower courts. But see Mack v. Klopotoski, 540 Fed.Appx. 108, 112 n.4
(3d Cir., Sept. 16, 2013) (holding requirement of submission of photocopies of documents, rather than handwritten
copies, to be critical); Davis v. Salinas, 2013 WL 3941024, *5 (E.D.Cal., July 30, 2013) (acknowledging that “the
failure to provide a date may appear to be a minor technicality,” but “requiring such details allows prison officials to
take appropriate responsive measures,” especially with prisoners like the plaintiff who file many grievances). One
district court has held that a rule that could be read as permissive rather than mandatory, was buried in an unlikely
location in a relatively obscure policy document, and did not say what would happen if it was not followed, was not
critical. Torres v. Anderson, 674 F.Supp.2d 394, 400 (E.D.N.Y. 2009) (“If the procedure was critical, it would be
explained more clearly, placed in a more prominent location, use mandatory language, and make clear the
consequences of non-compliance.”). Another court has held that a prisoner’s failure to check a box on an appeal
form that otherwise clearly stated his intention to appeal did not violate a critical procedural rule. Ortego v. Forcht
Wade Correctional Center, 2010 WL 2985830, *5 (W.D.La., Apr. 29, 2010), report and recommendation adopted in
part, rejected in part, 2010 WL 2990067 (W.D.La., July 27, 2010). Another court has said that a policy as to what
issues were suitable for the grievance system must not be critical, since the determination of non-grievability is itself
appealable. However, in that case the prisoner was following the rules as written and prison officials seemed to be
misinterpreting their own rules or using unwritten rules at variance from those the prisoners relied on. See Woods v.
Lozer, 2007 WL 173704, *3 (M.D.Tenn., Jan. 18, 2007). Another court, without using the word “critical,”excused a
prisoner’s sending of his appeal directly to the appellate decision-maker rather than sending it via the designated
recipient, noting that the latter received the appeal and had an opportunity to address the problem; the court
mentions in the discussion officials’ belief that they have discretion in how strictly to apply their own time
deadlines. Parker v. Robinson, 2006 WL 2904780, *11-12 (D.Me., Oct. 10, 2006). Similarly, a court held that a
prisoner’s failure to attach to his appeal the original grievance and staff response as the rules required did not
constitute non-exhaustion since he identified it by date and described the response; the court held that although the
grievance “may have been technically deficient, I find that plaintiff submitted sufficient information to the
Grievance Coordinator to enable him to process the appeal and that he should have done so.” Barker v. Belleque,
2011 WL 285228, *4 (D.Or., Jan. 26, 2011). One district court has suggested that if the administrative body reaches
the merits despite the violation of a procedural rule, it must not have been critical. Jones v. Stewart, 457 F.Supp.2d
1131, 1136 (D.Nev. 2006).
An example of a rule one would think would be non-critical requires the grievance process to be
commenced with an “informal inmate letter” which must begin with the formula “I am attempting to informally
resolve the following problem.” See Lugo v. Ryan, 2006 WL 163534, *1 (D.Ariz., Jan. 19, 2006). Whether omitting
that recitation is a procedural default remains to be determined. But see Terrell v. Medical Dept., 2009 WL
3271273, *3 (S.D.Miss., Oct. 9, 2009) (noting grievance dismissed for omitting the phrase “This is a Request for

171

Circuit that, even under a procedural default rule, compliance need only be “substantial,” 779 an
observation that it deemed equivalent to its later statement that procedural requirements “must . .
. not be imposed in a way that offends the Federal Constitution or the federal policy embodied in
§ 1997e(a).”780 However, that court has not been explicit about what it means by these
formulations.781 Other courts have generally rejected a substantial compliance standard,782
though as in the Third Circuit, it is not entirely clear what these courts mean by that term.
The risk posed by Woodford’s holding is that prison officials will reject prisoners’
grievances for the most trivial of rules violations,783 or will promulgate rules designed to trip
Administrative Remedy”; plaintiff did not resubmit it). Cf. Ellison v. New Hampshire Dept. of Correction, 2009 WL
424535, *5 (D.N.H., Feb. 19, 2009), for a vigorous defense of the necessity to use the correct forms for grievances.
779
Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000).
780
Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
781
The only clue from the Third Circuit as to its meaning appears in an unreported decision in which the prisoner,
instructed to attach necessary documents for his final appeal, instead forwarded them with an explanation to the
Secretary of Correction. The court said that “it suffices to state that Keys’ failure to even attempt compliance with
the grievance procedures cannot be sufficiently substantial to act as an excuse. Otherwise, few, if any, single
procedural failures would establish a default.” Keys v. Craig, 160 Fed.Appx. 125, 126 n.3, 2005 WL 3304140, *1
(3d Cir., Dec. 7, 2005) (unpublished) (dicta); see Cullen v. Pennsylvania Dept. of Corrections, 2012 WL 6015724,
*8 (W.D.Pa., May 29, 2012) (holdling prisoner was in substantial compliance where he exceeded the two-page limit
by half a page, “and it was legible, clear and articulate, such that the additional half page did not pose an
impediment to review”), report and recommendation adopted in part, rejected in part on other grounds, 2012 WL
6015721 (W.D.Pa., Dec. 3, 2012); Caldwell v. Folino, 2011 WL 4899964, *7 (W.D.Pa., Oct. 14, 2011) (holding
prisoner who was “justifiably confused” by grievance rules substantially complied); Tormasi v. Hayman, 2011 WL
463054, *4 (D.N.J., Feb. 4, 2011) (holding prisoner who completed the prison grievance process would have
substantially complied even if complaint to the Corrections Ombudsman in the Department of the Public Advocate
was viewed as part of the grievance system); Hedgespeth v. Hendricks, 2007 WL 2769627, *5 (D.N.J., Sept. 21,
2007) (holding prisoner was in substantial compliance when he asked for grievance forms from the staff members
designated for that purpose and was told there weren’t any); Bond v. Rhodes, 2007 WL 2752340, *3 (W.D.Pa., Sept.
19, 2007) (prisoner who asked for an extension of time and got it was not in substantial compliance where he then
failed to complete the grievance process and supply requested documents, notwithstanding his claim that he did not
receive the extension); Cooper v. Beard, 2007 WL 1959300, *5 (M.D.Pa., July 2, 2007) (finding substantial
compliance where prisoner acted reasonably in the face of officials’ failing to follow their own rules, and the
administrative bodies actually considered his complaint); Caines v. Hendricks, 2007 WL 496876, *6 (D.N.J., Feb. 9,
2007) (finding substantial compliance where plaintiff’s grievances inquired when he would get his MRI and
complained about shoulder pain and lack of adequate treatment, without specifically alleging misconduct in not
providing his MRI); Rodriguez v. Smith, 2006 WL 680965, *10 (E.D.Pa., Mar. 16, 2006) (holding that even if
plaintiff’s letter to warden were considered a formal administrative remedy request, he didn’t appeal but only wrote
letters to people outside the prison; this is not substantial compliance).
782
Fields v. Oklahoma State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007); Brock v. Kenton County, KY, 93
Fed.Appx. 793, 799 (6th Cir. 2004) (“We have allowed substantial compliance only in the limited circumstances
where the events giving rise to the prisoner’s claim occurred prior to the effective date of the PLRA.”); Lewis v.
Washington, 300 F.3d 829, 833-34 (7th Cir. 2002) (same as Brock).
783
There is no lack of recent examples of prisoners tripped up by trivial rules violations. See Mack v. Klopotoski,
540 Fed.Appx. 108, 112-13 (3d Cir. 2013) (unpublished) (holding the plaintiff procedurally defaulted by submitting
with his appeal handwritten copies of prior appeals rather than photocopies, despite his claim that the photocopier
was broken); Simpson v. Jones, 316 Fed.Appx. 807, 810 (10th Cir. 2009) (unpublished) (noting plaintiff’s grievance
was dismissed inter alia because he had used red ink); Whitener v. Buss, 2008 WL 681814, *1 (7th Cir., Mar. 13,
2008) (dismissing claim of prisoner who missed a 48-hour grievance deadline because he needed the relevant
officers’ names and it took a week to get them, and he didn’t ask for waiver of the time limit); Fischer v. Smith,
2011 WL 3876944, *2 (E.D.Wis., Aug. 31, 2011) (dismissing for non-exhaustion where grievance was rejected for
using carbon copies rather than originals, and then for untimeliness when plaintiff submitted the originals);
Hamilton v. Lara, 2011 WL 2457934, *3 (E.D.Cal., June 16, 2011) (grievance appeal rejected because plaintiff first
sent it to the warden rather than the appeals coordinator, and later submission to appeals coordinator was untimely);

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prisoners up,784 or having that effect.785 Another risk, little explored by the courts, is that
grievance rules may make it impossible for prisoners to frame the claims that they wish to
litigate. This issue has arisen repeatedly (though has not always been recognized) in connection
with rules prohibiting grievances from raising “multiple issues,”786 among others.787 It has also
arisen in connection with a prohibition on multiple prisoners raising the same grievance.788
Thomas v. Parker, 2008 WL 2894842, *12 (W.D.Okla., July 25, 2008) (dismissing because prisoner submitted a
“Statement under Penalty of Perjury” pursuant to state law rather than the notarized affidavit required by grievance
policy), aff’d, 318 Fed.Appx. 626 (10th Cir. 2009), cert. denied, 558 U.S. 899 (2009); see Appendix A for additional
authority on this point; see Elliott v. Jones, 2008 WL 420051, *3-4 (N.D.Fla., Feb. 12, 2008) (noting grievance
rejected for “writing outside the boundaries of the form”); Ramsey v. McGee, 2007 WL 2744272, *2 (E.D.Okla.,
Sept. 19, 2007) (noting grievances denied because one was not signed, one was written in pink ink when blue or
black was required, and one was partly written in pencil; court dismisses on merits and does not rule on adequacy of
exhaustion); see also Rollings-Pleasant v. Deuel Vocational Ins., 2007 WL 2177832, *6 (E.D.Cal., July 27, 2007)
(dismissing for non-exhaustion where grievance was “cancelled” for non-cooperation with investigation after
prisoner argued about needing to make a phone call and asked about a different grievance; no finding that he refused
to answer questions about the grievance at issue), report and recommendation adopted, 2007 WL 2900459
(E.D.Cal., Sept. 28, 2007). Cf. Love v. Pullman, 404 U.S. 522, 526 (1972) (stating “technicalities are particularly
inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process”).
784
See n. 542, above, concerning recent grievance rule changes; see also Thomas v. Woolum, 337 F.3d 720, 732 n.4
(6th Cir. 2003) (suggesting that time deadlines will become shorter). One example of a rule that appears designed to
trip prisoners up is Oklahoma’s rule that prisoners on “grievance restriction” must list in any grievance all their
other grievances within the preceding calendar year, by grievance number, date, description, and disposition at each
level. One prisoner’s complaint that he did not have that information and officials refused to provide him a copy of
the grievance log so he could obtain it was brushed off by the court. Tigert v. Jones, 2008 WL 2853625, *7-8
(W.D.Okla., July 21, 2008). Subsequently, the Oklahoma system has added a requirement that prisoners correctly
complete and notarize every page of the grievance. Craft v. Middleton, 2012 WL 3886378, *4 (W.D.Okla., Aug.
20, 2012), report and recommendation adopted, 2012 WL 3872010 (W.D.Okla., Sept. 6, 2012).
785
One court has upheld the application of the Bureau of Prisons’ regulation defining a grievance appeal as filed
when it is logged as received, holding that even if the plaintiff’s assertion that he mailed his appeal and it never
arrived was true, the “prison mailbox” rule is inapplicable and he failed to exhaust. Williams v. Burgos, 2007 WL
2331794, *3 (S.D.Ga., Aug. 13, 2007); accord, Burns v. Fike, 2013 WL 5874582, *5 (W.D.Pa., Oct. 31, 2013)
(“This Court has found no other court that has applied [the prison mailbox] rule to the submission of inmate
grievances or appeals during the grievance procedure.”); Abreu v. Gostkowski, 2011 WL 4344022, *5-6 (D.N.J.,
Sept. 14, 2011); Baker v. Drew, 2009 WL 2588905, *4 (M.D.Ala., Aug. 19, 2009); see Jones v. Washington, 2011
WL 4434859, *4 (N.D.Cal., Sept. 23, 2011) (holding there is no basis for applying the prison mailbox rule to prison
grievances in state prison case). Contra, Breeland v. Cook, 2013 WL 5924592, *3-4 (M.D.Pa., Oct. 31, 2013)
(holding prison mailbox rule should be applicable to grievance timeliness absent a specific rule to the contrary);
Crum v. U.S., 2008 WL 744727, *8 (W.D.Pa., Mar. 18, 2008) (where plaintiff showed that he submitted his appeal
for mailing six weeks before it was received, there was a genuine issue of material fact whether plaintiff was
prevented from filing a timely appeal so as to excuse failure to exhaust); accord, Schadel v. Evans, 2010 WL
2696456, *2-3 (C.D.Ill., July 7, 2010) (applying prison mailbox rule to state prison grievance despite officials’
contrary interpretation).
786
In Moore v. Bennette, 517 F.3d 717, 722, 730 (4th Cir. 2008), the court held that the plaintiff had properly
exhausted, even though his grievance was rejected for including “more than one issue,”because his complaint was
about “being punished in various ways for conduct he had never been informed of or charged with. Under these
circumstances, requiring Moore to grieve each of the alleged components of his punishment separately would have
prevented him from fairly presenting his claim in its entirety.” The court upheld the dismissal of other claims for
which his grievance was dismissed for including more than one issue, despite the plaintiff’s claim that both issues
were examples of a pattern of inadequate medical care. 517 F.3d at 729. “No multiple issues” rules are especially
subject to manipulation, since what constitutes an “issue” may be a matter of interpretation. See Miller v. King,
2009 WL 3805568, *3-4 (S.D.Ga., Nov. 10, 2009) (plaintiff alleged disability discrimination, manifested in
disparate treatment and retaliation, the failure to provide medical treatment and devices, the failure to provide
wheelchair accommodating facilities, and “other related issues,” and grievance was dismissed for raising multiple

173

This problem is discussed thoughtfully (despite the unsatisfactory result, later reversed)
in a recent district court decision which adopts the proposition not addressed by Woodford about
“tripping up” prisoners as a principle of PLRA application: “several courts have recognized the
concern alluded to but not decided in Woodford: where excessively technical procedural
requirements frustrate the proper exercise of that procedure by all but the most sophisticated

issues); Clayborne v. Epps, 2008 WL 4056293, *3-4 (S.D.Miss., Aug. 25, 2008) (plaintiff grieved failure to protect
and cited several instances of assaults and threats; grievance was denied “because it requested a remedy for more
than one incident”); Starks v. Lewis, 2008 WL 2570960, *5 (W.D.Okla., June 24, 2008) (plaintiff said he raised one
issue, “Mr. Lewis calling me a snitch, placing my life in danger”; grievance staff said issues raised included “fired
from OCI; inmate typing responses and inmates read response, placing life in danger,” even though plaintiff
disclaimed any request to get his job back; dismissed for non-exhaustion), aff’d, 313 Fed.Appx. 163 (10th Cir.
2009); Simpson v. Greenwood, 2007 WL 5445538, *2-5 (W.D.Wis., Apr. 6, 2007) (dismissing for non-exhaustion
where grievance was rejected for including two issues, officers in the medical examination room and officers
distributing medication in segregation; plaintiff said he raised one issue, “breach of confidentiality of health
information”).
In Lafountain v. Martin, 2008 WL 1923262, *19 (W.D.Mich., Apr. 28, 2008), vacated and remanded, 334
Fed.Appx. 738 (6th Cir. 2009) (per curiam) (unpublished), discussed further in the text below, the district court
upheld the application of a multiple issues prohibition to a grievance which amalgamated incidents occurring over a
six-month time period, stating that the plaintiff had ample opportunity to grieve each of the incidents separately. On
appeal, however, the court said that the grievance did not raise multiple issues, but raised a single claim of
retaliation; the other incidents were simply the results of the retaliation. Lafountain, 334 Fed.Appx. at 741. The
appeals court rejected the argument that there was a factual dispute precluding summary judgment as to whether the
grievance contained multiple issues, stating that “it is not a matter of factual disputes; rather, it is simply a matter of
how one reads and interprets [the grievance]. We read it as containing one claim of retaliation.” 334 Fed.Appx. at
741 n.2. Accord, Reeves v. Salisbury, 2012 WL 3206399, *5-6 (E.D.Mich., Jan. 30, 2012) (applying Lafountain,
holding retaliatory fabrication of charges was a single claim with multiple harms consisting of false disciplinary
charges and false testimony), report and recommendation adopted in pertinent part, rejected in part on other
grounds, 2012 WL 3151594 (E.D.Mich., Aug. 2, 2012).
A different permutation of the “multiple issues” problem arose in a case where the plaintiff, to avoid a
probibition on multiple issues in the same grievance, filed separate grievances about each staff member involved in
an incident; prison officials then objected that he had violated a prohibition against multiple grievanes about the
same issue. The court declined to find that the latter rule was violated. LaPointe v. Bienovidas, 2013 WL 3439905,
*7-8 (D.Ariz., July 9, 2013).
787
In Fratis v. Owens, 168 Fed.Appx. 865 (10th Cir. 2006), a prisoner’s grievance protesting a proposed transfer of
women prisoners to a higher-security prison was rejected on the ground that the transfer had not happened yet and
grievances can only be based on actions that happened to the prisoner personally. The court held that the prisoner
had not exhausted, notwithstanding that the prison’s application of its rules meant that the prisoner could not exhaust
a claim that may have been ripe for injunctive consideration in federal court. 168 Fed.Appx. at 867. Here the
application of a procedural default standard barred from court a prisoner to whom remedies were, in fact, not
available. Accord, Hebner v. O'Neill, 2008 WL 413731, *4 (N.D.Cal., Feb. 13, 2008) (dismissed for non-exhaustion
because grievance was rejected as concerning an “anticipated action or decision”; no discussion of ripeness or
whether plaintiff could have been eligible for injunctive relief). By contrast, in Church v. Oklahoma Correctional
Industries, 2011 WL 4376222, *7 (W.D.Okla., Aug. 15, 2011), report and recommendation adopted, 2011 WL
4383225 (W.D.Okla., Sept. 20, 2011), the court held that grievance personnel’s refusal to accept a grievance without
a date of incident, when the complaint was not about an incident but about an ongoing practice, made the remedy
unavailable.
788
Watkins v. Perry, 2013 WL 5330101, *3 (W.D.Mich., Sept. 23, 2013) (dismissing for non-exhaustion where 29
prisoners submitted identical grievances protesting body cavity searches under rule providing: “Two or more
prisoners and/or parolees may not jointly file a single grievance regarding an issue of mutual impact or submit
identical individual grievances regarding a given issue as an organized protest.”), aff’d, No. 13-2399 (6th Cir., Mar.
3, 2014).

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inmates, is the grievance procedure “available” within the meaning of the PRLA [sic].”789 The
court then linked this point to the Supreme Court’s long-ago statement that “the creation of an
additional procedural technicality . . . [is] particularly inappropriate in a statutory scheme in
which laymen, unassisted by trained lawyers, initiate the process.”790
It then went on to analyze the issue before it—the rejection of plaintiff’s grievances under
a rule prohibiting “multiple issues” in a single grievance—under the rule requiring restrictions on
prisoners’ constitutional rights to be reasonably related to legitimate penological purposes.791
The plaintiff argued that the prison system “is creating and stringently applying excessively
complicated rules and narrow time constraints, not for the purpose of improving the quality of
the administrative record and affording a fair opportunity for the prison to address the complaint,
but for the purpose of depriving prisoners of access to the administrative process and, therefore
to the federal courts.”792 The court stated:
Were the Court to accept without scrutiny a prison's invocation of any manner of
complicated procedural rules and excessively stringent application of those rules,
Plaintiff's claim arguably would have force. Rubber-stamping unlimited
administrative restrictions would permit state prisons to adopt grievance
procedures solely for the purpose of requiring impossible compliance in order to
terminate prisoners' access to the courts, in violation of the first prong of the
Turner test. Id. at 90 (requiring the governmental objective to be both legitimate
and neutral). Such uncritical acceptance of prison restrictions also would permit
prisons to effectively eliminate all means for prisoners to exercise their rights to
challenge prison conditions, in violation of the second prong of Turner. Id.
(requiring that prison limitations on constitutional rights leave “alternative means
of exercising the right [ ] open to prison inmates”).793
The court held that the “no multiple issues” rule was not unconstitutional as applied to the
plaintiff’s grievance, which amalgamated incidents occurring over a six-month time period; he
had ample opportunity to grieve each of the incidents separately, and the rule served a useful
purpose in simplifying the claims addressed in any given grievance proceeding.794 (On appeal,
the court did not address the district court’s constitutional analysis, but rejected its reading of the
grievance, finding as a matter of law that the grievance only raised one issue.795)
Before Woodford, courts applying a procedural default rule held that if prison officials
decide the merits of a grievance rather than rejecting it for procedural noncompliance, they
789

Lafountain v. Martin, 2008 WL 1923262, *15 (W.D.Mich., Apr. 28, 2008), vacated and remanded, 334
Fed.Appx. 738 (6th Cir. 2009) (per curiam).
790
Lafountain, id. (quoting Love v. Pullman Co., 404 U.S. 522, 526-27 (1972) (as quoted in Kikimura v. Osagie,
461 F.3d 1269, 1283-84 (10th Cir. 2006))); see Lafountain, 2008 WL 1923262, *19 (referring to “existing federal
precedent limiting procedural requirements for exhaustion in the civil administrative context, see Love . . . (barring
creation of excessive procedural technicalities in statutory schemes in which laymen initiate the process)”).
791
See Turner v. Safley, 482 U.S. 78 (1987).
792
Lafountain v. Martin, 2008 WL 1923262, *19.
793
Lafountain, id.
794
Lafountain, id.; id., *15 (“the requirements that grievances be submitted timely, raising one issue in sufficient
detail, and not duplicate issues previously grieved are rationally related to legitimate penological interests.”) A “no
multiple issues” rule can be applied so as to make remedies unavailable. See Moore v. Bennette, 517 F.3d 717, 722,
730 (4th Cir. 2008), discussed in n. 787, above.
795
Lafountain v. Martin, 334 Fed.Appx. 738, 741 (6th Cir. 2009) (per curiam).

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cannot rely on that noncompliance to seek dismissal of subsequent litigation for nonexhaustion.796 Nothing in Woodford is to the contrary of those holdings, and many postWoodford decisions are to the same effect.797 (Similarly, some recent decisions, responding to
Woodford’s statement that PLRA exhaustion has similarities to habeas corpus exhaustion, have
pointed out that the habeas corpus procedural default rule looks to the last decision of the state
forum, so there is no procedural default for habeas purposes if the state court addresses the
merits of the claim.798) Some courts have said that the Woodford opinion sets out a “merits test”
796

Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir. 2004) (noting that the plaintiff sent a form to the Commissioner
rather than the Legal Adjudicator but defendants did not reject it for noncompliance; in addition, the grievance was
submitted by the prisoner’s lawyer and not by the prisoner as the rules specify); Spruill v. Gillis, 372 F.3d 218, 234
(3d Cir. 2004); Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004); Pozo v. McCaughtry, 286 F.3d
1022, 1025 (7th Cir.), cert. denied, 537 U.S. 949 (2002); see Barnes v. Briley, 420 F.3d 673, 679 (7th Cir. 2005)
(holding claim was not procedurally defaulted where an initial grievance was rejected as untimely but plaintiff later
“restarted” the grievance process and received a decision on the merits); Gregory v. Ayers, 2006 WL 548444, *2-3
(E.D.Cal., Mar. 3, 2006) (holding that matters not initially exhausted which were addressed in a later grievance
about threats arising from the first grievance were exhausted by the later grievance), report and recommendation
adopted, 2006 WL 845846 (E.D.Cal., Mar. 31, 2006); Shaheen v. Hollins, 2005 WL 2179400, *4 (N.D.N.Y., Sept.
7, 2005) (declining to dismiss where prisoner was told his complaint was non-grievable, appealed, and had his
complaint referred to the correct decision-maker on appeal), report and recommendation adopted, 2005 WL
2334387 (N.D.N.Y., Sept. 23, 2005); see also Tweed v. Schuetzle, 2007 WL 2050782, *7-8 (D.N.D., July 12, 2007)
(holding warden’s response to plaintiffs’ non-grievance letter, addressing their claim and making no reference to
procedual issues in the grievance, might waive such issues, especially in light of uncertainty whether the grievance
system was available).
797
Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (stating “all circuits that have addressed it have concluded
that the PLRA's exhaustion requirement is satisfied if prison officials decide a procedurally flawed grievance on the
merits”); Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011) (“Where prison officials address an inmate's grievance
on the merits without rejecting it on procedural grounds, the grievance has served its function of alerting the state
and inviting corrective action, and defendants cannot rely on the failure to exhaust defense.”); Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-26 (6th Cir. 2010) (declining to dismiss claims against defendants not named in
grievance where officials reached the merits despite noncompliance with “name the defendant” grievance rule);
Robinson v. Johnson, 343 Fed.Appx. 778, 781-82 (3d Cir. 2009) (unpublished) (declining to dismiss claims against
commissioner and superintendent not named in grievance where grievance response addressed policies they were
responsible for); White v. Patel, 2013 WL 6572554, *8 (E.D.Cal., Dec. 13, 2013) (“While the Ninth Circuit has not
decided this specific issue, district courts in the Ninth Circuit have followed the rule.”), report and recommendation
adopted, 2014 WL 1091226 (E.D.Cal., Mar. 18, 2014); Garcia v. Austin, 2012 WL 3941777, *5 (M.D.Fla., Sept. 10,
2012) (declining to dismiss based on “no multiple issues” rule where grievance body had not rejected the grievance
for that reason); Lee v. Smith, 2010 WL 114876, *3 (S.D.Ga., Jan. 12, 2010) (declining to dismiss where plaintiff’s
grievance was decided on the merits at the first level, and the rules did not appear to authorize rejection for
procedural defects on appeal); Bradley v. Williams, 2009 WL 198014, *2 (D.Or., Jan. 23, 2009) (“Defendants
should have notified plaintiff that his grievance was defective, thereby allowing him to correct it. Finding that
plaintiff failed to exhaust administrative remedies would work an injustice and would open the grievance process to
abuse by prison officials.”); Heggie v. Michigan Dept. of Corrections, 2008 WL 5459338, *5 (W.D.Mich., Nov. 26,
2008) (“the failure to comply with [any] procedural requirement constitutes a failure to properly exhaust only if
prison officials reject the grievance because of the prisoner's failure to comply with the procedural requirement in
question”), report and recommendation adopted in pertinent part, rejected in part, 2009 WL 36612 (W.D.Mich.,
Jan. 5, 2009); see Appendix A for additional authority on this point. This principle has been extended to the
situation where a prisoner’s grievance is dismissed on procedural grounds but the complaint is referred to an internal
affairs office, which addresses its merits. Garcia v. Correctional Corp. of America, 2010 WL 2253616, *4
(N.D.Ohio, June 2, 2010).
798
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010); Lafountain v. Martin, 2008 WL 1923262, *16
(W.D.Mich., Apr. 28, 2008), vacated and remanded on other grounds, 334 Fed.Appx. 738 (6th Cir. 2009) (per
curiam); accord, Sanders v. Bachus, 2009 WL 4796739, *4 (W.D.Mich., Dec. 9, 2009); Torrez v. McKee, 2008 WL
4534126, *7 (W.D.Mich., Sept. 30, 2008).

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(did the agency address the merits up to the highest level?) and a “compliance test” (did the
plaintiff follow the rules?), and “proper exhaustion” is satisfied by compliance with either.799
After all, if the administrative process dealt with the merits of the prisoner’s complaint,
presumably the procedural errors were not “critical” and the system was able to “function
effectively.”800 This appears to be a different way of stating the more familiar proposition that if
the grievance body decides the merits despite procedural noncompliance, that noncompliance is
waived. One circuit has held that if both procedural issues and the merits are at issue on a
grievance appeal, the court should not find procedural default unless the final grievance decision
“clearly and expressly” states that the grievance is rejected on procedural grounds. 801 If the
799

Jones v. Stewart, 457 F.Supp.2d 1131, 1134-37 (D.Nev. 2006); accord, Plummer v. Bannister, 2012 WL
7655996, *3 (D.Nev., Sept. 18, 2012), report and recommendation adopted, 2013 WL 800694 (D.Nev., Feb. 25,
2013); Cohen v. Baca, 2007 WL 1575245, *5 (D.Nev., May 30, 2007). Cf. Adefeyinti v. Reed, 2009 WL 3046805,
*6-7 (W.D.Wis., Sept. 17, 2009) (where prisoner wrote to grievance appeals office to supplement his complaint, and
office responded that he had received a final response and if he was dissatisfied he could commence other legal
action, rather than telling him he must restart the grievance process, any argument for further exhaustion was
waived).
800
Woodford, 548 U.S. at 90-91; see Pasley v. Oliver, 2008 WL 4056552, *6 (W.D.Mich., Aug. 27, 2008) (“When
an administrative agency addresses an inmate's grievance on the merits, then the agency has found that the inmate
satisfied the required critical procedural rules.”); Jones v. Stewart, 457 F.Supp.2d 1131, 1136 (D.Nev. 2006) (same).
The rule is further supported by Woodford’s endorsement of the habeas corpus procedural default requirement as
“substantively similar” to administrative law exhaustion rules applied to PLRA exhaustion. 548 U.S. at 92. One of
the considerations in assessing procedural default in habeas is whether the last state court to rule on the claim
“actually enforced the state procedural rule so as to bar that claim.” Lafountain v. Martin, 2008 WL 1923262, *16
(W.D.Mich., Apr. 28, 2008), vacated and remanded on other grounds, 334 Fed.Appx. 738 (6th Cir. 2009) (per
curiam), and cases cited.
There is a limit to this principle. If the prisoner does not use the grievance process or other designated
remedy at all, the fact that prison officials respond to informal or non-standard complaints does not waive the nonexhaustion defense. Roth v. Larson, 2008 WL 4527831, *18 (D.Minn., Sept. 30, 2008).
801
Reynolds-Bey v. Harris, 428 Fed.Appx. 493, 502 (6th Cir. 2011) (unpublished). Earlier, the same court had held:
“Where the grievance is denied alternatively on the merits and for failure to comply with critical grievance
procedures, a later action will be subject to dismissal for failure to properly exhaust under Woodford.” Vandiver v.
Correctional Medical Services, Inc., 326 Fed.Appx. 885, 889 (6th Cir. 2009) (unpublished). Reynolds-Bey relied on
the intervening decision in Reed–Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010), which held that “[w]hen
prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims
on the merits, so as a general rule will we,” and relied on the habeas corpus rule that “‘a procedural default does not
bar consideration of a federal claim . . . unless the last state court rendering a judgment in the case clearly and
expressly states that its judgment rests on a state procedural bar,’ or it is otherwise clear they did not evaluate the
claim on the merits.” 603 F.3d at 325 (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). Although both ReynoldsBey and Vandiver are unpublished, Reynolds-Bey should be regarded as more authoritative since it relies directly on
post-Vandiver published authority. See Norris v. Warren County Regional Jail, 2012 WL 1637074, *3 (W.D.Ky.,
May 9, 2012) (dismissing for non-exhaustion where plaintiff’s appeal was rejected as late even though the grievance
body also said it would have rejected his claim on the merits; Reed-Bey distinguished, Vandiver followed). But see
Cook v. Caruso, 531 Fed.Appx. 554, 563 (6th Cir. 2013) (holding that a procedural dismissal that refers to the
substantive issues does not exhaust; “Simply mentioning that the prison reviewed the record does not a merits-based
response make.”).
Prior district court litigation of this and related issues is probably of limited value after Reynolds-Bey.
Compare Grear v. Gelabert, 2008 WL 474098, *2 n.1 (W.D.Mich., Feb. 15, 2008); Cobb v. Berghuis, 2007 WL
4557856, *1 (W.D.Mich., Dec. 21, 2007) (holding that a grievance rejected for procedural and merits reasons does
not exhaust) with McCarroll v. Sigman, 2008 WL 659514, *4 (W.D.Mich., Mar. 6, 2008) (finding exhaustion on
those facts), reconsideration granted on other grounds, 2008 WL 2064796 (W.D.Mich., May 13, 2008); see Harris
v. West, 2008 WL 695404, *3 (W.D.Mich., Mar. 11, 2008) (finding exhaustion where prisoner’s step II grievance
was rejected as untimely but his final appeal was addressed on the merits); see also Smith v. Gibson, 2012 WL
3656331, *6 (D.Colo., July 18, 2012) (declining to dismiss where “prison officials denied Plaintiff's grievances on

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purpose of the “proper exhaustion” rule is to preserve the system’s ability to “function
effectively,”802 it would seem that a decision on the merits is a good indication that the system
has functioned effectively, and dismissal serves no useful purpose.
e)

To What Extent May Federal Courts Review a
Grievance System’s Procedural Rejection of a
Grievance?

In Woodford, this question was potentially presented: the prisoner had filed a second
grievance arguing that his first grievance was timely under the state’s 15-day deadline, because
he was challenging a continuing restriction on his religious activities, and the prison reiterated its
finding of untimeliness.803 However, the Woodford majority did not acknowledge the issue,
much less rule on it.
Some courts have suggested that they are without power to re-examine prison officials’
decisions rejecting grievances for procedural reasons,804 an approach which has led to extreme
and unconscionable results.805 Other courts have stated standards that allow only a narrow scope
the bases of untimeliness, an improper remedy request, and the merits,” addressing the merits at an intermediate
stage), report and recommendation adopted, 2012 WL 3656318 (D.Colo., Aug. 24, 2012). Contra, Scott v.
Ambani, 2008 WL 597833, *2 (E.D.Mich., Feb. 29, 2008) (finding non-exhaustion where intermediate appeal
reached the merits but final appeal did not), aff’d in pertinent part, 577 F.3d 642 (6th Cir. 2009). Cf. Staples v.
Whitney, 2010 WL 520705, *4-5 (W.D.Mich., Feb. 8, 2010) (declining to dismiss for non-exhaustion where it was
unclear whether grievance decision rested on the merits or on a procedural default).
802
Woodford, 548 U.S. at 90.
803
Woodford, 548 U.S. at 120-21 (dissenting opinion).
804
A particularly extreme statement of this view appears in Sides v. Abangdon, 2010 WL 4537914, *4 (S.D.Miss.,
Nov. 2, 2010), which notes that the plaintiff had not received a Certificate of Completion for properly exhausting the
grievance system, and states: “This Court will not monitor his compliance or non-compliance with ARP or the
program's diligence or effectiveness: the certificate is mandatory prior to filing suit in this Court.”
805
In Lindell v. O’Donnell, 2005 WL 2740999 (W.D.Wis., Oct. 21, 2005), the plaintiff alleged that he had not
received notice that a letter had been confiscated until almost a year afterward; when he tried to grieve, his grievance
was dismissed as time-barred, even though it was impossible for him to file timely because of the lack of notice.
The court said that it could not review the administrative determination. 2005 WL 2740999, *18; see id., *22, *26
(finding additional claims defaulted). A later decision by the Lindell court involves a “one issue per grievance” rule.
The plaintiff said he raised one issue, breach of confidentiality of health information, and stated two ways it was
being violated. Grievance personnel said he had raised two issues, presence of officers in medical examination
rooms and distribution of medication by officers in segregation. The court cited “the general rule . . . that agencies
are granted deference in interpreting their own regulations, at least when the regulation is ambiguous,” and
concluded that prison officials’ applications of grievance procedures are not “unreviewable”; the question is whether
the prisoner had a meaningful opportunity to present his grievance. The court concluded that the rule was
reasonable on its face, since it served to prevent unwieldy complaints that are hard to understand or process, and
even though it might be too vague to understand, prisoners are not barred from trying again when a grievance is
rejected; they can file a new grievance, even if untimely, for “good cause,” a standard which should be satisfied by a
good faith but unsuccessful earlier grievance. Here, the prisoner had been told what he had to do to correct the
problem, and the instructions were easily followed: file two grievances. So this plaintiff had a meaningful
opportunity to be heard, he just didn’t take it. Simpson v. Greenwood, 2007 WL 5445538, *3-6 (W.D.Wis., Apr. 6,
2007); accord, Hohol v. Thurmer, 2010 WL 4941880, *6 (E.D.Wis., Nov. 30, 2010). See Starks v. Lewis, 2008 WL
2570960, *5 (W.D.Okla., June 24, 2008) (“Even when prison authorities are incorrect about the existence of the
perceived deficiency, the inmate must follow the prescribed steps to cure it. . . . An inmate's disagreement with
prison officials as to the appropriateness of a particular procedure under the circumstances, or his belief that he
should not have to correct a procedural deficiency does not excuse his obligation to comply with the available
process. . . .”), aff’d, 313 Fed.Appx. 163 (10th Cir. 2009); Jones v. Frank, 2008 WL 4190322, *1, 3-4 (W.D.Wis.,
Apr. 14, 2008) (court must defer to complaint examiner’s determination that plaintiff did not “allege sufficient facts

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of judicial review. One stringently held: “Only where the ‘procedural’ defect cited by the prison
is so transparently without merit as to be arbitrary and capricious on its face, coupled with a
grievance procedure that does not provide a reasonable opportunity for refiling of a procedurallycompliant grievance in the event of a procedural denial, will the Court consider whether the
grievance procedure has been rendered unavailable.”806 Another stated: “As long as the state’s
application of its own procedural rules is not arbitrary or capricious, we will not substitute our
judgment for the state’s.”807 Another court noted Woodford’s acknowledgment of the habeas
corpus doctrine of procedural default, and suggested that that doctrine can be helpful in
analyzing proper exhaustion questions. Specifically, it said that “the contours of the procedural
default doctrine would require the Court to consider whether the last administrative
decisionmaker relied on an established procedural rule and whether a reasonable reviewer could
have determined that the prisoner actually violated the established rule.”808
This last approach provides a plausible doctrinal basis for federal courts’ exercising
independent judgment on the question whether the procedural rejection of a grievance
necessarily constitutes a procedural default by the prisoner. However, it is not clear that courts
need such a platform. The Supreme Court, interpreting this federal statute, has held that
Congress meant § 1997e(a) to require “proper exhaustion,” and that “[c]ompliance with prison
grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’”809 It

upon which redress may be made”); Williams v. Burgos, 2007 WL 2331794, *3 (S.D.Ga., Aug. 13, 2007) (holding
Bureau of Prisons regulation defining an appeal as filed only when it is logged as received would apply even if
plaintiff’s assertion that he mailed his appeal timely was true); see also Roam v. Curry, 2009 WL 1308909, *1
(N.D.Cal., May 11, 2009) (denying amendment to complaint as futile without independent examination since
officials had rejected the plaintiff’s grievance as “obscured by pointless verbiage or voluminous unrelated
documentation”).
The court that asserted its inability to review administrative determinations has departed from that rule in
some cases. One of them may be distinguishable on the ground that defendants disavowed the grievance decision
once litigation was filed. In Vasquez v. Hilbert, 2008 WL 2224394 (W.D.Wis., May 28, 2008), grievance officials
rejected plaintiff’s excessive force grievance on the erroneous ground that he was challenging the substance of a
disciplinary decision. The court held that the plaintiff could not be penalized for an erroneous official interpretation,
and described as “unreasonable, unfair and inconsistent with circuit precedent” defendants’ argument that the
plaintiff should have done a better job of showing the officials that they were wrong. 2008 WL 2224394, *3. In
Cordova v. Frank, 2007 WL 2188587 (W.D.Wis., July 26, 2007), the court stated that “[n]ormally” federal courts
are not “free to revisit” procedural rejections of grievances, but in that case the rejection of the plaintiff’s very
specific grievance for allegedly not being specific enough did not entitle defendants to dismissal for non-exhaustion,
since “plaintiff put prison officials on notice of his claim and exhausted all administrative remedies legitimately
available to him.” 2007 WL 2188587, *7. Perhaps the court did not consider the question of specificity a
procedural issue. That was the case in Ammons v. Gerlinger, 2007 WL 5514719, *10-11 (W.D.Wis., Feb. 12, 2007),
reconsideration denied, 2007 WL 5659413 (W.D.Wis., Mar. 12, 2007), in which the plaintiff’s grievance was
rejected (the proper disposition for a procedurally defective grievance) for failing to assert sufficient facts to merit
redress. The court said that this was a substantive and not a procedural determination, it was wrong, and the
prisoner had done everything he could do to exhaust. But see Jones v. Frank, cited earlier in this footnote.
806
Muniz v. Kaspar, 2008 WL 3539270 at *5 n.5 (D.Colo., Aug. 12, 2008) (where plaintiff sought to exhaust so he
could seek damages, which were not available from the grievance system, and grievance was rejected for failing to
specify the relief sought, court rejected these “spurious procedural grounds”).
807
Hoeft v. Wisher, 181 Fed.Appx. 549, 550 (7th Cir. 2006) (unpublished).
808
Lafountain v. Martin, 2008 WL 1923262, *16 (W.D.Mich., Apr. 28, 2008), vacated and remanded on other
grounds, 334 Fed.Appx. 738 (6th Cir. 2009) (per curiam). This court further observed that instructions by grievance
officials that are contrary to the relevant state regulations may make the remedy unavailable. Id.
809
Jones v. Bock, 549 U.S. 199, 218 (2007).

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would appear that whether a prisoner has exhausted is therefore a question of federal law for
federal court determination.810
That is the approach implicitly taken by the Ninth Circuit in addressing the California
practice of “screening out” grievances deemed to violate procedural requirements. It held
remedies unavailable if the prisoner filed a proper grievance but officials “screened his grievance
or grievances for reasons inconsistent with or unsupported by applicable regulations.”811 It did
not prescribe any particular deference to the grievance body in making this determination. The
Tenth Circuit has simply held that a procedural dismissal was wrong under a “plain reading” of
the grievance rules, and has characterized this situation as one “[w]here prison officials prevent,
thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, [and thereby]
render that remedy ‘unavailable.’”812 This is in fact how most federal courts have proceeded,
assessing the correctness of grievance decisions like any other factual or legal question, without
theoretical discussion.813
810

See Simpson v. Nickel, 2005 WL 2429805, *3 (W.D.Wis., Sept. 29, 2005) (holding that state law stating “a
prisoner’s failure to raise an issue at an initial disciplinary hearing constitutes waiver of the issue on appeal” did not
govern the federal question of compliance with § 1997e(a)).
811
Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010); see LaPointe v. Bienovidas, 2013 WL 3439905, *7-8
(D.Ariz., July 9, 2013) (holding improper screening made remedy unavailable; grievances were wrongly rejected as
untimely and for failing to attach documents the rules did not require to be attached); Roberts v. Gonzalez, 2013 WL
4663882, *5-6 (C.D.Cal., Mar. 5, 2013) (rejecting conclusion that being pepper sprayed did not have a “material
adverse effect” upon the grievant’s “health, safety, or welfare”), report and recommendation adopted, 2013 WL
4663551 (C.D.Cal., Aug. 29, 2013); Ortega v. Ruggiero, 2013 WL 268905, *6 (E.D.Cal., Jan. 23, 2013) (rejecting
grievance official’s finding there was “no adverse effect” on the plaintiff, where his property including his telephone
book had been improperly seized and he had been cursed at and threatened with an unsupported gang validation if
he filed an inmate grievance); James v. Fagan, 2013 WL 687058, *4-5 (E.D.Cal., Feb. 25, 2013) (finding grievance
improperly screened in light of plaintiff’s evidence of reasonable efforts to comply with requirements); Houston v.
Torres, 2012 WL 5398794, *2, 5 (E.D.Cal., Nov. 2, 2012) (holding grievance was “improperly screen[ed]” where
officials treated complaint about staff conduct as an appeal from the related disciplinary proceeding, and rejected it),
report and recommendation adopted in part, rejected in part on other grounds, 2013 WL 500363 (E.D.Cal., Feb.
11, 2013); Vaught v. Clark, 2012 WL 530198, *2-4 (E.D.Cal., Feb. 17, 2012) (holding one grievance improperly
screened out as untimely because grievance staff relied on the date of receipt rather than date of submission; holding
another grievance improperly screened out as not demonstrating the prisoner was personally affected, though he
plainly was), report and recommendation adopted, 2012 WL 1130682 (E.D.Cal., Mar. 29, 2012); Craver v. Hasty,
2012 WL 170148, *5 (E.D.Cal., Jan. 19, 2012) (holding screening out of grievance about unjustified tear-gassing for
failing to state an “adverse impact” was unsupported by the record), report and recommendation adopted, 2012 WL
671938 (E.D.Cal., Feb. 28, 2012); Demerson v. Woodford, 2011 WL 5325253, *3 (E.D.Cal., Nov. 2, 2011)
(declining to dismiss for non-exhaustion where grievance body’s decision was unsupported by applicable
regulations), report and recommendation adopted, 2011 WL 6002606 (E.D.Cal., Nov. 30, 2011).
812
Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). In Little, the grievance appellate body rejected plaintiff’s
grievance on the ground that it raised multiple issues. The court pointed out that the rules permitted dismissal for
that reason at the initial stage, but not on appeal. See Burnett v. Jones, 437 Fed. Appx. 736, 741 (10th Cir. 2011)
(unpublished) (“[I]mproper rejection of a grievance appeal excuses the prisoner's failure to exhaust.”), cert. denied,
132 S.Ct. 1546 (2012).
813
In Moore v. Bennette, 517 F.3d 717, 722, 729, 730 (4th Cir. 2008), discussed above at n. 787, the court approved
dismissal of some claims for non-exhaustion because the prisoner violated a rule against complaining about more
than one incident in a grievance, but reversed dismissal of another claim where it said that requiring him to grieve
each of multiple incidents separately “would have prevented him from fairly presenting his claim in its entirety.” See
Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir. 2011) (rejecting grievance body’s finding of no justification for
untimely grievance), cert. denied, 132 S.Ct. 168 (2011); Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(holding district court should have determined whether plaintiff’s grievance fell into an exception to the time limits,
even though state officials had rejected it as untimely); LaFountain v. Martin, 334 Fed.Appx. 738, 741 (6th Cir.

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Several decisions have refused to dismiss for non-exhaustion where a prisoner’s
grievance had been rejected as duplicative of an earlier grievance.814
2009) (per curiam) (holding that plaintiff’s grievance did not raise multiple issues as found by grievance officials,
but one claim of retaliation; “it is simply a matter of how one reads and interprets” the grievance); LaPointe v.
Bienovidas, 2013 WL 3439905, *7 (D.Ariz., July 9, 2013) (rejecting decision that grievances were duplicative
where the plaintiff filed separate grievances against multiple officers involved in the same incident, enumerating the
separate conduct of each); Norwood v. Byers, 2013 WL 3330643, *10 (E.D.Cal., July 1, 2013) (rejecting decision
that grievance was duplicative, since grievances addressed different medical evaluations, albeit for similar
problems), report and recommendation adopted, 2013 WL 5156572 (E.D.Cal., Sept. 12, 2013); Talley v. Knop,
2013 WL 2232302, *4-5 (S.D.Ill., May 19, 2013) (rejecting decision that grievance was missing a crucial document
where emergency grievances did not require that document; rejecting decision that it was filed in the wrong place,
stating grievance body had misconstrued it); Smith v. Humphrey, 2013 WL 664894, *3-4 (M.D.Ga., Jan. 15, 2013)
(refusing to credit the rejection of plaintiff’s grievance because he wrote “see informal” and attached the required
informal grievance; no rule forbade doing so), report and recommendation adopted in part, rejected in part on other
grounds, 2013 WL 656853 (M.D.Ga., Feb. 22, 2013), reconsideration denied, 2013 WL 950236 (M.D.Ga., Mar. 11,
2013); see Appendix A for additional authority on this point; see n. 838, below, for decisions on this point
concerning time limits.
Where prison officials said the plaintiff only filed a “request” and not a “grievance,” the court said: “As
long as the grievances fairly put the defendants on notice of the wrong the prisoner claims to have suffered and the
sort of relief he seeks, so that the defendants have a fair opportunity to address and resolve the problem before the
prisoner turns to federal court, the exhaustion requirement should be deemed satisfied.” Guillory v. Rupf, 2007 WL
2881954, *5 (N.D.Cal., Sept. 27, 2007). In effect, the court treated the matter as one of liberal construction of
prisoner pleadings, and not as an issue of procedural compliance as did the defendants.
814
This issue has come up repeatedly under the Michigan “name the defendants” rule, where officials have argued
that a grievance naming new individuals involved in previously grieved incidents is duplicative; most courts have
rejected this argument. See n. 688, above. It has also arisen in other circumstances. Some decisions have held that
dismissal of a grievance as duplicative did not mean that the plaintiff had not exhausted, but suggested that he
exhausted in an earlier grievance. Taylor v. Hubbard, 2013 WL 4776504, *7 (E.D.Cal., Sept. 4, 2013) (stating “that
Plaintiff's appeal was duplicative of another case in litigation suggests that Plaintiff likely exhausted his
administrative remedies”); Meredith v. Overley, 2013 WL 3288546, *3 (E.D.Cal., June 28, 2013) (holding that the
prison’s claim that the second grievance was duplicative must mean that the first grievance, which was decided at
the highest level, exhausted), report and recommendation adopted, 2013 WL 4459634 (E.D.Cal., Aug. 16, 2013);
Agnes v. Joseph, 2011 WL 4352843, *4 (E.D.Cal., Sept. 16, 2011) (screening-out as duplicative suggested the
plaintiff had no further remedies), report and recommendation adopted, 2011 WL 5024443 (E.D.Cal., Oct. 20,
2011); Chatman v. Felker, 2011 WL 445685, *6 (E.D.Cal., Feb. 3, 2011) (holding rejection of second grievance as
improper, after favorable decision on first grievance was not implemented, meant remedies were not available),
report and recommendation adopted, 2011 WL 1118702 (E.D.Cal., Mar. 28, 2011); Taylor v. Higgins, 2009 WL
224953, *3 (N.D.Cal., Jan. 29, 2009) (holding dismissal of grievance naming a new defendant as duplicative implied
claim had been exhausted in an earlier grievance); Garvins v. Burnett, 2009 WL 723888, *3 (W.D.Mich., Mar. 12,
2009); Bey v. Luoma, 2008 WL 4534427, *4 (W.D.Mich., Sept. 30, 2008); Neal v. Butts, 2008 WL 2704663, *5
(E.D.Mich., July 9, 2008); Broyles v. Correctional Medical Services, Inc., 2008 WL 1745554, *6 (W.D.Mich., Apr.
14, 2008); Houston v. Riley, 2008 WL 762114, *3 (W.D.Mich., Feb. 25, 2008), report and recommendation
adopted, 2008 WL 4426599 (W.D.Mich., Sept. 26, 2008); Doyle v. Jones, 2007 WL 4052032, *8-9 (W.D.Mich.,
Nov. 15, 2007); see Schneider v. Hoffman, 2012 WL 3100550, *7-8 (D.Nev., June 25, 2012) (holding prisoner was
given the “run-around” where his first grievance was improperly rejected and his second was rejected as duplicative;
“This is not the first time the court has observed this type of conduct on behalf of NDOC.”), report and
recommendation adopted, 2012 WL 3096429 (D.Nev., July 27, 2012); Martin v. Morris, 2012 WL 1229150, 5-6
(C.D.Cal., Mar. 7, 2012) (holding grievance was improperly screened as duplicative where defendants failed to
show that there was a previous grievance that it duplicated), report and recommendation adopted, 2012 WL
1236497 (C.D.Cal., Apr. 10, 2012); see Francis v. Gill, 2013 WL 5672191, *3 (E.D.Cal., Oct. 17, 2013) (holding the
refusal to exhaust a grievance because a pending grievance appeal allegedly addressed the same issue meant that the
plaintiff had exhausted available remedies), report and recommendation adopted in part, rejected in part on other
grounds, 2014 WL 1064982 (E.D.Cal., Mar. 14, 2014). In Gabby v. Luy, 2006 WL 167673, *4 (E.D.Wis., Jan. 23,
2006), the prisoner had filed one grievance and failed to appeal, then filed a second grievance which was rejected on

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f)

What If the Prisoner Fails To Comply with Ad Hoc
Directions from Prison Staff with Respect to a
Particular Grievance?

Numerous decisions have held that a prisoner who disregards instructions by grievance
personnel as to how to proceed fails to exhaust.815 However, some courts have refused to find
non-exhaustion where the instructions or the grievance body’s dismissal were not supported by
the written grievance policy816—though one decision is remarkably vociferous concerning the
the ground that the issue had been raised in the previous grievance. The court found exhaustion, implicitly rejecting
defendants’ argument that if a prisoner tries to exhaust an issue and makes a procedural mistake, he is barred from
trying again and doing it right even if the later grievance is otherwise proper. Contra, Rasheed v. Nevada Dept. of
Corrections, 2012 WL 1810970, *3 (D.Nev., May 17, 2012) (holding where prisoner filed one grievance, failed to
appeal, then filed a new grievance about the same matter, the second grievance was properly rejected as
duplicative). In Gatlin v. Nichols, 2007 WL 4219170, *2 (E.D.Cal., Nov. 29, 2007), report and recommendation
adopted, 2008 WL 191989 (E.D.Cal., Jan. 23, 2008), the court simply found that grievance officials were wrong in
finding plaintiff’s grievance duplicative, and held that the plaintiff exhausted. However, there are some decisions
that seem to hold a grievance dismissed as duplicative cannot exhaust. Burnett v. Howard, 2010 WL 1286256, *2
(W.D.Mich., Mar. 30, 2010); Kimbrel v. Caruso, 2010 WL 1417746, *5 (W.D.Mich., Feb. 2, 2010), report and
recommendation adopted, 2010 WL 1417741 (W.D.Mich., Mar. 31, 2010); see also Lawson v. Engelsgjerd, 2010
WL 1626423, *2 (W.D.Mich., Apr. 21, 2010) (implying that a duplicative grievance cannot exhaust where the initial
grievance was rejected as procedurally improper).
815
See Thomas v. Parker, 609 F.3d 1114, 1118-19 (10th Cir. 2010), cert. denied, 131 S.Ct. 1691 (2011); Cannon v.
Washington, 418 F.3d 713, 718 (7th Cir. 2005); Carroll v. Yates, 362 F.3d 984, 985 (7th Cir. 2004); Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2004) (“Just as courts may dismiss suits for failure to cooperate, so
administrative bodies may dismiss grievances for lack of cooperation; in either case this procedural default blocks
later attempts to litigate the merits.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002) (holding that a
prisoner who received no response to a grievance and refused the appeals body’s direction to try to get one had
failed to exhaust); Peeler v. McGill, 2013 WL 5913827, *4 (D.Conn., Oct. 31, 2013) (finding non-exhaustion where
plaintiff did not refile correcting his “vague” action requested); Burton v. Glebe, 2013 WL 1499149, *7
(W.D.Wash., Jan. 28, 2013) (finding non-exhaustion where plaintiff did not re-file grieving each incident separately
per grievance personnel’s instructions), report and recommendation adopted, 2013 WL 1499143 (W.D.Wash., Apr.
10, 2013); Panton v. Breckon, 2013 WL 1246743, *7 (M.D.Pa., Mar. 27, 2013) (holding plaintiff whose grievance
was improperly rejected failed to exhaust when he appealed rather than re-submitting it as instructed), appeal
dismissed, No. 13-2078 (3d Cir., June 6, 2013); Asberry v. Cate, 2013 WL 876289, *14 (E.D.Cal., Mar. 7, 2013)
(holding plaintiff didn’t exhaust where he refused to attend interviews because he would have to be rear-cuffed,
causing pain in light of his medical condition), report and recommendation adopted, 2013 WL 4647975 (E.D.Cal.,
Aug. 29, 2013); Martin v. Hamilton, 2013 WL 371915, *3 (M.D.Pa., Jan. 30, 2013) (holding prisoner who did not
resubmit his appeal as directed failed to exhaust); Ortega v. Ruggiero, 2013 WL 268905, *6-7 (E.D.Cal., Jan. 23,
2013) (holding prisoner who did not follow instruction to file “Form 22” before resubmitting his grievance did not
exhaust); Waddy v. Sandstrom, 2012 WL 2023519, *3-4 (W.D.Va., June 5, 2012) (dismissing for non-exhaustion
where prisoner did not timely comply with direction to resubmit with copy of original grievance), order entered,
2012 WL 2023543 (W.D.Va., June 5, 2012); Jupiter v. Johnson, 2011 WL 4527791, *7 (M.D.Pa., Sept. 28, 2011)
(prisoner who failed to obtain from Chaplain and complete “New or Unfamiliar Religious Components
Questionnaire” as directed by grievance staff failed to exhaust); Taylor v. Buss, 2011 WL 4386195, *2 (S.D.Ind.,
Sept. 20, 2011), motion to amend denied, 2011 WL 5024589 (S.D.Ind., Oct. 20, 2011); see Appendix A for
additional authority on this point.
816
See Ekene v. Cash, 2013 WL 2468387, *4-5 (C.D.Cal., June 7, 2013) (declining to dismiss where grievance was
rejected for failure to attach “medical chrono” for showers, since there is no requirement to obtain such a document
to take a shower); Fisher v. Figueroa, 2013 WL 676170, *3-4 (W.D.Okla., Jan. 7, 2013) (holding remedies
unavailable where the prisoner followed instructions and was told to refile his grievance after grievance staff gave
him inconsistent instructions), report and recommendation adopted, 2013 WL 675386 (W.D.Okla., Feb. 22, 2013);
Chavez v. Granadoz, 2013 WL 1749910, *2-4 (E.D.Cal., Apr. 23, 2013) (declining to dismiss for non-exhaustion
where grievance personnel demanded the names of involved staff, which were not required by the rules, and denied
plaintiff’s request for documentation that would include that information); Peterson v. Gore, 2012 WL 1669431, *5-

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prisoner’s obligation to follow erroneous instructions.817 Where prisoners cannot complete the
process because they are unable to comply with officials’ instructions, the remedy is
unavailable.818
g)

How Does the Proper Exhaustion/Procedural
Default Rule Interact with the Statutory
Requirement That Remedies Be “Available”?

The rulings of a number of courts have created a procedural trap in addition to the
procedural default requirement. Sometimes prisoners are not able to follow the rules for reasons
outside their control—for example, they miss a deadline because they are out of the institution
and have no access to the grievance process. One would think that such circumstances mean that
the administrative remedy was not available for the affected prisoner. However, a number of
courts have held that prisoners who are prevented from exhausting properly must try to exhaust
6 (E.D.Cal., May 11, 2012) (declining to dismiss for non-exhaustion where defendants rejected plaintiff’s
emergency grievance and told him to re-file it as a regular grievance, but policy required grievance officials to divert
it into the regular grievance process or reject it and give reasons; holding grievance was improperly screened and
remedy was therefore unavailable), report and recommendation adopted, 2012 WL 4038433 (E.D.Cal., Sept. 11,
2012); Andrews v. Cervantes, 2009 WL 800915, *6 (E.D.Cal., Mar. 25, 2009) (holding prisoner whose grievance
was rejected because he refused to resubmit it without the word “moron” exhausted, since grievance policy did not
support basis for rejection); Chizum v. Marandet, 2011 WL 611895, *4-5 (N.D.Ind., Feb. 15, 2011) (holding
plaintiff who had contacted three staff members who failed to respond had satisfied the requirement of informal
efforts to resolve the problem; plaintiff’s failure to follow an instruction to consult a fourth staff member was not
non-exhaustion absent proof from defendants that the policy required such an effort); Young v. Hightower, 395
F.Supp.2d 583, 587, 2005 WL 2739243, *3-4 (E.D.Mich. 2005) (holding plaintiff’s alleged failure to supply
requested documents was not a failure to exhaust where the grievance policy said grievances should not be denied
for failure to provide documentation); Griffen v. Cook, 2005 WL 1113830, *7-8 (D.Or., May 10, 2005) (declining to
dismiss for non-exhaustion where plaintiff’s grievances were returned unprocessed with instructions, but the
grievance policy made no provision for returning grievances unprocessed), report and recommendation adopted as
modified, 2005 WL 2314124 (D.Or., Sept. 21, 2005).
817
Starks v. Lewis, 2008 WL 2570960, *5 (W.D.Okla., June 24, 2008) (“Even when prison authorities are incorrect
about the existence of the perceived deficiency, the inmate must follow the prescribed steps to cure it. . . . An
inmate's disagreement with prison officials as to the appropriateness of a particular procedure under the
circumstances, or his belief that he should not have to correct a procedural deficiency does not excuse his obligation
to comply with the available process. . . .”), aff’d, 313 Fed.Appx. 163 (10th Cir. 2009). Contra, Lafountain v.
Martin, 2008 WL 1923262, *16 (W.D.Mich., Apr. 28, 2008) (suggesting that instructions by grievance personnel
contrary to state regulations may make the remedy unavailable), vacated and remanded on other grounds, 334
Fed.Appx. 738 (6th Cir. 2009) (per curiam).
818
Patel v. Moron, 897 F.Supp.2d 389, 399 (E.D.N.C. 2012) (declining to dismiss for non-exhaustion where plaintiff
alleged that each of two regional offices directed him to file his appeal with the other one); Mark v. Jackson, 2012
WL 1035879, *4-5 (W.D.Okla., Mar. 12, 2012) (failure to follow instructions did not imply non-exhaustion where
the instructions were simply to read the policy and follow it, with no instruction on how to remedy the alleged
deficiency), report and recommendation adopted, 2012 WL 1035761 (W.D.Okla., Mar. 28, 2012); Brown v.
Darnold, 2010 WL 3702373, *5 (S.D.Ill., Aug. 17, 2010) (remedy was unavailable to a prisoner who was told to get
a counselor and a grievance officer’s response, but the counselor never responded and the grievance officer said
only that the grievance was untimely), report and recommendation adopted, 2010 WL 3613934 (S.D.Ill., Sept. 8,
2010); Woods v. Carey, 2008 WL 447553 (E.D.Cal., Feb. 15, 2008) (where grievance official directed plaintiff to
the medical appeals analyst, but that person said plaintiff’s grievance must first be processed by the grievance office,
plaintiff had exhausted; court refers to “runaround”); Bradley v. McVay, 2008 WL 495732, *3) (E.D.Cal., Feb. 21,
2008) (if prison officials required plaintiff to go to an interview room for an investigation, and he could not do so
without the cane he had been deprived of, the grievance process would not be available to him), report and
recommendation adopted, 2008 WL 669858 (E.D.Cal., Mar. 7, 2008).

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improperly, notwithstanding the Woodford “proper exhaustion” requirement. Therefore, if they
can’t file a timely grievance, they should file a late grievance when they can, or the court may
not even consider their arguments why they couldn’t file timely.819
h)

National Standards to Prevent, Detect, and Respond
to Prison Rape.

These standards, recently promulgated under the Prison Rape Elimination Act (PREA)
and sometimes called the “PREA Standards,” contain several requirements about the handling of
prison grievances concerning sexual abuse which would require changes in the grievance
procedures of many prison and jail systems. The Standards provide:


“The agency shall not impose a time limit on when an inmate may submit a
grievance regarding an allegation of sexual abuse.”820



“The agency shall not require an inmate to use any informal grievance process, or
to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.”821



“The agency shall ensure that—
o An inmate who alleges sexual abuse may submit a grievance without
submitting it to a staff member who is the subject of the complaint, and
o Such grievance is not referred to a staff member who is the subject of the
complaint.”822



Final decisions on sexual abuse complaints must be issued within 90 days of their
initial filing, not counting the time consumed by inmates in preparing any
administrative appeal. Agencies can claim an extension of up to 70 days “if the
normal time period for response is insufficient to make an appropriate decision”
but must notify the prisoner in writing of any such extension and of the date by
which a decision will be made.823



“At any level of the administrative process, including the final level, if the inmate
does not receive a response within the time allotted for reply, including any
properly noticed extension, the inmate may consider the absence of a response to
be a denial at that level.”824



Third parties, including fellow inmates, staff members, family members,
attorneys, and outside advocates, may help inmates file sexual abuse complaints
and may also file them on behalf of inmates, though the prison may require that
the inmate complainant agree to have a third party file the complaint and that the
complainant personally pursue any any subsequent steps (e.g. appeals).825

819

See cases cited in n. 847, below.
28 C.F.R. § 115.52(b)(1).
821
28 C.F.R. § 115.52(b)(3).
822
28 C.F.R. § 115.52(c).
823
28 C.F.R. § 115.52(d)(1-3).
824
28 C.F.R. § 115.52(d)(4).
825
28 C.F.R. § 115.52(e).
820

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

“The agency shall establish procedures for the filing of an emergency grievance
alleging that an inmate is subject to a substantial risk of imminent sexual abuse,”
which the agency must immediately forward to “a level of review at which
immediate corrective action may be taken.” There must be an initial response
within 48 hours and a final agency decision within 5 calendar days; the decisions
both “shall document the agency’s determination whether the inmate is in
substantial risk of imminent sexual abuse and the action taken in response to the
emergency grievance.”826



Disciplinary charges based on sexual abuse complaints are limited to cases
“where the agency demonstrates that the inmate filed the grievance in bad
faith.”827

To date there seems to be no case law concerning the interpretation and enforceability of
these standards,828 so it is unclear what would happen if a prisoner asserted the agency’s failure
of compliance as a defense to non-exhaustion generally, or if the agency alleged non-exhaustion
based on a prisoner’s failure to follow a particular grievance rule.
The Standards became effective August 20, 2012, but it is not clear whether they apply to
incidents that occurred before that date in which administrative proceedings were pending on
that date or were commenced after that date—an important question, since the Standards as
noted forbid the imposition of time limits on sexual abuse grievances.
8. Compliance with Time Limits
The Supreme Court has held that § 1997e(a) requires “proper exhaustion,” which
“demands compliance with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on the
course of its proceedings.”829 Thus a grievance rejected administratively as untimely does not
suffice to exhaust.830 The Court was aware of, and apparently untroubled by, the very short
deadlines of most prison grievance systems.831 The practical result of the “proper exhaustion”
826

28 C.F.R. § 115.52(f).
28 C.F.R. § 115.52(g).
828
The court in Porter v. Howard, 2012 WL 2836637, *4 (S.D.Cal., July 10, 2012), affirmed in pertinent part,
vacated in part on other grounds, remanded, 531 Fed.Appx. 792 (9th Cir. 2013), cert. denied, 134 S.Ct. 691 (2013),
held that PREA itself does not substitute for or exempt prisoners from using prison grievance procedures. The
decision antedates the PREA Standards and addresses only the statute. Decisions postdating the Standards are to the
same effect. Lamb v. Franke, 2013 WL 638836, *2 (D.Or., Feb. 14, 2013); Myers v. Grubb, 2013 WL 352194, *1
(D.Mont., Jan. 29, 2013).
829
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Cf. Hopkins v. Coplan, 2007 WL 2264597, *3-4 (D.N.H., Aug. 6,
2007) (holding that where there was no time limit when the plaintiff’s claim arose, but one was instituted later, the
plaintiff was obliged to comply with that time limit as measured from the date it was promulgated).
830
See, e.g., Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009).
831
The plaintiff in Woodford had missed a 15-day deadline, and the Court noted that such deadlines are typically 14
to 30 days according to the United States and even shorter according to the plaintiff. Woodford, 548 U.S. at 95-96.
The dissenting opinion cited a case from a juvenile facility involving a 48-hour time limit. Id. at 2403 (citing Minix
v. Pazera, 2005 WL 1799538, *2 (N.D.Ind., July 27, 2005)); see Whitener v. Buss, 268 Fed.Appx. 477, 478-79 (7th
Cir. 2008) (unpublished) (dismissing claim of prisoner who missed a 48-hour grievance deadline because he needed
the relevant officers’ names and it took a week to get them, and he didn’t ask for waiver of the time limit). At least
one grievance system has a 24-hour time limit. Franklin v. Beth, 2008 WL 4131629, * 4 (E.D.Wis., Sept. 4, 2008).
827

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holding and short deadlines is that prisoners are unable to correct their administrative filings
when they discover mistakes or simply develop a better understanding of what they must do.832
(This problem may have been mitigated for sexual abuse complaints by the National Standards to
Prevent, Detect, and Respond to Prison Rape, recently promulgated under the Prison Rape
Elimination Act, which provide: “The agency shall not impose a time limit on when an inmate
may submit a grievance regarding an allegation of sexual abuse.”833 To date there seems to be
no case law addressing the interpretation or enforceability of this provision.)
The Woodford Court based its holding on its view that Congress intended the statutory
term “exhausted” to mean what it means in administrative law, and noted that habeas corpus
exhaustion law was to similar effect.834 It did not make clear how absolute and inflexible its
“proper exhaustion” rule is. Though relying on the understandings of exhaustion in
administrative and habeas law, it did not address whether or to what extent it would also
recognize administrative law and habeas exceptions to exhaustion requirements.835 Nor did it
say to what extent federal courts are free to re-examine administrative determinations that a
grievance is untimely. Lower courts are divided on this point, as to procedural determinations
generally and not just time limits.836 Some courts have held that grievance bodies’
determinations are essentially unreviewable.837 Most, however, have independently assessed
such determinations when they are disputed, finding in some cases that officials have violated
their own rules, relied on supposed rules that do not appear in the policy, or have simply miscounted the time.838 As noted in the previous section, the cases exercising independent scrutiny
have the better of the argument.

One court has rejected an argument that a five-day grievance filing deadline violates the “open court”
provision of the state constitution. Brewer v. Corrections Corp. of America, 2010 WL 398979, *5 (E.D.Ky., Jan. 27,
2010), motion to amend denied, 2010 WL 2464967 (E.D.Ky., June 15, 2010).
832
For example, in Wilbert v. Quarterman, 647 F.Supp.2d 760, 767-68 (S.D.Tex. 2009), the plaintiff was injured in
a transportation van. His grievance noted that there were no seatbelts, but did not explicitly allege deliberate
indifference; he requested only the accident report and continuing medical treatment. Some months later, he filed a
grievance specifically articulating a deliberate indifference claim, which was rejected as untimely. The court held
that his first grievance did not exhaust the deliberate indifference claim and the untimeliness of the second grievance
mandated dismissal of his claim. See Williams v. Williams, 2013 WL 6210642, *4 (S.D.Ga., Nov. 27, 2013) (where
prisoner made errors in his informal grievance, which was returned to him only after the deadline for re-filing had
expired, he was deemed to have procedurally defaulted); Crane v. Deluna, 2009 WL 3126279, *3 (E.D.Cal., Sept.
23, 2009) (plaintiff sent his appeal to the wrong place and by the time he retrieved it and sent it to the right place, the
deadline had expired).
833
28 C.F.R. § 115.52(b)(1).
834
Woodford, 548 U.S. at 93.
835
See nn. 726-728, above.
836
See nn. 803-814, above.
837
See Wall v. Holt, 2007 WL 89000, *3-4 (M.D.Pa., Jan. 9, 2007) (holding timeliness is measured by when
grievance appeal arrives under Bureau of Prisons’ regulation, notwithstanding “prison mailbox” rule and claim that
the appeal was mailed in plenty of time); Lindell v. O’Donnell, 2005 WL 2740999, *18 (W.D.Wis., Oct. 21, 2005)
(holding that the court could not review an administrative finding of untimeliness even though, the plaintiff alleged
that he had not received notice that a letter had been confiscated until almost a year afterward, and it was impossible
for him to file timely because of the lack of notice).
838
See Bugge v. Roberts, 430 Fed.Appx. 753, 756 (11th Cir. 2011) (unpublished) (rejecting decision that appeal was
late, where grievance body accepted a late grievance and decided the merits, and appeal was timely with respect to
that decision); Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir. 2011) (rejecting determination of lack of good cause
to file late grievance), cert. denied, 132 S.Ct. 168 (2011); Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(holding district court should have determined whether plaintiff’s grievance fell into an exception to the time limits,

186

The Second Circuit has addressed compliance with time limits in the framework of its
earlier decisions holding that failure to exhaust or to exhaust properly can be justified under
“circumstances which might understandably lead usually uncounselled prisoners to fail to grieve
in the normally required way,”839 such as prisoners’ misunderstanding of the exhaustion
requirement840 or of the relevant prison regulations,841 though it noted that those were not
even though state officials had rejected it as untimely); Williams v. Franklin, 302 Fed.Appx. 830, 832 (10th Cir.
2008) (rejecting determination of untimeliness that was obviously wrong); LaPointe v. Bienovidas, 2013 WL
3439905, *7 (D.Ariz., July 9, 2013) (noting that plaintiff’s grievances had been rejected as untimely, but were not);
Jaros v. Illinois Department of Corrections, 2013 WL 5546189, *3 (S.D.Ill., Oct. 8, 2013) (holding prison officials
were “demanding the prisoner do more than the administrative rules require” when they measured timeliness of an
appeal by when it was received and not when it was sent, under a rule that said appeal must be “submitted” within
30 days); August v. Caruso, 2013 WL 5291577, *7 n.6 (E.D.Mich., Sept. 19, 2013) (rejecting officials’ time
calculation, holding that computing a time limit from a date the plaintiff had no notice of is “would essentially
require her to guess her Step III appeal's due date, a result the Court will not countenance”), report and
recommendation adopted, 2013 WL 6816472 (E.D.Mich., Dec. 24, 2013); Dewalt v. Pitts, 2013 WL 4051704, *1
(S.D.Ill., August 11, 2013) (rejecting conclusion that grievance was submitted a day late); Talley v. Knop, 2013 WL
2232302, *5 (S.D.Ill., May 19, 2013) (rejecting decision that grievance was late, where prisoner had properly filed it
as an original grievance and not an appeal); Faught v. CCA, 2013 WL 1729123, *2-3 (D.Idaho, Apr, 22, 2013)
(declining to dismiss for non-exhaustion where plaintiff’s grievance was mistakenly rejected as time-barred;
rejecting argument that plaintiff should have filed a new grievance clarifying his claim, since the grievance policy
did not require such action); Montoya v. Raman, 2012 WL 2358631, *4 (E.D.Cal., June 20, 2012) (rejecting
administrative finding of untimely appeal where the plaintiff attested to appealing timely and nothing in the record
contradicted his account), report and recommendation adopted, 2012 WL 2995491 (E.D.Cal., July 23, 2012);
Joseph v. Michigan Dept. of Corrections, 2012 WL 395534, *5 (E.D.Mich., Feb. 7, 2012) (rejecting finding of
untimeliness based on court’s review of documentation); Lemond v. Pienkos, 2011 WL 6012546, *3 (S.D.Ind., Nov.
30, 2011) (rejecting the defendants’ claim of laches and holding that equitable considerations weighed in plaintiff’s
favor where he was incapacited during the time for filing a grievance and was initially misinformed about his ability
to file a late grievance); see Appendix A for further authority on this point; see also Miller v. Coning, 2014 WL
808023, *6 (D.Del., Feb. 28, 2014) (rejecting defense lawyers’ argument that timeliness of an assault claim should
be measured from the time of the creation of the risk that led to the assault); Sims v. Piper, 2008 WL 3318746, *3-4
(E.D.Mich., Aug. 8, 2008) (grievance rules said a grievance appeal is filed on the date sent by the prisoner, not the
date received); Armitige v. Cherry, 2007 WL 1751738, *5 (S.D.Tex., May 30, 2007) (stating in dictum that a
grievance’s timeliness is determined in the same way as courts determine when a claim accrues, based on when the
prisoner should have known he had a claim (in this case that his broken leg had been misdiagnosed). In Merlino v.
Westwood, 2007 WL 4326803, *4-5 (E.D.Mich., Dec. 10, 2007), the court rejected defendants’ claim of
untimeliness based on its own time calculation under defendants’ rules, but it is not clear whether the grievance was
actually rejected as untimely. In Escobedo v. Miller, 2009 WL 2605260, *5 (C.D.Ill., Aug. 25, 2009), the grievance
was decided on its merits though untimely at the initial stage, and then dismissed as untimely on appeal even though
the appeal was timely; the court held that the dismissal was improper and plaintiff had exhausted. In Schreane v.
Keffer, 2010 WL 4068782, *5-6 (W.D.La., Sept. 23, 2010), report and recommendation adopted, 2010 WL 4068773
(W.D.La., Oct. 14, 2010), the court found a factual dispute barring summary judgment where the plaintiff alleged
and supported that he had mailed an appeal, but the Bureau of Prisons had no record of it. This decision is at least
implicitly in conflict with Wall v. Holt, cited in the previous note, which enforced a rule stating that an appeal is
deemed filed when the BOP receives it. If the BOP never receives it, by the logic of Wall, it was never filed, and the
plaintiff is out of luck.
One court has held that a grievance rule stating that a prisoner “should” file within 15 days, not that he
“must” file within 15 days, is not a mandatory rule and failing to meet it does not render a grievance untimely.
Edwards v. Dwyer, 2008 WL 243943, *8 (E.D.Mo., Jan. 25, 2008), motion to amend denied, 2008 WL 687419
(E.D.Mo., Mar. 11, 2008).
839
Williams v. Comstock, 425 F.3d 175, 176 (2d Cir. 2005) (per curiam). The court held that absent an explanation
for more than a small part of the plaintiff’s two-year delay, “the failure to timely file the grievance in accordance
with IGP rules amounted to a failure to exhaust administrative remedies in this case.” 425 F.3d at 177.
840
Williams, id. (citing Rodriguez v. Westchester County Jail Correctional Dep’t, 372 F.3d 485 (2d Cir. 2004)).

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necessarily the only circumstances to justify failure to exhaust.842 For example, a reasonable if
mistaken appreciation of the facts, not remedied until after the grievance deadline, may also
justify non-exhaustion or result in unavailability of a remedy. 843 As noted in the previous
section, this framework appears to survive Woodford, since the kinds of fact patterns addressed
in Second Circuit law were not addressed and were not before the Court in Woodford.
Regardless of the state of the justification/special circumstances rule, circumstances that
prevent a prisoner from filing timely would mean that the grievance system was not an
“available” remedy for purposes of the exhaustion rule;844 Woodford did not purport to construe
841

Williams, id. (citing Giano v Goord, 380 F.3d 670, 677 (2d Cir. 2004)); see Bellamy v. Mount Vernon Hosp.,
2008 WL 3152963, *5 (S.D.N.Y., Aug. 5, 2008) (where allowance for late grievances was limited to 45 days after
an “alleged occurrence,” and the plaintiff thought the “occurrence” was his surgery and not his knowledge of its
side-effects, he reasonably believed no remedy remained available to him); Sims v. Rewerts, 2008 WL 2224132, *56 (E.D.Mich., May 29, 2008) (declining to dismiss where plaintiff failed to comply with a time limit that had been
changed without notice); Lampkins v. Roberts, 2007 WL 924746, *2-3 (S.D.Ind., Mar. 27, 2007) (refusing to
dismiss for missing a five-day time deadline where it did not appear in the materials made available to prisoners).
842
Williams, 425 F.3d at 176. Indeed, one of the court’s other decisions holds that a prisoner who was deterred from
exhausting timely by threats or other coercion by prison staff might also be justified in having failed to exhaust, or
the court might find that remedies were unavailable to that prisoner, depending on the severity of the circumstances.
Hemphill v. New York, 380 F.3d 680, 690-91 (2d Cir. 2004). Following Hemphill, recent district court decisions
have held that prisoners who did not exhaust because of assaults and/or threats until after they had been transferred
were justified in failing to exhaust timely. Lunney v. Brureton, 2007 WL 1544629, *9-10 (S.D.N.Y., May 29,
2007), objections overruled, 2007 WL 2050301 (S.D.N.Y., July 18, 2007); Thomas v. Cassleberry, 2007 WL
1231485, *2 (W.D.N.Y., Apr. 24, 2007).
843
In Borges v. Piatkowski, 337 F.Supp.2d 424, 427 & n.3 (W.D.N.Y. 2004), the court held that a prisoner who did
not have reason to know he had a medical care claim until he had been transferred to another prison and the 14-day
deadline had long expired had no available remedy, or alternatively was justified by special circumstances in not
exhausting. Accord, Macahilas v. Taylor, 2008 WL 220364, * 4-5 (E.D.Cal., Jan. 25, 2008) (refusing to measure
timeliness from earlier medical visits where prisoner said he did not know the extent of his problem until he was
later hospitalized; relying on Borges), report and recommendation adopted, 2008 WL 506109 (E.D.Cal., Feb. 22,
2008); see Brazil v. Gomez, 2011 WL 7040709, *5 (C.D.Cal., Oct. 28, 2011) (declining to dismiss for nonexhaustion where plaintiff did not grieve an assault timely but tried to grieve it only when he learned of information
withheld by prison authorities that his assailant had a long record of violent attacks), report and recommendation
adopted, 2012 WL 122813 (C.D.Cal., Jan. 13, 2012). In Harbison v. Little, 2007 WL 6887552, *2 (M.D.Tenn., July
19, 2007), without invoking the notion of special circumstances, the court simply rejected the defendants’
interpretation of their time limit, holding that a challenge to the state’s lethal injection protocol was timely based on
the date of its disclosure to plaintiff, rejecting the argument that it the time limit should be measured from the
conclusion of direct review in the underlying criminal case, or the state’s adoption of lethal injection as its means of
execution. But see Harvey v. Jordan, 605 F.3d 681, 684 (9th Cir. 2010) (holding time for filing grievance began to
run when excessive force was used, not later when plaintiff discovered the seriousness of his injury, since he could
have filed based on the use of force incident); Walker v. Bradly, 2010 WL 3037528, *2 (W.D.Mich., July 30, 2010)
(similar to Harvey; court treats question as one of accrual of claim under federal law); Castro-Parra v. Corrections
Corp. of America, 2009 WL 1178710, *6 (D.Ariz., Apr. 30, 2009) (plaintiff failed to exhaust a claim of inadequate
medical treatment when he did not grieve until he learned that his loss of vision was permanent); Lindell v.
O’Donnell, 2005 WL 2740999, *18 (W.D.Wis., Oct. 21, 2005) (upholding finding of untimeliness even though the
prisoner did not have notice of the violation until long after the time limit had passed).
844
Harvey v. Jordan, 605 F.3d 681, 684 (9th Cir. 2010) (where prisoner received favorable grievance decision which
was not carried out, but appeal time limit had passed before non-compliance was apparent, plaintiff exhausted);
Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (holding remedy was unavailable and prisoner’s lack of
timely exhaustion excused where Warden led plaintiff to believe he had to have a particular document to appeal, and
he spent months trying to get it); Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003) (holding remedy
unavailable where prisoner was injured and unable to write during the prescribed time period for filing); Greenup v.
Lee, 2014 WL 471715, *4 (W.D.La., Feb. 5, 2014) (holding remedy unavailable and time limit tolled during period
of physical and mental incapacity); Booker v. South Carolina Dept. of Corrections, 2013 WL 5332993, *7 (D.S.C.,

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the statutory term “available.” Nor did Woodford disturb the holdings of lower courts including
the Second Circuit that under some circumstances prison officials may be estopped from raising
a defense of non-exhaustion.845 However, there are traps here for unwary litigants. Courts have
held that if the obstacle to filing a timely grievance is an inability fully to comply with grievance
rules, the prisoner should file the non-compliant grievance and explain the reason for noncompliance.846 A number of courts have held that under those circumstances, a prisoner should
file a grievance when the obstacle to exhaustion is removed847—e.g., after transfer away from a
threatening situation,848 or after recovery from a disabling medical condition.849 That is, the
Aug. 14, 2013) (declining to dismiss where plaintiff stated without contrary evidence that he timely placed his
grievance in a grievance box as instructed, rather than personally delivering it), report and recommendation adopted
in part, rejected in part on other grounds, 2013 WL 5332915 (D.S.C., Sept. 23, 2013); Ekene v. Cash, 2013 WL
3811725, *4-5 (C.D.Cal., July 19, 2013) (declining to dismiss where plaintiff missed the appeal time limit because
the prison mail room delayed for ten days notifying plaintiff that he had not provided sufficient postage to mail it;
prisoners had no means of knowing the correct postage themselves); Johnson v. Juvera, 2012 WL 4008942, *7
(D.Ariz., Sept. 12, 2012) (holding remedy unavailable where prisoner could not remember events because of his
injuries and could not timely obtain necessary information from officials); Dodson v. Box, 2012 WL 2721914, *3
(N.D.Ind., July 9, 2012) (refusing to grant summary judgment for non-exhaustion where plaintiff’s grievance was
late because of failure to provide forms timely); Lang Vo Tran v. Illinois Dept. of Corrections, 2011 WL 816630,
*2, 7 (S.D.Ill., Mar. 1, 2011) (declining to dismiss where plaintiff submitted appeal timely but for unexplained
reasons it arrived weeks late); see Appendix A for additional authority on this point; see also § IV.G.2, below.
845
See § IV.G.3, below.
846
Dominguez v. Rosas, 2011 WL 8614834, *5 (C.D.Cal., Nov. 3, 2011). But see Nunez v. Duncan, 591 F.3d 1217,
1226 (9th Cir. 2010) (holding remedy was unavailable and untimely grievance was excused where prisoner
reasonably believed he could not appeal without a document it took him months to obtain).
847
Thompson v. Zwikler, 2013 WL 5538882, *5-6 (W.D.Mich., Oct. 8, 2013) (holding plaintiff who was subject to
grievance restriction at his prison should have filed a grievance after transfer to another prison), appeal dismissed,
No. 13-2421 (6th Cir., Nov. 27, 2013); Morales v. Putnam, 2012 WL 2861436, *10 (M.D.Pa., June 7, 2012)
(holding plaintiff who was transferred out of state and could not get grievance forms should have filed an untimely
grievance upon return to home state), report and recommendation adopted, 2012 WL 2861592 (M.D.Pa., July 11,
2012); Tousignant v. Bergman, 2011 WL 2652571, *4 (D.Ariz., June 30, 2011) (holding plaintiff who did not file a
timely grievance because the deadline was past before he developed an infection from his injuries should have filed
an untimely grievance); Wright v. State Correctional Institution at Greene, 2009 WL 2581665, *3 (W.D.Pa., Aug.
20, 2009); Guarino v. Hernandez, 2008 WL 4540417, *4 (S.D.Fla., Oct. 9, 2008) (“The law is clear in this Circuit
that inmates/prisoners must have sought to file out-of-time grievances and/or grievance appeals in order to exhaust
their administrative remedies . . . .”); Mayhew v. Gardner, 2008 WL 4093130, *4-5 (M.D.Tenn., Aug. 22, 2008);
Ory v. McHugh, 2008 WL 2756463, *4 (N.D.Fla., July 14, 2008); see Appendix A for additional authority on this
point.
848
Thomas v. Joslin, 524 Fed.Appx. 107, 110-11 (5th Cir. 2013) (unpublished) (holding prisoner who claimed
obstruction at one prison should have filed a grievance after transfer); Bryant v. Rich, 530 F.3d 1368, 1373 (11th
Cir. 2008) (holding prisoner who said he didn’t grieve for fear of assault should have exhausted after transfer);
Greene v. Rosier, 2013 WL 596314, *8 (S.D.Ga., Jan. 18, 2013), report and recommendation adopted, 2013 WL
596346 (S.D.Ga., Feb. 15, 2013); Gutierrez v. Schult, 2011 WL 5041205, *5 (N.D.N.Y., Sept. 21, 2011) (similar to
Bryant), report and recommendation adopted, 2011 WL 5041293 (N.D.N.Y., Oct. 24, 2011); Champ v. Lafayette,
2011 WL 565648, *3 (M.D.Fla., Feb. 8, 2011) (holding prisoner allegedly threatened at one jail could have
exhausted upon transfer to another one); Jones v. Waiawa Correctional Facility, 2010 WL 2813777, *3 (D.Haw.,
July 15, 2010) (holding prisoner obstructed at one prison should have grieved immediately upon transfer); In re
Bayside Prison Litigation, 2008 WL 2387324, *5 (D.N.J., May 19, 2008); Campbell v. Oklahoma County Detention
Center, 2008 WL 490619, *5 (W.D.Okla., Feb. 21, 2008) (prisoner who alleged threats should have filed a
grievance after transfer); Poole v. Rich, 2007 WL 2238831, *3-4 (S.D.Ga., Aug. 1, 2007) (same as Bryant v. Rich,
supra), aff’d, 312 Fed.Appx. 165 (11th Cir. 2008), cert. denied, 555 U.S. 854 (2008); Langford v. Rich, 2006 WL
1549120, *2 (S.D.Ga., June 1, 2006) (holding a prisoner who complained of threats of retaliation at one prison
should have filed a grievance upon being transferred); Hemingway v. Lantz, 2006 WL 1237010, *2 (D.N.H., May 5,
2006) (holding a prisoner who said he did not grieve for fear of staff retribution should have done so once

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prisoner should file an untimely grievance notwithstanding the holding of Woodford v. Ngo that
an untimely grievance does not satisfy the exhaustion requirement.850 This is the sort of counterintuitive proposition that serves only to victimize unsophisticated litigants, and a number of
courts have rejected it.851 A particularly absurd example of this argument was rejected in
transferred to the “safety” of another state); Patterson v. Goord, 2002 WL 31640585, *1 (S.D.N.Y., Nov. 21, 2002)
(holding allegations of staff threats insufficient to justify late grievance where prisoner failed to submit grievance
promptly upon transfer from prison where he was being threatened).
849
Stamper v. Jordan, 2013 WL 6230311, *3 (M.D.Tenn., Dec. 2, 2013) (holding plaintiff who woke up after
surgery after being assaulted and seriously injured, and who was told the time for exhaustion had expired, should
have filed a grievance anyway; “The law is unambiguous—a prisoner plaintiff's subjective belief that efforts to
exhaust his administrative remedies would be ‘futile’ do not negate the requirement under the PLRA that he do
so.”); Looman v. Montana, 2012 WL 5287949, *5 (D.Mont., Aug. 7, 2012) (stating “where an inmate suffers from
some physical or mental incapacity which prevents the inmate from filing a grievance within a deadline imposed by
the grievance policy, the law of section 1997e(a) requires an inmate to pursue any grievance remedy available under
the policy after any asserted incapacity ends”), report and recommendation adopted, 2012 WL 5287946 (D.Mont.,
Oct. 24, 2012); DeVault v. Maricopa County, 2012 WL 748254, *6 (D.Ariz., Feb. 1, 2012), report and
recommendation adopted, 2012 WL 748371 (D.Ariz., Mar. 7, 2012); Williams v. Ferguson, 2012 WL 33055, *5-6
(E.D.Cal., Jan. 6, 2012); Morales v. Jones, 2011 WL 4396950, *5-6 (N.D.Okla., Sept. 21, 2011) (holding prisoner
who could not grieve timely because he had been injured in a stabbing should have requested an extension of time or
permission to file an untimely grievance); LaBombard v. Burroughs-Biron, 2010 WL 2264973, *4-6 (D.Vt., Apr.
30, 2010) (prisoner who could not grieve while in medical quarantine should have grieved after release; time limits
not discussed), report and recommendation adopted, 2010 WL 2265004 (D.Vt., June 2, 2010); Kennedy v. Lopez,
2010 WL 1444871, *6 (C.D.Cal., Mar. 8, 2010), report and recommendation adopted, 2010 WL 1444873 (C.D.Cal.,
Apr. 8, 2010); Smith v. Dominguez, 2010 WL 597979, *2-3 (N.D.Ind., Feb. 17, 2010); see Appendix A for
additional authority on this point.
850
Some grievance systems do explicitly address this situation by providing, e.g., that “[w]hen a grievance cannot be
filed because of circumstances beyond the inmate's control, the time will begin to start from the date in which such
circumstances cease to exist.” Davitt v. Centric, 2010 WL 2926140, *3 (D.Nev., May 25, 2010) (quoting prison
rules), report and recommendation adopted, 2010 WL 2926135 (D.Nev., July 19, 2010); see Perez v. Watts, 2013
WL 3367321, *4 (E.D.Tex., July 3, 2013) (holding prisoner who was transferred twice before he could file a
grievance should have filed one at his final destination and requested that its lateness be excused), appeal dismissed,
No. 13-40784 (5th Cir., Aug. 12, 2013); Morales v. Putnam, 2012 WL 2861436, *10 (M.D.Pa., June 7, 2012)
(holding remedy cannot be deemed unavailable until grievance officials have denied request for late grievance),
report and recommendation adopted, 2012 WL 2861592 (M.D.Pa., July 11, 2012).
851
Ollison v. Vargo, 2012 WL 5387354, *2-3 (D.Or., Nov. 1, 2012) (holding remedy appeared “effectively
unavailable” to prisoner who filed a grievance untimely because he was mentally and physically incapable of filing
during the prescribed period and the grievance system did not allow late grievances); Peoples v. Corizon Health,
Inc., 2012 WL 1854730, *3 (W.D.Mo., May 21, 2012) (declining to dismiss for non-exhaustion where plaintiff was
incapacitated during the period when a grievance would have been timely without a showing by defendants that a
late grievance would have been accepted); Hunter v. Indiana Dept. of Corrections, 2009 WL 3199170, *4-6
(N.D.Ind., Sept. 29, 2009) (grievance deadline was lengthened but plaintiff did not know of the change; court
declines to hold he should have filed a late grievance); Banks v. Lappin, 2009 WL 2486341, *5 (M.D.Pa., Aug. 10,
2009) (absent controlling precedent, and given evidence that plaintiff’s exhaustion was obstructed by prison
personnel, “the court will not impose this added burden”); Cotton-Schrichte v. Peate, 2008 WL 3200775, *4
(W.D.Mo., Aug. 5, 2008) (prisoner who was raped by a staff member and threatened into silence “was not required
to file a grievance after the threats were removed and outside of the time allowed for filing it, on the hope that an
administrator would exercise discretion and process the grievance. For the court to dismiss a case for failure to
exhaust under these circumstances would be inherently unjust.”); Bellamy v. Mount Vernon Hosp., 2008 WL
3152963, *5 (S.D.N.Y., Aug. 5, 2008) (declining to dismiss where prisoner reasonably believed his claim was timebarred before he had an opportunity to grieve); Rivera v. Management & Training Corp., 2008 WL 2397418, *3
(D.Ariz., June 10, 2008) (holding prisoner who could not initially grieve because he was transferred out of the
prison system was not required to file an untimely grievance when he was returned months later); McManus v.
Schilling, 2008 WL 682577, *8 (E.D.Va., Mar. 7, 2008) (holding prisoner whose appeal deadlines passed because
grievances responses were not delivered to him untimely had no available remedy); Williams v. Hurley, 2007 WL

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Goebert v. Lee County,852 in which the grievance appeal procedure was shown to be unknown to
the prisoners; defendants argued that the plaintiff should have filed a grievance when she learned
of the procedure through discovery in the litigation, three years after the expiration of the fiveday appeal deadline. The court stated that “an administrative remedy that was not discovered,
and which could not have been discovered through reasonable effort, until it was too late for it to
be used is not an ‘available’ remedy.”853
In Woodford, the challenged condition was ongoing, and one would think that the
plaintiff’s grievance was timely insofar as it addressed the current and continuing state of affairs,
as the prisoner argued in filing a second grievance challenging the administrative finding of
untimeliness.854 The majority ignored this issue and the second grievance. A holding that an
ongoing condition can be rendered immune to challenge by a procedural default at some earlier
stage would deny access to courts in the most literal sense. It is therefore probably best to
assume that Woodford simply did not rule on this issue and it remains open.
A number of courts have held, before and after Woodford, that a grievance about an
ongoing complaint was necessarily timely.855 The most thorough examination of this issue is in
1202723, *6 (S.D.Ohio, Apr. 23, 2007) (holding that a prisoner whose cancer was not diagnosed until long after the
14-day grievance deadline had passed had no available remedy; no reference to any provision for filing untimely);
see Sauder v. Green, 2011 WL 3608646, *5 (N.D.Fla., July 25, 2011) (holding prisoner who had been threatened,
and then was transferred, sufficiently alleged unavailable remedies by reporting that he received additional threats
after transfer), report and recommendation adopted, 2011 WL 3607667 (N.D.Fla., Aug. 16, 2011).
852
510 F.3d 1312 (11th Cir. 2007).
853
Goebert, 510 F.3d at 1324. The court added that exhaustion is to be assessed at the time the complaint is filed,
and stated that a remedy “that is unavailable until after the lawsuit is filed is not an available remedy,” id., leaving
open the possibility that if the plaintiff had learned of the remedy at any time before suit was filed, the court might
have expected her to use it.
854
Woodford, 548 U.S. at 120-21 (dissenting opinion).
855
See Vaster v. Hudgins, 2014 WL 584015, *5 (E.D.Wash., Feb. 13, 2014) (holding claim of retaliation by
dismissing prisoner from a job and refusing to reinstate him was ongoing while he was not reinstated); Ali v. Reilly,
2014 WL 61131, *4 (D.N.H., Jan. 8, 2014) (noting that ongoing issue could be grieved again notwithstanding
dismissal for non-exhaustion); Wray v. Oregon Dept. of Corrections, 2013 WL 3479477, *12 (D.Or., July 8, 2013)
(same as Ali v. Reilly); Mitchell v. Cate, 2013 WL 635964, *9-10 (E.D.Cal., Feb. 20, 2013) (noting that ongoing
condition could be grieved at any time while it persisted under state’s rules), report and recommendation adopted,
2013 WL 1625390 (E.D.Cal., Apr. 15, 2013); Cullen v. Pennsylvania Dept. of Corrections, 2012 WL 6015724, *8
(W.D.Pa., May 29, 2012) (holding “the leaky roof was of the continuing event variety, and plaintiff's grievance must
be deemed timely”), report and recommendation adopted in part, rejected in part on other grounds, 2012 WL
6015721 (W.D.Pa., Dec. 3, 2012); Workman v. Reinke, 2011 WL 4431748, *4 (D.Idaho, Sept. 22, 2011) (holding
complaint about six-year-old ongoing garnishment of prison account was timely at least as to the most recent
withholding); Soto v. Arpaio, 2010 WL 4116558, *5 (D.Ariz., Oct. 18, 2010) (holding that a grievance about failure
to provide mental health care exhausted the seven-month course of delay in treatment); Ellis v. Schwarzenegger,
2010 WL 715721, *2 (E.D.Cal.. Feb. 26, 2010) (stating in dictum that claim of ongoing violation would be timely
despite time limit); Parisi v. Arpaio, 2009 WL 4051077, *3 (D.Ariz., Nov. 20, 2009) (“. . . [T]he Court finds that no
specific date would be required if Plaintiff is complaining about a policy that would affect him on a daily basis;
therefore, the Court rejects Defendant's argument that the grievance was outside the time frame.”); Hudson v.
Radtke, 2009 WL 1597259, *4 (W.D.Wis., June 5, 2009) (holding grievance about confiscated books was timely
where the books were still being withheld at the time of the grievance); Perez v. Woodard, 2009 WL 838485, *3
(E.D.Tex., Mar. 27, 2009) (dismissing for non-exhaustion without prejudice because prisoner’s complaint was
ongoing; court assumes he could grieve again); Velez v. Guldan, 2008 WL 4443269, *8 (N.D.N.Y., Sept. 26, 2008)
(complaint about delay in dental care was not untimely because filed after plaintiff began to receive care); Hagopian
v. Smith, 2008 WL 3539251, *4 (E.D.Mich., Jan. 31, 2008), report and recommendation adopted as modified on
other grounds, 2008 WL 3539256 (E.D.Mich., Aug. 12, 2008); Rollins v. Magnusson, 2007 WL 2302141, *5
(D.Me., Aug. 9, 2007) (declining to credit dismissal as untimely, since the plaintiff was “clearly grieving the

191

a Michigan decision which held that a complaint about the treatment of a chronic medical
condition was “‘ongoing,’ and a grievance that identifies the persistent failure to address that
condition must be considered timely as long as the prison officials retain the power to do
something about it.”856 The court rejected the analogy to Johnson v. Johnson,857 which held that
a prisoner complaining of a series of sexual assaults could only sue about those that had occurred
within the period encompassed by the grievance time limit. Distinguishing Johnson as
addressing a series of discrete events, the Ellis court instead analogized to the treatment of
complaints about chronic medical problems as “continuing violations” for limitations
purposes.858 Other kinds of violations, of course, may be deemed to be discrete events as in
Johnson, with the timeliness of each assessed separately.859

continued confiscation of his legal material”) (emphasis supplied); Holloway v. Correctional Medical Services, 2007
WL 1445701, *5 (E.D.Mo., May 11, 2007) (holding grievance timely since plaintiff was grieving “the continual
denial of information and treatment” that “continued to occur” when he filed his grievance and afterward);
Abuhoran v. Morrison, 2005 WL 2140537, *6 (E.D.Pa., Sept. 1, 2005) (noting that finding of procedural default did
not prevent plaintiffs from filing a new grievance challenging ongoing policy “at any time”); see also Parker v.
Troutt, 2012 WL 2571322, *7-8 (W.D.Okla., May 31, 2012) (holding officials may have made remedy unavailable
for ongoing grievance by instructing prisoner not to resubmit on grounds that it was untimely), report and
recommendation adopted, 2012 WL 2571087 (W.D.Okla., July 2, 2012); Johnson v. Killian, 2009 WL 1787724, *1
(S.D.N.Y., June 23, 2009) (prior dismissals for non-exhaustion did not preclude prisoners from filing “timely
grievances related to any ongoing conduct” and filing a new action); Richardson v. Raemisch, 2008 WL 5377872,
*4 (W.D.Wis., Dec. 23, 2008) (where prisoner’s previous grievances were procedurally inadequate, those
complaints did not necessarily bar a new grievance about an ongoing problem); Wilkerson v. Beitzel, 2005 WL
5280675, *3 n.4 (D.Md., Nov. 10, 2005) (holding plaintiff had exhausted, notwithstanding dismissal under rule that
any complaint concerning a prison policy must be raised within 30 days of arrival at the prison, regardless of
whether complaint is ongoing; court says policy “borders on sophistry”), aff’d, 184 Fed.Appx. 316 (4th Cir. 2006).
Cf. Barker v. Belleque, 2011 WL 285228, *4 (D.Or., Jan. 26, 2011) (where prisoner said he had been constipated for
6½ weeks, timeliness of grievance should have been measured from more recent failures to respond to his medical
care requests).
856
Ellis v. Vadlamudi, 568 F.Supp.2d 778, 784 (E.D.Mich. 2008); accord, McAdory v. Engelsgjerd, 2010 WL
1131484, *4 (E.D.Mich., Feb. 11, 2010) (following Ellis; in cases involving treatment of chronic conditions, “prison
officials may not parse for timeliness each individual treatment decision”), report and recommendation adopted,
2010 WL 1132548 (E.D.Mich., Mar. 23, 2010). By similar reasoning, a complaint about an ongoing violation
ceases to be timely when the violation stops and it is no longer possible for prison officials to do anything about it.
See Gruenberg v. Schneiter, 2011 WL 4729785, *3 (E.D.Wis., Oct. 5, 2011) (holding complaint about lack of
exercise in segregation and its cumulative effect was untimely when filed only after plaintiff was transferred and no
longer lacked exercise opportunity). But see Jones v. Kakani, 2012 WL 4450290, *6 (E.D.Mich., June 8, 2012)
(holding plaintiff with ongoing problem whose complaint was based on a single medical procedure was not entitled
to benefit of Ellis v. Vadlamudi holding), report and recommendation adopted, 2012 WL 4450149 (E.D.Mich., Sept.
25, 2012); Gara v. Kelley, 2012 WL 3683556, *4 (S.D.Ill., Aug. 24, 2012) (holding medical care complaint was not
a continuing violation as to defendant who treated plaintiff for three or four days at the beginning of events).
Compare O'Neal v. Correctional Medical Services Inc., 2011 WL 7769343, *5 (E.D.Ark., Dec. 1, 2011) (holding
time for grievance about botched surgery began to run at the point defendants had told plaintiff healing should be
complete, and obviously was not).
857
385 F.3d 503, 519 (5th Cir. 2004); accord, Ketzner v. Douglas, 2009 WL 1655004, *12-13 (E.D.Mich., June 11,
2009).
858
Ellis, 568 F.Supp. at 785; accord, Wojtaszek v. Litherland, 2011 WL 4499692, *3 (S.D.Ill., Sept. 27, 2011)
(grievance about course of denial of dental treatment was timely where the final incident was within the grievance
time limit); Jones v. Caruso, 2008 WL 4534085, *7 (W.D.Mich., Sept. 2, 2008) (claim of ongoing exposure to
second-hand smoke was not limited by “date of incident” on grievance; citing Ellis), report and recommendation
adopted in part, rejected in part on other grounds, 2008 WL 4534081 (W.D.Mich., Sept. 29, 2008); see Thomas v.
Ulep, 2011 WL 864311, *4 (E.D.Va., Mar. 9, 2011) (suggesting grievance timeliness could not be measured from a

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A few decisions have rejected any allowance for ongoing violations in applying
grievance time limits.860 One has split the difference by holding that the prisoner must have

date before plaintiff learned of his medical treatment-related injury, though he had complained of the underlying
problem earlier).
859
See Siggers v. Campbell, 652 F.3d 681, 693 (6th Cir. 2011) (distinguishing Johnson v. Johnson as involving a
“single government failure,” while this case involved several instances of interference with mail based on different
prison rules); McCollum v. California Dept. of Corrections and Rehabilitation, 647 F.3d 870, 877 (9 th Cir. 2011)
(complaint of lack of chaplaincy services in hospital did not exhaust subsequent complaints about these services
where plaintiffs never cited repeated denials in a grievance); Ramirez v. Guterrez, 2014 WL 297373, *1-2
(S.D.Tex., Jan. 27, 2014) (holding ongoing pain from a discrete instance of dental malfeasance did not result in an
ongoing condition allowing the plaintiff to grieve the injury more than a year later); Bean v. Tribley, 2013 WL
3755768, *2 (W.D.Mich., July 16, 2013) (holding incidents of malfeasance with respect to meal service were
discrete events that could not be exhausted by an earlier grievance); Bailey v. Hobbs, 2012 WL 3038856, *5
(E.D.Ark., July 25, 2012) (holding reviews of administrative segregation were separate and discrete, and plaintiff
could not rely on later grievances to exhaust as to earlier reviews).
In Moreno v. Cortez-Masto, 2012 WL 553133, *5 (D.Nev., Jan. 19, 2012), report and recommendation
adopted, 2012 WL 553128 (D.Nev., Feb. 17, 2012), the plaintiff was denied protective custody in 2006 and 2007,
and in 2009 was raped. The court held that his timely grievance about the rape was sufficient and it was not
necessary for him to have grieved the denials of PC at the time; “the focus of Plaintiff's claim is on Defendants'
deliberate indifference to a serious threat to his safety, starting in 2006, which culminated in the 2009 rape.” Id.
860
See Kimbro v. Huffman, 2013 WL 5936974, *5 (N.D.Cal., Nov. 4, 2013) (“A prisoner may not rely on a
continuing-violation theory to extend [the] deadline.”); Taylor v. Hubbard, 2013 WL 4776504, *7 (E.D.Cal., Sept. 4,
2013) (holding grievance untimely where it challenged regulations adopted ten months previously); Riego v.
Carroll, 893 F.Supp.2d 674, 679 (D.Del. 2012) (holding grievance about asbestos, mold, and other conditions was
untimely where plaintiff had been living in the unit for over two years); Payne v. Turley, 2012 WL 4024598, *4
(D.Utah, Sept. 12, 2012) (holding grievance about deprivation of religious visits time-barred though the deprivation
was ongoing); Garcia v. Lamarque, 2011 WL 3516144, *4 (N.D.Cal., Aug. 11, 2011) (stating time limit runs from
“the event or decision that [was] the subject of his complaint,” not “the time at which the prisoner felt the effects of
the event or discovered that he may have a viable legal claim”); Muwwakkil v. Johnson, 2010 WL 3585983, *3
(W.D.Va., Sept. 13, 2010) (holding grievance about policy change untimely measured from commencement of
change; no discussion of ongoing nature of problem), aff’d, 407 Fed.Appx. 685 (4th Cir. 2011) (unpublished);
Andrade v. Maloney, 2006 WL 2381429, *6 (D.Mass., Aug. 16, 2006) (“I will not toll the filing deadline because
the generalized complaint was somehow a continuing violation. To do so ‘would undermine the very purpose of the
deadline, which is to limit the time to file a claim.’ . . . It would also be inconsistent with the policy judgments
underlying the Supreme Court’s decision in [Woodford v.] Ngo.”) (citation omitted); Wallace v. Burbury, 2003 WL
21302947, *5 (N.D.Ohio, June 5, 2003) (declining to extend a 14-day deadline to reflect the five days of Passover
when the grievant was religiously prohibited from working; declining to treat religious infringement as a continuing
violation extending through Passover).
In some cases, the refusal to acknowledge ongoing violations is problematical because of the difficulty in
deciding when the time limit should be deemed to begin running. Thus, a prisoner su
who said he had been promised a motion for sentence reduction in return for his cooperation with an investigation of
staff corruption was held to have failed to exhaust because he did not file a grievance within 20 days of the time the
defendants’ inaction became “manifest.” Johnson v. Townsend, 2007 WL 2407267, *3 (E.D.Ky., Aug. 20, 2007).
The court did not explain how a prisoner is supposed to know when prosecutorial inaction is “manifest.” Similarly,
in Payne v. Turley, 2012 WL 4024598, *4 (D.Utah, Sept. 12, 2012), the court held that the seven-day grievance time
limit should be measured from “immediately after not hearing from Feland the second time.” When exactly was the
plaintiff to know that he would not hear from this individual? See also Kendrick v. Shaw, 2010 WL 3732085, *2
(N.D.Ill., Sept. 17, 2010) (holding prisoner who had been waiting for dental care for two years when he grieved did
not exhaust timely); Hoye v. Nelson, 2007 WL 5062014, *7 (W.D.Mich., Oct. 18, 2007) (holding timeliness for a
medical grievance must be measured from date of denial of care, not beginning of medical problem, if there is a
deadline measured in days), report and recommendation adopted in part and remanded on other grounds, 2008 WL
907453 (W.D.Mich., Mar. 28, 2008). Cf. McNeil v. Howard, 348 Fed.Appx. 409, 412 (10th Cir. 2009) (holding
grievance time limit runs from the beginning of a problem and not its end, so officials will have an opportunity to do

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requested relief from the condition, and been denied, within the relevant grievance deadline
period.861
Some grievance systems build in discretion to waive time limits; for example, the New
York State grievance system permits late grievances for “mitigating circumstances,” 862 which
include “e.g., attempts to resolve informally by the inmate,” etc.863 Several courts have held that
a prisoner may not rely on the existence of such discretion as an excuse for grieving untimely, or
otherwise pursue a claim for which the plaintiff missed the grievance deadline, without actually
having sought such a waiver.864 (Similarly, if there is an avenue of appeal or review of a
something about it; not addressing whether a problem can be treated as ongoing), cert. denied, 559 U.S. 1075
(2010).
861
Hart v. Baldwin, 2009 WL 3055304, *16 (N.D.Iowa, Sept. 21, 2009) (“The court believes that prisoners are
entitled to reset the applicable thirty day deadline with such a request. To find otherwise would, in effect, make the
thirty day deadline into a thirty day statute of limitations. . . .”), aff’d, 372 Fed.Appx. 684 (8th Cir. 2010). Cf.
Barker v. Belleque, 2011 WL 285228, *4 (D.Or., Jan. 26, 2011) (holding timeliness of grievance should not have
been assessed in relation to onset of medical condition but from denials of care within the grievance deadline
period).
862
Graham v. Perez, 121 F.Supp.2d 317, 322 (S.D.N.Y. 2000) (quoting 7 N.Y.C.R.R. § 701.7(a)(1)). The current
version of this provision appears in Appendix D, New York State Dep’t of Correctional Services Directive 4040,
Inmate Grievance Program at § 701.6(g)(1)(i)(a) (July 1, 2006); see also Appendices E and F (earlier versions). In
this most recent revision, exceptions for mitigating circumstances must be requested no more than 45 days after an
“alleged occurrence.” Where a plaintiff misses the 45-day deadline for reasons that would otherwise excuse nonexhaustion, the remedy may be deemed unavailable. See Mandell v. Goord, 2009 WL 3123029, *11 (N.D.N.Y.,
Sept. 29, 2009) (plaintiff did not exhaust timely because of intimidation, and by the time he had been transferred to
another prison the 45 days had expired); Bellamy v. Mount Vernon Hosp., 2008 WL 3152963, *5 (S.D.N.Y., Aug.
5, 2008) (allowing unexhausted grievance to go forward where ambiguity of “alleged occurrence” where allowance
for late grievances was limited to 45 days after an “alleged occurrence,” and the plaintiff thought the “occurrence”
was his surgery and not his knowledge of its side-effects, he reasonably believed no remedy remained available to
him).
863
7 N.Y.C.R.R. § 701.7(a)(1); Appendix D at § 701.6(g)(1)(i)(a).
864
Wallace v. Miller, 544 Fed.Appx. 40, 42 (3d Cir. 2013) (unpublished) (holding that remedy was not unavailable
to prisoner whose grievance was untimely where the system provided options for an extension or for resubmission
with explanation of the reason for delay); Patel v. Fleming, 415 F.3d 1105, 1110-11 (10th Cir. 2005) (holding that
the existence of provisions for time extensions did not save the untimely grievance of a prisoner who never sought
one); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.) (same as Patel), cert. denied, 537 U.S. 949 (2002);
Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (holding that a prisoner whose grievance was dismissed as
untimely was obliged to appeal, since the system provided for waiver of time limits for “good cause”); Whitmore v.
Jones, 2012 WL 4383888, *4 (W.D.Okla., July 16, 2012) (holding prisoner whose lateness in grieving was caused
by staff delay failed to exhaust because he did not ask for an extension of time), report and recommendation
adopted, 2012 WL 4378129 (W.D.Okla., Sept. 25, 2012), aff’d, 525 Fed.Appx. 865 (10th Cir. 2013); Porter v.
Howard, 2012 WL 3263789, *6 (E.D.Mich., Jan. 6, 2012) (holding prisoner whose grievance was untimely, but who
said he mailed it timely, “failed to provide any circumstance beyond his control as required by the prison's policy”),
report and recommendation adopted, 2012 WL 3263778 (E.D.Mich., Aug. 9, 2012); Tafari v. Stein, 2008 WL
1991039, *6 (W.D.N.Y., May 5, 2008), reconsideration denied, 2008 WL 3852150 (W.D.N.Y., Aug. 15, 2008);
Cordova v. Frank, 2007 WL 2188587, * 6 (W.D.Wis., July 26, 2007) (holding that a prisoner who clearly had good
cause for his late grievance failed to exhaust because he didn’t explain the reason so officials could consider whether
to excuse his lateness); Soto v. Belcher, 339 F.Supp.2d 592, 596 (S.D.N.Y. 2004) (holding that a prisoner who
learned of his problem after the deadline passed should have sought to file a late grievance); Kaiser v. Bailey, 2003
WL 21500339, *6 (D.N.J., July 1, 2003) (holding that a prisoner who did not follow instructions to obtain
verification that untimeliness was not his fault failed to exhaust); Roa v. Fowler, 2003 WL 21383264 (W.D.N.Y.,
Apr. 16, 2003); Steele v. New York State Dept. of Correctional Services, 2000 WL 777931 (S.D.N.Y., June 19,
2000), motion to vacate denied, 2000 WL 1731337 (S.D.N.Y., Nov. 21, 2000); see Whitener v. Buss, 268 Fed.Appx.
477, 478-79 (7th Cir. 2008) (dismissing claim of prisoner who missed a 48-hour grievance deadline because he
needed the relevant officers’ names and it took a week to get them, and he didn’t ask for waiver of the time limit).

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decision that a grievance is untimely, prisoners are obliged to use it to exhaust. 865) However, if
the grievance body decides an arguably out-of-time grievance, the court may construe the
decision as granting the waiver.866 The next question is whether the court is bound by prison
personnel’s disposition of such a request, and it is unsettled, as are other questions of courts’
ability to review prison officials’ application of their own procedures. One New York district
court has held that since exhaustion is not jurisdictional, the court will decide whether late
exhaustion is excused by mitigating circumstances such as transfer to another facility or the
unavailability of grievance representatives to prisoners in a segregated unit.867 That approach is
consistent with the Second Circuit’s observation, in finding a prisoner’s explanation for his late
grievance inadequate, that “[w]e therefore do not find Williams’ justification persuasive”868—
implying that being persuaded of it could have made a difference in the outcome.
When a claim is dismissed for non-exhaustion, the deadline for administrative
proceedings will almost always have passed.869 As noted, the Second Circuit has held that where
Contra, Ricketts v. AW of UNICOR, 2009 WL 2232467, *12 (M.D.Pa., July 24, 2009) (declining to dismiss for
non-exhaustion where plaintiff, who did not seek an extension of time, had suffered catastrophic injuries and had
included in his grievance the circumstances that would make clear the need for an extension).
865
White v. California Dept. of Corrections and Rehabilitation, 2011 WL 1404935, *3 (E.D.Cal., Apr. 13, 2011).
866
See Smith v. Haag, 2011 WL 6012606, *5 (W.D.N.Y., Dec. 1, 2011) (rejecting argument that only conduct
within the 21 days provided by the grievance deadline was exhausted, since grievance body decided merits of
complaint of maltreatment going back more than a year). Many courts have reached the same result more simply by
holding that a decision on the merits waives untimeliness, without reference to other rules for untimely grievances.
See n. 879, below.
867
Graham, id. at 322 and n. 9; see O’Connor v. Featherston, 2002 WL 818085, *2 (S.D.N.Y., Apr. 29, 2002)
(refusing to be bound by rejection of request to file a late grievance where the plaintiff had been kept in medical
restriction for the 14 days in which he was required to file a timely grievance); Cardona v. Winn, 170 F.Supp.2d 131
(D.Mass. 2001) (holding that the grievance appeal deadline should be extended because the prisoner may have
missed it out of “excusable confusion”); see also Lawyer v. Gatto, 2007 WL 549440, *7 (S.D.N.Y., Feb. 21, 2007)
(holding that grievance supervisor’s rejection of claimed mitigating circumstances rendered the remedy unavailable,
where earlier grievances had disappeared); Moore v. Louisiana Dept. of Public Safety and Corrections, 2002 WL
1791996, *4 (E.D.La., Aug. 5, 2002) (declining to enforce 30-day time limit; declaring 30-day delay in filing
complaint “not unreasonable” given that the plaintiff was a juvenile in state custody). But see Davis v. Rhoomes,
2009 WL 415628, *4, 6 (S.D.N.Y., Feb. 12, 2009) (treating administrative rejection of mitigating circumstances as
conclusive); Cole v. Miraflor, 2006 WL 457817, *4 (S.D.N.Y., Feb. 23, 2006) (stating that prison officials’
determination regarding mitigating circumstances “is conclusive on the issue of exhaustion”); Patterson v. Goord,
2002 WL 31640585, *1 (S.D.N.Y., Nov. 21, 2002) (refusing to disturb finding of no mitigating circumstances where
prisoner had waited six months after dismissal for non-exhaustion before filing a grievance); see also nn. 805-813,
837, above.
868
Williams v. Comstock, 425 F.3d 175, 176 (2d Cir. 2005) (per curiam) (emphasis supplied) (noting that the
plaintiff’s grievance was two years late, and his explanation addressed only a short part of that time); accord,
Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (holding district court should have determined whether
plaintiff’s grievance fell into an exception to the time limits, even though state officials had rejected it as untimely);
Newman v. Duncan, 2007 WL 2847304, *3-4 (N.D.N.Y., Sept. 26, 2007) (upholding rejection of mitigating
circumstances argument based on transfers, since the grievance program is available at all prisons, and since the
plaintiff had a year without transfers before filing a grievance; holding mental and emotional effects of sexual
assaults do not fall under Second Circuit’s “special circumstances” rule).
869
See Rohn v. Beard, 2007 WL 4454417, *2 (W.D.Pa., Dec. 17, 2007) (dismissing where grievance filed after prior
dismissal was rejected as untimely), aff’d, 268 Fed.Appx. 190 (3d Cir. 2008) (unpublished), cert. denied, 555 U.S.
861 (2008); Mingilton v. Wright, 2007 WL 1732388, *1-2 (N.D.Tex., June 14, 2007) (dismissing plaintiff’s claim
that his cellmate threw boiling water mixed with cleaning fluid in his face, since his attempt to exhaust after prior
dismissal was rejected as untimely); Regan v. Frank, 2007 WL 106537, *4-5 (D. Haw., Jan. 9, 2007) (same), motion
for relief from judgment denied, 2008 WL 508067 (D.Haw., Feb. 26, 2008)

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a failure to exhaust or to exhaust correctly was justified by special circumstances, the claim
should be dismissed without prejudice if remedies remain available, but if not, the case should go
forward (and if the case is dismissed and then remedies prove unavailable, it should be
reinstated).870 That is, if the system will not entertain the plaintiff’s late grievance, the plaintiff
need not exhaust. (The extent to which this special circumstances rule survives Woodford v. Ngo
is, as stated, unclear.) The Seventh Circuit has adopted a similar rule.871 It is also unclear how
readily prison systems will accept post-dismissal grievances under discretionary provisions for
late filings. In New York, “referral back to the IGP from the courts” was once listed as an
example of a “mitigating circumstance” justifying late filing, but that language was removed in a
2003 amendment.872 Some decisions, however, have simply directed that grievance officials
consider grievances on their merits after dismissal for non-exhaustion.873
The doctrine of equitable tolling, which several courts have held generally applicable to §
1997e(a),874 may excuse late grievance filings under some circumstances (though at least one
court has said that equitable tolling is inapplicable to prison grievance procedures 875). In
Gambina v. Dever,876 a prisoner had filed a grievance and been told that it had been referred to
“the appropriate investigative authority,” at a time when his claim was not required to be grieved
under that Circuit’s law. After the law changed in response to the Supreme Court decision in
Booth v. Churner, and his case was dismissed for non-exhaustion, he promptly filed a new
grievance, which was dismissed as untimely. The court held that the plaintiff, who “promptly
and consistently made good faith efforts” to pursue his claims and was victimized by
extraordinary circumstances, should have the benefit of equitable tolling, with the deadline for
filing a grievance extended to 20 days (the grievance time limit) after he received the court’s
decision dismissing his case.877 A similar equitable approach has been applied by one New York
court to cases in which the defendants initially did not raise exhaustion in light of the case law at
that time, then raised it after the Supreme Court decision in Porter v. Nussle. The court held that

870

Brownell v. Krom, 446 F.3d 305, 313 (2d Cir. 2006); Giano v. Goord, 380 F.3d 670, 679-80 (2d Cir. 2004);
Hemphill v. New York, 380 F.3d 680, 690-91 (2d Cir. 2004).
871
See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (stating when “the failure to exhaust was innocent (as
where prison officials prevent a prisoner from exhausting his remedies), . . . he must be given another chance to
exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's
not just being given a runaround). . . .”), cert. denied, 556 U.S. 1128 (2009).
872
7 N.Y.C.R.R. § 701.7(a)(1); Appendix D at § 701.6(g)(1)(i)(a) (current version); see Appendices E and F (prior
versions); Rivera v. Goord, 253 F.Supp.2d 753, 753 n.12 (S.D.N.Y. 2003) (quoting an earlier version of regulation).
In Brownell v. Krom, 446 F.3d 305 (2d Cir. 2006), a prisoner attempted to exhaust his claim after dismissal for nonexhaustion in the district court, but his grievance was dismissed as untimely, despite facts that led the Second Circuit
to find special circumstances justifying his initial failure to exhaust correctly.
873
See cases cited in nn. 266-271, above.
874
See nn. 202, above, and 1156-1157, below.
875
Diaz v. Rutter, 2007 WL 2683532, *7 (W.D.Mich., Sept. 7, 2007) (holding equitable tolling applies to statutes of
limitations but not grievance proceedings).
876
2006 WL 894900 (D.Colo., Mar. 31, 2006).
877
2006 WL 894900, *3-4; see Kelley v. DeMasi, 2008 WL 4298475, *4 (E.D.Mich., Sept. 18, 2008) (tolling the
grievance deadline where prisoner was ill and hospitalized during the relevant time period); Anthony v. Gilman,
2008 WL 115531, *2 (W.D.Mich., Jan. 10, 2008) (applying equitable tolling to grievance deadline, but ruling
against prisoner on the merits).

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relieving the defendants of their procedural waiver of the exhaustion defense was conditioned on
defendants’ permitting the plaintiff to exhaust late.878
Even under a rule of strict compliance, untimely filing can be waived in the
administrative process: a late filing that the system accepts and resolves on the merits satisfies
the exhaustion requirement.879 Results are mixed in cases where a decision addresses both
timeliness and the merits,880 and in cases found untimely and addressed on the merits at different
stages of the process.881 Rules that are not made known to the prisoners cannot be enforced to
bar their suits,882 a principle that should apply to time limits as well as other rules.
878

Rivera v. Goord, 253 F.Supp.2d 735, 753 (S.D.N.Y. 2003) (“In other words, DOCS cannot have it both ways.”).
After dismissal, Mr. Rivera sought to exhaust, but his grievances were rejected as untimely. The court held that
defendants were estopped from raising exhaustion under those circumstances and that the plaintiff showed special
circumstances justifying his failure to exhaust. Rivera v. Pataki, 2005 WL 407710, *11-13 (S.D.N.Y., Feb. 7, 2005)
(noting that “Rivera did the best he could to follow DOCS regulations while responding to an evolving legal
framework”). Contra, Robertson v. Vandt, 2008 WL 752589, *8 (E.D.Cal., Mar. 19, 2008) (dismissing for nonexhaustion in situation like Rivera where prisoner’s grievance filed after change in law was dismissed as untimely).
879
Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011); Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004), cert.
denied, 544 U.S. 904 (2005); Ross v. County of Bernalillo, 365 F.3d at 1186; Pozo v. McCaughtry, 286 F.3d at
1025; Harris v. Arias, 2013 WL 5777027, *8 (E.D.Pa., Oct. 25, 2013) (holding two-year-old grievance exhausted
where plaintiff received a final decision stating his medical care had been “reasonable and appropriate”); Lopez v.
Swift, 2013 WL 4718972, *5 (E.D.Wash., Sept. 3, 2013); Zedeno v. Macias, 2013 WL 4525403, *3 (D.Idaho, Aug.
26, 2013); Bredbenner v. Malloy, 925 F.Supp.2d 649, 658-59 (D.Del., Feb. 20, 2013); Jewkes v. Shackleton, 2012
WL 3028054, *4 (D.Colo., July 23, 2012); Rothman v. Lombardi, 2012 WL 639713, *3 (E.D.Mo., Feb. 27, 2012);
Smith v. Haag, 2011 WL 6012606, *5 (W.D.N.Y., Dec. 1, 2011) (rejecting argument that only conduct within the 21
days provided by the grievance deadline was exhausted, since grievance body decided merits of complaint of
maltreatment going back more than a year); see Appendix A for additional authority on this point; see Martin v.
Loadholt, 2013 WL 1127607, *4-5 & n.5 (E.D.Cal., Mar. 18, 2013) (holding decision on the merits of a late
grievance constitutes estoppel, not waiver by defendants, since waiver is the intentional relinquishment of a known
right), report and recommendation adopted, 2013 WL 1800296 (E.D.Cal., Apr. 29, 2013).
In Jewkes v. Shackleton, 2012 WL 5332197 (D.Colo., Oct. 29, 2012), the court held timeliness had been
forfeited by the grievance body, and that the individual employee defendant was bound by that forfeiture because
the exhaustion requirement is designed to serve certain institutional purposes, and the grievance system at issue did
not give individual employees a role in controlling the disposition of grievances. Jewkes, 2012 WL 5332197, *4-5.
880
Conyers v. Abitz, 416 F.3d 580, 585 (7th Cir. 2005) (holding claim exhausted where grievance was “principally
rejected on the merits with an ambiguous secondary observation that it was untimely”). In Conyers, the court in
dictum said that a claim “may” be procedurally barred if the grievance was rejected both on the merits and for
untimeliness. Accord, Cobb v. Berghuis, 2007 WL 4557856, *1 (W.D.Mich., Dec. 21, 2007); see Scott v. Ambani,
2008 WL 597833, *2 (E.D.Mich., Feb, 29, 2008) (untimeliness was not waived where the merits were decided only
at intermediate stages), aff’d in pertinent part, 577 F.3d 642 (6th Cir. 2009). But see Bugge v. Roberts, 430
Fed.Appx. 753, 756 (11th Cir. 2011) (unpublished) (where grievance body accepted a late informal grievance and
decided the merits, and formal grievance was timely with respect to that decision, rejection of latter as late was
erroneous); Kelley v. DeMasi, 2008 WL 4298475, *4 n.10 (E.D.Mich., Sept. 18, 2008) (final grievance appeal
response citing untimeliness but also approving merits decisions at earlier stages waived timeliness issue); Cole v.
Litscher, 343 F.Supp.2d 733, 741 (W.D.Wis. 2004) (holding that a grievance rejected on both grounds suffices to
exhaust, since when the grievance process rules on an issue, the purpose of the exhaustion requirement is satisfied;
the habeas rule is different because the purpose of habeas exhaustion is different), reconsideration denied, 2005 WL
318819 (W.D.Wis., Feb. 1, 2005).
One court has held that untimeliness was waived by prison officials where the grievance decision was not
on the merits but on a different procedural ground (that the issue raised was disciplinary and therefore not
grievable). Maraglia v. Maloney, 2006 WL 3741927, *7 (D.Mass., Dec. 18, 2006).
881
Compare Escobedo v. Miller, 2009 WL 2605260, *5 (C.D.Ill., Aug. 25, 2009) (where the grievance was decided
on its merits though untimely at the initial stage, and then dismissed as untimely on appeal even though the appeal
was timely, the dismissal was improper and plaintiff had exhausted) with Rogers v. Caruso, 2013 WL 1339684, *3

197

If a grievance system has no time limit, delay in filing cannot bar a prisoner’s claim for
non-exhaustion;883 an unexhausted claim should be dismissed without prejudice, and the litigant
will have the opportunity to seek to exhaust.884
F.

What Procedures Must Be Exhausted?

The PLRA requires the exhaustion of “such administrative remedies as are available.”885
There is no particular degree of formality required of a grievance system; if it’s there and will
address the prisoner’s problem, it must be exhausted.886 Courts have, however, declined to
require exhaustion of processes that do not appear organized or empowered to provide actual
solutions to individual prisoners’ complaints; though they may be available, in effect, they are
not remedies. Thus, one court has held that a process that has no authority over anything except
to “‘make recommendations for change’ to administrative officials” need not be exhausted
because that is not the type of “responsive action” envisioned in Booth.887 Another has held that
a prison transportation corporation failed to demonstrate an available remedy when its staff could
give no coherent account of the processing of prisoner complaints by the company, and failed to
(W.D.Mich., Mar. 29, 2013) (holding grievance accepted at lower level but rejected as untimely at higher level did
not exhaust), appeal dismissed, No. 13-1544 (6th Cir., Oct. 31, 2013); Gara v. Kelley, 2012 WL 3683556, *4
(S.D.Ill., Aug. 24, 2012) (same). See also Everett v. Ngu, 473 Fed.Appx. 511, 513 (7th Cir. 2012) (holding that an
untimely grievance decided on the merits did not exhaust where the plaintiff did not disclose how long he had
actually had the basis for it; grievance personnel did not have fair notice of its lateness); Barnes v. Briley, 420 F.3d
673, 679 (7th Cir. 2005) (holding claim was not procedurally defaulted where an initial grievance was rejected as
untimely but plaintiff later “restarted” the grievance process and received a decision on the merits); Cruz v. Tilton,
2009 WL 3126518, *3 n.3 (E.D.Cal., Sept. 24, 2009) (holding merits decision does not “automatically” waive
timeliness defense; citing EEOC law but not PLRA law).
882
See cases cited in n. 766, above. See also Greenup v. Lee, 2014 WL 471715, *5-6 (W.D.La., Feb. 5, 2014)
(declining to hold prisoner to departmental grievance policy time limits where prison warden had “implemented his
own grievance procedures” which had no time limit other than “reasonable”); Ramsey v. Rowe, 2014 WL 232269,
*2 (D.Ariz., Jan. 22, 2014) (holding 30-day period for final grievance decision must be calculated from date of
submission, not date of receipt, since the prisoner has no way to know the date of receipt).
883
Zedeno v. Macias, 2013 WL 4525403, *3 (D.Idaho, Aug. 26, 2013) (“If inmates must follow the grievance
procedure, so must jail officials. The Court will not require that an inmate submit a grievance within a specific
amount of time when the plain language of the jail's own grievance policy does not. . . .”); Schonarth v. Robinson,
2008 WL 510193, *3-4 (D.N.H., Feb. 22, 2008) (grievance filed two years after the jail was demolished, but
otherwise complying with grievance rules, exhausted); accord, Cabrera v. LeVierge, 2008 WL 215720, *5-6
(D.N.H., Jan. 24, 2008); Owens v. County of Ingham, 2008 WL 324292, *2 (W.D.Mich., Jan. 7, 2008).
884
Alexander v. Dickerson, 2008 WL 1827609, *6 (E.D.Tex., Apr. 22, 2008).
885
42 U.S.C. § 1997e(a). As to the meaning of “available,” see § IV.G, below.
886
Concepcion v. Morton, 306 F.3d 1347, 1353-54 (3d Cir. 2002) (holding that a grievance procedure described in
an inmate handbook but not formally adopted by a state agency was an available remedy to be exhausted); see
Ferrington v. Lousiana Dept. of Corrections, 315 F.3d 529, 531-32 (5th Cir. 2002) (holding grievance system that
had been held unconstitutional under state constitution insofar as it divested the state courts of original jurisdiction
over tort cases, but continued in operation, remained “available” for purposes of PLRA exhaustion), cert. denied,
540 U.S. 883 (2003). But see Westefer v. Snyder, 422 F.3d 570, 579 (7th Cir. 2005) (holding a “transfer review”
process failed to afford a remedy in part because it was not “effective” for prisoners not informed of the reasons for
their transfer).
887
In re Bayside Prison Litigation, 190 F.Supp.2d 755, 771-72 (D.N.J. 2002) (ruling on prison complaint and
Ombudsman procedures); see Freeman v. Snyder, 2001 WL 515258, *7 (D.Del., Apr. 10, 2001) (holding that the
“vague, informal process described by the defendants is ‘hardly a grievance procedure’”). The Bayside court further
held that a process that prison officials assert is optional and not mandatory and is not intended to modify or restrict
access to the judicial process need not be exhausted. See nn. 194, 473-475, above, for additional authority on both
sides of this question.

198

show that remedies at the facilities to which they were transported could address problems in the
company’s policies and procedures.888 Another has held that a “Warden’s Forum,” a body
consisting of elected inmate representatives who alone have the right to raise issues there, was
not an available remedy because the plaintiff did not have a “personal, direct right” to pursue a
complaint before that body.889 These holdings only address gross structural characteristics of the
supposed remedies;890 as previously noted, an argument that resort to a grievance system is futile
is not cognizable under the PLRA.891 The prison’s rules will determine which remedy must be
used if there is more than one.892
Judicial remedies, including appeals from the agency to a court, need not be exhausted,893
though there has been a peculiar dispute about this point in South Carolina. In that state, there is
888

Schilling v. Transcor America, LLC, 2010 WL 583972, *5 (N.D.Cal., Feb. 16, 2010).
Jones v. Michigan Dept. of Corrections, 2008 WL 762241, *4-5 (W.D.Mich., Mar. 18, 2008); accord, Mitchell v.
Caruso, 2008 WL 4057913, *5-6 (W.D.Mich., Aug. 28, 2008) (noting that Warden’s Forum representatives had
declined to raise the plaintiff’s issue there); see Lovely v. Scutt, 2011 WL 2470051, *2 (E.D.Mich., Apr. 20, 2011)
(Warden’s Forum is for general issues affecting groups or the entire housing unit; individual issues must be
grieved), report and recommendation adopted, 2011 WL 2469809 (E.D.Mich., June 20, 2011); Lovely v. Scutt,
2010 WL 3464141, *2 (E.D.Mich., July 9, 2010) (same), report and recommendation adopted, 2010 WL 3464109
(E.D.Mich., Aug. 30, 2010); Siggers v. Campbell, 2008 WL 5188791, *3 (E.D.Mich., Dec. 10, 2008) (same), aff’d,
652 F.3d 681 (6th Cir. 2011).
Other courts have held to the contrary about the Warden’s Forum, but without considering the concerns
raised in Jones. See Mario Sentelle Cavin, LLC v. Heyns, 2012 WL 5031503, *6 (W.D.Mich., July 30, 2012)
(holding prisoner exhausted by taking general complaint about policy to Warden’s Forum, in light of such
complaints’ exclusion from grievance system), report and recommendation adopted, 2012 WL 5002292
(W.D.Mich., Oct. 17, 2012); Berryman v. Granholm, 2007 WL 2259334, *10-11 (E.D.Mich., Aug. 3, 2007) (noting
that issues regarding the content of a policy or procedure are properly raised via the Warden’s Forum and not the
grievance system); Jackson v. Caruso, 2008 WL 828118, *4 (W.D.Mich., Feb. 12, 2008) (same), report and
recommendation adopted as modified on other grounds, 2008 WL 828116 (W.D.Mich., Mar. 26, 2008). There
appears to be a risk of “bait and switch” treatment as between grievances and the Warden’s Forum. See Siggers v.
Campbell, 652 F.3d 681, 687 (6th Cir. 2011) (noting prisoner was advised by staff to raise mail issues at Warden’s
Forum, where warden stated he would review the policy, but personal complaints about mail were inappropriate).
890
Thus, one court has held that a “Self-Initiated Progress Report” process, which permitted prisoners denied parole
to seek reconsideration six months or more later and show that circumstances have changed, was not equivalent to a
grievance system and need not be exhausted. Armstrong v. Beauclair, 2007 WL 1381790, *8-9 (D.Idaho, Mar. 29,
2007) (“It is clear that the SIPR is not a problem-solving mechanism. . . .”). (The court did not address the question
whether the exhaustion requirement was even applicable to denial of parole, which arguably is not an issue of
“prison conditions” subject to the exhaustion requirement. See § IV.B.2, above.) Similarly, a system that exists
only on paper is not an available remedy. Thus, where it was alleged that “[t]here is no grievance committee here,
your grievances are simply turned over to the person you file on and you get threatened,” the court could not dismiss
for non-exhaustion. Martin v. Sizemore, 2005 WL 1491210, *1, *3 (E.D.Ky., June 22, 2005).
891
See n. 195, above.
892
See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); Riley v. Hawaii Dept. of Public Safety, 2007 WL 3072777,
*4-6 (D.Haw., Oct. 17, 2007) (holding sexual assault victims exhausted by completing the emergency grievance
procedure as instructed, rather than the regular grievance procedure); Shilling v. Crawford, 2007 WL 2790623, *10
(D.Nev., Sept. 21, 2007) (holding Washington prisoner transferred to Nevada exhausted by using Nevada procedure
because that is what the contract between the two states provided for; later noncompliant exhaustion in Washington
did not affect validity of exhaustion); Berryman v. Granholm, 2007 WL 2259334, *10-11 (E.D.Mich., Aug. 3, 2007)
(noting that issues regarding the content of a policy or procedure are properly raised via the Warden’s Forum and
not the grievance system).
893
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.) (“Exhaustion under § 1997e(a) is administrative only; a
prisoner who uses all administrative options that the state offers need not also pursue judicial review in state court . .
.”), cert. denied, 537 U.S. 949 (2002); Jenkins v. Morton, 148 F.3d 257, 259-60 (3d Cir. 1998); Haskins v. Hawk,
2013 WL 1314194, *8 (D.Md., Mar. 29, 2013); Black v. Michigan Dept. of Corrections, 2012 WL 994768, *10
889

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a line of cases holding that prisoners must appeal grievances to the state Administrative Law
Court, and another line of cases holding the opposite, each one typically ignoring the contrary
authority entirely. The relevant state statute describes this entity as “an agency and court of
record within the executive branch” of the state.894 The cases requiring resort to the
Administrative Law Court generally do not focus on the distinction between administrative and
judicial remedies.895 The contrary cases, which do acknowledge the administrative/judicial
distinction, have become much more numerous in recent years.896 Recent decisions ring new
changes on the argument: “The South Carolina Administrative Law Court is a statutorily created
hybrid. Under the APA, the Administrative Law Court is both a court of record and an executive
branch agency.”897 Therefore, the court held, prisoners must appeal to that court, but not further
(E.D.Mich., Feb. 29, 2012) (prisoner need not seek judicial review of administrative decision re disciplinary
conviction), report and recommendation adopted, 2012 WL 987781 (E.D.Mich., Mar. 23, 2012); Andrews v.
Whitman, 2008 WL 878466, *6 (S.D.Cal., Mar. 28, 2008) (prisoner who received no response to his grievance was
not required to petition a state court for a writ of mandate); Thorns v. Ryan, 2008 WL 544398, *3 n.2 (S.D.Cal.,
Feb. 26, 2008) (same as Andrews); Mullins v. Smith, 14 F.Supp.2d 1009, 1012 (E.D.Mich. 1998); see Randolph v.
Joyner, 2006 WL 2459482, *4, 7 (D.S.C., July 20, 2006) (holding that completion of judicial review of
administrative action is not required even if it has been commenced). Consistently with these decisions, the Second
Circuit has held that a prisoner who was justified in failing to exhaust or to exhaust properly was obliged to exhaust
if administrative remedies remained directly available, but not if he would have to file a court action to be allowed to
file an untimely grievance. Giano v. Goord, 380 F.3d 670, 680 (2d Cir. 2004). Cf. Charity v. Carroll, 2007 WL
2408527, *5 (E.D.Cal., Aug. 21, 2007) (holding exhaustion through state judicial process sufficed under unique
circumstances of case), report and recommendation adopted, 2007 WL 2703165 (E.D.Cal., Sept. 14, 2007). Contra,
Lopez-Vigo v. Puerto Rico, 2014 WL 495721, *3 (D.Puerto Rico, Feb. 6, 2014) (same as Lassalle-Pitre); LassallePitre v. Mercado-Cuevas, 839 F.Supp.2d 471, 474-75 (D.Puerto Rico, March 12, 2012) (dismissing for not seeking
judicial review of administrative decision, without explanation or acknowledgment of contrary authority); Floyd v.
Haire, 2010 WL 3885488, *4 (W.D.Mich., Aug. 4, 2010) (holding plaintiff should have sought judicial review of
prison hearing to complete exhaustion), report and recommendation adopted on other grounds, 2010 WL 3843779
(W.D.Mich., Sept. 28, 2010).
894
S.C.Code Ann. § 1–23–500.
895
See, e.g, Hewitt v. Birch, 2013 WL 4056288, *4 (D.S.C., Aug. 12, 2013) (dictum); Williams v. Harris, 2007 WL
215669, *6-7 (D.S.C., July 26, 2007); Barr v. Battiste, 2007 WL 1704884, *2-3 n.3 (D.S.C., May 7, 2007), report
and recommendation adopted in part, 2007 WL 1704858 (D.S.C., June 12, 2007); Haggins v. South Carolina Dept.
of Corrections, 2006 WL 2095727, *4 (D.S.C., June 21, 2006), report and recommendation adopted, 2006 WL
2090171 (D.S.C., July 25, 2006).
896
See, e.g., Witherspoon v. Tucker, 2013 WL 5145630, *7 n.4 (D.S.C., Sept. 12, 2013); Toscani v. Litton, 2013
WL 5144355, *4 (D.S.C., Sept. 12, 2013); Gilchrist v. Pinson, 2013 WL 3946278, *6 & n.5 (D.S.C., July 31, 2013)
(unusually, acknowledging contrary line of decisions); Ward v. Byars, 2013 WL 1403220, *6 n.6 (D.S.C., Mar. 11,
2013), report and recommendation adopted, 2013 WL 1404918 (D.S.C., Apr. 5, 2013); James v. Scarborough, 2011
WL 6026039, *2 (D.S.C., Nov. 10, 2011), report and recommendation adopted, 2011 WL 6026036 (D.S.C., Dec. 5,
2011); Adams v. South Carolina Dept. of Corrections, 2011 WL 2436499, *3 (D.S.C., May 23, 2011), report and
recommendation adopted, 2011 WL 2418664 (D.S.C. 2011); Sampson v. Ozmint, 2010 WL 4929849, *6 (D.S.C.,
Nov. 2, 2010), aff’d, 2010 WL 4930996 (D.S.C., Nov. 30, 2010); Williams v. Ozmint, 2010 WL 3808621, *2
(D.S.C., July 22, 2010) (“The fact that the South Carolina Legislature made a court available to prisoners who
wanted to appeal a final decision by a jail facility denying a grievance, . . . does not alter the federal PLRA by
extending its administrative exhaustion requirements to include exhaustion in all state judicial forums.”), report and
recommendation adopted, 2010 WL 3814287 (D.S.C., Sept. 23, 2010); Pierre v. Ozmint, 2010 WL 679946, *3 n.5
(D.S.C., Feb. 24, 2010) (same), aff’d, 410 Fed.Appx. 595 (4th Cir. 2011) (unpublished); McKeown v. Kernell, 2010
WL 597191, *4 (D.S.C., Feb. 12, 2010) (same); Wolfe v. Bodison, 2010 WL 374567, *4 (D.S.C., Feb. 2, 2010); see
Appendix A for additional authority on this point.
897
Maradiaga v. Bethea, 2009 WL 2829900, *3 (D.S.C., Sept. 1, 2009), aff’d, 363 Fed.Appx. 987 (4th Cir. 2010)
(unpublished); see S.C.Code Ann. § 1–23–500 (stating that the Administrative Law Court “is an agency and a court
of record within the executive branch of the government of this State”).

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to the South Carolina Supreme Court.898 The court acknowledged that this court “performs
quasi-judicial duties in a virtually identical manner to a traditional court,” but reasoned:
Although also a court, the Administrative Law Court is itself an administrative
agency—one specifically created to provide impartial review of other agencies'
decisions. See S.C.Code Ann. § 1–23–600(A), (D) (describing the jurisdiction of
the Administrative Law Court); see also Randolph R. Lowell, The Contested Case
Before the ALC, in South Carolina Administrative Practice & Procedure 145, 148
(2d ed., S.C. Bar 2008) (discussing the mission of the Administrative Law Court).
Thus, the Administrative Law Court is part of the available administrative
remedies that an inmate must exhaust.
The flaw in this reasoning is that the question whether this court is part of the administrative
remedy that § 1997e(a) requires prisoners to exhaust is ultimately a question of federal law, and
there is no discussion of why requiring exhaustion of a court that has been placed in the
executive branch is consistent with § 1997e(a)’s command to exhaust administrative remedies.
One would think that the function of the court, which is acknowledged to remain “virtually
identical” to that of a court, would carry more weight than its placement in the state’s
governmental structure. To my knowledge there has been no substantial discussion of this
question as one of federal law based on the PLRA’s purposes.
Other recent decisions hold that only disciplinary decisions must be appealed to the
Administrative Law Court to exhaust.899 To complicate matters further, the state Supreme
Court has now held that the Administrative Law Court lacks jurisdiction over disciplinary
matters not involving the loss of good time, and other state courts have held that it lacks
jurisdiction over facial challenges to prison policies, but claims outside these exceptions must be
appealed to the court as a matter of state law.900
Other legal rules unrelated to the PLRA may require exhaustion of judicial remedies in
certain cases.901
One court has held that where a prisoner does obtain judicial review of an administrative
grievance decision, the judicial decision is not issue-preclusive in a subsequent federal action if
the court applies a substantial evidence standard rather than de novo review.902
898

Id., 2009 WL 2829900, *4.
Battle v. Ozmint, 2013 WL 4522517, *8 nn. 2, 3 (D.S.C., Aug. 27, 2013) (dicta), aff’d, ___ Fed.Appx. ____,
2013 WL 6773680 (4th Cir. 2013); Crouchman v. Pickens County LEC Jail, 2013 WL 2109691, *9 & n.7 (D.S.C.,
Mar. 22, 2013), report and recommendation adopted, 2013 WL 2109590 (D.S.C., May 15, 2013); Gallishaw v.
DeLoach, 2012 WL 831854, *4 & n.5 (D.S.C., Feb. 16, 2012), report and recommendation adopted, 2012 WL
832257 (D.S.C., Mar. 12, 2012), aff’d, 474 Fed.Appx. 199 (4th Cir. 2012); Brown v. Ford, 2011 WL 4904437, *2
n.6 (D.S.C., Sept. 15, 2011), report and recommendation adopted, 2011 WL 4904458 (D.S.C., Oct. 14, 2011);
Brown v. Ford, 2011 WL 4352378, *4 n.4 (D.S.C., Aug. 17, 2011), report and recommendation adopted, 2011 WL
4352320 (D.S.C., Sept. 16, 2011); Chestnut v. Brown, 2010 WL 2136606, *4 n.3 (D.S.C., Mar. 18, 2010), report
and recommendation adopted, 2010 WL 2136610 (D.S.C., May 25, 2010), aff’d, 395 Fed.Appx. 1 (4th Cir., Sept. 3,
2010) (unpublished).
900
Lane v. Ward, 2012 WL 7652670, *3 (D.S.C., Nov. 5, 2012) (citing cases), report and recommendation adopted,
2013 WL 789574, *2 (D.S.C., Mar. 4, 2013), aff’d, 521 Fed.Appx. 252 (4th Cir. 2013).
901
See, e.g., Edwards v. Balisok, 520 U.S. 641 (1997).
902
Haskins v. Hawk, 2013 WL 1314194, *18-23 (D.Md., Mar. 29, 2013).
899

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1. Prison and Non-Prison Remedies
The Supreme Court has said that the PLRA exhaustion requirement was designed to give
“corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case,”903 and that ““[c]ompliance with prison grievance procedures,
therefore, is all that is required by the PLRA to ‘properly exhaust.’” 904 Though the question was
not actually before the Supreme Court in these cases, lower courts have generally assumed or
held that the PLRA requires, and is satisfied by, exhaustion of administrative remedies within
prison systems and does not address remedies that may exist externally.905 (In theory, there
could be a difference between the question whether exhaustion of internal remedies is necessary
to satisfy the PLRA, and whether it is sufficient to do so, but since the discussion in the case law
is about whether such remedies are within the scope of the exhaustion requirement at all, that
distinction makes no difference for present purposes.) In some cases, there may be a question as
to which prison’s internal remedies should be used. In most cases, the relevant remedy will be
the one at the prison where the prisoner is held,906 though if the prisons’ rules specify otherwise,
they will govern.
The most thorough explication of this point is in the Ninth Circuit’s holding in Rumbles
v. Hill907 that administrative tort claims procedures need not be exhausted, and that nothing in the
PLRA’s legislative history showed any intent by Congress to displace the prior understanding to
that effect. It said:
The language of the PLRA, as well as the language of the pre-PLRA version of
section 1997e, indicates that Congress had internal prison grievance procedures in
mind when it passed the PLRA. That is, while Congress certainly intended to
require prisoners to exhaust available prison administrative grievance procedures,

903

Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (emphasis supplied).
Jones v. Bock, 549 U.S. 199, 218 (2007) (emphasis supplied).
905
See O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062-63 (9th Cir. 2007) (holding use of
Department of Justice disability complaint process did not satisfy PLRA exhaustion requirement); Massey v.
Helman, 196 F.3d 727, 733-34 (7th Cir. 1999), cert. denied, 532 U.S. 1065 (2001) (“if a prison has an internal
administrative grievance system through which a prisoner can seek to correct a problem, the prisoner must utilize
that administrative system before filing a claim. . . . [C]ourts merely need to ask whether the institution has an
internal grievance procedure. . . .”) (emphasis supplied); Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998)
(holding that “available” remedies under the PLRA refers to prison administrative remedy programs); see also
Palmer v. Hatton, 2008 WL 142415, *6 (N.D.Cal., Jan. 14, 2008) (acquittal of a criminal charge did not exhaust as
to disciplinary charge based on same events), motion to reopen denied, 2008 WL 2219889 (N.D.Cal., May 27,
2008).
906
Of course, the prisoner must use the administrative procedure of the institution or system where his or her
problem arose. Acosta v. U.S. Marshals Service, 445 F.3d 509, 512-13 (1st Cir. 2006) (holding that a prisoner
placed by the Marshals Service in several county jails and two federal prisons, but only used the Marshals’
complaint system, failed to exhaust either as to the jails or as to the Bureau of Prisons institutions); Benavidez v.
Stansberry, 2008 WL 4279559, *2 (N.D.Ohio, Sept. 12, 2008) (federal prisoner in private prison must use that
prison’s grievance system, not federal Bureau of Prisons system); Malik v. District of Columbia, 512 F.Supp.2d 28,
31 (D.D.C., Sept. 6, 2007) (noting prisoner complaining of conditions during transfer between two Corrections
Corporation of America prisons was directed by CCA to the remedy of Transcor, which transported him).
Concerning the U.S. Marshals Service, there appears to be considerable confusion over whether there exists an
administrative remedy other than the Federal Tort Claims Act claims process. See n. 918, below.
907
Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), cert. denied, 528 U.S. 1074 (2000).
904

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there is no indication that it intended prisoners also to exhaust state tort claim
procedures.908
The court then cited the PLRA subsection immediately following the exhaustion
requirement, noting that 42 U.S.C. § 1997e(b) “tellingly provides that ‘the failure of a State to
adopt or adhere to an administrative grievance procedure shall not constitute the basis for an
action’ (emphasis added). ‘It thus appears that throughout § 1997e Congress is referring to
institutional grievance processes and not state tort claims procedures.’”909 The decision
continues:
Legislative history also suggests that the statutory phrase “administrative
remedies” refers exclusively to prison grievance procedures. Senator Kyl, one of
the co-sponsors of the PLRA, testified:
Mr. President, I join Senator Dole in introducing the Prison Litigation Reform Act
of 1995. This bill will deter frivolous inmate lawsuits. . . . Section 7 will make
the exhaustion of administrative remedies mandatory. Many prisoner cases seek
relief for matters that are relatively minor and for which the prison grievance
system would provide an adequate remedy.910
This argument is further supported by the fact that the term “administrative remedies”
clearly referred to internal prison remedies in the Civil Rights of Institutionalized Persons Act
(CRIPA),911 predecessor to the PLRA,912 as shown by legislative history913 and judicial
908

Id. at 1069.
Id. at 1069-70 (quoting Lacey, 990 F.Supp. 1199, 1206 (E.D.Cal. 1997)); accord, Macias v. Zenk, 495 F.3d 37,
42-44 (2d Cir. 2007); Devbrow v. Gallegos, 2011 WL 4709062, *1 (N.D.Ind., Oct. 4, 2011) (prisoner whose
grievance was rejected without avenue of appeal and was directed to tort system was not obliged to use it); Fegans v.
Johnson, 2010 WL 1425766, *12 (S.D.Tex., Apr. 8, 2010); Jones v. Courtney, 2005 WL 562719, *4 (D.Kan., Mar.
7, 2005); Blas v. Endicott, 31 F.Supp.2d 1131, 1132 (E.D.Wis. 1999). Contra, William G. v. Pataki, 2005 WL
1949509, *5 (S.D.N.Y., Aug. 12, 2005). But see Lemas v. Brown, 2007 WL 2558777, *4 (N.D.Cal., Sept. 4, 2007)
(holding it was reasonable that a prisoner with a tort claim who was advised to file a notice of claim and not an
“appeal,” as grievances are called in California, would have done so).
910
141 Cong. Rec. S7526-7527 (May 25, 1995) (emphasis added).
911
Under CRIPA, prisoners could be required to exhaust “administrative remedies” that were “plain, speedy, and
effective” before proceeding with a § 1983 suit. 42 U.S.C. § 1997e(a)(1)(1990).
912
Intent and usage in predecessor statutes can be highly relevant in construing contemporary statutes. See, e.g.,
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169-83 (1963); U.S. v. Awadallah, 349 F.3d 42, 54 (2d Cir. 2003),
cert. denied, 543 U.S. 1056 (2005); Moretti v. C.I.R., 77 F.3d 637, 643 (2d Cir. 1996) (relying on judicial
interpretation of term in predecessor statute where current statute used that same term).
913
See Report on the Activities of the Committee on the Judiciary, H.R. Rep. 104-879, at 183 (emphasis added)
(stating that CRIPA’s exhaustion provision “requires prisoners to exhaust the administrative remedies established by
the corrections system before they may file a lawsuit in federal court”) (emphasis supplied); H.R. Conf. Rep. No.
897, 96th Cong. 2d Sess. 9 (1980) (purpose of bill is to “stimulate the development and implementation of effective
administrative mechanisms for the resolution of grievances in correctional . . . facilities”); id. at 15-17 (discussing
exhaustion of remedies in context of “correctional grievance resolution systems”); 125 Cong. Rec. 11976(1978)
(statement of Rep. Railsback) (discussing “grievance procedure” in prisons); id. at 15441 (statement of Rep.
Kastenmeier) (effect of exhaustion provision will be to divert complaints to the State and their local institutions);
125 Cong. Rec. 12491-92 (1979) (statement of Rep. Drinan) (detailing studies of “prison grievance mechanisms”);
id at 12492 (statement of Rep. Drinan) (§ 1997 intended to encourage “the establishment of grievance mechanisms
in State correctional systems”); id. at 12493 (statement of Rep. Mitchell) (same); id. at 12494 (statement of Rep.
Rodino) (referring to development of “correctional grievance mechanisms”); 126 Cong. Rec. 10780 (1980)
(statement of Rep. Kastenmeier) (CRIPA “would encourage, but not require, States and political subdivisions to
establish correctional grievance mechanisms”); 124 Cong. Rec. 23179 (1978) (statement of Rep. Butler) (“If we had
909

203

interpretation.914 When enacting the PLRA, Congress must have been aware that courts had
equated the term “administrative remedies” with internal prison grievance procedures and it gave
no indication that the established judicial interpretation was contrary to its current intent.915
In cases involving the Federal Tort Claims Act, courts have generally held, consistently
with Rumbles, that an FTCA administrative filing is neither necessary nor sufficient to exhaust a
Bivens claim against prison personnel, but also that exhaustion of the Bureau of Prisons
Administrative Remedy Procedure is neither necessary nor sufficient to exhaust an FTCA claim
even if it is arguably a “prison conditions” case.916 In effect, the FTCA and Bivens claims are
treated as separate worlds for exhaustion purposes, without much theoretical discussion of
why.917 An exception may or may not exist at the U.S. Marshals Service, where court decisions
the grievance machinery, and if they were required to go through that grievance machinery, we believe that many of
these cases . . . would be quickly resolved, and resolved at the level where they should be resolved and that is where
the grievance arises, and that is in the penal institution [or] the local jail.”)
914
Farmer v. Brennan, 511 U.S. 825, 847 (1994) (referring, under CRIPA, to availability of “adequate prison
procedures” and “internal prison procedures”) (emphasis added); McCarthy v. Madigan, 503 U.S. 140, 150 (1992)
(stating that CRIPA “imposes a limited exhaustion requirement . . . provided that the underlying state prison
administrative remedy meets specified standards”) (emphasis added) Patsy v. Board of Regents of State of Fla., 457
U.S. 496, 509 (1982) (noting intent of Congress to “divert[] certain prisoner petitions back through state and local
institutions, and also to encourage the States to develop appropriate grievance procedures”).
915
See, e.g., Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here, as here, Congress adopts a new law
incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as it affects the new statute.”) That presumption is
strengthened where Congress shows a “willingness to depart” from other aspects of the earlier statute, id. at 581, as
it the case with CRIPA and the PLRA.
916
Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (holding administrative tort claim did not exhaust Bivens claim);
Steele v. Fed. Bureau of Prisons, 100 Fed.Appx 773, 776 (10th Cir. 2004) (holding Federal Tort Claims Act filing
does not exhaust Bivens claim); Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1998) (holding that Federal Tort
Claims Act administrative filing is not “available” to prisoner pursuing Bivens claim against individual prison staff);
Crosby v. Nelson, 2013 WL 3866612, *2 (D.Colo., July 26, 2013) (FTCA exhaustion does not satisfy PLRA
exhaustion requirement in Bivens action), motion to vacate denied, 2014 WL 1032568 (D.Colo., Mar. 18, 2014);
Cuello v. U.S., 2013 WL 1338839, *6 (E.D.N.Y., Mar. 29, 2013) (holding FTCA claim need not be exhausted via
Administrative Remedy Procedure, noting regulations to that effect); Norris v. U.S., 2012 WL 2590010, *3
(E.D.N.C., July 3, 2012) (holding FTCA exhaustion does not exhaust a Bivens claim); Champion v. Smith, 2012
WL 930858, *2 (E.D.Cal., Mar. 19, 2012) (similar to Purdum); Purdum v. Johns, *3 (E.D.N.C., Oct. 25, 2011)
(holding FTCA exhaustion did not exhaust plaintiff’s Bivens claim); Watson-El v. Wilson, 2010 WL 3732127, *9
n.1 (N.D.Ill., Sept. 15, 2010) (“There are separate and distinct administrative exhaustion processes for claims under
the FTCA and constitutional claims concerning the conditions of an inmate's confinement.”); Paulino v. U.S., 2009
WL 2996678, *15 (E.D.Tex., Sept. 15, 2009) (“There are two different exhaustion procedures for Bivens claims and
Federal Tort Claims Act claims.”); Crum v. Dupell, 2008 WL 902177, *3 (N.D.N.Y., Mar. 31, 2008) (“the
exhaustion procedures under the FTCA and under the PLRA for Bivens claims differ, and fulfillment of one does not
constitute satisfaction of the other”); see Appendix A for additional authority on this point. Contra, Jordan v.
Federal Bureau of Prisons, 2013 WL 1143617, *3-4 (S.D.N.Y., Mar. 19, 2013) (holding Administrative Review
Procedure must be exhausted to pursue FTCA claim, without discussing contrary case law), appeal dismissed, No.
13-2069 (2d Cir., Feb. 4, 2014); Valentine v. Lindsay, 2011 WL 3648261, *10 (E.D.N.Y., Aug. 17, 2011)
(“According to the plain text of the statute, prison conditions claims, even those brought under the FTCA, must be
exhausted through the prison grievance system.” (citing Arawole v. Hemingway, 2006 WL 2506972, *3–4
(N.D.Tex., Aug. 11, 2006)).
917
See, e.g., Ford v. Spears, 2012 WL 4481739, *8 (E.D.N.Y., Sept. 27, 2012) (“Exhaustion under the FTCA is
separate and distinct from exhaustion under the PLRA. The FTCA's exhaustion requirements—unlike those under
the PLRA—are jurisdictional.”); Green v. Ringwood, 2010 WL 1052871, *2 & n.4 (E.D.Ark., Mar. 5, 2010), report
and recommendation adopted, 2010 WL 1052874 (E.D.Ark., Mar. 23, 2010); Adekoya v. Federal Bureau of Prisons,
2009 WL 1835012, *2 (S.D.N.Y., June 18, 2009), aff’d, 382 Fed.Appx. 26 (2d Cir. 2010). But see Gaughan v. U.S.

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appear to indicate that even the agency does not know what if any remedy exists for Bivens
claims or whether the FTCA procedure is supposed to be used for them.918 If an Administrative
Remedy Request underlying a Bivens claim is rejected with instructions to file a tort claim, that
disposition is reasonably viewed as telling the prisoner no further relief is available and the
Bivens claim is exhausted.919
Courts have ruled consistently with Rumbles in connection with other non-prison
administrative remedies, holding that the PLRA does not call for exhaustion of the impartial
hearing requirement of the Individuals with Disabilities in Education Act,920 a state statutory
procedure for seeking a declaratory judgment from a state agency, 921 a state statutory “citizen’s
complaint” procedure,922 state medical malpractice administrative procedures,923 dispute
resolution procedures under the Interstate Corrections Compact,924 or even an Office of the
Corrections Ombudsman in the state Department of the Public Advocate, since that office is
Bureau of Prisons, 2003 WL 1626674, *2 (N.D.Ill., Mar. 25, 2003) (stating that Federal Tort Claims Act
administrative claim requirement is intended to give the government agency notice so it can investigate and prepare
for settlement negotiations; the PLRA requirement is intended to curtail suits by giving prison officials an
opportunity to solve the problem first); Alvarez v. U.S., 2000 WL 679009 (S.D.N.Y., May 24, 2000) (noting that
federal grievance procedures exclude tort claims and refer prisoners to the Federal Tort Claims Act administrative
claim procedure).
In Banks v. One or More Unknown Named Confidential Informants of Federal Prison Camp Canaan, 2008
WL 2563355, *4 (M.D.Pa., June 24, 2008), reconsideration denied, 2008 WL 2810156 (M.D.Pa., July 21, 2008),
the court described FTCA exhaustion as “add[ing] an additional level of review”after PLRA exhaustion. This
holding is unique to my knowledge.
918
In Abrahams v. U.S. Marshals Services, 2007 WL 3025073, *3 (D.V.I., Aug. 14, 2007), the government admitted
that there were no other administrative remedies in the Marshals Service, argued that under those circumstances, the
plaintiff was obliged to exhaust the FTCA process. The court disagreed. See also Perotti v. Medlin, 2009 WL
2424547, *8-11 (N.D.Ohio, Aug. 3, 2009) (denying summary judgment for non-exhaustion where the Marshals
Service presented contradictory evidence whether a Bivens claim has its own administrative remedy or prisoners are
expected to use the FTCA remedy). But see Acosta v. U.S. Marshals Service, 445 F.3d 509, 512-13 (1st Cir. 2006)
(holding that a prisoner placed by the Marshals Service in several county jails and two federal prisons, but who only
used the Marshals’ complaint system, failed to exhaust either as to the jails or as to the Bureau of Prisons
institutions).
919
Satterwhite v. Dy, 2012 WL 748287, *4-5 (W.D.Wash., Mar. 5, 2012).
920
Handberry v. Thompson, 2003 WL 194205, *11 (S.D.N.Y., Jan. 28, 2003) (“In Porter [v. Nussle], the Court
noted that Congress wished to afford corrections officials the opportunity to address complaints internally. . . . This
observation is inconsistent with a rule requiring exhaustion of a remedy which is outside of the prison and which
does not involve prison authorities.”), aff’d in part, vacated in part, and remanded on other grounds, 446 F.3d 335
(2d Cir. 2006). On appeal, the court did not address whether IDEA exhaustion was required by the PLRA, but held
that if it was, the IDEA remedy was not “available” for purposes of plaintiffs’ claims. 446 F.3d at 344 n.3.
921
Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis. 2000); see Mooney v. Caruso, 2011 WL 7171361, *5
(W.D.Mich., Dec. 2, 2011) (holding declaratory judgment procedure did not exhaust; “Plaintiff is not permitted to
select the state administrative process by which he attempts to resolve this matter before seeking relief in federal
court. . . . Pursuant to MDOC policy, Plaintiff was required to resolve this matter through the grievance process.
Plaintiff concedes that he failed to do so.”); Cadogan v. Bell, 2009 WL 1138506, *5 (E.D.Mich., Jan. 28, 2009)
(declaratory judgment procedure does not satisfy exhaustion requirement because it is not part of the institutional
grievance procedure), report and recommendation adopted, 2009 WL 1138505 (E.D.Mich., Mar. 5, 2009),
reconsideration denied, 2009 WL 1138511 (E.D.Mich., Apr. 27, 2009); accord, Proctor v. Applegate, 661
F.Supp.2d 743, 774 (E.D.Mich. 2009), motion to certify appeal denied, 2009 WL 5227540 (E.D.Mich., Dec. 29,
2009).
922
Evans v. Woodford, 2008 WL 5114653, *2 (E.D.Cal., Dec. 4, 2008).
923
McGraw v. Hornaday, 2007 WL 2694634, *2 (S.D.Ind., Sept. 10, 2007).
924
Oquendo v. Davis, 2010 WL 2465447, *2-3 (E.D.Cal., June 11, 2010) (Florida prisoner who needed California
legal materials should have filed a grievance in Florida).

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outside the corrections agency.925 The Prison Rape Elimination Act (PREA) does not substitute
for, or exempt prisoners from, prison grievance procedures,926 although the National Standards
to Prevent, Detect, and Respond to Prison Rape, recently promulgated pursuant to PREA,
contain some requirements for the way grievance systems handle sexual abuse complaints.927
Similarly, the Ninth Circuit has held that exhausting the U.S. Department of Justice’s
disability complaint procedure does not exhaust for PLRA purposes, citing the Supreme Court’s
characterization of the exhaustion requirement as addressing prison remedies, and not the
Rumbles v. Hill holding.928 In doing so, it ignored (correctly, in my view) the dispute over this
question in New York State, in which the New York State Department of Correctional Services
raised, and then abandoned, the argument that prisoners with complaints under Title II of the
Americans with Disabilities Act must exhaust the DOJ procedure in addition to the prison
grievance system. The results in New York were mixed, with some courts requiring such
exhaustion on the ground that the statute’s plain language requires resort to “such administrative
remedies as are available,”929 rejecting the argument that that remedy need not be exhausted
because it does not result in action but only in findings or advice,930 and that it does not even
investigate most individual complaints submitted to it.931 Other courts, however, held that
exhaustion of the DOJ remedy was not required.932 The question became moot as to the state
Department of Correctional Services (DOCS) because, after one decision requiring DOJ
925

Tormasi v. Hayman, 2011 WL 463054, *4 (D.N.J., Feb. 4, 2011).
Porter v. Howard, 2012 WL 2836637, *4 (S.D.Cal., July 10, 2012), affirmed in pertinent part, vacated in part on
other grounds, remanded, 531 Fed.Appx. 792 (9th Cir. 2013), cert. denied, 134 S.Ct. 691 (2013).
927
See § IV.E.7.i, above.
928
O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062-64 (9th Cir. 2007).
929
Burgess v. Garvin, 2003 WL 21983006, *3 (S.D.N.Y., Aug. 19, 2003), on reconsideration, 2004 WL 527053
(S.D.N.Y., March 16, 2004); accord, William G. v. Pataki, 2005 WL 1949509, *5-6 (S.D.N.Y., Aug. 12, 2005);
Scott v. Goord, 2004 WL 2403853, *7 (S.D.N.Y., Oct. 27, 2004); Rosario v. N.Y. State Dept. of Correctional
Services, 2003 WL 22429271 *3 (S.D.N.Y., Sept. 24, 2003), vacated and remanded, 400 F.3d 108 (2d Cir. 2005)
(per curiam).
930
Burgess, 2004 WL 527053, *2; Rosario, 2003 WL 22429271, *4. Compare In re Bayside Prison Litigation, 190
F.Supp.2d 755, 771-72 (D.N.J. 2002) (holding that a process with no authority except to “‘make recommendations
for change’ to administrative officials” need not be exhausted because it fails to provide for the “responsive action”
envisioned in Booth); Freeman v. Snyder, 2001 WL 515258, *7 (D.Del., Apr. 10, 2001) (holding that the “vague,
informal process” described by defendants is “hardly a grievance procedure”).
931
Burgess, 2004 WL 527053, *4. Plaintiff submitted letters to other prisoners from DOJ stating that because of
limited resources and numerous complaints, it does not investigate individual prisoner complaints except as part of a
review of the entire state prison system.
932
Degrafinreid v. Ricks, 2004 WL 2793168, *14 n.10 (S.D.N.Y., Dec. 6, 2004); Veloz v. State of N.Y., 339
F.Supp.2d 505, 519 (S.D.N.Y., Sept. 30, 2004) (“Filing a complaint with the DOJ, an external federal agency, does
not allow correctional officers to respond directly to inmates’ grievances nor does it allow them to remedy the issues
raised in the grievance. Requiring prisoners to grieve with external agencies does not serve the underlying purpose
of the exhaustion requirement.”), aff’d, 178 Fed.Appx. 39 (2d Cir., Apr. 24, 2006); Singleton v. Perilli, 2004 WL
74238, *4 (S.D.N.Y., Jan. 16, 2004) (dictum); Shariff v. Artuz, 2000 WL 1219381 (S.D.N.Y., Aug. 28, 2000); see
Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) (holding that resort to the ADA procedures did not suffice to
exhaust, stating: “Congress intended the exhaustion requirement to apply to the prison’s grievance procedures,
regardless of what other administrative remedies might also be available.”).
In Sharif, the court first addressed the PLRA exhaustion requirement and noted that the plaintiff had
exhausted the prison grievance procedure, then rejected the argument that the plaintiff failed to exhaust remedies
with respect to his ADA and Rehabilitation Act claims, holding that neither statute requires exhaustion of DOJ
remedies. Id., *3. Thus, Sharif holds, in substance, that the PLRA exhaustion requirement is satisfied by exhaustion
of the internal prison grievance system, and that whether ADA and Rehabilitation Act remedies must be exhausted
is determined by those statutory schemes and not by the PLRA.
926

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exhaustion was appealed, DOCS repudiated the argument, in that and all other cases; but it has
subsequently been asserted successfully by another New York State agency. 933 Until recently it
had not been addressed or even raised elsewhere, except in the above cited Ninth Circuit
O’Guinn decision; however, some recent district court decisions hold that DOJ exhaustion is
required.934
One of the decisions holding that DOJ exhaustion was required in theory also held that
the state prison system did not meet its burden of showing that the Department of Justice
procedure was an “available remedy” in the absence of evidence that the procedure had been
made known to prisoners by prison officials.935
It is of course possible that a prison system could adopt an external remedy as part of its
dispute resolution policy.936 The interaction between the PLRA’s “administrative remedy”
language and its gloss, discussed above, and the Woodford v. Ngo requirement to follow the rules
of exhaustion set by the prison system, has not been explored.
2. Prison Remedies Outside the Grievance System
Prison systems often create separate internal complaint or appeal systems for particular
problems and exclude those matters from the main grievance system. For example, the New
York State prison grievance directive states that:
(1) An individual decision or disposition of any current or subsequent program or
procedure having a written appeal mechanism which extends review to outside
the facility shall be considered non-grievable.
(2) An individual decision or disposition of the temporary release committee, time
allowance committee, family reunion program or media review committee is not
grievable. Likewise, an individual decision or disposition resulting from a
disciplinary proceeding, inmate property claim (of any amount), central
monitoring case review or records review (freedom of information request,
expunction) is not grievable.
(3) The policies, rules, and procedures of any program or procedure, including
those above, are grievable.937

933

Compare Rosario v. Goord, 400 F.3d 108 (2d Cir. 2005) (per curiam) (repudiating argument) with William G. v.
Pataki, 2005 WL 1949509 (S.D.N.Y., Aug. 12, 2005) (accepting argument in action defended by state Division of
Parole and Office of Mental Health).
934
Brown v. Cantrell, 2012 WL 3264292, *7-8 (D.Colo., Feb. 9, 2012), report and recommendation adopted, 2012
WL 4050300, *3 (D.Colo., Sept. 14, 2012); Haley v. Haynes, 2012 WL 112946, *1 (S.D.Ga., Jan. 12, 2012).
935
Burgess v. Garvin, 2004 WL 527053, *5 (S.D.N.Y., March 16, 2004). Contra, Haley v. Haynes, 2012 WL
112946, *1 (“It has been this Court's experience that inmates have a keen regard for their rights and a fairly firm
grasp of the law.”).
936
See Hills v. King County, 2012 WL 1903427, *6 (W.D.Wash., Apr. 23, 2012) (dismissing because plaintiff never
filed a disability grievance with the King County Office of Civil Rights, “as required and as explained in the Inmate
Information Handbook”), report and recommendation adopted as modified, 2012 WL 1903876 (W.D.Wash., May
25, 2012).
937
Appendix D, New York State Dep’t of Correctional Services Directive 4040, Inmate Grievance Program at §
701.3(e). The directive adds: “Note: If an inmate is unsure whether an issue is grievable, he/she should file a
grievance and the question will be decided through the grievance process. . . .” Id.

207

In such non-grievable cases, the specialized system, rather than the inapplicable
grievance system, must be exhausted,938 consistently with the general rule that prisoners must
follow the prisons’ rules governing administrative remedies.939 A prisoner who exhausts the
specialized complaint system for a problem need not also file a grievance about the same
problem unless the prison’s rules so direct.940 If the administrative system gives the prisoner a
choice among multiple remedies, exhausting one of the choices will satisfy the exhaustion
requirement.941
938

See Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (holding prisoner who filed classification appeal
exhausted, notwithstanding failure to complete inapplicable grievance procedure); Richardson v. Spurlock, 260 F.3d
495, 499 (5th Cir. 2001) (holding that filing an “administrative” appeal rather than the required “disciplinary” appeal
did not exhaust); Jenkins v. Haubert, 179 F.3d 19, 23 n. 1 (2d Cir. 1999) (holding that appeal of disciplinary
conviction satisfied the exhaustion requirement); Halfacre v. Jones, 2013 WL 4530202, *4 (E.D.Ark., Aug. 26,
2013) (holding filing a grievance about a disciplinary proceeding did not substitute for filing a disciplinary appeal),
aff’d, No. 13-3025 (8th Cir., Feb. 6, 2014); Jones v. Golden, 2011 WL 1480315, *2-3 (E.D.Ark., Mar. 9, 2011)
(complaint to Central Office Publication Review Committee exhausted), report and recommendation adopted, 2011
WL 1479987 (E.D.Ark., Apr. 19, 2011); Gonzalez-Aguilera v. Belleque, 2011 WL 690606, *2 (D.Or., Feb. 16,
2011) (though retaliation claim was non-grievable because misconduct reports could not be grieved, plaintiff was
obliged to use system for complaining about discrimination or retaliation for complaining about discrimination);
Washington-El v. Beard, 2010 WL 6065083, *8 (W.D.Pa., Dec. 16, 2010) (prisoner whose claims were
“inextricably linked” to his administrative confinement exhausted through the administrative confinement remedy,
and need not have also filed a grievance), report and recommendation adopted as modified, 2011 WL 891250
(W.D.Pa., Mar. 11, 2011); Neff v. Bryant, 2010 WL 3418893, *3 (D.Nev., Aug. 24, 2010) (grievance did not
exhaust Security Threat Group classification complaint where there were special requirements for appealing such
classification); see Appendix A for additional authority on this point; see also Cordero v. Bureau of Prisons, 2005
WL 1205808 (M.D.Pa., Apr. 27, 2005) (noting that Privacy Act claims are excluded from the federal prisons’
Administrative Remedy Program but must be exhausted through the Privacy Act administrative process); Alvarez v.
U.S., 2000 WL 679009 (S.D.N.Y., May 24, 2000) (holding that since federal Bureau of Prison regulations for
administrative remedy excluded tort claims, following the tort claims procedure met the exhaustion requirement).
But see Jones v. Michigan Dept. of Corrections, 2008 WL 762241, *4-5 (W.D.Mich., Mar. 18, 2008) (holding
“Warden’s Forum” was not an available remedy because plaintiff did not have a “personal, direct right” to bring an
issue to it).
939
Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).
940
Branch v. Stoke, 2009 WL 483893, *5 (D.N.J., Feb. 24, 2009). But see Schlemm v. Frank, 2013 WL 5442293,
*2-3 (W.D.Wis., Sept. 30, 2013) (holding whether plaintiff exhausted a grievance is dispositive, regardless of
whether he used a separate procedure for approval of new religious practices).
This issue arises frequently in connection with disciplinary appeals, discussed in § IV.E.3, nn. 623-637. It
is often the case that specialized complaint systems provide a remedy only for actions or decisions in individual
cases, leaving challenges to rules or policies for the grievance system. Examples of this distinction include the New
York regulation quoted at the beginning of this section and some of the disciplinary cases cited in note 623.
941
Barkey v. Reinke, 2010 WL 3893897, *6-7 (D.Idaho, Sept. 30, 2010) (holding sexual abuse complaint exhausted
where prison had created an alternative to the grievance system in the form of a hotline pursuant to the Prison Rape
Elimination Act); Giron v. Garcia, 2010 WL 3001858, *3 (D.Nev., June 2, 2010) (where prisoner exhausted
grievance process concerning allowance of religious property, he was not required also to exhaust a procedure for
receiving religious property absent an instruction to that effect in the grievance policy), report and recommendation
adopted, 2010 WL 2870742 (D.Nev., July 19, 2010); see Riley v. Hawaii Dept. of Public Safety, 2007 WL 3072777,
*4-6 (D.Haw., Oct. 17, 2007) (holding sexual assault victims who completed the emergency grievance process as
instructed, rather than the regular grievance process, had exhausted). But see Ortega v. Ritchie, 2014 WL 547902,
*2-3 (N.D.Cal., Feb. 7, 2014) (stating “attempting to exhaust grievances using the procedures specific to sexual
harassment complaints is not proper exhaustion”); Ortega v. Barbasa, 2014 WL 460019, *2 (N.D.Cal., Feb. 3, 2014)
(holding alternative means of complaining about sexual harassment did not satisfy exhaustion requirement where
nothing in the relevant policy suggested they were alternatives to the grievance process).
Several Pennsylvania decisions have held that a complaint to the Office of Professional Responsibility
exhausted where prison rules permitted abuse complaints to be pursued via that route or by grievance. McCain v.

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One court has held that if a grievance once filed is referred to another complaint or
investigative process, the prisoner must await the conclusion of that process to exhaust, assuming
that he or she can find out when it is finished.942 That holding is potentially problematical, since
internal affairs and inspector general’s offices do not necessarily notify the prisoner when an
investigation is completed, and there may be protracted delays in resolution, especially in cases
of serious misconduct where there are also criminal investigations or proceedings. There may be
considerable ambiguity as to what the prisoner is required or permitted to do in order to exhaust
when a matter is so referred.943 For example, that is the case with complaints of sexual abuse by
Wetzel, 2012 WL 6623689, *6 (M.D.Pa., Oct. 26, 2012), report and recommendation adopted, 2012 WL 6623688
(M.D.Pa., Dec. 19, 2012); McKinney v. Zihmer, 2010 WL 1135722, *6-7 (M.D.Pa., Mar. 23, 2010), reconsideration
denied, 2010 WL 1506004 (M.D.Pa., Apr. 13, 2010); Knauss v. Shannon, 2010 WL 569829, *8 (M.D.Pa., Feb. 12,
2010); Carter v. Klaus, 2006 WL 3791342, *3 (M.D.Pa., Dec. 22, 2006).
942
Brown v. Valoff, 422 F.3d 926, 940-42 (9th Cir. 2005) (holding that when a grievance was referred to the
Internal Affairs “staff complaint” process, the prisoner must wait until that process was concluded); Fisher v.
Caruso, 2008 WL 205263, *1-2 (E.D.Mich., Jan. 24, 2008) (prisoner whose grievance was referred for formal
investigation, and who appealed without waiting for the result, did not exhaust). But see Dorch v. Crittenden, 2010
WL 3245769, *5 (E.D.Mich., July 20, 2010) (holding referral to internal affairs had no effect on plaintiff’s
exhaustion obligations), report and recommendation adopted, 2010 WL 5390175 (E.D.Mich., Dec. 22, 2010); Baker
v. Finnan, 2009 WL 4506331, *2 (S.D.Ind., Nov. 30, 2009) (dismissing for non-exhaustion absent evidence that
referral to internal affairs prevented continuation of the grievance process).
943
See Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (holding that if security officials told the plaintiff to
wait for completion of an investigation before grieving, and then never informed him of its completion, the
grievance system was unavailable to him); Williams v. Gavins, 2013 WL 5408638, *6 (M.D.Pa., Sept. 25, 2013)
(holding that if prison officials told plaintiff any resolution would have to come through a non-grievance
investigation, his non-exhaustion could be excused); Rister v. Lamas, 2011 WL 2471486, *5-6 (M.D.Pa., June 21,
2011) (similar to Brown v. Croak); Andrews v. Cruz, 2010 WL 1141182, 5-6 (S.D.N.Y., Mar. 24, 2010) (referral to
Inspector General constituted a favorable enough response that plaintiff was not required to appeal); Terrell v.
Benfer, 2009 WL 3488559, *4 (M.D.Pa., Oct. 22, 2009) (denying summary judgment where informal grievance
responses said issue was being “forwarded to the S.I.S. Office,” suggesting informal process was not yet
completed); Monroe v. Beard, 2007 WL 2359833, *12-13 (E.D.Pa., Aug. 16, 2007) (holding the grievance process
unavailable where prisoners were told to object to certain searches through an Unacceptable Correspondence Form,
and they would be notified of the results of an investigation and then could file a grievance, but were not so
notified), aff’d, 536 F.3d 198, 205 n.6 (3d Cir. 2008); Lawyer v. Gatto, 2007 WL 549440, *8 (S.D.N.Y., Feb. 21,
2007) (holding prisoner whose grievance was referred to the Inspector General need not await IG investigation’s
conclusion unless the grievance rules said so); Tyree v. Zenk, 2007 WL 527918, *9-10 (E.D.N.Y., Feb. 14, 2007)
(refusing to dismiss based on untimeliness of plaintiff’s grievance where he was told his complaint was being
investigated and it was not clear when he should appeal). But see Morris v. Barra, 2012 WL 1059908, *8 (S.D.Cal.,
Mar. 28, 2012) (rejecting claim that lateness of grievance should be excused where plaintiff “summarily allege[d]”
that a security officer told him he had to wait for the completion of the facility investigation; without “more facts
and/or evidence to excuse his late filing,” plaintiff did not meet his burden).
This problem has been conspicuous in California, where as noted the Ninth Circuit held that when an
appeal (grievance) was referred to the Internal Affairs “staff complaint” process, the plaintiff was not obliged to
proceed further in the appeal process because at that point it had no further power to address his complaint.
However, where an appeal involved other issues than those the staff complaint process addressed, the prisoner was
obliged to continue the appeal process with regard to those issues. Brown v. Valoff, 422 F.3d 926, 936-42 (9th Cir.
2005). This holding appears to present considerable danger of prisoners’ losing meritorious claims through
misunderstanding unless they are explicitly advised by prison personnel what issues are referred to the staff
complaint process and what issues must be pursued in the appeal process. Later decisions suggest prisoners are
given a pro forma notice that they can appeal regardless of whether there are remaining issues to appeal or relief to
be obtained. See, e.g., Walker v. Whitten, 2011 WL 1466882, *3-5 (E.D.Cal., Apr. 18, 2011) (holding second level
grievance response that no further remedies were available, confirmed by highest level response, meant that plaintiff
had exhausted regardless of defendants’ arguments about relief theoretically available); Lugo v. Williams, 2010 WL
4880657, *5-6 (E.D.Cal., Nov. 23, 2010) (where grievance was characterized as staff complaint and plaintiff

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New York State prisoners, a problem compounded by a decision of the Second Circuit.944
However, when a complaint is referred to an internal affairs or similar body, and it does not
appear that there is any further remedy for the prisoner, the prisoner has exhausted.945
The distinctions among remedies are not always clear as applied to a particular case, and
courts have held that prisoners are not to be victimized for legitimate misunderstandings. Thus,
the Second Circuit has held that a prisoner complaining of a retaliatory disciplinary charge based
on falsified evidence was justified in filing a disciplinary appeal rather than a grievance, since his
interpretation of the rules was reasonable even if wrong.946 Prisoners are also entitled to rely on
received notice of appeal rights, but there was no apparent separate issue to appeal, plaintiff had exhausted), report
and recommendation adopted, 2011 WL 346536 (E.D.Cal., Feb. 1, 2011); Cottrell v. Wright, 2010 WL 4806910,
*5-6 (E.D.Cal., Nov. 18, 2010) (where staff complaint was investigated and plaintiff was told he could appeal
further, but defendants did not identify to him or to the court any relief that remained available, plaintiff had
exhausted), report and recommendation adopted, 2011 WL 319080 (E.D.Cal., Jan. 28, 2011).
944
In Amador v. Andrews, 655 F.3d 89 (2d Cir. 2011), the court stated that a grievance referred to the Inspector
General—as all sexual abuse grievances are supposed to be—could be appealed to the Central Office Review
Committee, the highest grievance appeal body, when the Inspector General’s determination was reported to and
accepted by the Superintendent. Amador, 655 F.3d at 99. A sexual abuse grievance that also complains about
prison policies “can be pursued on appeal from the IG or superintendent to CORC [though] it appears on this record
that CORC does not entertain the claim for policy change unless the allegation of an act(s) of sexual abuse is
upheld.” Id. In fact, there is no provision in New York’s grievance rules for an appeal from the Inspector General
to CORC. Prisoners can appeal a referral to the Inspector General by the Superintendent or the Inmate Grievance
Review Committee to CORC, and some of the Amador plaintiffs did so, though these appeals too are denied in
deference to the IG. 655 F.3d at 103. Thus prisoners are required under the law of the Second Circuit to appeal to a
body that will not actually address the merits of their complaints.
945
Rosa v. Littles, 336 Fed.Appx. 424, 428-29 (5th Cir. 2009) (prisoner had exhausted where no further relief was
available after internal affairs referral); Joseph v. Gorman, 2012 WL 4089012, *6 (N.D.Fla., Mar. 12, 2012) (“A
response that denies a grievance appeal because the matter is already under investigation, as opposed to returning it
without action or finding it to be in non-compliance, must be considered exhaustion of administrative remedies.”
Plaintiff filed a further grievance which was dismissed as repetitive), report and recommendation adopted, 2012 WL
4088945 (N.D.Fla., Sept. 17, 2012); Maloch v. Pollard, 2012 WL 780380, *9-12 (N.D.Ga., Mar. 7, 2012) (declining
to dismiss where informal grievance was denied because it was being investigated by Internal Investigations Unit,
but plaintiff was denied forms to file a formal grievance); Logan v. Chestnut, 2010 WL 3385026, *3 (M.D.Fla.,
Aug. 26, 2010) (where emergency grievance was not accepted as such, but was referred to Inspector General, court
declines to dismiss; response to prisoner said: “Upon completion of this review, information will be provided to
appropriate administrators for final determination and handling.”); Thomas v. Huff, 2010 WL 3001992, *3 (D.Md.,
July 29, 2010) (stating that internal affairs investigation “appears to have taken this claim out of the typical
administrative remedy process”); Thomas v. Bell, 2010 WL 2779308, *2 & n.2 (D.Md., July 7, 2010) (noting that
prisoners are not permitted to pursue grievances for matters referred to Internal Investigation Unit).
946
Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004) (noting that a “learned” district judge had adopted the same
interpretation); see also Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (holding defendants did not establish
failure to exhaust available remedies where policies did not “clearly identif[y]” the proper remedy and there was no
“clear route” for prisoners to challenge certain decisions); Wilson v. Budgeon, 2007 WL 464700, *5 (M.D.Pa., Feb.
13, 2007) (declining to dismiss for non-exhaustion where rules did not clearly instruct the prisoner whether to raise
his retaliation claim in a disciplinary appeal or a grievance), appeal dismissed, 248 Fed.Appx. 348 (3d Cir. 2007);
Woods v. Lozer, 2007 WL 173704, *3 (M.D.Tenn., Jan. 18, 2007) (holding a prisoner exhausted when he appealed
a decision that his use of force claim was not grievable because it was mistakenly said to seek review of disciplinary
procedures and punishments); Rand v. Simonds, 422 F.Supp.2d 318, 326 (D.N.H. 2006) (holding that an inmate
handbook that says prisoners have the “right and opportunity” to submit grievances does not establish that
grievances are the only way or correct way to complain; a prisoner and his lawyer who pursued other seemingly
authorized avenues, and received responses, had exhausted); Beltran v. O’Mara, 405 F.Supp.2d 140, 154 (D.N.H.
2005) (holding a prisoner who was told he could not grieve incidents that were the subject of disciplinary
proceedings sufficiently exhausted by raising his concerns in disciplinary proceedings), on reconsideration, 2006
WL 240558 (D.N.H., Jan. 31, 2006). But see Marshall v. Knight, 2006 WL 3714713, *1 (N.D.Ind., Dec. 14, 2006)

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the instructions of prison personnel as to which remedy to use.947 The Supreme Court’s adoption
of a procedural default rule emphasized the “informality and relative simplicity of prison
grievance systems” like the one before it, and did not address the consequences of procedural
errors with respect to rules that are not clear.948
3. Non-Standard Forms of Complaint
Numerous courts have held that other forms of complaint besides filing a grievance–most
often, writing a letter to the prison superintendent or other highly placed official,949 or
cooperating in an internal investigation950–will generally not meet the PLRA exhaustion
(dismissing claim of a prisoner alleging retaliation in classification and disciplinary matters didn’t file a grievance
because classification and discipline were not grievable; the court said retaliation might be grievable, and did not
consider whethere the prisoner had interpreted the rules reasonable). Issues concerning disciplinary appeals are
discussed further at nn. 623-637, above.
947
Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006) (citing erroneous advice to abandon property loss claim and
file a grievance in finding special circumstances excusing failure to exhaust correctly); Lietz v. Dittmann, 2013 WL
4829303, *6 (E.D.Wis., Sept. 10, 2013) (holding plaintiff whose grievance was rejected as non-grievable because it
was related to a disciplinary proceeding exhausted, although written policy suggested it would actually have been
grievable after the disciplinary proceeding was finished); Riggs v. Valdez, 2010 WL 4117085, *9-10 (D.Idaho, Oct.
18, 2010) (holding grievance system was unavailable where prison staff rebuffed grievances about issues that were
also subject of disciplinary proceedings), on reconsideration in part, 2010 WL 5391313 (D.Idaho, Dec. 22, 2010);
Barkey v. Reinke, 2010 WL 3893897, *6-7 (D.Idaho, Sept. 30, 2010) (holding sexual abuse complaint was
exhausted where prisoner first used Prison Rape Elimination Act hotline and then, when she asked whom to speak
to, was directed to an investigator and not the grievance process); Naseer v. Hill, 2010 WL 3472355, *4 (W.D.Wis.,
Sept. 3, 2010) (“When an inmate is told his complaint is outside the scope of the review system and should be raised
in the disciplinary process, the relevant question for purposes of exhaustion is whether plaintiff raised the complaints
in the disciplinary process and filed the applicable appeals. . . .”); Born v. Monmouth County Correctional Inst.,
2008 WL 4056313, *4 (D.N.J., Aug. 28, 2008) (denying summary judgment in light of evidence that prisoner
complained to Internal Affairs rather than filing a grievance); Ray v. Jones, 2007 WL 397084, *2 (W.D.Okla., Feb.
1, 2007) (declining to dismiss for failure to grieve where plaintiff was repeatedly advised that an internal affairs
investigation would substitute for the grievance process); Flory v. Claussen, 2006 WL 3404779, *3-4 (W.D. Wash.,
Nov. 21, 2006) (holding prisoner who followed officials’ instruction to file an “appeal” to the Facility Risk
Management Team about removal from his job, rather than a grievance, exhausted); see also cases cited in n. 1076,
below, concerning prisoners’ reliance on prison personnel’s advice whether issues are grievable.
948
Woodford v. Ngo, 548 U.S. 81, 103 (2006); see §IV.E.7, above, for further discussion of this point.
949
See Small v. Camden County, 728 F.3d 265, 272-73 (3d Cir. 2013) (holding sick call requests and letters are not
grievances and do not exhaust); Yousef v. Reno, 254 F.3d 1214, 1221-22 (10th Cir. 2001) (holding that a letter to
the Attorney General was insufficient to exhaust as to actions that had been authorized by the Attorney General,
despite the government’s lack of clarity as to what authority the administrative remedy procedure might have over
the Attorney General’s decisions); Withrow v. Taylor, 2007 WL 3274858, *6-7 (N.D.N.Y., Nov. 5, 2007) (letters
are not grievances and do not exhaust); Davis v. Farry, 2005 WL 3336493, *3 (W.D.Wis., Dec. 7, 2005) (“The
requirement to exhaust entails following the procedures set forth in Wis. Admin. Code § DOC 310.04 for filing
administrative complaints and appealing adverse decisions to the Corrections Complaint Examiner and the Secretary
of the Department of Corrections. Sending letters to prison and state officials or anyone else regarding the alleged
wrongdoing by mail room staff does not meet those requirements.”); see Chelette v. Harris, 229 F.3d 684, 688 (8th
Cir. 2000) (dismissing case of a prisoner who was told by the warden that he would “take care” of a medical
problem, and therefore did not grieve it; the prisoner’s subjective belief that he had done all he could did not meet
the exhaustion requirement), cert. denied, 531 U.S. 1156 (2001); see Appendix A for additional authority on this
point.
Older New York state prison cases involving exhaustion by letters of complaint present special problems in
light of the state’s “expedited procedure” for certain kinds of complaints. See § IV.F.4, below.
950
Pavey v. Conley, 663 F.3d 899, 905 (7th Cir. 2011) (following Panaro and Thomas v. Woolum); Amador v.
Andrews, 655 F.3d 89, 101-03 (2d Cir. 2011) (holding complaint to Inspector General did not exhaust because

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requirement.951 Of course the provisions of a particular grievance system may lead to a different
conclusion,952 as may the circumstances of a particular case.953
prisoner did not appeal to highest grievance body, as rules allowed); Panaro v. City of North Las Vegas, 423 F.3d
949, 953 (9th Cir. 2005) (holding that participation in an internal affairs investigation did not exhaust because it did
not provide a remedy for the prisoner, even though the officer was disciplined); Thomas v. Woolum, 337 F.3d 720,
734 (6th Cir. 2003); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999) (holding that investigations by prison
Use of Force Committee and Ohio State Highway Patrol did not substitute for grievance exhaustion even though
criminal charges were brought against the officer); Godson v. City of Philadelphia, 2013 WL 5467816, *4-5
(E.D.Pa., Oct. 1, 2013) (following Panaro and Freeman); Starks v. Mitchell, 2013 WL 4029094, *6 (S.D.Ill., Aug.
8, 2013) (holding biased internal investigation did not satisfy or excuse exhaustion requirement); Blake v. Maynard,
2012 WL 1664107, *6-7 (D.Md., May 10, 2012) (holding internal affairs investigation did not satisfy exhaustion
requirement), on reconsideration, 2012 WL 5568940 (D.Md., Nov. 14, 2012); Canady v. Davis, 2009 WL 1177081,
*4 (N.D.Ill., Apr. 29, 2009) (similar to Panaro), vacated and remanded on other grounds, 376 Fed.Appx. 625 (7th
Cir., May 26, 2010); see Appendix A for additional authority on this point; see also Rozenberg v. Knight, 2012 WL
7827998, *7-8 (D.Colo., Nov. 19, 2012) (holding Inspector General’s investigation could not constitute “informal
exhaustion” because plaintiff did not get all the relief he sought), report and recommendation adopted, 2013 WL
1320779 (D.Colo., Mar. 29, 2013), aff’d, 542 Fed.Appx. 711 (10th Cir. 2013). But see Smith v. Beck, 2011 WL
65962, *5 (M.D.N.C., Jan. 10, 2011) (noting that plaintiff failed to exhaust, but that an internal investigation
“appears to have taken the grievance out of the typical administrative remedy process”).
951
See Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) (holding that Americans with Disability Act procedures
did not meet PLRA exhaustion requirement); Townes v. Paule, 407 F.Supp.2d 1210, 1218 (S.D.Cal. 2005) (holding
filing of “citizen complaint” rather than prison grievance did not exhaust), reconsideration denied, 2006 WL 783384
(S.D.Cal., Jan. 18, 2006).
952
In Pavey v. Conley, 170 Fed.Appx. 4, 8, 2006 WL 509447, *4 (7th Cir., Mar. 3, 2006) (unpublished), the plaintiff
alleged that prison staff had broken his arm and he couldn’t write, and the grievance rules said that prisoners who
couldn’t write could be assisted by staff. The court held that any memorialization of his complaint by investigating
prison staff might qualify as a grievance–and even if they did not write it down, he might have “reasonably believed
that he had done all that was necessary to comply with” the policy. See also cases cited in n. 941, above; Jackson v.
Gandy, 877 F.Supp.2d 159, 179 (D.N.J., June 29, 2012) (declining to dismiss where defendants did not “adequately
address the role of the Special Investigations Division or whether the Special Investigations Division's role overlaps
with the established grievance procedures”); Grimes v. Warden, Baltimore City Detention Center, 2012 WL
2575373, *4 (D.Md., June 29, 2012) (noting that once the Internal Investigation Unit initiates an investigation, the
grievance system is unavailable); Williams v. Marshall, 2010 WL 3291635, *8 (S.D.Ga., Apr. 26, 2010) (medical
request form could exhaust where jail policy said grievances must be in writing, and must describe the specific
factual basis and circumstances of the alleged incident, but did not otherwise specify a form to be used), report and
recommendation adopted in part, rejected in part, 2010 WL 3291803 (S.D.Ga., Aug. 19, 2010); Carter v. Symmes,
2008 WL 341640, *3 (D.Mass., Feb. 4, 2008) (timely letter from counsel served to exhaust where grievance rules
did not specify use of a form; letter considered as part of prisoners’ grievance raising other issues); Rand v.
Simonds, 422 F.Supp.2d 318, 326 (D.N.H. 2006) (holding that a policy stating prisoners have the “right and
opportunity” to file grievances “did not fairly suggest that the grievance procedure was the only way, or even the
correct way, for inmates to complain about their treatment”); Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80,
96-97 (D.Mass. 2005) (concluding that letters to officials are considered grievances under state law).
953
In re Bayside Prison Litigation, 351 Fed.Appx. 679, 681-82 (3d Cir. 2009) (evidence that prison officials
“converted” letter complaints about a particular incident and treated them identically to grievances raised a material
factual question as to exhaustion); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (holding that if security
officials told the plaintiff to wait for completion of an investigation before grieving, and then never informed him of
its completion, the grievance system was unavailable to him); Winfield v. Bishop, 2013 WL 4736378, *6
(N.D.N.Y., Sept. 3, 2013) (declining to grant summary judgment for non-exhaustion where investigation was
commenced in response to complaints, record did not indicate the results or whether plaintiff was notified of them;
triable issue raised as to special circumstances exception to exhaustion); Rodriguez v. Sweeny, 2012 WL 7854312,
*5-6 (N.D.N.Y., Feb. 10, 2012) (declining to dismiss where plaintiff’s informal complaints resulted in multiple
interviews and an Inspector General’s report, plus two memos from the Superintendent to the plaintiff articulating
conclusions, and there was no evidence the plaintiff knew or should have known about the grievance procedure),
report and recommendation adopted, 2013 WL 1415066 (N.D.N.Y., Apr. 8, 2013); De'Lonta v. Pearson, 2011 WL

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Other decisions have held that complaints that were in fact reviewed at the highest levels
of the agency satisfy the exhaustion requirement even if they were not processed through the
grievance system.954 Some of these are arguably overruled by the Supreme Court’s holding that
the exhaustion requirement is governed by a procedural default standard,955 insofar as prison
rules prescribe use of the grievance system or some other identified administrative system for
particular kinds of complaints.956 The Second Circuit has taken this view in Macias v. Zenk,957
795934, *6 (E.D.Va., Feb. 24, 2011) (declining to dismiss where prisoner had been advised not to file grievances
while they were timely because of the ongoing Internal Affairs investigation, with which she cooperated); Barkey v.
Reinke, 2010 WL 3893897, *6-7 (D.Idaho, Sept. 30, 2010) (prisoner who used Prison Rape Elimination Act hotline
to report sexual abuse, and was directed to an investigator rather than the grievance process when she complained
internally, exhausted); Ray v. Jones, 2007 WL 397084, *2 (W.D.Okla., Feb. 1, 2007) (declining to dismiss for
failing to grieve where plaintiff was repeatedly advised that an internal affairs investigation would substitute for the
grievance process); see also cases cited in n. 1074, below.
954
Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (holding that use of force allegation that was investigated and
rejected by Secretary of Correction’s office need not be further exhausted); Thomas v. Middleton, 2010 WL
4781360, *3 (D.Md., Nov. 16, 2010) (denying motion to dismiss since ordering an internal investigation “appears to
have taken this claim out of the typical administrative remedy process”), aff’d, 416 Fed.Appx. 235 (4th Cir. 2011);
Franklin v. Oneida Correctional Facility, 2008 WL 2690243, *7 (N.D.N.Y., July 1, 2008) (denying summary
judgment where prisoner’s letter to Commissioner prompted an investigation that might have made a grievance
redundant); Baker v. Andes, 2005 WL 1140725, *7 (E.D.Ky., May 12, 2005) (holding that prisoner who cooperated
with authorities and gave audio and video statements had sufficiently exhausted claim that he was gratuitously
beaten by an officer who was fired as a result); Lewis v. Gagne, 281 F.Supp.2d 429, 434-35 (N.D.N.Y. 2003)
(holding that juvenile detainee’s mother’s complaints to institutional officials and contacts with an attorney, family
court, and the state Child Abuse and Maltreatment Register, which were known to the facility director and agency
counsel, sufficed to exhaust; “Noting that an investigation into the incident did ensue, it is reasonable that plaintiffs
believed that at least one effort they took accomplished the same result that filing through the formal process would
have produced.”); O’Connor v. Featherston, 2003 WL 554752, *3 (S.D.N.Y., Feb. 27, 2003) (“An inmate should not
be required to additionally complain through collateral administrative proceedings after his grievances have been
apparently addressed and, by all appearance, rebuffed.”); Heath v. Saddlemire, 2002 WL 31242204, *4-5
(N.D.N.Y., Oct. 7, 2002) (following Perez v. Blot); Perez v. Blot, 195 F.Supp.2d 539, 542-46 (S.D.N.Y. 2002)
(holding requirement might be satisfied where plaintiff alleged he complained to various prison officials and to
Inspector General, whose investigation resulted in referral of officer for criminal prosecution); Noguera v. Hasty,
2000 WL 1011563, *11 (S.D.N.Y., July 21, 2000) (holding requirement satisfied where prisoner’s informal
complaint of rape resulted in Internal Affairs investigation), report and recommendation adopted in part, 2001 WL
243535 (S.D.N.Y., Mar. 12, 2001); see Prendergast v. Janecka, 2001 WL 793251, *1 (E.D.Pa., July 10, 2001)
(“Moreover, exhaustion may have occurred. Plaintiff claims to have notified several prison officials, including the
warden, of his alleged lack of dental treatment.”)
In Lewis v. Gagne, the court gave great weight to the fact that the facility’s own orientation handbook
presented the grievance system as only one of several ways residents could assert their rights, and the facility’s own
actions showed that it addressed and investigated problems that were not presented through the grievance system.
281 F.Supp.2d at 434; accord, Molina v. New York, *6, 2011 WL 6010907 (N.D.N.Y., Dec. 1, 2011) (adopting
reasoning and holding of Lewis v. Gagne).
955
Woodford v. Ngo, 548 U.S. 81 (2006). But see Houseknecht v. Doe, 653 F.Supp.2d 547, 560 (E.D.Pa. 2009)
(citing Camp v. Brennan, supra, and holding defendants have the burden of showing that a complaint that was
investigated does not satisfy the prison policy).
956
In Rainge-El v. Moschetti, 2006 WL 1980287 (D.Colo., July 12, 2006), on reconsideration of 2006 WL 1876632
(D.Colo., July 5, 2006), the court stated in dictum that Woodford might compel reexamination of its prior holding
that a prisoner’s letters to prison officials which, while not on the official grievance form, undisputedly provided the
information required by the grievance forms (“a clear statement of the basis for the grievance and the relief
requested”), and which elicited a response that “manifests an understanding of plaintiff’s contentions and provides a
substantive and final response,” sufficed to exhaust. 2006 WL 1980287, *1; compare 2006 WL 1876632, *2.
However, the court also questioned whether Woodford was applicable, since Mr. Rainge-El, unlike the Woodford
plaintiff, did not “entirely ignore” the prison’s administrative system. 2006 WL 1980287, *1.

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which held that Woodford’s holding overruled the Circuit’s earlier suggestion that if a prisoner’s
informal complaints provide sufficient notice to prison officials to allow them to take appropriate
responsive measures, the prisoner has exhausted.958 Macias stated that the PLRA requires both
“substantive exhaustion” (notice to officials) and “procedural exhaustion” (following the rules),
and that “after Woodford notice alone is insufficient.”959
On the other hand, courts applying a procedural default standard have held that when an
administrative system addresses the merits of an issue despite procedural noncompliance, the
exhaustion requirement is satisfied and any procedural objection is waived.960 Arguably the
same principle should apply when prison officials, presented with a prisoner complaint outside
the grievance system, address its merits rather than telling the prisoner he or she should have
filed a grievance.961
Further, Woodford and Macias notwithstanding, there may be particular circumstances
where complaints made outside the formal grievance system may suffice to exhaust. The Second
Circuit in Macias did not call into question its earlier holding that a prisoner’s reasonable
interpretation of confusing grievance rules may justify the failure to follow procedural rules
correctly,962 or its widely followed decision in Hemphill v. New York,963 where the plaintiff wrote
to the Superintendent rather than filing a grievance concerning an alleged assault by staff. He
said that he had been assaulted again and threatened if he complained in any fashion. The court
held that the threats against him may have made the grievance procedure unavailable to him, but
not the informal alternative of a letter to the Superintendent:
The test for deciding whether the ordinary grievance procedures were available
must be an objective one: that is, would “a similarly situated individual of
ordinary firmness” have deemed them available. Cf. Davis v. Goord, 320 F.3d
346, 353 (2d Cir. 2003) (articulating the “individual of ordinary firmness”
standard in the context of a prisoner retaliation claim). Moreover it should be
pointed out that threats or other intimidation by prison officials may well deter a
prisoner of “ordinary firmness” from filing an internal grievance, but not from
appealing directly to individuals in positions of greater authority within the prison
system, or to external structures of authority such as state or federal courts. This
may be so, if for no other reason, because seeking a criminal investigation or
filing a civil rights complaint may enable an inmate to draw outside attention to

957

495 F.3d 37 (2d Cir. 2007).
See Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2005) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d
Cir. 2004)).
959
Macias v. Zenk, 495 F.3d at 43-44.
960
See nn. 796-797, above.
961
But see Roth v. Larson, 2008 WL 4527831, *18 (D.Minn., Sept. 30, 2008) (the fact that prison officials respond
to informal complaints does not waive the defense that the prisoner failed to use the grievance system or other
designated remedy).
962
Macias, 495 F.3d at 43 n.1 (citing Hemphill v. New York, 380 F.3d 680, 690 (2d Cir. 2004)); see Benjamin v.
Commissioner N.Y. State Dept. of Correctional Services, 2007 WL 2319126, *14 (S.D.N.Y., Aug. 10, 2007)
(following Macias, noting that plaintiff could not believe a disciplinary appeal was his only remedy for a use of
force complaint). This problem is discussed further at nn. 753 et seq., 946, above.
963
380 F.3d 680 (2d Cir. 2004); see Macias, 495 F.3d at 44-45 (addressing Hemphill claim without addressing any
effect of Woodford on the Hemphill holding).
958

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his complaints, thereby neutralizing threatened retaliatory conduct from prison
employees.964
The Hemphill court also held that the plaintiff’s fear of retaliation might constitute
justification for having written to the Superintendent rather than having filed a grievance, a
question also governed by the standard “whether ‘a similarly situated individual of ordinary
firmness’ . . . would have been deterred from following regular procedures.” 965 Since
justification for failure to exhaust does not automatically excuse exhaustion, but requires the
plaintiff to exhaust if remedies are available, the court added in dictum: “It seems likely,
therefore, that facts sufficient to support a conclusion that an inmate was ‘justified’ in not
following ordinary procedures will be less powerful than those which would lead to a holding
that those procedures were not available. Because we need not decide that question at this time,
however, we do not do so.”966
In adopting its procedural default rule requiring “proper exhaustion,” i.e., exhaustion
compliant with the agency’s “critical procedural rules,”967 the Supreme Court did not have before
it any of the circumstances that the Second Circuit has held might justify departure from the
usual grievance procedures. A number of decisions have applied the Second Circuit framework
after Woodford.968
4. The New York State “Expedited Procedure”
Hemphill also bears on another dispute involving the New York state prisons over
whether letters to the Superintendent or other supervisory officials can meet the exhaustion
requirement. The issue is complicated by a change in state regulations. Until August 2003, the
grievance policy provided two mechanisms: ordinary grievances, which must be filed with the
Inmate Grievance Resolution Committee within 14 days of the relevant occurrence, and
“harassment” grievances, designed to address “[e]mployee misconduct meant to annoy,
intimidate, or harm an inmate.” The latter “expedited procedure” required the prisoner to report
the alleged misconduct to the staff member’s supervisor, after which the Superintendent
determined whether the matter was properly a harassment grievance. If so, the grievance
remained on an expedited track; if not, it was referred to the Inmate Grievance Resolution
Committee; if the Superintendent did not act, the prisoner “may”–not “must”–appeal directly to
the highest level of the grievance system, the Central Office Review Committee.969
Notwithstanding that “may” language, subsequent decisions have held that if the prisoner does
not obtain a favorable resolution from the Superintendent, the prisoner must appeal in order to

964

Hemphill, id. at 688. The effect of threats and retaliation on exhaustion obligations is discussed further at nn.
1042-1052895-905, below.
965
Hemphill, id. at 690 (citation omitted). “Given [an officer’s] alleged warning of retaliation, it is arguable that
Hemphill may have reasonably concluded that writing directly to the Superintendent involved an acceptable level of
risk, whereas filing a level 1 grievance or notifying the immediate supervisors of his purported attackers was too
fraught with danger.” Id.
966
Hemphill, id. at 690 n.8.
967
Woodford v. Ngo, 548 U.S. 81, 90 (2006).
968
See nn. 735-740, above.
969
This discussion is summarized from Morris v. Eversley, 205 F.Supp.2d 234, 239-40 (S.D.N.Y. 2002), which cites
the relevant state regulations then in effect, and still applicable to many pending cases.

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exhaust–though this result is now in doubt in light of an unreported Second Circuit decision. 970
However, it is not clear what constitutes a favorable decision in some cases, especially those
where the Superintendent’s decision is to refer the matter to the Inspector General.971
This expedited procedure has occasioned much controversy. In at least one case, prison
authorities took the position that following their own harassment grievance procedure did not
constitute exhaustion.972 District court decisions rejected that view.973 However, some courts
held that harassment complaints did not sufficiently exhaust if they were sent to the
Superintendent rather than to the employee’s immediate supervisor.974 In my view, poorly
educated prisoners should not be penalized for not understanding the term of art “immediate
970

In Stephenson v. Dunford, 320 F.Supp.2d 44, 51 (W.D.N.Y. 2004), vacated and remanded, 2005 WL 1692703
(2d Cir., July 13, 2005), the district court held that the prisoner’s failure to appeal after invoking the expedited
procedure was a failure to exhaust. Accord, Connor v. Hurley, 2004 WL 885828, *2 (S.D.N.Y., Apr. 26, 2004);
Rivera v. Goord, 2003 WL 1700518, *12 (S.D.N.Y., Mar. 28, 2003). On appeal, however, the State in Stephenson
agreed that the case should be remanded to determine whether there were “special circumstances” justifying
noncompliance, such as a reasonable belief by the prisoner that his actions sufficed to exhaust. 2005 WL 1692703,
*1.
The obligation to appeal may also be terminated by transfer, since in this grievance system, “departmental”
grievances may be appealed after transfer, but by negative implication, “institutional” grievances may not. Andrews
v. Cruz, 2010 WL 1141182, *6 (S.D.N.Y., Mar. 24, 2010); Land v. Kaufman, 2009 WL 1106780, *3-4 (S.D.N.Y.,
Apr. 23, 2009).
971
See Andrews v. Cruz, 2010 WL 1141182, *3, *5-6 (S.D.N.Y., Mar. 24, 2010) (plaintiff who received a transfer
and had his complaint referred to the Inspector General had obtained sufficiently favorable relief he was not required
to appeal); Pagan v. Brown, 2009 WL 2581572, *7-8 (N.D.N.Y., Aug. 19, 2009) (question whether a prisoner whose
complaint was referred by the Superintendent to the Inspector General’s office had any further remedy available
from the IG’s decision precluded dismissal for non-exhaustion); Lawyer v. Gatto, 2007 WL 549440, *8 (S.D.N.Y.,
Feb. 21, 2007) (holding plaintiff had exhausted because the Superintendent had forwarded his expedited procedure
grievance to the Inspector General, the only relief available under that procedure, and he had no reason to believe he
needed to appeal).
972
In Houze v. Segarra, 217 F.Supp.2d 394 (S.D.N.Y. 2002), a DOCS official submitted an affidavit stating that
harassment complaints were not filed as grievances, given grievance numbers, or otherwise processed as grievances,
and could not be appealed to the Central Office Review Committee. “Such a matter becomes a grievance, and
therefore is appealable to CORC, only if the inmate files a grievance complaint in accordance with [the ordinary
grievance procedures].” Id. at 398. These claims appear to directly contradict the rules governing the harassment
grievance procedure set forth in DOCS’ own policy and described in Morris v. Eversley, supra, as well as testimony
from the DOCS grievance director in other proceedings. Hemphill v. New York, 380 F.3d 680, 690 n.7 (2d Cir.
2004); see also Larry v. Byno, 2003 WL 1797843 (N.D.N.Y., Apr. 4, 2003) (noting that letter to Superintendent was
treated as a harassment grievance, assigned a grievance number, and investigated; claim dismissed because the
prisoner did not appeal the failure to render a decision).
973
Morris v. Eversley, 205 F.Supp.2d at 240-41; Perez v. Blot, 195 F.Supp.2d 539, 544-46 (S.D.N.Y. 2002); Gadson
v. Goord, 2002 WL 982393, *3 (N.D.N.Y., May 10, 2002).
In Gadson, prison officials did not record and treat the plaintiff’s harassment complaint according to the
harassment grievance procedures, leading the court to observe: “Prison officials cannot have it both ways–they
cannot obstruct an inmate’s pursuit of administrative remedies exhaustion by failing to comply with statutory
procedure on the one hand, and then claim that the inmate did not properly exhaust these remedies on the other.”
2002 WL 982393, *3; accord, Evans v. Jonathan, 253 F.Supp.2d 505, 509 (W.D.N.Y. 2003).
974
Houze v. Segarra, 217 F.Supp.2d at 395-96; McNair v. Sgt. Jones, 2002 WL 31082948, *7 n.3 (S.D.N.Y., Sept.
18, 2002); Byas v. State of New York, 2002 WL 1586963, *2 (S.D.N.Y., July 17, 2002). Contra, Rivera v. Goord,
2003 WL 1700518, *12 (S.D.N.Y., Mar. 28, 2003) (“Although Rivera did not comply with the technical
requirements of the expedited procedure [by writing the Superintendent], this failure does not automatically amount
to a failure to exhaust.”)
Some decisions simply assert that letters to the Superintendent do not exhaust, without discussing the
harassment grievance procedure. See, e.g., Harris v. Totten, 244 F.Supp.2d 229, 233 (S.D.N.Y. 2003).

216

supervisor” or not knowing who a particular staff member’s immediate supervisor is; it cannot be
burdensome for a prison superintendent simply to forward such complaints to the proper staff
member. In some cases, it appears, complaints to the Superintendent have indeed been treated as
harassment grievances by prison officials.975
The harassment grievance controversy took a new turn in Hemphill, in which the plaintiff
alleged that writing directly to the Superintendent “comported with DOCS procedural rules, or,
at a minimum, reflected a reasonable interpretation of those regulations.”976 In August 2003,
while Hemphill and its companion cases were being briefed, the Department of Correctional
Services amended its grievance rules to provide, as the prior version had not, that a prisoner who
files a harassment grievance must, in addition, file a regular grievance. The amendment
allegedly “clarified” the regulation, which the plaintiff argued demonstrated the lack of clarity of
the previous version. The court held his argument about lack of clarity “not manifestly
meritless” and remanded for a determination whether the plaintiff was justified on that ground in
not following normal grievance procedures.977 The same issue will be presented in any case in
which the prisoner complained by letter to supervisory officials before the August 2003 revision
of the grievance rules–and the operative date of the amendment, for purposes of what prisoners
can be expected to understand, will depend on when and how prison officials gave notice to the
prison population of the change.
5. Informal Exhaustion
Another variation of the “which remedy” problem involves prisoners who don’t file a
grievance because they get their problems solved informally, without needing to file a grievance.
In Marvin v. Goord,978 the Second Circuit stated that a prisoner who succeeded in resolving his
complaint informally—in that case, by talking to members of the prison staff—had “likely”
exhausted, since the relevant grievance policy says that the formal process was intended to
supplement, not replace, informal methods.979 In effect, the court held, informal resolution had
975

See Larry v. Byno, 2003 WL 1797843 (N.D.N.Y., Apr. 4, 2003) (noting that a letter to the Superintendent was
treated as a harassment grievance and given a grievance number); see generally § IV.E.7, above, concerning the
effect of procedural errors in the grievance process.
There is considerable authority even under a procedural default standard that if prison officials address the
merits of a procedurally improper grievance, they cannot subsequently claim that the procedural defect is a failure to
exhaust. See nn. 796-797, above. On that view, if the Superintendent responds to the merits of a complaint, the
prisoner has completed at least the first step of the expedited procedure. See Hairston v. LaMarche, 2006 WL
2309592, *9-11 (S.D.N.Y., Aug. 10, 2006) (finding special circumstances justifying a failure of technically correct
exhaustion where the Superintendent referred a complaint to the Inspector General, who reached a decision but did
not communicate it to the plaintiff; the court describes the referral itself as “partial favorable relief” and notes that
without a decision from the Superintendent to the prisoner it was unclear how the prisoner could take the expedited
process any further).
976
Hemphill, 380 F.3d at 689.
977
Hemphill, id. at 690. Subsequently, in Stephenson v. Dunford, 2005 WL 1692703, *1 (2d Cir., July 13, 2005),
vacating and remanding 320 F.Supp.2d 44 (W.D.N.Y. 2004), the State agreed that a case in which the prisoner had
written directly to the Superintendent must be remanded to determine whether there were “special circumstances”
justifying failure to follow the rules, such as a reasonable belief that the prisoner’s actions complied with prison
procedures.
978
255 F.3d 40 (2d Cir. 2001)
979
Marvin, 255 F.3d at 43 n.3 (“Resolution of the matter through informal channels satisfies the exhaustion
requirement, as, under the administrative scheme applicable to New York prisoners, grieving through informal
channels is an available remedy. See 7 N.Y.C.R.R. § 701.1 (stating that ‘the inmate grievance program (IGP) is

217

been adopted as part of the grievance system. Under this holding a prisoner must succeed in the
informal process in order to have exhausted through it.980
The Marvin holding and the whole notion of informal exhaustion are in considerable
tension with the widespread holding that letters to the warden, complaints to or cooperation with
an internal affairs body, etc., do not exhaust.981 In fact, the Second Circuit appears to have
abandoned its informal exhaustion holding. In Braham v. Clancy,982 the court held that a
prisoner who had made informal requests for a cell change, as required by prison rules before
filing a formal grievance, without success, but then received the cell change after he had been
assaulted, had not exhausted available remedies because he failed to file a formal grievance after
the assault. The court reasoned that the grievance process could have provided other relief, such
as changes in policies and procedures or discipline of staff, and therefore remedies remained
available within the meaning of the statute.983
Later, in Ruggiero v. County of Orange,984 the court held that a prisoner beaten in jail
who complained to Sheriff’s Department investigators did not exhaust even though he got a
intended to supplement, not replace, existing formal or informal channels of problem resolution’).”). In Bivens v.
Lisath, 2007 WL 2891416, *3 (S.D.Ohio, Sept. 28, 2007), the court cited the Ohio grievance procedure’s instruction
to “Talk to Or Kite Staff” and then, if the issue is resolved, “STOP” rather than file a grievance, in holding it would
would be reasonable for a prisoner to believe that he need not resort to the grievance process if his complaint is
resolved without it.
980
See Rozenberg v. Knight, 2012 WL 7827998, *7-8 (D.Colo., Nov. 19, 2012) (holding Inspector General’s
investigation could not constitute “informal exhaustion” because plaintiff did not get all the relief he sought in his
subsequent undexhausted grievance), report and recommendation adopted, 2013 WL 1320779 (D.Colo., Mar. 29,
2013), aff’d, 542 Fed.Appx. 711 (10th Cir. 2013); Thomas v. Cassleberry, 315 F.Supp.2d 301, 304 (W.D.N.Y. 2004)
(holding a complaint to the Inspector General exhausts informally only if the resolution is favorable); Curry v.
Fischer, 2004 WL 766433, *6 (S.D.N.Y., Apr. 12, 2004), dismissed on other grounds, 2004 WL 2368013
(S.D.N.Y., Oct. 22, 2004); Rivera v. Goord, 2003 WL 1700518, *11 (S.D.N.Y., Mar. 28, 2003) (holding that a
prisoner who initiated an investigation of his claim, but did not show that he obtained a favorable resolution
informally or that he sought administrative review of an unfavorable resolution, had not exhausted informally). But
see Gibson v. Brooks, 335 F.Supp.2d 325, 333 (D.Conn. 2004) (holding that a prisoner who confronted one of the
defendants and received an apology had informally exhausted). Contra, McCray v. Orange County Jail, 2007 WL
4180759, *1-2 (M.D.N.C., Nov. 20, 2007) (holding prisoner who received an apology but didn’t appeal failed to
exhaust; if he wasn’t satisfied, he should have finished the process).
If grievance rules provide that informal exhaustion is an acceptable alternative means of dispute resolution
regardless of outcome, it will satisfy the PLRA. Carr v. Hazelwood, 2008 WL 4556607, *5 (W.D.Va., Oct. 8,
2008), report and recommendation adopted, 2008 WL 4831710 (W.D.Va., Nov. 3, 2008).
981
See § IV.F.3, above.
982
425 F.3d 177 (2d Cir. 2005).
983
Braham, 425 F.3d at 183. However, the court declined to dismiss for non-exhaustion, holding that the plaintiff’s
informal requests might have given prison officials sufficient notice of the problems “‘to allow them to take
appropriate responsive measures,’ thereby satisfying the exhaustion of administrative remedies requirement,” id.
(citing Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)), and that the prisoner might reasonably have
concluded that receiving the cell change meant he had prevailed and need not proceed further administratively. 425
F.3d 184.
Braham can be read as holding that informal steps can suffice to exhaust as long as they put prison officials
on notice of the problem. However, the Second Circuit has subsequently held that in this respect Braham does not
survive the “proper exhaustion” holding of Woodford v. Ngo, 548 U.S. 81 (2006): “after Woodford, notice alone is
insufficient” without compliance with “critical procedural rules.” Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir.
2007). The plaintiff in Macias made no claim that the rules were so confusing that he reasonably believed that he
had satisfied the exhaustion requirement by filing tort claims and complaining informally, id., so the court had no
occasion to decide whether such a claim would satisfy the exhaustion requirement.
984
467 F.3d 170, 177 (2d Cir. 2006)

218

transfer out of the jail. The court said that Marvin v. Goord “does not imply that a prisoner has
exhausted his administrative remedies every time he receives his desired relief through informal
channels.”985 It said that the transfer did not provide all the available relief, and reiterated
Braham’s assertion that a formal grievance might have resulted in “developing . . . policies and
procedures pertaining to the grievance or disciplining the relevant officers.”986 In light of these
decisions, there seems little room for Marvin’s acknowledgement of informal exhaustion to
survive.987
Other courts have held that if prison rules provide or suggest that an informal complaint
is sufficient to complete the administrative process, a prisoner who does so has exhausted. 988 If a
plaintiff asserts that his informal complaint satisfies the prison rules without a formal grievance,
defendants, who have the burden of establishing the defense, must show that a formal grievance
is required under their policy.989 In some grievance systems there is a prescribed first stage that
is labelled or mislabelled “informal,” and success at that stage will generally satisfy the
exhaustion requirement.990 This point is not fundamentally different from the usual holding that
a prisoner need not appeal a favorable decision at a non-final stage of the grievance process.991
985

Ruggiero, 467 F.3d at 177. For further discussion of Braham and Ruggiero, see nn. 533-535, above.
Ruggiero, 467 F.3d at 177 (quoting Braham, 425 F.3d at 183).
987
See, e.g., Zafuto v. Okeefe, 2014 WL 297102, *4 (W.D.N.Y., Jan. 27, 2014) (stating “although DOCCS'
regulations encourage inmates to pursue informal resolutions, if Zafuto wished to pursue this matter in federal court,
‘he was required by the [ ] grievance procedure to make a formal, or informal followed by formal, complaint of the
prison officials' acts of which he now complains’”) (citations omitted).
988
Williams v. Georgia Dept. of Corrections, 2012 WL 2839454, *3 (S.D.Ga., May 2, 2012) (where grievance
policy encouraged resolving grievances at the informal level, prisoners need not pursue a formal grievance to
exhaust), report and recommendation adopted, 2012 WL 2839402 (S.D.Ga., July 10, 2012); Aziz v. Pittsylvania
County Jail, 2012 WL 263393, *5 (W.D.Va., Jan. 30, 2012) (“The policy does not preclude using informal methods
of grievance resolution and does not mandate written grievances as the sole method of exhaustion.”); Davis v. D.C.
Dept. of Corrections, 623 F.Supp.2d 77, 80-81 (D.D.C. 2009) (where handbook said that prisoners should complain
about sexual abuse by telling any staff member or calling a hotline, with no further action by the prisoner required,
those actions would exhaust). See Wray v. Oregon Dept. of Corrections, 2013 WL 3479477, *12 (D.Or., July 8,
2013) (holding without qualification that obtaining complete relief through informal means exhausts; filing a
grievance would be “superfluous”).
989
Houseknecht v. Doe, 653 F.Supp.2d 547, 560 (E.D.Pa. 2009).
990
Byrum v. Georgia Dept. of Corrections, 2011 WL 4083893, *5 n.3 (S.D.Ga., Sept. 13, 2011) (where grievance
procedure requires completion of an informal stage, and complaint is resolved at it, prisoner has exhausted), report
and recommendation adopted, 2011 WL 5239111 (S.D.Ga., Nov. 1, 2011); Agnes v. Joseph, 2011 WL 4352843, *4
(E.D.Cal., Sept. 16, 2011) (prisoner who asked to see a doctor, and was allowed to, by informal grievance had
exhausted; court notes informal section of grievance form does not refer to appeal), report and recommendation
adopted, 2011 WL 5024443, *1 (E.D.Cal., Oct. 20, 2011); Barrett v. Maricopa County Sheriff's Office, 2010 WL
46786, *4-5 (D.Ariz., Jan. 4, 2010) (prisoner who got his medication, which was all he sought, through the pregrievance informal process had exhausted); Gallegos v. Parsons, 2009 WL 3714629, *4 (S.D.Cal., Nov. 4, 2009)
(denying summary judgment to defendants on exhaustion where they failed to refute plaintiff’s statement that he
filed informal grievances which were granted); Stevens v. Goord, 2003 WL 21396665, *4 (S.D.N.Y., June 16, 2003)
(prisoner who got medical treatment by having his family contact the prison exhausted), adhered to on reargument,
2003 WL 22052978 (S.D.N.Y., Sept. 3, 2003); McGrath v. Johnson, 67 F.Supp.2d 499, 510 (E.D.Pa. 1999), aff’d,
35 Fed.Appx. 357, 2002 WL 1271713 (3d Cir. 2002); see also Branch v. Brown, 2003 WL 21730709, *12
(S.D.N.Y., July 25, 2003) (formal grievance resolved informally appeared to exhaust), judgment granted on other
grounds, 2003 WL 22439780 (S.D.N.Y., Oct. 28, 2003) ; Fogell v. Ryan, 2003 WL 21756096, *5 (D.Del., July 30,
2003) (similar to Branch).
In Stephenson v. Dunford, 320 F.Supp.2d 44, 51 (W.D.N.Y. 2004), vacated and remanded, 2005 WL
1692703 (2d Cir., July 13, 2005), the district court held that a prisoner who did not succeed in “informal” exhaustion
and did not appeal failed to exhaust. The State agreed that the case must be remanded to determine whether special
986

219

G.

“Available” Remedies

The statute requires exhaustion of remedies that are “available,” and under Booth v.
Churner a remedy is presumptively available unless it “lacks authority to provide any relief or to
take any action whatsoever in response to a complaint.”992 The Court added: “Without the
possibility of some relief, the administrative officers would presumably have no authority to act
on the subject of the complaint, leaving the inmate with nothing to exhaust.”993 No particular
circumstances such as the prisoner’s reasonable belief justified the prisoner’s failure to follow the rules. That case,
however, did not actually involve “informal” exhaustion, but the “expedited procedure” explicitly provided for in
the grievance rules. See § IV.F.4, above.
Such provisions are limited by the National Standards to Prevent, Detect, and Respond to Prison Rape,
recently promulgated under the Prison Rape Elimination Act, which provide: “The agency shall not require an
inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of
sexual abuse.” 28 C.F.R. § 115.52. To date there appears to be no case law addressing the interpretation or
enforceability of that provision.
991
See § IV.E.1, above.
992
Booth v. Churner, 532 U.S. 731, 736 (2001) (emphasis supplied) (holding unavailability of damages did not
make remedy unavailable); accord, Emmett v. Ebner, 423 Fed.Appx. 492, 494-95 (5th Cir. 2011) (unpublished)
(holding remedy that did provide damages was available although plaintiff’s damages demand was much higher than
damages limit); compare Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir. 2008) (“Requiring an inmate to
exhaust an administrative grievance process that cannot address the subject of his or her complaint would serve none
of the purposes of exhaustion of administrative remedies.”); Snider v. Melindez, 199 F.3d 108, 133 n.2 (2d Cir.
1999) (stating “the provision clearly does not require a prisoner to exhaust administrative remedies that do not
address the subject matter of his complaint.”); Henderson v. Thomas, 2012 WL 3846439, *12 (M.D.Ala., Sept. 5,
2012) (holding that a “medical grievance process” was not an available remedy for complaints about the segregation
of HIV-positive prisoners because there was no evidence that process had any authority over nonmedical issues or
prison policy; directing prisoners to it would “bait-and-switch the plaintiffs”); see Brown v. Croak, 312 F.3d 109,
113 (3d Cir. 2002) (“‘Available’ means ‘capable of use; at hand.’ See Webster’s II, New Riverside University
Dictionary 141 (1994 ed.); see also Black’s Law Dictionary 135 (6th ed.1990) (defining ‘available’ as ‘suitable;
useable; accessible; obtainable; present or ready for immediate use. Having sufficient force or efficacy; effectual;
valid.’”)). But see Cowart v. Erwin, 2013 WL 6188731, *3 (N.D.Tex., Nov. 26, 2013) (holding the ability to refer a
complaint to Internal Affairs is enough to make the remedy “available” under the statute).
In Braham v. Clancy, 425 F.3d 177 (2d Cir. 2005), the court held that a prisoner who sought a change of
cellmate to avoid being assaulted, was assaulted after no action was taken, and was moved after the assault still had
an available remedy via the grievance system; even though the action he had been seeking had been accomplished,
the prison system could still have provided other relief, such as changing policies and procedures or disciplining
staff. However, the court also held that receiving the cell change could be a “special circumstance” that might lead
an uncounselled prisoner reasonably to conclude that he had satisfied the exhaustion requirement. See also
Blankenship v. Owens, 2011 WL 610967, *4-5 (N.D.Ga., Feb. 15, 2011) (dismissing for non-exhaustion where
complaint was grievable under policy, even though defendants responded to a grievance by stating “grievance for
events that have not occurred is prohibited by policy”; court rejects argument that remedy was unavailable); Allen v.
Hickman, 407 F.Supp.2d 1098, 1102-03 (N.D.Cal. 2005) (dismissing for non-exhaustion a request for a stay of
execution pending receipt of medical care because the administrative system could provide relief concerning
medical care, even if it couldn’t provide a stay of execution). But see Nooner v. Norris, 2006 WL 4958988, *3
(E.D.Ark., June 19, 2006) (holding grievance system was not available for challenge to lethal injection protocol
where state statute gave the prison Director sole authority for determining it).
993
Booth v. Churner, 532 U.S. at 736 n.4.; see Johnson v. Cantrall, 2012 WL 5398473, *1 (W.D.Okla., Sept. 17,
2012) (declining to dismiss for non-exhaustion where defendants did not identify any remedy available to plaintiff,
since the grievance system did not provide for damages, the grievance policy excluded staff discipline as a remedy,
the prisoner had already been transferred, and officials had authorized medical and psychiatric treatment,
underttaken an internal investigation, and instructed the officer in how to conduct a pat search), report and
recommendation adopted, 2012 WL 5398469 (W.D.Okla., Nov. 2, 2012).

220

structure or degree of formality is required of a grievance system as long as it is constituted to act
on individuals’ complaints994—though there is an extreme of informality that courts will not
credit.995 Remedies may be deemed unavailable if there is no “clear route” for challenging the
conduct in question.996
The Second Circuit has suggested that in deciding whether an unexhausted claim should
nevertheless be allowed to go forward, any issue of availability of remedies should be considered
first.997 That makes sense because it potentially leads to the simplest resolution. If remedies
were unavailable at the time the complaint arose, the exhaustion requirement is simply
inapplicable. If there is an estoppel issue, its resolution may differ according to the conduct of
different defendants, and if there is an issue of justification for failure to exhaust, the disposition
will depend on whether remedies remain available.998
Availability of administrative remedies “is a question of law . . . [that] necessarily
involves a factual inquiry.”999

994

See nn. 886-890, above.
Miller v. Shah, 2011 WL 2672257, *1-2, 4 (S.D.Ill., June 8, 2011), report and recommendation adopted, 2011
WL 2679091 (S.D.Ill., June 30, 2011). In Miller, the court held that defendants failed to meet their burden of proof
where there were no identified steps or procedures for exhaustion beyond a single sentence in a 23-page rules and
regulations document stating that the prisoner should put his complaint in writing and submit it to either the Jail
Superintendent or the Sheriff, with no time limits for an inmate to file a grievance or for the Jail Superintendent or
Sheriff to respond and no procedure for filing an appeal. Defendants claimed that they gave verbal instruction upon
admission to the jail, but did not know whether that supposed procedure was written down and could not prove that
anyone actually received the instruction. Cf. Castillo v. Bobelu, ___ F.Supp.2d ____, 2014 WL 798014, *18
(W.D.Okla., Feb. 27, 2014) (holding that evidence that prisoners were told “they should report any wrongdoing” did
not show the prison “had a grievance procedure with which the inmates were required to comply”).
996
Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (finding record “hopelessly unclear” whether particular
decisions could be challenged through the grievance process); see nn. 628-631, 753-761, 946-948, above, and 1074,
1078, below, concerning the lack of clarity in prison remedies.
997
Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004).
998
See nn. 205, 258-260, 516, 870, 965-966, above, and § IV.G.3, and n. 1157, below.
999
Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013); accord, Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010) (“[W]hile it is a question of law whether administrative remedies qualify as being ‘available’ under 42
U.S.C. § 1997e(a), availability may sometimes turn on questions of fact.”).
The Second Circuit has stated:
Whether an administrative remedy was available to a prisoner in a particular prison or prison
system, and whether such remedy was applicable to the grievance underlying the prisoner's suit,
are not questions of fact. They either are, or inevitably contain, questions of law. Where
administrative remedies are created by statute or regulation affecting the governance of prisons,
the existence of the administrative remedy is purely a question of law. The answer depends on the
meaning of the relevant statute or regulation. Even where a grievance procedure is informally
established by the warden of a prison and therefore not ascertainable by examination of statutes or
regulations, the existence of the procedure may be a matter of fact, but whether it qualifies as an
administrative remedy that must be exhausted under Section 1997e(a) is a question of law.
995

Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999). The essential point of this rather overstated formulation is
that whether a remedy addresses the particular type of claim a prisoner asserts is a question of law. Subsequent
decisions have made it clear that whether an applicable remedy is actually available to a prisoner may turn on factual
questions. See, e.g., Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011) (holding that factual disputes over
exhaustion are for the court and not the jury).

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1. Grievable and Non-Grievable Issues
The first question about the “availability” of an administrative remedy is whether it has
authority to provide “some redress” for the kind of complaint that is at issue.1000 It is common
for some issues not to be “grievable” in a particular grievance system because the system
explicitly excludes them from coverage,1001 or because the informal practices of staff have the

1000

Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001); accord, Rahim v. Sheahan, 2001 WL 1263493, *6-7 and n.3
(N.D.Ill., Oct. 19, 2001) (holding defendants have the burden of “proving that there is an administrative process that
would be able to take action in response to [the specific] complaints–action, that is, other than saying, “Sorry, we
can’t do anything about it.”). In Riley v. Brown, 2006 WL 1722622, *9 (D.N.J., June 21, 2006), where two of seven
plaintiffs had filed grievances and had been told the prison didn’t have the authority to do anything about the
problem, the court declined to dismiss the claims of the other plaintiffs since exhaustion would have been “futile.”
In practice, this amounts to a holding that the remedy was not available.
In Reichart v. Prison Health Services, SCI-Camp Hill, 2013 WL 4855380, *6 (M.D.Pa., Sept. 5, 2013), the
court rejected the plaintiff’s claim that he was told he couldn’t grieve medical issues, since the actual response was
“a clinical outcome, therefore denied.” The decision appears to be erroneous; the implication of this response is that
no redress was available for that kind of complaint, and that the remedy was therefore unavailable.
1001
See Owens v. Keeling, 461 F.3d 763, 769-70 (6th Cir. 2006) (stating “a prisoner is not required to pursue a
remedy where the prison system has an across-the-board policy declining to utilize that remedy for the type of claim
raised by the prisoner”; noting classification matters excluded from Tennessee grievance system); Figel v. Bochard,
89 Fed.Appx. 970, 971, 2004 WL 326231, *1 (6 th Cir. 2004) (unpublished) (noting that Michigan system makes
non-grievable issues that “involve a significant number of prisoners”); Jackson v. Phelps, 2013 WL 6092168, *4
(D.Del., Nov. 19, 2013) (holding plaintiff had exhausted since his grievance was returned as non-grievable); Wray
v. Oregon Dept. of Corrections, 2013 WL 3479477, *13 (D.Or., July 8, 2013) (holding a challenge to the adequacy
of the grievance process to air federal claims did not fall within the scope set out in the grievance policy); Brown v.
Massachusetts, 2013 WL 2407686, *3 (D.Mass., May 30, 2013) (citing evidence that cell reassignments were not
grievable); Ford v. Tennessee, 2013 WL 1347562, *3 (M.D.Tenn., Apr. 3, 2013) (holding claims designated
“INAPPROPRIATE GRIEVANCE” under state grievance policy need not be exhausted); Kotewa v. Westbrooks,
2013 WL 1249227, *5 (E.D.Tenn., Mar. 27, 2013) (noting reclassification was not grievable); Evans v. Heidorn,
2013 WL 355822, *3 (E.D.Wis., Jan. 29, 2013) (noting “Policies, Rules, Regulations, and Procedures of the Sauk
County Jail ARE NOT subject to review as part of the inmate grievance process.”), aff’d, ___ Fed.Appx. ____, 2014
WL 687876 (7th Cir. 2014); Crihalmean v. Ryan, 2012 WL 5269312, *3-4 (D.Ariz., Oct. 24, 2012) (noting
grievance policy made “[a]ctions of the ... State Legislature” non-grievable, though dismissing where plaintiff’s
claim involved administrative actions pursuant to a grant of discretion by the legislature); McAllister v. Garrett,
2012 WL 4471531, *5 (S.D.N.Y., Sept. 25, 2012) (noting that Westchester County jail policy makes disciplinary
and administrative segregation decisions non-grievable); Bruce v. Correctional Medical Services, Inc., 2012 WL
4372378, *3 (E.D.Tenn., Sept. 24, 2012) (noting that Tennessee prison grievance system excludes medical
diagnoses); Standley v. Ryan, 2012 WL 3288728, *3 (D.Ariz., Aug. 13, 2012) (holding gang validation appeal
procedure which allowed appeals only of the specific reasons for validation was not an available remedy for due
process concerns); Oliver v. Browe, 2012 WL 4459939, *3-4 (W.D.Va., July 30, 2012) (noting that medical care
complaints are non-grievable under jail grievance policy), order issued, 2012 WL 4459941 (W.D.Va., July 30,
2012); Oliver v. Harbough, 2011 WL 6412044, *4 (D.Md., Dec. 19, 2011) (rejecting non-exhaustion defense where
matters under investigation by Internal Investigation Unit were no longer subject to grievance system); Holland v.
Bramble, 775 F.Supp.2d 748, 752-53 (D.Del. 2011) (holding a system that heard “inmate complaints regarding
policies and conditions . . . within DOC jurisdiction” which do not “have their own formal appeal mechanisms” did
not allow grievances about incidents resulting in criminal charges prosecuted outside the prison); Smith v. Warden,
2011 WL 886211, *2 (D.Md., Mar. 10, 2011) (stating that if grievance process did not address claims of
withholding of mail, mail withholding claim could not be barred for non-exhaustion); see Appendix A for additional
authority on this point. But see Crouchman v. Pickens County LEC Jail, 2013 WL 2109691, *10 (D.S.C., Mar. 22,
2013) (erroneously equating non-grievability with futility and holding it does not excuse non-exhaustion), report
and recommendation adopted, 2013 WL 2109590 (D.S.C., May 15, 2013); Hanks v. Prachar, 2009 WL 702177, *78 (D.Minn., Mar. 13, 2009) (stating that non-grievability does not excuse exhaustion since the procedure is
available).

222

same effect.1002 For example, the current New York City jail grievance directive lists the
following “Submissions Not Subject to IGRP Process”:
1.
“dispositions stemming from a program or procedure that has its own
departmental administrative or investigative process” (e.g., disciplinary process and dispositions,
requests for accommodation or complaints of discrimination based on disability, enhanced
restraint status, and others);
2.
inmates”;
3.

“allegations of physical or sexual assault or harassment by either staff or
requests for reassignment or disciplinary action against staff members;

4.
“[g]rievances or requests concerning matters outside the Department’s
jurisdiction, or over which the Department has no authority” (e.g., complaints about the actions
of medical personnel, who work under the supervision of the Department of Health and Mental
Hygiene).1003

Rules concerning non-grievable issues may be applied very narrowly. See Jones v. Schofield, 2010 WL
786585, *4 (M.D.Ga., Mar. 4, 2010) (acknowledging the sexual assaults and harassment were not grievable, but
dismissing claim of inadequate medical care after rapes because medical care was grievable).
1002
See Miller v. Coning, 2014 WL 808023, *7-8 (D.Del., Feb. 28, 2014) (holding remedies unavailable where
plaintiff was told his complaint was non-grievable contrary to written grievance policy; noting “this is not the first
instance in which the court has commented on ad hoc grievance procedures in Delaware prisons”); Kelley v.
DeMasi, 2008 WL 4298475, *4 (E.D.Mich., Sept. 18, 2008) (where grievance response said that medical
appointments could not be scheduled without the medical provider’s approval, it was questionable whether the
grievance process was available); Wigfall v. Duval, 2006 WL 2381285, *8 (D.Mass., Aug. 15, 2006) (citing
evidence that use of force claims were not treated as grievances); Scott v. Gardner, 287 F.Supp.2d 477, 491
(S.D.N.Y. 2003) (holding that allegations that grievance staff refused to process and file grievances about
occurrences at other prisons, claiming they were not grievable, sufficiently alleged lack of an available remedy), on
reconsideration, 344 F.Supp.2d 421 (S.D.N.Y. 2004) and 2005 WL 984117 (S.D.N.Y., Apr. 28, 2005); Casanova v.
Dubois, 2002 WL 1613715, *6 (D.Mass., July 22, 2002) (finding that, contrary to written policy, practice was “to
treat complaints of alleged civil rights abuses by staff as ‘not grievable’”), remanded on other grounds, 304 F.3d 75
(1st Cir. 2002); Livingston v. Piskor, 215 F.R.D. 84, 86-87 (W.D.N.Y. 2003) (holding that evidence that grievance
personnel refused to process grievances where a disciplinary report had been filed covering the same events created
a factual issue precluding summary judgment); see Marr v. Fields, 2008 WL 828788, *6 (W.D.Mich., Mar. 27,
2008) (evidence that hearing officers interpreted grievance policy broadly to exclude all grievances with any
relationship to a disciplinary charges could excuse failure to exhaust); Cain v. Dretke, 2006 WL 1663728, *3
(S.D.Tex., June 13, 2006) (holding remedies were unavailable where a grievance was returned unprocessed, marked
“inappropriate” without explanation and for no discernible reason); see also Kendall v. Kittles, 2004 WL 1752818,
*2 (S.D.N.Y., Aug. 4, 2004) (noting that Grievance Coordinator’s affidavit said that plaintiff needed a physician’s
authorization to grieve medical concerns; no such requirement appears in the New York City grievance policy,
annexed as Appendix C, or in its successors, Appendices G and H).
In Davis v. Frazier, 1999 WL 395414, *4 (S.D.N.Y., June 15, 1999), the court noted plaintiff’s allegation
that New York City prisoners are told at orientation that “a grievance cannot be brought against Officers or Staff”
(an exception that does not appear in the written policy, quoted in the text below). It held that this allegation
supported an estoppel defense to a claim of failure to exhaust). I have seen documents from the City grievance
program itself rejecting claims as non-grievable because the grievance committee “does not investigate complaints
against staff.” But see Berry v. City of New York, 2002 WL 31045943, *8 (S.D.N.Y., June 11, 2002) (holding that
despite “no grievance against Officers or Staff” announcement, prisoner’s subsequent filing of several grievances
defeated estoppel claim).
1003
Appendix H, New York City Dep’t of Correction Directive 3376, Inmate Grievance and Request Program, §
IV.B (September 10, 2012)

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Unfortunately some district courts have failed to examine the actual City policy and have
dismissed non-grievable claims for failure to grieve, an error condemned by the Second
Circuit.1004 Several other courts have dismissed New York City cases while erroneously citing
the New York State prison grievance procedure.1005
As to New York City medical care claims, matters remain in some confusion because of
the City’s inconsistent positions. In one unreported case, the City conceded that claims against
employees of the jails’ private medical contractor were “outside the jurisdiction of the
Department of Correction” and hence non-grievable, since jail health care is committed to the
City Department of Health rather than Correction. However, it claimed without elaboration that
there was a separate Health and Hospitals Corporation complaint procedure that prisoners should
exhaust,1006 a claim not further addressed in the case law. In another case, the City simply
asserted that medical care claims are grievable, without addressing the “outside the jurisdiction”
language in the grievance directive.1007 In a third case, decided by the same judge on the same
(http://www.nyc.gov/html/doc/downloads/pdf/Directive_3376_Inmate_Grievance_Request_Program.pdf). The new
directive substitutes “not subject to IGRC process” for the term “non-grievable.”
This list is modified from its predecessors, which made non-grievable “matters under investigation by the
Inspector General, . . . [or] pertaining to matters in litigation .” Appendix C, New York City Dep’t of Correction
Directive 3375R, Inmate Grievance Resolution Program at § II.B (March 4, 1985); Appendix G, New York City
Dep’t of Correction Directive 3375R-A, Inmate Grievance Resolution Program at § II.C. (March 13, 2008). The
reference to complaints which do not directly affect the inmate was removed, but it remains clear in the current
directive that such a direct effect is a necessary element of a grievance. Appendix H, Directive 3376, § II.A. See
Rizzuto v. City of New York, 2003 WL 1212758, *4 (S.D.N.Y., Mar. 17, 2003) (noting that claims of assault, verbal
harassment, or matters under Inspector General investigation are non-grievable); Handberry v. Thompson, 2003 WL
194205, *8-10 (S.D.N.Y., Jan. 28, 2003) (holding issues concerning education in jail non-grievable based on
defendants’ prior statements that they were non-grievable because not under the sole control of the Department of
Correction), aff’d in part, vacated in part, and remanded on other grounds, 446 F.3d 335, 342 (2d Cir. 2006) (noting
failure to reach the issue on appeal). The omission of matters under investigation by the Inspector General moots
some prior case law. See Berry v. Kerik, 237 F.Supp.2d 450, 451 (S.D.N.Y. 2002) (stating that a matter under
investigation by the Inspector General had to be exhausted notwithstanding the policy); Jones v. Jones, 2002 WL
31548721, *1 (S.D.N.Y., Nov. 21, 2002) (dismissing for non-exhaustion on the ground that there was no evidence
the matter was being investigated by the Inspector General, despite the plaintiff’s conversation with an investigator
who said he would look into it).
1004
See Mojias v. Johnson, 351 F.3d 606, 608-10 (2d Cir. 2003) (reversing dismissal of assault claim for nonexhaustion in a system that does not hear assault claims); see also Timmons v. Pereiro, 88 Fed.Appx. 447, 2004 WL
322702, *1 (2d Cir. 2004) (unpublished) (same).
1005
See Goldenberg v. St. Barnabas Hosp., 2005 WL 426701, *3 n.5 (S.D.N.Y., Feb. 23, 2005); Kearsey v.
Williams, 2002 WL 1268014 (S.D.N.Y., June 6, 2002); John v. N.Y.C. Dept. of Corrections, 183 F.Supp.2d 619,
624-25 (S.D.N.Y. 2002); Harris v. N.Y.C. Dept. of Corrections, 2001 WL 845448, *2-3 (S.D.N.Y., July 25, 2001).
Another decision makes the same error in a case arising at another county jail. Ruggiero v. County of Orange, 386
F.Supp.2d 434, 436 (S.D.N.Y. 2005), aff’d, 467 F.3d 170 (2d Cir. 2006). Cf. Musto v. Trinity Food Services, Inc.,
2009 WL 426014, *4 (M.D.Fla., Feb. 20, 2009) (rejecting argument that prisoner challenging jail conditions must
exhaust state prison grievance system set out in state regulations).
1006
Timmons v. Pereiro, 88 Fed.Appx. 447, 448, 2004 WL 322702, *2 (2d Cir. 2004) (unpublished).
1007
Oates v. City of New York, 2004 WL 1752832, *3 (S.D.N.Y., Aug. 4, 2004) (noting City’s inconsistent
positions). In Leacock v. New York City Health Hosp. Corp., 2005 WL 1027152 (S.D.N.Y. May 4, 2005), adopted,
2005 WL 1639329 (S.D.N.Y., July 12, 2005), the City initially sought dismissal for non-exhaustion of the grievance
process in a suit against medical staff, then acknowledged (citing Timmons) that that remedy was inapplicable to
such claims. See also Fernandez v. New York City Dept. of Correction, 2010 WL 1222017, *6 (S.D.N.Y., Mar. 29,
2010) (dictum) (noting open question whether a medical complaint arising from a use of force is grievable). But see
Prince v. Latunji, 746 F.Supp.2d 491, 494 (S.D.N.Y., Sept. 27, 2010) (granting defendants’ motion to dismiss
without noting question of availability of remedy against medical staff).

224

day, the jail Grievance Coordinator submitted an affidavit stating that he told the plaintiff that to
grieve medical concerns “he would need written physician authorization for each request,” a
requirement that did not and does not appear in the grievance policy.1008
The fact that grievance systems may vary in the issues for which they provide redress
underscores the importance of the Second Circuit’s holding that courts must “establish the
availability of an administrative remedy from a legally sufficient source.”1009 Courts should
require substantiation that an administrative procedure on its face affords relief for a particular
type of complaint before dismissing a prisoner’s claim for non-exhaustion.1010
In some instances, issues are not grievable because the prison system has relegated them
to a different administrative remedy. In such cases, it is that remedy that must be exhausted; the
grievance process is not available for that issue.1011 An issue that is not explicitly non-grievable,
but over which the grievance process has no actual authority, should not require grievance
exhaustion under Booth.1012 Prisoners will generally not be held to have failed to exhaust where
they have relied on prison staff’s representations as to what issues are and are not grievable.1013
1008

Kendall v. Kittles, 2004 WL 1752818, *2 (S.D.N.Y., Aug. 4, 2004); compare Appendix C, Dep’t of Correction
Directive 3375R; see also Appendix G (updated Directive 3375R-A, also lacking such a provision) and Appendix H
(substituted Directive 3376) at § V.A (also lacking such a provision).
1009
Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999); accord, Rahim v. Sheahan, 2001 WL 1263493, *6-7 and
n.3 (N.D.Ill., Oct. 19, 2001) (holding defendants have the burden of “proving that there is an administrative process
that would be able to take action in response to [the specific] complaints–action, that is, other than saying, ‘Sorry,
we can’t do anything about it.’”)
1010
See Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (holding prison officials had not established an
available remedy where nothing “clearly identifie[d]” how to challenge certain decisions).
1011
See § IV.F.2, n. 938, above. In some cases, it is difficult to tell from the prison rules whether a particular
complaint should be raised by grievance or some other procedure. The Second Circuit has held that a prisoner who
relies on a reasonable interpretation of prison regulations that proves to be mistaken is justified in having failed to
exhaust properly; if remedies remain available, the case should be dismissed so the prisoner may exhaust them. If
remedies are no longer available, the suit may proceed. If the case is dismissed so the plaintiff can exhaust but
remedies prove to be unavailable in fact, the suit can be reinstated. Giano v. Goord, 380 F.3d 670, 679-80 (2d Cir.
2004).
1012
See Kaemmerling v. Lappin, 553 F.3d 669, 676 (D.C.Cir. 2008) (Bureau of Prisons grievance system was not an
available administrative remedy for statutorily mandated DNA testing, since Bureau of Prisons had no discretion not
to collect DNA); Nooner v. Norris, 2006 WL 4958988, *3 (E.D.Ark., June 19, 2006) (holding that prisoner
challenging lethal injection protocol need not exhaust the grievance process because it had no authority, since state
law placed the subject entirely in the Director’s authority); Farnworth v. Craven, 2007 WL 793397, *5 (D.Idaho,
Mar. 14, 2007) (holding prisoner seeking a new parole hearing need not exhaust the grievance system because it had
no authority over the Parole Commission); Stevens v. Goord, 2003 WL 21396665, *5 (S.D.N.Y., June 16, 2003)
(holding that private prison medical provider failed to meet its burden of showing that the prison grievance
procedure would actually have authority over claims against it), adhered to on reargument, 2003 WL 22052978
(S.D.N.Y., Sept. 3, 2003); Handberry v. Thompson, 92 F.Supp.2d 244, 247 (S.D.N.Y. 2000) (holding that prisoners
need not grieve failure to deliver educational services because the issues were out of Department of Correction’s
control), aff’d in part, vacated in part, and remanded on other grounds, 446 F.3d 335 (2d Cir. 2006). The
Handberry appeals court did not reach that issue. 446 F.3d at 342. In Arsberry v. Illinois, 244 F.3d 558 (7th Cir.),
cert. denied, 534 U.S. 1062 (2001), the court reached the opposite result, stating: “The plaintiffs say they have no
such remedies against exorbitant phone bills, but the cases we have cited reject a ‘futility’ exception to the
requirement of exhaustion.” The Arsberry court unaccountably overlooked the distinction between an allegedly
futile remedy and one that is not available, and in any case did not have the benefit of Booth’s holding, with which it
appears inconsistent.
In Holka v. Napolitano, 2009 WL 536598, *5-6 (D.Ariz., Mar. 4, 2009), plaintiffs were held required to
grieve complaints about deductions from their inmate accounts that were required by statute. The court avoided the

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2. Unavailability Based on the Facts
A remedy may also be unavailable for reasons peculiar to a particular case. For example,
one prisoner was held not to have had an available remedy because his hand was broken and he
could not prepare a timely grievance, and was not allowed to file an untimely one when he was
again able to write.1014 Courts have acknowledged other medical reasons making administrative
remedies unavailable,1015 though in many cases they have not credited purported medical
excuses.1016 A number of decisions have held, as Days implies, that prisoners who could not file

question whether a remedy was actually available on the ground that plaintiffs had at least to start the grievance
process to determine whether any remedies were available.
1013
See n. 1076, below.
1014
Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (noting that “one’s personal ability to access the grievance
system could render the system unavailable”).
1015
See Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir. 2011) (holding remedy would be unavailable if prisoner was
incapacitated by stroke during time when he was required to file grievance, and he was not allowed to file a late
grievance), cert. denied, 132 S.Ct. 168 (2011); Pavey v. Conley, 170 Fed.Appx. 4, 9, 2006 WL 509447, *5 (7th Cir.,
Mar. 3, 2006) (unpublished) (holding grievance procedure might be unavailable to a prisoner who couldn’t write
because of injury and was isolated from anyone who could help him); Franklin v. Fewell, 2014 WL 505341, *4
(N.D.Ind., Feb. 7, 2014) (rejecting defendants’ argument that plaintiff was capable of filing a grievance upon his
return from an outside hospital after emergency surgery; court notes he spent nine days in the prison infirmary and
was taking prescription pain medication; evidentiary hearing required to resolve the question); Greenup v. Lee, 2014
WL 471715, *4 (W.D.La., Feb. 5, 2014) (holding remedy unavailable during period of mental and physical
incapacity); Perry v. Rupert, 2013 WL 6816795, *5 (N.D.N.Y., Dec. 20, 2013) (holding “repeated refusal of care,
refusal of access to a Sergeant, wrongful transfer to the psychiatric ward, transfer by ambulance to Claxton Hepburn
Medical Center for emergency consultation, transfer to multiple other hospitals for eight surgeries, hospitalization
for a total of six months, release to a medical RNU, and finally a surgery to have the infected mesh removed fifteen
months later” could constitute special circumstances excusing non-exhaustion); Ford v. Alexander, 2013 WL 66147,
*4 (N.D.Ohio, Jan. 4, 2013) (holding remedy was not shown to be available to prisoner who was hospitalized,
groggy from head injuries and medication, during the period when he should have filed a grievance); Richmond v.
Dart, 2012 WL 6138751, *4-5 (N.D.Ill., Dec. 11, 2012) (denying summary judgment for non-exhaustion where
prisoner was hospitalized, underwent several surgeries, and experienced short-term memory loss during the period
for filing a grievance); Ollison v. Vargo, 2012 WL 5387354, *2-3 (D.Or., Nov. 1, 2012) (holding remedy appeared
“effectively unavailable” to prisoner who was mentally and physically incapable of filing a grievance during the
prescribed period where the grievance system did not allow late grievances; rejecting argument that Woodford v.
Ngo undermined Days v. Johnson); Johnson v. Juvera, 2012 WL 4008942, *7 (D.Ariz., Sept. 12, 2012) (holding
remedy unavailable where prisoner could not remember events because of his injuries and could not timely obtain
necessary information from officials); see Appendix A for additional authority on this point..
1016
See Ferrington v. Louisiana Dept. of Corrections, 315 F.3d 529, 532 (5th Cir. 2002) (holding plaintiff’s near
blindness did not exempt him from exhausting; after all, he managed to file this suit), cert. denied, 540 U.S. 883
(2003); Lopez v. Goodman, 2013 WL 3105550, *3 (W.D.N.Y., June 18, 2013) (holding prisoner was not excused
from exhaustion by his hospitalization where the grievance system provided for extensions of time for mitigating
circumstances), reconsideration denied, 2013 WL 5309747 (W.D.N.Y., Sept. 20, 2013); Miller v. Warden, 2013
WL 1003606, *2-3 (E.D.Cal., Mar. 13, 2013) (holding prisoner who alleged his wrist was broken and he couldn’t
write failed to exhaust absent evidence that he requested assistance in filing but did not get it); Johnson v. Federal
Bureau of Prisons, 2012 WL 5995731, *2 (C.D.Cal., Oct. 29, 2012) (similar to Ferrington), report and
recommendation adopted, 2012 WL 5995726 (C.D.Cal., Nov. 30, 2012); Wallace v. Miller, 2012 WL 1106759,
*13-14 (M.D.Pa., Mar. 6, 2012) (noting that plaintiff’s allegedly injured hand was able to file another grievance
during the relevant time period), report and recommendation adopted, 2012 WL 1106779, *2 (M.D.Pa., Apr. 2,
2012), aff’d, 544 Fed.Appx. 40 (3d Cir. 2013); Lease v. Mitcheff, 2012 WL 1035528, *4 (N.D.Ind., Mar. 23, 2012)
(holding statement that plaintiff was in pain and forgot to follow up on grievances was not a valid excuse for nonexhaustion); see Appendix A for additional authority on this point.

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grievances when they would be timely were obliged to file them untimely, notwithstanding the
governing “proper exhaustion” rule.1017
Courts have not taken any consistent approach to the question whether administrative
remedies are available to prisoners who may lack the capacity to use them, by reason of
disability,1018 impaired literacy or lack of education,1019 language barrier,1020 or youth.1021 The
1017

See cases cited in nn. 847-849, above.
Hale v. Rao, 768 F.Supp.2d 367, 377 (N.D.N.Y., Mar. 8, 2011) (“Hale's illiteracy and poor understanding of the
IGP rendered the grievance procedure unavailable”; court mentions that plaintiff had a recorded IQ of 71; failure to
exhaust is “excused”); Williams v. Hayman, 657 F.Supp.2d 488, 495-97 (D.N.J. 2008) (evidence of the deaf
plaintiff’s inability to communicate in writing or with his counselor raised a factual issue concerning availability to
him of the grievance remedy); Johnson-Ester v. Elyea, 2009 WL 632250, *6-8 (N.D.Ill., Mar. 9, 2009) (where
prisoner could not write, ambulate, or make himself understood, and may have been irrational or delusional at times,
he was not capable of pursuing a grievance; letters from his mother and lawyer about his condition put officials on
sufficient notice they should have assisted him in filing a grievance; grievance system made no provision for outside
persons to use it); Kuhajda v. Illinois Dept. of Corrections, 2006 WL 1662941, *1 (C.D.Ill., June 8, 2006) (holding
that a prisoner who is hearing-impaired and has limited ability to read and write, and who did not have the assistance
of a sign language interpreter, raised a factual issue concerning availability of remedies). But see Thomas v. Holder,
2010 WL 3260029, *3 (D.Md., Aug. 18, 2010) (dismissing claim of blind prisoner for non-exhaustion where he had
filed 15 grievances in the preceding several years); Oliver v. Virginia Dept. of Corrections, 2010 WL 1417833, *6
(W.D.Va., Apr. 6, 2010) (dismissing claim of legally blind prisoner who had filed numerous complaints and
grievances without inquiry into her access to the system for this grievance); Scott v. Stepp, 2009 WL 2855786, *14
(S.D.Fla., Sept. 1, 2009) (declining to excuse non-exhaustion by plaintiff who is blind, did not have the assistance of
a law clerk, and lacked Braille versions of the grievance procedures, since he had repeatedly used the grievance
process on other occasions); Elliott v. Monroe Correctional Complex, 2007 WL 208422, *3 (W.D.Wash., Jan. 23,
2007) (dismissing for non-exhaustion where plaintiff with cerebral palsy was provided with assistance and had filed
numerous grievances, though he hadn’t actually exhausted any).
1019
Robertson v. Dart, 2009 WL 2382527, *3 (N.D.Ill., Aug. 3, 2009) (denying summary judgment on exhaustion
where the illiterate plaintiff alleged that a staff member gave him wrong information about how to mark a form to
appeal his grievance decision); Langford v. Ifediora, 2007 WL 1427423, *3-4 (E.D.Ark., May 11, 2007) (holding
plaintiff’s age, deteriorating health, and lack of general education, combined with failure to provide him assistance
in preparing grievances, raised a factual issue concerning the availability of the remedy to him); Kuhajda v. Illinois
Dept. of Corrections, 2006 WL 1662941, *1 (C.D.Ill. June 8, 2006) (see previous note); see Womack v. Smith, 2011
WL 819558, *9 (M.D.Pa., Mar. 2, 2011) (illiteracy in combination with other factors made the remedy unavailable;
illiteracy by itself would not excuse non-exhaustion where prisoner did not ask for assistance as provided in
grievance policy). In the unreported decision in Davis v. Corrections Corp. of America, 131 Fed.Appx. 127, 128-29,
2005 WL 880892, *1 (10th Cir., Apr. 18, 2005) (unpublished), the court rejected the argument that the plaintiff’s
educational deficiencies (he said he was a “slow learner and thinker” still working to obtain a G.E.D.) should excuse
his failure to exhaust, noting that his papers “did not describe insurmountable barriers to his filing of grievances and
did not show that prison officials had effectively foreclosed his efforts.” Id., *1; see also Ramos v. Smith, 187
Fed.Appx. 152, 154 (3d Cir. 2006) (unpublished) (rejecting claim of illiteracy, since federal regulations require
assistance to illiterate prisoners, and plaintiff did not allege that he asked for such assistance); Georgacarakos v.
Watts, 147 Fed.Appx. 12, 14-15, 2005 WL 1984451, *2-3 (10th Cir. 2005) (unpublished) (ignoring litigant’s plea to
appoint counsel if his exhaustion presentation was inadequate, in light of his lack of “means and sophistication”);
Levan v. Thomas, 2011 WL 2669288, *2 (D.Ariz., July 7, 2011) (rejecting claim of illiteracy, since grievance policy
provided for assistance to illiterate persons, and defendants said grievance staff would help individuals as needed);
Womack v. Smith, 2008 WL 822114, *8 (M.D.Pa., Mar. 26, 2008) (similar to Ramos v. Smith), reversed and
remanded on other grounds, 2009 WL 347469 (3d Cir., Feb. 12, 2009) (unpublished). Cf. Cook v. LaPonsie, 2008
WL 4425589, *5 (W.D.Mich., Sept. 26, 2008) (excusing grievance’s mis-description of problem where illiterate
plaintiff had had to describe it to another prisoner, who made an error).
1020
Several courts have denied summary judgment to prison officials where a monolingual Spanish-speaking
plaintiff alleged he could not understand or follow the grievance procedures because he could not get them, or get
help with them, in Spanish. See Beltran-Ojeda v. Doe, 2013 WL 6059242, *3 (D.Ariz., Nov. 18, 2013) (holding
allegations of failure to provide an interpreter, to accept Spanish grievances, or to reply in a language other than
1018

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same is true of mental illness or developmental disability. Some courts have held that allegations
or evidence of such disability may defeat claims of non-exhaustion, at least at early stages of the
litigation.1022 Others have rejected claims that mental disabilities prevented exhaustion,1023

English may support a claim of unavailability), reconsideration denied, 2014 WL 1047148 (D.Ariz., Mar. 18, 2014);
Bojorquez v. Fitzsimmons, 2009 WL 790950, *4-5 (C.D.Ill., Mar. 23, 2009); Abel v. Pierson, 2008 WL 509466, *4
(S.D.Ill., Feb. 13, 2008); Ramos v. Rosevthal, 2007 WL 1464436, *1 n.1 (D.Neb., May 17, 2007); Gonzalez v.
Lantz, 2005 WL 1711968, *3 (D.Conn., July 20, 2005). But see Figueroa v. Bass, 522 Fed.Appx. 643, 644 (11th
Cir. 2013) (rejecting claim of limited English proficiency because the plaintiff had filed other grievances later and
didn’t explain why he couldn’t have done so at this point); Mendez v. Sullivan, 2012 WL 760724, *4-5 (M.D.Pa.,
Mar. 7, 2012) (granting summary judgment to defendants based on evidence of bilingual handbook, availability of
interpreters and of counselors to assist Spanish-speaking prisoners), aff’d, 488 Fed.Appx. 566, 568 (3rd Cir. 2012);
Aleman v. Dart, 2012 WL 488068, *5-6 (N.D.Ill., Feb. 14, 2012) (declining to excuse Spanish-speaking prisoner’s
non-exhaustion, given evidence of his failure to seek help from prison staff, his ability to get help from other
prisoners, his filing of other grievances and of adequate legal papers given that help, and the fact that the grievance
policy was made known in Spanish. “A prisoner's lack of familiarity with English may excuse a failure to exhaust
administrative remedies where the prisoner is given insufficient assistance by prison officials to enable the prisoner
to satisfy the prison grievance process.”); see Appendix A for additional authority on this point; see also Lang Vo
Tran v. Illinois Dept. of Corrections, 2011 WL 816630, *8 (S.D.Ill., Mar. 1, 2011) (holding lack of competence in
English does not excuse other failures to exhaust in light of provisions for staff assistance, accessibility for persons
who don’t speak English, and explanation of procedures in non-English languages).
1021
One appeals court has rejected the argument that a juvenile jail inmate complaining of excessive force should be
excused from failure to use the grievance process in part because he was a juvenile. Brock v. Kenyon County, Ky.,
2004 WL 603929, *4 (6th Cir., Mar. 23, 2004) (unpublished); see also Minix v. Pazera, 2005 WL 1799538, *4
(N.D.Ind., July 27, 2005) (holding that a juvenile’s mother’s repeated complaints to numerous officials did not
exhaust her son’s complaint of being beaten and raped). By contrast, in Lewis v. Gagne, 281 F.Supp.2d 429, 433-35
(N.D.N.Y. 2003), the court held that a juvenile detainee’s mother, who had complained to facility staff and
contacted an attorney, family court, and the state Child Abuse and Maltreatment Register, and whose complaints
were known to the facility director and agency counsel, had made sufficient “reasonable efforts” to exhaust, without
explicitly commenting on the juvenile detainee’s own status or capacity to follow administrative procedures. See
Troy D. v. Mickens, 806 F.Supp.2d 758, 768-69 (D.N.J. 2011) (holding ombudsman procedure was exhausted by an
attorney’s letter to juvenile institution superintendent, since it created an opportunity for investigation and resolution
at the facility level); Molina v. New York, 2010 WL 812353, *3 (N.D.N.Y., Mar. 3, 2010) (denying summary
judgment for non-exhaustion on present record “with due consideration to Plaintiff’s juvenile and pro se status”).
1022
See Beaton v. Tennis, 460 Fed.Appx. 111, 113-14 (3d Cir. 2012) (unpublished) (evidence that prison staff took
advantage of plaintiff’s confused mental state arising from a skull fracture and post-concussion syndrome to make
him withdraw his grievance raised a factual issue barring summary judgment for non-exhaustion); Peterson v. Hall,
2012 WL 3111632, *7-9 (E.D.Mich., July 2, 2012) (declining to dismiss for non-exhaustion where plaintiff’s
grievance was rejected for being illegible and he said he was nearly illiterate and mentally ill and was refused
assistance in pursuing his grievance when he sought it, contrary to the grievance policy), report and
recommendation adopted, 2012 WL 3111629, *1-2 (E.D.Mich., July 31, 2012); Wimbush v. Booth-Moulden, 2012
WL 2575497, *7 (D.Md., June 28, 2012) (noting non-exhaustion, but reaching the merits because plaintiff was
complaining of denial of mental health treatment); Michalek v. Lunsford, 2012 WL 1454162, *2-4 & n.5 (E.D.Ark.,
Apr. 5, 2012) (declining to dismiss for non-exhaustion where plaintiff was diagnosed with a psychotic disorder and
found unfit to stand trial a few months before the incident, was later found fit but acquitted by reason of insanity,
and was later transferred to a mental hospital, where his condition improved under medication), report and
recommendation adopted, 2012 WL 3235781 (E.D.Ark., Apr. 24, 2012); see Appendix A for additional authority on
this point; see also Macahilas v. Taylor, 2008 WL 220364, *4 (E.D.Cal., Jan. 25, 2008) (denying summary
judgment to defendants based on alleged psychological effects of a serious physical illness), report and
recommendation adopted, 2008 WL 506109 (E.D.Cal., Feb. 22, 2008). In Johnson-Ester v. Elyea, 2007 WL
3046155, *2 (N.D.Ill., Oct. 10, 2007), the mother of a mentally incompetent prisoner said she had made repeated
complaints about his medical care without success; the court rejected defendants’ argument that the case should be
dismissed for non-exhaustion, citing the mother’s assertions that “she did what she could do” to solve the problem
administratively, but it did not clarify what it thought the PLRA requires or permits in this sort of situation.

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though often on the ground that the plaintiff did not sufficiently plead or provide evidentiary
support for the claim1024—a rather Catch-22ish approach to pro se litigants who assert that their
mental disabilities prevented them from properly completing an administrative process that is
supposed to be simpler than litigation.
The only appellate court that has addressed this issue in any depth—unfortunately, in an
unpublished decision—has held that the defendants had the burden of proof as to whether a
mentally disabled plaintiff “was actually capable of filing” a grievance, and noted that the
prisoner before it raised a genuine issue as to whether he “even knew that he needed mental
health treatment—much less that he needed to communicate that need to [prison] personnel,”
whether he “was mentally capable of filing a grievance,” and whether he “sufficiently
understood the detention facility's grievance system” and knew he had to fill out a form.1025 The
court also notes that to file a grievance, the plaintiff would have had to place a form in the
grievance mail box, which he would have been unable to do because he refused to leave his
cell.1026 Though the district court had found in part for the plaintiff, the appeals court’s framing
is more favorable to plaintiffs than the district court’s holding that mental illness renders
remedies unavailably only if it renders the prisoner “unable to communicate in any intelligible
form for a particular period,” “unable to comply with the grievance procedure,” and/or
1023

Lopez v. Swift, 2013 WL 4718972, *4 (E.D.Wash., Sept. 3, 2013) (holding plaintiff’s depression did not excuse
non-exhaustion where he had filed other grievances during the same time period); Williams v. Crosby, 2013 WL
791253, *6-7 (E.D.N.C., Mar. 4, 2013) (rejecting mental-health related claim as “self-serving and conclusory”
despite evidence of “paranoid ideation and hallucinatory delusions of conversations with God and sexual threats
from inmates and staff” immediately preceding the incident, since he had previously used the grievance system);
Marella v. Terhune, 2011 WL 4074865, *8 (S.D.Cal., Aug. 16, 2011) (rejecting claim that plaintiff was unable to
grieve because of medication, shock, and pain, relying on expert opinion based on review of his medical records,
and his ability to perform other tasks during the same time period), report and recommendation adopted, 2011 WL
4074750 (S.D.Cal., Sept. 13, 2011); Johnson v. District of Columbia, 869 F.Supp.2d 34, 39 (D.D.C. 2012)
(following what court says is “the bulk of authority that has consistently held that individuals with disabilities or
mental illness must nonetheless comply with the PLRA's exhaustion requirements”; court goes on to distinguish
contrary cases and suggest plaintiff has not shown his disorder prevented him from exhausting); Grant v. Henderson,
2011 WL 902357, *4-6 (N.D.Fla., Feb. 7, 2011) (holding allegation that plaintiff was too highly medicated to
understand his rights did not excuse non-exhaustion as a matter of law; also rejecting claim on facts), report and
recommendation adopted, 2011 WL 902228 (N.D.Fla., Mar. 15, 2011); see Appendix A for additional authority on
this point.
1024
See Crabtree v. Gephart, 2012 WL 1205814, *4-5 (D.Idaho, Apr. 11, 2012) (dismissing for non-exhaustion
where plaintiff alleged he has “a mental illness,” is “borderline mentally retarded,” and is “bipolar”; “there is no
evidence that Plaintiff's alleged mental illness difficulties prevented him from filing a grievance” and he had used
the system before); Contino v. Hillsborough County Dept. of Corrections, 2011 WL 4406320, *6 (D.N.H., Sept. 21,
2011) (granting summary judgment because plaintiff failed to produce evidence to support claim that mental illness
prevented his exhausting; noting he had followed the grievance procedure on another occasion); Calloway v.
Grimshaw, 2011 WL 4345299, *5 (N.D.N.Y., Aug. 10, 2011) (dismissing for non-exhaustion where plaintiff said he
was suffering from a psychotic episode, but “does not allege that any mental condition constituted a special
circumstance that prevented him from exhausting his administrative remedies”), report and recommendation
adopted, 2011 WL 4345296 (N.D.N.Y., Sept. 15, 2011); see Appendix A for additional authority on this point.
In one recent case, a federal appellate judge dissented from the affirmance of dismissal for non-exhaustion
of a prisoner who alleged she had mental illness and that she had encountered obstruction in trying to exhaust. Ball
v. SCI Muncy, 385 Fed.Appx. 211, 216 (3d Cir. 2010) (dissenting opinion) (“I do not believe that [Congress’s]
intention was to bar judicial review when the inmate is incapable, because of mental disability, to understand and
complete the prison grievance process. The plaintiff's claims arguably fall into this category and on the record here
merit inquiry before dismissal.”), cert. denied, 131 S.Ct. 1006 (2011).
1025
Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622, 625 (6th Cir. 2011) (unpublished).
1026
Braswell, 419 Fed.Appx. at 626.

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“completely unable to file a grievance,” and if “this is evidenced to the Court's satisfaction.”1027
While there is some overlap between the Circuit’s language and the district court’s, the latter’s
phrase “unable to communicate in any intelligible form” seems to suggest that an extreme of
disability is required; the Circuit’s specification of several questions to be explored is more
expansive than the district court’s formulation; and the Circuit’s reference to the defendants’
burden of proof is absent from the district court decision. In that case there was ample evidence
before the court of the prisoner’s condition. Whether the decision will benefit pro se litigants
who are ill-equipped to make an adequate record will remain to be seen.1028
Prisoners may also be unable to use a grievance system because they have been
transferred or were otherwise absent from the institution or prison system when they should have
filed a grievance.1029 However, transfer or absence will not automatically excuse non-

1027

Braswell v. Corrections Corp. of America, 2009 WL 2447614, *8 (M.D.Tenn., Aug. 10, 2009), rev’d, 419
Fed.Appx. 622 (6th Cir. 2011) (unpublished). In Braswell, the district court found that the plaintiff was unable to
communicate except in gibberish for a period of some eight months, then regained his faculties sufficiently to
communicate intelligibly. Though he didn’t file a grievance, he had been transferred by then and was not shown to
have access to the sending prison’s grievance process. 2009 WL 2447614, *9.
1028
It did in the unusual case of Michalek v. Lunsford, 2012 WL 1454162, *2-4 & n.5 (E.D.Ark., Apr. 5, 2012),
report and recommendation adopted, 2012 WL 3235781 (E.D.Ark., Apr. 24, 2012), in which the court sua sponte
assembled a substantial record concerning the plaintiff’s psychiatric status by electronically accessing the records of
his criminal proceeding. That decision underscores how unlikely it is that a prisoner with mental illness could
effectively make such a case pro se.
1029
Johnston v. Maha, 460 Fed.Appx. 11, 15 (2d Cir. 2012) (unpublished) (“The PLRA does not require prisoners to
reach across jurisdictional lines to take advantage of grievance systems that are no longer available to them.”);
Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding allegation that transferred prisoner could not get
grievance forms for transferring prison system sufficiently alleged exhaustion of available remedies); Lawson v.
Youngblood, 2014 WL 273854, *3-4 (E.D.Cal., Jan. 23, 2014) (holding remedy unavailable where prisoner made a
verbal complaint but was immediately transferred, and thereafter did not have access to the written complaint
process), report and recommendation adopted, 2014 WL 669779 (E.D.Cal., Feb. 20, 2014); Johnson v. Schiff, 2013
WL 5465978, *9-10 (N.D.N.Y., Sept. 10, 2013) (denying dismissal for non-exhaustion where plaintiff was
transferred immediately and grievance policy did not contain provisions for filing once transferred), report and
recommendation adopted, 2013 WL 5466638, *8-9 (N.D.N.Y., Sept. 30, 2013); Chaplin v. Maas, 2013 WL
1249173, *12 (W.D.Va., Feb. 1, 2013) (denying summary judgment for non-exhaustion where defendants had
terminated plaintiff’s grievance upon transfer and there was no evidence it remained available), report and
recommendation adopted, 2013 WL 1249146 (W.D.Va., Mar. 26, 2013); Huspon v. Rains, 2013 WL 415609, *4
(S.D.Ind., Feb. 1, 2013) (finding remedy unavailable to prisoner removed from prison immediately after injury
because policy allowed former prisoners to grieve only if they had commenced the process before transfer); Artis v.
Adam, 2012 WL 4450019, *13 (N.D.N.Y., July 31, 2012) (holding jail remedy was not shown to be available to
prisoner allegedly assaulted by staff as he was being transferred to state prison), report and recommendation
adopted, 2012 WL 4380921 (N.D.N.Y., Sept. 25, 2012); Aziz v. Pittsylvania County Jail, 2012 WL 263393, *5-6
(W.D.Va., Jan. 30, 2012) (holding remedy was unavailable where policy made it impossible to continue a grievance
after transfer; noting plaintiff was transferred so quickly he did not have time to exhaust first); Thomas v. Ulep,
2011 WL 864311, *4 (E.D.Va., Mar. 9, 2011) (finding dispute of material fact as to whether grievance system could
grant relief after transfer); Hartry v. County of Suffolk, 755 F.Supp.2d 422, 433-34 (E.D.N.Y. 2010) (declining to
dismiss where prisoner was transferred out of jail too quickly to have a meaningful opportunity to exhaust, and
where rules provided to prisoners did not require grieving after leaving the jail); Rodriguez v. Mount Vernon Hosp.,
2010 WL 3825736, *12-13 (S.D.N.Y., Sept. 7, 2010) (finding factual dispute with respect to prisoner’s ability to
appeal a grievance during a temporary transfer), report and recommendation adopted, 2010 WL 3825715 (S.D.N.Y.,
Sept. 30, 2010), aff’d, 2010 WL 3959602 (S.D.N.Y., Oct. 5, 2010); see Appendix A for additional authority on this
point; see also King v. Coleman, 2007 WL 2330767, *1-3 (E.D.Cal., Aug. 13, 2007) (holding prisoner injured in a
jail van who was not a prisoner in that jail was not shown to have access to the jail’s grievance policy), report and
recommendation adopted, 2007 WL 2893997 (E.D.Cal., Sept. 28, 2007).

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exhaustion; courts have held exhaustion required if the grievance system makes provision for
grievances to be filed and processed under such circumstances,1030 or if the prisoner had the
opportunity to file before transfer.1031 Defendants have the burden of proof on this point as on
other issues concerning exhaustion.1032 This determination can be difficult to make in some
In Johnson v. Ohio Dept. of Rehabilitation and Corrections, 2008 WL 4560757, *2 (S.D.Ohio, Oct. 9,
2008), the Rastafarian plaintiff, in jail, sought an injunction against cutting his hair if he were sentenced to prison;
the court declined to dismiss for non-exhaustion since the plaintiff didn’t yet have access to the state prison
grievance procedure.
1030
Anderson v. DeLeon, 2013 WL 5603855, *4-5 (C.D.Cal., Oct. 10, 2013) (dismissing for non-exhaustion where
plaintiff could have used jail grievance system even after transfer to state prison), appeal dismissed, No. 13-56890
(9th Cir., Dec. 5, 2013); Thompson v. Jones, 2012 WL 3686749, *5 (N.D.Ill., Aug. 24, 2012) (holding remedy was
not unavailable after transfer where county jail policy provided for acceptance of grievances from state prison);
Veenstra v. Corrections Corp. of America (CCA), 2011 WL 3566853, *2-3 (D.Idaho, Aug. 15, 2011) (transfer was
no excuse where grievance policy provided for post-transfer grievances); Napier v. Laurel County, Ky., 2009 WL
2255767, *3-4 (E.D.Ky., July 29, 2009) (where post-transfer grievances were in fact processed, prisoner was
obliged to submit one even though policy was unclear), aff’d, 636 F.3d 218 (6th Cir. 2011); see Appendix A for
additional authority on this point. Compare Cowart v. Erwin, 2013 WL 6188731, *4-5 (N.D.Tex., Nov. 26, 2013)
(finding jail grievance appeal unavailable to prisoner who had been transferred after filing because prisoners who
have left the jail are not informed of the disposition of their grievances and are unable to appeal).
1031
Alonso-Prieto v. Pierce, 2014 WL 250342, *4 (E.D.Cal., Jan. 22, 2014) (holding jail prisoner transferred within
two days, where the grievance policy had a 10-day time limit, was not shown to have had a meaningful opportunity
to grieve), report and recommendation adopted, 2014 WL 907205 (E.D.Cal., Mar. 7, 2014); Mitchell v. Hammons,
2013 WL 6189510, *3 (S.D.W.Va., Nov. 26, 2013) (dismissing for non-exhaustion where plaintiff remained at
sending facility for almost two months before transfer but did not file a grievance); Evans v. Heidorn, 2013 WL
355822, *3 (E.D.Wis., Jan. 29, 2013) (stating there are “too many unknowns” about whether the plaintiff had an
opportunity to exhaust before or after transfer to grant summary judgment), aff’d, ___ Fed.Appx. ____, 2014 WL
687876 (7th Cir. 2014); Daniels v. Caldwell, 2013 WL 85165, *3 (E.D.Va., Jan. 7, 2013) (“[W]ithout more
information about the Jail grievance procedure and the timing of Daniels's transfer, the Court cannot assess whether
Daniels's transfer excuses any failure by Daniels to utilize the Jail grievance procedure.”) (footnote omitted);
Morales v. Putnam, 2012 WL 2861436, *10 (M.D.Pa., June 7, 2012) (holding remedy was not unavailable to
temporarily transferred inmate until grievance officials had denied request to file late grievance after return), report
and recommendation adopted, 2012 WL 2861592 (M.D.Pa., July 11, 2012); Jackson v. Gandy, 877 F.Supp.2d 159,
176-77 (D.N.J. 2012) (holding transfer was no excuse where prisoner pursued other grievances during the relevant
period); Pauls v. Green, 816 F.Supp.2d 961, 967-68 (D.Idaho, Sept. 7, 2011) (“the analytical starting point is the
transferor jail's regulations”; noting regulations were silent, citing Sheriff’s testimony that system was not available
after transfer; holding that prisoner did not have adequate opportunity to grieve at transferor jail where sexual
assaults occurred from seven to two days before her transfer and the grievance system had no time limit for such
complaints); Flowers v. City of New York (DOCS), 2009 WL 3415153, *3 (S.D.N.Y., Oct. 22, 2009) (transfer was
no excuse where plaintiff remained in city jails for thee months after his incident and did not exhaust); Hill v. U.S.
Attorney's Office, E.D.N.Y., 2009 WL 2524914, *5 (E.D.N.Y., Aug. 14, 2009) (plaintiff transferred to federal
prison after 10 days had time to file a grievance at county jail); Napier v. Laurel County, Ky., 2009 WL 2255767,
*3-4 (E.D.Ky., July 29, 2009) (where post-transfer grievances were in fact processed, prisoner was obliged to
submit one even though policy was unclear), aff’d, 636 F.3d 218 (6th Cir. 2011)
In Brownell v. Krom, 446 F.3d 305, 312-13 (2d Cir. 2006), the court found special circumstances justifying
the plaintiff’s failure to exhaust correctly where grievance regulations did prescribe the handling of grievances
following a transfer, but prison staff did not follow their own rules.
1032
Wright v. Smith, 2013 WL 3787528, *7-8 (E.D.Cal., July 18, 2013) (declining to dismiss for non-exhaustion
where federal prisoner was transferred to state prison, did not receive federal grievance decision, had no access to
federal forms or process, and plaintiff could not get a response by writing to federal officials; court notes
defendants’ burden of proof), report and recommendation adopted, 2013 WL 5406870 (E.D.Cal., Sept. 25, 2013);
Dubois v. Washoe County Jail, 2013 WL 100940, *2 (D.Nev., Jan. 7, 2013) (declining to dismiss for non-exhaustion
where plaintiff was extradited the day after his complaint arose, but defendants failed to show he could have
exhausted in a day or could have started the process from his new location); Ford v. Alexander, 2013 WL 66147, *4
(N.D.Ohio, Jan. 4, 2013) (noting defendants failed to explain whether and how a former jail inmate could exhaust

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systems.1033 In some cases courts have simply assumed that the grievance system was available
to the absent prisoner without inquiring whether that was actually the case, 1034 rather than
“establish[ing its] availability . . . from a legally sufficient source.”1035 Thus, New York City has
represented to the federal courts that its grievance system cannot be used by persons out of City
custody1036 (a point which has now been made explicit in its policy1037), but in at least one case a
federal court has simply declared without support that the prisoner should have exhausted by
mail.1038 One recent appellate decision states that unless a grievance policy clearly precludes its
after transfer); Ortiz v. Forbes, 2012 WL 5389708, *1-3 (N.D.Ill., Oct. 30, 2012) (declining to dismiss for nonexhaustion where defendants did not show jail grievance system was available to a prisoner transferred to state
prison); Carter v. Sims, 2012 WL 2863424, *7 (N.D.Ill., July 9, 2012) (holding defendants failed to show that jail
grievance system remained available for appeal after prisoner’s transfer to state prison), appeal dismissed, No. 122955 (7th Cir., Oct. 9, 2012); Ball v. Bower, 2012 WL 1414827, *1, 3-4 (M.D.Pa., Mar. 22, 2012) (holding
defendants failed to show that their grievance system was made known or available to the plaintiff during the several
hours she was at the jail), report and recommendation adopted, 2012 WL 1414771 (M.D.Pa., Apr. 24, 2012); Diaz
v. Musker, 2012 WL 85234, *5 (E.D.Pa., Jan. 10, 2012) (“Defendants have not shown that Plaintiff had the ability
to appeal the decision after his transfer . . .; Plaintiff alleges he did not.”), order entered, 2012 WL 85763 (E.D.Pa.,
Jan. 10, 2012), aff’d, 502 Fed.Appx. 214 (3d Cir. 2012); Holston v. DeBranca, 2011 WL 666880, *3-5 (E.D.Cal.,
Feb. 11, 2011), report and recommendation adopted, 2011 WL 884864 (E.D.Cal., Mar. 10, 2011); Key v. Fischer,
2008 WL 2653840, *6 (S.D.N.Y., July 7, 2008) (declining to dismiss where defendants provided no information on
whether the state grievance system was available to a prisoner transferred to federal facility); Gabino v. Bohlman,
2007 WL 906156, *3 (E.D.Wis., Mar. 23, 2007). Contra, Taylor v. Suchil, 2012 WL 4867563, *5 (C.D.Cal., May
15, 2012) (stating “plaintiff has made no showing that he could not have filed an appeal by mail”), report and
recommendation adopted, 2012 WL 4867551 (C.D.Cal., Oct. 12, 2012); Saraidaris v. Sealy, 2012 WL 405172, *2
(E.D.N.C., Feb. 8, 2012) (granting motion to dismiss where plaintiff did not provide factual support for claim
transfer interfered with exhaustion).
1033
Land v. Kaufman, 2009 WL 1106780, *3-4 (S.D.N.Y., Apr. 23, 2009) (noting that under New York State rules,
a “departmental” grievance can be appealed after transfer but an “institutional” grievance cannot, so plaintiff
exhausted all remedies actually available); accord, Andrews v. Cruz, 2010 WL 1141182, *6 (S.D.N.Y., Mar. 24,
2010).
1034
See Dillard v. Pierce County, 2011 WL 2530971, *4 (W.D.Wash., May 31, 2011) (citing lack of explicit
prohibition of filing grievances from other facilities, not inquiring into actual practices), report and recommendation
adopted, 2011 WL 2516388 (W.D.Wash., June 23, 2011); Blakey v. Beckstrom, 2007 WL 204005, *2 (E.D.Ky.,
Jan. 24, 2007) (holding without record support that transfer did not make grievance procedures unavailable);
Hemingway v. Lantz, 2006 WL 1237010, *2 (D.N.H., May 5, 2006) (holding that prisoner who said he didn’t
exhaust for fear of retaliation should have filed a grievance after his transfer to the “safety” of another state, without
inquiring whether an out-of-state grievance would have been processed); Crump v. May, 2006 WL 626915, *3
(D.Del., Mar. 14, 2006) (asserting that a prisoner who was transferred after an incident still had five days of the
seven-day time limit when he arrived at the new prison, without inquiring whether he could have filed a grievance at
the new prison about events at the old prison); Paulino v. Amicucci, Warden Westchester County Jail, 2003 WL
174303 (S.D.N.Y., Jan. 27, 2003) (holding that transfer soon after the incident “does not relieve plaintiff of the
obligation to exhaust his administrative remedies in the facility where the incident occurred”); Rodriguez v.
Senkowski, 103 F.Supp.2d 131, 134 (N.D.N.Y. 2000) (holding that transferred inmate was obliged to exhaust about
incident at prior facility); see also Mobley v. O’Gara, 2006 WL 197185, *4 (E.D.N.Y., Jan. 23, 2006) (in a case
brought by a prisoner who had filed a grievance, been released before exhaustion was completed, and was
reincarcerated when he filed suit, assuming without support that remedies would have been available for the earlier
incident) (dictum).
1035
Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999).
1036
Burns v. Moore, 2002 WL 91607, *6 (S.D.N.Y., Jan. 24, 2002).
1037
Exhibit H, New York City Dep’t of Correction Directive 3376 at § IV.I.c.ii (September 10, 2012) (“If the inmate
has been discharged from Department custody, the inmate will no longer have access to the IGRP process.”).
1038
Thomas v. Henry, 2002 WL 922388, *2 (S.D.N.Y., May 7, 2002). This decision appears to have been overruled
by a later decision, which stated: “As long as [the prisoner] was within the custody of the agency against which he
had grievances, the NYCDOC, he was required to use available grievance procedures.” Berry v. Kerik, 366 F.3d 85,

232

use by a prisoner no longer in the relevant prison or system, the prisoner is obliged at least to try
to follow the policy.1039 In effect, the court reversed the burden of proof, stating that a policy
will be presumed available in these circumstances unless the prisoner demonstrates its
unavailability.
In a New York decision, the court dismissed for non-exhaustion because the plaintiff’s
grievance had been rejected as untimely as a result of his having been out of the prison when the
decision he had to appeal was issued. The court said that “being moved from one facility to
another is not an uncommon aspect of prison life. This circumstance does not by itself
automatically toll applicable regulatory filing deadlines, nor relieve the inmate of his obligation
to keep informed of the status of any administrative proceeding he may have pending prior to
transfer and to make diligent efforts to protect and preserve his rights from the new location to
which he is moved or from the original facility promptly upon his return there.”1040 The court
does not explain (and there is no indication that it considered) exactly how a prisoner is supposed
to keep informed of these matters when the means of giving the prisoner notice is to send a
decision to a place where he is no longer held.
A remedy may be made unavailable by the acts or omissions of prison personnel.1041 For
example, there is a recurrent pattern in American prisons of threats and retaliation against

88 (2d Cir. 2004) (emphasis supplied). The court added: “We have no occasion to consider the exhaustion
requirement in situations where only a brief interval elapses between the episode giving rise to the prisoner’s
complaint and the prisoner’s transfer to the custody of another jurisdiction.” Id. at n.3.
1039
Napier v. Laurel County, Ky., 636 F.3d 218, 224 (6th Cir. 2011) (“We are not requiring that a prisoner utilize
every conceivable channel to grieve their case, but even when a policy is vague, a prisoner must do what is required
by the grievance policy. . . . Nothing in the LCDC policy explicitly prohibits inmates from filing grievances after
they have been released from that facility.”) (citing Medina–Claudio v. Rodriguez–Mateo, 292 F.3d 31, 35 (1st Cir.
2002)). Arguably this discussion is dictum, since the court went on to cite evidence produced by the defendants that
another prisoner had filed a grievance from another institution. 636 F.3d at 225. Contra, Pauls v. Green, 2011 WL
5520645, *4 (D.Idaho, Nov. 14, 2011) (“This [Napier’s] analysis confuses the burden of proof. It is the defendants
who must first show that the administrative procedures are available. Only then does the issue of what [the plaintiff]
did (or did not do) to utilize those procedures becomes relevant.”).
1040
Long v. Lafko, 254 F.Supp.2d 444, 448 (S.D.N.Y. 2003).
1041
Dole v. Chandler, 438 F.3d 804, 809, 812 (7th Cir. 2006) (“Prison officials may not take unfair advantage of the
exhaustion requirement, . . . and a remedy becomes ‘unavailable’ if prison employees do not respond to a properly
filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.”); Miller v. Norris,
247 F.3d 736, 740 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a prisoner from
‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a). . .”); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.
1998) (citing with approval pre-PLRA cases excusing exhaustion where irregularities in the process prevented it or
prison officials ignore or interfere with the prisoner’s efforts), cert. denied, 526 U.S. 1133 (1999). A few decisions
have taken an exceptionally restrictive view on this point. In one such case, the plaintiff alleged inter alia that
prison staff did not give him a copy of a disciplinary decision that he required in order to file his appeal, and the
court held that “refusal by prison staff to provide materials necessary to file administrative grievances does not
excuse failure to exhaust when a plaintiff could have nonetheless made reasonable efforts to exhaust his
administrative remedies.” Magassouba v. Cross, 2010 WL 1047662, *10 (S.D.N.Y., Mar. 1, 2010), report and
recommendation adopted, 2010 WL 4908670 (S.D.N.Y., Nov. 30, 2010). The court did not say what the plaintiff
could have done if denied materials required by the grievance rules. See Victor v. Lawler, 2011 WL 3584496, *8
(M.D.Pa., Feb. 25, 2011) (“This broad [exhaustion] rule admits of one, narrowly defined exception. If the actions of
prison officials directly caused the inmate's procedural default on a grievance, the inmate will not be held to strict
compliance with this exhaustion requirement.”), report and recommendation adopted in part, 2011 WL 3584781
(M.D.Pa., Aug. 12, 2011).

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prisoners who file grievances, litigation, and other complaints. 1042 The Second Circuit has held
that threats or assaults directed at preventing prisoners from complaining may make otherwise
available remedies unavailable in fact if “‘a similarly situated individual of ordinary firmness’
[would] have deemed [the remedy] available,” which is the standard applied in First Amendment
retaliation cases.1043 Numerous other courts have adopted that holding or a similar
formulation.1044 Two circuits have qualified their holdings by requiring the plaintiff also to show
1042

See, e.g., Pearson v. Welborn, 471 F.3d 732, 739-40 (7th Cir. 2006) (affirming jury verdict on claim of
retaliation for complaints about conditions); Dannenberg v. Valadez, 338 F.3d 1070, 1071-72 (9th Cir. 2003) (noting
jury verdict for plaintiff on claim of retaliation for assisting another prisoner with litigation); Walker v. Bain, 257
F.3d 660, 663-64 (6th Cir. 2001) (noting jury verdict for plaintiff whose legal papers were confiscated in retaliation
for filing grievances), cert. denied, 535 U.S. 1095 (2002); Gomez v. Vernon, 255 F.3d 1118 (9th Cir.) (affirming
injunction protecting prisoners who were the subject of retaliation for filing grievances and for litigation), cert.
denied, 534 U.S. 1066 (2001); Trobaugh v. Hall, 176 F.3d 1087 (8th Cir. 1999) (directing award of compensatory
damages to prisoner placed in isolation for filing grievances); Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997)
(affirming jury verdict for plaintiff subjected to retaliation for filing grievances), cert. denied, 524 U.S. 936 (1998);
Cassels v. Stalder, 342 F.Supp.2d 555, 564-67 (M.D.La. 2004) (striking down disciplinary conviction for “spreading
rumors” of prisoner whose mother had publicized his medical care complaint on the Internet); Atkinson v. Way,
2004 WL 1631377 (D.Del., July 19, 2004) (upholding jury verdict for plaintiff subjected to retaliation for filing
lawsuit); Tate v. Dragovich, 2003 WL 21978141 (E.D.Pa., Aug. 14, 2003) (upholding jury verdict against prison
official who retaliated against plaintiff for filing grievances); Hunter v. Heath, 95 F.Supp.2d 1140 (D.Or. 2000)
(noting prisoner’s acknowledged firing from legal assistant job for sending “kyte” (officially sanctioned informal
complaint) to the Superintendent of Security concerning the confiscation of a prisoner’s legal papers), rev’d on other
grounds, 26 Fed.Appx. 754, 2002 WL 112564 (9th Cir. 2002); Maurer v. Patterson, 197 F.R.D. 244 (S.D.N.Y.
2000) (upholding jury verdict for plaintiff who was subjected to retaliatory disciplinary charge for complaining
about operation of grievance program); Gaston v. Coughlin, 81 F.Supp.2d 381 (N.D.N.Y. 1999) (awarding damages
for trumped-up disciplinary charge made in retaliation for prisoner’s complaining about state law violations in mess
hall work hours), on reconsideration, 102 F.Supp.2d 81 (N.D.N.Y. 2000); Alnutt v. Cleary, 27 F.Supp.2d 395, 39798 (W.D.N.Y. 1998) (noting jury verdict for plaintiff who was subject to verbal harassment, assault, and false
disciplinary charges in retaliation for his work as an Inmate Grievance Resolution Committee representative).
1043
Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004); accord, Rickett v. Orsino, 2013 WL 1176059, *22
(S.D.N.Y., Feb. 20, 2013) (allegations of threats and assaults could support finding of unavailability), report and
recommendation adopted, 2013 WL 1155354 (S.D.N.Y., Mar. 21, 2013); Perez v. Fischer, 2012 WL 1098423, *12
(N.D.N.Y., Mar. 1, 2012) (allegations of assault, threats, and reprisals, after which plaintiff stopped filing grievances
and complaint letters until he was moved to another prison, sufficiently supported claims of unavailability), report
and recommendation adopted, 2012 WL 1088486 (N.D.N.Y., Mar. 30, 2012); Mimms v. Carr, 2011 WL 2360059,
*4-5 (E.D.N.Y., June 9, 2011) (allegations of threats and retaliatory discipline and other actions made remedy
unavailable); Morrison v. Hartman, 2010 WL 811319, *2 n.1, 3 (W.D.N.Y., Mar. 3, 2010) (alleged threats made
remedy unavailable and estopped the defendants); Mandell v. Goord, 2009 WL 3123029, *10 (N.D.N.Y., Sept. 29,
2009); Davis v. Rhoomes, 2009 WL 415628, *5 (S.D.N.Y., Feb. 12, 2009); Headley v. Fisher, 2008 WL 1990771,
*13 (S.D.N.Y., May 7, 2008) (staff conversation reasonably perceived as a threat of retaliation constituted special
circumstances excusing exhaustion); Lunney v. Brureton, 2007 WL 1544629, *9 (S.D.N.Y., May 29, 2007),
objections overruled, 2007 WL 2050301 (S.D.N.Y., July 18, 2007); Snyder v. Goord, 2007 WL 957530, *9-10
(N.D.N.Y., Mar. 29, 2007); Thomas v. Cassleberry, 2007 WL 1231485, *2 (W.D.N.Y., Apr. 24, 2007); Doe v.
Barrett, 2006 WL 3741825, *5-6 (D.Conn., Dec. 19, 2006); Larry v. Byno, 2006 WL 1313344, *4 (N.D.N.Y., May
11, 2006); Orraca v. McCreery, 2006 WL 1133254, *5 (N.D.N.Y., Apr. 25, 2006); McCullough v. Burroughs, 2005
WL 3164248, *4 (E.D.N.Y., Nov. 29, 2005) (applying Hemphill; holding that a prior instance of assault for filing a
grievance could make the grievance process unavailable for purposes of the current case).
1044
Tuckel v. Grover, 660 F.3d 1249, 1252-54 (10th Cir. 2011) (following Turner, Hemphill, and Kaba); Verbanik
v. Harlow, 441 Fed.Appx. 931, 933 (3d Cir. 2011) (unpublished) (same); Kincaid v. Sangamon County, 435
Fed.Appx. 533, 536-37 (7th Cir. 2011) (unpublished) (following Hemphill and Kaba; “The threat from the
superintendent that Kincaid and his family needed to ‘shut the fuck up’ may have intimidated Kincaid and rendered
the grievance process unavailable to him.”); Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (“Remedies
that rational inmates cannot be expected to use are not capable of accomplishing their purposes, and so are not

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that the threat or intimidation actually did deter the plaintiff from pursuing administrative
remedies.1045 If a plaintiff establishes an intimidation defense to non-exhaustion, the existence of
an emergency grievance procedure does not refute it.1046
Some district courts have entirely rejected the view that threats or intimidation can
excuse non-exhaustion.1047 Others have rejected such arguments on the narrower ground that the
available”; following Hemphill and Kaba); Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006) (adopting Hemphill
analysis); Handy v. Varner, 2013 WL 1567601, *6 (W.D.Pa., Apr. 12, 2013) (finding threat to issue disciplinary
charges and thereby prevent plaintiff’s release on parole if he didn’t stop grieving deterred plaintiff and would have
deterred a person of ordinary firmness); Bridgewater v. Davis, 2013 WL 869581, *2 (W.D.Ark., Feb. 7, 2013)
(holding threat that the plaintiff would be “planted in the ground” if he submitted more grievances excused nonexhaustion), report and recommendation adopted, 2013 WL 869246 (W.D.Ark., Mar. 7, 2013); Ojo v. Medic, 2012
WL 7150497, *4-6 (D.N.H., Dec. 17, 2012) (adopting Hemphill), report and recommendation approved, 2013 WL
593485 (D.N.H., Feb. 14, 2013); Brock v. Shearer, 2012 WL 7188893, *10 (D.S.C., July 25, 2012) (citing Turner,
Kaba, Stepp), report and recommendation adopted, 2013 WL 671709 (D.S.C., Feb. 22, 2013); Breer v. Maranville,
2012 WL 6597707, *2 (D.Vt., Nov. 27, 2012) (holding allegation that plaintiff “was confronted [and] told not to
complain” barred dismissal for non-exhaustion), report and recommendation adopted, 2012 WL 6597700 (D.Vt.,
Dec. 18, 2012); Sauder v. Green, 2011 WL 3608646, *5 (N.D.Fla., July 25, 2011) (holding threats of retaliation, and
their repetition after transfer, sufficient alleged unavailability of remedy), report and recommendation adopted,
2011 WL 3607667 (N.D.Fla., Aug. 16, 2011); see Appendix A for additional authority on this point.
1045
Tuckel v. Grover, 660 F.3d at 1254; Turner v. Burnside, 541 F.3d at 1085. “Once a defendant proves that a
plaintiff failed to exhaust, . . . the onus falls on the plaintiff to show that remedies were unavailable to him as a
result of intimidation by prison officials.” Tuckel, id. See Handy v. Varner, 2013 WL 1567601, *6 (W.D.Pa., Apr.
12, 2013) (endorsing Tuckel holding); Rouse v. Baca, 2012 WL 4498866, *7 (D.N.M., Sept. 25, 2012) (holding
plaintiff who “refused to be cowed” was not excused from exhaustion by alleged threats); Toler v. Halley, 2012 WL
555740, *4-5 (N.D.Fla., Jan. 12, 2012) (dismissing under Turner where plaintiff did not allege that threats prevented
him from pursuing a grievance), report and recommendation adopted, 2012 WL 555707 (N.D.Fla., Feb. 21, 2012).
See also Schultz v. Pugh, 728 F.3d 619, 620-22 (7th Cir. 2013) (discussing objective and subjective approaches to
intimidation cases in dicta).
1046
Tuckel, 660 F.3d at 1255; Turner, 541 F.3d at 1083–84.
1047
Bramble v. Campbell County, Ky., 2013 WL 5411477, *5 (E.D.Ky., Sept. 26, 2013); Thomas v. McDowell,
2013 WL 5177137, *3 (S.D.Ohio, Sept. 12, 2013) (rejecting claim that prisoner was “verbally deterred” from
grieving because “the PLRA does not excuse the exhaustion requirement even for prisoners under imminent danger
of serious physical injury”); Lamon v. Tilton, 2011 WL 532315, *3 (E.D.Cal., Feb. 14, 2011) (stating chilling of
First Amendment rights does not excuse non-exhaustion); Escobar v. Brown, 2010 WL 5230877, *5-6 (D.Colo.,
Aug. 10, 2010) (holding death threats without physical harm do not excuse non-exhaustion), report and
recommendation adopted, 2010 WL 5230874 (D.Colo., Dec. 16, 2010); Snow v. Brown, 2009 WL 87613, *3-4
(S.D.Ga., Jan. 6, 2009) (claiming Porter v. Nussle rejected fear of retaliation as a reason for non-exhaustion); Sasser
v. Donald, 2008 WL 4809171, *4 (S.D.Ga., Nov. 4, 2008) (same as Snow); Boone v. Fighter, 2008 WL 880208, *2
(E.D.Mich., Mar. 31, 2008) (fear of retaliation did not excuse non-exhaustion because the grievance policy
addressed retaliation); Campbell v. Oklahoma County Detention Center, 2008 WL 490619, *5 (W.D.Okla., Feb. 21,
2008) (“it is highly questionable whether threats of retaliation could in any circumstances excuse the failure to
exhaust administrative remedies”) (citation omitted); Glick v. Montana Dept. of Corrections, 2007 WL 2359776, *2
n.3 (D.Mont., Aug. 14, 2007) (holding fear of retaliation cannot excuse non-exhaustion since retaliation is illegal);
Poole v. Rich, 2007 WL 2238831, *3 (S.D.Ga., Aug. 1, 2007) (holding threats of assault do not excuse exhaustion),
aff’d, 312 Fed.Appx. 165 (11th Cir. 2008), cert. denied, 555 U.S. 854 (2008); see Pena-Ruiz v. Solorzano, 281
Fed.Appx. 110, 113 (3d Cir. 2013) (unpublished) (stating “this Court . . . has not recognized . . . ‘fear of retaliation’
as a basis for excusing a prisoner's failure to exhaust”); Hammett v. Cofield, 681 F.3d 945, 948 (8th Cir. 2012)
(holding retaliation and harassment did not excuse failure to exhaust claims of retaliation and harassment where
such conduct was forbidden by prison rules and there was a special grievance procedure for such complaints);
Solomon v. Michigan Dept. of Corrections, 478 Fed.Appx. 318, 321 (6th Cir. 2012) (unpublished) (seemingly
rejecting the notion that threats excuse exhaustion); see also Appendix A for additional authority on this point.
Decisions to this effect from within the Second, Fifth, Seventh, Tenth, and Eleventh Circuits are generally overruled
by contrary circuit authority.

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plaintiff’s factual allegations are insufficient to support the claim,1048 or that the plaintiff’s filing
of other complaints is inconsistent with it.1049 The latter point is questionable in many cases.
Hemphill noted that threats or intimidation “may well deter a prisoner of ‘ordinary firmness’
from filing an internal grievance, but not from appealing directly to individuals in positions of
greater authority within the prison system, or to external structures of authority such as state or
1048

In one astonishing case, the court held that plaintiff’s allegations of retaliatory acts including being called “cry
baby,” “paper pusher,” and “spic”; having the feeding slot on his cell “closed . . . using excessive pressure” while his
hand was in it, causing him “to scream in pain”; being denied immediate medical attention for the pain in his hand;
being placed in a cell where the toilet and shower were not working; and being threatened with transfer to a facility
where “he might not survive” did not, “individually or in concert,” meet the “inmate of reasonable firmness”
standard. Hernandez v. Banulos, 2012 WL 3845885, *4 (D.Colo., Sept. 2, 2012). Almost as remarkable is Fuentes
v. Balcer, 2013 WL 276679 (W.D.N.Y., Jan. 24, 2013), in which the plaintiff alleged that he did not grieve his
complaint that an officer kicked him as he lay on the floor in a pool of blood and urine because on an earlier
occasion that officer had threatened him with bodily harm for reporting a previous assault of another prisoner to the
Inspector General. The court noted he did not say he was threatened with bodily harm if he filed a grievance about
his own mistreatment, 2013 WL 276679, *6, and dismissed for non-exhaustion. See Hurd v. Durrand, 2013 WL
1192351, *11 (S.D.Fla., Jan. 24, 2013) (holding fear of staff based on physical and other abuse did not excuse
failure to exhaust where abuve was not explicity directed at deterring filing of a grievance), report and
recommendation adopted, 2013 WL 1192342 (S.D.Fla., Mar. 22, 2013).
Other decisions are mostly less extreme. See, e.g., Snyder v. Whittier, 428 Fed.Appx. 89, 91-92 (2d Cir.
2011) (unpublished) (rejecting claim of subjective fear as unsupported by other circumstances in case); Martin v.
The Commonwealth of Pennsylvania Dept. of Corrections, 395 Fed.Appx. 885, 887 (3d Cir. 2010) (unpublished)
(rejecting claim of threats causing fear of retaliation because plaintiff “does not provide any details as to the nature,
content, or timing of those threats”); Boyd v. Corrections Corporation of America, 380 F.3d 989, 998 (6th Cir. 2004)
(declining to decide whether fear of retaliation can excuse exhaustion, holding that the plaintiff’s failure to “describe
with specificity” the factual basis for his fear required dismissal of his claim), cert. denied, 540 U.S. 920 (2005);
Baldwin v. Kenny, 2013 WL 4517167, *3 (N.D.Ohio, Aug. 23, 2013) (“. . . Plaintiff provides no dates and times of
threats and no specific actions or words of those making threats. Plaintiff fails to detail any particular encounters in
which he was directly threatened or otherwise prohibited from using the grievance system.”); Ramos v.
Gansheimer, 2013 WL 775353, *6 (N.D.Ohio, Feb. 26, 2013); Porter v. Baxter, 2012 WL 684803, *4-6 (N.D.Fla.,
Jan. 30, 2012) (holding prisoners must generally allege actual physical force as well as threats to excuse nonexhaustion), report and recommendation adopted, 2012 WL 760628 (N.D.Fla., Mar. 8, 2012); see Appendix A for
additional authority on this point. But see Ward v. Rabideau, 732 F.Supp.2d 162, 171-72 (W.D.N.Y. 2010)
(crediting plaintiffs’ fears of retaliatory conduct such as “unnecessary and harassing frisk searches, urine testing,
misbehavior tickets and reports”). See also Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) (holding claim of
fear of reprisal must be supported by evidence at the summary judgment stage).
1049
Dixon v. Correctional Corp. of America, Inc., 420 Fed.Appx. 766, 767 (9th Cir. 2011) (unpublished) (affirming
finding that threats did not make remedy unavailable since plaintiff continued to file grievances); Madyun v. Cook,
204 Fed.Appx. 547, 548-49 (7th Cir. 2006) (unpublished) (acknowledging that threats can render a remedy
unavailable, but finding plaintiff’s claim factually frivolous in light of all the other complaints he filed and the fact
that he filed a complaint but failed to appeal it); Bacon v. Reyes, 2014 WL 298694, *5 (D.Nev., Jan. 24, 2014)
(“This plaintiff is clearly not afraid of a ‘true threat’ of retaliation, as evidenced by the sheer number grievances and
lawsuits he has filed over the years, many of which have been against these same defendants.”); Arocha v. Sauceda,
2013 WL 6782843, *6 (E.D.Cal., Dec. 19, 2013) (stating plaintiff’s intimidation argument “is undermined by his
filing of seventeen administrative appeals between January 2007 and October 2008”), report and recommendation
adopted, 2014 WL 295165 (E.D.Cal., Jan. 27, 2014); Black v. Fischer, 2013 WL 1314940, *8-9 (S.D.N.Y., Mar. 28,
2013) (noting that plaintiff filed two grievances during the time he claimed to have been threatened and made other
complaints as well); Ramos v. Beard, 2012 WL 4972193, *11 (M.D.Pa., Sept. 7, 2012) (“That he was able to file so
many grievances belies his suggestion that the administrative remedy process was not available to him.”), report and
recommendation adopted, 2012 WL 4971235 (M.D.Pa., Oct. 17, 2012); Nelson v. Butte County Sheriff's Dept.,
2012 WL 812385, *9 (E.D.Cal., Mar. 9, 2012) (rejecting claim that plaintiff was intimidated by seeing others beaten
for filing grievances where he had submitted several grievances), report and recommendation adopted, 2012 WL
1194839 (E.D.Cal., Apr. 10, 2012); see Appendix A for additional authority on this point.

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federal courts.”1050 Thus the fact that a prisoner has, e.g., written a letter of complaint to the
Superintendent (as in Hemphill) does not establish that he or she was not deterred from filing an
ordinary grievance.1051 Nor does the filing of grievances or complaints on one subject negate the
possibility of intimidation as to others. As the Seventh Circuit observed in adopting and
applying the Hemphill standard, “The ability to take advantage of administrative grievances is
not an ‘either-or’ proposition.”1052
Other obstructive actions or circumstances may make remedies unavailable. A remedy
may be unavailable because it simply is not functioning when or where the prisoner needs to file
a grievance1053—though some courts have rejected vague and generalized claims of non1050

Hemphill, 380 F.3d at 688. In Turner v. Burnside, 541 F.3d 1077, 1086 (11th Cir. 2008), the court quoted the
above-quoted language from Hemphill and said “[t]hat makes sense to us,” but did not preclude the district court
from considering that the plaintiff had filed a lawsuit in determining whether the threat deterred the plaintiff or
would have deterred a reasonable prisoner of ordinary firmness.
Some prison systems provide a means for prisoners to make complaints to higher authority outside the
prison, and courts may consider that fact in assessing claims of fear of retaliation. See Bigbee v. Sadowski, 2008
WL 4330566, *3 (W.D.Wis., Feb. 21, 2008).
1051
See Ortiz v. Skinner, 2004 WL 2091994, *5 (W.D.N.Y., Sept. 16, 2004) (holding that allegations of threats
designed to deter grievances might constitute “special circumstances” justifying letters to Superintendent rather than
formal grievances). But see McGregor v. Jarvis, 2010 WL 3724133, *4 (N.D.N.Y., Aug. 20, 2010) (accepting that
plaintiff’s “apprehension” about sexual activity with a staff member might justify complaining by letter to the
warden, but finding he failed to exhaust because his letter was not specific enough), report and recommendation
adopted, 2010 WL 3724131 (N.D.N.Y., Sept. 16, 2010).
1052
Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006) (holding that the plaintiff’s filing of other grievances did
not show the remedy was available for grievances against the particular staff who were threatening him); accord,
Hill v. O'Brien, 387 Fed.Appx. 396, 401 (4th Cir. 2010) (also noting that plaintiff’s filing of grievances at one prison
was irrelevant to whether he was obstructed in filing at another prison); Ojo v. Medic, 2012 WL 7150497, *8-9
(D.N.H., Dec. 17, 2012) (filing of other grievances did not refute claim that plaintiff was obstructed as to the present
one), report and recommendation approved, 2013 WL 593485 (D.N.H., Feb. 14, 2013); Hewlett v. Caraway, 2011
WL 1627168, *2 (D.Md., Apr. 27, 2011) (filing of other grievances did not affect claim that this grievance was
obstructed).
This point is inadequately appreciated by some courts. For example, in Chiarappa v. Meyers, 2013 WL
6328478, *7 (W.D.N.Y., Dec. 5, 2013), the court stated that it credited the plaintiff’s statement that he didn’t file a
timely grievance “because he was told by the SHU guards that he was on the ‘beat up’ list for complaining about a
corrections officer,” but then appealed his disciplinary conviction and sent five letters to the Commissioner asserting
his innocence but stating that he did not want to see any officers reprimanded or disciplined. The court then granted
summary judgment to the defendants, stating that “no rational fact finder could determine that plaintiff was deterred
from exhausting his administrative remedies by the actions of the defendants or any other DOCCS employee.” Id.
This decision paid insufficient attention to the reasoning of Kaba v. Stepp.
1053
Frost v. McCaughtry, 215 F.3d 1329, 2000 WL 767841, *1 (7th Cir., June 12, 2000) (unpublished) (holding
allegation that no grievance appeal was available to plaintiff because of ongoing administrative changes during the
relevant time period raised a factual question as to availability); Smith v. City of New York, 2013 WL 5434144, *29
(S.D.N.Y., Sept. 26, 2013) (holding evidence that the grievance box where plaintiff placed his grievance was never
emptied, and staff statements that the facility could not process all the grievances it receives, raised question whether
remedy was available); Malik v. City of New York, 2012 WL 3345317, *8 (S.D.N.Y., Aug. 15, 2012) (holding
allegation that grievance forms were unavailable and were not processed at jail sufficiently alleged plaintiff was
prevented from exhausting), report and recommendation adopted, 2012 WL 4475156 (S.D.N.Y., Sept. 28, 2012);
Gordon v. County of Rockland, 2011 WL 611860, *5 (S.D.N.Y., Feb. 18, 2011) (holding plaintiffs raised an issue of
fact whether jail grievance system was a “nullity”); Johnson v. Pam, 2010 WL 2643556, *2-3 (D.Ariz., June 30,
2010) (refusing to dismiss where grievance program was not functioning during a lockdown); Taylor v. Zerillo,
2008 WL 4862690, *2 (E.D.N.Y., Nov. 10, 2008) (refusing to dismiss in light of allegation that plaintiff was
transferred among prisons to prevent him from exhausting); Bowers v. City of Philadelphia, 2007 WL 219651, *16
(E.D.Pa., Jan. 25, 2007) (finding no meaningful access to grievance procedure in police custody and jail intake areas

237

functioning grievance systems.1054 Prison rules and procedures may make remedies unavailable.
For example, a rule denying postage to indigents to mail a grievance appeal may make the
remedy unavailable,1055 as may the absence of copying facilities where the rules require multiple
copies of documents,1056 deprivation of writing materials or documentation to prisoners in a
segregation unit or elsewhere,1057 or other situations that make prisoners unable to comply with
grievance rules.1058 One recent decision found remedies unavailable to the plaintiff because the
where prisoners had no writing implements or paper and their oral complaints were ignored or dismissed); Martin v.
Sizemore, 2005 WL 1491210, *1, *3 (E.D.Ky., June 22, 2005) (declining to dismiss where plaintiff alleged that
“[t]here is no grievance committee here, your grievances are simply turned over to the person you file on and you
get threatened”); Williams v. Hagen, 2005 WL 1204324, *2 (D.Neb., May 11, 2005) (declining to dismiss in light of
plaintiff’s allegation of “total disarray . . . with regard to the grievance process”).
1054
Anderson v. McDonald, 2013 WL 211123, *7 (E.D.Cal., Jan. 18, 2013) (rejecting general allegations that
system is “broken”; “Plaintiff's allegations that other grievances were ignored or destroyed are both factually
unsupported and inadequate to demonstrate the unavailability of administrative remedies.”)
1055
Bey v. Caruso, 2007 WL 2875196, *1 (E.D.Mich., Sept. 28, 2007) (noting that denial of “postal loan” was based
on plaintiff’s using his religious name suffix on the relevant form, contrary to the policy he was trying to challenge;
“the procedural question of exhaustion is inextricably intertwined with the merits of this case”); Cordova v. Frank,
2007 WL 2188587, *6 (W.D.Wis., July 26, 2007); Kaufman v. Schneiter, 474 F.Supp.2d 1014, 1032 (W.D.Wis.
2007) (dictum); see Williams v. Pollard, 2009 WL 3055334, *10 (E.D.Wis., Sept. 21, 2009) (remedies were
unavailable to a prisoner who could not obtain envelope for an appeal that had to be mailed). Amazingly, one court
has held that refusal to mail a grievance appeal would not justify failure to complete the administrative process.
Carter v. Rojas, 2009 WL 256110, *4 (E.D.Cal., Feb. 4, 2009), report and recommendation adopted, 2009 WL
813465 (E.D.Cal., Mar. 27, 2009). Similarly, another court has held that refusal to copy four pages because the
plaintiff had reached his limit for free copies did not excuse his resulting failure to exhaust. Almy v. Davis, 2013
WL 5437335, *2-3 (D.Nev., Sept. 27, 2013), appeal dismissed, No. 13-17257 (9th Cir., Dec. 17, 2013), certificate of
appealability denied, 2014 WL 773813 (D.Nev., Feb. 25, 2014).
1056
DeMartino v. Zenk, 2009 WL 2611308, *7-8 (E.D.N.Y., Aug. 25, 2009) (absence of access to a copier in order
to comply with the grievance procedure raised a material factual issue; estoppel theory), reconsideration denied,
2009 WL 4626647 (E.D.N.Y., Dec. 7, 2009); Iseley v. Beard, 2009 WL 1675731, *6 (M.D.Pa., June 15, 2009)
(remedy was unavailable where copies of documents were required to appeal but there was no copier access in
Restricted Housing Unit; grievance authorities said this is “not our problem”).
1057
Luciano v. Lindberg, 2012 WL 1642466, *17 (M.D.Pa., May 10, 2012) (holding allegation of deprivation of
writing materials for a month and refusal of late grievance raised a factual issue barring summary judgment);
Campbell v. Cowen, 2012 WL 1636996, *4-5 (N.D.Ind., May 9, 2012) (holding allegation that plaintiff was
deprived of writing materials and kept under conditions of total darkness raised a factual issue barring summary
judgment on non-exhaustion); Marella v. Terhune, 2011 WL 4074865, *9-10 (S.D.Cal., Aug. 16, 2011) (holding
sworn allegation of deprivation of writing materials and forms in hospital and infirmary precluded dismissal for nonexhaustion), report and recommendation adopted, 2011 WL 4074750 (S.D.Cal., Sept. 13, 2011); Fawley v. Johnson,
2011 WL 3240537, *9 (W.D.Va., July 28, 2011) (holding allegation that prison staff confiscated all of prisoner’s
pens so he could not write a grievance barred summary judgment for non-exhaustion); Weighall v. Pea, 2009 WL
2048107, *7 (W.D.Wash., May 6, 2009); Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y. 2008); Walker v.
Karelas, 2008 WL 4851936, *3 (E.D.Cal., Nov. 7, 2008), report and recommendation adopted, 2008 WL 5397493
(E.D.Cal., Dec. 22, 2008); Woods v. Carey, 2007 WL 2688819, *1-2 (E.D.Cal., Sept. 13, 2007) (vacating
recommendation for exhaustion dismissal pending inquiry into plaintiff’s access to his legal property, which he said
impeded his timely appeal); Mellender v. Dane County, 2006 WL 3113212, *3 (W.D. Wis. Oct. 27, 2006) (holding
that remedies were not shown to be available where the prisoner asked repeatedly without success for a pencil and
his glasses during his stay in jail, which “alone might be sufficient reason” to refuse dismissal for non-exhaustion).
But see Mena v. City of New York, 2013 WL 3580057, *2 (S.D.N.Y., July 10, 2013) (rejecting claim of
unavailability based on lack of a pen where plaintiff wrote other things during the same time period), appeal
dismissed, No. 13-3232 (2d Cir., Jan. 29, 2014).
1058
See, e.g., Church v. Oklahoma Correctional Industries, 2011 WL 4376222, *7 (W.D.Okla., Aug. 15, 2011)
(remedy was unavailable where grievance personnel refused to accept a grievance without a date of incident, when
the complaint was not about an incident but about an ongoing practice), report and recommendation adopted, 2011

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prison’s internal mail system “was effectively broken at the time he was attempting to exhaust
his remedies.”1059 Sometimes prisoners in a particular status or situation are simply excluded
from using the grievance system.1060 Rules specifically designed to limit prisoners’ use of the
grievance system may make the remedy unavailable for some prisoners, depending on the
severity of the limit,1061 though the majority of decisions involving such rules uphold claims of
WL 4383225 (W.D.Okla., Sept. 20, 2011); Randolph v. Kelly, 2010 WL 883747, *5 (E.D.Va., Mar. 9, 2010)
(remedy was unavailable where appeal was declared untimely because prison mail took 10 days to deliver an appeal
with a five-day deadline); Holsombach v. Norris, 2009 WL 424166, *68 (E.D.Ark., Feb. 18, 2009) (where appeals
had to be sought on the original grievance form, and officials did not return the original form to plaintiff, summary
judgment for defendants denied); Lampkins v. Roberts, 2007 WL 924746, *2-3 (S.D.Ind., Mar. 27, 2007) (refusing
to dismiss for missing a five-day time deadline where it did not appear in the materials made available to prisoners);
see n. 505, above (citing cases holding that prisoners who did not get a grievance decision had exhausted available
remedies in systems where a decision was required in order to appeal); see also Appendix A for additional authority
on this point. But see Hill v. Haynes, 2012 WL 3839422, *28 (N.D.W.Va., Sept. 5, 2012) (holding that prisoner
who was prevented from filing grievances at prison should have filed appeal forms even though they would have
been rejected because the plaintiff could not satisfy the requirement of attaching the prison grievances to appeals),
report and recommendation adopted, 2012 WL 5467750 (N.D.W.Va., Nov. 9, 2012). Cf. Alamiin v. Miller, 2010
WL 3603150, *5 (W.D.Okla., June 28, 2010) (upholding a $2.00 “co-pay” for grievance appeals, which is deferred
for indigents, and not collected if relief is granted), report and recommendation adopted, 2010 WL 3604660
(W.D.Okla., Sept. 9, 2010).
1059
Meador v. Hammer, 2013 WL 753486, *5-6 (E.D.Cal., Feb. 27, 2013), report and recommendation adopted,
2013 WL 1415012 (E.D.Cal., Apr. 8, 2013) .
1060
Zuege v. Geffers, 2010 WL 3835138, *3-4 (E.D.Wis., Sept. 28, 2010) (declining to dismiss where prisoner was
in program in which right to use the grievance system was suspended); Muhammad v. U.S. Marshal Service, 2009
WL 335189, *5 (W.D.Pa., Feb. 10, 2009) (finding material factual issue whether remedies were available to federal
detainee held temporarily in local jail); Daker v. Ferrero, 2004 WL 5459957, *2-3 (N.D.Ga., Nov. 24, 2004)
(prisoner placed in “sleeper” status, meaning he remained officially assigned to another prison and was not allowed
to file grievances where he was actually located, lacked an available remedy); see Sease v. Phillips, 2008 WL
2901966, *5 (S.D.N.Y., July 24, 2008) (summary judgment denied where prisoner in “transient status” was told his
grievance could not be processed, and when he filed one it was never processed); see also Sandlin v. Poole, 575
F.Supp.2d 484, 488 (W.D.N.Y. 2008) (refusal to make grievance deposit boxes available in segregation unit,
requiring prisoners to rely on officers to pick up and forward them, supported claim of unavailable remedies).
If the available remedy is a disciplinary appeal, but the prisoner cannot appeal under prison rules because
he pled guilty to the offense, the remedy is not available. Marr v. Fields, 2008 WL 828788, *5-7 (W.D.Mich., Mar.
27, 2008).
1061
Rules limiting prisoners to a certain number of grievances may make the remedy unavailable for prisoners who
are over the limit. Lerajjareanra-O-Kel-Ly v. Zmuda, 2012 WL 3904367, *3 (D.Idaho, Sept. 7, 2012) (“Should a
prisoner have four legitimate grievances at roughly the same time, he will be able to pursue only three, and whether
he can file the fourth in time is wholly dependent upon whether prison officials process the other three before the
time for the filing of the fourth grievance expires. Here, the prison has chosen to make the grievance system
unavailable to any prisoner who already has three pending grievances.”); Stine v. Federal Bureau of Prisons, 2012
WL 882421, *3 (D.Colo., Mar. 15, 2012) (“If a prisoner is pursuing a case that involves multiple claims, the Court
could see how the BOP policy of only issuing one Informal Resolution form at a time could hinder the prisoner's
ability to exhaust his administrative remedies. This is especially true given the short time constraints typically
associated with the prison grievance system.” But the plaintiff had only one complaint), motion to amend denied,
2012 WL 3155794 (D.Colo., Aug. 3, 2012), affirmed in part, reversed in part, 508 Fed.Appx. 727 (10th Cir. 2013);
Miller v. King, 2009 WL 3805568, *3-4 (S.D.Ga., Nov. 10, 2009) (denying summary judgment on non-exhaustion
where plaintiff was allowed to file only one grievance per week and to have two pending grievances at one time,
grievances took a year to be resolved but had to be filed within 10 days of the relevant incident); Bailey v. Cogburn,
2009 WL 666955, *5 (W.D.Okla., Mar. 11, 2009) (denying summary judgment where grievance was denied because
plaintiff had two grievances pending already and policy called for deciding excess grievances after previous
grievances were decided); Rhodan v. Schofield, 2007 WL 1810147, *6 (N.D.Ga., June 19, 2007) (holding prisoner
who said he was told he could not have two grievances pending at once raised a factual issue as to availability of
remedies); Wood v. Idaho Dept. of Corrections, 2006 WL 694654, *6 (D.Idaho, Mar. 16, 2006) (holding that a

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non-exhaustion.1062 A system of “modified grievance access,” which requires prior permission
to file a grievance, makes the remedy unavailable if permission is not granted.1063
Remedies may also be made unavailable by actions by supervisors or grievance staff with
respect to particular grievances or grievants,1064 by purposeful misconduct,1065 or by neglect or
prisoner whose grievance was returned because he was only allowed to have three pending at one time had
exhausted, since he had done what he could do to exhaust); see Pelzer v. SCDC, 2012 WL 761703, *3 (D.S.C., Feb.
15, 2012) (upholding a limit of three grievances a month, but rejecting non-exhaustion defense where defendants
failed to consolidate two similar grievances to make room for another one, as had been done in the past), report and
recommendation adopted, 2012 WL 761691 (D.S.C., Mar. 8, 2012).
1062
Escobar v. Mora, 496 Fed.Appx. 806, 809 (10th Cir. 2012) (unpublished) (rejecting argument that limit of one
grievance a month prevented plaintiff from exhausting where he did not explain how it affected the particular
grievance at issue); Moore v. Bennette, 517 F.3d 717, 729-30 (4th Cir. 2008) (where rules allowed only one
grievance at a time except for emergencies, and plaintiff labelled his second grievance an emergency but it did not
meet the criteria in the grievance rules for an emergency and was dismissed, plaintiff’s failure to resubmit it when
his first grievance was decided was a failure to exhaust); Wilson v. Boise, 252 F.3d 1356, 2001 WL 422621, at *4
(5th Cir. 2001) (unpublished) (upholding “backlogging” system under which only one grievance would be processed
at a time); Springer v. Brown No. 1, 2013 WL 865978, *3 (W.D.Va., Mar. 7, 2013) (holding “moderate limitation”
on filing pre-grievance informal complaints did not actually prevent plaintiff from grieving his claims); Stewart v.
Tanner, 2013 WL 1136823, *3 (E.D.La., Feb. 19, 2013) (enforcing “backlogging” rule), report and recommendation
adopted, 2013 WL 1130597 (E.D.La., Mar. 11, 2013); Asberry v. Cate, 2013 WL 876289, *10-11 (E.D.Cal., Mar.
7, 2013) (holding enforcement of a rule barring more than one non-emergency grievance every 14 days did not make
remedy unavailable), report and recommendation adopted, 2013 WL 4647975 (E.D.Cal., Aug. 29, 2013); Ball v.
Struthers, 2012 WL 2946785, *4 (M.D.Pa., July 19, 2012) (holding temporary restriction to one grievance a week
did not make remedy unavailable where plaintiff had time to file after restriction expired); White v. Epps, 2012 WL
2603657, *2 (S.D.Miss., July 5, 2012) (holding backlogging system did not excuse plaintiff’s non-exhaustion); Sias
v. LeBlanc, 2012 WL 275056, *2 (M.D.La., Jan. 13, 2012) (finding non-exhaustion under backlogging system),
report and recommendation adopted, 2012 WL 292531 (M.D.La., Jan. 31, 2012), appeal dismissed No. 12-30200
(5th Cir., May 8, 2012); see also Riley v. Crawford, 2007 WL 4468701, *3 (W.D.Mo., Dec. 17, 2007) (expressing
concern that “one grievance a week” policy could deny access for legitimate complaints, but holding that it did not
make remedies unavailable for problems that occurred over a period of months). See Appendix A for additional
authority on this point.
1063
Walker v. Mich. Dep't of Corr., 128 Fed.Appx. 441, 446 (6th Cir. 2005); Reeves v. Correctional Medical
Services, 2009 WL 3876292, *1-2 (E.D.Mich., Nov. 17, 2009) (plaintiff exhausted by asking for a form and being
denied); Marr v. Jones, 2009 WL 160787, *5-8 (W.D.Mich., Jan. 22, 2009) (defendants failed to identify any
available remedy where prisoner on modified grievance status was denied grievance forms); McMurry v. Caruso,
2008 WL 5422853, *5-6 (W.D.Mich., Dec. 30, 2008) (evidence that plaintiff on modified access asked for grievance
forms and did not receive them barred summary judgment); Bagetta v. Caruso, 2008 WL 723546, *4-5 (W.D.Mich.,
Mar. 12, 2008); Dawson v. Norwood, 2007 WL 3302102, *9 (W.D.Mich., Nov. 6, 2007) (“If a prisoner has been
placed on modified access to the grievance procedure and attempts to file a grievance which is deemed to be nonmeritorious, he has exhausted his ‘available’ administrative remedies as required by § 1997e(a).”) (citation
omitted); Hahn v. Tarnow, 2006 WL 1705128, *2 n.4 (W.D.Mich., June 16, 2006) (holding that a plaintiff on
“modified grievance restriction” who was denied grievance forms did not have an available remedy). A rule
requiring prisoners on modified grievance status to submit a notarized affidavit with a grievance may make the
remedy unavailable if the prisoner cannot get access to a notary. Thomas v. Guffy, 2008 WL 2884368, *2-3
(W.D.Okla., July 25, 2008). But see Henry v. Caruso, 2009 WL 2584739, *4 (W.D.Mich., Aug. 19, 2009) (holding
that a prisoner whose request for a grievance form was denied had exhausted only as to those persons named in the
request form).
1064
Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (holding “improper screening of an inmate's administrative
grievances renders administrative remedies ‘effectively unavailable’ such that exhaustion is not required under the
PLRA”); Howard v. Hill, 156 Fed.Appx. 886, 2005 WL 3105832, *1 (9th Cir., Nov. 21, 2005) (unpublished)
(holding that a prisoner who had been told he would not receive responses to his grievances had no remedy
available); Bryant v. Hobbs, 2014 WL 37802, *7, 9 (E.D.Ark., Jan. 6, 2014) (declining to dismiss for nonexhaustion where the plaintiff received a grievance response after the appeal deadline had already passed); Lee v.

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accident,1066 or events that are merely unexplained,1067 though courts are unlikely to credit vague
or conclusory claims of obstruction.1068 Numerous decisions hold that the failure or refusal to
Sorrels, 2013 WL 6163938, *9 (W.D.Okla., Nov. 25, 2013) (declining to dismiss for non-exhaustion where
grievance official said his appeal concerning a wheelchair should go to medical officer and medical officer said it
was a property grievance); Jones v. Federal Bureau of Prisons, 2013 WL 5300721, *8 (E.D.N.Y., Sept. 19, 2013)
(denying summary judgment for non-exhaustion “given [plaintiff’s] uncontested assertion that he made a reasonable
effort to exhaust administrative remedies within the required time frame but his efforts were frustrated by prison
staff”; he alleged refusal to respond to inmate resolution forms, refusal to provide forms, placement in SHU for
demanding them); Scott v. McDonald, 2013 WL 978239, *6 (E.D.Cal., Mar. 12, 2013) (holding remedy unavailable
where grievance was a staff complaint but grievance personnel improperly required informal review level not
required for staff complaints), report and recommendation adopted, 2013 WL 1325366 (E.D.Cal., Mar. 29, 2013);
James v. Fagan, 2013 WL 687058, *3-4 (E.D.Cal., Feb. 25, 2013) (holding remedies unavailable where grievance
personnel demanded plaintiff attach materials that were in their possession, not his); Travis v. Morgridge, 2013 WL
227665, *4 (W.D.Mich., Jan. 22, 2013) (denying summary judgment for defendants where plaintiff submitted
evidence that his grievance was not processed and he was refused appeal forms); Clemens v. Lockett, 2012 WL
6026136, *5 (W.D.Pa., Dec. 4, 2012) (holding prisoner who alleged “that he never received responses to his
grievances, appeals, and letters to staff members inquiring into the status of grievances and appeals he had filed”
sufficiently alleged that the remedy was unavailable); Ford v. Spears, 2012 WL 4481739, *7-8 (E.D.N.Y., Sept. 27,
2012) (declining to grant summary judgment for non-exhaustion despite multiple procedural rejections of grievances
where “plaintiff attempted to do that which he thought was required of him despite defendant-erected obstacles to
proper exhaustion”); see Appendix A for additional authority on this point; see n. 511, above, for additional cases
where grievances or appeals were returned unprocessed. But see Howard v. Smith, 2008 WL 816685 (S.D.Ga., Feb.
28, 2008), report and recommendation rejected in pertinent part, 2008 WL 816684 (S.D.Ga., Mar. 26, 2008), on
reconsideration on other grounds, 2008 WL 2316718 (S.D.Ga., June 4, 2008). In Howard, the prison system
introduced a rule newly requiring an additional “informal” step in the grievance process, and plaintiff’s pending
grievances were all canceled; the magistrate judge said he was deemed to have exhausted his claims, but the district
judge rejected that conclusion without explanation.
1065
Keys v. Carroll, 2012 WL 4472020, *8 (M.D.Pa., Sept. 26, 2012) (holding assertion that officer destroyed
plaintiff’s grievance in front of him raised factual question barring summary judgment as to availability of remedy),
reconsideration denied, 2012 WL 6553620 (M.D.Pa., Dec. 14, 2012); Makdessi v. Clarke, 2012 WL 293155, *3
(W.D.Va., Jan. 31, 2012) (allegations that a staff member destroyed plaintiff’s grievances, ordered him not to file
more, and threatened him raised a factual question barring summary judgment on exhaustion); Smith v.
Pennsylvania Dept. of Corrections, 2011 WL 4573364, *12 (W.D.Pa., Sept. 30, 2011) (interference with the
grievance process bars dismissal for non-exhaustion even if the the malefactors were not the defendants in the case);
Dockery v. U.S. Dept. of Justice, 2010 WL 2079939, *5 (S.D.Tex., May 21, 2010) (non-exhaustion excused where
warden erroneously refused to accept grievance and refused again even when directed by higher authority), motion
to amend denied, 2010 WL 3521728 (S.D.Tex., Sept. 8, 2010); Sandlin v. Poole, 575 F.Supp.2d 484, 488
(W.D.N.Y. 2008) (refusal to accept or forward grievance appeals would make remedy unavailable); see Appendix A
for additional authority on this point.
1066
Pavey v. Conley, 170 Fed.Appx. 4, 9, 2006 WL 509447, *5 (7th Cir., Mar. 3, 2006) (unpublished) (holding that
isolating and failing to assist a prisoner who couldn’t write could render the remedy unavailable); Ford v. Fahim,
2013 WL 1728572, *2 (S.D.Ill., Mar. 26, 2013) (declining to dismiss where prisoner could not proceed without a
response from a counselor, who did not provide it), report and recommendation adopted, 2013 WL 1728444
(S.D.Ill., Apr. 22, 2013); DeMartino v. Zenk, 2009 WL 2611308, *7-8 (E.D.N.Y., Aug. 25, 2009) (holding inability
to make required copies because law library was cancelled and copiers were not working raised a material factual
issue; estoppel theory), reconsideration denied, 2009 WL 4626647 (E.D.N.Y., Dec. 7, 2009); Monroe v. Beard,
2007 WL 2359833, *12-13 (E.D.Pa., Aug. 16, 2007) (holding the grievance process unavailable where prisoners
were told to object to certain searches through an Unacceptable Correspondence Form, and they would be notified
of the results of an investigation and then could file a grievance, but were not so notified), aff’d, 536 F.3d 198, 205
n.6 (3d Cir. 2008); Warren v. Purcell, 2004 WL 1970642, *6 (S.D.N.Y. Sept. 3, 2004) (holding “baffling” grievance
response that left prisoner with no clue what to do next estopped defendants from claiming the defense and
constituted special circumstances justifying failure to exhaust).
In Ouellette v. Maine State Prison, 2006 WL 173639, *3-4 (D.Me., Jan. 23, 2006), aff’d, 2006 WL 348315
(D.Me., Feb. 14, 2006), the plaintiff wrote a letter of complaint and filed a formal grievance, and received a

241

provide necessary forms makes the remedy unavailable or otherwise excuses failure to
exhaust,1069 though obviously not in systems where forms are not required by the rules. 1070 (One
response to the letter but not to the grievance; he requested a formal response (by then overdue) to his grievance and
filed suit when he did not promptly receive it. The court rejected the argument that he should have filed a grievance
appeal treating the response to his letter as the grievance response, stating that on these facts he could have believed
that he had no further remedies available, and expressing concern that the defendants insisted on strict compliance
with procedure while staff were not strictly complying with their end of it.
1067
Dole v. Chandler, 438 F.3d 804, 809, 812 (7th Cir. 2006) (holding prisoner whose properly filed grievance
simply vanished, and who received no instructions what to do about it, did “all that was reasonable to exhaust”);
Murphy v. Smith, 2013 WL 5312721, *2 (S.D.Ill., Sept. 20, 2013) (holding a prisoner held in a health care unit after
surgery who reasonably relied on a nurse to file his grievance for him took reasonable steps to exhaust; declining to
dismiss for non-exhaustion); Johnson v. Tedford, 616 F.Supp.2d 321, 326 (N.D.N.Y. 2007) (holding a prisoner
whose grievance is not recorded or given a grievance number, so the lack of response cannot be appealed, may have
exhausted) and cases cited, report and recommendation adopted in part, rejected in part, 616 F.Supp. 321
(N.D.N.Y. 2007); Burrows v. Gifford, 2007 WL 2827779, *2 (E.D.Cal., Sept. 27, 2007) (holding remedies would be
unavailable to a prisoner who received a grievance decision too late to appeal it); Cain v. Dretke, 2006 WL
1663728, *3 (S.D.Tex., June 13, 2006) (holding remedies were unavailable where a grievance was returned
unprocessed, marked “inappropriate” without explanation and for no discernible reason); see n. 511, above,
concerning this type of problem.
1068
See, e.g., Banks v. Federal Bureau of Prisons, 2013 WL 1200301, *3 (E.D.Ark., Feb. 12, 2013) (rejecting
conclusory and unsupported claims of obstruction by non-parties), report and recommendation adopted, 2013 WL
1200292 (E.D.Ark., Mar. 25, 2013); Bowlin v. Van Hoesen, 2011 WL 1532088, *6 (W.D.Okla., Mar. 28, 2011)
(noting plaintiff “does not state the dates on which he attempted to submit grievances, the subject of the grievances
that were not responded to, or the name of the jail officials who allegedly thwarted his efforts”), report and
recommendation adopted, 2011 WL 1526893 (W.D.Okla., Apr. 22, 2011); Stewart v. Ryan, 2011 WL 1526932, *4
(D.Ariz., Apr. 21, 2011) (rejecting allegation of “pervasive” misconduct where plaintiff made “no attempt to explain
his attempts at exhaustion . . . or how he was prevented from exhausting”), reconsideration denied, 2011 WL
2078648 (D.Ariz., May 25, 2011), motion for relief from judgment denied, 2011 WL 2679596 (D.Ariz., July 8,
2011); Stine v. Wiley, 2007 WL 121822, *1-2 (D.Colo., Jan. 10, 2007); Djukic v. Arpaio, 2006 WL 2850060, *3
(D.Ariz., Sept. 26, 2006).
One court has articulated an extraordinarily draconian standard for assessing claims of staff obstruction.
The plaintiff alleged that an officer threatened him with physical harm and then “retaliated against Plaintiff in
various ways including destroying mail and administrative remedy forms, calling Plaintiff derogatory names,
denying access to the shower, denying food by not opening the food port, by not submitting Plaintiff's canteen order,
by denying Plaintiff a haircut, by threatening harm to Plaintiff and his family, and by disrupting Plaintiff's cell by a
search and seizing his television.” The court stated that plaintiff alleged nothing that “would have prevented
Plaintiff access to the remedy process at every moment of every day [or] that Plaintiff was completely shut down
from all means of communication at all times.” Smith v. Lagana, 2013 WL 1010297, *1, 3 (D.N.J., Mar. 12, 2013).
1069
Stine v. U.S. Federal Bureau of Prisons, 508 Fed.Appx. 727, 729-30 (10th Cir. 2013) (holding prisoner affidavits
confirming plaintiff’s claim he had been denied forms raised a material factual issue barring summary judgment);
Dennis v. Westchester County Jail Correctional Dept., 485 Fed.Appx. 478, 480 (2d Cir. 2012) (unpublished)
(rejecting claim that prisoner could have gotten forms from the law library based on Department of Justice report
stating that was not the case); Peterson v. Cooper, 463 Fed.Appx. 528, 530 (6th Cir. 2012) (unpublished) (holding
prisoner need not take actions to obtain forms beyond those set out in grievance policy); Dale v. Lappin, 376 F.3d
652, 654-56 (7th Cir. 2004) (per curiam); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (noting defendants’
concession that denial of grievance forms, in a system that required using the form, made the remedy unavailable to
the plaintiff); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Jones v. Federal Bureau of Prisons, 2013 WL
5300721, *8 (E.D.N.Y., Sept. 19, 2013) (denying summary judgment for non-exhaustion where plaintiff alleged that
he was denied necessary forms and thrown in SHU for demanding them); Ervin v. Wilson, D.C., 2013 WL 4028631,
*9 (D.Colo., Aug. 8, 2013) (denying summary judgment for non-exhaustion where plaintiff alleged that his
counselor refused to give him a form to grieve an issue he had already won but the result had not been
implemented); Stratton v. Karr, 2013 WL 2444212, *3 (W.D.Wash., May 9, 2013) (declining to dismiss where
“[p]laintiff took reasonable steps to exhaust his claim and jail staff prevented him from obtaining a grievance
form”), report and recommendation adopted as modified, 2013 WL 2444209 (W.D.Wash., June 4, 2013); Hale v.

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court has found it necessary to order prison staff to make forms available to all prisoners as
regulations require.1071) Some courts reject claims of denial of forms out of hand if they are not
supported by considerable factual detail or evidence of effort to obtain the forms, 1072 or if the
prisoner filed other grievances around the same time.1073

Cooper, 2013 WL 1987356, *2-3 (E.D.Mo., May 13, 2013) (declining to dismiss for late grievance where plaintiff
alleged that he could not obtain the form timely); see Appendix A for additional authority on this point; see also
Goebert v. Lee County, 510 F.3d 1312, 1324-25 (11th Cir. 2007) (rejecting argument that plaintiff didn’t exhaust
because she used the wrong form, since there was no evidence that the right form even existed, much less that she
had it or knew about it); Taghon v. Euler, 2012 WL 3109368, *4-5 (N.D.Ind., July 30, 2012) (declining to grant
summary judgment for non-exhaustion where plaintiff said he was given the wrong form to appeal on and the record
did not show the extent of plaintiffs’ knowledge of appeal requirements). But see Mackey v. Kemp, 2009 WL
2900036, *3 (S.D.Ga., July 27, 2009) (plaintiff who could not get a form should have filed an out-of-time grievance
when forms became available), report and recommendation adopted, 2009 WL 2914317 (S.D.Ga., Aug. 31, 2009).
The Sixth Circuit and some of its district courts have held that a denial-of-forms complaint does not
establish non-exhaustion unless the prisoner tries to pursue a non-compliant grievance on plain paper. Jones v.
Smith, 266 F.3d 399 (6th Cir. 2011); Willis v. Mohr, 2013 WL 1281634, *3 (S.D.Ohio, Mar. 26, 2013) (“At a
minimum, [the inmate] must attempt to file a grievance without a form.” (citation omitted)), report and
recommendation adopted, 2013 WL 1829668 (S.D.Ohio, May 1, 2013), order withdrawn on other grounds, 2013
WL 5773932 (S.D.Ohio, Oct. 24, 2013); Lee v. Willey, 2012 WL 666646, *4 (E.D.Mich., Feb. 1, 2012) (stating “the
law in this Circuit is that if a grievance form is not available to a prisoner, he must attempt to file one without the
form or be deemed to have failed to exhaust his administrative remedies”; rejecting defendants’ argument that filing
a grievance on plain paper did not exhaust where forms were unavailable), report and recommendation adopted,
2012 WL 662199 (E.D.Mich., Feb. 29, 2012). However, a later Sixth Circuit unpublished decision suggested,
correctly in my view, that Jones v. Smith has been overruled by Jones v. Bock, 549 U.S. 199 (2007), with respect to
“the imposition of prerequisites to exhaustion that are not specified in the grievance procedure itself,” and held that
the plaintiff need not show that he had tried to exhaust without the required form. Peterson v. Cooper, 463
Fed.Appx. 528, 530 (6th Cir. 2012); accord, Abraham v. Costello, 861 F.Supp.2d 430, 435 (D.Del., May 17, 2012)
(rejecting argument that plaintiff should have used plain paper where the grievance policy required use of a form the
plaintiff could not get).
1070
Thompson v. Jones, 2012 WL 3686749, *4 (N.D.Ill., Aug. 24, 2012) (citing policy providing that if forms are
not available grievances can be submitted on plain paper). In Scott v. Brown, 2013 WL 5492948, *5 (N.D.Ga., Sept.
9, 2013), the court declined to accept officials’ representations that grievance appeals would be accepted without
the form where the grievance policy did not support the claim.
1071
See Oleson v. Bureau of Prisons, 2012 WL 6697274, *15-16 (D.N.J., Dec. 21, 2012) (declining to vacate order
where defendants’ own declaration showed that forms were not made available in all circumstances); see also U.S.
v. Khan, 540 F.Supp.2d 344, 351 (E.D.N.Y. 2007) (rejecting the plaintiff’s complaint about lack of forms—but only
after instructing the government to give him the forms). But see Landor v. Bledsoe, 2012 WL 1906176, *5
(M.D.Pa., May 25, 2012) (rejecting request to direct officials to provide grievance forms to the plaintiff; “we have
no information as to why Mr. Landor may be unable to obtain grievance forms, and are unwilling to speculate on
this matter or wade into issues of prison administration”).
1072
See, e.g., Watson v. Hughes, 439 Fed.Appx. 300, 302 (5th Cir. 2011) (unpublished) (holding allegation plaintiff
was told grievance forms were unavailable did not excuse non-exhaustion where he did not so allege for the
remaining 14 days of the period for submitting a grievance); Johnson v. City of New York, 2011 WL 1044852, *11
(S.D.N.Y., Mar. 18, 2011) (rejecting assertion that housing unit was out of forms where prisoner conceded he made
no further effort to obtain them); Rang v. Chapman, 2011 WL 837745, *6-7 (M.D.Pa., Jan. 19, 2011) (rejecting
conclusory claim of inability to get forms given evidence of multiple ways they could be obtained), report and
recommendation adopted, 2011 WL 835773 (M.D.Pa., Mar. 3, 2011); Williams v. Lafler, 2011 WL 692165, *4
(E.D.Mich., Jan. 31, 2011) (dismissing where plaintiff did not even state he was denied a form), report and
recommendation adopted, 2011 WL 692685 (E.D.Mich., Feb. 18, 2011); see Appendix A for additional authority on
this point. But see Fitzpatrick v. Georgia Dept. of Corrections, 2012 WL 5207474, *4 (S.D.Ga., Sept. 12, 2012) (“It
is of no moment that Plaintiff Mosley cannot determine who denied his request for an appeal. The facts before the
Court are that he asked for an appeal form and was not provided with one.”), report and recommendation adopted as
modified, 2012 WL 5207472 (S.D.Ga., Oct. 22, 2012); Thompson v. Sadowski, 2011 WL 7640125, *9 (N.D.N.Y.,

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A remedy may be deemed unavailable if prisoners are misinformed by prison personnel
about its operation or availability1074—though many such claims have been rejected, often
because the officials’ statements were ambiguous and not directly false or misleading.1075 A
Aug. 16, 2011) (rejecting argument that prisoner failed to name the person whom he asked for a grievance form);
Kyle v. Feather, 2011 WL 1102735, *2 (W.D.Wis., Mar. 23, 2011) (rejecting argument that prisoner should have
been required to ask other staff members for a grievance form; “Any other rule would create an improper incentive
for officials to make the grievance process as complicated and difficult as possible, so long as they left a route open
for those prisoners savvy enough to find it.”).
1073
See, e.g., Williams v. King County Jail, 2011 WL 4706893, *4 (W.D.Wash., Sept. 7, 2011), report and
recommendation adopted, 2011 WL 4706198 (W.D.Wash., Oct. 4, 2011); Taylor v. Thames, 2010 WL 3614189, *45 (N.D.N.Y., July 22, 2010), report and recommendation adopted, 2010 WL 3614191 (N.D.N.Y., Sept. 8, 2010);
Guel v. Larkin, 2008 WL 1994942, *5-6 (W.D.Ark., May 6, 2008).
1074
Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“An administrative remedy is not ‘available,’ and therefore
need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately
describe the steps he needs to take to pursue it.”); Pavey v. Conley, 170 Fed.Appx. 4, 8-9, 2006 WL 509447, *4-5
(7th Cir., Mar. 3, 2006) (unpublished) (stating that “inmates may rely on the assurances of prison officials when they
are led to believe that satisfactory steps have been taken to exhaust administrative remedies. . . . [P]rison officials
will be bound by their oral representations to inmates concerning compliance with the grievance process”; plaintiff,
who could not write, could reasonably rely on assurances that his oral complaint would be investigated); Brown v.
Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (holding that if security officials told the plaintiff to wait for completion
of an investigation before grieving, and then never informed him of its completion, the grievance system was
unavailable to him); Beltran-Ojeda v. Doe, 2013 WL 6059242, *5-6 (D.Ariz., Nov. 18, 2013) (holding remedy was
unavailable where instructions on appeal form did not apply to the medical grievance appeal he needed to file),
reconsideration denied, 2014 WL 1047148 (D.Ariz., Mar. 18, 2014); Coley v. Gallagher, 2013 WL 210724, *3
(D.Md., Jan. 17, 2013) (declining to dismiss for non-exhaustion where prisoner was told categorically that his
complaint could not be resolved through the grievance system); Jones v. Corrections Corp. of America, 2013 WL
56119, *8-9 (D. Ariz., Jan. 3, 2013) (similar to Brown v. Croak); Hanson v. Sinavsky, 2012 WL 5388143, *4
(C.D.Cal., Oct. 11, 2012) (holding plaintiff’s averment that he followed officials’ advice to file a tort claim rather
than a grievance barred granting of motion to dismiss), report and recommendation adopted, 2012 WL 5388800
(C.D.Cal., Oct. 30, 2012); Williams v. Suffolk County, 2012 WL 6727160, *5-6 (E.D.N.Y., Dec. 28, 2012) (holding
claim that grievance staff told plaintiff that the process could not help him and he should file an Internal Affairs
complaint sufficiently alleged that the remedy was not available); Pike v. Smith, 2012 WL 4138726, *9 (D.Idaho,
Sept. 17, 2012) (weighing misleading staff advice in declining to dismiss for non-exhaustion); Ashlock v. Myers,
2012 WL 4017799, *2 (N.D.Ind., Sept. 12, 2012) (holding if prison staff told plaintiff he needed to file a tort claim
rather than a grievance, the grievance remedy could be unavailable); Gaspard v. Castillo, 2011 WL 149366, *4-5
(E.D.Cal., Jan. 18, 2011) (holding untimely grievance was excused where plaintiff complained, was told a written
complaint was not required and that he should await the results of the investigation); Riggs v. Valdez, 2010 WL
4117085, *9-10 (D.Idaho, Oct. 18, 2010) (holding grievance system was unavailable for complaints that were the
subject of disciplinary proceedings where those who tried to grieve them were rebuffed), on reconsideration in part,
2010 WL 5391313 (D.Idaho, Dec. 22, 2010); see Appendix A for additional authority on this point; see also cases
cited in n. 947, above; Jackson v. Ivens, 2007 WL 2261552, *4 (3d Cir. 2007) (refusing to enforce a procedural rule
not stated in grievance policy; “We will not condition exhaustion on unwritten or ‘implied’ requirements.”) (citing
Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004)). Cf. Johnson v. Gregory, 2014 WL 692866, *4 (D.S.C., Feb. 21,
2014) (holding remedy could not be found availab’e “where the prison itself has created an affirmative duty to
inform the prisoner of the grievance process and where there is a genuine dispute as to whether the prisoner was so
informed”).
1075
See Huff v. Neal, ___ Fed.Appx. ____, 2014 WL 274500, *4-5 (5th Cir. 2014) (affirming summary judgment
for non-exhaustion where plaintiff alleged that a prison lieutenant told him to wait for completion of an investigation
to file a grievance; citing the plaintiff’s knowledge of grievance system requirements); Stine v. U.S. Federal Bureau
of Prisons, 508 Fed.Appx. 727, 731 (10th Cir. 2013) (holding official’s statement that they will “take care of it” did
not excuse prisoner from exhausting); Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002) (holding that warden’s
statement that a decision about religious matters rested in the hands of “Jewish experts” did not excuse nonexhaustion, but was at most a prediction that the plaintiff would lose; courts will not consider inmates’ subjective
beliefs in determining whether procedures are “available”); Jackson v. District of Columbia, 254 F.3d 262, 269-70

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number of decisions have refused to dismiss for non-exhaustion where prisoners had relied on
prison personnel’s representations that an issue was non-grievable1076 or a decision was nonappealable.1077
(D.C.Cir. 2001) (holding that a plaintiff who complained to three prison officials and was told by the warden to “file
it in the court” had not exhausted); Yousef v. Reno, 254 F.3d 1214, 1221-22 (10th Cir. 2001) (holding that plaintiff
who was confused by prison officials’ erroneous representations about the powers of the grievance system was still
required to exhaust); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (holding that a plaintiff who complained
to the warden and was told the warden would take care of his problem, but the warden didn’t, was not excused from
exhausting the grievance system), cert. denied, 531 U.S. 1156 (2001); Morris v. Barra, 2012 WL 1059908, *8
(S.D.Cal., Mar. 28, 2012) (rejecting claim that lateness of grievance should be excused where plaintiff “summarily
allege[d]” that a security officer told him he had to wait for the completion of the facility investigation; without
“more facts and/or evidence to excuse his late filing,” plaintiff did not meet his burden); see Appendix A for
additional authority on this point; see also Didiano v. Balicki, 488 Fed.Appx. 634, 639-40 (3d Cir. 2012) (holding
misinformation by “prison paralegal” did not excuse failure to exhaust because paralegal was not a prison official).
1076
Smith v. City of New York, 2013 WL 5434144, *14-15 (S.D.N.Y., Sept. 26, 2013) (holding remedy unavailable,
and special circumstances possibly present, where prisoner was told by prison staff, “We are not able to deal with
this,” and to “Wait it out. See what comes. Calm down.”); Allen v. Prince, 2013 WL 5273300, *6 (D.Del., Sept. 17,
2013) (holding “once Plaintiff's grievance was classified as non-grievable, there were no further administrative
remedies available to Plaintiff”); Holley v. Corrections Corp. of America, 2013 WL 4536947, *3 (M.D.Tenn., Aug.
26, 2013) (“The Court finds that the Plaintiff did all that is required by the PLRA when he brought the matter to the
attention of prison officials through a formal grievance and was informed by prison officials that the matter was not
grievable.”), report and recommendation adopted, 2013 WL 5376557 (M.D.Tenn., Sept. 25, 2013); Castillon v.
Corrections Corp. of America, Inc., 2013 WL 2446480, *8-11 (D.Idaho, June 4, 2013) (holding plaintiffs reasonably
relied on grievance official’s statement “If you would like to pursue [compensation], you can do so utilizing outside
sources” as stating no more remedies were available and waiving the grievance appeal requirement; another prisoner
could not rely on these responses not directed to him); Bredbenner v. Malloy, 925 F.Supp.2d 649, 658-59 (D.Del.
2013) (informal grievance stating plaintiff’s remedy was to write to the unit commander rather than pursuing a
grievance established that there was no remedy available to him); Coley v. Harris, 2012 WL 171661, *4 (D.Md.,
Jan. 19, 2012) (declining to dismiss for non-exhaustion where plaintiff had been advised by the warden that his
complaint could not be pursued); Chestang v. Westbrook, 2012 WL 2912736, *2 (E.D.Ark., June 15, 2012), report
and recommendation adopted, 2012 WL 2903355 (E.D.Ark., July 16, 2012); Gilbeau v. Pallito, 2012 WL 2416719,
*5 (D.Vt., May 22, 2012), report and recommendation adopted, 2012 WL 2416654 (D.Vt., June 26, 2012); Roberts
v. Jones, 2012 WL 1072218, *4 (W.D.Okla., Feb. 29, 2012) (“Presumably Mr. Roberts did not appeal the decision
because the grievance coordinator had told him that the complaint was not grievable.”), report and recommendation
adopted, 2012 WL 1142514 (W.D.Okla., Mar. 30, 2012); see Appendix A for additional authority on this point; see
also Kress v. CCA of Tenn., 2010 WL 2694986, *5 (S.D.Ind., July 2, 2010) (holding remedy unavailable where
defendants said they would not consider the issue plaintiff raised); Matthews v. Thornhill, 2008 WL 2740323, *4
(W.D.Wash., May 21, 2008) (it is “disingenous” for defendants to rely on published policies stating what is
grievable when they have already rejected plaintiff’s grievances as raising non-grievable issues), report and
recommendation adopted, 2008 WL 2544507 (W.D.Wash., June 24, 2008). But see Gibson v. Weber, 431 F.3d 339,
341 (8th Cir. 2005) (holding that general allegation that prison personnel “made it clear” they should make medical
complaints informally did not excuse prisoners from using a grievance procedure they admitted having been
informed of); Blankenship v. Owens, 2011 WL 610967, *5 (N.D.Ga., Feb. 15, 2011) (holding plaintiff was obliged
to exhaust even though an informal grievance response said the matter was not grievable); Singh v. Goord, 520
F.Supp.2d 487, 496 (S.D.N.Y. 2007) (officials’ designating a particular staff member to deal with plaintiff’s
concerns did not excuse non-exhaustion where he was not instructed not to file grievances); Fuentes-Ramos v.
Arpaio, 2007 WL 1670142, *2 (D.Ariz., June 8, 2007) (refusing to credit “generalized allegations” that officers told
plaintiff his issues were non-grievable); Herron v. Elkins, 2006 WL 3803946, *3 (E.D.Mo., Nov. 7, 2006)
(dismissing where staff told plaintiff his claim was not grievable; his “subjective belief” based on those statements
did not excuse non-exhaustion); Overton v. Davis, 460 F.Supp.2d 1008, 1010-11 (S.D.Iowa 2006) (holding prisoner
failed to exhaust where he said he was told his property confiscation was non-grievable but the written policy said it
was and also that written notice is given when a complaint is non-grievable); Owens v. Maricopa County Sheriff’s
Office, 2006 WL 997205, *1 (D.Ariz., Apr. 14, 2006) (holding prisoner must appeal “non-grievable” determination,
especially where policy does not support it); Mendez v. Herring, 2005 WL 3273555, *2 (D.Ariz., Nov. 29, 2005)

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The failure to inform prisoners of remedies’ existence, or to make clear what remedy is
applicable or what rules apply to it, may make remedies unavailable.1078 However, prisoners’
ignorance of the remedy does not excuse them from using it if it has been made known, e.g., in
an inmate orientation handbook.1079 (If the administrative remedy is made known, prison
(dismissing claim of a prisoner who said staff told him his rape complaint was not grievable, since futility is not an
excuse).
1077
See n. 514, above.
1078
Roberts v. Neal, ___ F.3d ___, 2014 WL 929047, *2-3 (7th Cir. 2014) (holding dismissal improper absent
evidence of plaintiff’s access to the grievance rule he violated; “We have searched for publicly available material
explaining in terms intelligible to lay persons how to proceed in the situation in which Roberts found himself, and
have not found any; nor is there any in the record.”); Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013)
(“Remedies that are not reasonably communicated to inmates may be considered unavailable for exhaustion
purposes.”); Brown v. Drew, 452 Fed.Appx. 906, 908 (11th Cir. 2012) (unpublished) (noting in case where
grievance response arrived too late to appeal, “nothing in the record establishes that Brown was aware or could
readily become aware of his right to request an extension of time to resubmit his appeal”); Illes v. Deparlos, 447
Fed.Appx. 391, 393-94 (3d Cir. 2011) (unpublished) (vacating dismissal for non-exhaustion where plaintiff had no
access to information about grievance system and staff told him there were no grievance procedures; declining to
charge plaintiff with knowledge of procedures based on previous period of incarceration several years previously);
Williams v. Marshall, 319 Fed.Appx. 764, 768 (11th Cir., Nov. 4, 2008) (vacating dismissal for non-exhaustion
where grievance rules mostly appeared in a policy not available to prisoners and where no instructions appear on the
grievance forms concerning time limits or how to appeal); Jackson v. Ivens, 244 Fed.Appx. 508, 514 (3d Cir. 2007)
(unpublished) (“We will not condition exhaustion on unwritten or ‘implied’ requirements.”) (citing Spruill v. Gillis,
372 F.3d 218, 234 (3d Cir. 2004)); Goebert v. Lee County, 510 F.3d 1312, 1322-23 (11th Cir. 2007) (holding that an
appeal procedure not described in the inmate handbook, but only in the operating procedures the inmates did not
have access to, was not an available remedy); Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (holding that
defendants did not show remedies were available where there was no “clear route” for challenging certain
decisions); Rivera v. New York City, 2013 WL 6061759, *5-6 (S.D.N.Y., Nov. 18, 2013) (declining to grant
summary judgment for non-exhaustion where the plaintiff submitted evidence that the inmate handbook was
available only irregularly and plaintiff did not actually receive it though he signed for it); Hudson v. Francum, 2013
WL 5320997, *3-4 (S.D.Ind., Sept. 23, 2013) (declining to dismiss for failing to appeal a grievance non-response
where plaintiff did not receive the handbook describing the process, no one explained it to him, and he was in
segregation and had no access to the library where he could have investigated the policy); Wootton v. Pierce County
Jail, 2013 WL 2253729, *5 (W.D.Wash., May 22, 2013) (declining to recommend dismissal for non-exhaustion
where plaintiff repeatedly requested information on grievance system and there was no evidence he received it); see
cases cited in n.338, above; see Appendix A for additional authority on this point; see also Giano v. Goord, 380 F.3d
670, 678-79 (2d Cir. 2004) (holding that a reasonable misunderstanding of procedural rules constitute special
circumstances excusing failure to exhaust). But see Jones Bey v. Johnson, 407 F.3d 801, 809 n.9 (6th Cir. 2005)
(“Although exhaustion is mandatory . . . prison officials do not have to affirmatively provide information on how to
proceed with individual claims.”), cert. granted, judgment vacated, 549 U.S. 1190 (2007); Belanus v. Dutton, 2013
WL 3381362, *1-2 (D.Mont., July 8, 2013) (holding prisoner who said he had never received a copy of the
grievance policy and it wasn’t posted anywhere failed to exhaust, absent any evidence that he sought out
information about the grievance system or that he was affirmatively prevented from learning about it); Burgess v.
Igboekwe, 2012 WL 6054009, *3, 6 (E.D.N.C., Dec. 5, 2012) (plaintiff’s belief that as a “safekeeper” in the jail, he
was not subject to the grievance system did not excuse non-exhaustion; officials were not obliged to explain system
to prisoners individually, prisoners must take some action to find out about the grievance system); Johnson v.
District of Columbia, 869 F.Supp.2d 34, 41 (D.D.C. 2012) (plaintiff’s subjective ignorance of the grievance process
did not matter where he did not allege that prison staff affirmatively obstructed him).
In Davis v. Milwaukee County, 225 F.Supp.2d 967, 975-76 (E.D.Wis. 2002), the court held that the plaintiff
had been denied access to courts by defendants’ hindering his ability to exhaust, inter alia, by failing to make
available materials concerning the grievance procedure.
1079
Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013) (noting plaintiff had received a handbook describing
the grievance system); Napier v. Laurel County, Ky., 636 F.3d 218, 222 n.2 (6th Cir. 2011) (rejecting claim of
ignorance where grievance policy was distributed in orientation manual, though stating generally: “A plaintiff's
failure to exhaust cannot be excused by his ignorance of the law or the grievance policy.”); Gibson v. Weber, 431

246

officials are not obliged to educate prisoners about the exhaustion requirement itself.1080) Courts
may also discount prisoners’ claims of ignorance or misunderstanding of remedies where the
prisoners have a record of using them.1081 In some instances, a remedy may be made unavailable
by officials’ nondisclosure of information necessary for the prisoner to know to make a
complaint.1082
At least, the foregoing is the central tendency of the case law. Some courts have
(over)stated, e.g., “that inmates' awareness of a prison's grievance system is irrelevant when
determining whether they satisfactorily exhausted the administrative remedies available to
them.”1083 A recent Ninth Circuit decision—which appropriately is now under en banc review—
hardens this notion into the rather extreme proposition that lack of awareness of administrative
remedies does not make them unavailable “unless the inmate meets his or her burden of proving
the grievance procedure to be unknowable,”1084 though later in the opinion the court uses the
phrase “reasonable, good-faith efforts to discover the appropriate procedure” to describe the
F.3d 339, 341 (8th Cir. 2005) (holding that prisoners who admitted receiving guide that explained the grievance
procedure were not excused from using it by their allegations that prison personnel had “made it clear” that they
should instead voice complaints informally to medical personnel); Boyd v. Corrections Corporation of America, 380
F.3d 989, 999 (6th Cir. 2004), cert. denied, 540 U.S. 920 (2005); Concepcion v. Morton, 306 F.3d 1347, 1354–55
(3rd Cir. 2002); Smith v. City of New York, 2013 WL 5434144, *10 (S.D.N.Y., Sept. 26, 2013) (rejecting ignorance
argument where plaintiffs signed for an Inmate Handbook); Bruce v. Fenske, 2013 WL 1152031, *3 (W.D.Ark.,
Feb. 27, 2013) (rejecting ignorance argument where plaintiff filed a grievance but sued before the process was
complete), report and recommendation adopted, 2013 WL 1154364 (W.D.Ark., Mar. 19, 2013); Minor v. Brown,
2012 WL 5504860, *6 (S.D.Ga., Oct. 16, 2012) (rejecting argument that prisoner did not know transfers were
grievable where it was in the policy that prisoners had access to; distinguishing Goebert v. Lee), report and
recommendation adopted, 2012 WL 5500574 (S.D.Ga., Nov. 13, 2012); see Appendix A for additional authority on
this point; see also Santiago v. Anderson, 2012 WL 3164293, *5 (7th Cir. 2012) (unpublished) (affirming nonexhaustion dismissal where prisoner sent grievance to the wrong prison but the instructions on the form told him
where to send it), cert. denied, 133 S.Ct. 769 (2012).
In an unreported case, the Second Circuit held that a prisoner would not be held to have constructive notice
of the grievance procedures based on receiving an inmate manual describing them when the manual was taken away
a few days later. The court declined to hold the plaintiff had a duty to ask for another one, since state law gave
prison officials the duty of apprising prisoners of the procedures. Aponte v. Armstrong, 2005 WL 1527701, *2 (2d
Cir., June 27, 2005) (unpublished). Similarly, in Reynolds v. Smith, 2012 WL 293012, *3, 5 (S.D.Ohio, Feb. 1,
2012), the court declined to find non-exhaustion where the plaintiff had been given a prison handbook on admission
but it had been taken from her shortly thereafter, and she reported a sexual assault and followed staff directions
without ever being told that she was not following proper procedures.
1080
Clark v. Forsythe, 2010 WL 1753130, *4 (W.D.Okla., Mar. 11, 2010), report and recommendation adopted,
2010 WL 1753127 (W.D.Okla., Apr. 29, 2010); Regan v. Frank, 2008 WL 508067, *5 (D.Haw., Feb. 26, 2008)
(holding prisons need not inform prisoners about the PLRA exhaustion requirement, even if they are required to
inform them about their own grievance procedures).
1081
Small v. Camden County, 728 F.3d 265, 271-72 (3d Cir. 2013); Scott v. Correctional Medical Services, 2010
WL 3724126, *5-6 (D.N.J., Sept. 13, 2010); Francisco v. Reese, 2009 WL 77458, *4 (S.D.Miss., Jan. 9, 2009);
Akright v. Graves, 2006 WL 2947323, *6 (E.D.Wis., Oct. 16, 2006).
1082
In Timberlake v. Buss, 2007 WL 1280659, *1-2 (S.D.Ind., May 1, 2007), the court declined to dismiss a
challenge to lethal injection protocols where the record showed that the protocols were confidential and would not
have been disclosed to the plaintiff.
1083
Morgan v. City of Henderson Detention Center, 2012 WL 2884889, *6 (D.Nev., July 13, 2012); accord, Twitty
v. McCoskey, 226 Fed.Appx. 594, 596 (7th Cir. 2007) (“A prisoner's lack of awareness of a grievance procedure . . .
does not excuse compliance.”); Gates v. Ball, 2011 WL 2745920, *3 (E.D.Ark., June 8, 2011) (stating “it is well
settled that a prisoner's subjective understanding of the prison grievance process is irrelevant to a determination of
whether there has been proper exhaustion”).
1084
Albino v. Baca, 697 F.3d 1023, 1026 (9th Cir. 2012) (emphasis supplied), rehearing en banc granted, 709 F.3d
994 (9th Cir. 2013).

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prisoner’s burden.1085 The court relies for the term “unknowable” on an Eleventh Circuit case in
which defendants attempted to hold the prisoner plaintiff to compliance with a procedure which
genuinely was unknowable to prisoners, since it was not made available to prisoners in any
manner.1086 However, it is not clear that the Eleventh Circuit meant “unknowable” to be the
governing standard, as opposed to simply describing the facts before the court. A subsequent
case from that court suggests a considerably lower threshold, rejecting dismissal for nonexhaustion where the record did not show that the prisoner “was aware or could readily become
aware” of the procedure he had allegedly not followed.1087 Further, in the Ninth Circuit Albino
decision itself, the dissenting judge argues persuasively that the plaintiff did exert “reasonable,
good-faith effort” to learn the available remedies, since he complained to several deputies about
being repeatedly raped and assaulted and not being transferred to protective custody in response
to any of those attacks, and none of them referred him to the grievance process or told him how
to use it,1088 and since there was no showing that the document in which the grievance policy
appeared was made available to prisoners or that grievance forms or locked grievance boxes,
allegedly available in housing areas, were “noticeable to or identifiable by the inmates.”1089 In
any case, the approach of the Ninth Circuit panel creates an exceptionally demanding
requirement, enforced by forfeiture of the claim no matter how substantial, for persons many of
whom are unsophisticated, uneducated, of little literacy or little English literacy (the Albino
plaintiff was Spanish-speaking), learning-disabled, or burdened by mental illness, usually
constrained by very short deadlines for an administrative filing.
Some courts have held that prisoners must “make some affirmative effort to comply with
the administrative procedures” before claiming that prison staff’s actions have made them
unavailable.1090 As a matter of common sense, that holding is not valid in all circumstances, e.g.,
if the prisoner has been subjected to the threat of serious harm if he or she files a grievance.1091
Some courts have held that even if a prisoner is temporarily obstructed from filing a
grievance, that doesn’t excuse non-exhaustion; the prisoner is obliged to exhaust once the
obstruction is out of the way, even if the grievance would be untimely.1092
There is an open question whether a remedy that is too slow to prevent irreparable harm
is “available” for PLRA purposes.1093

1085

Albino, 697 F.3d at 1035; see id., 1037 (“unknowable with reasonable effort”).
Goebert v. Lee Cnty., 510 F.3d 1312, 1322 (11th Cir. 2007) (quoted in Albino, 697 F.3d at 1026, 1036.
1087
See Brown v. Drew, 452 Fed.Appx. 906, 908 (11th Cir. 2012) (unpublished) (emphasis supplied).
1088
Albino, 697 F.3d at 1041 (dissenting opinion).
1089
Albino, 697 F.3d at 1041; see id. at 1042 (“In my view, once an inmate engages in a sincere effort to complain
about the conditions of his confinement to someone with authority at the jail, that assertion should trigger on the part
of the jail an obligation to inform the inmate about the proper procedure to pursue his complaint.”).
1090
Washington v. Proffit, 2005 WL 1176587, *3 (W.D.Va., May 17, 2005), report and recommendation adopted,
2005 WL 1429312 (W.D.Va., June 17, 2005); accord, Veloz v. State of N.Y., 339 F.Supp.2d 505, 516 (S.D.N.Y
2004) (“An inmate seeking to be relieved from technically exhausting his administrative remedies must allege facts
showing that he made reasonable attempts to exhaust his remedies.”), aff’d, 178 Fed.Appx. 39 (2d Cir., Apr. 24,
2006).
1091
See Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Hemphill v. New York, 380 F.3d 680, 688 (2d
Cir. 2004).
1092
See nn. 847-849, above.
1093
See § IV.H, below.
1086

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Courts have not fully explored the question whether obstruction of prisoners’ use of the
grievance system—a prerequisite to court filing—is also a denial of access to the courts.1094
Many courts have said no, on the ground that evidence of such conduct would show that the
remedy was unavailable or that the prisoner was excused from completing exhaustion.1095 (One
court has held that the exhaustion question is not before the court until the defendants seek
dismissal claiming non-exhaustion.1096) This argument is a bit simplistic in cases of purposeful
obstruction by prison staff, since prisoners, who are mostly proceeding pro se and without the
ability to engage in effective discovery, and whose credibility is impaired by their criminal
records, are at a substantial disadvantage in seeking to discredit official claims that they failed to
exhaust.1097
1094

In Davis v. Milwaukee County, 225 F.Supp.2d 967, 976 (E.D.Wis. 2002), the court held that the plaintiff had
been denied access to courts by defendants’ hindering his ability to exhaust, inter alia, by telling him that his
complaint was “not a grievable situation.” See Crump v. Armstrong, 2011 WL 7768588, *1 (W.D.Mich., July 26,
2011) (holding plaintiff stated a claim where he alleged that of access to the grievance system and dismissal of one
of his cases as a result); see also Hurt v. Flury, 2013 WL 5335711, * (D.Md., Sept. 20, 2013) (rejecting the
plaintiff’s claim of court access violation by interference with grievances for lack of actual injury where his case
was not dismissed for non-exhaustion). Several courts have held that punishment or retaliation for use of the
grievance system can violate the right of access to courts. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995);
Escobar v. Reid, 668 F.Supp.2d 1260, 1302-03 (D.Colo. 2009) (retaliation for filing grievances states both First
Amendment and court access claims); Nelson v. Gowdy, 2006 WL 2604679, *2 (E.D.Mich., Sept. 11, 2006)
(treating claim of retaliation for a grievance as equivalent to one involving a lawsuit because exhaustion is required
before litigation).
1095
See, e.g., French v. Allegany County, 2013 WL 4049682, *5 (D.Md., Aug. 8, 2013); Young-Bey v. Kennedy,
2013 WL 1976004, *5 (D.Md., May 10, 2013) (“To the extent that a prisoner's attempts to exhaust the
administrative remedy process are thwarted by prison officials' misconduct, that evidence may be presented in
response to the affirmative defense.”); Hernandez v. Olmos, 2013 WL 1758827, *2 (E.D.Cal., Apr. 24, 2013);
Bradford v. Vella-Lopez, 2013 WL 1704287, *4 (E.D.Cal., April 19, 2013) (stating “given the myriad of exceptions
to administrative exhaustion, the bare assertion that Plaintiff suffered an actual injury because prison officials would
not process or resolve his inmate appeals is untenable”), report and recommendation vacated on other grounds,
2014 WL 223642 (E.D.Cal., Jan. 21, 2014); Thompson v. Zwikler, 2013 WL 1080373, *3 (W.D.Mich., March 14,
2013); Paolone v. Altiere, 2012 WL 5463871, *3 (N.D.Ohio, Nov. 8, 2012); Thomas v. Hernandez, 2012 WL
4496826, *4 (S.D.Cal., Sept. 28, 2012) (“Thomas hasn't been shut out of court. He's here, presenting his § 1983
claim . . . . [and] argu[ing] that his failure to exhaust should be excused. . . .”); Horning v. Laousor, 2011 WL
5175352, *3 (C.D.Cal., Nov. 1, 2011) (“The remedy when prison officials improperly impede a prisoner's ability to
file an administrative grievance is for the court to exempt the prisoner from the PLRA's exhaustion requirement.”);
Rideaux v. Tribley, 2011 WL 4374616, *10 n.5 (W.D.Mich., Sept. 19, 2011); Brown v. Blackwell, 2011 WL 63595,
*2 (S.D.Ohio, Jan. 6, 2011) (declining to enjoin allegedly non-functioning grievance system); Garcia v. Lunes, 2010
WL 1267128, *7 (E.D.Cal., Mar. 30, 2010), aff’d, 441 Fed.Appx. 485 (9th Cir. 2011) (unpublished); Wappler v.
Kleinsmith, 2010 WL 707339, *5 (W.D.Mich., Feb. 22, 2010); Peterson v. Cooper, 2009 WL 2448141, *4
(W.D.Mich., Aug. 10, 2009); Wilkins v. Illinois Dept. of Corrections, 2009 WL 1904414, *9 (S.D.Ill., July 1, 2009),
on reconsideration on other grounds, 2009 WL 4894588 (S.D.Ill., Dec. 11, 2009); see Appendix A for additional
authority on this point. Consistently with this view, other courts have held that an allegation of interference with the
grievance process does not give rise to a cognizable access to courts claim until and unless the plaintiff suffers actual
injury from dismissal for non-exhaustion. Green v. Swhittach, 2007 WL 2947596, *2 (E.D.Cal., Oct. 9, 2007),
report and recommendation adopted, 2007 WL 4591926 (E.D.Cal., Dec. 28, 2007); Trevino v. Whitten, 2005 WL
2655741, *3 (E.D.Cal., Oct. 17, 2005), report and recommendation adopted, 2005 WL 3284167 (E.D.Cal., Nov. 29,
2005). One recent decision withheld injunctive relief on similar grounds after a showing that the grievance system
had been practically unavailable to multiple plaintiffs. Kress v. CCA of Tennessee, LLC, 2010 WL 4751584, *4
(S.D.Ind., Nov. 16, 2010).
1096
Richards v. F.B.I., 2013 WL 3215524, *2 (W.D.Mich., June 24, 2013).
1097
For a rare case in which a pro se prisoner prevailed in such an evidentiary dispute, see Blount v. Fleming, 2006
WL 1805853, *2-4 (W.D.Va., June 29, 2006) (finding inter alia that defendants falsely claimed not to have received

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3. Estoppel
Defendants may be estopped from raising a defense of non-exhaustion based on the same
kinds of facts that support an argument of unavailability: obstruction or intimidation by prison
staff,1098 or misleading of prisoners about the availability or requirements of remedies.1099 Some
courts, however, have said that claims of estoppel are limited to cases of affirmative
misrepresentation or misconduct by officials.1100 The Second Circuit has suggested that it is

plaintiff’s grievances). In recent years such cases have become more numerous in the Seventh Circuit as “Pavey
hearings” have become frequent. See n. 415, above.
1098
Hemphill v. New York, 380 F.3d 680, 689 (2d Cir. 2004) (remanding for consideration of estoppel argument of
prisoner who alleged he was assaulted and threatened to keep him from complaining); Ziemba v. Wezner, 366 F.3d
161, 163-64 (2d Cir. 2003); Gantt v. Lape, 2012 WL 4033729, *7 (N.D.N.Y., July 31, 2012) (holding prisoner’s
claim that his grievance was not processed, but was given to the affected staff member, who screamed threats at the
plaintiff, “just barely” supported a triable estoppel claim), report and recommendation adopted, 2012 WL 4033723,
*4 (N.D.N.Y., Sept. 12, 2012); Perez v. Fischer, 2012 WL 1098423, *12 (N.D.N.Y., Mar. 1, 2012) (allegations of
assault, threats, and reprisals, after which plaintiff stopped filing grievances and complaint letters until he was
moved to another prison, sufficiently supported claims of unavailability), report and recommendation adopted, 2012
WL 1088486 (N.D.N.Y., Mar. 30, 2012); Triplett v. Rendle, 2012 WL 913711, *5 (N.D.N.Y., Feb. 9, 2012)
(keeping prisoner in observation unit without writing instrument until the grievance deadline passed raised triable
estoppel issue), report and recommendation adopted, 2012 WL 913043 (N.D.N.Y., Mar. 16, 2012); Benitez v.
Straley, 2006 WL 5400078 at 8 (S.D.N.Y., Feb. 16, 2006); Larry v. Byno, 2006 WL 1313344, *4 (N.D.N.Y., May
11, 2006) (applying Hemphill); Martin v. Sizemore, 2005 WL 1491210, *3 (E.D.Ky., June 22, 2005) (holding
defendants estopped where they “designed their ‘complaint’ system so that inmates were often allegedly dependent
upon the very persons against whom they were registering a complaint to transport the complaint to the front office
or to personally and independently of a committee resolve the matter”). In Ledbetter v. Emery, 2009 WL 1871922,
*4-5 (C.D.Ill., June 20, 2009), the court held that an officer who had sexually harassed a female prisoner might be
estopped to assert the defense, even though no defendants had actually threatened the plaintiff with respect to filing
grievances.
The Seventh Circuit has explicitly avoided deciding whether estoppel applies in this context. Kaba v.
Stepp, 458 F.3d 678, 687 (7th Cir. 2006). The Third and Tenth Circuits have not reached the issue. See
Abdulhaseeb v. Calbone, 2008 WL 904661, *15 (W.D.Okla., Apr. 2, 2008), aff’d in part, vacated in part,
remanded, 600 F.3d 1301 (10th Cir. 2010), cert. denied, 131 S.Ct. 469 (2010); Clemens v. SCI-Albion, 2006 WL
3759740, *6 (W.D.Pa., Dec. 19, 2006).
1099
See Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006) (citing erroneous advice to abandon property loss claim
and file a grievance in finding special circumstances excusing failure to exhaust correctly); Pacheco v. Drown, 2010
WL 144400, *21 (N.D.N.Y., Jan. 11, 2010) (defendants arguably estopped where plaintiff’s grievance was
incorrectly ruled non-grievable); Cabrera v. LeVierge, 2008 WL 215720, *6 (D.N.H., Jan. 24, 2008) (“Defendants'
reliance upon undisclosed rules to reject plaintiff's grievance form necessarily estops them from relying upon
plaintiff's failure to exhaust those remedies as a defense.”); see Appendix A for additional authority on this point.
But see Dillon v. Rogers, 596 F.3d 260, 270 (5th Cir. 2010) (estoppel is not appropriate where plaintiff did not show
reasonable reliance on other party’s conduct); Berry v. City of New York, 2002 WL 31045943, *8 (S.D.N.Y., June
11, 2002) (declining to credit estoppel claim where the plaintiff had used the grievance system successfully on other
occasions).
1100
Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (reiterating Ruggiero holding re need for affirmative
conduct to support estoppel); Ruggiero v. County of Orange, 467 F.3d 170, 178 (2d Cir. 2006) (rejecting estoppel,
noting that plaintiff “points to no affirmative act by prison officials that would have prevented him from pursuing
administrative remedies”); Lewis v. Washington, 300 F.3d 829, 834-35 (7th Cir. 2002) (declining to apply equitable
estoppel where the defendants did not affirmatively mislead the plaintiff but merely failed to respond to grievances);
Wolfe v. Alameida, 2008 WL 4454053, *3-4 (E.D.Cal., Sept. 29, 2008); Abdulhaseeb v. Calbone, 2008 WL
904661, *15 (W.D.Okla., Apr. 2, 2008) (holding plaintiff would have to “demonstrate misrepresentation, reasonable
reliance on the misrepresentation, and detriment”), aff’d in part, vacated in part, remanded, 600 F.3d 1301 (10th
Cir. 2010), cert. denied, 131 S.Ct. 469 (2010).”).

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better to consider arguments based on unavailability first,1101 which makes sense because it is
simpler and the effect of an estoppel argument in this context remains a bit murky.
Initially, the Second Circuit held that defendants’ actions “may . . . estop[] the State from
asserting the exhaustion defense.”1102 However, it has also said that where several defendants
played different roles in the acts giving rise to estoppel, “it is possible that some individual
defendants may be estopped, while others may not be.”1103 Some courts have treated estoppel as
a personal defense and have declined to apply it where the persons responsible for the estopping
conduct were not the named defendants.1104 Others, however, have held defendants estopped to
claim non-exhaustion where the actions of grievance personnel, or other staff members who were
not named defendants, unjustifiably prevented the prisoner from exhaustion.1105 The latter result
1101

Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004).
Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (emphasis supplied); see Giano v. Goord, 380 F.3d 670,
675 (2d Cir. 2004) (stating Hemphill v. State of New York reads Ziemba to mean that threats may “estop the
government from asserting the affirmative defense of non-exhaustion”) (emphasis supplied).
1103
Hemphill v. New York, 380 F.3d 680, 689 (2d Cir. 2004).
1104
Dillon v. Rogers, 596 F.3d 260, 270 (5th Cir. 2010) (quoting Hemphill); Chiarappa v. Meyers, 2013 WL
6328478, *6 (W.D.N.Y., Dec. 5, 2013) (citing Murray v. Palmer, infra); Smith v. City of New York, 2013 WL
5434144, *11 (S.D.N.Y., Sept. 26, 2013); Fields v. Downstate Correctional Facility, 2012 WL 6709192, *6
(S.D.N.Y., Dec. 21, 2012) (holding defendant cannot be estopped from arguing non-exhaustion unless he personally
impeded exhaustion), report and recommendation adopted, 2013 WL 776729 (S.D.N.Y., Mar. 1, 2013); Murray v.
Palmer, 2010 WL 1235591, *5 (N.D.N.Y., Mar. 31, 2010) (“Generally, a defendant in an action may not be
estopped from asserting the affirmative defense of failure to exhaust administrative remedies based on the actions
(or inactions) of other individuals.”) (footnote omitted); Collins v. Goord, 438 F.Supp.2d 399, 415 n.16 (S.D.N.Y.
2006); Gill v. Frawley, 2006 WL 1742738, *12 (N.D.N.Y., June 22, 2006); McCullough v. Burroughs, 2005 WL
3164248, *4 (E.D.N.Y., Nov. 29, 2005); Barad v. Comstock, 2005 WL 1579794, *7 (W.D.N.Y., June 30, 2005) (all
declining to apply estoppel where persons responsible for estopping conduct were not the named defendants); see
Snyder v. Whittier, 2009 WL 691940, *9 (N.D.N.Y., Mar. 12, 2009) (intimidation by one defendant did not excuse
non-exhaustion against another defendant not involved in the conduct).
1105
See Brunson v. Jonathan, 727 F.Supp.2d 195, 198-99 (W.D.N.Y. 2010); Cousin v. Dodrill, 2010 WL 986411, *7
(N.D.N.Y., Feb. 25, 2010) (finding a material issue as to estoppel based on claim that prison personnel delayed
mailing pliantiff’s grievance appeal), report and recommendation adopted, 2010 WL 986405 (N.D.N.Y., Mar. 17,
2010); DeMartino v. Zenk, 2009 WL 2611308, *7-8 (E.D.N.Y., Aug. 25, 2009) (finding a material issue as to
estoppel based on lack of access to a copy machine required to comply with grievance procedure; grievance
concerned medical care), reconsideration denied, 2009 WL 4626647 (E.D.N.Y., Dec. 7, 2009); Snyder v. Goord,
2007 WL 957530, *10 (N.D.N.Y., Mar. 29, 2007) (holding misleading advice from grievance supervisor could estop
named defendant); Messa v. LeClaire, 2007 WL 2292975, *4 (N.D.N.Y., Feb. 26, 2007) (holding threats by
unidentified prison staff could estop the named defendants), report and recommendation adopted, 2007 WL
2288106 (N.D.N.Y., Aug. 6, 2007); Gay v. Correctional Medical Services, 2007 WL 495241, *3 (D.Vt., Feb. 9,
2007) (holding officer’s admission that she received and signed the plaintiff’s grievance but then returned it to him
rather than forwarding it as required may estop the defendants); Brown v. Koenigsmann, 2005 WL 1925649, *2
(S.D.N.Y., Aug. 10, 2005) (“Nothing in Ziemba, however, requires that the action or inaction which is the basis for
the estoppel be that of the particular defendant in the prisoner’s case.”); Rivera v. Pataki, 2005 WL 407710, *11
(S.D.N.Y., Feb. 7, 2005) (holding that rejection of grievances as untimely after the court had dismissed on condition
that exhaustion would be allowed estopped the defendants from claiming non-exhaustion); Warren v. Purcell, 2004
WL 1970642, *6 (S.D.N.Y. Sept. 3, 2004) (holding “baffling” grievance response that left prisoner with no clue
what to do next estopped defendants from claiming the defense); see also Shaheed-Muhammad v. Dipaolo, 393
F.Supp.2d 80, 97 (D.Mass. 2005) (noting defendants’ failure to answer the plaintiff’s grievances; stating “[h]aving
failed to abide by the strictures of their own regulations, defendants should not be allowed to claim plaintiff’s
noncompliance as a bar.”).
The court in Brown v. Koenigsmann said that if it was wrong in applying estoppel, the facts at issue–the
failure of the grievance system to issue a final decision despite the plaintiff’s repeated inquiries–would also
constitute special circumstances excusing non-exhaustion under Second Circuit authority. 2005 WL 1925649, *2.
1102

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makes sense. Regardless of the treatment of estoppel in other contexts, PLRA exhaustion is
intended to protect the institutional interests of the prison system and not the personal interests of
individual prison personnel,1106 even if it is the latter who assert it in litigation.
H.

What If the Problem Is Too Urgent To Exhaust?

Most courts have held that there is no emergency exception to the exhaustion
requirement,1107 consistently with the general principle that exhaustion must precede filing.1108
Courts have rejected requests for temporary restraining orders and preliminary injunctions
because of non-exhaustion, sometimes stating that non-exhaustion means there is little likelihood
of success on the merits.1109 There are a few decisions that have allowed cases to go forward
That will probably be the case in most cases where estoppel is raised. See, e.g., Rivera v. Pataki, 2005 WL 407710,
*11-13; Warren v. Purcell, 2004 WL 1970642, *6.
1106
“The purpose of administrative exhaustion is not to protect the rights of officers, but to give prison officials a
chance to resolve the complaint without judicial intervention.” Freeman v. Berge, 2004 WL 1774737, *3 (W.D.Wis.,
July 28, 2004); accord, Jones v. Bock, 549 U.S. 199, 219 (2007) (stating that providing notice to persons who might
later be sued “has not been thought to be one of the leading purposes of the exhaustion requirement.”); Porter v.
Nussle, 534 U.S. 516, 524-25 (2002) (noting that “to reduce the quantity and improve the quality of prisoner suits . .
. Congress afforded corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.”) (emphasis supplied); Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004). This
reasoning is supported in a different context by Jewkes v. Shackleton, 2012 WL 5332197 (D.Colo., Oct. 29, 2012),
in which the grievance body decided the plaintiff’s grievance even though it was untimely. The court held that the
exhaustion requirement is designed to serve certain institutional purposes, and the grievance system at issue did not
give individual employees a role in controlling the disposition of grievances, so the employee was bound by the
failure to enforce time limits. Jewkes, 2012 WL 5332197, *4-5.
1107
Williams v. Bal, 2012 WL 2065051, *2 (E.D.Cal., June 7, 2012) (holding there is no imminent danger exception
to the exhaustion requirement); Bolton v. Smith, 2012 WL 1400061, *6-7 (C.D.Cal., Mar. 1, 2012), report and
recommendation adopted, 2012 WL 1399961 (C.D.Cal., Apr. 16, 2012); Riffey v. Lappin, 2010 WL 3782220, *4
(D.S.C., July 27, 2010) (“Under the PLRA, there is no urgent medical need exception for the exhaustion
requirement.”), report and recommendation adopted, 2010 WL 3782164 (D.S.C., Sept. 21, 2010); Nickens v.
District of Columbia, 694 F.Supp.2d 10, 15 (D.D.C. 2010) (noting that the PLRA eliminated the rule that remedies
must be “plain, speedy, and effective” to require exhaustion); Michalski v. Krebs, 2010 WL 1032647, *1 (S.D.Ill.,
Mar. 17, 2010); Horacek v. Caruso, 2009 WL 125398, *3 (W.D.Mich., Jan. 15, 2009); see Appendix A for additional
authority on this point; see also Hammond v. SCI Albion/DOC, 2012 WL 5451564, *2 (W.D.Pa., Nov. 7, 2012)
(similar to Lake v. Johnson, infra); Lake v. Johnson, 2008 WL 2641323, *2 (W.D.Va., July 1, 2008) (prisoner who
has not exhausted does not show a likelihood of success as required for an injunction); Washington v.
Randall-Owens, 2007 WL 1544425, *2 (E.D.Mich., May 25, 2007) (citing lack of exhaustion and lack of showing
of irreparable harm in denying preliminary injunction); Jones v. Sandy, 2006 WL 355136, *10 & n.3 (E.D. Cal. Feb.
14, 2006) (stating there is no emergency exception to exhaustion, but the court might reconsider that conclusion if it
learned there was no emergency grievance procedure), report and recommendation adopted, 2006 WL 708346 (E.D.
Cal., Mar. 20, 2006).
1108
See § IV. E, above.
1109
See, e.g., Johnson v. Payton, 2013 WL 1843979, *4 (E.D.Mich., Apr. 10, 2013) (stating plaintiff did not show a
likelihood of success because his complaint raised questions about exhaustion), report and recommendation
adopted, 2013 WL 1843971 (E.D.Mich., May 1, 2013); Richards v. McKee, 2013 WL 1163367, *6 (E.D.Mich.,
Feb. 25, 2013), report and recommendation adopted, 2013 WL 1163341 (E.D.Mich., Mar. 20, 2013); Breeland v.
Fisher, 2012 WL 4105090, *6 (M.D.Pa., July 25, 2012) (holding failure to exhaust precluded consideration of
injunctive relief), report and recommendation adopted, 2012 WL 4104561 (M.D.Pa., Sept. 18, 2012); Wenzel v.
IDOC, 2012 WL 3062779, *3 (S.D.Ill., June 7, 2012) (holding plaintiff’s desire to seek an emergency TRO did not
excuse non-exhaustion), report and recommendation adopted, 2012 WL 3062775 (S.D.Ill., July 27, 2012); Geiger v.
Benov, 2011 WL 5884273, *3 (E.D.Cal., Nov. 23, 2011); Victor v. Varano, 2011 WL 5026216, *9 (M.D.Pa., Sept.
12, 2011), report and recommendation adopted, 2011 WL 5036016 (M.D.Pa., Oct. 21, 2011); Christian v. Bureau of
Prisons, 2011 WL 3903173, *2 (C.D.Cal., Sept. 2, 2011); Anderson v. Prisoner Health Services, 2011 WL 2143514,

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without exhaustion to avoid irreparable harm, but they mostly do not provide much legal
justification for disregarding the exhaustion requirement.1110 The Second Circuit once said the
question was open whether there was an irreparable harm exception to PLRA exhaustion,1111 but
apparently no lower court has granted relief based on such an exception, and courts have
questioned whether it is consistent with Supreme Court decisions.1112 In one case involving a
prisoner with serious medical problems, the court initially stayed the action for slightly less than
two months, rather than dismissing it, and directed the parties to “cooperate to conclude
administrative resolution” within that deadline; however, on the government’s motion for
reconsideration, it acknowledged it lacked the power to take that action.1113
Two circuits have provided convincing rationales for bypassing exhaustion in urgent
situations. The District of Columbia Circuit has held that there is no irreparable harm exception,
but that courts retain their traditional equitable discretion to grant temporary relief to maintain
the status quo pending exhaustion.1114 No one seems actually to have obtained relief on that basis
yet (though one court threatened to grant it and jail officials hastily addressed the problem 1115),
but the argument may have been strengthened after the fact by the Supreme Court’s holding that
*2 (E.D.Mich., May 31, 2011); Alba v. Randle, 2011 WL 1113866, *1-2 (S.D.Miss., Mar. 28, 2011) (denying TRO
for non-exhaustion).
1110
See Salesky v. Balicki, 2010 WL 4973626, *2-3 (D.N.J., Nov. 29, 2010) (considering preliminary injunction
motion based on apparent emergency despite non-exhaustion, admonishing plaintiff to exhaust, but not dismissing);
Evans v. Saar, 412 F. Supp. 2d 519, 527 (D.Md. 2006) (declining to dismiss for non-exhaustion, given “shortness of
time,” where plaintiff challenged the protocol for his impending execution and the grievance process was not
complete); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533–34 (M.D. La. 2003) (holding that prisoner fighting
transfer from community corrections to a prison need not exhaust where appeal would take months and prison
officials wanted to transfer her despite any pending appeal); Ferguson v. Ashcroft, 248 F. Supp. 2d 547, 563–64
(M.D. La. 2003) (same as Howard); Borgetti v. Bureau of Prisons, 2003 WL 743936, *2 n.2 (N.D. Ill. Feb. 14,
2003) (holding that “the court’s jurisdiction is secure” to decide a case in which the prisoner sought immediate
injunctive relief and exhaustion would almost certainly take longer than the remainder of his sentence). One court
has pointed out that most of these cases involve claims that would have been moot before they could be exhausted.
Ung v. Lappin, 2007 WL 5465992, *4 (W.D.Wis., Jan. 29, 2007), reconsideration denied, 2007 WL 5490150
(W.D.Wis., Mar. 12, 2007).
1111
See Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001).
1112
See Rivera v. Pataki, 2003 WL 21511939, *6 (S.D.N.Y. July 1, 2003).
1113
McCaffery v. Winn, 2005 WL 2994370, *1 (D.Mass., Nov. 8, 2005), on reconsideration, 2006 WL 344961, *1
(D.Mass., Feb. 14, 2006). The court said on reconsideration that “[t]he statute does insist that administrative
remedies be fully exhausted before the complaint is filed,” which is correct, and that the court “therefore [has] no
choice but to allow the motion to dismiss,” which is debatable. See nn. 253-256, above.
1114
Jackson v. District of Columbia, 254 F.3d 262, 267–68 (D.C. Cir. 2001); accord, Simmons v. Stokes, 2010 WL
2165358, *4 (D.S.C., May 26, 2010); see Nickens v. District of Columbia, 694 F.Supp.2d 10, 14-15 (D.D.C. 2010)
(Jackson holding authorizes interim relief but does not allow prisoners to bypass the administrative process
entirely).
At least one court has held that under the Jackson rule, a court must entertain preliminary injunction
proceedings and enter an injunction if warranted as exhaustion is proceeding, and then dismiss and require the case
to be re-filed. Stringham v. Bick, 2008 WL 4145473, *9 (E.D.Cal., Sept. 3, 2008), report and recommendation
adopted, 2008 WL 4472954 (E.D.Cal., Sept. 30, 2008). Why such an exercise in wheel-spinning should be required
once the court has already acted before exhaustion is completed is not clearly explained.
1115
Tvelia v. Dep’t of Corr., 2004 WL 298100, *2 (D.N.H. Feb. 13, 2004). But see Blain v. Bassett, 2007 WL
4190937, *2 (W.D.Va., Nov. 21, 2007) (refusing to direct delay of new prison rule pending plaintiff’s completion of
exhaustion, dismissing action; Jackson not cited); McCauley v. Bassett, 2007 WL 4125375, *2 (W.D.Va., Nov. 20,
2007) (same); Glick v. Montana Dept. of Corrections, 2007 WL 2359776, *2 (D.Mont., Aug. 14, 2007) (dismissing
for non-exhaustion, ignoring plaintiff’s claim that he was seeking preliminary relief to avoid irreparable harm
pending exhaustion; Jackson not cited).

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courts should not deviate from the usual practices of litigation unless the PLRA explicitly says
so.1116
The Seventh Circuit has framed the question in terms of availability: “If a prisoner has
been placed in imminent danger of serious physical injury by an act that violates his
constitutional rights, administrative remedies that offer no possible relief in time to prevent the
imminent danger from becoming an actual harm can't be thought available.” 1117 However, if the
prison makes available an emergency grievance procedure that could provide timely relief, the
prisoner is obliged to use it before bringing suit.1118 Many prison systems have emergency
grievance procedures, and the National Standards to Prevent, Detect, and Respond to Prison
Rape, recently promulgated under the Prison Rape Elimination Act, require that such a procedure
be available for sexual abuse complaints.1119
The Fletcher decision uses the phrase “imminent danger of serious physical injury,” the
language of the exception to the “three strikes” provision of the PLRA,1120 because that was the
issue presented to it. Whether its rationale would extend to any form of irreparable harm, or to
any alleged violation of law that would be completed before the grievance process could correct
it, is uncertain.1121
Other decisions have held that an allegation of imminent danger of serious physical harm
asserted for purposes of avoiding the three strikes provision1122 does not except the prisoner from
the exhaustion requirement.1123 These decisions should be reevaluated in light of the holding in
Fletcher.
I.

Statutes of Limitations

Decisions to date mostly hold that the statute of limitations is tolled during administrative
exhaustion.1124 However, it is not certain whether that conclusion holds independently of state
1116

Jones v. Bock, 549 U.S. 199, 212-16 (2007). The Court specifically referred to the usual practice under the
Federal Rules of Civil Procedure. Injunctions, including preliminary injunctions, are addressed in Rule 65.
1117
Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010). “If it takes two weeks to exhaust
a complaint that the complainant is in danger of being killed tomorrow, there is no ‘possibility of some relief’ and so
nothing for the prisoner to exhaust.” Id.
1118
Fletcher v. Menard Correctional Center, 623 F.3d at 1174; accord, Smith v. Moon, 2012 WL 5425260, *2-3
(E.D.Cal., Nov. 6, 2012); Blankenship v. Owens, 2011 WL 610967, *6 n.5 (N.D.Ga., Feb. 15, 2011); Nowell v.
Hickey, 2011 WL 381943, *3 (E.D.Ky., Feb. 1, 2011).
1119
28 C.F.R. § 115.52(f) (requiring emergency procedure for allegations of risk of imminent sexual abuse, with
provision for protective action within 48 hours and final decision within five days).
1120
28 U.S.C. § 1915(g); see § VIII.D, below.
1121
See Smith v. N.C.D.O.C., 2007 WL 1200097 (W.D.N.C., Apr. 19, 2007), in which the plaintiff challenged the
denial of Native American religious artifacts in segregation, and said that he had filed a grievance but he would be
out of segregation before the process would be complete. The court rejected this “excuse for failing to following
[sic] the administrative grievance process” and denied his motion for a preliminary injunction, 2007 WL 1200097,
*2, even though plaintiff pled in substance that there was no available remedy at the relevant time.
1122
28 U.S.C. § 1915(g); see § VIII, below.
1123
McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004); Severson v. Igbinosa, 2011 WL 870895, *3 (E.D.Cal.,
Feb. 18, 2011); Jensen v. Knowles, 2008 WL 5156694, *4 (E.D.Cal., Dec. 9, 2008); Morgan v. Baker, 2008 WL
2568817, *2 (D.Conn., June 24, 2008), motion for relief from judgment granted on other grounds, 2008 WL
4831414 (D.Conn., Nov. 5, 2008); Clayborne v. Epps, 2008 WL 4056293, *1 (S.D.Miss., Aug. 25, 2008).
1124
Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (“Our sister circuits that have squarely confronted the
question presented here have answered in the affirmative, holding that tolling is applicable during the time period in
which an inmate is actively exhausting his administrative remedies.”); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir.

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tolling rules. The first appellate decision on the point, and a number of others since, have relied
explicitly on state tolling law,1125 and a few have held that the period is not tolled under a
particular state’s law.1126 Other decisions have been unclear or equivocal on the basis for tolling
during exhaustion.1127 A few decisions have stated directly, or strongly implied, that the PLRA
2005) (holding “we agree with the uniform holdings of the circuits that have considered the question that the
applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”);
Drain v. McLeod, 2007 WL 172349, *5 (E.D.Pa., Jan. 19, 2007) (“courts have uniformly held that the statute of
limitations on a § 1983 claim is tolled while a prisoner exhausts his available administrative remedies”).
There are a few ill-founded outliers. Thomas v. Henry, 2002 WL 922388, *2 (S.D.N.Y., May 7, 2002),
relies on a statement in a Supreme Court case that “the pendency of a grievance . . . does not toll the running of the
limitations periods.” Delaware State College v. Ricks, 449 U.S. 250, 261 (1980). But the employment grievance at
issue in Ricks was not one which had to be exhausted before suit could be brought, so Ricks is not relevant to the
question of tolling during exhaustion under the PLRA. In Bond v. Rhodes, 2007 WL 2752340, *4 (W.D.Pa., Sept.
19, 2007), the court rejected the argument that the plaintiff’s claim accrued only upon completion of exhaustion, but
failed to note the large body of law concerning tolling. Similarly, the court in Vantassel v. Rozum, 2009 WL
1833601, *2 (W.D.Pa., June 25, 2009), asserted that exhaustion does not toll the limitations period while ignoring
all contrary authority.
1125
Harris v. Hegmann, 198 F.3d 153, 157-58 (5th Cir. 1999); accord, Braxton v. Zavaras, 614 F.3d 1156, 1160
(10th Cir. 2010); Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007); King v. Ozmint, 2013 WL 4681236, *2
(D.S.C., July 23, 2013) (holding exhaustion requirement is a “statutory prohibition” triggering state tolling rule),
report and recommendation adopted as modified, 2013 WL 4680532 (D.S.C., Aug. 30, 2013); Saucillo v. Samuels,
2013 WL 360258, *2 (D.S.C., Jan. 30, 2013); Kelly v. White, 2011 WL 939015, *2 (D.S.C., Mar. 16, 2011)
(applying state limitations and tolling law); Dozier v. Neven, 2010 WL 3910060, *2-3 (D.Nev., Sept. 30, 2010)
(following Wisenbaker v. Farwell, infra); Peoples v. Rogers, 2010 WL 424201, *2 (D.S.C., Feb. 1, 2010); Peoples
v. South Carolina Dept. of Corrections, 2008 WL 4442583, *5-6 (D.S.C., Sept. 25, 2008); Hall v. Corrections Corp.
of America, 2007 WL 2688880, *1 (D.Kan., Sept. 13, 2007) (stating Kansas tolling law governed even in a Bivens
action), subsequent determination, 2008 WL 53666 (D.Kan., Jan. 3, 2008); Wisenbaker v. Farwell, 341 F.Supp.2d
1160, 1164-65 (D.Nev., Sept. 29, 2004) (applying “best judgment” about application of state equitable tolling law);
Howard v. Mendez, 304 F.Supp.2d 632, 636 (M.D.Pa. 2004) (applying state tolling rules to a case involving a
federal prisoner); McCoy v. Goord, 255 F.Supp.2d 233, 253 (S.D.N.Y. 2003) (noting in dictum that time spent
exhausting appears to be tolled under New York law); Roberts v. Saunders, 2003 WL 23678921, *1 (W.D.Va., Jan.
10, 2003); see generally Board of Regents v. Tomanio, 446 U.S. 478, 483-86 (1980) (holding that state tolling rules
are applicable in § 1983 actions).
1126
Wagner v. Barnette, 2014 WL 695388, *4 (W.D.Va., Feb. 24, 2014) (holding state law did not prescribe tolling
during exhaustion); Adams v. Wiley, 2010 WL 551394, *2 (D.Colo., Feb. 10, 2010) (similar to Braxton), aff’d, 398
Fed.Appx. 372 (10th Cir. 2010); Braxton v. Zavaras, 2009 WL 5743217, *4-5 (D.Colo., Dec. 11, 2009) (no tolling
where plaintiffs did not allege legal disability or mental incompetence; denying equitable tolling as well where
plaintiff still had substantial time under the limitations period when he finished exhausting), report and
recommendation adopted, 2010 WL 420035 (D.Colo., Feb. 1, 2010), aff’d, 614 F.3d 1156 (10th Cir. 2010); Smith v.
Wilson, 2009 WL 3444662, *3-4 (N.D.Ind., Oct. 22, 2009) (where state law limited statutory tolling to persons less
than eighteen years of age, mentally incompetent, or out of the United States, plaintiff was not entitled to tolling
while he exhausted administrative remedies).
1127
See Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
(citing cases relying on state law, but not referring directly to state law); Johnson v. Rivera, 272 F.3d 519, 521 (7th
Cir. 2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (not referring to state law, but relying on Harris v.
Hegmann, which did); Petrucelli v. Hasty, 605 F.Supp.2d 410, 418-19 (E.D.N.Y. 2009), reconsideration denied,
2010 WL 455002 (E.D.N.Y., Feb. 2, 2010); Ozoroski v. Maue, 2009 WL 414272, *7 (M.D.Pa., Feb. 18, 2009);
Cuco v. Federal Medical Center-Lexington, 2006 WL 1635668, *25 (E.D.Ky., June 9, 2006) (stating that the
exhaustion requirement tolls the limitations period but does not delay the accrual of the claim); Pratt v. New
Hampshire Dept. of Corrections, 2006 WL 995121, *6 (D.N.H., Mar. 31, 2006); Charlton v. Touma, 2006 WL
782829, *2 (E.D.Ky., Mar. 28, 2006) (“Because prisoners cannot bring suit in federal court until they have
exhausted their administrative remedies, the running of the applicable statute of limitations is tolled” during
exhaustion); Brown v. Olivencia-Font, 2006 WL 212188, *3 (D.S.C., Jan. 27, 2006) (“Filing a mandatory
administrative grievance typically tolls the statute of limitations for a § 1983 action”).

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itself requires tolling during exhaustion.1128 (At least one decision takes a different approach,
holding that the PLRA implies as a matter of federal law that the claim does not accrue for
limitations purposes until exhaustion is completed.1129)
If exhaustion tolls the limitations period, a prisoner complaint cannot be dismissed as
time-barred on initial screening or on a motion to dismiss unless the complaint specifies the
amount of time taken up in exhaustion.1130 It is necessary to know when exhaustion began as
well as how long it took because the limitations period is tolled only during the actual period of
exhaustion, not during the interval between the accrual of claims and the commencement of
administrative proceedings.1131
The limitations period is not further tolled during exhaustion of state judicial remedies,
since the statute does not require judicial exhaustion.1132 Nor is it automatically tolled during the
pendency of a suit dismissed for failure to exhaust,1133 though as noted below, equitable tolling
may be appropriate in some such cases.
One court has held that the limitations period, if tolled for exhaustion, begins to run
again when the prisoner is released, since the exhaustion requirement no longer applies, and the
period is not tolled again upon reincarceration since the exhaustion requirement presumably is

1128

Feliciano v. Dohman, 2013 WL 1234225, *5-6 (E.D.Pa., Mar. 26, 2013); Miscovitch v. Judge, 2012 WL
1521071, *2 (E.D.Pa., Apr. 30, 2012); Sheridan v. Reinke, 2012 WL 1067079, *4 (D.Idaho, Mar. 28, 2012) (holding
statute of limitations is tolled during exhaustion under PLRA “[r]egardless of state law”); Brandon v. Bergh, 2009
WL 4646954, *3 (W.D.Mich., Dec. 8, 2009); Bourguignon v. Armstrong, 2007 WL 2495230, *2-4 (D.Conn., Aug.
28, 2007) and cases cited; Wright v. O’Hara, 2004 WL 1793018, *6 (E.D.Pa., Aug. 11, 2004). The Brandon
decision states:
[§ 1997e(a)] unambiguously requires exhaustion as a mandatory threshold requirement in prison
litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of
time required to exhaust “such administrative remedies as are available.” For this reason, the
statute of limitations which applied to Plaintiff's civil rights action was tolled for the period during
which his available state remedies were being exhausted.
2009 WL 4646954, *3; see Ballard v. Williams, 2010 WL 7809047, *5 (M.D.Pa., Dec. 9, 2010) (“Having mandated
administrative exhaustion of inmate grievances as a prerequisite to bringing an action in federal court, principles of
equity now require us to toll the statute of limitations while inmates complete this mandatory exhaustion process.”).
But see Johnson v. Rivera, 2002 WL 31012161, *4 (N.D.Ill., Sept. 6, 2002) (holding that even if limitations on
federal claims are tolled pending exhaustion, they are not tolled on state claims that could have been brought in state
court without delay).
1129
Fitzpatrick v. Georgia Dept. of Corrections, 2012 WL 5207472, *1 (S.D.Ga., Oct. 22, 2012). This rule is more
advantageous to prisoners than tolling because the time before exhaustion is commenced is not tolled, as shown
below. If the claim does not accrue until after exhaustion, the pre-exhaustion period cannot count against the
prisoner.
1130
Washington-El v. Collins, 2013 WL 4498830, *3 (M.D.Pa., Aug. 20, 2013) (holding court cannot know whether
claims are time-barred “without knowing how long each of Plaintiff's grievances were pending”); Dillon v.
Dickhaut, 2013 WL 2304175, *5 (D.Mass., May 24, 2013) (holding court couldn’t determine whether claim was
time-barred because it was unclear when the administrative process was completed); Thomas v. Palakovich, 2012
WL 1079441, *4 (M.D.Pa., Mar. 30, 2012), order entered, 2012 WL 1078250 (M.D.Pa., Mar. 30, 2012).
1131
Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011); accord, Winston v. Kelly, 2012 WL 3149122, *3
(E.D.Ark., Aug. 1, 2012); Gutierrez v. Williams, 2011 WL 2559788, *4 (D.Or., June 29, 2011).
1132
Freeman v. Haselden, 2012 WL 3962748, *3 (D.S.C., Feb. 24, 2012), report and recommendation adopted,
2012 WL 3981137 (D.S.C., Sept. 11, 2012); Bloom v. Medill, 2007 WL 4206604, *2 (D.Kan., Nov. 26, 2007).
1133
Worrell v. Bruce, 296 Fed.Appx. 665, 667 n.2, 2008 WL 4596335, *1 n.2 (10th Cir., Oct. 15, 2008); Crump v.
Darling, 2007 WL 851750, *13-14 (W.D.Mich., Mar. 21, 2007).

256

not reinstated for issues from previous periods of incarceration 1134—an assumption that courts
have rejected in other contexts.1135 Exhaustion is tolled for exhausting remedies while in prison
even if the plaintiff does not file suit until after release.1136
If a prisoner is thwarted in his efforts to exhaust and only later is able to pursue a
grievance, the limitations period is tolled for the earlier period of “active exhaustion.” 1137 One
court has held that where a prisoner received no response to his grievances, the limitations period
was tolled until his last attempt to get a response.1138 Others have held held that absent a
response, the limitations period should be deemed to run again starting at the deadline (if any)
for prison officials to resolve a grievance–i.e, at the time the prisoner is entitled to bring suit.1139
If officials do respond, but the process takes longer than the grievance policy prescribes, at least
one court has held that tolling extends through its completion.1140 If several administrative
proceedings arise from the subject matter of a lawsuit, tolling ends for each claim when the
relevant proceeding is finished; the claims are not all tolled until the last proceeding
concludes.1141
The limitations period is not tolled by an administrative proceeding that could not have
remedied the problem of which the prisoner complains,1142 or one that was not proper under the
grievance rules.1143 Exhaustion only tolls limitations for the same claim that is being

1134

Pettiford v. Sheahan, 2002 WL 1433503, *2 and n.3 (N.D.Ill., July 2, 2002); accord, Watkins v. Hudson, 2013
WL 2949989, *4 (S.D.Ga., June 14, 2013) (holding tolling ceases upon release).
1135
See n. 41, above.
1136
Watkins v. Haynes, 2013 WL 1289312, *8-9 (S.D.Ga., Mar. 27, 2013) (so inferring from state equitable tolling
law, also stating this holding “gives effect to the PLRA's purpose, which is to resolve as many disputes as possible
without resort to traditional litigation”); Robinson v. PTS of America, LLC, 2006 WL 1083397, *4 (M.D.Tenn.,
Apr. 24, 2006).
1137
Doe v. Selsky, 948 F.Supp.2d 306, 309-10 (W.D.N.Y. 2013).
1138
Iacovone v. Wilkinson, 2006 WL 689102, *3 (S.D.Ohio, Mar. 14, 2006).
1139
Vandiver v. Correctional Medical Services, Inc., 2012 WL 3923905, *1-2 (W.D.Mich., Sept. 7, 2012) (citing
cases); Cleveland v. County of Cook, 2009 WL 3156742, *4 (N.D.Ill., Sept. 25, 2009); Juresic v. Cook County
Medical Services Director, 2002 WL 1424564 (N.D.Ill., June 28, 2002). The Juresic court’s expressed concern was
to protect prison staff from stale claims. One would think that the concern of the PLRA to protect prison
administrations and federal courts from federal litigation until prison administrations have addressed the prisoner’s
problem would be better served by the holding in Iacovone. Hatch v. Briley, 230 Fed.Appx. 598, 599, 2007 WL
1175650 (7th Cir., Apr. 19, 2007) (unpublished) (holding limitations period tolled only for period when grievance is
actually pending, not for the time between the occurrence and the filing of the grievance).
1140
Vartinelli v. Pramstaller, 2010 WL 5330484, *2 (E.D.Mich., Dec. 21, 2010). This holding is based on the
rejection of the argument that prisoners are free to bring suit if the grievance process is not completed within the
prescribed period. A number of courts have held, correctly in my view, that once the deadline for the final appeal
has passed without response, the prisoner has exhausted and is free to bring suit. See n. 463, above. The Vartinelli
holding should be valid under this view as well. It is consistent with the PLRA’s policy of encouraging exhaustion
to toll the limitations period for prisoners who are willing to stay with the administrative process even when it is in
violation of its own time limits.
1141
Ross v. Busby, 2006 WL 2382014, *7 (E.D.Cal., Aug. 17, 2006).
1142
Scott v. Freed, 2007 WL 674325, *7-8 (E.D.Mich., Feb. 28, 2007) (holding plaintiff had exhausted when he was
denied permission to file a grievance, and limitations period was not tolled during subsequent pendency of
disciplinary proceedings that could not have addressed the staff misconduct he now complained about), motion for
relief from judgment denied, 2007 WL 1647874 (E.D.Mich., June 4, 2007).
1143
Brown v. Mason, 2009 WL 113847, *5 (W.D.Wash., Jan. 13, 2009) (an additional administrative appeal taken
after plaintiff’s remedies were already exhausted did not toll the limitations period).

257

exhausted.1144 Exhaustion does not toll (or revive) the limitations period if the period has already
expired when the prisoner commences exhaustion.1145 Similarly, some courts have held that an
untimely attempt to exhaust does not toll the limitations period.1146 Courts have disagreed
whether tolling for exhaustion runs consecutively or concurrently with other tolling provisions
that may apply.1147
In cases that are dismissed for non-exhaustion, the claim will usually be time-barred
because the limitations period has expired during the delay occasioned in litigating
exhaustion.1148 The claim will generally be time-barred administratively because any renewed
grievance would be grossly untimely unless the filing of a later grievance is allowed. These
cases do not necessarily involve prisoners’ neglect of their legal duty to exhaust. Some of them
may involve prisoners’ technical mistakes or misunderstandings in exhaustion, failure to exhaust
because of threats or intimidation, or changes in the governing law of exhaustion after the
prisoner has filed.1149
There are several possible ways to save meritorious claims dismissed for non-exhaustion
after the limitations period has run. Some states have tolling provisions, which are applicable in
federal court § 1983 actions, that give a litigant whose case is timely filed, but is then dismissed
for reasons other than the merits, a certain period of time to re-file.1150 That is the case in New

1144

Raines v. Lappin, 2013 WL 3283930, *6 (D.N.J., June 26, 2013) (holding exhaustion of a Federal Tort Claims
Act claim does not toll the limitations period for a Bivens claim).
1145
Murphy v. Cambra, 2007 WL 1176197, *7 (E.D.Cal., Apr. 20, 2007), report and recommendation adopted,
2007 WL 2206937 (E.D.Cal., July 30, 2007); see Brown v. Voorhies, 2012 WL 1081796, *4 (S.D.Ohio, Mar. 30,
2012) (evidence of attempts to exhaust after the event at issue and within the limitations period barred summary
judgment on limitations grounds).
1146
Winston v. Kelly, 2013 WL 593558, *2 (E.D.Ark., Feb. 15, 2013) (noting that otherwise, prisoners could wait
until the grievance deadline was past and then obtain tolling via late grievances that would not be addressed on the
merits administratively); Washington v. Harris County, 2007 WL 2872457, *2 (S.D.Tex., Sept. 28, 2007). But see
Brandon v. Bergh, 2009 WL 4646954, *3 (W.D.Mich., Dec. 8, 2009) (holding that an untimely grievance does toll
the limitations period, but only until the point where the process should have been completed).
1147
Compare Jewell v. Francis, 2011 WL 455845, *2 (S.D.Cal., Feb. 3, 2011) (exhaustion-related tolling is added to
two-year statutory tolling for imprisonment); Elmore v. Arong, 2010 WL 366628, *2 (E.D.Cal., Jan. 26, 2010)
(same), report and recommendation adopted, 2010 WL 1027533 (E.D.Cal., Mar. 18, 2010) with Reece v. Basi, 2013
WL 1339048, *7-8 (E.D.Cal., Apr. 3, 2013) (where a state statute prevented the limitations period from running,
“there was nothing to be tolled by the exhaustion process”); Lopez v. Schwarzenegger, 2012 WL 78377, *5
(E.D.Cal., Jan. 10, 2012) (citing Gutierrez), report and recommendation adopted, 2012 WL 671680 (E.D.Cal., Feb.
29, 2012); Gutierrez v. Butler, 2008 WL 436948, *3 (E.D.Cal., Feb. 14, 2008) (tolling runs concurrently), report
and recommendation adopted, 2008 WL 795006 (E.D.Cal., Mar. 25, 2008).
1148
See, e.g., Giraldes v. Prebula, 2013 WL 1876500, *5 n.5 (E.D.Cal., May 3, 2013) (noting that dismissal without
prejudice would amount to dismissal with prejudice after limitations period had expired); O'Bryan v. Multiple
Unknown Agents of Federal Bureau of Prisons, 2012 WL 7807951, *2 (E.D.Mich., June 29, 2012) (holding that
dismissal without prejudice for non-exhaustion does not toll the statute of limitations), report and recommendation
adopted, 2013 WL 1250822 (E.D.Mich., March 26, 2013); see generally Long v. Simmons, 77 F.3d 878, 880 (5 th
Cir. 1996) (noting that dismissal without prejudice after the limitations period operates as dismissal with prejudice).
1149
The most significant of the last is the Supreme Court’s decision in Porter v. Nussle, 534 U.S. 516 (2002), which
overruled the Second Circuit’s line of cases holding that exhaustion is only required in challenges to “conduct which
was either clearly mandated by a prison policy or undertaken pursuant to a systematic practice.” See Marvin v.
Goord, 255 F.3d 40, 42-43 (2d Cir. 2001). Instead, Porter held that exhaustion is required in “all inmate suits about
prison life.” 534 U.S. at 532.
1150
See Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding action timely because a state statute provides
that a litigant who timely files and is dismissed has a year to commence a new action). The same result may follow

258

York, where the State has represented to the Second Circuit (unfortunately in an unreported case)
that under state law, claims dismissed for non-exhaustion can be reinstated within six months of
dismissal,1151 and state law may further toll that six-month period during the pendency of
renewed administrative proceedings.1152 However, not all state statutes of this type will benefit
prisoners whose cases have been dismissed for non-exhaustion.1153
A second approach is to hold the statute of limitations equitably tolled during the
pendency of the dismissed action and any subsequent state administrative proceedings, as one
appeals court has done.1154 That holding was made in a case where the plaintiff had been
victimized by a change in law overruling several circuits’ holdings that damage claims need not
be exhausted where grievance systems did not provide for damages,1155 but other decisions have
held or suggested that equitable tolling may be applicable more generally. 1156 The Second
Circuit has held that a prisoner who was justified by special circumstances (e.g., a reasonable
misunderstanding of the law or the prison’s administrative system, or actions by prison
personnel) in failing to exhaust before suit should be required to exhaust, but should be allowed
to proceed without exhaustion if administrative remedies have become unavailable.1157 It would
from the application of equitable tolling. McCoy v. Goord, 255 F.Supp.2d at 253; see nn. 202, 874-878, above, and
1154-1157, below, concerning equitable tolling.
1151
This assertion appears in Villante v. Vandyke, 2004 WL 605290, *2 (2d Cir., Mar. 29, 2004); some district courts
have made similar observations. See Rivera v. Pataki, 2003 WL 21511939, *9 and n.13 (S.D.N.Y., July 1, 2003);
Richardson v. Romano, 2003 WL 1877955, *2 n.1 (N.D.N.Y., Mar. 31, 2003). The state statute, N.Y.C.P.L.R. §
205(a), provides that if an action timely commenced “is terminated in any other manner than by a voluntary
discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect
to prosecute the action, or a final judgment upon the merits,” a new action may be filed within six months on the
same transaction or occurrence or series of them.
This statute also requires that service be completed within the six-month period, which may limit its utility
for pro se prisoner litigants given their difficulties in arranging for service. However, courts have held that even if
the plaintiff relies on § 205(a), the service requirement need not be met, since state law governing the method or
timing of service of process is not borrowed along with the statute of limitations for federal claims. Allaway v.
McGinnis, 362 F.Supp.2d 390, 395 (W.D.N.Y. 2005); Gashi v. County of Westchester, 2005 WL 195517, *9
(S.D.N.Y., Jan. 27, 2005).
1152
The relevant statute provides: “Where the commencement of an action has been stayed by a court or by statutory
prohibition, the duration of the stay is not a part of the time within which the action must be commenced.”
N.Y.C.P.L.R. § 204(a). The Villante defendants’ argument, then–which appears correct–is that the PLRA
exhaustion requirement is a “statutory prohibition” for purposes of § 204(a).
1153
For example, the relevant Indiana statute applies only if the case is dismissed for reasons other than negligence
in prosecuting it. One court has held that failure to exhaust constitutes negligence, so the statute was not tolled and
the claim was time barred in that case. Thomas v. Timko, 428 F. Supp. 2d 855, 857 (N.D. Ind. 2006).
1154
Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001); accord, Clifford v. Gibbs, 298 F.3d 328, 333 (5th
Cir. 2002); see nn. 202, 874-878, above, concerning equitable tolling.
1155
See Booth v. Churner, 532 U.S. 731 (2001).
1156
See Ransom v. Westphal, 2009 WL 3756354, *3-4 (E.D.Cal., Nov. 6, 2009) (applying equitable tolling under
California law, noting dismissal for non-exhaustion may reflect “a pro se litigant traversing an unfamiliar technical
path”); Wisenbaker v. Farwell, 341 F.Supp.2d 1160, 1166-68 (D.Nev. 2004) (applying equitable tolling where
prisoner’s first suit was filed before he finished exhausting; citing his diligence in pursuing his claim, his pro se
status, and his probable lack of understanding of exhaustion law); McCoy v. Goord, 255 F.Supp.2d 233, 253
(S.D.N.Y. 2003) (“Courts may combine a dismissal without prejudice with equitable tolling, when a judicial stay is
not available, to extend the statute of limitations ‘as a matter of fairness where a plaintiff has . . . asserted his rights
in the wrong forum.’”; suggesting in dictum that time spent in federal court may also be tolled) (citation omitted).
Concerning the applicability of equitable tolling to grievance deadlines, see § IV.E.8, nn. 874-878, above.
1157
Brownell v. Krom, 446 F.3d 305, 313 (2d Cir. 2006); Giano v. Goord, 380 F.3d 670, 677-78 (2d Cir. 2004);
Hemphill v. New York, 380 F.3d 680, 690-91 (2d Cir. 2004).

259

seem logical that equitable tolling as well should be applied in those circumstances, if not in all
cases of dismissal followed by re-filing.
An alternative approach is for the court to decline to dismiss a case that would be timebarred and instead to grant a stay pending exhaustion. That option may be foreclosed by case
law holding that stays are no longer permitted under the PLRA and that unexhausted claims must
be dismissed.1158 However, the courts have not explicitly addressed the question whether there
may be an exception to the dismissal rule in order to save the meritorious claim of a plaintiff who
has failed to exhaust but with limited culpability.1159 Since a stay pending exhaustion is not
much different in practical effect from dismissal without prejudice and subsequent reinstatement
of suit, a limited exception to the dismissal rule will not do serious harm to the PLRA’s policies,
unless one assumes that Congress intended to foster forfeitures of meritorious cases by
manufacturing a new source of statute of limitations problems.1160
A fourth approach is for the plaintiff, after dismissal and subsequent exhaustion, to file a
motion for relief from the judgment of dismissal under Rule 60(b) of the Federal Rules of Civil
Procedure, rather than to file a new complaint. That Rule permits relief based inter alia upon
“mistake, inadvertence, surprise, or excusable neglect,” an argument that it “is no longer
equitable that the judgment should have prospective application,” or “any other reason justifying
relief from the operation of the judgment.”1161 It has been used as a procedural vehicle in a
variety of circumstances to permit litigants who timely filed and diligently pursued their cases to
revive suits that had become time-barred after dismissal. These circumstances include cases in
which the plaintiff was victimized by a change or ambiguity in the law 1162 as well as cases where
the plaintiff made an error of law.1163 The fact that a case has not yet been heard on the merits
1158

See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); see nn. 253-256, above.
See Cruz v. Jordan, 80 F.Supp.2d 109, 124 (S.D.N.Y. 1999) (“There is simply no evidence that Congress
intended by section 1997e(a) to remove every aspect of the district court’s traditional equity jurisdiction” to grant
stays). But see McCoy v. Goord, 255 F.Supp.2d 233, 254 (S.D.N.Y. 2003) (holding that the PLRA removed courts’
authority to grant stays even to avoid limitations problems).
1160
Compare Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004) (“Congress wanted to erect any barrier it could to
suits by prisoners in federal court, and a procedural default rule surely reduces caseloads (even though it may be a
blunt instrument for doing so).”) (emphasis supplied) with Kane v. Winn, 319 F.Supp.2d 162, 220-21 (D.Mass.
2004) (“There is nothing in the PLRA’s legislative history to suggest that Congress intended to keep meritorious
claims out of court. . . . Courts cannot lightly presume that Congress has an intent hostile to our legal system’s
firmly embedded commitments to providing access to the courts to vindicate valid human rights claims, and
interpreting the PLRA as a deliberate attempt to thwart such claims would obviously raise serious constitutional
questions.”)
1161
Rule 60(b)(1),(5),(6), Fed.R.Civ.P.
1162
See North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dept. of Transportation, 104 F.Supp.2d 599, 60506 (M.D.N.C. 2000) (granting relief from judgment under Rule 60(b)(6) “catchall” provision so a plaintiff could file
a timely attorneys’ fees motion after being misled by local rules about the time limit; in the alternative, equitably
tolling the statutory limitations period); Allen v. Shalala, 835 F.Supp. 462, 464-65 (N.D.Ill. 1993) (granting relief
from judgment under Rule 60(b)(6) to permit timely filing of fees motion rendered untimely by a change in the law);
see also Bridgeway Corp. v. Citibank, N.A., 132 F.Supp.2d 297, 300-01, 303 (S.D.N.Y. 2001) (granting relief under
Rule 60(b)(6) to reinstate claims of litigant whose foreign judgment on the same subject matter was ruled
unenforceable; equitable tolling applied; “Equitable tolling permits a party to sue after the passing of the statute of
limitations if the party has acted with reasonable care and diligence.”)
1163
See Scott v. U.S. Environmental Protection Agency, 185 F.R.D. 202, 204-06 (E.D.Pa. 1999) (relieving plaintiff
from voluntary dismissal based on erroneous belief that she could pursue her Federal Tort Claims Act claim with
other claims in state court; citing excusable neglect provision of rule), reconsideration denied, 1999 WL 358918
(E.D.Pa., June 2, 1999); Balik v. Apfel, 37 F.Supp.2d 1009, 1010 (S.D.Ohio 1999) (granting relief under excusable
1159

260

weighs heavily in favor of granting such relief.1164 A prisoner who has relied on exhaustion law
that was overruled in Booth v. Churner or Porter v. Nussle, or who did not anticipate them in a
circuit where the question had not been decided when his or her complaint was filed, and whose
claim may never be tried without relief, would seem to have a persuasive case under this body of
law, as would a prisoner whose failure to exhaust was otherwise justified under the Second
Circuit’s decisions. Although several courts have held that Rule 60(b) cannot be used to
reinstate cases after a dismissal for non-exhaustion, these courts have not addressed this
limitations issue.1165
It also would seem logical that a prisoner who has filed an action that will be dismissed
for failure to exhaust or to exhaust properly should file a second action after non-exhaustion is
cured but before the limitations period has run.
In addition to statute of limitations problems, the deadline for filing an administrative
complaint will invariably have passed by the time of a dismissal for non-exhaustion. This
problem is dealt with elsewhere.1166
A claim that is otherwise timely is not time-barred because exhaustion occurred outside
the limitations period.1167
J.

Retroactivity1168

The PLRA exhaustion requirement does not apply to actions or appeals filed before its
enactment.1169 It does apply to suits filed after enactment even if the events complained about
occurred before enactment.1170 However, if the time limit on the administrative remedy had
passed when the exhaustion requirement was enacted, so the prisoner never had a chance to
comply with it, exhaustion is not required.1171 Post-PLRA amendments to a pre-PLRA
complaint need not satisfy the exhaustion requirement if they assert claims pertaining to
conditions already alleged to be hazardous or inadequate in the original complaint, even if
neglect and “catchall” provisions to re-enter judgment so mentally impaired plaintiff could appeal timely), aff’d, 210
F.3d 371 (6th Cir. 2000) (unpublished).
1164
See Bridgeway Corp. v. Citibank, N.A., 132 F.Supp.2d at 301; Scott v. U.S. Environmental Protection Agency,
185 F.R.D. at 206.
1165
See n.261, above.
1166
See § IV.E.8, above.
1167
Harrison v. Stalder, 2006 WL 3524315, *4 (E.D.La., Dec. 5, 2006) (holding claim for ongoing violation was not
barred because grievance had been pursued outside limitations period), appeal dismissed, 258 Fed.Appx. 634 (5th
Cir. 2007); accord, Raheem v. Miller, 2010 WL 2595112, *3 (W.D.Okla., May 14, 2010) (noting that the grievance
policy does not require exhaustion to have occurred within the limitations period with respect to the filing of the
complaint), report and recommendation adopted, 2010 WL 2595082 (W.D.Okla., June 23, 2010).
1168
Consequences of the retroactive application of Supreme Court decisions interpreting the PLRA are addressed in
n. 878, above.
1169
Scott v. Coughlin, 344 F.3d 282, 290 (2d Cir. 2003); Salahuddin v. Mead, 174 F.3d 271, 274 (2d Cir. 1999);
Tyree v. Weld, 2010 WL 145882, *9 n.11 (D.Mass., Jan. 11, 2010); see Caruso v. Zenon, 2005 WL 5957978, *7-8
(D.Colo., July 25, 2005) (holding that filing of amended complaint in pre-PLRA case does not require exhaustion
where it merely clarifies already filed allegations).
1170
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1998);
Polite v. Barbarin, 1998 WL 146687, *2 (S.D.N.Y., Mar. 25, 1998).
1171
Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999) (citing Bibbs v. Zummer, 173 F.3d 428, 1999 WL 68573
(6th Cir., Jan. 21, 1999) (unpublished) (holding that the opposite result would have an impermissible retroactive
effect)); Hitchcock v. Nelson, 1997 WL 433668, *2 (N.D.Ill., July 28, 1997) (same).

261

additional plaintiffs join in challenging them; conditions not raised before the PLRA cannot be
raised in the same action without exhaustion.1172 In class actions filed before the PLRA, the
post-PLRA joinder of new plaintiffs relates back to the filing of the original complaint, so
exhaustion is not required, even if class certification was not sought until after enactment.1173 A
post-PLRA motion to enforce a judgment in a case filed before enactment of the PLRA is not
subject to the exhaustion requirement.1174
K.

Exhaustion and Class Actions

In class actions,1175 most decisions to date state that the PLRA requires only the named
plaintiffs (and often a single named plaintiff), not unnamed class members, to exhaust in order
for the action to go forward.1176 Other courts have simply certified classes without inquiring into
1172

Shariff v. Coombe, 655 F.Supp.2d 274, 284 (S.D.N.Y. 2009).
See cases cited in nn. 1206-1207, below.
1174
Clarkson v. Coughlin, 2006 WL 587345, *3 (S.D.N.Y., Mar. 10, 2006).
1175
One court, finding administrative remedies unavailable in a class action, stated that it “need not address the
broader issue of whether the PLRA’s exhaustion requirement applies to bona fide class actions in general.”
Handberry v. Thompson, 92 F.Supp.2d 244, 248 (S.D.N.Y. 2000), aff’d in part, vacated in part, and remanded on
other grounds, 446 F.3d 335 (2d Cir. 2006). There does not seem to be any room for a class action exception in the
statutory mandate to exhaust in all actions brought by prisoners about prison conditions. See 42 U.S.C. § 1997e(a).
1176
See Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (holding exhaustion by one class member is
sufficient); Gates v. Cook, 376 F.3d 323, 329 (5th Cir. 2004) (same); Jackson v. District of Columbia, 254 F.3d 262,
268-69 (D.C.Cir. 2001) (quoting Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C.Cir. 1981) (stating that exhaustion
by a single class member is sufficient)); Butler v. Suffolk County, 289 F.R.D. 80, 97 (E.D.N.Y., Mar. 19, 2013)
(holding exhaustion by unnamed class members is not required); Phipps v. Sheriff of Cook County, 681 F.Supp.2d
899, 908 (N.D.Ill. 2009) (exhaustion by a single class member will exhaust for the class); Young v. County of Cook,
2009 WL 2231782, *4 (N.D.Ill., July 27, 2009) (only one class member need have exhausted for class certification);
Meisberger v. Donahue, 245 F.R.D. 627, 629-30 (S.D.Ind. 2007) (holding that named plaintiffs must exhaust but
absent class members need not); Orafan v. Goord, 2003 WL 21972735, *5 n.7 (N.D.N.Y., Aug. 11, 2003) (stating in
dictum that a single class member can exhaust for the class); Lewis v. Washington, 265 F.Supp.2d 939, 942 (N.D.Ill.
2003) (holding that exhaustion by one class member is sufficient); Rahim v. Sheahan, 2001 WL 1263493, *7-8
(N.D.Ill., Oct. 19, 2001) (holding that defendants’ waiver of exhaustion with respect to named plaintiffs extended to
absent class members); Jones’El v. Berge, 172 F.Supp.2d 1128, 1131-33 (W.D.Wis. 2001) (rejecting the argument
that all class members must exhaust); see Hattie v. Hallock, 8 F.Supp.2d 685, 689 (N.D.Ohio), amended, 16
F.Supp.2d 834 (N.D.Ohio 1998) (acknowledging in dicta that “vicarious exhaustion” is available in class actions
under Rule 23(b)(2)); see Glenn v. Hayman, 2007 WL 894213, *5 (D.N.J., Mar. 21, 2007) (holding that class
certification should be determined after proceedings to test the named plaintiffs’ exhaustion). But see Ellis v.
Cambra, 2005 WL 2105039, *3 (E.D.Cal., Aug. 30, 2005) (holding the plaintiff did not exhaust by virtue of having
joined in a putative class action with another prisoner who had exhausted), report and recommendation adopted,
2006 WL 547921 (E.D.Cal., Mar. 3, 2006). The above-cited cases mostly cite Title VII exhaustion doctrine as a
useful guide under the PLRA. The Supreme Court, however, has rejected the analogy to Title VII and related
statutes, though in a very different context. See Woodford v. Ngo, 548 U.S. 81, 98-99 (2006).
One court has said that class members can exhaust on behalf of a class “limited to claims for prospective
injunctive relief.” Carvajal v. Lappin, 2007 WL 869011, *5 (N.D.Tex., Mar. 22, 2007). Carvajal relied on Gates v.
Cook, 376 F.3d 323, 330 (5th Cir. 2004), which cites a treatise suggesting that this rule applies if prospective relief
is “the primary remedy being sought.” Another court has suggested that the absence of information about whether
unnamed class members have exhausted weighs against a finding of typicality for class certification purposes.
Amador v. Superintendents of Dept. of Correctional Services, 2005 WL 2234050, *9 n.10 (S.D.N.Y., Sept. 13,
2005). The court does not explain why the exhaustion status of unnamed class members makes a difference. In
Wilson v. County of Gloucester, 256 F.R.D. 479 (D.N.J. 2009), the court seemed to assume that individual class
members in a 23(b)(3) class action would have to exhaust if they were prisoners when the case was begun, but held
that common issues would still predominate over individual issues about non-exhaustion because the class included
large numbers of persons who had been released from jail before the suit was filed. 256 F.R.D. at 489. Cf. Powers
1173

262

exhaustion by anyone but the named plaintiffs, without commenting on the theoretical issue.1177
New named plaintiffs added by amended complaint need not have exhausted before the filing of
the original complaint as long as they have exhausted before seeking joinder.1178
These decisions are consistent with the general practice in class actions,1179 which the
PLRA does not purport to displace.1180 There may be exceptions to the general practice for
exhaustion requirements that are jurisdictional, as the PLRA’s is not,1181 or that are found in
statutory schemes that emphasize the need for maintaining case-by-case agency adjudication and
in which the court’s role is limited to deferential review of an agency decision, but these
concerns are generally inapplicable under the PLRA, since judicial review of prisoners’ civil
rights complaints is de novo and not restricted to an administrative record or determination.1182
There may be a practical interaction between PLRA exhaustion and class certification
considerations. One recent appellate decision holds that in determining whether the relationback doctrine applies to preserve the claims of named plaintiffs who have been released from
prison while awaiting class certification, the exhaustion requirement may be a significant factor
weighing in favor of relation back. In that case, which sought injunctive relief against policies
and procedures that exposed women prisoners to a risk of sexual abuse, the court noted:
While the entire class may be exposed to the risks caused by the constitutionally
defective policies and procedures alleged, as noted, the grievance procedure may
be triggered only by an inmate who has been a victim of sexual misconduct.
Because the number of inmates subjected to acts of misconduct can be a small
fraction of the total inmates at risk, the odds of an inmate being able to complete
the grievance procedure and litigate a class action while still incarcerated are
rather small.1183
There is an interesting question underlying this holding: if the requirements for pursuing a
grievance about a prison practice or condition are more stringent than the requirements for
standing in federal court, wouldn’t a litigant with standing who was not allowed to grieve have
v. Clay, 2012 WL 642258, *5 (S.D.Tex., Feb. 27, 2012) (asserting without explanation that any “new” class
members would have to exhaust).
One court has suggested that named plaintiffs need not have exhausted if they have been released, but that
at least one class member must have exhausted. Jones v. Swanson Services Corp., 2009 WL 2151300, *2
(M.D.Tenn., July 13, 2009).
1177
See, e.g., Aiello v. Litscher, 104 F.Supp.2d 1068, 1073 (W.D.Wis. 2000); Edwards v. Alabama Dept. of
Corrections, 81 F.Supp.2d 1242 (M.D.Ala. 2000); Gomez v. Spalding, No. Civ 91-0299-S-LMB, Order at 2
(D.Idaho, Feb. 5, 1998); Clark v. California, 1998 WL 242688, *3 (N.D.Cal., May 11, 1998). Cf. Hattie v. Hallock,
8 F.Supp.2d 685, 689 (N.D.Ohio 1998) (stating that prisoners must personally exhaust and that there is no
“vicarious” exhaustion except in class actions), judgment amended, 16 F.Supp.2d 834 (N.D.Ohio 1998).
1178
Mathis v. GEO Group, Inc., 2011 WL 2899135, *5 (E.D.N.C., July 18, 2011), report and recommendation
adopted in pertinent part and stay granted, 2012 WL 43586, *3 (E.D.N.C., Jan. 9, 2012).
1179
A leading treatise states: “When exhaustion of administrative remedies is a precondition for suit, the satisfaction
of this requirement by the class plaintiffs normally avoids the necessity for each class member to satisfy this
requirement independently.” 5 Newberg on Class Actions at § 24.66 (3d ed., Supp. 2001).
1180
Cf. Anderson v. Garner, 22 F.Supp.2d 1379, 1383 (N.D.Ga. 1997) (stating that the PLRA does not “in any way
affect[]” the consideration of class certification, leaving courts to apply “existing law governing class certification”);
accord, Shook v. El Paso County, 386 F.3d 963, 969-71 (10th Cir. 2004), cert. denied, 544 U.S. 978 (2005).
1181
See § IV.A, n. 201, above.
1182
Jones’El v. Berge, 172 F.Supp.2d at 1132.
1183
Amador v. Andrews, 655 F.3d 89, 101 (2d Cir. 2011) (holding plaintiffs’ claims “inherently transitory”).

263

no available remedy, and thus be entitled to file suit without exhaustion? As the issues were
framed, the court neither recognized nor pursued this question.1184
One court has held that class certification should be deferred until after exhaustion is
considered to determine whether proposed class representatives are subject to the “unique
defense” of non-exhaustion.1185 However, such a rule (asserted before the decision in Jones v.
Bock holding that exhaustion is an affirmative defense to be raised by defendants) would give
defendants control of when, and even whether, class certification would be considered.
One decision pointed out that prior authority involves Rule 23(b)(2) class actions, and
declined to apply the “vicarious” exhaustion approach of Title VII law relied on in those cases in
a Rule 23(b)(3) class action seeking damages for all class members.1186 The court did not
explain why the Title VII approach is not equally appropriate under the PLRA, perhaps because
neither party argued that it was appropriate. The court avoided dealing directly with the
exhaustion requirement by defining the class narrowly to include only persons who were no
longer incarcerated at the time the suit was brought, and who were therefore not subject to the
exhaustion requirement.1187 Another court in a putative class damages suit noted that two of
several named plaintiffs had been released before suit was filed, and questioned whether other
class members were required to exhaust.1188 By contrast, a case involving a putative class
including both prisoners and non-prisoners, and seeking injunctive relief as well as damages, the
court questioned whether the vicarious exhaustion doctrine could be extended to allow nonprisoners, who are not required to exhaust, to represent class members who had not exhausted,
since in that situation no one at all had exhausted.1189 On a closely related issue, courts have
squarely held that if named plaintiffs in a class action are no longer prisoners at the time of
filing, they are not subject to 42 U.S.C. § 1997e(e), the PLRA physical injury requirement, and
neither are absent class members even if they were incarcerated at filing, since the action was
“brought” by the named plaintiffs.1190 Since the physical injury requirement is triggered by
“brought by a prisoner” language similar to that in the exhaustion requirement, if these decisions
are correct, their holdings should be applicable to exhaustion as well.
1184

See nn. 786-787, above, for discussion of cases raising similar issues.
Amador v. Superintendents of Dept. of Correctional Services, 2005 WL 2234050, *8-9 (S.D.N.Y., Sept. 13,
2005). Cf. Williams v. City of Philadelphia, 2010 WL 3986104, *14-15 (E.D.Pa., Oct. 8, 2010) (certifying class
where prior litigation had shown there was no administrative remedy for the problem; noting experience and
evidence “suggest that it is the inmate who successfully shepherds his claims through the PPS's dysfunctional
grievance procedures who would truly be unique”).
1186
Sanchez v. Becher, 2003 WL 1563941, *4 (S.D.Ind., Jan. 31, 2003).
1187
Sanchez, id., *3-4.
1188
Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 907-08, 917 n.11 (N.D.Ill. 2009). Since plaintiffs sought
only damages, there was no issue of released plaintifs’ standing to seek injunctive relief.
1189
Turner v. Grant County Detention Center, 2008 WL 821895, *5-6 (E.D.Ky., Mar. 26, 2008). The court denied
class certification for other reasons and did not reach what it termed the “vicarious non-exhaustion” question, though
it did acknowledge plaintiffs’ argument that currently incarcerated class members need not exhaust because they had
not “brought” suit within the meaning of the PLRA. See Sutton v. Hopkins County, Ky., 2007 WL 119892, *9
(W.D.Ky., Jan. 11, 2007) (noting open question whether former prisoners can represent current prisoners in a class
action); see also Jones v. Swanson Services Corp., 2009 WL 2151300, *2 (M.D.Tenn., July 13, 2009) (holding
named plaintiff who had been released need not have exhausted, but at least one class member must have
exhausted).
1190
In re Nassau County Strip Search Cases, 2010 WL 3781563, *8-9 (E.D.N.Y., Sept. 22, 2010); Kelsey v. County
of Schoharie, 2007 WL 603406, *11 (N.D.N.Y., 2007), rev’d and remanded on other grounds, 567 F.3d 54 (2d Cir.
2009).
1185

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Once administrative remedies have been exhausted with respect to class claims, “[a]ny
claim for relief that is within the scope of the pleadings may be litigated without further
exhaustion.”1191 That holding remains applicable when plaintiffs in a class action seek
preliminary relief benefiting individual unnamed class members.1192 The PLRA does not disturb
pre-existing principles of notice pleading and liberal construction, especially of pro se
pleadings,1193 and those principles are equally applicable in class actions.1194
For these same reasons, it should be sufficient for prisoners to exhaust with respect to
their individual experiences (“Officer Doe beat me up”), rather than the kinds of structural or
systemic issues (inadequate or unlawful policies, deficient staff training and supervision, lack of
investigation of complaints and discipline of staff who use excessive force) that are often raised
in injunctive class litigation as matters both of liability and of remedy. As to remedy, this
conclusion is also compelled by the logic of Booth v. Churner, which holds that a prisoner’s
obligation to exhaust does not depend on the relief sought and the relief available in the
administrative system, but on whether that system can take any action concerning the prisoner’s
complaint.1195 Similarly, the Second Circuit and others have held that the grievant need not
“demand particular relief” in order to exhaust.1196 Once the named plaintiffs’ complaints about
what happened to them have been exhausted, then, the court should be free to consider any
remedy that appears necessary to cure whatever violation of law the record shows with respect to
the class.1197
The leading case on this point does not go quite that far. However, it said, in a case
involving an alleged pattern of failure to protect from sexual assault, that prisoners exhausted as
long as they generally alleged a failure to protect, as well as what happened to them, with no
requirement that they spell out issues of training, supervision, staff discipline, etc., that might
form the basis of liability and of remedy. “While the complaint asks for a result—protection—
rather than specifying the means used to reach that result, the need for the result is clearly
articulated and the appropriate means are far more within the expertise of DOCS than the
individual prisoner.”1198
1191

Jones’El v. Berge, 172 F.Supp.2d at 1132.
Id. It does not, however, authorize prisoners to bring separate suits for damages without exhaustion merely
because they are members of the class. Pozo v. Hompe, 2003 WL 23185882 (W.D.Wis., Apr. 8, 2003), amendment
denied, 2003 WL 23142268 (W.D.Wis., Apr. 17, 2003); Piscitello v. Berge, 2002 WL 32345410, *2 (W.D.Wis.,
Nov. 4, 2002), aff’d, 94 Fed.Appx. 350, 2004 WL 635263 (7th Cir. 2004).
1193
See n. 1659, below.
1194
See Lewis v. Washington, 197 F.R.D. 611, 614 (N.D.Ill. 2000) (construing grievances about placement in
“unapproved PC” status as encompassing complaints about conditions in that unit).
1195
See §§ IV.G, IV.G.1, above.
1196
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002)); see § IV.E.5, above.
1197
Any other rule would come into conflict with 18 U.S.C. § 3626(a), which requires adoption of the narrowest and
least intrusive remedy necessary to cure the federal law violation, and does not make an exception if such remedy
was not anticipated by the prisoner in his or her grievance.
1198
Amador v. Andrews, 655 F.3d 89, 104 (2d Cir. 2011); accord, Spaude v. Corrections Corp. of America, Inc.,
2011 WL 5038922, *3-5 (D.Idaho, Oct. 21, 2011) (prisoner who alleged failure to protect from assault because of
inadequate staffing and security, and recited what happened to him, exhausted and need not have recited all policies
and practices he alleged in lawsuit). See nn. 589-590501-502, above, and surrounding text for further discussion of
Amador and related supervisory liability issues.
The court took a slightly different approach in Flynn v. Doyle, 2007 WL 805788 (E.D.Wis., Mar. 14,
2007), in which plaintiffs alleged a pattern of deliberate indifference to serious medical needs, and defendants
1192

265

This last point is central and is a matter of common sense. Grievances are brought by
prisoners on their own, under short deadlines, without the assistance of counsel. Prisoners as a
class are relatively poorly educated and many of them are wholly or partially illiterate.
Moreover, they are rarely in a position to investigate their keepers’ hiring, training, and
supervision practices, or to assess administrative policies1199—especially since they may not
even be allowed access to significant personnel- or security-related policies.1200 It makes no
sense to apply what is, in effect, an exacting pleading standard to complaints filed at this
informal administrative level, and then use it as a constraint on the remedies that may be sought
and the bases for liability that may be alleged in a subsequent judicial challenge, after counsel
has been obtained,1201 to the underlying conduct that was grieved.1202

argued that many of the allegations in the complaint had not been exhausted, such as the failure to take corrective
action after negative reports by outside agency, and the failure of one named plaintiff to exhaust the termination of
her psychotropic medication as of a certain date. The plaintiffs responded that in a case seeking only prospective
injunctive relief, the specific allegations of the complaint were not “claims” requiring exhaustion but were instead
merely “examples and evidence of defendants’ ongoing deliberate indifference to plaintiffs’ serious medical needs.”
2007 WL 805788, *9 (emphasis in original). The court then engaged in a two-page recitation of the numerous
grievances filed by the named plaintiffs, which showed that “the plaintiffs have filed, and fully exhausted, a
multitude of inmate complaints regarding deficient medical and mental health care,” and concluded that plaintiffs
had exhausted “for the purposes of this class action lawsuit.” 2007 WL 805788, *13. The court did not connect this
“multitude” of complaints to more specific allegations in the complaint.
1199
As one court recently observed in a case alleging failure to protect from prisoner-prisoner violence:
Issues such as inadequate staffing, a failure to train, a failure to discipline correctional officers and
other prisoners, the lack of sufficient written findings when assaults occurred, and a pervasive
“code of silence,” are not matters that an individual prisoner who has been beaten in one or two
separate incidents can be expected to know without a full investigation that is beyond his capacity
and authority to conduct.
Riggs v. Valdez, 2010 WL 4117085, *13 (D.Idaho, Oct. 18, 2010), on reconsideration in part, 2010 WL 5391313
(D.Idaho, Dec. 22, 2010).
1200
For example, in Amador v. Superintendents of Dep’t of Correctional Services, 2007 WL 4326747 (S.D.N.Y.,
Dec. 4, 2007), which challenged inter alia the defendants’ investigative policies and practices in cases of sexual
abuse of prisoners, defense counsel strongly asserted the position that those policies and practices cannot be
disclosed to prisoners even if they can be obtained by members of the public outside prison. Letter, Daniel Schulze
to Camille Rich et al., September 1, 2005, at 2. (As noted, on appeal the Second Circuit mitigated this concern by
holding that prisoners who generally alleged a failure to protect sufficiently exhausted with regard to prison policies
and procedures. Amador v. Andrews, 655 F.3d 89, 104 (2d Cir. 2011).) More generally, in the New York prison
system, departmental policies and procedures are categorized as A distribution, provided to staff but not to inmate
libraries; A&B distribution, to staff and to inmate libraries; and D distribution, to supervisory staff and other security
personnel who must be familiar with them; otherwise they “shall be handled as confidential material and restricted
from unauthorized access.” New York State Dep’t of Correctional Services, Directive 0001: Introduction to the
Policy and Procedure Manual at 3 (April 7, 2000). “D” directives include items such as Use of Chemical Agents
and Emergency Control Plans; “A” directives include Unusual Incident Report and Security Classification
Guidelines. Id., Directive 0000: Table of Contents. Thus substantial bodies of prison policy are explicitly barred
from disclosure to prisoners.
1201
Pro se prisoners are not considered adequate class representatives and cannot obtain class certification unless
they obtain counsel. See, e.g., Craig v. Cohn, 80 F.Supp.2d 944, 946 (N.D.Ind. 2000); Caputo v. Fauver, 800
F.Supp. 168, 170 (D.N.J. 1992) (“Every court that has considered the issue has held that a prisoner proceeding pro
se is inadequate to represent the interests of his fellow inmates in a class action.”), aff’d, 995 F.2d 216 (3d Cir.
1993).
1202
See Lewis v. Washington, 197 F.R.D. 611, 614 (N.D.Ill. 2000) (applying principle of liberal construction of pro
se pleadings to plaintiffs’ grievances, holding that grievances about placement in “unapproved PC” status
encompassed complaints about allegedly unconstitutional conditions in that status).

266

Title VII law takes a slightly different approach to this problem, holding that class claims
need not be explicitly pled in an administrative complaint, and that courts will look to factors
such as whether several instances of discrimination were pursued in the EEOC charge, or
multiple similar EEOC charges were filed within a short period of time. 1203 In this instance, the
Title VII rule appears to be too restrictive to be borrowed for the PLRA in light of the greater
disadvantages experienced by prisoners with respect to their levels of education and literacy,
their lack of freedom to investigate general practices at their institutions, the much shorter time
limits for filing grievances than for EEOC complaints,1204 and the fact that some prison
grievance systems actively discourage the framing of grievances in class action terms and the
citation of other prisoners’ experience.1205
In cases filed before the PLRA, the post-PLRA joinder of new plaintiffs relates back to
the filing of the original complaint, so exhaustion is not required,1206 even if class certification
was not sought until after enactment.1207 Nor is exhaustion required before moving to enforce an
existing class action judgment.1208
When prison officials move to terminate a judgment under the PLRA, 1209 prisoners need
not exhaust to contest the motion. One court observed: “[The intervening] Plaintiff did not
‘bring’ this action; he is defending it. Requiring the representative prisoner to exhaust his

1203

See Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 128 (7th Cir. 1989); Miller v. Baltimore Gas & Elec.
Co., 202 F.R.D. 195, 206 (D.Md. 2001).
Claims against federal agencies are an exception to this principle because of the explicit requirements of
current federal regulations, which prescribe that class claims against federal entities must be pled in the
administrative charge essentially as they would be pled in court, Gulley v. Orr, 905 F.2d 1383, 1385 (10th Cir.
1990); the “like or related to” standard is not applicable. Wade v. Secretary of the Army, 796 F.2d 1369, 1373 (11th
Cir. 1986).
1204
See §IV.E.8, n. 831, above.
1205
For example, the Michigan grievance system formerly made issues non-grievable if they “involve a significant
number of prisoners.” Figel v. Bochard, 89 Fed.Appx. 970, 971, 2004 WL 326231, *1 (6th Cir. 2004)
(unpublished); see Hernandez v. Caruso, 2005 WL 2077474, *3 (W.D.Mich., Aug. 26, 2005) (noting later
elimination of that provision). The New York State grievance regulations, though less extreme, provide:
(b)
Grievances must be personal. An inmate must be personally affected by the policy or
issue he/she is grieving, or must show that he/she will be personally affected by that policy or
issue unless some relief is granted or changes made. All grievances must be filed in an individual
capacity.
*

*

*

(d)
Class actions not accepted. Individuals personally affected by a matter which affects a
class of inmates may only file a grievance on their own behalf. Grievances which are raised in
terms of class actions should be referred to the Inmate Liaison Committee.
Appendix D, New York State Department of Correctional Services Directive 4040, Inmate Grievance Program, §
701.3 at 2 (July 1, 2006).
Since class action allegations are explicitly disapproved, a prisoner should not be disqualified from representing a
class based on their absence from his or her grievance.
1206
Gomez v. Spalding, No. Civ 91-0299-S-LMB, Order at 2-3; Clark v. California, 1998 WL 242688, *3.
1207
Jones v. Goord, 2000 WL 290290, *3 (S.D.N.Y., Mar. 20, 2000).
1208
Clarkson v. Coughlin, 2006 WL 587345, *3 (S.D.N.Y., Mar. 10, 2006); accord, Arce v. O’Connell, 427
F.Supp.2d 435, 440-41 (S.D.N.Y. 2006).
1209
See 18 U.S.C. § 3626(b); § III.B, above.

267

administrative remedies prior to defending a 3626(b) motion would produce an absurd result that
is not contemplated by the statute.”1210

V.

Mental or Emotional Injury

The PLRA says: “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 (as defined in
section 2246 of title 18, United States Code).”1211 There is a similar provision amending the
Federal Tort Claims Act (FTCA),1212 which has generally been interpreted similarly to §
1997e(e),1213 though there are two significant differences between them. The FTCA provision
applies only to a person “convicted of a felony who is incarcerated while awaiting sentencing or
while serving a sentence,” so federal misdemeanants and pre-trial detainees are not affected by
it.1214 Further, it is arguable that under this provision, physical injury is a pleading requirement,
as I argue below is not the case for § 1997e(e).1215
There is probably more confusion about this badly written statute than about any other
part of the PLRA. For starters, consider the statutory phrase “prior showing of physical injury.”
Prior to what? The only grammatically sensible construction is “prior to the action’s being
‘brought,’” but obviously there is no provision or practice for pre-filing proceedings to determine
the extent of a potential litigant’s injury. The courts have generally ignored this issue since there
is nothing sensible that can be done with it.1216
1210

Gren v. Peters, 2000 WL 1230246, *5 (N.D.Ill., Aug. 24, 2000); accord, Clark v. California, 739 F.Supp.2d
1168, 1232 (N.D.Cal. 2010).
1211
42 U.S.C. § 1997e(e).
1212
28 U.S.C. § 1346(b)(2).
1213
See, e.g., Ellerbe v. U.S., 2011 WL 4361617, *5 n.2 (N.D.Ohio, Sept. 19, 2011) (noting similarity to §
1997e(e)); Michtavi v. U.S., 2009 WL 578535, *5 (M.D.Pa., Mar. 4, 2009) (applying § 1346(b)(2) to claim about
medication effects), aff’d, 2009 WL 2989915 (3d Cir., Sept. 21, 2009); Smith v. U.S., 2007 WL 2155651, *4
(D.Kan., July 26, 2007) (applying § 1346(b)(2) to claim of asbestos exposure), reconsideration denied, 2007 WL
4570888 (D.Kan., Dec. 27, 2007), motion to amend denied, 2008 WL 1735190 (D.Kan., Apr. 10, 2008); Taylor v.
U.S., 2006 WL 2350165, *3 (W.D.Va., Aug. 11, 2006) (holding both § 1997e(e) and § 1346(b)(2) applicable to
FTCA claim based on property loss); Mitchell v. U.S., 2005 WL 3445607, *4 (S.D.Tex., Dec. 15, 2005) (applying
statute to claim of emotional injury from withdrawal of funds from account).
1214
28 U.S.C. § 1346(b)(2). There is some ambiguity whether the statute’s scope is limited to persons awaiting
sentence or serving a sentence for a felony, or whether it applies to persons with a prior felony conviction as well.
Some courts have invoked both statutes in Federal Tort Claims Act cases. See, e.g., Stanley v. U.S., 2013
WL 256023, *1 (N.D.W.Va., Jan. 23, 2013); Christensen v. U.S., 2013 WL 4521040, *7 (E.D.Ky., Aug. 26, 2013).
If the general provision of § 1997e(e) were deemed to apply under the FTCA, it would pre-empt the more limited
scope of 28 U.S.C. § 1346(b) and render it superfluous. For that reason, § 1997e(e) should not be so interpreted.
See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.” (internal quotation marks omitted)).
1215
See n. 1252, below.
1216
The court in Bustos v. U.S., 2010 WL 4256182 (D.Colo., Oct. 21, 2010), report and recommendation adopted,
2010 WL 5157325 (D.Colo., Dec. 14, 2010), noted the dearth of authority construing this phrase, and suggested it
may mean that the mental or emotional injury must be alleged to stem from a physical injury. That view might be
convincing if the statute read “showing of prior physical injury,” but it does not account for the actual “prior
showing” language of the statute. Alternatively, Bustos suggested the phrase might simply mean that a showing of
physical injury is required before recovery for a mental or emotional injury. 2010 WL 4256182, *3 n.3. That
construction, of course, directly contradicts the opening language, which states “[n]o action shall be brought. . . .”

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The substantive scope of § 1997e(e), “injury suffered while in custody,” is broader than
the “prison conditions” language of the PLRA exhaustion requirement.1217
A person who has been released from prison is no longer a prisoner, so a suit filed after
release is not “brought by a prisoner” and the provision is inapplicable.1218 Dismissal under §
1997e(e) should be without prejudice to refiling once the prisoner is no longer incarcerated.1219
In a class action, the provision is applicable only to the named plaintiffs, not unnamed class
members.1220
One circuit has held that the statute applies to a claim that arose before, and was
unrelated to, the plaintiff’s present incarceration.1221
The phrase “federal civil action” is not defined in the statute. One circuit has held that in
a case removed from state court, § 1997e(e) does not apply to claims based solely on state law–
implying, but not holding, that federal claims filed in state court are governed by the statute. 1222
But language elsewhere in the PLRA suggests otherwise. In the PLRA exhaustion requirement,
Congress referred to actions brought “under section 1983 of this title, or any other Federal
law.”1223 Having used that explicit term in one part of the statute to denote all claims based on
federal law, it is not likely that Congress would use a different and much vaguer term to convey
the same idea in a different part of the PLRA.1224 It is more plausible that “federal civil action”

rather than “no damages shall be recovered. . . ,” but it is consistent with the prevailing construction of the statute as
limiting damages rather than actions, described at the beginning of the next section..
1217
See Quinlan v. Personal Transport Services Co., 329 Fed.Appx. 246, 249 (11th Cir. 2009) (“. . . [T]he custody
requirement reflects not just imprisonment, but any situation in which a reasonable person would feel a restraint on
his movement such that he would not feel free to leave.” Plaintiff was restrained and caged in a vehicle during
extradition.) (unpublished); Ellison v. Logan, 2009 WL 1438254, *5 (M.D.Fla., May 18, 2009) (arrest is a form of
custody, so § 1997e(e) applies to injuries sustained while under arrest).
1218
See § II, n. 29, above. As noted there, a few courts have held that § 1997e(e) applies to released prisoners
notwithstanding its actual language, but most have rejected that view.
1219
Douglas v. Yates, 535 F.3d 1316, 1320-21 (11th Cir. 2008); Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir.
2000) (en banc); Jackson v. Wilson, 2013 WL 5567323, *2 (S.D.Fla., Oct. 9, 2013).
1220
In re Nassau County Strip Search Cases, 2010 WL 3781563, *8-9 (E.D.N.Y., Sept. 22, 2010); Schilling v.
Transcor America, LLC, 2010 WL 583972, *6 (N.D.Cal., Feb. 16, 2010); Kelsey v. County of Schoharie, 2007 WL
603406, *11 (N.D.N.Y., Feb. 21, 2007) , rev’d and remanded on other grounds, 567 F.3d 54 (2d Cir. 2009). But see
Turner v. Grant County Detention Center, 2008 WL 821895, *20 n.13 (E.D.Ky., Mar. 26, 2008) (denying class
certification, citing § 1997e(e) and stating that if some class members had no physical injury, that fact weighs
against commonality of claims).
1221
Napier v. Preslicka, 314 F.3d 528, 532-34 (11th Cir. 2002), rehearing denied, 331 F.3d 1189 (11th Cir. 2003),
cert. denied, 540 U.S. 1112 (2004). This interpretation sharply divided both the panel and the court as a whole. Id.,
314 F.3d at 534-37; 331 F.3d at 1190-96.
1222
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002); accord, Napier v.
Preslicka, 314 F.3d 528, 532 (11th Cir.2002) (“[T]he phrase ‘Federal civil action’ means all federal claims,
including constitutional claims.”).
1223
42 U.S.C. § 1997e(a).
1224
See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9 (2004) (citing the “usual rule that ‘when the legislature
uses certain language in one part of the statute and different language in another, the court assumes different
meanings were intended.’”) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed.
2000)); accord, United States v. Gonzales, 520 U.S. 1, 5 (1997) (“‘Where Congress includes particular language in
one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion’ ”).

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means actions in federal court, regardless of the underlying law, as several lower courts have
held.1225
Further, the statute says that “no Federal civil action may be brought”1226 for mental or
emotional injury without physical injury. In determining whether the statute applies to a case,
courts have generally held that the phrase “may be brought” ties the statute’s applicability to the
time when the case is filed.1227 If that is the case, a suit originally filed in state court is not a
“Federal civil action” when brought, so § 1997e(e) should not be applicable to it under any
circumstances–and certainly not when the case’s presence in federal court is procured by the
adverse party through removal, whether the claims are based on federal or state law or both.
A.

What Does the Statute Do?

The most obvious question on the face of § 1997e(e) is what is an “action . . . for mental
or emotional injury” and what does a court do when it gets one? The federal appeals courts have
consistently held that the statute is a limitation on damages, not on actions, despite its language.
The Second Circuit has said that “the plaintiff cannot recover damages for mental or emotional
injury for a constitutional violation in the absence of a showing of actual physical injury.”1228
Further: “Both in its text and in its caption, Section 1997e(e) purports only to limit recovery for
emotional and mental injury, not entire lawsuits.”1229 The availability of injunctive and
declaratory relief is not affected.1230 Most courts have held that the statute limits only
compensatory damages, allowing recovery of nominal and punitive damages, 1231 though some
1225

See O'Connor v. Carnahan, 2014 WL 293457, *10 (N.D.Fla., Jan. 27, 2014); Jacobs v. Pennsylvania Dept. of
Correctons, 2011 WL 2295095, *23 (W.D.Pa., June 7, 2011) (holding federal civil action means “an action in which
civil claims over which the federal court has jurisdiction are brought, i.e., all claims over which the court has
original jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367”); Schonarth v.
Robinson, 2008 WL 510193, *4-5 (D.N.H., Feb. 22, 2008) (“I agree with the line of cases which conclude that §
1997e(e) applies to all actions that are brought in federal court which seek damages for mental or emotional injury,
regardless of whether the underlying cause of action is based on federal or state law.”); Hines v. Oklahoma, 2007
WL 3046458, *6 (W.D.Okla., Oct. 17, 2007); Hood v. Balido, 2002 WL 1285200, *3 (N.D.Tex., June 4, 2002). But
see Albrecht v. Williams, 2009 WL 3296649, *27 (D.N.J., Oct. 13, 2009) (expressing doubt that § 1997e(e) applies
to state law claims); Mercado v. McCarthy, 2009 WL 799465, *2 (D.Mass., Mar. 25, 2009) (same); Bromell v.
Idaho Dep't of Corrections, 2006 WL 3197157, *5 (D.Idaho, Oct. 31, 2006) (holding provision inapplicable to
supplemental state claim).
1226
42 U.S.C. § 1997e(e) (emphasis supplied).
1227
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d at 1316; Harris v. Garner, 216 F.3d 970, 981-82
(11th Cir.2000) (en banc); Craig v. Eberly, 164 F.3d 490, 494-95 (10th Cir. 1998); Swan v. Banks, 160 F.3d 1258,
1259 (9th Cir. 1998). These holdings are consistent with general practice under other PLRA provisions, under
which the statute’s applicability turns on the plaintiff’s status as a prisoner at the time the action is brought. See nn.
26-44, above.
1228
Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002).
1229
Thompson, 284 F.3d at 418. Not every district court appreciates this fundamental point. See, e.g., Brewster v.
Nassau County, 349 F.Supp.2d 540, 552-53 (E.D.N.Y. 2004) (stating erroneously that an officer’s spreading rumors
likely to cause a prisoner to be harmed by other prisoners ceased to state a cause of action because of § 1997e(e)).
1230
Thompson, 284 F.3d at 418.
1231
Hutchins v. McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007); Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.
2004), cert. denied, 544 U.S. 1061 (2005); Calhoun v. DeTella, 319 F.3d 936, 943 (7th Cir. 2003) (noting that
nominal damages “are awarded to vindicate rights, not to compensate for resulting injuries,” and that punitive
damages “are designed to punish and deter wrongdoers for deprivations of constitutional rights, they are not
compensation ‘for’ emotional and mental injury”); Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002); Thompson v.
Carter, 284 F.3d at 418; Searles v. van Bebber, 251 F.3d 869, 878-80 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d

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courts have held that punitive damages are barred as well,1232 and some that the plaintiff must
have pled a demand for nominal damages in some fashion in order to recover them.1233 Despite
the unanimity of circuit-level holdings that the statute limits damages and not actions, in practice
this distinction has escaped many lower courts, which have sometimes simply dismissed claims
they deem to involve only mental or emotional injury, without regard to the prisoner’s right to
seek punitive and/or nominal damages,1234 or have even held that the complaint does not state a
claim for that reason.1235
Courts have justified their departure from the plain “[n]o action may be brought”
language of the statute by simply asserting that theirs is a more logical reading, 1236 or by resort to
the statute’s heading, “Limitation on Recovery,”1237 despite the Supreme Court’s warning against
relying on a statute’s title to limit its plain meaning.1238 A more plausible concern is that the
statute, read as a bar on actions and not on damages, would be an unconstitutional limitation on
247, 252 (3d Cir. 2000); Jones v. Price, 696 F.Supp.2d 618, 624-25 (N.D.W.Va. 2010) (adopting majority rule in
absence of Fourth Circuit decision); Porter v. Caruso, 2008 WL 3978972, *8- 9 (W.D.Mich., Aug. 22, 2008); Green
v. Padula, 2007 WL 4124830, *3 (D.S.C., Sept. 25, 2007), report and recommendation rejected in part on other
grounds, 2007 WL 4124663 (D.S.C., Nov. 19, 2007); Williams v. Sharrett, 2007 WL 2406960, *4 (W.D.Mich.,
Aug. 20, 2007); Donovan v. Magnusson, 2005 WL 757585, *16 (D.Me., Mar. 11, 2005); see Nix v. Carter, 2013
WL 432566, *2 (M.D.Ga., Feb. 1, 2013) (holding nominal damages remain available even where circuit law
prohibits punitive damages).
An important corollary of these holdings is that in cases where compensatory damages are restricted by 42
U.S.C. § 1997e(e), notions of proportionality between compensatory and punitive awards cease to be applicable.
Tate v. Dragovich, 2003 WL 21978141, *9 (E.D.Pa., Aug. 14, 2003); see Haynes v. Stephenson, 588 F.3d 1152,
1158-59 (8th Cir. 2009) (affirming $1.00 in compensatory damages and $2500 in punitive damages in prison
retaliation case; PLRA not cited); Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (holding that
ratios between compensatory and punitive damages are less applicable in § 1983 suits than in other litigation
because of the greater frequency of nominal awards under § 1983).
1232
See Al-Amin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011); Smith v. Allen, 502 F.3d 1255, 1271-72 (11th Cir.
2007); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998); Holley v. Johnson, 2010 WL 988483,
*14 (W.D.Va., Mar. 16, 2010) (noting absence of Fourth Circuit decision on the question), report and
recommendation adopted in part, rejected in part, 2010 WL 2640328 (W.D.Va., June 30, 2010); Colston v.
Matthews, 2009 WL 1788413, *6 (W.D.Mich., Feb. 17, 2009), report and recommendation adopted as modified,
2009 WL 1788415 (W.D.Mich., June 19, 2009); Page v. Kirby, 314 F.Supp.2d 619, 622 (N.D.W.Va. 2004).
1233
Jackson v. Wilson, 2013 WL 5567323, *3 (S.D.Fla., Oct. 9, 2013).
1234
See, e.g., Doolittle v. Holmes, 2010 WL 22552, *6 (M.D.La., Jan. 4, 2010); Brown v. Napoli, 687 F.Supp.2d
295, 299 (W.D.N.Y. 2009); Apodaca v. Simpson County Jail, 2009 WL 2591659, *2-3 (W.D.Ky., Aug. 21, 2009);
Grindstaff v. Tennessee Dept. of Correction, 2009 WL 2461772, *1 (M.D.Tenn., Aug. 12, 2009); Quinones-Pagan
v. Administracion de Correccion, 2009 WL 2058668, *5 (D.P.R., July 10, 2009) (ordering plaintiff to show cause
why his case should not be dismissed for failure to allege compensable damages); Wilson v. Longino, 2009 WL
1076684, *4 (W.D.La., Apr. 21, 2009).
1235
See, e.g., Balark v. Cobb County Adult Detention Center, 2013 WL 2445208, *3 (N.D.Ga., June 5, 2013); Schell
v. Jones, 2012 WL 4381608, *2 (W.D.Okla., Sept. 7, 2012) (holding assault allegation did not state a claim because
of § 1997e(e)), report and recommendation adopted, 2012 WL 4378134 (W.D.Okla., Sept. 25, 2012); Cadarette v.
Curtin, 2012 WL 1981726, *4 (W.D.Mich., June 1, 2012) (holding claim of unsanitary conditions did not state a
claim because of § 1997e(e)); Zain v. Osborne, 2012 WL 435582, *7-8 (W.D.Ky., Feb. 9, 2012) (holding defective
plumbing claim did not state a claim because of § 1997e(e)); Brewster v. Nassau County, 349 F.Supp.2d 540, 55253 (E.D.N.Y. 2004) (stating that an officer’s spreading rumors likely to cause a prisoner to be harmed by other
prisoners did not state a cause of action because of § 1997e(e)); see Foster v. Gentry, 2010 WL 2926173, *2
(D.Nev., July 19, 2010) (conflating § 1997e(e) with Eighth Amendment standard).
1236
Thompson v. Carter, 284 F.3d at 418.
1237
Thompson, 284 F.3d at 418.
1238
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998). Indeed, Thompson cited Yeskey for the
proposition that the title “can shed light on otherwise ambiguous language.” 284 F.3d at 418.

271

judicial enforcement of constitutional rights if it did not allow for injunctive relief and contempt
sanctions. One court has so held,1239 while other courts have reached the same conclusion about
the statute’s reach without alluding to this constitutional problem.1240
In my view the correct analysis of the statute would limit its application to cases in which
mental or emotional injury is central to or an element of the claim and not merely a potential
element of damages. This construction would give effect to the statutory term “action” while
giving the ambiguous phrase “for mental or emotional injury” a meaning more consistent with its
position as modifier of “action.” A few decisions have taken this view or a similar one.1241
The applicability and effect of the statute are typically addressed on motions to dismiss
and for summary judgment. The only reported circuit decision explicitly to address the
procedural nature of the provision held that it creates an affirmative defense rather than a
jurisdictional requirement, by analogy with the administrative exhaustion requirement of the
PLRA.1242 On that view, the defense would be waived by failure to plead it.1243 This view is
contrary to the routine and unexamined assumption in the case law that physical injury is a
pleading requirement, and the resulting practice of dismissing cases or claims at initial screening
or on motions to dismiss for failure to allege it.1244 In fact, some district courts within the
Eleventh Circuit—and indeed, the Eleventh
1239

Zehner v. Trigg, 133 F.3d 459, 461-63 (7th Cir. 1997); see Johnson v. Patterson, 519 Fed.Appx. 610, 613 (11th
Cir. 2013) (unpublished) (holding that § 1997e(e) imposes “only a limitation on recovery, within Congress’s power
to legislate” (citing Harris v. Garner, 190 F.3d 1279, 1287–89 (11th Cir.), vacated, 197 F.3d 1059 (11th Cir.1999),
reinstated in relevant part, 216 F.3d 970, 972, 985 (11th Cir. 2000) (en banc)), cert. denied, 134 S.Ct. 914 (2014).
1240
See, e.g., Harris v. Garner, 190 F.3d 1279, 1288-89 (11th Cir. 1999), reinstated in pertinent part, 216 F.3d 970,
972 (11th Cir. 2000) (en banc), cert. denied, 532 U.S. 1065 (2001); Davis v. District of Columbia, 158 F.3d 1342,
1347 (D.C.Cir. 1998); Mann v. Wilkinson, 2009 WL 1441721, *1-2 (S.D.Ohio, May 20, 2009) (granting injunctive
relief while holding damages barred by § 1997e(e)); see also Thompson v. Carter, 284 F.3d at 419 (noting that
“compensatory damages for actual injury, nominal, and punitive damages remain available,” and for that reason, it
need not decide whether it is unconstitutional to deny all damages against defendants against whom injunctive
claims are no longer available”).
1241
See Shaheed-Muhammad v. Dipaolo, 138 F.Supp.2d 99, 107 (D.Mass. 2001) (“Where the harm that is
constitutionally actionable is physical or emotional injury occasioned by a violation of rights, § 1997e(e) applies. In
contrast, where the harm that is constitutionally actionable is the violation of intangible rights–regardless of actual
physical or emotional injury–§ 1997e(e) does not govern.”); Seaver v. Manduco, 178 F.Supp.2d 30, 37-38 (D. Mass.
2002) (applying Shaheed-Muhammad to a body cavity search case); Waters v. Andrews, 2000 WL 1611126, *4
(W.D.N.Y., Oct. 16, 2000) (holding that female prisoner’s Fourth Amendment and Eighth Amendment claims of
being placed in a filthy punishment cell, kept in a soiled and bloody paper gown, denied a shower and other personal
hygiene measures, and exposed to the view of male correctional staff and construction workers, were not subject to
§ 1997e(e) because mental or emotional distress is not an element of either claim); see also Shaheed-Muhammad v.
Dipaolo, 393 F.Supp.2d 80, 107-08 (D.Mass. 2005) (adhering to previously stated view).
1242
Douglas v. Yates, 535 F.3d 1316, 1320-21 (11th Cir. 2008); see Mobley v. Gresco, 2011 WL 3163159, *2
(N.D.Fla., July 1, 2011) (acknowledging Douglas, but holding complaint that alleged only “pain and suffering” and
“mental and emotional stress” could be dismissed), report and recommendation adopted, 2011 WL 3162858
(N.D.Fla., July 26, 2011). Contra, In re Nassau County Strip Search Cases, 2010 WL 3781563, *2 (E.D.N.Y., Sept.
22, 2010) (holding provision is a limitation on remedies, not an affirmative defense, and need not be pled).
1243
Castillo v. Bobelu, ___ F.Supp.2d ____, 2014 WL 798014, *17 (W.D.Okla., Feb. 27, 2014) (citing Douglas v.
Yates); Ford v. Bender, 2012 WL 262532, *12-13 (D.Mass., Jan. 27, 2012), motion to amend denied, 2012 WL
1378651 (D.Mass., Apr. 19, 2012) (citing Douglas).
1244
See, e.g., Brazil v. Rice, 308 Fed.Appx. 186, 187 (9th Cir. 2009) (unpublished) (“The district court properly
dismissed the Eighth Amendment claim because the amended complaint does not allege that Brazil suffered any
physical injury.”); Harden–Bey v. Rutter, 524 F.3d 789, 795–96 (6th Cir.2008); Hampton v. Blanco, 299 Fed.Appx.
460, 461 (5th Cir. 2008) (plaintiff failed to allege that he ate unsafe food and thus cannot show physical harm);

272

Circuit itself in an unpublished decision—appear to be unaware of the holding that it is
an affirmative defense.1245 If the statute creates an affirmative defense, the existence of a
Allah v. Al–Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (“Under § 1997e(e), however, in order to bring a claim for
mental or emotional injury suffered while in custody, a prisoner must allege physical injury. . . .”); Campbell v.
Myers, 2013 WL 6330901, *2 (E.D.Tenn., Dec. 5, 2013) (“Plaintiff asks the Court to grant him monetary damages,
but he does not allege, and it does not appear, that he sustained any physical injury as a result of the purported
conditions.”); Evans v. Turner, 2013 WL 5800604, *3 (M.D.La., Oct. 28, 2013) (“The failure to allege physical
injury precludes recovery of compensatory damages for mental or emotional injuries.”); Shell v. Sartori, 2013 WL
2447776, *3 (E.D.Mo., June 5, 2013) (“Plaintiff has not alleged any physical injuries, and therefore, his claim of
emotional injury is barred.”); Balark v. Cobb County Adult Detention Center, 2013 WL 2445208, *3 (N.D.Ga., June
5, 2013) (“Because Plaintiff has not alleged physical injury or a sexual act in connection with his mental and
emotional injuries, he does not state a claim upon which relief can be granted.”); Turner v. Cain, 2013 WL 2147220,
*3 (M.D.La., Apr. 29, 2013) (“The failure to allege physical injury precludes recovery of compensatory damages for
mental or emotional injuries.”), report and recommendation adopted, 2013 WL 2147246 (M.D.La., May 15, 2013),
appeal dismissed, No. 13-30646 (5th Cir., Aug. 13, 2013); Gwilymjr v. Centre County Correctional Facility, 2013
WL 1248671, *4 n.3 (M.D.Pa., Mar. 5, 2013) (plaintiff seeking damage for pain and suffering “must allege in his
pleading physical harm Defendants caused him”), report and recommendation adopted as modified, 2013 WL
1249033 (M.D.Pa., Mar. 27, 2013); Butler v. Suffolk County, 289 F.R.D. 80, 93 (E.D.N.Y., Mar. 19, 2013)
(accepting assumption that physical injury must be alleged); Ayala v. Dhaliwal, 2013 WL 957590, *5 (D.Or., Mar.
11, 2013); Lackey v. East Cent. Regional Hosp. (Treatment Team), 2013 WL 395120, *2 (S.D.Ga., Jan. 4, 2013)
(“Plaintiff has failed to allege facts sufficient to satisfy the mandates set forth in § 1997e(e)”), report and
recommendation adopted, 2013 WL 395444 (S.D.Ga., Jan. 31, 2013); Parker v. Gusman, 2012 WL 7338060, *2
(E.D.La., Nov. 16, 2012) (“42 U.S.C. § 1997e(e) prevents a prisoner who has not alleged a physical injury from
seeking compensatory damages.”), report and recommendation adopted, 2013 WL 695007 (E.D.La., Feb. 26, 2013);
Brown v. King, 2012 WL 5304084, *3 (S.D.Miss., Oct. 25, 2012) (dismissing where plaintiff failed to allege injury
from conditions); Pittman-Bey v. Clay, 2012 WL 4513840, *8 (S.D.Tex., Sept. 19, 2012) (“Plaintiff has not alleged
that he suffered more than a de minimis injury that would entitle him to recover compensatory damages for his
emotional injuries.”) (footnote omitted), report and recommendation adopted in part, rejected in part on other
grounds, 2013 WL 797415 (S.D.Tex., Mar. 4, 2013), aff’d, ___ Fed.Appx. ____, 2014 WL 575910 (5th Cir. 2014);
Logan v. Honeycutt, 2012 WL 3903501, *3 (M.D.La., July 24, 2012) (holding failure to allege physical injury
barred claim for compensatory damages), report and recommendation adopted, 2012 WL 3903452 (M.D.La., Sept.
7, 2012); Burke v. Enenoh, 2012 WL 2995489, *1 (E.D.Cal., July 23, 2012) (citing failure to allege physical injury
as precluding any claim for mental or emotional injury); Davis v. Cain, 2012 WL 1965686, *3 n.3 (M.D.La., Apr.
11, 2012), report and recommendation adopted, 2012 WL 1964057 (M.D.La. May 30, 2012), appeal dismissed, 492
Fed.Appx. 488 (5th Cir. 2012) (unpublished); Swogger v. Yonak, 2012 WL 1883975, *2 (S.D.Ohio, May 22,
2012), report and recommendation adopted, 2012 WL 2273368 (S.D.Ohio, June 18, 2012); Chavira v. Ruth, 2012
WL 1328636, *4 (E.D.Cal., Apr. 17, 2012) (“If Plaintiff chooses to amend and brings a claim for mental or
emotional injury he should include sufficient facts complying with the physical injury requirement.”); see Appendix
A for additional authority on this point; see also Doolittle v. Holmes, 306 Fed.Appx. 133, 134 (5th Cir. 2009)
(unpublished) (allegation of muscle atrophy from lack of exercise sufficiently pled physical injury); Oliver v.
Wolfenbarger, 2008 WL 4387210, *10 (E.D.Mich., Sept. 24, 2008) (holding on motion to dismiss “there are no
allegations that plaintiff suffered any physical injuries. Consequently, plaintiff cannot recover for any mental or
emotional injuries. . . .”); Ocegueda v. Francis, 2008 WL 4379565, *3 (N.D.W.Va., Sept. 23, 2008) (“As plead [sic],
the plaintiff's alleged injuries are only mental or emotional.”) Cf. Templeton v. Anderson, 2013 WL 1222111, *6
(D.Colo., Mar. 25, 2013) (holding plaintiffs who pled “[t]ightness in chest, coughing up phlegm, shortness of breath,
severe headaches and occasional blurred vision” allegedly from asbestos exposure were not obliged to establish
causation at the pleading stage).
1245
Johnson v. Patterson, 519 Fed.Appx. 610, 612-13 (11th Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 914
(2014); Brown v. Henry, 2009 WL 4510124, *1 (N.D.Fla., Nov. 30, 2009) (“If there is no physical injury alleged,
then mental or emotional monetary damages, as well as punitive damages, cannot be recovered. . . .”); Mala v.
Pastrana, 2009 WL 3055214, *1-2 (S.D.Fla., July 7, 2009) (“under 42 U.S.C. § 1997e(e), in order to assert a claim

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physical injury need not be pled, but the district court should be free to dismiss if the complaint
on its face shows that the plaintiff is a prisoner seeking damages for mental or emotional injury
without physical injury.1246 However, again by analogy to the exhaustion requirement, courts
should not be able to dismiss where the plaintiff simply fails to plead a physical injury without
otherwise characterizing his injury. In any case, consistently with the established understanding
of § 1997e(e)’s operation, dismissal should be limited to claims for compensatory damages for
mental or emotional injury, or compensatory or punitive damages in those jurisdictions where the
statute is held to prohibit both absent physical injury.1247
My view is that both of these approaches are wrong, and the mental/emotional injury
provision should be viewed as neither a defense nor a pleading requirement, but simply as a
damages rule.1248 As such, it should generally be an issue for the trier of fact, as several
decisions have held or suggested.1249 (On that view, a defemse failure to object and preserve the
for which relief could be granted for a claim of an unconstitutional condition of confinement, there must be an
allegation of a specific physical injury”); Rix v. Manatee County Sheriff's Office, 2009 WL 1449085, *1 (M.D.Fla.,
May 21, 2009) (dismissed because the plaintiff “fails to allege” injury); Schott v. Ierubino, 2009 WL 790121, *3
(S.D.Fla., Jan. 12, 2009) (damages claim barred because plaintiff “fails to allege” physical injury), report and
recommendation adopted in part, 2009 WL 790117 (S.D.Fla., Mar. 25, 2009); Burrows v. McNesby, 2008 WL
4648962, *4 (N.D.Fla., Oct. 20, 2008) (Ҥ 1997e(e) bars [plaintiff] from recovering compensatory damages for such
an injury because he did not allege any physical injury,” so his complaint may be subject to dismissal).
It is telling that one of the first applications of Douglas v. Yates begins by acknowledging that case’s
holding but by the end of its analysis has inverted it, stating in substance that failure to allege physical injury means
that its absence is apparent on the face of the complaint. Johnson v. Crawson, 2008 WL 4382810, *3 (N.D.Fla.,
Sept. 25, 2008) (“the incarcerated plaintiff's damages claim is subject to dismissal without prejudice unless he
alleges physical injury”); accord, Clark v. Florida, 2012 WL 4513056, *3 (M.D.Fla., Oct. 2, 2012); Thompson v.
Butler, 2010 WL 5112902, *3 (N.D.Fla., Nov. 16, 2010), report and recommendation adopted, 2010 WL 5101212
(N.D.Fla., Dec. 8, 2010). Worse, one panel of the Eleventh Circuit has cited Douglas for the general standard of
review for dismissals, and then affirmed a dismissal in part because of failure to allege physical injury. Tsosie v.
Garrett, 2010 WL 4823475, *1-2 (11th Cir., Nov. 29, 2010) (unpublished), cert. denied, 132 S.Ct. 466 (2011).
1246
Douglas v. Yates, 535 F.3d at 1321.
1247
See, e.g., Boyd v. Driver, 495 Fed.Appx. 518, 523-25 (5th Cir. 2012) (unpublished) (reversing dismissal where
the plaintiff stated a claim for nominal and punitive damages though not for compensatory damages); Williams v.
Thomas, 2013 WL 1795578, *4-5 (E.D.Pa., Apr. 29, 2013) (denying motion to dismiss, holding nominal and
punitive damages can be pursued absent physical injury); Brackeen v. Brown, 2013 WL 328937, *5, 9 (D.Colo., Jan.
8, 2013) (denying dismissal of nominal damages claim based on lack of physical injury).
1248
See Rosado v. Herard, 2013 WL 6170631, *11 (S.D.N.Y., Nov. 25, 2013) (“Furthermore, even when a claim
potentially is subject to the PLRA, the confined plaintiff need not plead physical injury in his complaint.”); Malik v.
City of New York, 2012 WL 3345317, *16 (S.D.N.Y., Aug. 15, 2012), report and recommendation adopted, 2012
WL 4475156 (S.D.N.Y., Sept. 28, 2012); Habeebullah v. Crawford, 2011 WL 2458060, *5 (W.D.Mo., June 17,
2011) (stating “there is no requirement that Plaintiff plead a physical injury”); In re Nassau County Strip Search
Cases, 2010 WL 3781563, *2 (E.D.N.Y., Sept. 22, 2010) (“As § 1997e(e) is a limitation on recovery and not an
affirmative defense to liability, it need not be pled.”).
1249
See Hayes v. Corrections Corp. of America, 2012 WL 4481212, *19 (D.Idaho, Sept. 28, 2012) (holding whether
injury was de minimis was a triable issue where the extent of injury was disputed); Siggers v. Campbell, 2012 WL
4062503, *6-7 (E.D.Mich., June 13, 2012) (holding what damages can be recovered in a First Amendment case can
be addressed on a motion in limine or a request for jury instruction), report and recommendation adopted, 2012 WL
4061356 (E.D.Mich., Sept. 14, 2012); Habeebullah v. Crawford, 2011 WL 2458060, *4-5 (W.D.Mo., June 17, 2011)
(holding trier of fact was not pre-empted by plaintiff’s admission of lack of physical injury; record also indicated
several suicide attempts in case alleging inadequate mental health care); McCoy v. Spidle, 2011 WL 1486560, *3
(E.D.Cal., Apr. 19, 2011) (holding that plaintiff can present argument and evidence at trial in support of damages for
First Amendment retaliation claim); West v. Berge, 2010 WL 3835104, *8 (E.D.Wis., Sept. 29, 2010) (where case
had to be retried anyway, and law was not clear, “more prudent course” than deciding on motion was to permit the
jury to consider evidence of physical injury in the event it found a violation); Blake v. Holly, 2010 WL 3829197, *9

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applicability of the physical injury requirement at the jury instruction stage waives the
argument.1250)
Douglas relied for its holding that § 1997e(e) creates an affirmative defense primarily on
the presence of the “No action shall be brought” language, which is parallel to the exhaustion
requirement’s language found to create an affirmative defense in Jones v. Bock.1251 However,
the courts have already disregarded that linguistic similarity in holding, as described above, that
§ 1997e(e) imposes a limitation on remedies and not on actions or (as in Jones v. Bock) claims.
It therefore makes little sense to insist that the linguistic similarity is dispositive for procedural
purposes. Rather, the statute should be given a procedural interpretation that fits its substantive
function, which as the courts have agreed is to limit certain damages.
It is arguable that the parallel provision for Federal Tort Claims Act claims, unlike §
1997e(e), does establish a pleading requirement. The FTCA generally is a limited waiver of
sovereign immunity, and federal courts lack jurisdiction over claims that do not fall within it, so
it appears that where recovery is sought for mental or emotional injury, physical injury is a
pleading requirement.1252
(W.D.Ark., Aug. 6, 2010) (declining to decide on summary judgment whether pain from aggravated back injury
satisfied § 1997e(e)), report and recommendation adopted, 2010 WL 3829453 (W.D.Ark., Sept. 24, 2010); Johnson
v. Raemisch, 557 F.Supp.2d 964, 975 (W.D.Wis. May 23, 2008) (stating that question of damages for censorship of
newspaper was for trial, questioning whether substantial damages could be shown); Thompson v. Caruso, 2008 WL
559655, *1-2 (W.D.Mich., Feb. 27, 2008) (plaintiff in First Amendment case would be allowed to present proof and
argue for recovery of nominal, compensatory, and punitive damages for all injuries except mental and emotional
ones); Thomas v. Thomas, 2007 WL 2177066, *6 (S.D.Ga., July 25, 2007) (“The amount of damages Plaintiff may
be entitled to recover is a determination reserved for the trier of fact, not the Court on a summary judgment
motion.”).
In some cases, the court has weighed the fact that the case would be tried anyway because the plaintif
sought other forms of relief too. See Sanders v. McKinney, 2013 WL 6662267, *11 (N.D.Iowa, Dec. 17, 2013)
(“The issue of whether he has adequately demonstrated a physical injury as a result of defendants' alleged deliberate
indifference need not be addressed at this time [summary judgment] because he seeks relief other than compensatory
damages.”), report and recommendation adopted, 2014 WL 941624 (N.D.Iowa, Mar. 11, 2014); Abreu v. Nicholls,
2011 WL 1044373, *3-4 (S.D.N.Y., Mar. 22, 2011) (holding that since plaintiff’s claims could proceed for punitive
and nominal damages, the question whether his injuries were more than de minimis would be left for the trier of
fact); Jolley v. Huskins, 2011 WL 971951, *12 (W.D.Ark., Mar. 17, 2011) (“As several of Jolley's claims will
proceed, we decline at this point [summary judgment] to attempt to determine whether his claimed injuries of pain
caused by the condition of his teeth, his back, and as a result of the ingestion of shampoo are sufficient to enable him
to recover damages for his mental pain and suffering under § 1997e(e).”); see also Scott v. Stone, 2009 WL
1518948, *1 (E.D.Mich., June 1, 2009) (jury instruction modified to exclude a possible award of damages for any
physical, mental, or emotional injury in First Amendment retaliation case).
Some decisions have simply said that it is not necessary to resolve on a motion to dismiss the factual
question whether the plaintiff suffered physical injury, leaving open the possibility that it could be resolved on
summary judgment in some cases. Stowell v. Long, 2013 WL 6253690, *3 (W.D.Ark., Dec. 4, 2013); Rosado v.
Herard, 2013 WL 6170631, *11 (S.D.N.Y., Nov. 25, 2013); Frieson v. City of N.Y., 2012 WL 1948782, *2
(S.D.N.Y., May 30, 2012), reconsideration denied, 2012 WL 2102055 (S.D.N.Y., June 11, 2012).
1250
Kerwin v. McConell, 2008 WL 4525369, *4-5 (W.D.Pa., Sept. 30, 2008). Compare Jacobs v. Pennsylvania
Dept. of Correctons, 2011 WL 2295095, *22 (W.D.Pa., June 7, 2011) (striking compensatory award; defendants
who raised § 1997e(e) at the charge conference and in a Rule 50(b) motion did not waive their challenge to a jury
verdict on that ground).
1251
Douglas, 535 F.3d at 1320-21 (citing Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479,
501 (1998) (“[S]imilar language contained within the same section of a statute must be accorded a consistent
meaning.”)).
1252
Antonelli v. Crow, 2012 WL 4215024, *3 (E.D.Ky., Sept. 19, 2012). Compare cases cited in n. 1244, above.

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In a multi-claim case, the presence of physical injury as a result of one claim does not
protect other claims from dismissal for lack of physical injury.1253
B.

What Is Mental or Emotional Injury?

The statutory phrase “mental or emotional injury” should not be difficult to interpret:
“The term ‘mental or emotional injury’ has a well understood meaning as referring to such things
as stress, fear, and depression, and other psychological impacts.”1254 Some courts accordingly
have recognized a variety of constitutional and statutory injuries that are neither physical nor
mental or emotional, and therefore are not affected by the statute,1255 such as property loss,1256
denial of First Amendment rights,1257 loss of or exclusion from prison programs,1258 freedom
1253

Cuevas v. Bryon Kolath, 2011 WL 3159098, *6 (D.Colo., May 17, 2011), report and recommendation adopted
in part, overruled on other grounds, 2011 WL 3159096 (D.Colo., July 26, 2011).
1254
Amaker v. Haponik, 1999 WL 76798, *7 (S.D.N.Y., Feb. 17, 1999) (also noting that requiring physical injury in
all cases would make the term “mental or emotional injury” superfluous); accord, Robinson v. Page, 170 F.3d 747,
748 (7th Cir. 1999) (“The domain of the statute is limited to suits in which mental or emotional injury is claimed.”);
see Smothers v. Root, 2008 WL 1944663, *1-2 (W.D.Ark., Apr. 18, 2008) (applying statute to allegation that
correctional staff faked a letter from a court telling the plaintiff he would receive relief from his life sentence),
report and recommendation adopted, 2008 WL 2008921 (W.D.Ark., May 2, 2008).
Thus, a number of decisions hold that claims for the denial of mental health treatment that does not result in
physical injury are barred or damages for them restricted by the statute. See Brown v. U.S., 2013 WL 2421777, *1,
6 (E.D.Cal., June 3, 2013) (holding claim of failure to treat severe PTSD was barred by § 1997e(e) since plaintiff did
not allege physical injury), appeal dismissed, No. 13-16323 (9th Cir., Oct. 2, 2013); Rodriguez v. Tilton, 2013 WL
1402731, *13 (E.D.Cal., Apr. 5, 2013) (holding § 1997e(e) bars claim for exclusion from mental health program),
report and recommendation adopted, 2013 WL 2403473 (E.D.Cal., May 31, 2013); Walker v. Samuels, 2013 WL
888538, *2-3 (S.D.Ill., Mar. 8, 2013) (holding § 1997e(e) bars claim of denial of adequate mental health care);
Wright v. Shoe, 2012 WL 1899432, *2 (M.D.Ga., May 1, 2012) (holding claim of failure adequately to treat mental
illness was barred by § 1997e(e)), report and recommendation adopted, 2012 WL 1899425 (M.D.Ga., May 24,
2012); Chatham v. Adcock, 2007 WL 2904117, *16 (N.D.Ga., Sept. 28, 2007) (applying statute to denial of Xanax
resulting in anxiety, nightmares, and hallucinations), aff’d, 334 Fed.Appx. 281 (11th Cir. 2009); Webber v. Federal
Bureau of Prisons, 2005 WL 176122, *7 (N.D.Tex., Jan. 27, 2005) (applying statute to claim of inadequate
psychiatric care).
1255
See Aldridge v. 4 John Does, 2005 WL 2428761, *3 (W.D.Ky., Sept. 30, 2005) (stating generally that “damages
resulting from constitutional violations” are “separate categories of damages” from either physical or mental injuries
in case where plaintiff alleged medical deprivations, protracted segregation, and denial of access to courts).
Other courts have addressed the question more equivocally. In Armstrong v. Drahos, 2002 WL 187502, *2
(N.D.Ill., Feb. 6, 2002), the court acknowledged that persons alleging Eighth Amendment violations “need show no
injury other than the violation itself,” but stated, without explanation, that in such a case, only nominal damages may
be recovered.
1256
Thompson v. Carter, 284 F.3d at 418; Robinson v. Page, 170 F.3d 747, 748 (7th Cir. 1999); see Ruiz v.
Adamson, 2012 WL 832986, *8 (N.D.Ill., Mar. 8, 2012) (money spent at commissary to provide religiously
appropriate food that prison failed to provide); Suggs v. Caballero, 2009 WL 368208, *6 (E.D.Mich., Feb. 11, 2009)
(loss of skilled job assignment after transfer). But see Allen v. Reynolds, 475 Fed.Appx. 280, 283 (10th Cir. 2012)
(unpublished) (holding plaintiff who sought damages of $50,000 for seizure of family photos and grandfather’s
obituary was seeking emotional damages); Johnson v. Pallito, 2012 WL 6093804, *4 (D.Vt., Nov. 26, 2012)
(holding compensatory damages barred for injuries including property loss), report and recommendation adopted,
2012 WL 6093801 (D.Vt., Dec. 7, 2012).
Of course if a prisoner actually seeks to recover damages for emotional injury arising from property loss, §
1997e(e) bars such recovery. Latimore v. Department of Corrections, 2013 WL 6181082, *13 (D.Mass., Nov. 22,
2013); Hoskins v. Craig, 2011 WL 5547460, *3 (S.D.Ill., Nov. 15, 2011); Patterson v. Stovall, 2005 WL 2589182,
*2 (E.D.Ky., Oct. 13, 2005) ( (holding prisoner cannot recover damages for emotional injury caused by property loss
absent physical injury); accord, Hoskins v. Craig, 2011 WL 5547460, *3 (S.D.Ill., Nov. 15, 2011).
1257
See n. 1271, below.

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from racial discrimination,1259 denial of access to courts,1260 disability discrimination,1261 and
freedom from arrest and incarceration without probable cause.1262 At least one court has held
that injury to reputation is not mental or emotional in nature.1263
Other courts, however, have not recognized this distinction. There is in my view a deep
confusion about the term mental or emotional injury and its application to intangible
constitutional rights, with some courts seeming to categorize the violation of such rights as
mental or emotional injury without any actual inquiry into the nature of the right or of the
injury.1264 (Admittedly, the failure of litigants even to frame the issue properly has no doubt
contributed to this failure.1265) Worse, there is a persistent tendency in some courts to read
mental or emotional injury out of the statute entirely, by declaring, e.g.: “[A] a prisoner may not
maintain an action for monetary damages against state officials based on an alleged
constitutional violation absent some showing of a physical injury.”1266
1258

See Suggs v. Caballero, 2009 WL 368208, *6 (E.D.Mich., Feb. 11, 2009) (loss of skilled job assignment after
transfer); Parker v. Michigan Dept. of Corrections, 2001 WL 1736637, *2 (W.D.Mich., Nov. 9, 2001) (exclusion
from an alcohol treatment program in violation of the disability statutes).
1259
Mason v. Schriro, 45 F.Supp.2d 709, 716-20 (W.D.Mo. 1999).
1260
King v. Zamiara, 2013 WL 2102655, *3-4 (W.D.Mich., May 14, 2013) (holding transfer that impaired plaintiff’s
ability to document a legal claim was not a mental or emotional injury, but a compensable First Amendment
violation; awarding “presumed damages” of $5.00 a day); Hawkinson v. Montoya, 479 F.Supp.2d 1164, 1169
(D.Colo. 2007); Lewis v. Sheahan, 35 F.Supp.2d 633, 637 n. 3 (N.D.Ill. 1999).
1261
Grant v. Scott, 2013 WL 5567485, *1, 7 (D.Colo., Oct. 9, 2013) (holding ADA claim for termination from
prison job and failure to provide strobe light fire alarms was not an action for mental or emotional injury), appeal
dismissed, No. 13-1427 (10th Cir., Oct. 22, 2013).
1262
Friedland v. Fauver, 6 F.Supp.2d 292, 310 (D.N.J. 1998). Cf. Clemmons v. Armontrout, 2005 WL 3088697, *4
n.1 (W.D.Mo., Nov. 17, 2005) (holding claim for 14 years’ confinement on death row by a person later exonerated
was not barred by § 1997e(e), even though the court conceded (incorrectly, in my view) that the injury was mental
or emotional).
1263
Jacobs v. Pennsylvania Dept. of Correctons, 2011 WL 2295095, *24 (W.D.Pa., June 7, 2011).
1264
See Tompkins v. Herron, 2013 WL 6843605, *3 (M.D.N.C., Dec. 26, 2013) (“Plaintiff does not allege that he
suffered any physical injury, only an injury to his constitutional rights. Therefore, his claim for compensatory
damages is barred.”)
A particularly absurd example is the application of § 1997e(e) to a claim that prison officials removed all
the staples from the plaintiff’s paperwork and removed the protective coverings from his papers. Castillo v. Self,
2007 WL 1741852, *3 (E.D.La., June 14, 2007). However such injury is characterized, “mental or emotional” does
not seem quite le mot juste.
1265
See, e.g., Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (per curiam) (“In his First Amendment claim,
Geiger contends that he suffered mental anguish, emotional distress, psychological harm, and insomnia as a result of
this dispute [the deprivation of magazines] with prison officials. To the extent Geiger seeks compensation for
injuries alleged to have resulted from a First Amendment violation, the district court properly determined that his
claim is barred by the physical injury requirement of § 1997e(e).”) On the other hand, in Rieara v. Sweat, 2006 WL
2327498, *2-3 (S.D.Ga., Aug. 9, 2006), where the plaintiff explicitly asserted that his claim was not limited to
mental or emotional injury but included the deprivation of constitutional rights, the court declared that his claim was
limited to mental or emotional injury.
1266
Charles v. Nance, 2006 WL 1752486, *1 (5th Cir., June 21, 2006) (unpublished); accord, e.g., Al-Amin v.
Smith, 637 F.3d 1192, 1195 (11th Cir. 2011) (“This case concerns the narrow question of whether, in the absence of
physical injury, a prisoner is precluded from seeking punitive damages” by the PLRA; court ignores the mental or
emotional injury language of § 1997e(e)); Joe v. Nelson, 2014 WL 415948, *2 (M.D.Ga., Feb. 4, 2014) (“In the
absence of a physical injury, plaintiff is precluded from recovering compensatory or punitive damages. See 42
U.S.C. § 1997e(e). . . .”); Montez v. Hampton, 2013 WL 6404990, *2 (S.D.Tex., Dec. 6, 2013) (“Montez is a
prisoner and cannot recover compensatory damages absent a showing of physical injury.” $150 in nominal damages
and $350 in punitive damages awarded for pattern of retaliatory harassment, abuse, and intimidation); Johnson v.

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A leading example of this conceptual confusion is Allah v. Al-Hafeez,1267 cited with
apparent approval in Thompson v. Carter,1268 involving a claim of interference with access to
religious services, in which the court simply assumed that the injury for which he sought
compensation must be a mental or emotional one.1269 Is not being able to go to church a mental
or emotional injury? On its face it is a concrete deprivation that occurs in the real world and not
in someone’s head, and characterizing it as a mental or emotional injury seems to miss the point
of the constitutional protection, which is to protect people’s liberty–i.e., their ability to act in the
world in particular ways–and not just to protect them from feeling bad. Nonetheless, there is
now a legion of decisions holding or assuming that religious deprivations and other First
Amendment violations are no more than mental or emotional injuries. 1270 While there are also a
Pallito, 2012 WL 6093804, *4 (D.Vt., Nov. 26, 2012) (quoting statute, then stating: “In other words, the PLRA
imposes a limitation on the recovery of damages that are unrelated to any physical injury. . . .”), report and
recommendation adopted, 2012 WL 6093801 (D.Vt., Dec. 7, 2012); Parker v. Gusman, 2012 WL 7338060, *2
(E.D.La., Nov. 16, 2012) (“42 U.S.C. § 1997e(e) prevents a prisoner who has not alleged a physical injury from
seeking compensatory damages.”), report and recommendation adopted, 2013 WL 695007 (E.D.La., Feb. 26, 2013);
Green v. Division of Corrections, 2012 WL 4757923, *2 n.3 (D.Md., Oct. 4, 2012) (“In the absence of showing
physical injury, any claim for damages may not proceed.”); Courtney v. Murphy, 2012 WL 3966336, *1 (E.D.Mich.,
Sept. 11, 2012) (“In fact, recovery of monetary damages for deliberate indifference is statutorily barred absent a
showing of physical injury. See 42 U.S.C. § 1997e(e).”); Brewer v. Tesinsky, 2012 WL 3029691, *8 (C.D.Cal.,
March 14, 2012) (“A person confined to a jail or prison cannot seek compensatory damages under federal law
without a showing of physical injury.”), report and recommendation adopted, 2012 WL 3039214 (C.D.Cal., July 24,
2012); Perkins v. Moreci, 2012 WL 2930766, *6 (N.D.Ill., July 18, 2012) (“An inmate generally cannot recover
compensatory damages without physical injury.”); Smith v. Conner, 2012 WL 2512009, *1 (M.D.Fla., June 29,
2012) (“A prisoner, therefore, may not proceed in a civil rights action for compensatory or punitive damages unless
he alleges some physical injury that is more than de minimis.”); Mobley v. Santa Rosa County Sheriff's Office Mail
Personnel and Admin., 2012 WL 967597, *2 (N.D.Fla., Feb. 17, 2012) (stating that damages for deprivation of law
books were either for mental/emotional distress or for the constitutional violation itself; “The complaint identifies no
physical injury arising from defendants' conduct. . . .”), report and recommendation adopted, 2012 WL 967566
(N.D.Fla., Mar. 22, 2012); Greene v. D.O.C., 2012 WL 694031, *3 (S.D.N.Y., Mar. 5, 2012) (“The PLRA requires
that a claim under Section 1983 requires [sic] an allegation of physical harm.”); see Appendix A for additional
authority on this point; see also Allen v. Thomas, 2005 WL 2076033, *12 (S.D.Tex., Aug. 26, 2005) (citing lack of
physical injury in a case alleging confiscation of property). In other cases, courts seem to use § 1997e(e) as a handy
means of disposing of cases whose allegations they consider insubstantial. See, e.g., Taylor v. Howards, 2001 WL
34368927 (N.D.Tex., Jan. 29, 2001), appeal dismissed, 268 F.3d 1063 (5th Cir.) (unpublished), cert. denied, 534
U.S. 1061 (2001). In Patterson v. Gladhill, 2013 WL 4602613, *4 (D.Md., Aug. 28, 2013), the court invoked
§1997e(e) even though the alleged aggravation of the plaintiff’s anxiety disorder was directly related to his wound
care, obviously related to a physical injury.
On rare occasions courts err in the opposite direction. One court declined to dismiss damages claims for
aggravation of PTSD since defendants had failed to establish it was de minimis, bypassing the question whether it
was a mental or emotional injury. Sheridan v. Reinke, 2012 WL 1067079, *7 (D.Idaho, Mar. 28, 2012)
1267
226 F.3d 247 (3d Cir. 2000).
1268
284 F.3d at 417.
1269
Allah, 226 F.3d at 250 (“Allah seeks substantial damages for the harm he suffered as a result of defendants’
alleged violation of his First Amendment right to free exercise of religion. As we read his complaint, the only actual
injury that could form the basis for the award he seeks would be mental and/or emotional injury.”).
1270
Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir. 2012) (denial to Jewish prisoner of requests to eat meals in a
succah), cert. denied, 133 S.Ct. 359 (2012); Carter v. Hubert, 2011 WL 5138674, *2 (5th Cir., Oct. 31, 2011)
(applying § 1997e(e) to deprivation of religious literature); Fegans v. Norris, 537 F.3d 897, 908 (8th Cir. 2008)
(applying § 1997e(e) to deprivation of religious diet, but affirming “nominal” award of $1500 ($1.44 per affected
meal)); Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 599, 605-06 (5th Cir. 2008) (applying § 1997e(e) to
claims of restricted religious exercise); Benton v. Yon, 2012 WL 6059210, *7 (N.D.Fla., Oct. 22, 2012) (“Because
there is no physical injury to Plaintiff as a result of these alleged First Amendment violations, Plaintiff's request for
monetary damages must necessarily be limited to nominal damages as required by 42 U.S.C. § 1997e(e). . . .”),

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number of decisions recognizing that deprivations of First Amendment rights may be cognizable
and compensable independent of any mental or emotional effects that they may have,1271 most of
them have not done much to explain why.1272 Several decisions have said that construing §

report and recommendation adopted in part, rejected in part, 2012 WL 6059363 (N.D.Fla., Dec. 6, 2012); Warner
v. Patterson, 2012 WL 4056709, *2 (D.Utah, Sept. 14, 2012) (holding “spiritual injury” from religious rights
deprivation was indistinguishable from mental or emotional injury; barring compensatory damages), judgment
vacated, appeal dismissed on other grounds, 534 Fed.Appx. 785 (10th Cir. 2013), cert. denied, ___ S.Ct. ____, 2014
WL 684311 (U.S., Feb. 24, 2014); Ciempa v. Jones, 745 F.Supp.2d 1171, 1201 (N.D.Okla., Aug. 23, 2010) (barring
damages for denial of Halal food); Neal v. Byrne, 2009 WL 3254908, *7 (W.D.N.Y., Oct. 7, 2009) (applying §
1997e(e) to various religious deprivations); Mann v. Wilkinson, 2009 WL 1441721, *2 (S.D. Ohio, May 20, 2009)
(holding damages barred for confiscation of religious materials); Johnson v. MDOC, 2009 WL 224907, *3
(N.D.Miss., Jan. 28, 2009) (recommending nominal damages of $100 for improper discipline); Gillard v.
Kuykendall, 2009 WL 981899, *3 (W.D.Ark., Apr. 13, 2009) (awarding nominal damages of $1.00 per day for
punishment of prisoner for refusing to clean his cell on his Sabbath); Lopeztegui v. Wendt, 2008 WL 1869097, *2
(N.D.W.Va., Apr. 24, 2008) (applying § 1997e(e) to claim of mishandled mail); Hendrickson v. Caruso, 2008 WL
623788, *10 n.7 (W.D.Mich., Mar. 4, 2008) (applying § 1997e(e) to deprivation of Satanist texts); see Appendix A
for additional authority on this point. But see Stepler v. Warden, Hocking Correctional Facility, 2013 WL 3147953,
*15 (S.D.Ohio, June 18, 2013) (declining to apply § 1997e(e) to claim that religious diet was nutritionally
insufficient).
1271
See Toliver v. City of New York, 530 Fed.Appx. 90, 93 n.2 (2d Cir. 2013) (unpublished) (stating “even if
Toliver is unable to establish that any of the injuries complained of in this action stemmed from an incident in which
he suffered physical injuries, Toliver may still recover damages for injuries to his First Amendment rights”); Rowe
v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999) (“A prisoner is entitled to judicial relief for a violation of his First
Amendment rights aside from any physical, mental, or emotional injury he may have sustained.”); Canell v.
Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (“[T]he deprivation of First Amendment rights entitles a plaintiff to
judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have
incurred. Therefore, § 1997e(e) does not apply to First Amendment [c]laims regardless of the form of relief
sought.”); King v. Lienemann, 2011 WL 833977, *2 (S.D.Ill., Mar. 4, 2011) (holding plaintiff cannot seek
mental/emotional distress damages for being stripped publicly, but he “appears to allege an injury to an unspecified
constitutional right, and therefore [he] may seek damages for the claimed constitutional deprivation”); Cornell v.
Gubbles, 2010 WL 3928198, *2-3 (C.D.Ill., Sept. 29, 2010) (awarding $500 for opening plaintiff’s letters and
reading them over the prison PA system, based on “violation of the plaintiff's First Amendment rights and the
chilling impact [these] actions had on the plaintiff's ability to send and receive personal letters”); see Appendix A for
additional authority on this point; see also Cryer v. Spencer, 934 F.Supp.2d 323, 336-38 (D.Mass. 2013) (citing
cases, summarizing controversy); Stavenjord v. Corrections Corp. of America, 2010 WL 960413, *9 (D.Ariz., Mar.
15, 2010) (applying holding to violation of Religious Land Use and Institutionalized Persons Act). Contra,
Thompson v. Caruso, 2008 WL 559655, *1 (W.D.Mich., Feb. 27, 2008) (reconsidering prior adherence to view that
§ 1997e(e) is inapplicable to First Amendment claims); Meade v. Plummer, 344 F.Supp.2d 569, 573 (E.D.Mich.
2004) (denying that First Amendment claims have compensable value absent physical or emotional injury). Even if
there is a special rule for First Amendment cases, if the plaintiff pleads mental or emotional injury as the only
compensable injury, § 1997e(e) would bar recovery. Swackhammer v. Goodspeed, 2009 WL 189854, *3
(W.D.Mich., Jan. 26, 2009) (compensatory damages barred for First Amendment claims).
In Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80 (D.Mass. 2005), a First Amendment case, the court
stated more generally that “the violation of a constitutional right is an independent injury that is immediately
cognizable and outside the purview of § 1997e(e),” and that “[a]long with the Seventh and Ninth Circuits, I continue
to believe that § 1997e(e) is inapplicable to suits alleging constitutional injuries.” 393 F.Supp.2d at 108.
1272
An exception is Malik v. City of New York, 2012 WL 3345317, *16-17 (S.D.N.Y., Aug. 15, 2012), report and
recommendation adopted, 2012 WL 4475156 (S.D.N.Y., Sept. 28, 2012), which states: “The Defendants' motion
mistakenly assumes that the only injury that a plaintiff may suffer without a physical injury is mental or emotional
harm. The Second Circuit has held, however, that intangible deprivations of liberty and personal rights are distinct
from claims for pain and suffering, mental anguish, and mental trauma. . . . Malik's religion and retaliation claims
allege deprivations of personal rights under the First Amendment which do not fall under the PLRA's physical injury
requirement for compensatory damages.”).

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1997e(e) to bar compensatory awards for First Amendment violations would be constitutionally
questionable, or outright unconstitutional.1273
Many courts have similarly assumed that other sorts of deprivations of liberty inflict only
mental or emotional injury, including claims of unlawful arrest and confinement,1274 deprivation
of the right to marry,1275 and racial discrimination1276 among many others.1277

1273

One court, after accepting the Ninth Circuit’s holding in Canell v. Lightner, stated:
The Court is also mindful that seldom is the case when a prisoner will actually sustain a
physical injury from a First Amendment deprivation. Rather, “the harms proscribed by the First
Amendment, Due Process, or Equal Protection are assaults on individual freedom and personal
liberty, even on spiritual autonomy, and not physical well being.” Shaheed-Muhammad v.
Dipaolo, 138 F.Supp.2d 99, 101 (D.Mass.2001). To allow section 1997e(e) to effectively foreclose
a prisoner’s First Amendment action would put that section on shaky constitutional ground.
Furthermore, a reading of section 1997e(e) in a way that prohibits First Amendment
claims does not comport with the Act’s legislative history. Nothing in the legislative history of
section 1997e(e) suggests Congress’ intent was “to prevent legitimate constitutional claims simply
because the prisoner suffered no physical injury.” Royal, 375 F.3d at 729 (Heaney, J., dissenting)
(observing the Act was designed to limit non-meritorious or frivolous litigation to assure that
legitimate claims receive due consideration). This Court is convinced that allowing prison officials
to violate inmate First Amendment rights with impunity, resolute in the knowledge that a First
Amendment physical injury will virtually never manifest itself within the meaning of section
1997e(e), is not what Congress intended when it passed the Act. “Prison walls do not form a
barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482
U.S. 78, 84 (1987).

Percial v. Rowley, 2005 WL 2572034, *2 (W.D.Mich., Oct. 12, 2005); see Siggers-El v. Barlow, 433 F.Supp.2d
811, 816 (E.D.Mich. 2006) (stating that Ҥ 1997e(e) is unconstitutional to the extent that it precludes First
Amendment claims” such as the retaliation claim at issue,” but interpreting statute to allow damages for First
Amendment mental/emotional injuries); accord, Gordon v. Collins, 2010 WL 5464256, *3 (E.D.Mich., Nov. 5,
2010), report and recommendation adopted, 2010 WL 5464750 (E.D.Mich., Dec. 29, 2010); Suggs v. Caballero,
2009 WL 368208, *6 (E.D.Mich., Feb. 11, 2009).
1274
Brown v. Sudduth, 255 Fed.Appx. 803, 808, 2007 WL 3283777 (5th Cir. 2007) (unpublished) (applying §
1997e(e) to claim of false arrest; plaintiff “sought compensatory damages for the sole alleged injury of liberty
deprivation. Having not alleged a physical injury, the district court correctly concluded that Brown’s claim for
compensatory damages must fail.”); Bailey v. Ash, 2013 WL 6669098, *3 (D.Kan., Dec. 18, 2013) (“Plaintiff does
not state any facts showing that a physical injury resulted from his 16 days of allegedly illegal detention.”);
Sturdivant v. Lovette, 2013 WL 5350901, *5-6 (S.D.Ala., Sept. 24, 2013) (holding damages barred for 152 days of
unlawful confinement); Ennis v. Leblanc, 2013 WL 2368989, *2 (M.D.La., May 29, 2013) (holding claim based on
refusal to restore plaintiff to a Transitional Work Program barred by § 1997e(e)); Wilson v. Phoenix House, 2011
WL 3273179, *3 (S.D.N.Y., Aug. 1, 2011) (holding alleged unlawful confinement was not a physical injury and
could not be compensated under § 1997e(e)); Miller v. Corbin, 2010 WL 1658952, *2 (S.D.Ga., Mar. 19, 2010)
(alleged unlawful arrest and detention without court appearance or bail hearing; plaintiff cited “impairment of
reputation and personal humiliation”), report and recommendation adopted, 2010 WL 1658896 (S.D.Ga., Apr. 21,
2010); Pratola v. Barge, 2010 WL 774173, *1-3 (D.N.J., Mar. 4, 2010) (failure to take arrestee before a judge),
reconsideration denied, 2010 WL 5186133 (D.N.J., Dec. 14, 2010); Carter v. Bone, 2010 WL 558598, *6-7
(D.S.C., Feb. 10, 2010) (wrongful arrests and detention); Jackson v. Martin, 2009 WL 4728160, *5 (N.D.Fla., Dec.
2, 2009) (malicious prosecution and unjust confinement); Scott v. Denzer, 2008 WL 694717, *8 (W.D.Ark., Mar.
12, 2008) (claim of wrongful detention before delayed initial court appearance); Brumett v. Santa Rosa County,
2007 WL 4287558, *2 (N.D.Fla., Dec. 4, 2007) (claim of six months’ illegal detention); Layne v. McDonough, 2007
WL 2254959, *4 (N.D.Fla., Aug. 6, 2007) (claim of 25 days’ wrongful incarceration); Watts v. Smith, 2007 WL
2257601, *3-4 (N.D.Fla., Aug. 6, 2007) (false arrest), subsequent determination, 2007 WL 2462012, *2-3 (N.D.Fla.,
Aug. 28, 2007); Scott v. Belin, 2007 WL 2390383, *4 (W.D.Ark., Aug. 2, 2007) (detention for 76 days without
being brought before a court), report and recommendation adopted, 2007 WL 2416408 (W.D.Ark., Aug. 20, 2007);

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Demonstrating the same sort of confusion, some courts have held that complaints of
placement in segregation or other restrictive confinement, or even of exposure to
unconstitutional prison living conditions–those that deny the “minimal civilized measure of life’s
necessities”1278–are barred or damages for them are restricted by § 1997e(e) absent allegations of
physical injury.1279 Such holdings appear inconsistent with Eighth Amendment doctrine set forth
Campbell v. Johnson, 2006 WL 3408177, *1 (N.D.Fla., Nov. 27, 2006) (refusal to accept paperwork and collateral
for release on bond); see also .
1275
Miller v. Wenerowicz, 2014 WL 468948, *3 (E.D.Pa., Feb. 6, 2014).
1276
Reynolds v. Barrett, 741 F.Supp.2d 416, 446 (W.D.N.Y., Oct. 4, 2010); Johnson v. McByrde, 2010 WL
3059248, *2 (W.D.Mich., Aug. 4, 2010) (holding both compensatory and punitive damages barred); Jones v.
Pancake, 2007 WL 2407271, *3 (W.D.Ky., Aug. 20, 2007).
1277
Evans v. Turner, 2013 WL 5800604, *3 (M.D.La., Oct. 28, 2013) (claim of confiscation of legal materials and
retaliation); Simpson v. Chester County Prison, 2010 WL 3323119, *6 (E.D.Pa., Aug. 19, 2010) (medical
examinations conducted in public); Marshall v. Graham, 2009 WL 151693, *3 (W.D.Ky., Jan. 21, 2009) (rough and
humiliating searches); Jordan v. Corrections Corp. of America, 2008 WL 687329, *2 (M.D.Ga., Mar. 11, 2008)
(confiscation of mail); Jones v. Corley, 2008 WL 616114, *2-3 (N.D.Fla., Mar. 3, 2008) (Miranda violation and
forced consent to search); Lattanzio v. Holt, 2008 WL 553703, *2 (M.D.Pa., Feb. 27, 2008) (interference with
visiting); Johnson v. Georgia, 2007 WL 2684985, *2-3 (M.D.Ga., Sept. 7, 2007) (violation of attorney-client
privilege); Johnson v. Burkette, 2007 WL 2406988, *3 (N.D.Fla., Aug. 21, 2007) (claim that defendants’ actions
destroyed plaintiff’s marriage and left him homeless on release); Charest v. Montgomery, 2007 WL 2069927, *6 n.6
(S.D.Ala., July 17, 2007) (strip search in presence of an opposite sex prisoner); Robinson v. Department of
Corrections, 2007 WL 2107172, *5 (N.D.Fla., July 13, 2007) (stopping of mail and delaying filing of lawsuits as
well as deprivation of religious materials), report and recommendation adopted, 2007 WL 3010790 (N.D.Fla., Oct.
12, 2007); Ivy v. New Albany City Police Dept., 2006 WL 3103138 (N.D.Miss., Oct. 31, 2006) (being held naked in
an isolation cell); Caudell v. Rose, 2005 WL 1278543, *3 (W.D.Va., May 27, 2005) (seizure of legal papers), report
and recommendation adopted, 378 F.Supp.2d 725 (W.D.Va. 2005); Ashann Ra v. Com. of Va., 112 F.Supp.2d 559,
566 (E.D.Va. 2000) (holding that a complaint that a prisoner was routinely viewed in the nude by opposite-sex staff
stated a constitutional claim sufficiently clearly established to defeat qualified immunity, but was not actionable
because of the mental/emotional injury provision). See also Aref v. Holder, 953 F.Supp.2d 133, 147-48 (D.D.C.
2013) (holding claim of lost educational opportunity too speculative to support a compensatory award).
1278
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
1279
See, e.g., Williams v. Hobbs, 662 F.3d 994, 1010-11 (8th Cir. 2011) (holding 14 years’ segregation did not
inflict physical injury and plaintiff was limited to $1.00 nominal damages for each defective review hearing);
Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (barring damages for three years in segregation); Harper v.
Showers, 174 F.3d 716, 719-20 (5th Cir. 1999) (barring damage claims for placement in filthy cells formerly
occupied by psychiatric patients and exposure to deranged behavior of those patients). Many other such claims have
been held subject to § 1997e(e). See Moore v. Parker, 2013 WL 6590395, *4 (W.D.Ky., Dec. 16, 2013); Campbell
v. Myers, 2013 WL 6330901, *1-2 (E.D.Tenn., Dec. 5, 2013) (holding allegations of gross overcrowding, prisoners
sleeping on the floor, inadequate toilet access, exposed electrical wiring, no natural light, inadequate drinking water,
no access to medical care barred absent allegations of physical injury); Clark v. Tucker, 2013 WL 5606560, *1-2
(M.D.Fla., Oct. 11, 2013) (holding prisoner subjected to four weeks’ confinement without clothing could not recover
damages absent allegation of physical injury); Paulino v. Fischer, 2013 WL 5230264, *7 (N.D.N.Y., Sept. 16, 2013)
(barring compensatory damages for 13 months in segregation where plaintiff had to eliminate in a pail but had no
physical injury); Read v. Calabrese, 2013 WL 5506344, *11-12 (N.D.N.Y., Aug. 29, 2013); Aref v. Holder, 953
F.Supp.2d 133, 147-48 (D.D.C. 2013) (holding harm to “family relations” allegedly caused by confinement in
Communications Management Units was indistinguishable from mental or emotional injury, and claim of loss of
liberty was too abstract to support a damages award); Turner v. Cain, 2013 WL 2147220, *1, 3 (M.D.La., Apr. 29,
2013) (holding plaintiff reclassified to maximum security, losing desirable jobs and being transferred hundreds of
miles from family, alleged only mental or emotional injury), report and recommendation adopted, 2013 WL
2147246 (M.D.La., May 15, 2013), appeal dismissed, No. 13-30646 (5th Cir., Aug. 13, 2013); Goforth v. Sumner
County, 2013 WL 1943020, *2-3 (M.D.Tenn., May 9, 2013) (holding crowding, sleeping on the floor, the odor of
feces were not actionable without an allegation of physical injury even if they increased the risk of disease); Watson
v. Curley, 2012 WL 6019498, *4 (W.D.Mich., Dec. 3, 2012) (confinement for 16 days in a cold cell); Green v.
Division of Corrections, 2012 WL 4757923, *2 & n.3 (D.Md., Oct. 4, 2012) (confinement naked in cell for 20

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by the Supreme Court, under which it is the objective seriousness of the conditions, and not their
effect on the prisoner, that determines their lawfulness.1280 It is questionable whether a claim
alleging conditions that are objectively intolerable is an “action for mental or emotional injury,”
even if such injury (not surprisingly) results from them.1281 (There is a striking departure from
hours); Davis v. Gusman, 2012 WL 3150047, *1-2 (E.D.La., August 2, 2012) (litany of conditions complaints),
appeal dismissed, No. 12-30932 (5th Cir., Dec. 3, 2012); Higgs v. Easterling, 2012 WL 692610, *13 (W.D.Ky.,
Mar. 2, 2012) (confinement under unwholesome living conditions); Cincoski v. Richard, 2012 WL 810575, *4
(E.D.Ark., Feb. 21, 2012) (placement on “suicide watch” with a camera in his cell, denial of medications, shoes,
clothes, underwear and a blanket, and subjection to freezing temperatures), report and recommendation adopted,
2012 WL 810445 (E.D.Ark., Mar. 12, 2012), reconsideration denied, 2012 WL 1080749 (E.D.Ark., Mar. 30, 2012);
Torres v. Logan, 2011 WL 3894386, *3 (S.D.N.Y., June 13, 2011) (confinement in punitive segregation); Brown v.
Chatman, 2010 WL 3717283, *4 (M.D.Ga., Sept. 10, 2010) (exposure to environmental tobacco smoke); Wells v.
Quarterman, 2010 WL 3447490, *1-2 (S.D.Tex., Aug. 30, 2010) (failure to accommodate blind prisoner’s
disability); see Appendix A for additional authority on this point. In Williams v. Norris, 2010 WL 2487479, *1
(E.D.Ark., June 14, 2010), the court found that 13 years in administrative segregation did not inflict physical injury
on the plaintiff, but awarded nominal damages of $1.00 a day, totalling $4,846.00. Accord, Keating v. Helder, 2011
WL 3703415, *16 (W.D.Ark., Apr. 11, 2011), report and recommendation adopted, 2011 WL 3703264 (W.D.Ark.,
Aug. 23, 2011). See also Cline v. Broward County Sheriff’s Office, 2007 WL 2453558, *9 (S.D.Fla., Aug. 23,
2007) (dismissing damage claims that food is prepared and served by prisoners who have not been medically
screened). Cf. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (holding that an allegation of placement in
segregation without due process might be saved from the mental/emotional injury bar by allegations of inadequate
medical care in the segregation unit).
Subjection to inhumane conditions or prolonged isolated confinement may, of course, result in physical
injury. See Wagner v. Hartley, 2013 WL 1191231, *9 (D.Colo., March 22, 2013) (holding severe headaches
resulting from segregation conditions, along with constipation and bowel problems, satisfied physical injury
requirement); Huff v. Pundt, 2012 WL 2994438, *2-3 (S.D.Tex., July 20, 2012) (holding evidence of eye infection
associated with unsanitary conditions barred summary judgment); Peterson v. Morin, 2012 WL 1694775, *2-3
(S.D.Tex., May 15, 2012) (holding claim of ringworm or fungal infection from unsanitary showers satisfied physical
injury requirement); Wagner v. Hartley, 2012 WL 1079185, *7 (D.Colo., Mar. 30, 2012) (holding allegations of
“muscle atrophy, joint pains and aches, and repeated and severe migraine and/or other headaches due to the lack of
exercise, lack of fresh outdoor air, and the mental and emotional stress from isolation and his fear that the arbitrary
and capricious retaliation would continue” sufficiently alleged physical injury); Ford v. Bender, 2012 WL 262532,
*15 (D.Mass., Jan. 27, 2012) (holding episodes of uncontrolled diabetes resulting from limited medical attention and
cuts and infections caused by being shackled whenever the plaintiff left his segregation cell constituted physical
injury under § 1997e(e)), motion to amend denied, 2012 WL 1378651 (D.Mass., Apr. 19, 2012); Fogle v. Pierson,
2008 WL 821803, *9 (D.Colo., Mar. 26, 2008) (evidence of muscle loss, vitamin D deficiency, migraine headaches,
and knee and back problems from lack of outdoor exercise during three years of segregation supported claim of
physical injury in connection with due process challenge to placement in segregation and arguably claim of denial of
access to courts which prolonged his stay in segregation); Compton v. Robinson, 2008 WL 616053, *4 (W.D.Ark.,
Mar. 3, 2008) (declining to apply § 1997e(e) to plaintiff who was segregated and alleged scar on ankle from
shackles, a cold resulting from cold temperatures, dehydration for nine days, and being left chained to a stool to
urinate and defecate on himself).
1280
Wilson v. Seiter, 501 U.S. 294, 303 (1991); see Helling v. McKinney, 509 U.S. 25, 35-37 (1993) (instructing as
to objective assessment of environmental tobacco smoke exposure); see also Fields v. Ruiz, 2007 WL 1821469, *7
(E.D.Cal., June 25, 2007) (for Eighth Amendment claims, “the issue is the nature of the deprivation, not the injury”),
report and recommendation adopted, 2007 WL 2688453 (E.D.Cal., Sept. 10, 2007); Armstrong v. Drahos, 2002 WL
187502, *2 (N.D.Ill., Feb. 6, 2002) (“Because the Eighth Amendment is understood to protect not only the
individual, but the standards of society, the Eighth Amendment can be violated even when no pain is inflicted, if the
punishment offends basic standards of human dignity.”)
1281
A few decisions make this sort of distinction. In Nelson v. CA Dept of Corrections, 2004 WL 569529 (N.D.Cal.,
Mar. 18, 2004), aff’d, 131 Fed.Appx. 549 (9th Cir. 2005), the plaintiff complained of being provided only boxer
shorts and a T-shirt for outdoor exercise in cold weather. The court said: “Even if Nelson’s complaint does include
a request for damages for mental and emotional injury, it also includes a claim for an Eighth Amendment violation
as to which the § 1997e(e) requirement does not apply. In other words, damages would be available for a violation

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the usual holdings in a recent Sixth Circuit decision involving a prisoner with mental illness who
was held under squalid conditions, which the court declares to constitute physical injury.1282 It is
discussed in the next section.)
In my view the right approach to such damages questions is that of the courts who say
that “the violation of a constitutional right is an independent injury that is immediately
cognizable and outside the purview of § 1997e(e),”1283 completely separate from any mental or
emotional injury. Some courts have said the same thing—that “damages resulting from
constitutional violations” are “separate categories of damages” from physical or mental
injuries—in cases about unconstitutional conditions of confinement or restrictive confinement
without due process,1284 though others have rejected that proposition.1285
of his Eighth Amendment rights without regard to his ability to show physical injury.” Id., *7; see Pippin v. Frank,
2005 WL 756155, *1 (W.D.Wis., Mar. 30, 2005) (stating that § 1997e(e) precludes claims for mental or emotional
injury but not a claim that plaintiff was “falsely confined” in segregation as a result of constitutional violations); see
also Aldridge v. 4 John Does, 2005 WL 2428761, *3 (W.D.Ky., Sept. 30, 2005) (stating generally that “damages
resulting from constitutional violations” are “separate categories of damages” from physical or mental injuries in
case where plaintiff alleged medical deprivations, protracted segregation, and denial of access to courts).
1282
Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622, 626-27 (6th Cir. 2011) (unpublished).
1283
Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 108 (D.Mass. 2005); accord, Oliver v. Keller, 289 F.3d
623, 629 (9th Cir. 2002); Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999) (“A prisoner is entitled to judicial
relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may
have sustained.”); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998); Suggs v. Nelson, 2014 WL 413500, *2
(W.D.Mich., Feb. 4, 2014) (holding § 1997e(e) “is wholly inapplicable to claims for compensatory or punitive
damages for constitutional deprivations”); Glynn v. California Dept. of Corrections and Rehabilitation, 2013 WL
5278954, *6 (E.D.Cal., Sept. 18, 2013) (“The Ninth Circuit's reasoning in Canell is equally applicable to a claim
alleging discrimination under the Equal Protection Clause. An equal protection violation, like a First Amendment
violation, entitles a plaintiff to judicial relief wholly aside from any physical injury he can show or any mental or
emotional injury he may have incurred.”); Alverto v. Department of Corrections, 2012 WL 6025617, *22
(W.D.Wash., Nov. 15, 2012) (“To the extent that appellant's claims for compensatory, nominal or punitive damages
are premised on alleged Fourteenth Amendment violations, and not on emotional or mental distress suffered as a
result of those violations, § 1997e(e) is inapplicable and those claims are not barred.”), report and recommendation
adopted, 2012 WL 6150043 (W.D.Wash., Dec. 11, 2012); Malik v. City of New York, 2012 WL 3345317, *16-17
(S.D.N.Y., Aug. 15, 2012) (holding “intangible deprivations of liberty and personal rights are distinct from claims
for pain and suffering, mental anguish, and mental trauma. . . . Malik's religion and retaliation claims allege
deprivations of personal rights under the First Amendment which do not fall under the PLRA's physical injury
requirement for compensatory damages.”), report and recommendation adopted, 2012 WL 4475156 (S.D.N.Y.,
Sept. 28, 2012); Patten v. Brown, 2012 WL 1669350, *6 (N.D.Cal., May 11, 2012) (applying Oliver v. Keller
holding to strip search); Redmon v. Zavaras, 2011 WL 2728466, *9 (D.Colo., June 16, 2011) (holding § 1997e(e)
was inapplicable where plaintiff raising court access and correspondence-related claims did not allege mental or
emotional injury), report and recommendation adopted, 2011 WL 2729196 (D.Colo., July 13, 2011); see Appendix
A for additional authority on this point. Contra, Al-Amin v. Smith, 2009 WL 4506571, *3 (S.D.Ga., Dec. 3, 2009)
(stating that injuries from a retaliatory denial of visiting “constitute either mental or emotional injuries (i.e., ‘other . .
. mental, and emotional injury’) or mere effects of the constitutional violation that do not necessarily involve a
specific actual injury (i.e., ‘undermining and chilling [of] Mr. Al-Amin's ability to exercise his free speech
rights’)”).
1284
Aldridge v. 4 John Does, 2005 WL 2428761, *3 (W.D.Ky., Sept. 30, 2005) (ruling in case involving medical
deprivations, protracted segregation, and denial of access to courts); accord, Mitchell v. Horn, 318 F.3d 523, 534
(3d Cir. 2003) (stating that requests for damages for loss of “status, custody level and any chance at commutation”
resulting from a disciplinary hearing were “unrelated to mental injury” and “not affected by § 1997e(e)’s
requirements.”); Ford v. Bender, 2012 WL 262532, *14 (D.Mass., Jan. 27, 2012), motion to amend denied, 2012
WL 1378651 (D.Mass., Apr. 19, 2012); Turner v. Salinas, 2011 WL 4905722, *4 (E.D.Cal., Oct. 14, 2011) (“The
fact that [plaintiff] never suffered any physical injury as a result of [defendant’s] alleged acts may make his Eighth
Amendment claim of very little financial value but does not make the claim non-existent.”); Patch v. Arpaio, 2009

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That approach is consistent with the general background of tort law, the basis of the law
of damages under 42 U.S.C. § 1983,1286 which courts have unaccountably neglected in applying
§ 1997e(e). Tort principles support a narrow construction of the phrase “mental or emotional
injury,” one which does not encompass intangible deprivations of liberty and personal rights.1287
The leading nineteenth-century damages treatise divided damages into six classes: injuries to
property, physical injuries, mental injuries, injuries to family relations, injuries to personal
liberty, and injuries to reputation.1288 Following this categorization, in defamation law, mental or
emotional injury does not encompass other forms of intangible injury such as damage to
reputation or alienation of associates, which are separately cognizable.1289 Similarly, in false
imprisonment cases, damages are awarded for the loss of liberty wholly apart from any mental or
emotional distress, physical injury, or any other category of injury. 1290 The Second Circuit has
WL 211090, *3 (D.Ariz., Jan. 29, 2009) (“Plaintiff did not bring a claim for mental or emotional injury; he brought
a claim for the violation of his Fourteenth and Eighth Amendment rights. . . .”); Nelson v. CA Dept of Corrections,
2004 WL 569529, *7 (N.D.Cal., Mar. 18, 2004), aff’d, 131 Fed.Appx. 549 (9th Cir. 2005) (distinguishing claim for
emotional injury in case about inadequate clothing for outdoor exercise in cold weather from Eighth Amendment
violation, stating plaintiff could recover damages for the latter without regard for physical injury); see Appendix A
for additional authority on this point.
1285
The Seventh Circuit had held in a pre-PLRA case that “[t]he loss of amenities within prison is a recoverable item
of damages,” which can be proven by testimony concerning differences in physical conditions, daily routine, etc.,
with no reference to mental or emotional injury. Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir. 1986). That
holding appeared consistent with the distinction made in the text. However, in a case involving a prisoner placed in
supermax confinement for a year in retaliation for First Amendment-protected activity, that court has now held
(unconvincingly in my view) that Ustrak does not support the proposed interpretation of the PLRA. Pearson v.
Welborn, 471 F.3d 732, 744 45 (7th Cir. 2006) (stating plaintiff “fails to convincingly explain how damages to
compensate him for the difference in conditions would be anything but recovery for ‘mental or emotional injury’
now barred by the PLRA); accord, Royal v. Kautzky, 375 F.3d 720, 724 (8th Cir. 2004) (declining to award a
prisoner who spent 60 days in segregation “some indescribable and indefinite damage allegedly arising from a
violation of his constitutional rights.”), cert. denied, 544 U.S. 1061 (2005); Smith v. Eyke, 2013 WL 3175986, *2
(W.D.Mich., June 21, 2013) (holding loss of liberty and loss of family relationships “are indescribable and indefinite
injuries that are best characterized as emotional/mental injuries”; citing Royal v. Kautzky); King v. Zamiara, 2013
WL 2102655, *2 (W.D.Mich., May 14, 2013) (applying § 1997e(e) to complaint of transfer to a more restrictive
prison; “To the extent King complains that the transfer resulted in a loss of personal freedom, the losses are a mental
or emotional injury for which no damages are permitted” without physical injury); Edwards v. Horn, 2012 WL
760172, *22 (S.D.N.Y., Mar. 8, 2012) (rejecting “loss of amenity” and “limited liberty” because neither is a physical
injury).
1286
Smith v. Wade, 461 U.S. 30, 34 (1983); Carey v. Piphus, 435 U.S. 247, 257-58 (1978).
1287
The following discussion is based on research by Prof. Margo Schlanger of Washington University Law School.
1288
Arthur G. Sedgwick & Joseph H. Beale, Jr., 1 Sedgwick’s Treatise on Damages 50-51 (8th ed. 1891). But see
Aref v. Holder, 953 F.Supp.2d 133, 148 (D.D.C., July 12, 2013) (“Plaintiffs claim that their placement in the CMU
has inflicted harm on their ‘family relations’ that is ‘a category of harm separate from mental and emotional
distress,’ but their only support for this proposition is a treatise from the 19th century.”).
1289
See, e.g., Charles T. McCormick, Handbook on the Law of Damages 422 (1935) (separating out three
components of “general” damages in defamation cases, “injury to reputation,” “loss of business,” and “wounded
feelings and bodily suffering resulting therefrom.”); see also Linn v. United Plant Guard Workers of America, Local
114, 383 U.S. 53, 65 (1966) (describing interests in libel cases as covering several categories of damages, “which
may include general injury to reputation, consequent mental suffering, alienation of associates, [and] specific items
of pecuniary loss”); Farmer v. United Broth. of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 302
(1977) (distinguishing between state interests in “protection from emotional distress caused by outrageous conduct,”
interests in “protection from physical injury, . . . or damage to reputation . . . .”).
1290
See Sedgwick, supra, at 70-71 (“For an illegal restraint of the plaintiff’s personal liberty compensation may be
recovered. This is something different from either the loss of time or the physical injury or mental suffering caused
by the imprisonment.”); McCormick, supra, at 375 (“though only the wrongful detention be pleaded, without any

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acknowledged this distinction in a non-prisoner decision in which the plaintiff prevailed both on
his Fourth Amendment claims for unlawful seizure and his state law claims for false
imprisonment: “The damages recoverable for loss of liberty for the period spent in a wrongful
confinement are separable from damages recoverable for such injuries as physical harm,
embarrassment, or emotional suffering; even absent such other injuries, an award of several
thousand dollars may be appropriate simply for several hours’ loss of liberty.”1291
Applying this approach to 42 U.S.C. § 1997e(e) supports the conclusion that prisoners’
claims of deprivation of First Amendment or other intangible rights, confinement without due
process in settings that drastically restrict the limited liberty of ordinary prison life, or placement
under conditions that violate the Eighth Amendment, should be viewed in the first instance as
claims of deprivation of personal liberty and not primarily as inflictions of mental or emotional
injury.1292 To the extent a particular plaintiff asserts mental or emotional injury resulting from
such deprivation (e.g., claustrophobia or a stress disorder), damages for that additional injury are
not recoverable without a showing of physical injury. This approach is illustrated by one prePLRA case in which the court found that the plaintiff had been placed in punitive segregation
without due process, and awarded damages of $50 a day for the fact of the confinement itself. It
treated the resulting emotional injury–”distress flowing from the fact of punitive segregation,” in
the court’s terms–as a separate item of damages, awarding only nominal damages for it in the
specification of injurious results, the plaintiff can recover for any harm of a sort usually inseparable from such
restraint as ‘general’ damage.”); Dan B. Dobbs, Handbook on the Law of Remedies: Damages, Equity, Restitution
529 (1st ed. 1973) (“The general damages recoverable . . . do not require specific proof of emotional harm to the
plaintiff . . . Thus general damages for assault or false imprisonment and like torts are not dependent upon actual
proof of such harm.”); see also, e.g., Hamilton v. Smith, 39 Mich. 222 (1878) (distinguishing between available
types of damages in a false imprisonment case, which include “the expense of, the plaintiff, if any, in and about the
prosecution complained of to protect himself; his loss of time; his deprivation of liberty and the loss of the society of
his family; the injury to his fame; personal mortification and the smart and injury of the malicious arts and acts and
oppression of the parties”); accord, Beckwith v. Bean, 98 U.S. 266, 276 (1878) (adducing similar list).
1291
Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004). The court relied on an earlier case in which it
had held that, although juries are properly instructed not to award “speculative damages,” the trial court “should
have made it clear to the jury that it could award monetary damages–the amount necessarily arbitrary and
unprovable–for the intangibles which we have referred to above.” Id. (quoting Raysor v. Port Authority of New
York and New Jersey, 768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 475 U.S. 1027 (1986)). Kerman also relied
extensively on tort cases and did not distinguish between the federal Fourth Amendment claim and the state law
false arrest claim in its discussion of damages.
1292
Finally, a few district courts have connected these dots. Rosado v. Herard, 2013 WL 6170631, *10 (S.D.N.Y.,
Nov. 25, 2013) (“Herard's motion mistakenly assumes that, where no physical injury is alleged, the only injury that a
plaintiff may suffer as a result of retaliation is mental or emotional harm. The Second Circuit has held, however, that
intangible deprivations of liberty and personal rights are distinct from claims for pain and suffering, mental anguish,
and mental trauma.” (citing Kerman); claim was for violation of privacy rights by disclosure of HIV status); Mendez
v. Amato, 2013 WL 5236564, *20 (N.D.N.Y., Sept. 17, 2013) (holding claims based on confinement in Involuntary
Protective Custody “involve the loss of such intangibles as liberty through a lack of due process and equal
protection” and thus “fall outside of the physical harm requirement of the PLRA”; citing Kerman’s distinction
between loss of liberty and emotional suffering); Malik v. City of New York, 2012 WL 3345317, *16-17 (S.D.N.Y.,
Aug. 15, 2012) (“The Defendants' motion mistakenly assumes that the only injury that a plaintiff may suffer without
a physical injury is mental or emotional harm. The Second Circuit has held, however, that intangible deprivations of
liberty and personal rights are distinct from claims for pain and suffering, mental anguish, and mental trauma. See
Kerman . . . . Malik's religion and retaliation claims allege deprivations of personal rights under the First
Amendment which do not fall under the PLRA's physical injury requirement for compensatory damages.”), report
and recommendation adopted, 2012 WL 4475156 (S.D.N.Y., Sept. 28, 2012). As noted above at nn. 1271, 12811284, some other federal courts applying § 1997e(e) have also reached essentially this conclusion, though they have
not grounded it in tort principles.

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absence of record proof.1293 Under this approach, there will still be a limited number of cases in
which the deprivation consists entirely of the infliction of mental or emotional injury, e.g., the
deprivation of psychiatric treatment not resulting in suicide or self-mutilation, and in which no
compensatory damages may be recovered.1294
These conclusions are buttressed by another tort analogy. Section 1997e(e) essentially
codifies the common law “physical impact” rule, under which negligence plaintiffs may recover
for emotional distress only if it is accompanied by the negligent infliction of a physical
impact.1295 The concerns behind this rule include the view that mental suffering is relatively
trivial in most cases, and that evidence of it is “easy to fabricate, hard to controvert.” 1296 Courts
have recognized similar concerns underlying § 1997e(e).1297 At common law, and in cases
where the PLRA’s physical injury provision applies, the physical injury “in essence, vouch[es]
for the asserted emotional injury.”1298 But where a plaintiff has proven, and seeks damages for, a
deprivation of liberty or subjection to intolerable conditions of constitutional magnitude, that
injury requires no further vouching. In such a case, § 1997e(e) should have no application except
to the extent the plaintiff explicitly seeks recovery for psychological injury caused by the
constitutional deprivation.1299
The proper categorization of damages under § 1997e(e) remains an open question in the
Second Circuit. Thompson v. Carter sheds little light on the matter. The alleged deprivation in
1293

Soto v. Lord, 693 F.Supp. 8, 22-23 (S.D.N.Y. 1988). But see Royal v. Kautzky, 375 F.3d 720, 724 (8th Cir.
2004) (declining to award a prisoner who spent 60 days in segregation “some indescribable and indefinite damage
allegedly arising from a violation of his constitutional rights”), cert. denied, 544 U.S. 1061 (2005).
1294
Burke v. Enenoh, 2012 WL 2358595, *4 (E.D.Cal., June 20, 2012) (holding damages barred for claim of
deprivation of mood-stabilizing medication), report and recommendation adopted, 2012 WL 2995489 (E.D.Cal.,
July 23, 2012); Reeder v. Hogan, 2011 WL 1484118, *11-12 (N.D.N.Y., Mar. 1, 2011), report and recommendation
adopted, 2011 WL 1302915 (N.D.N.Y., Mar. 31, 2011); Liverman v. Gubernik, 2008 WL 5427904, *3 (E.D.Pa.,
Dec. 30, 2008); Grisby v. Cobb County Adult Detention Center, 2008 WL 4919511, *2 n.3 (N.D.Ga., Nov. 13,
2008) (deprivation of PTSD medication); Edmond v. Waller, 2006 WL 2975465, *3 (S.D.Miss., Oct. 17, 2006);
Hunnicutt v. Armstrong, 305 F.Supp.2d 175, 186 (D.Conn. 2004).
1295
See, e.g., Metro-North Commuter R.Co. v. Buckley, 521 U.S. 424, 430 (1997) (allowing recovery only if the
impact “caused, or might have caused, immediate traumatic harm”); Consolidated Rail Corp. v. Gottshall, 512 U.S.
532, 546-547 (1994); Lee v. State Farm Mutual Insurance Co., 272 Ga. 583, 533 S.E.2d 82, 84 (2000) (“In a claim
concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the
plaintiff, and that impact must be a physical injury.”).
1296
Francis H. Bohlen, Right to Recover for Injury Resulting from Negligence Without Impact, 50 Am. L. Reg.
141, 142, 143, 146 (1902).
1297
See, e.g., Dawes v. Walker 239 F.3d 489, 496 (2d Cir. 2001) (Walker, J., special statement) (in structuring §
1997e(e) to preclude prisoners from “recovery” “for mental and emotional injury suffered while in custody without
a prior showing of physical injury,” Congress looked to the common law of torts); Zehner v. Trigg, 952 F.Supp.
1318, 1325 (S.D.Ind.) (“[B]y enacting § 1997e(e), Congress took a page from the common law by limiting claims
for mental and emotional injuries, which can easily be feigned or exaggerated, in the absence of physical injury.”),
aff’d, 133 F .3d 459 (7th Cir. 1997); Cain v. Virginia, 982 F.Supp. 1132, 1135 (E.D.Va. 1997); Kerr v. Puckett, 967
F.Supp. 354 (E.D.Wis.1997), aff’d, 138 F.3d 321 (7th Cir. 1998).
1298
Dawes v. Walker, 239 F.3d at 495 (Walker, J., special statement).
1299
This approach is illustrated by the decision in Soto v. Lord, discussed in n. 1293, above, in which a prisoner
unlawfully placed in segregation was compensated for the fact of his confinement but was denied further damages
for “distress” in the absence of evidence supporting such an award. Under § 1997e(e), the plaintiff could not have
received “distress” damages without evidence of physical injury, but his entitlement to damages for the confinement
itself would not have been affected. See also Nelson v. CA Dep’t of Corrections, 2004 WL 569529, *7 (N.D.Cal.,
Mar. 18, 2004), aff’d, 131 Fed.Appx. 549 (9th Cir. 2005) (distinguishing between Eighth Amendment violation
based on inadequate outdoor clothing and emotional injury resulting from those facts).

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that case was confiscation of prescribed medication, and the court simply remanded to allow the
plaintiff to amend his complaint and clarify what he was asking for. In doing so, it noted that the
district court did not know whether the plaintiff sought “actual damages for his loss of property,
nominal or punitive damages, damages for a physical injury, or damages solely for an emotional
injury without any claim of physical injury.”1300 That comment cannot be construed as even
suggesting a position on the deprivation of intangible rights, either deprivations of liberty such as
alleged in Allah v. al-Hafeez or other First Amendment cases, or cases involving restrictive or
oppressive conditions of confinement.
Thus Thompson’s statement that “Section 1997e(e) applies to claims in which a plaintiff
alleges constitutional violations so that the plaintiff cannot recover damages for mental or
emotional injury for a constitutional violation in the absence of a showing of actual physical
injury,”1301 does not resolve how it applies. That is, it doesn’t clarify whether prisoners can
recover compensatory damages for injuries that are not readily categorizable as physical or as
mental or emotional, such as deprivation of religious or other First Amendment rights, 1302 or the
loss of freedom and quality of life resulting from placement in particularly restrictive or
inhumane prison conditions. Subsequent case law, in the Second Circuit or elsewhere, has not
advanced the state of judicial understanding on this point.1303
Given this confusion, it seems to me that plaintiffs should confront this issue head-on in
their complaints by, for example, stating that they do not seek damages for mental or emotional
injury, and enumerating in detail the concrete deprivations for which they seek recovery. After
all, clarity on plaintiffs’ part can hardly make matters worse. For example, an ad damnum clause
in a case seeking damages for confinement in segregation in violation of due process might read
as follows:
WHEREFORE, plaintiff requests that the court grant the following relief:

1300

284 F.3d at 419.
284 F.3d at 417 (emphasis supplied).
1302
In this context, Thompson’s treatment of Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998), is interesting.
Thompson rejects Canell’s statement that the statute “does not apply to First Amendment Claims regardless of the
form of relief sought.” 284 F.3d at 417 (quoting Canell, citation omitted). However, that statement in Canell is
preceded by the statement that the plaintiff “is not asserting a claim for ‘mental or emotional injury.’ He is asserting
a claim for violation of his First Amendment rights. The deprivation of First Amendment rights entitles a plaintiff to
judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have
incurred.” 143 F.3d at 1213. Thompson’s holding that § 1997e(e) does apply to First Amendment claims insofar as
they seek recovery for mental or emotional injury is not incompatible with a holding that First Amendment
violations inflict injury that is neither physical nor mental or emotional. The Second Circuit has now explicitly
recognized this possibility in Toliver v. City of New York, 530 Fed.Appx. 90, 93 n.2 (2d Cir. 2013) (unpublished)
(holding “even if Toliver is unable to establish that any of the injuries complained of in this action stemmed from an
incident in which he suffered physical injuries, Toliver may still recover damages for injuries to his First
Amendment rights”).
1303
But see n.1292, above, concerning the district court cases that have connected the § 1997e(e) discussion with
the Second Circuit’s decision in Kerman v. City of New York.
In Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003), the plaintiff complained of a strip search conducted in
the presence of staff members of the opposite sex. The court characterized the claim as one “for an Eighth
Amendment violation involving no physical injury,” 319 F.3d at 941, but did not explain its apparent assumption
that the injury involved was mental or emotional, even though it acknowledged that some injuries, such as First
Amendment violations, are non-physical but not necessarily mental or emotional. Id. at 940-41.
1301

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A. Award compensatory damages against Hearing Officer Smith, by reason of
the denials of procedural due process set out in ¶¶ ___, above, for:
1. The loss of privileges and quality of life attendant upon plaintiff’s confinement
for twelve months in the restrictive conditions of the Special Housing Unit, and
the exclusion from normal prison activities and privileges associated with that
confinement, in that he was confined for 23 hours a day in a cell roughly 60 feet
square, and deprived of most of his personal property as well as the ability to
work, attend educational and vocational programs, watch television, associate
with other prisoners, attend outdoor recreation in a congregate setting with the
ability to engage in sports and other congregate recreational activities, attend
meals with other prisoners, and attend religious services.
2. The economic loss resulting from plaintiff’s exclusion from paid employment
in the prison during his Special Housing Unit confinement.
Consistently with 42 U.S.C. § 1997e(e), the plaintiff does not seek additional
compensatory damages for mental or emotional injury resulting from the above
described injuries.
B. Award punitive damages against Hearing Officer Smith for his willful and/or
reckless conduct in denying plaintiff the due process of law at his disciplinary
hearing.
C. Award nominal damages against Hearing Officer Smith for his violation of the
plaintiff’s constitutional right to the due process of law.
Solving the § 1997e(e) problem is no guarantee of success; the problem of damages for
intangible constitutional violations was difficult even before the PLRA, with many plaintiffs
receiving only awards of nominal damages for substantial violations,1304 and the Supreme Court
has cautioned that damage awards cannot be based on the “abstract ‘importance’ of a
constitutional right.”1305 Some courts may continue to assume that the only basis for damages in
such cases is mental or emotional injury. However, courts have made compensatory awards for
violations of First Amendment and other intangible rights based on their particular circumstances
and without reference to mental or emotional injury,1306 and § 1997e(e) should not be read to
forbid such a result in prisoner cases.

1304

Williams v. Kaufman County, 352 F.3d 994, 1012 (5th Cir. 2003) (noting the frequency of nominal awards
under § 1983); see, e.g., Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997) (noting nominal award for denial of
telephone access to overnight detainee), cert. denied, 523 U.S. 1036 (1998); Sockwell v. Phelps, 20 F.3d 187 (5th
Cir. 1994) (noting nominal award for racial segregation).
1305
Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 312-13 (1986).
1306
See, e.g., Sallier v. Brooks, 343 F.3d 868, 880 (6th Cir. 2003) (affirming jury award of $750 in compensatory
damages for each instance of unlawful opening of legal mail); Goff v. Burton, 91 F.3d 1188, 1192 (8th Cir. 1996)
(affirming $2250 award at $10 a day for lost privileges resulting from a retaliatory transfer to a higher security
prison); Cornell v. Gubbles, 2010 WL 3928198, *2-3 (C.D.Ill., Sept. 29, 2010) (awarding $500 for opening
plaintiff’s letters and reading them over the prison PA system); Lowrance v. Coughlin, 862 F.Supp. 1090, 1120
(S.D.N.Y. 1994) (awarding significant damages for repeated retaliatory prison transfers, segregation, cell searches);
Vanscoy v. Hicks, 691 F.Supp. 1336 (M.D.Ala. 1988) (awarding $50 for pretextual exclusion from religious service,
without evidence of mental anguish or suffering); see also Carr v. Whittenburg, 2006 WL 1207286, *3 (S.D.Ill.,
Apr. 28, 2006) (stating that specific First Amendment violations may be compensable through “general damages” or

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C.

What Is Physical Injury?

The PLRA does not define physical injury, and the courts have not helped much, mostly
confining themselves to the bromide that physical injury “must be more than de minimis, but
need not be significant” to satisfy § 1997e(e).1307 However, there is a square disagreement
among courts as to where the de minimis threshold is to be found.1308 One appeals court has said
that injury need not be observable, diagnosable, or requiring treatment by a medical care
professional to meet the § 1997e(e) standard.1309 More recently, that court has held that a
complaint of constant cell illumination which caused migraine headaches, disorientation, and
inability to sleep was not about mental or emotional injury but “various forms of physical injury
and discomfort,” and thus was actionable notwithstanding § 1997(e).1310 But a much-cited
district court decision holds that under § 1997e(e) and the de minimis standard:
A physical injury is an observable or diagnosable medical condition requiring
treatment by a medical care professional. It is not a sore muscle, an aching back, a
scratch, an abrasion, a bruise, etc., which lasts even up to two or three weeks. . . .
[It is] more than the types and kinds of bruises and abrasions about which the
Plaintiff complains. Injuries treatable at home and with over-the-counter drugs,
heating pads, rest, etc., do not fall within the parameters of 1997e(e).1311
“presumed damages” even without proof of injury, though damages cannot be recovered based on the abstract value
or importance of the right).
1307
Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999); accord, Mitchell v. Horn, 318 F.3d 523, 535-36 (3d Cir.
2003); Oliver v. Keller, 289 F.3d 623, 626-27 (9th Cir. 2002); Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir.
1999), vacated in part and reinstated in part on reh'g, 216 F.3d 970 (11th Cir. 2000) (en banc); Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997); see Barns v. Butch, 2013 WL 1000317, *4 (M.D.Ga., Feb. 22, 2013) (rejecting
argument that injury must be “substantial” under § 1997e(e)), report and recommendation adopted, 2013 WL
991499 (M.D.Ga., Mar. 13, 2013), adhered to, 2013 WL 1932725 (M.D.Ga., May 8, 2013).
1308
There is also disagreement about where it comes from. One circuit purported to derive it from the Eighth
Amendment analysis of use of force in Hudson v. McMillian, 503 U.S. 1 (1992); others have said that this approach
misreads Hudson. See Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (summarizing controversy). The
difference appears mainly relevant to interpretation of the Eighth Amendment rather than of § 1997e(e). But see
Stewart v. Cain, 2012 WL 3230442, *4-5 (M.D.La., July 6, 2012) (suggesting recent Supreme Court Eighth
Amendment jurisprudence clarifying the de minimis standard may overrule decisions applying it to § 1997e(e)),
report and recommendation approved, 2012 WL 3230416 (M.D.La., Aug. 6, 2012).
1309
Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002); accord, Lamb v. Hazel, 2013 WL 1411239, *9 (W.D.Ky.,
Apr. 8, 2013) (holding injury “can be more than de minimis even though it did not result in a need for medical
treatment”); Wagner v. Hartley, 2013 WL 1191231, *8-9 (D.Colo., Mar. 22, 2013) (holding allegations of injuries
not reflected in medical records can satisfy § 1997e(e)); Armer v. Marshall, 2011 WL 2580359, *7 (W.D.Ky., June
28, 2011) (holding allegation of injury need not be corroborated by other evidence than plaintiff’s testimony);
Mansoori v. Shaw, 2002 WL 1400300, *4 (N.D.Ill., June 28, 2002) (stating that injury need not be shown by
objective evidence). Another court has rejected an effort to read “long-term” into the physical injury requirement.
Glenn v. Copeland, 2006 WL 1662921, *4 (N.D.Fla., June 9, 2006) (“Presumably . . . any physical injury, even if
short-term, is sufficient” to meet the statutory threshold.). But see Brown v. Simmons, 2007 WL 654920, *6
(S.D.Tex., Feb. 23, 2007) (holding burns on face that “healed well” and “had no lasting effect” did not satisfy the
statute).
In Lamb v. Hazel, supra, the court held that an allegation of physical injury sufficient to satisfy § 1997e(e)
does not put the plaintiff’s medical condition at issue so as to require production of his medical records (though
failure to produce them may preclude him from arguing he sustained more than a de minimis injury). 2013 WL
1411239, *9.
1310
Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014).
1311
Luong v. Hatt, 979 F.Supp. 481, 485-86 (N.D.Tex. 1997); Hunter v. Clark, 2013 WL 3049085, *7, 9 (E.D.Tenn.,
June 17, 2013) (holding injuries plaintiff described as “a little bruising” as de minimis; citing Luong), judgment

289

Not surprisingly given this divergence, a number of courts have dismissed identifiable
traumatic injuries as de minimis,1312 while others have held that relatively superficial traumatic
injuries are actionable under § 1997e(e).1313
affirmed, No. 13-5925 (6th Cir., Jan. 8, 2014). But see Pierce v. County of Orange, 526 F.3d 1190, 1224 (9th Cir.)
(“Our court has rejected as overly restrictive the standard for de minimis injuries espoused by the Northern District
of Texas in Luong v. Hatt. . . .”; noting that bedsores and bladder infections resulting from inadequate
accommodation of paraplegic’s disabilities met Luong standard), cert. denied, 555 U.S. 1031 (2008); accord, Moncl
ova-Chavez v. McEachern, 2011 WL 39118, *6 (E.D.Cal., Jan. 5, 2011) (holding significant bruises, weakness and
numbness in shoulder and aggravation of prior injuries were not de minimis under Pierce), report and
recommendation adopted, 2011 WL 976476 (E.D.Cal., Mar. 17, 2011); Phipps v. Sheriff of Cook County, 681
F.Supp.2d 899, 910-11 (N.D.Ill. 2009) (bedsores, infections, and injuries from falls alleged by wheelchair-using
plaintiffs were not rendered de minimis by the argument that such injuries are typical for wheelchair users in and out
of jail).
1312
See, e.g., Eason v. Frye, 2013 WL 5278134, *7 (S.D.Miss., Sept. 18, 2013) (holding dog bite requiring medical
treatment was de minimis); Parker v. Dubose, 2013 WL 4735173, *2 (N.D.Fla., Sept. 3, 2013) (holding alleged
black eye, bloody lip, scrapes, abrasion and “chronic backpains” were de minimis); Shain v. Grayson County, Ky.,
2011 WL 5122667, *4 (W.D.Ky., Oct. 28, 2011) (holding red and swollen hands from handcuffs and black box de
minimis); Jones v. Cowens, 2010 WL 3239286, *2-3 (D.Colo., Aug. 12, 2010) (holding “deep red grooves” from
handcuffs de minimis); Hodge v. Williams, 2009 WL 111565, *3 (N.D.Tex., Jan. 16, 2009) (cuts on hands, inside
lip, and sore neck were de minimis), aff’d, 343 Fed.Appx. 979 (5th Cir. 2009); Silguero v. Acheson, 2009 WL
56341, *2 (N.D.Tex., Jan. 9, 2009) (allegation that foot was swollen, cut, and bruised for at least a week were de
minimis); Carr v. Horton, 2008 WL 4391156, *1 (N.D.Tex., Sept. 29, 2008) (plaintiff alleged lacerations of fingers,
permanent scarring, and “immediate loss” of two fingernails; court cited nurse’s observation of small superficial
lacerations and declared it de minimis); Griggs v. Horton, 2008 WL 833091, *1 (N.D.Tex., Mar. 28, 2008) (wrist
abrasion, tenderness to rib cage were de minimis); Diggs v. Emfinger, 2008 WL 544293, *4 (W.D.La., Jan. 10,
2008) (allegation of an “open wound” causing “severe pain” did not exceed the de minimis threshold), report and
recommendation rejected on other grounds, 2008 WL 516378 (W.D.La., Feb. 25, 2008); Lyons v. Leonhardt, 2007
WL 2875134, *11 (D.Nev., Sept. 27, 2007) (holding loss of circulation in hands, brief pain in shoulder, and threeday pain in pelvis from use of force was de minimis); Brown v. Simmons, 2007 WL 654920, *6 (S.D.Tex., Feb. 23,
2007) (holding facial burns that “healed well” and “had no lasting effect” did not satisfy statutory threshold); see
Appendix A for additional authority on this point.
1313
See, e.g., Bryant v. Dart, 2013 WL 5818810, *2 (N.D.Ill., Oct. 29, 2013) (holding “allegations of personal
injury, pain, lack of sleep, and a bleeding ear” sufficiently alleged physical injury); Daniels v. Sproul, 2013 WL
3964813, *2 (M.D.Ga., July 31, 2013) (holding a cut on the eye, headaches, and redness on the chest are not de
minimis even though medical records indicate plaintiff denied pain when examined); Brinson v. Jackson, 2013 WL
1180832, *1 (S.D.Ga., Mar. 20, 2013) (holding dislocated and split little finger is not de minimis); Mapp v. Mobley,
2013 WL 1945144, *2-3 (S.D.Ga., Feb. 7, 2013) (holding “a swollen eye; a hurt jaw; undefined injuries to his
shoulder, head, hand, and wrist; and headaches” satisfied § 1997e(e)), report and recommendation adopted, 2013
WL 1934000 (S.D.Ga., May 9, 2013); Williams v. Smith, 2012 WL 5987554, *6 (W.D.Ark., Oct. 31, 2012)
(holding pepper spraying and push into cell wall actionable for compensatory damages, awarding $1.00 and $500
respectively), report and recommendation adopted, 2012 WL 5987575 (W.D.Ark., Nov. 29, 2012); D'Attore v. New
York City Dept. of Correction, 2012 WL 4493977, *2, 15 (S.D.N.Y., Sept. 27, 2012) (holding plaintiff’s testimony
about severe pain resulting from being punched and shoved barred summary judgment under § 1997e(e) in a case
where a jail doctor found no apparent injury and prescribed Tylenol), report and recommendation adopted, 2012
WL 5951317 (S.D.N.Y., Nov. 28, 2012); Pettigrew v. Zavares, 2012 WL 1079445, *9 (D.Colo., Jan. 23, 2012)
(allegation of cut ankles from shackles satisfied § 1997e(e)), report and recommendation adopted, 2012 WL
1079342 (D.Colo., Mar. 30, 2012), order amended and superseded on other grounds, 2012 WL 1090181 (D.Colo.,
Apr. 2, 2012); Hart v. Bell, 2011 WL 1584601, *5-6 (M.D.Tenn., Apr. 27, 2011) (allegation of “visible and
documented” injuries to wrists, and that injuries were significant enough that x-rays of wrists and jaw were ordered,
satisfied § 1997e(e)), report and recommendation adopted, 2011 WL 2078084 (M.D.Tenn., May 26, 2011); Easley
v. Haywood, 2011 WL 799795, *3 (S.D.Ohio, Mar. 2, 2011) (rejecting claim that “two small cuts do not make out a
federal case” where officer’s affidavit indicated plaintiff hit the cement floor at least twice, and medical records
indicated he continued to complain of pain in back, rib cage, and shoulder for a month), report and recommendation
adopted, 2011 WL 799795 (S.D.Ohio, Mar. 2, 2011); Myers v. TransCor America, LLC, 2010 WL 3619831, *10,

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Most courts to consider the question have held that self-inflicted injuries may also satisfy
§ 1997e(e).1314
A de minimis standard does not address the qualitative question of what a physical injury
is, resulting in a lack of general criteria for assessing borderline cases short of visible traumatic
tissue damage. For example, what about sexual assault, which may not result in such injury? 1315
Most courts, including the Second Circuit, have found significant sexual abuse (i.e., more than
groping or verbal conduct) to satisfy § 1997e(e), but few have done much to explain why,1316 and
at least one court has reached the opposite conclusion.1317
*19 (M.D.Tenn., Sept. 9, 2010) (swelling, bruising, numbness, bruising, scarring, and cuts from protracted restraint
during transportation were more than de minimis), report and recommendation adopted, 2010 WL 3824083
(M.D.Tenn., Sept. 30, 2010); see Appendix A for additional authority on this point.
1314
Hinton v. Mark, 544 Fed.Appx. 75, 76 n.2 (3d Cir. 2013) (unpublished) (holding suicide attempt by overdose of
pills resulting in two days’ hospitalization satisfied § 1997e(e)); Arauz v. Bell, 307 Fed.Appx. 923, 929 (6th Cir.
2009) (unpublished) (allegation of attempted suicide satisfies statute. “By definition, attempting suicide involves
hurting oneself, and we can presume the existence of some physical injury from Arauz's statement that he attempted
to commit suicide.”); Proctor v. Felker, 2009 WL 4828739, *3 (E.D.Cal., Dec. 9, 2009) (same as Arauz); Scarver v.
Litscher, 371 F.Supp.2d 986, 997-98 (W.D.Wis. 2005) (citing self-inflicted overdose of Thorazine and self-inflicted
razor cut in holding prisoner with mental illness had alleged physical injury), aff’d on other grounds, 434 F.3d 972
(7th Cir. 2006). This proposition may appear self-evident, but some courts have held that risk of self-inflicted injury
does not satisfy the “imminent danger of serious physical injury” requirement of 28 U.S.C. § 1915(g). See n. 1627,
below. Contra, Alajemba v. Rutherfod County Adult Detention Center, 2012 WL 1514878, *7 (M.D.Tenn., May 1,
2012) (holding prisoner with mental illness who was placed in segregation and was injured “from cutting myself and
smashing my head against concrete” failed to show “physical injuries caused by alleged wrongs committed by the
defendant,” without explaining or citing authority for such a requirement).
1315
Some such assaults do cause injury, of course. See Brown v. Riley, 2010 WL 3069490, *10 (M.D.Fla., Aug. 4,
2010) (noting plaintiff “cleaned up the blood” afterwards, and assailant later physically attacked him again; holding
§ 1997e(e) inapplicable).
1316
See Kahle v. Leonard, 563 F.3d 736, 741-42 (8th Cir. 2009) (noting district court’s finding of “sufficient
showing of physical injury” in sexual abuse case, approving jury instruction to assess nature and extent of injury if
jury found liability); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (holding “alleged sexual assaults,” also
described as “intrusive body searches,” “qualify as physical injuries as a matter of common sense” and “would
constitute more than de minimis injury”); Castillo v. Bobelu, ___ F.Supp.2d ____, 2014 WL 798014, *17
(W.D.Okla., Feb. 27, 2014) (holding rape is a physical injury; citing Liner v. Goord); Cleveland v. Curry, 2014 WL
690846, *6-7, 13 (N.D.Cal., Feb. 21, 2014) (holding sexual assaults consisting of grabbing and squeezing prisoners’
genitals were more than de minimis, or alternatively that § 1997e(a) is inapplicable to claims of “repeated and
pervasive” sexual abuse; awarding compensatory damages); Lefebvre v. Pallito, 2012 WL 7198435, *8 (D.Vt., Dec.
17, 2012) (stating “despite the omission of specific references to physical injuries suffered from the assaults,
Plaintiff's allegation of sexual assault constitutes sufficient ‘physical injury’ as contemplated by the PLRA”), report
and recommendation adopted in part, rejected in part, 2013 WL 682741 (D.Vt., Feb. 25, 2013); Solliday v. Spence,
2009 WL 559526, *11-12 & n. 16 (N.D.Fla., Mar. 2, 2009) (sexual assault was not barred because it was “repugnant
to the conscience of mankind”; citing Liner); Duncan v. Magelessen, 2008 WL 2783487, *2 (D.Colo., July 15,
2008) (“unwanted sexual contact, alone, is a physical injury for which there may be compensation”); Knight v.
Simpson, 2008 WL 1968770, *3 n.6 (M.D.Pa., Apr. 3, 2008) (stating sexual assault plaintiff alleged physical injury;
no explanation), report and recommendation adopted in pertinent part, 2008 WL 1968762 (M.D.Pa., May 2, 2008);
Boxer X v. Harris, 2007 WL 1731436, *2 (S.D.Ga., June 4, 2007) (declining to dismiss claim that officer required
prisoner to masturbate for her, citing his argument that “masturbation can be painful when performed unwillingly”),
referred, 2007 WL 1812631, *2 (S.D.Ga., June 18, 2007); Kemner v. Hemphill, 199 F.Supp.2d 1264, 1270
(N.D.Fla. 2002) (holding that sexual assault, “even if considered to be de minimis from a purely physical
perspective, is plainly ‘repugnant to the conscience of mankind.’ Surely Congress intended the concept of ‘physical
injury’ in § 1997e(e) to cover such a repugnant use of physical force.”); Marrie v. Nickels, 70 F.Supp.2d 1252, 1264
(D.Kan.1999) (“sexual assaults would qualify as physical injuries under § 1997e(e)”; citing “common sense”
holding of Liner v. Goord, supra); Nunn v. Michigan Dept. of Corrections, 1997 WL 33559323, *4 (E.D.Mich.

291

This question has now been pre-empted at least in large part by amendments to the
Violence Against Women Act,1318 which added the phrase “or the commission of a sexual act (as
defined in section 2246 of title 18)” to the end of 42 U.S.C. § 1997e(a) and 28 U.S.C. § 1346(b).
The incorporated definition is quite specific, defining sexual act as:
(A) contact between the penis and the vulva or the penis and the anus, and for
purposes of this subparagraph contact involving the penis occurs upon
penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the
mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a
hand or finger or by any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person; . . .
1997); see also Ayala v. Dhaliwal, 2013 WL 957590, *5 (D.Or., Mar. 11, 2013) (holding allegation of sexual
touching resulting in nausea, headaches, insomnia, chest pain, and heart palpitations satisfied § 1997e(e)); Pearson
v. Pasha, 2011 WL 3841807, *5 (D.Mont., June 2, 2011) (holding allegation that guard painfully squeezed genitals
was “repugnant to the conscience of mankind” and not de minimis), report and recommendation adopted, 2011 WL
3841969 (D.Mont., Aug. 30, 2011); Connors v. Northern State Prison, 2009 WL 1562240, *4 n.2 (D.N.J., May 28,
2009) (stating rectal examination performed harshly and with “discriminatory remarks” could be sufficiently
“repugnant to the conscience of mankind” to satisfy the statute); Ogden v. Chesney, 2003 WL 22225763 (E.D.Pa.,
Sept. 17, 2003) (holding plaintiff’s allegation that “prison officials allowed a drug dog to sniff and lick his genitals
during a strip search” was sufficient to withstand summary judgment).
1317
Hancock v. Payne, 2006 WL 21751, *1, 3 (S.D.Miss., Jan. 4, 2006) (holding prisoners who alleged they were
“sexually battered . . . by sodomy” did not satisfy § 1997e(e)).
Numerous decisions hold that allegations of sexual harassment short of actual penetrative or oral sex do not
satisfy § 1997e(e). See Ware v. Tanner, 2013 WL 5589506, *7 (E.D.La., Oct. 10, 2013) (holding plaintiff who
alleged only “a de minimis offensive touching of his penis” without allegation of physical injury could not proceed
under § 1997e(e)); Solomon v. Michigan Dept. of Corrections, 2011 WL 4479407, *1 (W.D.Mich., Sept. 27, 2011)
(staff member’s grabbing plaintiff’s penis, and pressing his erection against plaintiff’s buttocks, were not physical
injury); Etters v. Bennett, 2011 WL 976472, *6 (E.D.N.C., Mar. 16, 2011) (allegations of sexual abuse short of rape
did not satisfy § 1997e(e)), appeal dismissed, 444 Fed.Appx. 686 (4th Cir. 2011) (unpublished); Thomas v.
Komjathy, 2010 WL 5855979, *2 (W.D.Mich., Nov. 4, 2010) (allegation that nurse “grabbed” plaintiff’s penis did
not satisfy § 1997e(e)), report and recommendation adopted, 2011 WL 689982 (W.D.Mich., Feb. 16, 2011);
Morgan v. Downing, 2010 WL 5211483, *2 (E.D.N.C., Dec. 16, 2010) (“poking at” penis during search did not
satisfy § 1997e(e)); McGregor v. Jarvis, 2010 WL 3724133, *4 (N.D.N.Y., Aug. 20, 2010) (non-forcible sexual
activity did not satisfy § 1997e(e)), report and recommendation adopted, 2010 WL 3724131 (N.D.N.Y., Sept. 16,
2010); see Appendix A for additional authority on this point; see also Carrington v. Easley, 2011 WL 2119421, *1, 3
(E.D.N.C., Feb. 8, 2011) (holding allegation that staff member took prisoner into a closet for an alleged strip search
and attempted to perform oral sex on him, and was pushed away by the prisoner, constituted a physical injury under
§ 1997e(e), but that without a further showing of physical injury he was limited to nominal and punitive damages),
report and recommendation adopted as modified, 2011 WL 2132850 (E.D.N.C., May 25, 2011) (awarding $5,000 in
punitive damages). But see Ayala v. Dhaliwal, 2013 WL 957590, *5 (D.Or., Mar. 11, 2013) (holding sexual
touching resulting in “nausea, headaches, insomnia, chest pain, and heart palpitations” sufficiently alleged non-de
minimis physical injury). Non-physical sexual harassment is, of course, not physical injury. Cox v. Prather, 2012
WL 5472023, *4 (W.D.Ky., Nov. 9, 2012); Noland v. McCoy, 2012 WL 3027541, *3 (E.D.Ky., July 23, 2012)
(sexual gesture and threats); Black v. Talbott, 2011 WL 1435202, *5 (W.D.Mich., Apr. 14, 2011); Murray v.
Mancuso, 2010 WL 677789, *5 (W.D.La., Feb. 24, 2010); Gillespie v. Smith, 2007 WL 2002724, *1, 4 (N.D.Iowa,
July 3, 2007); Maxton v. Quick, 2007 WL 1486142, *3 (D.S.C., May 18, 2007).
1318
Pub.L. No. 113-12, 127 Stat. 54, § 1101 (Sexual Abuse in Custodial Settings).

292

Thus, under the VAWA amendments, anal, vaginal and oral sex are actionable for compensatory
damages. Manual or other non-penetrative sexual touching of another person, compelled or
otherwise, is not, except for intentional, unclothed touching of persons under 16 years old; nor
are acts involving the touching of breasts.1319 Nor does the amendment include cases in which
prisoners are compelled or persuaded to perform sexual acts or displays for the titillation of
others, or are subjected to sexual displays by staff.1320.
Since the VAWA amendments except certain sexual acts from the coverage of the
mental/emotional injury provisions, presumably other sexual acts remain compensable in
damages if they satisfy the physical injury requirement. (The statutory language does not
support an argument that other sexual acts are excluded from compensation to a greater extent
than under prior law.)
There are many other scenarios not involving visible tissue damage. Some, but not all,
courts have found the requirement satisfied by:


loss of consciousness;1321



physiological disturbances resulting from medication withdrawal, overdose, or
error;1322

1319

The decision in Snow v. List, 2013 WL 3465276, *2 (C.D.Ill., July 10, 2013), erroneously states that the
definition appears to include the “intentional touching . . . of the breast, . . . with an intent to abuse humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.” That language appears in the statutory definition of
sexual contact, 18 U.S.C.A. § 2246(3), rather than the definition of sexual act, found in 18 U.S.C.A. § 2246(2).
1320
Martin v. Byars, 2014 WL 298682, *3 (D.S.C., Jan. 28, 2014) (holding allegations that staff members
masturbated outside plaintiff’s cell did not satisfy § 1997e(e) since they amounted neither to a “sexual act” under the
statute nor to physical injury).
1321
Waggoner v. Comanche County Detention Center, 2007 WL 2068661, *4 (W.D.Okla., July 17, 2007) (holding
plaintiff rendered unconscious by a shock shield after being pepper-sprayed, shaken, and punched sufficiently
supported a claim of physical injury). But see Owens v. U.S., 2012 WL 6057126, *2, 6 (E.D.N.C., Dec. 6, 2012)
(holding transitory episode of dizziness and general weakness, including loss of consciousness, following
deprivation of blood pressure medication, was de minimis where plaintiff resumed normal activities including
exercise the next day).
1322
Hinton v. Mark, 544 Fed.Appx. 75, 76 n.2 (3d Cir. 2013) (holding plaintiff who attempted suicide by overdose
of pills and was hospitalized for two days satisfied § 1997e(e)); Campbell v. Gause, 2011 WL 825016, *7
(E.D.Mich., Feb. 1, 2011) (holding allegations that “‘psychological and mental anguish’” depression, and anxiety
attacks were brought about by the pysical symptoms of chest pains, spiked blood pressure, broncospasms, migraine
headaches, and dizziness resulting from Defendants' confiscation of his prescriptions” [sic] sufficed at the pleading
stage), report and recommendation adopted, 2011 WL 837737 (E.D.Mich., Mar. 4, 2011); May v. Jones, 2009 WL
4793031, *1 (M.D.Pa., Dec. 7, 2009) (citing deprivation of medication for migraine headaches resulting in “pain,
vomiting, loss of appetite, light sensitivity and an inability to sleep”); Shelley v. Hepp, 2009 WL 483161, *2-3
(W.D.Wis., Feb. 25, 2009) (citing allegation that discontinuation of psychotropic medications resulted in severe
headaches and “physiological changes”); Scarver v. Litscher, 371 F.Supp.2d 986, 997-98 (W.D.Wis. 2005) (citing
self-inflicted overdose of Thorazine as well as self-inflicted razor cut in holding prisoner with mental illness had
alleged physical injury), aff’d on other grounds, 434 F.3d 972 (7th Cir. 2006); Ziemba v. Armstrong, 2004 WL
78063, *3 (D.Conn., Jan. 14, 2004) (holding that allegation of withdrawal, panic attacks, pain similar to a heart
attack, difficulty breathing and profuse sweating, resulting from withdrawal of psychiatric medication, met the
physical injury requirement); Wolfe v. Horn, 2001 WL 76332, *10 (E.D.Pa., Jan. 29, 2001) (holding physical
consequences of withdrawal of hormone treatment to a pre-operative transsexual met physical injury requirement);
see also Holmes v. Dalrymple, 2013 WL 5754944, *4 (S.D.Ga., Oct. 23, 2013) (holding allegation that method of
medication administration “caused chest pains, stomach illnesses, blisters, and swelling in his throat” presented a

293



the consequences of illness or failure to treat illness or injury, both immediate1323
and longer-term or prospective;1324



denial of adequate or appropriate food;1325

“close question” under § 1997e(e).”) But see Johnson v. Rawers, 2008 WL 752586, *5 (E.D.Cal., Mar. 19, 2008)
(claim that medications were administered in a crushed form, causing plaintiff to feel depressed, anxious, nauseous,
and paranoid, did not satisfy the statute), report and recommendation adopted, 2008 WL 2219307 (E.D.Cal., May
27, 2008); Robinson v. Johnson, 2008 WL 394977, *5 (E.D.Ark., Feb. 12, 2008) (allegation that plaintiff was forced
to have an unnecessary PPD, which made his arm hurt, and take a second course of INH treatment, did not constitute
injury); see Appendix A for additional authority on this point.
1323
See Perez v. U.S., 330 Fed.Appx. 388, 389-90 (3d Cir. 2009) (unpublished) (holding claim of untreated asthma
attack resulting in “dizziness, headaches, weakness, back pain, and nausea,” which required steroids, prescription
medication, and other medical treatment to recover, presented a material issue of fact under the de minimis
standard); Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir. 2006) (holding claim of headaches, cramps, nosebleeds,
and dizziness resulting from deprivation of blood pressure medication “does not fail . . . for lack of physical
injury”); McGarry v. Pallito, 2013 WL 3338682, *6-7 (D.Vt., July 2, 2013) (holding persistent MRSA infection
finally requiring surgery satisfied § 1997e(e)); Al-Turki v. Ballard, 2013 WL 589174, *14-15 (D.Colo., Feb. 14,
2013) (holding claim of failure to assess prisoner suffering from kidney stones satisfied § 1997e(e); “Pain alone may
be considered a mental or emotional injury, but physical pain accompanied by physical effects necessitating medical
treatment have been held to satisfy the physical injury requirement under the PLRA.”); McConnell v. Cirbo, 2012
WL 3590762, *11 (D.Colo., Apr. 24, 2012) (holding complaint of dizziness resulting from injuries sustained in a fall
goes “beyond mere physical pain” and satisfies § 1997e(e)), report and recommendation adopted, 2012 WL
3590760 (D.Colo., Aug. 20, 2012); Morris v. Levi, 2011 WL 1936778, *8 (E.D.Pa., Apr. 21, 2011) (holding
allegations of repeated “dizziness, sharp chest pains, increased heart rate, and blacking out,” which plaintiff's expert
associated with plaintiff's hypertophic cardiomyopathy, satisfied § 1997e(e)), report and recommendation adopted,
2011 WL 1938149 (E.D.Pa., May 20, 2011); Hayes v. Byrd, 2011 WL 1575277, *6 (E.D.Ark., Feb. 25, 2011)
(holding prisoner who had “considerable pain over a period of several months, had bleeding and swollen gums, and
ultimately had at least two teeth extracted” as a result of denial of dental care met the physical injury requirement),
report and recommendation adopted in pertinent part, rejected in part on other grounds, 2011 WL 1561062
(E.D.Ark., Apr. 26, 2011); see Appendix A for additional authority. But see Owens v. U.S., 2012 WL 6057126, *2,
6 (E.D.N.C., Dec. 6, 2012) (holding dizziness, weakness, and loss of consciousness following deprivation of blood
pressure medication de minimis; distinguishing Perez v. U.S. based on transitoriness of symptoms); Broadnax v.
Escambia County Main Jail, 2012 WL 5457221, *2 (N.D.Fla., Oct. 9, 2012) (holding allegation of staph infection
“without more” does not show more than de minimis injury), report and recommendation adopted, 2012 WL
5457211 (N.D.Fla. Nov. 8, 2012); Tuft v. Chaney, 2007 WL 3378347, *3 (S.D.Tex., Nov. 9, 2007) (holding
complaints of “generalized ‘fatigue’ and ‘stress’” resulting from MRSA and Hepatitis C were not physical injuries);
Williams v. Caruso, 2007 WL 2710109, *7-8 (E.D.Mich., Sept. 13, 2007) (holding pain and suffering resulting from
failure to provide a diet necessitated by kidney disease was not compensable); Mitchell v. Valdez, 2007 WL
1228061, *2 (N.D.Tex., Apr. 25, 2007) (holding chronic headaches causing extreme pain do not meet physical
injury requirement); Giddings v. Valdez, 2007 WL 1201577, *3 (N.D.Tex., Apr. 24, 2007) (holding pain from two
months’ lack of treatment for a degenerative joint disease did not satisfy the physical injury requirement); Olivas v.
Corrections Corp. of America, 408 F.Supp.2d 251, 254, 259 (N.D.Tex. 2006) (pain resulting from delay in treatment
of broken teeth with exposed nerve, reported as 10 on a scale of 1 to 10, did not meet physical injury requirement).
1324
Young v. Beard, 2007 WL 1549453, *4 (W.D.Pa., May 22, 2007) (holding allegation that plaintiff sought
damages for present and future injury from denial of cholesterol medication, and of testing of blood pressure,
diabetes, and cholesterol more often than every six months, sufficed at the pleading stage), vacated on other
grounds, 2007 WL 2012604 (W.D.Pa., July 3, 2007); Mejia v. Goord, 2005 WL 2179422, *5 (N.D.N.Y., Aug. 16,
2005) (denying summary judgment where prisoner was denied a low fat diet for potentially debilitating coronary
condition); Perkins v. Kansas Dept. of Corrections, 2004 WL 825299, *4 n.2 (D.Kan., Mar. 29, 2004) (holding
allegation of progression of HIV infection met physical injury standard). But see Cotter v. Dallas County Sheriff,
2006 WL 1652714, *3-4 (N.D.Tex., June 15, 2006) (holding staphylococcus exposure and a “dormant” staph
infection were de minimis).
1325
Thompson v. Secretary, Florida Dept. of Corrections, ___ Fed.Appx. ____, 2014 WL 115682, *1-2 (11th Cir.
2014) (unpublished) (holding allegations of “headaches, weakness, cold sweats, dizziness, weight loss, numbness in

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

food contamination or poisoning;1326



muscle atrophy from denial of exercise;1327

his left arm, and high blood sugar that caused fainting” represented more than de minimis physical injury since they
constituted “continuing severe physical pain and other symptoms that persisted for an extended period of time and
required medical treatment”); Nelson v. Jackson, 2014 WL 197877, *14-15 (S.D.Ohio, Jan. 15, 2014) (“An inmate's
diet and weight loss may, under some circumstances, constitute an actionable physical injury.”), report and
recommendation adopted, 2014 WL 558710 (S.D.Ohio, Feb. 13, 2014); Little v. Jones, 2012 WL 1068877, *7
(E.D.Okla., Mar. 29, 2012) (allegations of weight loss resulting from failure to provide sufficient food consistent
with plaintiff’s religious beliefs barred summary judgment on compensatory damages); Ward v. ARAMARK
Corrections Food Service, 2011 WL 1542108, *3-4 (W.D.Ky., Apr. 22, 2011) (allegation of weight loss, reflux,
constant hunger and intestinal problems satisfied physical injury requirement at pleading stage); Shirley v. Sternal,
2010 WL 6020684, 10 (S.D.Fla., Aug. 30, 2010) (allegation of vegan diet that was not nutritionally adequate and
failed to address his food allergy, and resulted in 40-pound weight loss over six months plus symptoms including
headache, light-headedness, swollen legs, constipation, upset stomach, nausea, and depression, was not de minimis),
report and recommendation adopted, 2011 WL 855273 (S.D.Fla., Mar. 9, 2011); Shepard v. Alvarez, 2009 WL
1872016, *8-9 (S.D.Fla., May 21, 2009) (evidence of 40-pound weight loss from inadequate food raised material
factual issue as to physical injury); Williams v. Humphreys, 2005 WL 4905109, *7 (S.D.Ga., Sept. 13, 2005)
(holding allegation of 12 pounds weight loss, abdominal pain, and nausea resulting from denial of pork substitute at
meals sufficiently alleged physical injury); see Patch v. Arpaio, 2010 WL 432354, *10 (D.Ariz., Feb. 2, 2010)
(allegation of weight loss from inedible food could not be dismissed as not a physical injury without medical
evidence). But see Davis v. District of Columbia, 158 F.3d 1342, 1394 (D.C.Cir. 1998) (holding weight loss
resulting from disclosure of HIV-positive status did not meet the physical injury standard); Pittman-Bey v. Clay,
2012 WL 4513840, *8 (S.D.Tex., Sept. 19, 2012) (holding allegation of being “weak, tired, and dizzy” and unable to
sleep from missing evening meals during Ramadan was de minimis), report and recommendation adopted in part,
rejected in part on other grounds, 2013 WL 797415 (S.D.Tex., Mar. 4, 2013), aff’d, ___ Fed.Appx. ____, 2014 WL
575910 (5th Cir. 2014); Price v. Jones, 2012 WL 1854299, *4 (S.D.Ohio, May 21, 2012) (holding claim of being
“stressed out and depressed from being hungry” did not meet physical injury standard), report and recommendation
adopted, 2012 WL 2269265 (S.D.Ohio, June 18, 2012); Gribben v. McDonough, 2012 WL 1463542, *4 (N.D.Fla.,
Apr. 26, 2012) (plaintiff’s weight loss “reflects simply a somatic manifestation of emotional distress”); Boyd v.
Wright, 2011 WL 1790347, *2 (C.D.Ill., May 10, 2011) (complaint of cramps, diarrhea, fatigue, and constipation
resulting from diet were speculative, and would be de minimis even if connection were shown); see Appendix A for
additional authority on this point.
1326
Carter v. U.S., 2012 WL 2115343, *2 (M.D.Pa., June 11, 2012) (holding allegation that plaintiff became
“violently ill” and “suffered food poisoning resulting in gastritis, gastroduodenitis, and gastroenteritis,” and that he
was confined to bed “for not-less-than three (3) days” satisfied Federal Tort Claims Act physical injury
requirement), order vacated on other grounds, 2013 WL 1149247 (M.D.Pa., Mar. 19, 2013); Bond v. Rhodes, 2006
WL 1617892, *3 (W.D.Pa., June 8, 2006) (holding allegation of serious diarrhea resulting from food tampering
satisfied the requirement at the pleading stage); Young v. Medden, 2006 WL 456274, *20 (E.D.Pa., Feb. 23, 2006)
(holding allegation that prison staff put substances in prisoner’s food that made him urinate constantly “arguably
demonstrate more than de minimis physical injury”); Gil v. U.S., 2006 WL 385088, *3 (M.D.Fla., Feb. 17, 2006)
(awarding “intangible damages for pain and suffering, inconvenience, and loss of capacity for enjoyment of life” to
prisoner who suffered food poisoning from tainted food). But see Ward v. ARAMARK Corrections Food Service,
2012 WL 1833312, *4 (W.D.Ky., May 18, 2012) (holding evidence of weight loss, which was not substantial or
sustained; gastric reflux, treated with OTC medications; and stomach discomfort and gurgling were de minimis);
Zerby v. McNeil, 2010 WL 5019232, *2 (N.D.Fla., Nov. 2, 2010) (holding stomach pains and diarrhea from rotten
and contaminated food was de minimis), report and recommendation adopted, 2010 WL 5014355 (N.D.Fla., Dec. 3,
2010); Mayes v. Travis State Jail, 2007 WL 1888828, *4-5 (W.D.Tex., June 29, 2007) (holding diarrhea allegedly
caused by spoiled food was de minimis); Watkins v. Trinity Service Group Inc., 2006 WL 3408176, *4 (M.D.Fla.,
Nov. 27, 2006) (holding diarrhea, vomiting, cramps, nausea, and headaches from food poisoning were de minimis;
noting a free person would not have to visit an emergency room or go to a doctor because of them); Cotter v. Dallas
County Sheriff, 2006 WL 1652714, *3-4 (N.D.Tex., June 15, 2006) (holding two incidents of vomiting and diarrhea
were de minimis).

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

exposure to harmful substances;1328



infliction of pain or illness through extreme conditions of confinement1329 or
physical abuse;1330

1327

Doolittle v. Holmes, 306 Fed.Appx. 133, 134 (5th Cir. 2009) (unpublished) (allegation of muscle atrophy
sufficiently pled physical injury); Anderson v. Colorado, Dept. of Corrections, 848 F.Supp.2d 1291, 1298 (D.Colo.,
Mar. 26, 2012) (allegation of muscle weakness from lack of exercise sufficed at summary judgment stage); Williams
v. Goord, 2000 WL 1051874, *8 n.4 (S.D.N.Y., July 28, 2000) (allegation of 28-day denial of exercise sufficiently
alleged physical injury). But see Sarno v. Reilly, 2013 WL 1151818, *11 (D.Colo., Jan. 17, 2013) (holding alleged
deprivation of exercise resulting in headaches, chest pains, and other physical pain was de minimis), report and
recommendation adopted, 2013 WL 1151817 (D.Colo., Mar. 20, 2013); Murray v. Raney, 2012 WL 5985543, *5
(D.Idaho, Nov. 29, 2012) (holding allegation of protracted denial of outdoor exercise should be dismissed under §
1997e(e) in the absence of allegation of resulting physical injury).
1328
Johnakin v. NYC Dept. of Corrections, 2013 WL 5519998, *18 (E.D.N.Y., Sept. 30, 2013) (holding allegations
of up to 60 days’ exposure to asbestos might support amended pleading of physical injury); Templeton v. Anderson,
2013 WL 1222111, *7 (D.Colo., Mar. 25, 2013) (holding complaint of ““[t]ightness in chest, coughing up phlegm,
shortness of breath, severe headaches and occasional blurred vision” allegedly resulting from asbestos exposure
satisfied § 1997e(e) at the pleading stage); Still v. Schmidt, 2013 WL 1091745, *7-8 (D.Alaska, Mar. 15, 2013)
(holding allegation of being struck with two cans of pepper spray and not being allowed to decontaminate satisfied §
1997e(e)); Williams v. Smith, 2012 WL 5987554, *5 (W.D.Ark., Oct. 31, 2012) (holding allegation of pepper
spraying not barred, though awarding only $1.00 damages), report and recommendation adopted, 2012 WL
5987575 (W.D.Ark., Nov. 29, 2012); Caldwell v. Herrington, 2012 WL 1070120, *2 (E.D.Tex., Jan. 31, 2012)
(declining to bar compensatory damages where plaintiff alleged he suffered blurred vision and partial blindness after
use of chemical agents), report and recommendation adopted, 2012 WL 1068527 (E.D.Tex., Mar. 28, 2012); Sauder
v. Green, 2011 WL 3608646, *6 (N.D.Fla., July 25, 2011) (holding allegation that plaintiff could not breathe and
was disoriented after pepper spraying and suffered peeling skin as a result satisfied § 1997e(e) at pleading stage),
report and recommendation adopted, 2011 WL 3607667 (N.D.Fla., Aug. 16, 2011); Hawthorne v. Cain, 2011 WL
2973690, *6 (M.D.La., June 8, 2011) (holding allegation of foot ailment, vomiting, and breathing problems resulting
from exposure to human waste satisfied § 1997e(e)), report and recommendation adopted, 2011 WL 2941308
(M.D.La., July 21, 2011); Randle v. Alford, 2011 WL 817203, *2 (E.D.Tex., Jan. 24, 2011) (holding allegation of
rashes caused by unsanitary conditions satisfied the statute at the pleading stage), report and recommendation
adopted, 2011 WL 810343 (E.D.Tex., Mar. 2, 2011); Sanchez v. Goings, 2010 WL 3701385, *1 (E.D.Tex., Aug. 3,
2010) (holding plaintiff who alleged headaches, chest pain, and a sore throat from exposure to carbon monoxide in
the aftermath of Hurricane Ike was not barred from compensatory recovery), report and recommendation adopted,
2010 WL 3701382 (E.D.Tex., Sept. 15, 2010); Enigwe v. Zenk, 2006 WL 2654985, *5 (E.D.N.Y., Sept. 15, 2006)
(declining to dismiss emotional injury claims in light of allegation of exposure to environmental tobacco smoke
resulting in dizziness, uncontrollable coughing, lack of appetite, runny eyes and high blood pressure); Caldwell v.
District of Columbia, 201 F.Supp.2d 27, 34 (D.D.C. 2001) (holding that evidence of heat exhaustion, skin rash, and
bronchial irritation from smoke inhalation met the PLRA standard; injury need not be serious or lasting). But see
Trotter v. Grimes, 2013 WL 1980257, *2 (S.D.Miss., May 13, 2013) (holding temporary eye and skin injuries from
chemical agents were de minimis); Robinson v. Tifft, 2012 WL 2675467, *2 (N.D.Fla., June 1, 2012) (holding
allegations that “chemical agents caused ‘involuntary closing and burning sensation, which blinded the Plaintiff
temporarily’ . . . do not reasonably support an inference that plaintiff suffered more than de minimis physical
injury”), report and recommendation adopted, 2012 WL 2675469 (N.D.Fla., July 6, 2012); Glover v. Haynes, 2012
WL 1202175, *8 (S.D.Ga., Mar. 21, 2012) (dismissing claim based on respiratory illnesses resulting from mold
exposure on the ground that they were “of temporary duration and treatable”), report and recommendation adopted,
2012 WL 1202170 (S.D.Ga., Apr. 10, 2012); Smith v. Leonard, 2008 WL 1912804, *6 n.7 (S.D.Tex., Apr. 28,
2008) (holding headaches, sinus problems, trouble breathing, blurred vision, irritated eyes, and fatigue resulting
from exposure to toxic mold were de minimis); Thompson v. Joyner, 2007 WL 4963007, *5 (E.D.N.C., May 29,
2007) (pepper spraying was de minimis), aff’d, 251 Fed.Appx. 826 (4th Cir. 2007); see Appendix A for additional
authority on this point; see also cases cited in nn. 1212, 1347, above, concerning asbestos exposure.
1329
Wagner v. Hartley, 2013 WL 1191231, *9 (D.Colo., March 22, 2013) (holding severe headaches resulting from
segregation conditions satisfied § 1997e(e)) (citing Murray v. Edwards County Sheriff's Dep't, 248 F. App'x 993,
995 (10th Cir. 2007)); Ellis v. LeBlanc, 2012 WL 4483810, *3 (M.D.La., Sept. 10, 2012) (holding allegation that

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

sustained deprivation of a hearing aid to a hearing-impaired prisoner.1331



stillbirth or miscarriage.1332

plaintiff was sent to work in agricultural fields and collapsed, suffering from chest pain, nausea, dizziness and
profuse sweating, and was later treated for dehydration, high blood pressure and high blood sugar, satisfied §
1997e(e)), report and recommendation approved, 2012 WL 4482572 (M.D.La., Sept. 28, 2012); Skandha v. Savoie,
811 F.Supp.2d 535, 539 (D.Mass., Aug. 18, 2011) (holding allegation that extreme cold in cell aggravated effects of
arthritis and spinal fusion surgery satisfied § 1997e(e) at the pleading stage); Denson v. Maifeld, 2011 WL 2714095,
*3-4 (D.Colo., July 13, 2011) (holding blood clots and circulatory problems resulting from segregated confinement
are physical injuries); Kershner v. Livingston, 2010 WL 3701379, *1 (E.D.Tex., Aug. 13, 2010) (holding nausea
resulting from unsanitary conditions is a physical injury, though it might prove to be de minimis), report and
recommendation adopted, 2010 WL 3701370 (E.D.Tex., Sept. 15, 2010); Torrealba v. Hogsten, 2009 WL 3242293,
*1 (M.D.Pa., Oct. 8, 2009) (holding that “panic attacks, insomnia, loss of memory and concentration, severe anxiety,
and bleeding and receding of the gums” associated with two years’ segregated confinement sufficiently alleged
physical injury); Rinehart v. Alford, 2003 WL 23473098, *2 (N.D.Tex., Mar. 3, 2003) (holding that severe
headaches and back pain, attributed by the jail nurse to bright 24-hour illumination and sleeping on a narrow bench,
sufficiently alleged physical injury); Perez G. v. Lambert, 2001 WL 34736218, *3 (D.Or., Sept. 7, 2001) (holding
that allegation of cramps, vomiting, constipation, compacted bowels and anal bleeding, resulting from confinement
in conditions so filthy the plaintiff could not eat and his subsequent denial of bathroom breaks while in restraints,
met the physical injury standard). But see Watson v. Curley, 2012 WL 6019498, *4 (W.D.Mich., Dec. 3, 2012)
(holding complaint of being held in a cold cell for 16 days did not allege physical injury); Beasley v. LeBlanc, 2012
WL 5994299, *2 (W.D.La., May 23, 2012) (holding allegation of athlete’s foot contracted from unsanitary shower
was de minimis), report and recommendation adopted, 2012 WL 5994292 (W.D.La., Nov. 30, 2012).
In Calhoun v. Hargrove, 312 F.3d 730, 735 (5th Cir. 2002), the appeals court reversed the dismissal
without a hearing of an allegation that being forced to perform medically contraindicated work caused high blood
pressure at near-stroke levels and light-headedness, and directed the district court to determine factually whether
physical injury had occurred. On remand, the court found it had not, and the appeals court affirmed. Calhoun v.
Hargrove, 2003 WL 21946425 (5th Cir., Aug. 14, 2003).
1330
Payne v. Parnell, 246 Fed.Appx. 884, 888-89, 2007 WL 2537839 (5th Cir. 2007) (unpublished) (holding that
being jabbed with a cattle prod is not de minimis); Andrade v. Christ, 2009 WL 3004575, *4 (D.Colo., Sept. 18,
2009) (holding that pain resulting from failure to treat a previously inflicted traumatic injury satisfies § 1997e(e));
Malone v. Runnels, 2009 WL 2868686, *9 (E.D.Cal., Sept. 2, 2009) (testimony that plaintiff was in pain for three
days after a blow to the head “describes an injury that is more than de minimis”), report and recommendation
adopted, 2009 WL 3164868 (E.D.Cal., Sept. 29, 2009); Kettering v. Harris, 2009 WL 508348, *26 (D.Colo., Feb.
27, 2009) (testimony that after prolonged restraint in restraint chair, plaintiff’s legs did not work properly met the
physical injury requirement), motion to amend denied, 2009 WL 1766805 (D.Colo., June 18, 2009); Lawson v. Hall,
2008 WL 793635, *5-7 (S.D.W.Va., Mar. 24, 2008) (declining to apply § 1997e(e) to allegation of “severe pain”
from being kneed); Zamboroski v. Karr, 2007 WL 541921, *5 (E.D.Mich., Feb. 16, 2007) (holding severe pain
resulting from lack of mobility during nine months in restraints, along with rashes and scarring on his arms and
inability to raise his arms over his head when released, were not de minimis); Mansoori v. Shaw, 2002 WL 1400300,
*3 (N.D.Ill., June 28, 2002) (holding alleged “tenderness and soreness,” for which plaintiff was taken to a hospital
for treatment and received a diagnosis of “chest wall injury,” met the standard); Romaine v. Rawson, 140 F.Supp.2d
204, 214 (N.D.N.Y. 2001) (holding “minor” injuries–three slaps in the face–met the PLRA standard); see Teal v.
Campbell, 2012 WL 4458387, *4 (M.D.Fla., Sept. 26, 2012) (while tasering can be de minimis, being tasered three
or four times and having a taser surgically removed was not de minimis). But see Dixon v. Toole, 225 Fed.Appx.
797, 799, 2007 WL 986910, *1 (11th Cir. 2007) (per curiam) (unpublished) (holding “mere bruising” from 17.5
hours in restraints was de minimis; prisoner actually complained of “welts”). As noted below at n. 1334, a number
of decisions have squarely held that pain by itself is not actionable under § 1997e(e).
1331
Hicks v. Anderson, 2012 WL 1415338, *14 (D.Colo., Jan. 23, 2012) (“The adjective ‘physical’ means ‘of or
relating to the body.’” (quoting Merriam–Webster's Collegiate Dictionary 935 (11th ed. 2007))), report and
recommendation adopted, 2012 WL 1414935 (D.Colo., Apr. 24, 2012) .
1332
Clifton v. Eubank, 418 F.Supp.2d 1243, 1245-51 (D.Colo. 2006). This decision treats losing one’s child and the
pain attendant upon labor and stillbirth as separately meeting the physical injury standard.

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As the footnotes indicate (i.e., those cases denoted with “But see”), there are numerous
cases where allegations of non-trivial physiological disturbances are rejected as de minimis or as
not constituting physical injury.1333 There are also decisions in which the alleged infliction of
severe physical pain is held not to satisfy the statute by itself. Indeed, some courts say so
explicitly,1334 or are careful to say that pain is actionable only in connection with other
observable physical effects.1335 These decisions raise the prospect that torture may not be
compensable as long as it is inflicted with sufficient care to leave no marks.1336 In some cases,
1333

In addition to those cases already cited, see, e.g., Hall v. Plumber Official, 2011 WL 1979721, *14 (S.D.Fla.,
Apr. 26, 2011) (stating “dehydration, severe diarrhea, gastroesophogeal reflux disease, chest pain, abdominal pain,
bleeding gums, plaque build up, depression, constant severe and unnecessary pain” were not “significant” enough to
satisfy § 1997e(e)), report and recommendation adopted, 2011 WL 1979714 (S.D.Fla., May 20, 2011), aff’d, 446
Fed.Appx. 184 (11th Cir. 2011); Taylor v. Duplechain, 2009 WL 1490836, *2 (W.D.La., May 26, 2009) (stating
chest pain and high blood pressure are merely “symptoms” and not physical injury); Darvie v. Countryman, 2008
WL 2725071, *7 (N.D.N.Y., July 10, 2008) (characterizing “anxiety, depression, stress, nausea, hyperventilation,
headaches, insomnia, dizziness, appetite loss, weight loss, etc.,” as “essentially emotional in nature”), report and
recommendation adopted, 2008 WL 3286250 (N.D.N.Y., Aug. 7, 2008); Myers v. Valdez, 2005 WL 3147869, *2
(N.D.Tex., Nov. 17, 2005) (holding “pain, numbness in extremities, loss of mobility, lack of sleep, extreme tension
in neck and back, extreme rash [and] discomfort” to be de minimis); Abney v. Valdez, 2005 WL 3147863, *2
(N.D.Tex., Oct. 27, 2005) (holding more frequent urination, near-daily migraine headaches, and itchiness and
watery eyes did not meet the physical injury requirement); Vega v. Hill, 2005 WL 3147862, *3 (N.D.Tex., Oct. 14,
2005) (holding “bad headaches, sleeplessness, dizziness,” and “feel[ing] like a ‘zombie’” to be de minimis); Mitchell
v. Horn, 2005 WL 1060658, *1 (E.D.Pa., May 5, 2005) (dismissing complaint of “severe stomach aches, severe
headaches, severe dehydration, loss of weight, severe itching, due to the inability to take his prescribed medication,
nausea, physical weakness and blurred vision,” stating that such “transitory” injuries were not contemplated by the
PLRA); see also Tate v. Lincoln County, Tenn., 2010 WL 3239281, *2 (E.D.Tenn., Aug. 16, 2010) (holding fatigue
from lack of sleep is de minimis).
1334
Jones v. Cowens, 2010 WL 3239286, *2 (D.Colo., Aug. 12, 2010) (“Physical pain, standing alone, however, is
deemed to be a de minimis injury. . . .”); Marino v. Commissioner, Maine Dept. of Corrections, 2009 WL 1150104,
*2 (D.Me., Apr. 28, 2009) (statute “requires physical injury and not physical pain”), report and recommendation
adopted, 2009 WL 1395164 (D.Me., May 18, 2009); Mitchell v. Valdez, 2007 WL 1228061, *2 (N.D.Tex., Apr. 25,
2007) (holding extreme pain from chronic headaches does not meet physical injury requirement); Calderon v.
Foster, 2007 WL 1010383, *8 (S.D.W.Va., Mar. 30, 2007) (pain, standing alone, is de minimis), aff’d, 264
Fed.Appx. 286 (4th Cir. 2008) (unpublished); Ladd v. Dietz, 2007 WL 160762, *1 (D.Neb., Jan. 17, 2007) (holding
pain resulting from placing ear medication in plaintiff’s eye was “not enough” to constitute physical injury);
Giddings v. Valdez, 2007 WL 1201577, *3 (N.D.Tex., Apr. 24, 2007) (holding pain from two months’ lack of
treatment for a degenerative joint disease did not satisfy the physical injury requirement); Clifton v. Eubank, 418
F.Supp.2d 1243, 1246 (D.Colo. 2006); Olivas v. Corrections Corp. of America, 408 F.Supp.2d 251, 254, 259
(N.D.Tex. 2006) (dismissing as de minimis pain reported as 10 on a scale of 1 to 10, resulting from delay in
treatment of broken teeth with exposed nerve).
1335
See, e.g., Al-Turki v. Ballard, 2013 WL 589174, *14-15 (D.Colo., Feb. 14, 2013) (“Pain alone may be
considered a mental or emotional injury, but physical pain accompanied by physical effects necessitating medical
treatment have been held to satisfy the physical injury requirement under the PLRA”; pain resulting from passing
kidney stones satisfied § 1997e(e)). Cf. Saenz v. Helder, 2013 WL 526074, *6 (W.D.Ark., Jan. 18, 2013) (holding
allegations of heel pain, back pain, leg cramps, and worsening arthritis are “sufficient to satisfy the physical injury
provision of the PLRA.”), report and recommendation adopted, 2013 WL 526042 (W.D.Ark., Feb. 12, 2013).
1336
That would be an apt characterization of Jarriett v. Wilson, 2005 WL 3839415 (6th Cir., July 7, 2005), in which
a prisoner’s complaint that he was forced to stand in a two-and-a-half-foot square cage for about 13 hours, naked for
the first eight to ten hours, unable to sit for more than 30 or 40 minutes of the total time, in acute pain, with clear,
visible swelling in a portion of his leg that had previously been injured in a motorcycle accident, during which time
he repeatedly asked to see a doctor. Id., *8 (dissenting opinion). The appeals court affirmed the dismissal of his
claim as de minimis on the ground that the plaintiff did not complain about his leg upon release or shortly thereafter
when he saw medical staff. Id., *4. The decision was initially published, but Westlaw has removed the opinion
from its original citation and replaced it with a note stating that it was “erroneously published.” Jarriett v. Wilson,

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courts have resolved factual issues on motion in declaring that injuries do not meet the statutory
requirement.1337
One recent appellate decision, unfortunately unpublished, represents a startling departure
from prior approaches. In Braswell v. Corrections Corp. of America,1338 a prisoner with mental
illness was left under squalid conditions, and the court simply declared them to constitute
physical injuries—taking the position, apparently, that physical conditions that violate the Eighth
Amendment are by definition physical injuries. The court stated:
Taking the facts in the light most favorable to [plaintiff, the prisoner] sustained a
number of nontrivial physical injuries as a result of CCA's failure to forcibly
remove him from his cell. According to Perry's testimony, Horton was left in a
disgustingly unsanitary cell for nine consecutive months, without a shower or an
opportunity to exercise. Perry testified that the cell was filthy, that there was mold
growing in the toilet, that the cell floor was littered with food trays, and that the
window in Horton's cell was covered, blocking out all natural sunlight.
The physical injuries Braswell alleges are similar in kind and degree to other
injuries that have been found to violate a prisoner's Eighth Amendment rights—
and a fortiori to satisfy the PLRA's “more than de minimis” physical injury
requirement. For example, this court has said that claims of excessive cold or
dampness in a prison constitute Eighth Amendment violations, without even
addressing whether such claims rise above the PLRA's de minimis standard. . . .
Likewise, a denial of exercise for an extended period of time has been held to
constitute more than a de minimis physical injury. . . . Consistent with these
cases, a claim that a prisoner has languished in a filthy and unsanitary cell for nine
consecutive months asserts more than a de minimis physical injury.1339

414 F.3d 634 (6th Cir. 2005). Similarly, in Quinlan v. Personal Transport Services Co., 329 Fed.Appx. 246, 249
(11th Cir. 2009), the plaintiff alleged that he was driven from Illinois to Florida in a transport van with no seatbelts
and inadequate ventilation, initially handcuffed, waist-chained, and leg-shackled, then placed in a cage “smaller than
a dog carrier” in which he was unable to move around or stretch; a smoky smell permeated the van, causing
difficulty breathing, and he was denied the use of his asthma inhaler. The court characterized these allegations as
“complaining of temporary chest pain, headache, and difficulty breathing while in the van; and . . . periodic episodes
of back pain. But none of these things required immediate medical attention or evidence physical injury besides
discomfort.” 329 F.Appx. at 249.
Jarriett contrasts with Payne v. Parnell, 246 Fed.Appx. 884, 888-89, 2007 WL 2537839 (5th Cir. 2007), in
which the court, referring both to § 1997e(e) and the Eighth Amendment, held that being jabbed with a cattle prod
was not de minimis, despite the lack of long-term damage, in part because it was “calculated to produce real physical
harm.” 2007 WL 2537839, *4.
1337
See, e.g., Davis v. Dretke, 2008 WL 1867145, *6 (N.D.Tex., Apr. 23, 2008) (granting summary judgment where
plaintiff alleged loss of sight in one eye and pain from tear gas, but defendants’ evidence showed no swelling or
discoloration).
1338
Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622 (6th Cir. 2011) (unpublished).
1339
Braswell, 419 Fed.Appx. at 626-27. Similarly, one district court has held that “to the extent that ‘the
developing case law in this area reflects the view that’ the ‘predicate injury’ must be ‘consistent with Eighth
Amendment jurisprudence,’ . . . having found that the Complaint adequately pleads a substantial risk of serious
harm, the Court finds that it satisfies the physical injury requirement of Section 1997e(e) as well.” Greene v. Garcia,
2013 WL 1455029, *7 (S.D.N.Y., Mar. 26, 2013). The plaintiff’s complaint was that he was mistakenly classified
as a member of the Bloods gang, exposing him to the risk of assault from other gangs, but no actual assault.

299

Aside from Braswell, what is missing from these decisions is any attempt to state general
principles, other than the relatively contentless “more than de minimis” rule, as to what the
statutory term “physical injury” means. One exception is a district court decision, similar in
approach to Braswell, which cited dictionary definitions of “physical” as “of or relating to the
body,” and of “injury” as “an act that damages, harms, or hurts: an unjust or undeserved
infliction of suffering or harm: wrong,” and held that a reasonable jury could find that the statute
satisfied by exposure to noxious odors, including those of human wastes, and “dreadful”
conditions of confinement (including inability to keep clean while menstruating, denial of
clothing except for a paper gown, and exposure to prurient ogling by male prison staff and
construction workers).1340 This expansive approach outruns the rest of the case law,1341 but other
courts have so far failed to put forward any alternative approach that is helpful in assessing cases
of physiological disturbances, disease processes, infliction of pain without visible trauma, etc.
There is an alternative statute-based approach which, if adopted, would significantly
clarify the meaning of “physical injury” and help narrow the inconsistency in results under §
1997e(e). The basic federal criminal civil rights statute, 18 U.S.C. § 242, requires a showing of
“bodily injury” in order to support a sanction of more than one year in prison.1342 That term is
not defined in the statute. However, several other federal criminal statutes define it as meaning
“(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D)
impairment of a function of a bodily member, organ, or mental faculty; or (E) any other injury to
the body, no matter how temporary.”1343 Several circuits have adopted that definition for

1340

Waters v. Andrews, 2000 WL 1611126, *7 (W.D.N.Y., Oct. 16, 2000).
See, e.g. Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003) (holding that prisoner who
vomited as a result of exposure to noxious odors in a filthy holding cell full of raw sewage suffered only a de
minimis injury, if any), cert. denied, 541 U.S. 1012 (2004); Butler v. Dale, 2013 WL 1364035, *7 (S.D.Ala., Mar.
11, 2013) (holding that defecating on oneself because of the lack of a toilet was not physical injury), report and
recommendation adopted, 2013 WL 1352147 (S.D.Ala., Apr. 3, 2013); Hooks v. Chapman, 2012 WL 6674494, *3
(D.S.C., Nov. 30, 2012) (being forced to urinate on oneself and to remain in a soiled jumpsuit for several hours did
not satisfy § 1997e(e)), report and recommendation adopted, 2012 WL 6674491, *2 (D.S.C., Dec. 21, 2012);
Ellerbe v. U.S., 2011 WL 4361617, *1-2, 5 (N.D.Ohio, Sept. 19, 2011) (being forced to defecate on oneself is de
minimis under similar physical injury provision of 28 U.S.C. § 1346(b)(2)); Garrett v. Winn Correctional Center,
2010 WL 790540, *2 (W.D.La., Mar. 2, 2010) (§ 1997e(e) applied to claim of urinating on self); Grindstaff v.
Tennessee Dept. of Correction, 2009 WL 2461772, *1 (M.D.Tenn., Aug. 12, 2009) (urinating on oneself is not
physical injury); Robinson v. Lavalais, 2008 WL 4297057, *2 (M.D.La., Sept. 16, 2008) (holding that being forced
to urinate on oneself and to remain in the soiled clothing for several hours was not physical injury), aff’d, 331
Fed.Appx. 282 (5th Cir. 2009), cert. denied, 558 U.S. 1014 (2009); Brooks v. Delta Correctional Facility, 2007 WL
2219303, *1 (N.D.Miss., July 30, 2007) (holding being forced to defecate in clothing and sleep in feces was de
minimis); Parter v. Valone, 2006 WL 3086900, *2-3 (E.D.Mich., Oct. 30, 2006) (holding a prisoner who was denied
the use of a bathroom and urinated on himself suffered only mental or emotional injury); Jarrell v. Seal, 2004 WL
241712 (E.D.La., Feb. 10, 2004) (holding that a prisoner who alleged he soiled himself after not being allowed to
use a toilet was complaining of humiliation and had suffered no physical injury), aff’d, 110 Fed.Appx. 455 (5th Cir.
2004). Cf. Glaspy v. Malicoat, 134 F.Supp.2d 890, 894-95 (W.D.Mich. 2001) (treating denial of toilet access to a
non-prisoner, with predictable results, as a deprivation of liberty). Several courts have held that having urine or
feces thrown on one, or being spat on, is no more than a mental or emotional injury. Allen v. Louisville Metro Dept.
of Corrections, 2007 WL 3124696, *7-8 (W.D.Ky., Oct. 24, 2007); Williams v. Sharrett, 2007 WL 2406960, *3-4
(W.D.Mich., Aug. 20, 2007); Jennings v. Weberg, 2007 WL 80875, *1 (W.D.Mich., Jan. 8, 2007) (HIV-positive
prisoner was doing the spitting and throwing feces).
1342
18 U.S.C. § 242 (providing “if bodily injury results from the acts committed in violation of this section . . . [the
defendant] shall be fined under this title or imprisoned not more than ten years, or both”).
1343
18 U.S.C. §§ 831(f)(5); accord, 18 U.S.C. § 1365(h)(4); 18 U.S.C. § 1515(a)(5); 18 U.S.C. § 1864(d)(2).
1341

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purposes of § 2421344 as well, and there is no apparent reason why it should not also be applied
under § 1997e(a),1345 especially given the similarity of purpose, distinguishing between injury
and its lack for purposes of enforcing civil rights. Doing so would not eliminate all ambiguity
from the definition of physical injury, but would resolve many borderline cases, such as those
involving means of inflicting pain that leave no marks, or drug withdrawal or overdose that
impairs physical or mental functioning.
Several courts have held that the physical manifestations of emotional distress are not
physical injury for purposes of this provision,1346 a result that seems unsupported by the statutory
language, which directly implies that mental or emotional injury with physical injury should be

1344

See U.S. v. Gonzales, 436 F.3d 560, 575 (5th Cir. 2006), cert. denied, 547 U.S. 1139 (2006); U.S. v. Bailey, 405
F.3d 102, 111 (1st Cir. 2005); U.S. v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992). Gonzales excepts use of force
cases from this holding because of other Fifth Circuit principles concerning such cases. Gonzales, id.
1345
“When Congress uses, but does not define a particular word, it is presumed to have adopted that word’s
established meaning.” U.S. v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992) (citing Davis v. Michigan Dep’t of
Treasury, 489 U.S. 803, 813 (1989)). Although § 1997e(e) uses the word “physical” rather than “bodily,” it is hard
to see what substantive difference that rhetorical difference could make.
1346
Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir. 1998); Bustos v. U.S., 2010 WL 4256182, *4
(D.Colo., Oct. 21, 2010) (stating that “courts are willing to make more inclusive the definition of ‘physical injury’
when the prisoner alleges that he failed to receive adequate medical treatment or was exposed to adverse physical or
environmental conditions and thereafter suffered mental or emotional harm. However, the case law appears clear
that when the alleged physical injury is associated with and arises from the distress of living in fear of one's well
being, which is the case here, the PLRA bars recovery.”), report and recommendation adopted, 2010 WL 5157325
(D.Colo., Dec. 14, 2010); Sanchez v. U.S., 2010 WL 3199878, *3 (S.D.Fla., Aug. 6, 2010) (citing “loss of appetite,
loss of sleep, gastrointestinal distress and emotional and physical distress” after eating non-kosher food), report and
recommendation adopted, 2010 WL 3466932 (S.D.Fla., Sept. 2, 2010); Klein v. Kimoto, 2009 WL 3045858, *14
(D.Nev., Aug. 6, 2009) (citing “sleeplessness, physical pain, depression, anxiety [and] panic attacks” as a result of
disputed incident); Hughes v. Colorado Dept. of Corrections, 594 F.Supp.2d 1226, 1238-39 (D.Colo. 2009); Dean v.
Phillips, 2008 WL 5056679, *7 (N.D.N.Y., Nov. 24, 2008); Darvie v. Countryman, 2008 WL 2725071, *7 n.12
(N.D.N.Y., July 10, 2008) (characterizing “anxiety, depression, stress, nausea, hyperventilation, headaches,
insomnia, dizziness, appetite loss, weight loss, etc.,” as “essentially emotional in nature”), report and
recommendation adopted, 2008 WL 3286250 (N.D.N.Y., Aug. 7, 2008); McCloud v. Tureglio, 2008 WL 1772305,
*9 (N.D.N.Y., Apr. 15, 2008); Martin v. Vermont Dept. of Corrections, 2005 WL 1278119 (D.Vt., May 25, 2005)
(stating that “physical manifestations of stress are insufficient to establish physical injury under the PLRA”), report
and recommendation adopted, 2005 WL 2001749 (D.Vt., Aug. 19, 2005); Minifield v. Butikofer, 298 F.Supp.2d
900, 905 (N.D.Cal. 2004) (“Physical symptoms that are not sufficiently distinct from a plaintiff’s allegations of
emotional distress do not qualify as a prior showing of physical injury.”); Todd v. Graves, 217 F.Supp.2d 958, 960
(S.D.Iowa 2002) (holding that allegations of stress-related aggravation of hypertension, dizziness, insomnia and loss
of appetite were not actionable); Cannon v. Burkybile, 2002 WL 448988, *4 (N.D.Ill., Mar. 22, 2002); McGrath v.
Johnson, 67 F.Supp.2d 499, 508 (E.D.Pa. 1999). But see Montemayor v. Federal Bureau of Prisons, 2005 WL
3274508, *5 (D.D.C., Aug. 25, 2005) (holding that a heart attack resulting from physical and emotional stress
caused by treatment in prison would meet the physical injury requirement); Perkins v. Arkansas Dept. of
Corrections, 165 F.3d 803, 807-08 (8th Cir. 1999) (remanding question whether an allegation of mental anguish so
severe that it caused physical deterioration and would shorten plaintiff’s life was sufficient under § 1997e(e));
Gilmore v. Bloom, 2008 WL 5272576, *10 (S.D.W.Va., Dec. 17, 2008) (allegation that plaintiff suffered stomach
and lower intestinal problems, headaches, cold sweats, rashes, nightmares, vomiting, and teeth grinding stated a
claim under physical injury requirement).
In other areas of litigation, some courts have acknowledged that post-traumatic stress disorder (PTSD) can
constitute “bodily injury” because it can result in actual changes to the brain. See Weaver v. Delta Airlines, Inc., 56
F.Supp.2d 1190, 1191-92 (D.Mont. 1999), vacated by agreement, 211 F.Supp.2d 1252 (D.Mont. 2002). Others have
rejected this holding. See, e.g., Doe v. United Airlines, Inc., 73 Cal.Rptr.3d 541, 550-51, 160 Cal.App.4th 1500
(Cal.App. 2 Dist., Mar. 20, 2008).

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actionable. Decisions are split on the question whether the risk of future injury meets the §
1997e(e) standard.1347
Courts have disagreed over whether mental or emotional injury is compensable when it
results from acts which support a separate, though related, claim from the claim directly
involving physical injury.1348 However, the statute does not require that the plaintiff show that
the physical injury itself violated his or her legal rights,1349 or indeed that it was caused or
inflicted by the defendants if there is some other basis for liability for the defendants. 1350 The
1347

Compare Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 2011) (exposure to dangerous working conditions from
which plaintiff was transferred before anything happened to him is not actionable); Zehner v. Trigg, 133 F.3d 459
(7th Cir. 1997) (holding exposure to asbestos without claim of damages for physical injury is not actionable);
Mattox v. Edelman, 2013 WL 3936424, *10 (E.D.Mich., July 30, 2013) (“The possibility that future harm might
befall plaintiff is neither itself a compensable injury, nor does it constitute ‘physical injury’ for purposes of §
1997e(e).”); Smith v. U.S., 2007 WL 2155651, *4 (D.Kan., July 26, 2007) (same as Zehner), reconsideration
denied, 2007 WL 4570888 (D.Kan., Dec. 27, 2007), motion to amend denied, 2008 WL 1735190 (D.Kan., Apr. 10,
2008); Kutch v. Valdez, 2006 WL 3487657, *4 (N.D.Tex., Dec. 4, 2006) (holding potential future complications of
untreated high blood pressure are not physical injury under statute) with West v. Walker, 2007 WL 2608789, *6
(N.D.Ill., Sept. 4, 2007) (holding prisoner may pursue claim of “documentably increased likelihood of future harm”
from second-hand smoke); Pack v. Artuz, 348 F.Supp.2d 63, 74 n.12 (S.D.N.Y. 2004) (holding proof of asbestos
exposure posing a serious risk of harm would establish an Eighth Amendment violation entitling the plaintiff to
nominal damages regardless of present injury); Crawford v. Artuz, 1999 WL 435155 (S.D.N.Y., June 24, 1999)
(holding that a claim for asbestos exposure without present physical injury was not barred by the statute because it
did not assert mental or emotional injury); see Robinson v. Page, 170 F.3d 747, 749 (7th Cir. 1999) (leaving open
question whether required physical injury “must be a palpable, current injury (such as lead poisoning) or a present
condition not injurious in itself but likely to ripen eventually into a palpable physical injury.”).
1348
Compare Phillips v. Steinbeck, 2008 WL 821789, *21 (D.Colo., Mar. 26, 2008) (plaintiff who alleged he was
labelled an informant by staff and assaulted by inmates in retaliation for complaints about staff could seek damages
for both Eighth Amendment and access to courts claims based on injuries from assault); Root v. Watkins, 2007 WL
5029118, *8 (D.Colo., Aug. 28, 2007) (plaintiff alleged that one defendant refused to do anything about loud
prisoner conduct, and when he complained to another defendant, he was labelled a snitch and then attacked by other
prisoners; he could seek damages against both defendants), objections overruled, 2008 WL 793513 (D.Colo., Mar.
19, 2008); Fogle v. Pierson, 2008 WL 821803, *9 (D.Colo., Mar. 26, 2008) (prisoner complaining of injury from
protracted segregation could seek damages both for due process claim for segregation placement and claim of denial
of access to courts which arguably prolonged the confinement); Noguera v. Hasty, 2001 WL 243535 (S.D.N.Y.,
Mar. 12, 2001) (holding that allegations of retaliation for reporting a rape by an officer were closely enough related
to the rape that a separate physical injury need not be shown) with Purvis v. Johnson, 78 Fed.Appx., 2003 WL
22391226 (5th Cir. 2003) (unpublished) (holding that a prisoner alleging assault by a staff member could not also
pursue a claim for obstruction of the post-assault investigation); Wallin v. Dycus, 2009 WL 798839, *13 (D.Colo.,
Feb. 25, 2009) (holding claim for disclosure of confidential information is barred by § 1997e(e) despite the presence
of an excessive force claim; “the PLRA's physical injury requirement is claim specific”), report and
recommendation adopted, 2009 WL 2490127 (D.Colo., Aug. 13, 2009), aff’d, 381 Fed.Appx. 819 (10th Cir. 2010),
cert. denied, 132 S.Ct. 171 (2011); Johnson v. Dallas County Sheriff Dept., 2008 WL 2378269, *3 (N.D.Tex., June
6, 2008) (alleged sexual assault was a physical injury, but conduct of officials after the assault did not inflict injury
and was not actionable); Slusher v. Samu, 2006 WL 3371636, *13 (D.Colo., Nov. 21, 2006) (holding that a prisoner
with multiple claims could only recover damages for the one claim as to which he alleged physical injury).
1349
In Tate v. Alamance County Jail, 2007 WL 2156319 (M.D.N.C., July 26, 2007), the plaintiff alleged that
defendants had denied him pain medication after surgery. The court rejected defendants’ argument that the plaintiff
“must allege that there was a physical injury which resulted from the failure to provide requested medication.
However, the clear words of the statute only state that the mental or emotional injury must have a prior physical
injury component to it, not that the mental or emotional injury resulted in a physical injury.” Here the “prior
physical injury component” was the surgery. 2007 WL 2156319, *1. (The court did not comment on the
defendants’ assumption that pain is a mental or emotional injury, which appears incorrect.)
1350
Al-Turki v. Ballard, 2013 WL 589174, *15 (D.Colo., Feb. 14, 2013) (holding pain caused by failure to treat
kidney stones was actionable even though defendants did not cause the stones); May v. Williams, 2012 WL

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Second Circuit has recently recognized that emotional injury may be viewed as part of an
ongoing course of conduct and may be related to physical injury inflicted at an earlier date.1351

VI.

Attorneys’ Fees

In actions brought by prisoners,1352 the PLRA restricts fees awarded pursuant to 42
U.S.C. § 1988 to 150% of the rates “established” under the Criminal Justice Act. 1353 The
attorneys’ fees restrictions are not limited to cases involving prison conditions.1354 They apply to
cases about juvenile institutions.1355
Courts have disagreed whether the “established” CJA rate means the rate actually paid
(i.e., as limited by available funding) under the CJA or the rate authorized by the Judicial
Conference based on inflation.1356 The rate authorized by the Judicial Conference is not made
available in any published or on-line source, and must be obtained via correspondence with the
Administrative Office of the Courts (AOC). A request to AOC from a number of prisoner
advocates to make the information more readily accessible to the public elicited a noncommittal
response and no change in practice.1357 The current and recent CJA rates are $139 an hour for
fiscal years 2011, 2012 and 2013, and $141 an hour commencing January 2014.1358
1155390, *7 (D.Nev., Apr. 4, 2012) (holding the pain caused by an inguinal hernia and bowel obstruction was
actionable since those conditions were physical injuries, even if defendants did not cause the hernia and
obstruction); accord, Karsten v. Davis, 2013 WL 2120635, *10 n.2 (D.Colo., Apr. 26, 2013) (holding year’s delay in
repairing a hernia was compensable since the hernia was a physical injury), report and recommendation adopted,
2013 WL 2120632 (D.Colo., May 15, 2013).
1351
Toliver v. City of New York, 530 Fed.Appx. 90, 93 & n.2 (2d Cir. 2013) (unpublished).
1352
See § II, nn. 8-49, concerning the definition of “prisoner.” One thoughtful decision held that the attorneys’ fees
restrictions are not applicable to a case filed by a prisoner who was released shortly after filing, citing the “absurdity
exception” to the plain-meaning rule of statutory construction. Morris v. Eversley, 343 F.Supp.2d 234, 243-44
(S.D.N.Y. 2004). However, the decision on which it relied has been reversed on appeal, Robbins v. Chronister, 435
F.3d 1238 (10th Cir. 2006) (en banc), rev’g Robbins v. Chronister, 2002 WL 356331 (D.Kan., Mar. 31, 2002), and
more recently Morris itself was overruled. Perez v. Westchester County Dep’t of Corrections, 587 F.3d 143, 154-55
(2d Cir. 2009). Defending a motion to terminate prospective relief brought by defendants is part of the original
action brought by prisoners for PLRA fees purposes. Batchelder v. Geary, 2007 WL 2427989, *3-4 (N.D.Cal., Aug.
22, 2007).
1353
42 U.S.C. § 1997e(d)(3); 18 U.S.C. § 3006A; see Perez v. Cate, 632 F.3d 553, 557-58 (9th Cir. 2011) (holding
paralegals need not be paid less than the top PLRA rate); Reynolds v. Goord, 2001 WL 118564, *2 (S.D.N.Y., Feb.
13, 2001) (holding less experienced counsel need not be paid less than the statutory rate).
1354
42 U.S.C. § 1997e(d)(1); see Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790, 794-95 (11th Cir.)
(applying PLRA restrictions to prisoner who won a challenge to a new policy concerning parole eligibility hearings),
cert. denied, 540 U.S. 880 (2003). Contra, Hall v. Galie, 2009 WL 722278, *3-7 (E.D.Pa., Mar. 17, 2009)
(declining to apply PLRA restrictions to pre-incarceration civil rights violations).
1355
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 994 (8th Cir. 2003).
1356
The difference is described in Johnson v. Daley, 339 F.3d 582, 584 & n.‡ (7th Cir. 2003) (en banc), cert. denied,
541 U.S. 935 (2004). The weight of authority holds that the rate adjusted by the Judicial Conference governs. See
Hadix v. Johnson, 398 F.3d 863 (6th Cir. 2005); Webb v. Ada County, 285 F.3d 829, 838-39 (9th Cir.), cert. denied,
537 U.S. 948 (2002); Laube v. Allen, 506 F.Supp.2d 969, 987 (M.D.Ala., Aug. 31, 2007); Batchelder v. Geary, 2007
WL 2427989, *5-6 (N.D.Cal., Aug. 22, 2007). Contra, Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1998).
1357
Letter, AOC Assistant Director Theodore J. Lidz to Gabriel B. Eber, Staff Counsel, ACLU National Prison
Project (June 16, 2010). See Graves v. Arpaio, 633 F.Supp.2d 834, 854-55 (D.Ariz. 2009) (finding rates for 2009),
aff’d on other grounds, 623 F.3d 1043 (9th Cir. 2010).
1358
E-mail, Judy Gallant, Attorney Advisory, Defender Services Office of the Administrative Office of the Courts,
Judy_Gallant@ao.uscourts.gov, to Bonnie Tenneriello of Prisoners’ Legal Services of Massachusetts (Jan. 13,
2004).

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Some courts have held that the PLRA rate may be enhanced for excellent results.1359 As
the most recent of these decisions explained:
[An enhancement] does not appear to run afoul of the plain language of §
1997e(d), which states only that “[n]o award of attorney’s fees . . . shall be based
on an hourly rate greater than 150 percent of the hourly rate established under
section 3006A of Title 18 for payment of court-appointed counsel.” 42 U.S.C. §
1997e(d)(3) (emphasis added). This suggests not that the average hourly rate of
the final fee cannot exceed an overall cap, but rather that the initial lodestar
calculation cannot use, or be “based on,” an hourly rate that starts above the
PLRA cap. Where a fee award is multiplied upward to account for factors not
subsumed in the lodestar calculation, it is still “based on” the initial lodestar fee
rate; the fee is increased from that base point to ensure reasonable compensation
of counsel in those very narrow circumstances when the lodestar undervalues
counsel. To read the statute as setting an absolute maximum arguably eliminates
the well-established enhancement framework in § 1988 litigation, a drastic step.
The Court therefore finds no basis in the PLRA to categorically deny any
enhancement multiplier.1360
The PLRA restrictions do not apply to fees sought on any basis other than 42 U.S.C. §
1988.1361 In cases where fees are generally authorized by 42 U.S.C. § 1988, courts have
disagreed whether fees awarded on other bases within the action are limited by the PLRA. 1362
Courts have also taken varying approaches in cases where different claims are governed by
different fee statutes.1363
1359

Kelly v. Wengler, No. 1:11-CV-185-S-EJL, Order Regarding Attorneys’ Fees and Costs at 23-25 (D. Idaho, Feb.
20, 2014) (multipliers of 100% and 30% for two attorneys); Ginest v. Bd. of Cnty. Comm'rs of Carbon Cnty., WY,
423 F. Supp. 2d 1237, 1241 (D. Wyo. 2006) (25% enhancement); Skinner v. Uphoff, 324 F.Supp.2d 1278, 1287
(D.Wyo. 2004) (25% enhancement).
1360
Kelly v. Wengler, No. 1:11-CV-185-S-EJL, Order Regarding Attorneys’ Fees and Costs at 24-25 (D. Idaho, Feb.
20, 2014).
1361
See, e.g., Armstrong v. Davis, 318 F.3d 965, 973-74 (9th Cir. 2003) (holding that fees in suits enforcing the
Americans with Disabilities Act and the Rehabilitation Act are not limited by the PLRA because these statutes have
fee provisions separate from § 1988); Henderson v. Thomas, 2013 WL 5493197, *9 (M.D.Ala., Sept. 30, 2013)
(same as Armstrong); Edwin G. v. Washington, 2001 WL 196760 (C.D.Ill., Jan. 26, 2001) (holding that fees sought
as discovery sanctions were not subject to PLRA); Beckford v. Irvin, 60 F.Supp.2d 85 (W.D.N.Y. 1999) (holding
that Americans with Disabilities Act fee provisions are not limited by PLRA).
1362
Compare Webb v. Ada County, 285 F.3d 829, 835 (9th Cir.) (holding fees for contempt and discovery motions
governed by PLRA limitations, even though they were authorized by separate statute and rule, because they were
“directly related” to the underlying § 1983 claims; Congress’s purpose was to reduce the cost to taxpayers of
prisoner litigation), cert. denied, 537 U.S. 948 (2002); Norwood v. Vance, 2008 WL 686901, *1 (E.D.Cal., Mar. 12,
2008) (motion for sanctions governed by PLRA because it was directly related to the underlying § 1983 claims),
vacated on other grounds, 591 F.3d 1062 (9th Cir. 2010), cert. denied, 131 S.Ct. 1465 (2011) with Edwin G. v.
Washington, 2001 WL 196760 (C.D.Ill., Jan. 26, 2001) (holding that fees sought as discovery sanctions were not
subject to PLRA).
1363
Compare LaPlante v. Superintendent Pepe, 307 F.Supp.2d 219, 225 (D.Mass. 2004) (holding that where a
settlement agreement provided for fees for enforcement under § 1988 (i.e., at market rates), and an enforcement
motion also raised an independent § 1983 claim, fees for the “intertwined” claims would be awarded at the higher
rate) with Pierce v. County of Orange, 2012 WL 5906663, *12 (C.D.Cal., Mar. 2, 2012) (accepting that 50% of
hours should be awarded at market rates under the ADA and 50% should be governed by PLRA based on specifics
of the record in the case); Beckford v. Irvin, 60 F.Supp.2d 85, 88 (W.D.N.Y. 1999) (holding that 50% of fees should
be limited to PLRA rates in case where ADA and § 1983 claims were “inextricably intertwined” and counsel

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Fees at the pre-judgment stage must be “directly and reasonably incurred in proving an
actual violation of the plaintiff’s rights” to be awarded under the PLRA.1364 This apparently
includes all hours spent in the course of litigation where an actual violation is shown as long as
they are reasonable.1365 Several courts have held that injunctive proceedings that are settled may
support an award of fees if there are findings of legal violation or a record that supports such
findings,1366 but a recent appellate decision overrules one of these, noting it has authorized fees
under the PLRA “only to those inmates who have affirmatively established violations of
protected rights.”1367 Whether a litigant can settle a case without such a record, but make the
record in the course of a fee application and obtain fees on the ground it was proving that
violation until the point of settlement, remains to be seen.1368 However, one recent Second
Circuit decision has upheld plaintiffs’ entitlement to fees for obtaining an enforceable settlement
that “did not constitute an admission of liability,” without reference to any findings of legal
violation—though it is clear that both the district court and the appeals court assumed that the

estimated they spent half their time on each claim). See also Armstrong v. Davis, 318 F.3d 965, 974-75 (9th Cir.
2003) (holding that district court had discretion to award all fees at market rates in ADA case where a due process §
1983 claim had been added belatedly, comprised a small part of the case, and heavily overlapped the ADA claim).
1364
42 U.S.C. § 1997e(d)(1)(A).
1365
Riley v. Kurtz, 361 F.3d 906, 916 (6th Cir.) (holding fees for defending a judgment are compensable as part of
“proving or making certain an actual violation of the prisoner’s rights”), cert. denied, 543 U.S. 892 (2004); Jackson
v. State Bd. of Pardons and Paroles, 331 F.3d 790, 798-99 (11th Cir.) (holding “fees on fees” available in case
governed by PLRA), cert. denied, 540 U.S. 880 (2003); Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir. 2001)
(holding “fees on fees” available under PLRA); Hernandez v. Kalinowski, 146 F.3d 196, 199-201 (3d Cir. 1998)
(same); Batchelder v. Geary, 2007 WL 2427989, *3-4 (N.D.Cal., Aug. 22, 2007) (holding fees incurred in defending
a judgment are compensable); Siggers-El v. Barlow, 433 F.Supp.2d 811, 821-22 (E.D.Mich. 2006) (holding time
spent on post-judgment motions compensable); Sallier v. Scott, 151 F.Supp.2d 836 (E.D.Mich. 2001) (holding time
spent on postjudgment motions compensable); Morrison v. Davis, 88 F.Supp.2d 799, 810 (S.D.Ohio 2000)
(including all in-court and out-of-court time), amended in part on other grounds, 195 F.Supp.2d 1019 (S.D.Ohio
2001).
1366
See Laube v. Allen, 506 F.Supp.2d 969, 979-80 (M.D.Ala., Aug. 31, 2007) (holding that fees may be awarded
for injunctive settlements to the extent they satisfy the PLRA’s “need-narrowness-intrusiveness” requirement and
the fees were “directly and reasonably incurred” in obtaining it); Watts v. Director of Corrections, 2007 WL
1100611, *3 (E.D.Cal., Apr. 11, 2007) (awarding fees for “proving an actual violation” notwithstanding that case
was settled), amended on reconsideration on other grounds, 2007 WL 1752519 (E.D.Cal., June 15, 2007); Lozeau
v. Lake County, Mont., 98 F.Supp.2d 1157, 1168 n.1 and 1170 (D.Mont. 2000) (“Defendants cannot settle a case,
promise reform or continued compliance, admit the previous existence of illegal conditions, admit that Plaintiffs’
legal action actually brought the illegal conditions to the attention of those in a position to change them and
subsequently allege a failure of proof.”).
1367
Kimbrough v. California, 609 F.3d 1027, 1032 & n.7 (9th Cir. 2010) (overruling Ilick v. Miller, 68 F.Supp.2d
1169, 1173 n.1 (D.Nev. 1999)). Kimbrough also calls into question Watts and Lozeau, cited in the previous
footnote, though these may be distinguishable.
1368
The argument is supported by the reasoning of Laube v. Allen, which points out that the statute refers to
“proving” a violation rather than “having proved” one. 506 F.Supp.2d at 980.

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challenged practice was unlawful.1369 Fees are probably not recoverable in cases that are
favorably resolved but do not result in an enforceable judgment for the plaintiff.1370
Fees awarded under the PLRA must be “proportionately related to the court ordered relief
for the violation.”1371
Alternatively, fees may be awarded if they are “directly and reasonably incurred in
enforcing the relief ordered for the violation.”1372 One recent decision held that protecting class
1369

Perez v. Westchester County Dep’t of Corrections, 587 F.3d 143, 148-53 (2d Cir. 2009). In that case, plaintiffs
contended that the refusal to serve Kosher meat (which satisfies the requirements of Halal as well) to Muslims as
well as Jews was unconstitutional. It is conceivable that the availability of fees under the PLRA was not before the
court, since it is not specifically mentioned, but that is hard to believe, since the question whether plaintiffs were
“prevailing parties” for fees purposes, and what rates they were entitled to under the PLRA, were raised and
decided.
1370
See Torres v. Walker, 356 F.3d 238, 243 (2d Cir. 2004) (holding that where a case was resolved by a stipulation
that did not require the court’s approval and disclaimed defendants’ liability, “it cannot be said that [plaintiff’s]
attorneys’ fees were directly and reasonably incurred in proving an actual violation. . . .”); Siripongs v. Davis, 282
F.3d755, 758 (9th Cir. 2002) (denying fees where district court had issued a temporary restraining order, found
“serious questions” and a reasonable likelihood of success on the merits, but no finding or concession of liability
was ever made and the court said the record didn’t support an independent conclusion to that effect); see also Perez
v. Westchester County Dep’t of Corrections, 587 F.3d at 150-53 (upholding fee award where plaintiffs obtained an
order that incorporated the substantive terms of settlement and the court had been extensively involved in resolving
the case). But see Weaver v. Clarke, 933 F.Supp. 831, 836 (D.Neb. 1996), aff’d, 120 F.3d 852 (8th Cir. 1997), cert.
denied, 522 U.S. 1098 (1998) (finding fees incurred in “proving an actual violation” where the plaintiff obtained a
finding of likelihood of success on the merits but no actual preliminary injunction, and defendants then ended the
challenged practice).
1371
42 U.S.C. § 1997e(d)(1)(B)(i); see Dannenberg v. Valadez, 338 F.3d 1070, 1075-76 (9th Cir. 2003) (stating that
this standard is equivalent to the analysis of degree of success governing non-prison attorneys’ fees proceedings).
Courts have not held anything less than 150% of damages awarded to be disproportionate to the relief. See Farella
v. Hockaday, 304 F.Supp.2d 1076, 1079 (C.D.Ill. 2004) (awarding $1500 in fees on a $1000 judgment; noting that
“proportionately related” does not mean fees less than the judgment, and that the PLRA contemplates awards of up
to 150% of the damages); Cole v. Lomax, 2001 WL 1906275, *2 (W.D.Tenn., Sept. 26, 2001) (awarding $38,000 in
fees as proportionate to a $25,364 judgment, noting (erroneously) that it is within the 150% limit of the PLRA);
Sutton v. Smith, 2001 WL 743201 (D.Md., June 26, 2001) (holding $9400 in fees proportionate to a $19,000
judgment in a use of force case); Morrison v. Davis, 88 F.Supp.2d 799, 810 (S.D.Ohio 2000) (holding $54,000 in
fees was not disproportionate to a $15,000 jury award, though noting that the fee award was reduced under the 150%
limit).
“Court-ordered relief” may be broadly defined; in one unreported case, the Ninth Circuit held that actions
taken by prison officials that were not directly ordered, but were “ultimately required by the district court’s finding”
on plaintiff’s legal claim, should be reflected in the attorneys’ fee award. Bruce v. Mueller, 66 Fed.Appx. 721, 2003
WL 21259784, *1 (9th Cir. 2003) (unreported).
1372
42 U.S.C. § 1997e(d)(1)(B)(ii); see Balla v. Idaho, 677 F.3d 910, 919-20 (9th Cir. 2012) (holding prisoners who
had previously obtained an injunction could recover fees for a contempt motion decided against them because the
defendants had complied; stating “such losing motions . . . are a common and effective tool for bringing about
conformity to the law”); El-Tabech v. Clarke, 616 F.3d 834, 842 (8th Cir. 2010) (disallowing fees for compliance
monitoring, affirming fees for successful contempt motion); Cody v. Hillard, 304 F.3d 767, 776-77 (8th Cir. 2002)
(holding compensable defense of motion to vacate and negotiation of settlement agreement in case with prior
finding of violation); Webb v. Ada County, 285 F.3d 829, 834-35 & n.1 (9th Cir. 2002) (holding that postjudgment
contempt and sanctions motions, monitoring compliance with the consent decree, opposing application of the PLRA
to the fee requests, briefing the district court on the retroactive application of the PLRA, replying to objection to the
fee award and motion to terminate the consent decree, and fees-on-fees were compensable without necessity of
proving a new constitutional violation); Graves v. Arpaio, 633 F.Supp.2d 834, 845 (D.Ariz. 2009) (holding
compensable fees for defending the relief in post-judgment proceedings), aff’d on other grounds, 623 F.3d 1043 (9th
Cir. 2010); Lancaster v. Cate, 2008 WL 2774260, *4 (N.D.Cal., July 14, 2008) (litigant who proves fees “directly

306

representatives from retaliation is compensable under this provision because retaliation against
them “directly impedes their ability to assist counsel in monitoring the injunctive relief.”1373
Up to 25% of money judgments must be used to satisfy attorneys’ fees claims. 1374 Courts
have disagreed whether this provision gives courts discretion to apply less than 25%, and if so
how to exercise that discretion (a point on which the statute gives no guidance).1375 Defendants
cannot be made to pay fees greater than 150% of a money judgment.1376 There is a conflict
and reasonably incurred” in enforcement need not also show fees were proportionate to relief); Balla v. Idaho Bd. of
Correction, 2007 WL 4531304, *6 (D.Idaho, Dec. 18, 2007) (fees incurred in response to defendants’ statement that
they would file a termination motion were compensable as “directly and reasonably incurred” in enforcement even
though the motion was never actually filed); Coleman v. Schwarzenegger, 2007 WL 2695344, *3-4 (E.D.Cal., Sept.
11, 2007) (holding that fees were recoverable for getting a three-judge court appointed to consider a prisoner release
order and for obtaining an order protecting class members with mental illness from transfer out of state without
provision for their mental health care, since both enforced prior relief), report and recommendations adopted, 2007
WL 2935840 (E.D.Cal., Oct. 5, 2007); Laube v. Allen, 506 F.Supp.2d 969, 995 (M.D.Ala. 2007) (holding
monitoring is compensable only when it leads to enforcement activity).
1373
Balla v. Idaho State Bd. of Correction, 2013 WL 501646, *5 (D.Idaho, Feb. 8, 2013).
1374
42 U.S.C. § 1997e(d)(2).
1375
The only federal circuit to rule on the question has held that in deciding what proportion of an award to make the
plaintiff pay, courts should consider the factors used to determine whether and to what extent a prevailing party
should recover fees in ERISA cases, including “(1) the degree of the opposing parties' culpability or bad faith, (2)
the ability of the opposing parties to satisfy an award of attorneys' fees, (3) whether an award of attorneys' fees
against the opposing parties could deter other persons acting under similar circumstances, and (4) the relative merits
of the parties' positions.” Kahle v. Leonard, 563 F.3d 736 (8th Cir. 2009) (citing Lawrence v. Westerhaus, 749 F.2d
494, 496 (8th Cir. 1984)). Previously, most courts including that one had held only that the district court retains
discretion to apply less than 25%. See Boesing v. Spiess, 540 F.3d 886, 892 (8th Cir. 2008) (affirming district
court’s application of 1% of $25,000 recovery); accord, Parker v. Conway, 581 F.3d 198, 205 (3d Cir. 2009)
(following Boesing, affirming application of 18% of judgment to fees); Farella v. Hockaday, 304 F.Supp.2d 1076,
1081 (C.D.Ill. 2004) (“The section’s plain language sets forth 25% as the maximum, not the mandatory amount.”).
The court in Farella explained that the 10% contribution it required was high enough to reflect the jury’s failure to
award punitive damages but low enough to reflect the plaintiff’s pro se status, the fact that pro bono counsel was
appointed, the seriousness of the constitutional violation, and the plaintiff’s significant injury. In Norwood v. Vance,
2008 WL 686901, *4 (E.D.Cal., Mar. 12, 2008), vacated on other grounds, 591 F.3d 1062 (9th Cir. 2010), cert.
denied, 131 S.Ct. 1465 (2011), plaintiff received a punitive award of $39,000 and a nominal award of $11.00; the
court required the plaintiff to pay only 25% of the nominal award. See Siggers-El v. Barlow, 433 F.Supp.2d 811,
822-23 (E.D.Mich. 2006) (applying $1.00 of the recovery to attorneys’ fees, noting that the jury found that
defendants had lied about their conduct and awarded significant damages as punishment and deterrent); Edens v.
Larson, 2006 WL 1457702, *2 (S.D.Ill., May 25, 2006) (asserting court has discretion, applying 25% of recovery to
fees, not explaining exercise of discretion); Surprenant v. Rivas, 2004 WL 1858316, *5 (D.N.H., Aug.17, 2004)
(requiring plaintiff to pay much less than 25%); Hutchinson v. McCabee, 2001 WL 930842, *8 n.11 (S.D.N.Y.,
Aug. 15, 2001) (holding that the court has discretion to apply less than 25% of plaintiff’s recovery); Morrison v.
Davis, 88 F.Supp.2d 799, 811-13 (S.D.Ohio 2000) (applying only $1.00 of plaintiff’s judgment against recovery).
Contra, Johnson v. Daley, 339 F.3d 582, 584-85 (7th Cir. 2003) (en banc) (holding that the first 25% of the recovery
must be applied to attorneys’ fees, and only if that sum is inadequate to cover the fees do the defendants pay
anything) (dictum), cert. denied, 541 U.S. 935 (2004); Keller v. County of Bucks, 2005 WL 1595748, *1 (E.D.Pa.,
July 5, 2005) (same as Johnson; stating “[t]he plain import of the statute is that plaintiffs who recover substantial
damage awards are expected to pay their counsel themselves, using the proceeds of the award for that purpose.”);
Jackson v. Austin, 267 F.Supp.2d 1059, 1071 (D.Kan. 2003) (holding that 25% of the plaintiff’s recovery must be
applied to fees). But see Johnson v. Daley, 2003 WL 23274532, *1 (W.D.Wis., Sept. 26, 2003) (on remand,
requiring plaintiff to pay only $200 of a $40,000 jury award despite appellate dictum).
1376
42 U.S.C. § 1997e(d)(2); see Wilkins v. Gaddy, 734 F.3d 344, 347 (4th Cir. 2013) (affirming fees of $1.40 on
nominal award); Keup v. Hopkins, 596 F.3d 899, 905 (8th Cir. 2010) (holding fees limited to $1.50 where plaintiff
recovered only $1.00 in nominal damages); Pearson v. Welborn, 471 F.3d 732, 742-43 (7th Cir. 2006) (same);
Boivin v. Black, 225 F.3d 36 (1st Cir. 2000) (same). But see Torres v. Walker, 356 F.3d 238, 243 (2d Cir. 2004)

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between circuits over whether a successful plaintiff’s fees for defending a favorable judgment
must be kept within the same 150% cap.1377 When the plaintiff obtains injunctive relief as well
as damages, the 150% limit is either inapplicable or applicable only to those hours expended
solely for the purpose of obtaining damages.1378 One decision holds the 150% limit applicable to
a case in which the prisoner’s claim concerned events that antedated his incarceration.1379
Courts have rejected arguments that the attorneys’ fees restrictions deny equal
protection.1380

VII.

Filing Fees and Costs

Prisoners proceeding in forma pauperis in civil actions or appeals are now required to
pay filing fees in installments according to a statutory formula.1381
(holding that the 150% cap does not apply to a case resolved by a “so ordered” stipulation, since there is no
“monetary judgment”); accord, Romaine v. Rawson, 2004 WL 1013316, *3 (N.D.N.Y., May 6, 2004).
1377
Compare Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004) (holding that plaintiff was not entitled to attorneys’
fees beyond the 150% cap for defending against an unsuccessful appeal), cert. denied, 543 U.S. 892 (2004) with
Woods v. Carey, 722 F.3d 1177, 1180-84 (9th Cir. 2013) (holding fees for defending an appeal are exempt from the
cap).
Some courts have also held that expenses in excess of statutory costs must also be included under the 150%
ceiling. Berberena v. Pesquino, 2008 WL 68671, *1 (S.D.Ill., Jan. 7, 2008). Contra, Nelson v. Turnesky, 2010 WL
3655565, *3 (E.D.Ark., Sept. 13, 2010) (awarding costs in addition to fees at the 150% limit).
1378
In Dannenberg v. Valadez, 338 F.3d 1070, 1074-75 (9th Cir. 2003), the most extensive discussion of this
subject, the court convincingly harmonized the 150% limit with the provision that fees must be “proportionately
related to the court ordered relief” by holding that the 150% limit applies only to the portion of total fees that was
incurred solely in order to obtain money damages; fees incurred to obtain injunctive relief are compensable even if
the plaintiff also obtained monetary relief. Accord, Goodman v. Walker, 2007 WL 2907991, *1 (S.D.Ill., Oct. 1,
2007) and cases cited. See also Walker v. Bain, 257 F.3d 660, 667 n.2 (6th Cir. 2001) (noting that 150% limit is
inapplicable to cases involving injunctions), cert. denied, 535 U.S. 1095 (2002); accord, Boivin v. Black, 225 F.3d
36, 41 n.4 (1st Cir. 2000); Carbonell v. Acrish, 154 F.Supp.2d 552, 566 (S.D.N.Y. 2001). But see Keup v. Hopkins,
596 F.3d 899, 905-06 (8th Cir. 2010) (where other equitable relief was moot, inferring declaratory judgment from
court’s orders and judgments would not affect fees calculation since it would not affect defendants’ behavior).
1379
Robbins v. Chronister, 435 F.3d 1238, 1241-44 (10th Cir. 2006) (en banc).
1380
Wilkins v. Gaddy, 734 F.3d 344, 347-51 (4th Cir. 2013); Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003) (en
banc), cert. denied, 541 U.S. 935 (2004); Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790, 796-98 (11th
Cir.), cert. denied, 540 U.S. 880 (2003); Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir. 2001) (upholding cap of
150% of damages); Walker v. Bain, 257 F.3d 660 (6th Cir. 2001) (same as Foulk), cert. denied, 535 U.S. 1095
(2002); Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000) (upholding limit on hourly rates); Boivin v. Black, 225 F.3d
36 (1st Cir. 2000) (same as Foulk); Carbonell v. Acrish, 154 F.Supp.2d 552, 562-64 (S.D.N.Y. 2001) (upholding
150% limit).
1381
28 U.S.C. § 1915(b)(1-2); see Gillard v. Canfield, 2013 WL 5276546, *7 (W.D.N.Y., Sept. 17, 2013) (ordering
refund to plaintiff where prison officials had erroneously sent entirety of fee at once rather than the 20% called for
by statutory formula); Duncan v. Walker, 2009 WL 666425, *4 (S.D.Ill., Mar. 11, 2009) (fees are to be assessed
from all deposits into prisoners’ account, regardless of source); see also Brown v. Eppler, 725 F.3d 1221, 1228-31
(11th Cir. 2013) (holding that the obligation of 28 U.S.C. § 1915(b)(1) to pay filing fees in installments applies
where the plaintiff was a prisoner at the time he appealed though not when he filed the action).
This provision applies to cases filed in federal court. In cases filed in state court and removed to federal
court by defendants, the defendants pay the fees. Hairston v. Blackburn, 2010 WL 145793, *1 (S.D.Ill., Jan. 12,
2010). It applies only to civil actions and appeals. See Garza v. Thaler, 585 F.3d 888, 889-90 (5th Cir. 2009)
(district court did not have power under the PLRA or its discretion to require IFP litigant to pay appellate filing fee
in installments in habeas corpus appeal).
One court has applied these provisions to a civilly committed sex offender, while acknowledging that he
was not a prisoner, on the ground that courts have pre-existing authority to require partial payment of filing fees and

308

Once a prisoner files a complaint or notice of appeal, the court generally lacks authority
to forgive or refund the fee,1382 though there are some variations in local practice that have that
effect in some cases.1383 The filing fees provision has been upheld as constitutional; courts have
the PLRA provides an appropriate means to exercise this authority over a civilly committed patient. Taft v.
Sassman, 2012 WL 384836, *1-2 & n.2 (N.D.Iowa, Feb. 6, 2012).
1382
Porter v. Dep’t of the Treasury, 564 F.3d 176, 180 (3d Cir. 2009) (court had no authority to waive appellate
filing fee in case governed by PLRA), cert. denied sub nom. Telfair v. Tandy, 558 U.S. 1028 (2009); In re Alea, 286
F.3d 378, 381–82 (6th Cir.2002), cert. denied, 537 U.S. 895 (2002); Lebron v. Russo, 263 F.3d 38, 42 (2d Cir.
2001) (holding that prisoners must pay separately for each appeal and cannot obtain refunds for appeals made
necessary by district court errors); Goins v. Decaro, 241 F.3d 264 (2d Cir. 2001) (holding fees may not be refunded
or cancelled when a notice of appeal is withdrawn); Hatchet v. Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (“A
prisoner proceeding IFP in the district court is obligated to pay the full filing fee upon the filing of a complaint. §
1915(b)(1). No relief from an order directing payment of the filing fee should be granted for a voluntary
dismissal.”); In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997) (holding “the PLRA makes prisoners responsible for
their filing fees the moment the prisoner brings a civil action or files an appeal”); Ellison v. Hodge, 2013 WL
2487762, *1 (S.D.Ill., June 10, 2013) (stating “a prisoner incurs the obligation to pay the filing fee for a lawsuit
when the lawsuit is filed, and the obligation continues regardless of later developments in the lawsuit, such as denial
of leave to proceed IFP or dismissal of the suit”); Grindling v. Martone, 2012 WL 4502954, *2 (D.Hawai'i, Sept. 28,
2012) (“Title 28 U.S.C. § 1915 does not provide any authority or mechanism for the court to waive payment of a
prisoner's filing fee, or to return the filing fee after dismissal of an action.” This dismissal was voluntary.),
reconsideration denied, 2012 WL 5187855 (D.Haw., Oct. 17, 2012); Reath v. Weber, 2012 WL 4068629, *4
(D.S.D., Sept. 14, 2012) (“The obligation to pay a filing fee accrues the moment a plaintiff files his Complaint with
the Court, and it cannot be avoided merely because the case is eventually dismissed.”), report and recommendation
adopted, 2012 WL 5995225 (D.S.D., Nov. 30, 2012); Vogel v. Roy, 2012 WL 2045963, *3 (D.Minn., June 6, 2012)
(where dismissal was without prejudice because plaintiff said he would investigate and re-file after release, court
lacked authority to excuse filing fee), report and recommendation adopted, 2012 WL 2045963 (D.Minn., June 6,
2012); see Appendix A for additional authority on this point.
In Wedington v. U.S. Federal Government, 2009 WL 2916860, *3 (D.Minn., Sept. 4, 2009), where the
plaintiff had brought a civil action to obtain relief from a commitment order, the court said the plaintiff should not
be charged the filing fee because ordinarily such relief can be sought through a motion that requires no filing fee. It
appears that the court was concerned in part that the plaintiff appeared to be schizophrenic as well as pro se and
indigent. The same court has subsequently recommended relieving another plaintiff from paying the filing fee, “as
he appears to completely misapprehend the requisites of a cognizable claim.” Roach v. Sterns County, 2010 WL
2629407, *3 (D.Minn., June 11, 2010), report and recommendation adopted, 2010 WL 2629403 (D.Minn., June 28,
2010); see also Hansen v. Symmes, 2011 WL 1130450, *1 (D.Minn., Mar. 28, 2011) (returning filing fee for
unspecified “good cause”). Similarly, in McCotter v. Repischak, 2012 WL 2160821, *3 (E.D.Wis., June 13, 2012),
where the court dismissed without prejudice because the plaintiff’s claim was properly pursued via habeas corpus
petition, the court declined to collect the remainder of the filing fee. In Jones v. California Medical Facility Custody
Staff, 2012 WL 5187994, *4 (E.D.Cal., Oct. 17, 2012), vacated on other grounds, 2012 WL 5868772 (E.D.Cal.,
Nov. 19, 2012), the court initially declined to impose the filing fee “because plaintiff's complaint must be dismissed
at the outset for failure to exhaust administrative remedies,” cautioning the plaintiff that if he sought to pursue this
unexhausted action rather than file a new action after exhaustion, the court would grant IFP status, impose the filing
fee, and again recommend dismissal for non-exhaustion. In Duncan v. Kaelin, 2014 WL 258649, *3 (S.D.Tex., Jan.
23, 2014), the court, “recognizing Plaintiff's frustration at the time he filed suit” with irregular outgoing mail pickup,
excused him from paying the filing fee.
1383
In some cases, courts have dismissed at initial screening, or allowed voluntary withdrawal, without assessing
filing fees. See, e.g., Hakim v. Skulli, 2013 WL 6234624, *2 (W.D.N.Y., Nov. 27, 2013) (same as Bradley v.
Mergucz, below); Bradley v. Mergucz, 2012 WL 4742481, *2 (D.N.J., Oct. 2, 2012) (directing clerk to
administratively terminate without assessing a fee, stating plaintiff may reopen by satisfying fee requirement and
submitting amended complaint); Jones v. California Medical Facility Custody Staff, 2012 WL 5187994, *4
(E.D.Cal., Oct. 17, 2012) (declining to impose fee where non-exhaustion was facially apparent, stating fee would be
charged if plaintiff persisted and sought in forma pauperis status), report and recommendation vacated on other
grounds, 2012 WL 5868772 (E.D.Cal., Nov. 19, 2012); Wade v. Swiekatowski, 2010 WL 152073, *2 (E.D.Wis.,
Jan. 15, 2010) (allowing plaintiff opportunity to dismiss voluntarily without fee or “strike”); Berry v. Savannah

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relied on the “savings clause” of 28 U.S.C. § 1915(b)(4), which says that prisoners shall not be
prevented from filing or appealing because of lack of funds.1384 Courts may look behind claims
of indigency where prisoners have had money and have spent it on other things.1385
Courts have disagreed about the apportionment of the fee obligation among multiple
plaintiffs. One federal circuit has held that “each prisoner should be proportionally liable for any
fees and costs that may be assessed. Thus, any fees and costs that the district court . . . may
impose shall be equally divided among all the prisoners.”1386 Another decision holds that “the
Chatham Metropolitan Police Dept., 2009 WL 1438194, *1 (S.D.Ga., May 8, 2009) (plaintiff allowed to dismiss
voluntarily after magistrate judge’s report without filing fee or strike); Akers v. Poisson, 2009 WL 799474, *1
(D.Me., Mar. 24, 2009) (noting court advised plaintiff his claim would likely not survive screening and that he could
voluntarily terminate without incurring a filing fee and “strike”), aff’d, 2009 WL 1375167 (D.Me., May 15, 2009);
Ramziddin v. Speziale, 2007 WL 4232987, *1-2 (D.N.J., Nov. 29, 2007) (ordering case filed without IFP
application administratively terminated without fee, subject to reopening if plaintiff submits IFP application); James
v. Crawford, 2007 WL 4289860, *2 (W.D.Mo., Nov. 28, 2007) (warning that fee will be collected if plaintiff files
further pleadings in the case); Dugan v. Lingle, 2007 WL 1795554, *2-3 (D.Haw., June 19, 2007) (dismissing
without fee where plaintiff had said he would dismiss voluntarily if court did not appoint counsel; “this is an
extraordinary, non-binding and non-precedential result, available only at the discretion of the court”); Newson v.
Frank, 2006 WL 2871723, *1-2 (E.D.Wis., Oct. 6, 2006) (allowing plaintiff opportunity to dismiss voluntarily
without fee or “strike”); see also Hammer v. Central Classification Services, 2010 WL 5139360, *1 (W.D.Va., Dec.
13, 2010) (dismissing for non-exhaustion, noting filing fee has not yet been charged); O'Bryant v. Wilson, 2010 WL
940352, *2 (N.D.Fla., Mar. 12, 2010) (where plaintiff was denied IFP status and court held dismissal was required,
but plaintiff had paid the entire fee in the interim, “fairness dictates that Plaintiff's filing fee be returned to him.”);
Cherry v. Boughton, 2008 WL 2600884, *2 (W.D.Wis., Jan. 31, 2008) (allowing plaintiff to withdraw without
paying fee because he did not know when filing he was ineligible for in forma pauperis treatment and he sought to
withdraw the complaint before the court ruled on the question). One court has told the parties that if the case settled
within 90 days, no filing fee would be required, a bizarre and completely unauthorized holding. See Stuard v.
Carlin, 2010 WL 4791739, *3 (D.Idaho, Nov. 16, 2010). A subsequent case in the same district refers to a “preanswer mediation option” in which a prisoner who is willing to settle for the amount of the filing fee or less, and/or
change or clarification in policy, may not be required to pay the fee. Adams v. CCA, 2011 WL 2909877, *7
(D.Idaho, July 18, 2011).
By contrast, at least one district court has a rule requiring partial payment of the fee before a case will be
screened. See Rindahl v. Daugaard, 2011 WL 4625984, 4 n.7 (D.S.D., Sept. 30, 2011) (noting Western District of
Wisconsin system requiring partial payment before case will be screened).
1384
Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir. 1997), cert. denied, 523 U.S. 1126 (1998); see Taylor v. Delatoor,
281 F.3d 844, 850 (9th Cir. 2002) (holding that dismissal was improper where the plaintiff failed to pay the initial
filing fee because he didn’t have the money); accord, Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir.
2010). See also cases cited in n. 1399, below. But see Wewerka v. Roper, 2011 WL 4532071 (8th Cir., Oct. 3,
2011) (affirming dismissal for seven-month failure to pay assessed initial partial fee where plaintiff did not notify
the district court or appeals court of any reason he couldn’t pay).
However, one circuit has held that prisoners who have failed to pay fees for prior litigation “for any reason
other than destitution” should be treated as if they had “three strikes” under 28 U.S.C. § 1915(g) and denied in forma
pauperis status until they have paid. Thurman v. Gramley, 97 F.3d 185, 188 (7th Cir. 1996); see Campbell v.
Clarke, 2006 WL 6021179, *1 (W.D.Wis., Apr. 19, 2006); see also Dudley v. Pratt, 2007 WL 4290500, *2-3
(E.D.Tex., Dec. 4, 2007) (dismissing without prejudice where plaintiff failed to pay the $4.01 initial fee, saying he
could not afford it since he only received $20.00 a month).
1385
Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997) (stating plaintiff’s “current poverty would not authorize
continuation of the appeals, if he had the resources to comply with the statute at the time the Act called for
payment”); Williams v. Hodge, 2013 WL 5550492, *3 (S.D.Ill., Oct. 8, 2013) (where prisoner said he could not pay
the initial filing fee, but had had money and spent it, court stays action to give him time to pay before proceedin).
1386
Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999); In re Prison Litigation Reform Act, 105 F.3d 1131,
1137-38 (6th Cir. 1997); see Miller v. County of Nassau, 2012 WL 4741592, *11 (E.D.N.Y., Oct, 3, 2012)
(directing plaintiff to pay his pro rata share of the fee); Fox v. Koskinen, 2009 WL 2507405, *1 (W.D.Mich., Aug.
14, 2009); Coleman v. Granholm, 2007 WL 1011662, *2 (E.D.Mich., Mar. 29, 2007); Hernandez v. Caruso, 2005

310

filing fee obligation is joint and several. If the parties pay the entire fee, they may divide it up
between them as they see fit and it is of no concern to the court. When the parties don’t pay the
entire fee, all are obligated for the entire amount of the filing fee until it has been paid in full,
even if the burden falls on a few of them unequally.”1387 Two circuits have held that each
prisoner in multiple-plaintiff litigation must pay a full filing fee,1388 and one has gone further by
holding that prisoners proceeding IFP cannot file jointly at all, but must each file a separate
complaint.1389 This extraordinary holding that the PLRA overturns the joinder rules of
WL 1610686, *1 (W.D.Mich., July 5, 2005); Mitchell v. Michigan Dept. of Corrections, 2005 WL 1295614, *1
(W.D.Mich., May 31, 2005) (all applying In re PLRA holding). But see Jones v. Fletcher, 2005 WL 1175960, *6
(E.D.Ky., May 5, 2005) (declining to follow In re PLRA, holding that each plaintiff must pay a separate filing fee).
1387
Alcala v. Woodford, 2002 WL 1034080, *1 (N.D.Cal., May 21, 2002). Consistently with this view, another
court held in a multi-plaintiff action that the lead plaintiff had three strikes and must pay the $350 filing fee up front,
but observed that the other plaintiffs didn’t file IFP applications: “Presumably, the ten plaintiffs can pool their
resources and pay the fees associated with this action.” Hartsfield v. Iowa Dept. of Corrections, 2007 WL 61858, *1
(N.D.Iowa, Jan. 3, 2007); see Stewart v. Missouri Dept. of Corrections, 2007 WL 2782529, *5 (W.D.Mo., Sept. 21,
2007) (assessing initial fees against each of multiple plaintiffs, noting that payment of those amounts would exceed
the full amount of the filing fee, and directing payment of the full fee within 30 days). In Mills v. Fischer, 2010 WL
364457, *1 (W.D.N.Y., Feb. 1, 2010), where one of two incarcerated plaintiffs paid the entire fee, the court went
forward with the other plaintiff’s IFP application, since there are other benefits of proceeding IFP, including service
of process and appointment of counsel.
1388
Hagan v. Rogers, 570 F.3d 146, 154-56 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir.
2004); see Suarez v. A1, 2006 WL 3694598, *4 (D.N.J., Dec. 13, 2006) (acknowledging the difficulties of joint
litigation, but holding that different plaintiffs who sought the same remedy could proceed jointly though they each
had to pay a filing fee); see also Picozzi v. Connor, 2012 WL 2839820, *3 (D.N.J., July 9, 2012) (allowing joint
litigation, but “the Court finds it warranted to allow each Plaintiff an opportunity to make an informed personal
decision as to whether (and how) each Plaintiff wishes to raise his claims”); Glenn v. Hayman, 2007 WL 894213, *6
(D.N.J., Mar. 21, 2007) (holding consideration of class certification should be deferred until the court satisfies itself
that all named plaintiffs actually wish to proceed rather than being “peer-pressured or bullied” by other prisoners,
and all named plaintiffs have had a fair opportunity to articulate the wrongs done to them personally). But see
Hagwood v. Warden, 2009 WL 427396, *2-3 (D.N.J., Feb. 19, 2009) (“Prisoners are not in the same situation as
non-prisoner joint plaintiffs; prisoners' circumstances make joint litigation exceptionally difficult.” These cases
require individualized consideration; court disapproves joinder); accord, Bonner v. Lester, 2009 WL 3837369, *4
(W.D.Okla., Nov. 16, 2009) (denying joinder, citing need for individual screening and the fact that with two
plaintiffs incarcerated and one released, it would be difficult to arrange signing papers).
1389
Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001), cert. denied, 534 U.S. 1136 (2002); accord, Lebon v.
Missouri State Public Defender System, 2013 WL 5786830, *1 (E.D.Mo., Oct. 28, 2013) (citing “impracticalities
inherent in multiple-prisoner litigation” (citation omitted)); Johnson-Bey v. Steele, 2011 WL 720441, *1 (E.D.Mo.,
Feb. 22, 2011) (citing risk that prisoners would circumvent three strikes provision by joining with other prisoners so
that fewer than all claims would be dismissed); Class Action ex rel. All Prisoners at T.R.C.I. v. Ozmint, 2010 WL
3812531, *2 (D.S.C., Aug. 16, 2010), report and recommendation adopted, 2010 WL 3766873 (D.S.C., Sept. 22,
2010); Benford v. Madison County Bd. of Sup'rs, 2010 WL 235022, *1 (S.D.Miss., Jan. 15, 2010); Kron v. Cook,
2008 WL 194367, *1 (S.D.Tex., Jan. 23, 2008); Worthen v. Oklahoma Dept. of Corrections, 2007 WL 4563665, *3
(W.D.Okla., Dec. 7, 2007) (citing individualized issues concerning administrative exhaustion), report and
recommendation adopted in part, 2007 WL 4563644 (W.D.Okla., Dec. 20, 2007); Lilly v. Ozmint, 2007 WL
2022190, *1 (D.S.C., July 11, 2007); Osterloth v. Hopwood, 2006 WL 3337505, *2-5 (D.Mont., Nov. 15, 2006);
Amir Sharif v. Dallas County, 2006 WL 2860552, *3-4 (N.D.Tex., Oct. 5, 2006); Ray v. Evercom Systems, Inc.,
2006 WL 2475264, *5-6 (D.S.C., Aug. 25, 2006) (extending holding to a fee-paid case), appeal dismissed on other
grounds, 234 Fed.Appx. 248 (5th Cir. 2007); Swenson v. MacDonald, 2006 WL 240233, *3-4 (D.Mont., Jan. 30,
2006); Clay v. Rice, 2001 WL 1380526 (N.D.Ill., Nov. 5, 2001); see Berryman v. Neff, 2013 WL 3547102, *5-6
(E.D.Mich., July 11, 2013) (denying joinder for multiple reasons including three strikes status of lead plaintiff),
reconsideration denied, 2013 WL 4832819 (E.D.Mich., Sept. 10, 2013); Cranford v. Stringer, 2006 WL 2404570,
*1-2 (S.D.Miss., Aug. 15, 2006) (noting that multi-plaintiff suits render the PLRA filing fee and three strikes
provisions “inefficient,” severing claims, but not explicitly holding joinder impermissible).

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Fed.R.Civ.P. 20 is unsupported by statutory language or history1390 and has been rejected by
other circuits, which have stated that there is no reason to believe Congress intended in the
PLRA to repeal the joinder rules.1391 The latter point is supported by the Supreme Court’s
holding that courts should not deviate from the usual procedural practices except to the extent
that the PLRA actually says to do so.1392 That holding would also seem to preclude the
imposition of multiple filing fees in multi-party cases, since the relevant statute says that “the
parties instituting any civil action, suit or proceeding in such court”—not “each party”—shall
pay “a filing fee of $350,”1393 not multiple fees, and nothing in the PLRA purports to address
multi-plaintiff litigation.1394 Further, interpreting the PLRA’s amendments to the IFP statutes in
this manner would lead to the perverse result that groups of prisoners in a single action who can
pay a filing fee up front, and do so, will pay only one fee, but those who cannot muster one fee at
the outset will pay much more.1395
Courts have expressed more legitimate concerns about the joinder rules in connection
with the PLRA, holding that the rules must be enforced scrupulously against prisoners lest they
be able to pay a single filing fee to litigate claims that strictly speaking call for separate
complaints and payments, or to circumvent the “three strikes” provision.1396

1390

See Burke v. Helman, 208 F.R.D. 246, 247 (C.D.Ill. 2002) (rejecting Hubbard holding).
Hagan, 570 F.3d at 154-55; Boriboune, 391 F.3d at 854-55.
1392
Jones v. Bock, 549 U.S. 199, 212-16 (2007).
1393
28 U.S.C. § 1914(a) (emphasis supplied). The statute continues: “The clerk shall collect from the parties such
additional fees only as are prescribed by the Judicial Conference of the United States.” 28 U.S.C. § 1914(b). That
language seems to forbid the expansion of § 1914(a) by creative judicial interpretation.
1394
Hagan v. Rogers, decided after Jones v. Bock, did not address the language of 28 U.S.C. § 1914. Boriboune v.
Berge did, acknowledging that § 1914(a) “implies that the [then] $150 fee is per case rather than per litigant; the
‘parties’ pay $150.” Boriboune, 391 F.3d at 855. However, it asserted that
Section 1915(b)(1), by contrast, specifies a per-litigant approach to fees.
1391

A per-litigant approach is a natural concomitant to a system that makes permission to
proceed in forma pauperis (and the amount and timing of payments) contingent on certain personspecific findings. . . .
Boriboune, 391 F.3d at 856. In fact, 28 U.S.C. § 1915(b)(1) refers only to the situation in which “a prisoner brings a
civil action or files an appeal,”and the court’s view that a “per-litigant approach” is more “natural” in the system
created by the PLRA appears to be precisely the kind of reasoning from “perceived policy concerns” rejected by the
Supreme Court in favor of adhering to the usual litigation practice except where the PLRA states otherwise “in
terms.” Jones v. Bock, 549 U.S. 199, 212-14 (2007).
1395
McGeachy v. Aviles, 2011 WL 1885938, *2-3 (D.N.J., May 18, 2011).
1396
See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007); Simmons v. Akanno, 2010 WL 5186690, *2
(E.D.Cal., Dec. 8, 2010), certificate of appealability denied, 2011 WL 1566583 (E.D.Cal., Apr. 22, 2011); Valdez v.
Dretke, 2007 WL 2177007, *8-9 (S.D.Tex., July 26, 2007); see also Harris v. Gerth, 2008 WL 5424134, *4-5, 12
(E.D.Mich., Dec. 30, 2008) (dismissing all but one plaintiff’s claims in multiple-plaintiff, multiple-claim case);
Vasquez v. Schueler, 2007 WL 5431016, *2 (W.D.Wis., Nov. 29, 2007) (applying George v. Smith, requiring six
claims to be pursued in four separate suits); Pope v. Miller, 2007 WL 2427978, *4-5 (W.D.Okla., Aug. 21, 2007)
(holding claims of two plaintiffs misjoined under Federal Rules where they involved distinct factual issues as to
exhaustion and merits). But see McDonald v. Wexford Health Sources, 2010 WL 3034529, *6 (N.D.Ill., July 30,
2010) (allowing joinder of multiple medical complaints which plaintiff alleged are all related to a cost-cutting policy
of the health provider); Johnson v. Pollard, 2008 WL 5114283, *3 (E.D.Wis., Dec. 2, 2008) (allowing joinder of
different claims against different defendants where plaintiff alleged “a pattern of conduct that occurred within the
segregation unit . . . during a specified period of time” and therefore constituted a single “transaction or occurrence”
for joinder purposes). In McCoy v. Bazzle, 2008 WL 4280386, *5 (D.S.C., Sept. 15, 2008), the plaintiff complained
of dental neglect in one prison, and was denied amendment of his complaint to add continuing dental neglect after

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Prisoners are required to provide certified statements of their prison accounts when they
seek IFP status.1397 A complaint should not be dismissed for prison officials’ failure to provide
the necessary information,1398 or without determining whether the prisoner has done what he or
she can to follow the procedures and make required payments.1399 In at least one case, the court
has acknowledged familiarity with the fact that a jail did not generally provide statements, and
accepted an official’s attestation that the plaintiff had no funds.1400 Refusal by prison officials to
he was transferred to another prison. It is not clear why this course of conduct was not a “series of transactions or
occurrences” within the meaning of Rule 20(a)(2), Fed.R.Civ.P.
1397
Spaight v. Makowki, 252 F.3d 78 (2d Cir. 2001) (holding that account information should be produced for the
six months preceding the notice of appeal, not the in forma pauperis motion); Roberts v. Coddington, 2013 WL
5904435, *1 (N.D.Ill., Nov. 1, 2013) (requiring updated account statement where two months passed between last
entry and creation of statement and two more weeks passed before filing); Morales v. Lanigan, 2012 WL 1600441,
*3 (D.N.J., May 7, 2012) (rejecting account statements not close enough to date of filing of complaint); Knowlin v.
Raemisch, 2009 WL 1259026, *2 (W.D.Wis., May 5, 2009) (holding that account information for June-December
2008 did not satisfy statute where plaintiff sought to appeal well into 2009); Redmond v. Rodriguez, 2007 WL
2382156, *1 (E.D.Cal., Aug. 17, 2007) (holding three months of account information did not satisfy the statute).
But see Mosley v. Tate, 2013 WL 653271, *2 (W.D.N.C., Feb. 21, 2013) (granting IFP where account information
had been filed in another recent action); Galeas v. Previtire, 2012 WL 5985667, *1 (W.D.N.C., Nov. 28, 2012)
(granting IFP without account information because plaintiff has proceeded IFP in prior actions); Baker v. Sedgwick
County Jail, 2012 WL 5332360, *1 (D.Kan., Oct. 24, 2012) (relying on “sparse” records filed in another action).
In Wade v. Swiekatowski, 2010 WL 152073, *1-2 (E.D.Wis., Jan. 15, 2010), the plaintiff was held in a
halfway house, which the court said made him a prisoner subject to the PLRA filing fees provisions. However, the
halfway house did not keep trust accounts for its residents, so the court directed the plaintiff to provide a statement
of account for the last six months he had been in prison. Contra, Doss v. Gilkey, 2007 WL 1810514, *1 (S.D. Ill.,
June 22, 2007) (citing practical problems in implementing fee provisions at a halfway house as supporting their nonapplicability).
1398
McGore v. Wigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997); see Cole v. Sheriffs Office of Lafayette Parish,
2011 WL 1752086, *1 (W.D.La., Apr. 6, 2011) (granting IFP status where prisoner who had been granted IFP three
times previously submitted a copy of a grievance requesting facility staff to act on his request for an account
statement), report and recommendation adopted, 2011 WL 1789915 (W.D.La., May 9, 2011); Lawton v. Ortiz, 2006
WL 2689508, *1 (D.N.J., Sept. 19, 2006) (granting IFP status where prisoner said officials didn’t respond to his
requests for an account statement and other evidence showed he was indigent); see also Williams v. Mestas, 355
Fed.Appx. 222, 226 n.2 (10th Cir. 2009) (unpublished) (noting plaintiff’s “specific and supported allegations” that
officials had refused his requests to certify his trust fund account statement, not reaching question of effect of these
allegations). But see Moore v. David L. Moss Criminal Justice Center, 2012 WL 3686284, *1 (N.D.Okla., Aug. 24,
2012) (admonishing prisoner who said he had “trouble” getting a certified statement to keep trying).
1399
Hatchett v. Nettles, 201 F.3d 651 (5th Cir. 2000); accord, Thomas v. Butts, ___ F.3d ___, 2014 WL 975403, *2
(7th Cir. 2014) (holding district court abused its discretion in dismissing for non-payment of initial partial fee
without determining whether the plaintiff was at fault for non-payment); Redmond v. Gill, 352 F.3d 801, 803-04 (3d
Cir. 2003) (vacating dismissal where prisoner failed to meet a 20-day deadline for authorizing deduction of fees
from his prison account; it was not clear whether he received the order, or received it in time to comply); Cosby v.
Meadors, 351 F.3d 1324, 1331-32 (10th Cir. 2003) (agreeing that courts must ascertain whether prisoners sought to
comply with orders to authorize fee payments before dismissing, rejecting plaintiff’s claim on the merits), cert.
denied, 541 U.S. 1035 (2004); see Massaro v. Balicki, 2013 WL 6230488, *2 (D.N.J., Nov. 26, 2013) (same as
Jordan); Jordan v. Hastings, 2012 WL 1600429, *2 (D.N.J., May 7, 2012) (“To the extent Plaintiff asserts that
correctional officials have refused to provide the certified account statement, any such assertion must be supported
by an affidavit specifically detailing the circumstances of Plaintiff's request for a certified institutional account
statement and the correctional officials' refusal to comply, including the dates of such events and the names of the
individuals involved.”); Armstrong v. Mukasey, 2008 WL 5401606, *2 (D.N.J., Dec. 22, 2008) (same as Jordan).
But see Baldauf v. Garoutte, 2007 WL 2697445, *12-13 (D.Colo., Sept. 11, 2007) (dismissing for repeated failures
to make required payments).
1400
Jones v. Whitworth, 2013 WL 4503341, *1 (M.D.Tenn., Aug. 22, 2013) (requiring officials to commence
submitting fee payments per the statutory formula).

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provide the required information would violate the right of access to courts.1401 IFP status may
be granted conditionally to prisoners without an IFP application on a showing of imminent
physical harm.1402
Prisoners generally may not be prohibited from bringing an action because they owe fees
on a prior action.1403 However, one federal circuit has held that prisoners who seek dishonestly
to evade payment of filing fees or fail to pay fees incurred because they are subject to the “three
strikes” provision1404 can be denied IFP status or barred from filing.1405 The Second Circuit has
held, contrary to some other courts, that no more than one fee, plus one award of costs, may
actually be collected at one time.1406 If the court remits too much in collecting a filing fee, the
remedy is to abate the collection temporarily.1407
Assessed costs must be paid in full in the same manner as filing fees. 1408 However,
courts retain their pre-PLRA discretion to assess or refrain from assessing costs against indigent
prisoners.1409

1401

Adnan v. Santa Clara County Dept. of Corrections, 2002 WL 32058464, *12 (N.D.Cal., Aug. 15, 2002).
Jackson v. Grondolsky, 2011 WL 13704, *1 (D.N.J., Jan.3, 2011) (noting that the court granted plaintiff IFP
conditionally “in light of his allegations that he was swiftly going blind due to an alleged denial of medical care”).
Compare Miller v. New Jersey, 2013 WL 2149692, *4 (D.N.J., May 16, 2013) (distinguishing Jackson, holding
allegation of risks of contusions and abrasions during transportation did not merit conditional IFP certification
without application).
1403
Walp v. Scott, 115 F.3d 308 (5th Cir. 1997).
1404
28 U.S.C. § 1915(g); see next section for further discussion.
1405
Campbell v. Clarke, 481 F.3d 967, 969-70 (7th Cir. 2007); Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999);
see Pozo v. Herwig, 2008 WL 4836411, *1 (E.D.Wis., Nov. 6, 2008) (stating the Seventh Circuit rule does not allow
“imminent danger” exception), reconsideration denied, 2008 WL 5046453 (E.D.Wis. Nov. 25, 2008). But see
Miller v. Donald, 541 F.3d 1091, 1099 (11th Cir. 2008) (prisoner subject to three strikes provision who has not paid
filing fees owed cannot be barred from filing under “imminent danger of serious physical injury” exception to three
strikes statute).
1406
Whitfield v. Scully, 241 F.3d 264, 275-78 (2d Cir. 2001); see Torres v. O'Quinn, 612 F.3d 237, 242 (4th Cir.
2010) (also holding only one fee to be paid at a time, not addressing costs). Contra, Christensen v. Big Horn County
Board of County Commissioners, 374 Fed.Appx. 821, 829-32 (10th Cir. 2010) (unpublished); Atchison v. Collins,
288 F.3d 177, 180-81 (5th Cir. 2002); Markovick v. Werholtz, 2011 WL 751155, *1 (D.Kan., Feb. 24, 2011)
(following Christensen); Lyon v. Kentucky State Penitentiary, 2005 WL 2044955, *1 (W.D.Ky., Aug. 23, 2005).
See also Aldrich v. Considine, 2013 WL 4679722, *4 & n.3 (D.Mass., Aug. 29, 2013) (similar to Davis, below),
appeal dismissed, No. 13-2221 (1st Cir., Mar. 5, 2014); Davis v. Middlesex Superior Court, 2011 WL 1344155, *2
& n.3 (D.Mass., Apr. 7, 2011) (stating that consistently with this court’s practice, fee should be collected only after
any prior fee obligations are completed); Bey v. Williams, 2010 WL 1759573, *3 (D.Md., Apr. 29, 2010) (stating
the PLRA does not say how monthly payments are to be computed for prisoners who owe multiple fees; expressing
approval of Maryland policy which only deducts one 20% payment from monthly income, rather than rendering the
prisoner “utterly destitute”).
1407
Biggs v. Hunt, 2012 WL 3613073, *4 (E.D.N.C., Aug. 21, 2012).
1408
28 U.S.C. § 1915(f)(2); see Skinner v. Govorchin, 463 F.3d 518, 523-24 (6th Cir. 2006) (holding state’s taking
of 100% of funds to satisfy a costs award was unauthorized by the statute); Whitfield v. Scully, 241 F.3d at 278
(holding that only one award of costs may be collected at one time). In Skinner, id., the court held that an injunction
forbidding the state’s collection practice prospectively would not violate the Tenth or Eleventh Amendment.
1409
Whitfield v. Scully, 241 F.3d at 273; Feliciano v. Selsky, 205 F.3d 568, 572 (2d Cir. 2000). The Second Circuit
has held that “[u]nless there is a specific direction by the court for the payment of costs by a prisoner proceeding in
forma pauperis, no costs may be taxed by the prevailing party.” Feliciano, id. The Sixth Circuit has rejected this
view. Skinner, 463 F.3d at 521-22.
1402

314

If a case is dismissed for failure to exhaust administrative remedies and then is refiled
after exhaustion, the plaintiff does not have to pay another filing fee, according to the only
federal circuit to rule on the question; district court decisions are mixed.1410
Most courts have held that prisoners who are released after filing are treated like other
litigants and may seek in forma pauperis status after release on the same terms as any other
litigant,1411 though some have held that they must pay any fees that were already due before their
release.1412

VIII.

Three Strikes Provision

A prisoner who has brought three actions or appeals “while incarcerated or detained in
any facility” that were dismissed as frivolous, malicious, or failing to state a claim for relief may
not “bring a civil action or appeal a judgment in a civil action or proceeding under this
section”—that is, file in forma pauperis—unless the prisoner is under imminent danger of
serious physical injury.1413 Apart from that imminent danger exception, the statutory language is
1410

See n. 264.
DeBlasio v. Eggleston, 315 F.3d 396, 399 (4th Cir. 2003) (citing cases); McGann v. Comm’r, Soc. Sec. Admin.,
96 F.3d 28, 29-30 (2d Cir. 1996); McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); see Duran v.
Crandell, 2012 WL 2065540, *1-3 (D.Colo., June 8, 2012) (directing filing of new IFP application, noting released
plaintiff did not have a prison account; reviewing relevant case law); Robinson v. Caspari, 2007 WL 187808, *1
(E.D.Mo., Jan. 22, 2007) (directing released plaintiff to submit a new in forma pauperis application). But see Gay v.
Texas Department of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997) (holding filing fee must be
assessed, not explaining how it is to be collected from a person who no longer has a prison account); Murphy v.
Maricopa County Sheriff’s Office, 2005 WL 3273573, *1 (D.Ariz., Dec. 1, 2005) (holding a released prisoner must
pay the entire filing fee within 30 days or show cause why he cannot); see also Dillard v. City of St. Paul, 2010 WL
396777, *1 (D.Minn., Jan. 27, 2010) (holding unpaid balance upon release will become due if the plaintiff ever
returns to prison); accord, Jones v. Redding, 2011 WL 2981446, *1 (D.Minn., July 22, 2011); Wolf v. Rios, 2008
WL 4745667, *5 n.6 (D.Minn., Oct. 29, 2008).
1412
Robbins v. Switzer, 104 F.3d 895, 899 (7th Cir. 1997) (holding that a released prisoner must pay any part of the
filing fee that he or she could have paid before release); accord, In Re Smith, 114 F.3d 1247, 1251-52 (D.C.Cir.
1997); Hobbs v. El Paso County, 2008 WL 2787246, *3-4 (D.Colo., July 16, 2008). But see Gooden v. Washington,
2011 WL 2457900, *5 (M.D.Ga., May 9, 2011) (holding prisoner must continue to pay entire filing fee after release,
and authorizing collection “by any means permitted by law” if he does not), report and recommendation adopted in
part, rejected in part on other grounds, 2011 WL 2435374 (M.D.Ga., June 16, 2011).
1413
28 U.S.C. § 1915(g); see Harris v. City of New York, 607 F.3d 18, 21-22 (2d Cir. 2010) (holding provision
applies to suits filed while the plaintiff is in prison, even if he has been released at the time the court addresses the
issue); Oliphant v. Villano, 2010 WL 363446, *2 (D.Conn., Jan. 25, 2010) (appeals filed from prison were “strikes”
even though the actions were initially filed when plaintiff was out of prison).
Some courts have held that a prisoner with three strikes is barred from intervening in an already filed civil
action. Holloway v. Magness, 2008 WL 2367235, *9 (E.D.Ark., June 6, 2008); accord, Pinson v. U.S. Department
of Justice, ___ F.Supp.2d ____, 2013 WL 5423107, *7 (D.D.C. 2013) (“This Court will not allow Mr. Stine to
circumvent the three-strike rule by attempting to join the Plaintiff's complaint through joinder.”). These decisions
do not explain how the statutory language “bring a civil action or appeal a judgment in a civil action or proceeding”
applies to intervention, which fits neither phrase. Another decision disapproves a three-strike prisoner’s practice of
filing motions in closed cases as a means of avoiding paying the filing fee. Hearn v. Redman, 2009 WL 2762446,
*3 (D.Del., Aug. 27, 2009).
The statute does not prevent a plaintiff from filing an amended complaint in a suit brought before he had
three strikes. Elkins v. Schrubbe, 2005 WL 1154273, *1 (E.D.Wis., Apr. 20, 2005). However, courts have held that
prisoners with three strikes may not evade the statute’s terms by adding new claims to an already filed complaint
that could be brought separately. Walck v. Dunkerson, 316 Fed.Appx. 608, 609, 2009 WL 535825 (9th Cir. 2009);
Pauline v. Patel, 2009 WL 454653, *8 (D.Haw., Feb. 23, 2009), report and recommendation adopted, 2009 WL
750188 (D.Haw., Mar. 19, 2009). Similarly, a prisoner with three strikes may not amend a habeas petition (which is
1411

315

mandatory and categorical.1414 That means a prisoner who can’t pay the whole fee up front is out
of court1415–though some courts have held that, having filed the action or appeal, they have to
pay the filing fee even if they don’t get anything for their fee. 1416 One federal circuit has held

not subject to § 1915(g)) to add a § 1983 claim and thereby avoid the statute. McGore v. Michigan Parole Bd., 2012
WL 1067235, *3 (W.D.Mich., Mar. 28, 2012).
1414
In exceedingly rare circumstances, courts have declined to impose a strike for a case within the statutory bounds.
See Duncan v. Kaelin, 2014 WL 258649, *3 (S.D.Tex., Jan. 23, 2014) (“recognizing Plaintiff's frustration at the time
he filed suit” with irregular outgoing mail pickup” and stating the dismissal should not be characterized as a strike);
Barnes v. Reveley, 2012 WL 9189296, *1 (E.D.Va., Nov. 30, 2012) (directing that dismissal should not be deemed a
strike because at the time he filed the case, plaintiff had not received the decision dismissing a similar claim); Roach
v. Sterns County, 2010 WL 2629407, *3 (D.Minn., June 11, 2010) (recommending relieving plaintiff of paying the
filing fee, “as he appears to completely misapprehend the requisites of a cognizable claim”), report and
recommendation adopted, 2010 WL 2629403 (D.Minn., June 28, 2010); Wedington v. U.S. Federal Government,
2009 WL 2916860, *2-3 (D.Minn., Sept. 4, 2009) (prisoner erroneously filed a civil action to vacate a commitment
order; “[i]n light of his pro se status and his apparent schizophrenia, it would be wholly inappropriate for such a
mistake to contribute to limiting Wedington’s future access to the justice system”); Dalvin v. Beshears, 943 F.Supp.
578 (D.Md. 1996) (court granted Rule 60(b) motion to relieve plaintiff of a strike where he had filed suit to obtain a
copy of a standing order of the court because he was unable to get it any other way). In even rarer instances, courts
have allowed litigators with three strikes and no imminent danger to go forward. See Robbins v. Jordan, 2011 WL
253637, *1 (M.D.Fla., Jan. 26, 2011) (“This Court prefers to resolve the case on the merits rather than dismiss the
case based on the three-strikes provision when in effect Plaintiff would be barred from refiling and having the merits
of his claim addressed in federal court.” Court cites “unique circumstances” of having appointed counsel because of
hardships of pursuing the action.).
1415
One court has held that both appeals courts and district courts have the discretion to bypass the three strikes
question and proceed to the merits, at least in “extraordinary circumstances.” Smith v. Veterans Admin., 636 F.3d
1306, 1309-10 (10th Cir. 2011) (quoting Garcia v. Silbert, 141 F.3d 1415, 1417 n. 1 (10th Cir. 1998)), cert. denied,
132 S.Ct. 381 (2011); see Dubuc v. Johnson, 314 F.3d 1205 (10th Cir. 2003) (presenting three separate opinions,
two finding discretion in different sources and one rejecting discretion). Presumably this authority is generally
limited to cases where the court can summarily rule on the merits against the plaintiff. See Dixon v. United States,
2014 WL 486608, *2 (Fed.Cl., Feb. 6, 2014) (stating “the court has decided to waive the filing fee for purposes of
ruling on the government's motion to dismiss”; dismissing for lack of jurisdiction).
Another decision says, notwithstanding the statutory language, that district courts have the discretion to
allow a litigant with three strikes to pay fees over time. Dudley v. U.S., 61 Fed.Cl. 685, 688 (Fed.Cl. 2004). It is
also the case that a timely notice of appeal confers appellate jurisdiction even if the filing fee is not tendered timely.
Daly v. U.S., 109 Fed.Appx. 210, 212, 2004 WL 1701062, *2 (10th Cir. 2004) (unpublished), and cases cited. To
what extent this may allow litigants with three strikes to make arrangements to pay the filing fee as and when they
have the money has not been explored. However, a number of decisions have rejected requests for delayed or
periodic payments because that is what the prisoner gets when in forma pauperis status is granted. Flemming v.
Fischer, 2009 WL 2156906, *1 (N.D.N.Y., July 15, 2009) (rejecting offer to pay in seven installments of $50);
Taylor v. Ayers, 2008 WL 5211002, *3 (N.D.Cal., Dec. 11, 2008); Hyder v. Board of Paroles, 2008 WL 5070151,
*1 (S.D.Tex., Nov. 21, 2008), vacated in part on reconsideration, 2008 WL 5401528 (S.D.Tex., Dec. 23, 2008);
Jones v. Federal Bureau of Prisons, 2008 WL 2512919, *1-2 (E.D.Tex., June 19, 2008).
1416
See Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); In re Alea, 286 F.3d 378, 381-82 (6th Cir.
2002); Dickerson v. Bergaland, 2013 WL 3674430, *1 (S.D.Ill., July 12, 2013); Cohen v. Growse, 2011 WL
947085, *6 (E.D.Ky., Mar. 14, 2011); Schultz v. Wallace, 2006 WL 6000792, *2 (W.D.Wis., Feb. 28, 2006);
McSwain v. Wallintin, 2003 WL 23138750 (W.D.Wis., Apr. 4, 2003) (holding that the order to that effect can be
appealed without prepaying the appellate filing fee); see also Tibbs v. Cockrell, 85 Fed.Appx. 385, 2004 WL 57382
(5th Cir., Jan. 13, 2004) (unpublished) (holding appeal of prisoner with three strikes frivolous on merits; he moved
for IFP status in the appeals court, was granted it despite having three strikes, and then the court examined the
merits).

316

that a prisoner with three strikes who seeks IFP status anyway can be barred from any future
filings in federal court.1417
Exclusion from IFP status under § 1915(g) does not only affect payment of the filing fee;
it also bars prisoners from receiving transcripts on appeal at government expense, which may
preclude effective review even if the prisoner can muster the filing fee.1418 Some courts have
gone further and held that exclusion from IFP status means that the court cannot appoint
counsel.1419 In my view, that holding is wrong because it is contrary to the relevant statutory
language. The counsel appointment provision says: “The court may request an attorney to
represent any person unable to afford counsel.”1420 Unlike § 1915(g), it does not refer to persons
“bring[ing]” suit “under this section.” Further, it refers to persons “unable to afford counsel,”
unlike the other provisions of the statute that excuse persons from prepayment of the filing fee if
they are “unable to pay such fees or give security therefor.” 1421 Inability to pay a $350 filing fee
(now enhanced by a $50 “administrative fee” for those not granted IFP status1422) or a $450
appellate fee is obviously not the same as inability to pay a lawyer to pursue a civil lawsuit of
any substance. The provision for appointment of counsel involves a separate analysis from
“bringing an action” IFP, even though it appears in the IFP statute.1423
At least one court has directed the Marshals to serve process for a prisoner with three
strikes who was not proceeding IFP, since he did not seem to be able to accomplish it
himself.1424 Another court has rejected an argument by defendants that they were entitled to
1417

Campbell v. Clarke, 481 F.3d 967, 969-70 (7th Cir. 2007) (prisoner with three strikes who sought to file again
without prepaying all fees could be barred from further filings even if he paid the fees); Sloan v. Lesza, 181 F.3d
857, 859 (7th Cir. 1999).
At least one district court has held that this Seventh Circuit rule even bars prisoners with three strikes from
filing in forma pauperis when they satisfy the imminent danger of serious physical injury exception to § 1915(g).
Pozo v. Herwig, 2008 WL 4836411, *1 (E.D.Wis., Nov. 6, 2008), reconsideration denied, 2008 WL 5046453
(E.D.Wis., Nov. 25, 2008). However, the only appeals court to rule on the question has held otherwise. Miller v.
Donald, 541 F.3d 1091, 1099 (11th Cir. 2008) (prisoner subject to three strikes provision who has not paid filing
fees owed cannot be barred from filing under “imminent danger of serious physical injury” exception to three strikes
statute).
1418
Maus v. Baker, 729 F.3d 708, 709-10 (7th Cir. 2013) (Posner, J., sitting as motions judge). The court notes that
holdings that a litigant who can pay the filing fee may still be sufficiently indigent to receive free transcripts do not
apply to prisoners with three strikes.
1419
See Mills v. Fischer, 645 F.3d 176, 177-78 (2d Cir. 2011); Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir.
2011) (“Because Brightwell was barred from proceeding under § 1915, he was not entitled to any of the benefits that
accrue to one who proceeds in forma pauperis.”); Gay v. Chandra, 2010 WL 4717647, *2 (S.D.Ill., Nov. 15, 2010)
(stating that “a plaintiff seeking appointment of counsel must have already been granted leave to proceed in forma
pauperis”); Hairston v. Blackburn, 2010 WL 145793, *10 (S.D.Ill., Jan. 12, 2010); Crooker v. U.S., 2009 WL
6717363, *4 (D.Mass., May 7, 2009); Ammons v. Gerlinger, 2007 WL 5595899, *1 (W.D.Wis., May 1, 2007).
The Third Circuit has mitigated the harshness of the Brightwell rule in some IFP cases by appointing
“amicus counsel” to argue specified points on the prisoner litigant’s behalf. Ball v. Famiglio, 726 F.3d 448, 455 (3d
Cir. 2013), pet. for cert. filed, Nos. 13-8254, 13A434 (Jan. 13, 2014); Byrd v. Shannon, No. 11-1744 (Order, Jan.
12, 2012).
1420
28 U.S.C. § 1915(e)(1) (emphasis supplied).
1421
28 U.S.C. § 1915(a)(1).
1422
Judicial Conference Schedule of Fees, District Court Miscellaneous Fee Schedule, ¶ 14 (effective May 1, 2013).
1423
Cf. Weir v. Potter, 214 F.Supp.2d 53, 55 (D.Mass. 2002) (holding a person not indigent enough to proceed in
forma pauperis may be eligible for appointment of counsel).
1424
Washington v. Early, 2009 WL 959796, *2 (E.D.Cal., Apr. 7, 2009). But see Hairston v. Blackburn, 2010 WL
145793, *9-10 (S.D.Ill., Jan. 12, 2010) (plaintiff failed to show why he could not serve process himself under the
Federal Rules).

317

ignore service waivers and require the plaintiff to bear the costs of service because he had three
strikes.1425
The statutory language indicates that § 1915(g) does not provide for dismissal, but only
for exclusion from in forma pauperis status, so most courts have allowed litigants found to have
three strikes an opportunity to pay the filing fee.1426 Two circuits have held otherwise.1427
1425

Smith v. Conner, 2013 WL 1482761, *1 (M.D.Fla., Apr. 10, 2013), reconsideration denied, 2013 WL 3063722
(M.D.Fla., June 18, 2013).
1426
See, e.g., Ball v. Famiglio, 726 F.3d 448, 471 (3d Cir. 2013) (14 days after judgment to pay the filing fee), pet.
for cert. filed, Nos. 13-8254, 13A434 (Jan. 13, 2014); Dubuc v. Johnson, 314 F.3d 1205, 1207 (10th Cir. 2003)
(“We VACATE the district court's grant of Plaintiff's motion to proceed in forma pauperis and direct Plaintiff to pay
the full filing fee within thirty days” or the appeal will be dismissed; citing earlier circuit decision doing the same);
In re Alea, 286 F.3d 378, 379 (6th Cir. 2002) (holding district court “properly applied the three-strikes provision in
this action by assessing the full filing fee against the petitioner and giving him 30 days in which to pay that fee
before dismissing the action”); Smith v. District of Columbia, 182 F.3d 25, 29–30 (D.C. Cir. 1999) (holding person
barred from filing as a poor person has 14 days to pay filing fee so that his suit may proceed); Henderson v. Caskey,
1997 WL 33827110 (5th Cir.1997) (unpublished) (revoking IFP, allowing 30 days to pay the fee); Davis v. Upton,
2012 WL 1194308, *2 (W.D.Okla., Apr. 10, 2012) (allowing 17 days to pay the fee); Herman v. Ferriter, 2012 WL
1081076, *1 (D.Mont., Mar. 28, 2012) (allowing 32 days to pay the fee), appeal dismissed, No. 12-35272 (9th Cir.,
Aug. 13, 2012); Tierney v. Alo, 2012 WL 622238, *3 (D.Haw., Feb. 24, 2012) (allowing 30 days to pay the fee or
show cause why the complaint should not be dismissed), appeal dismissed, No. 12-15611 (9th Cir., Apr. 12, 2012);
Reynolds v. Luckenbaugh, 2012 WL 592879, *3 (D.Colo., Feb. 23, 2012) (allowing 30 days to pay the fee); Cox v.
Federal Atty. Gen., 2012 WL 379747, *1 D.S.C., Feb. 3, 2012) (allowing 21 days to pay the fee); Southerland v.
Patterson, 2012 WL 208105, *2 (S.D.N.Y., Jan. 23, 2012) (allowing 30 days to pay the fee); see Appendix A for
additional authority on this point.
1427
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding suit must be dismissed without prejudice and
refiled, since statute says fee is to be paid at the initiation of suit); Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999)
(holding that a prisoner subject to § 1915(g) who seeks IFP status should have his case dismissed for committing “a
fraud on the federal judiciary”); accord, Grandinetti v. Inverness Medical Co., 2012 WL 3883646, *2 (D.Haw.,
Sept. 5, 2012); Eddington v. Boyles, 2011 WL 3444232, *1 (N.D.W.Va., Aug. 8, 2011) (following Dupree); Sayre
v. Seifert, 2011 WL 1258112, *1 (N.D.W.Va., Apr. 1, 2011); Barbour v. Sandstrom-Keeffee Commissary Services,
2010 WL 1278171, *1 (W.D.Va., Mar. 31, 2010). In Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010), the
court affirmed dismissal without discussing whether dismissal is required.
Two California decisions, Miller v. Keating, 2011 WL 285080, *1 (E.D.Cal., Jan. 25, 2011) and Dean v.
Medieros, 2010 WL 3943525, *1-2 (E.D.Cal., Oct. 1, 2010), using identical language, grossly overstate the extent to
which federal courts have held that dismissal without an opportunity to appeal is the proper disposition where the
plaintiff has three strikes. For that proposition, they cite two Ninth Circuit cases, one of which held that a case was
“properly dismissed” by the district court under § 1915(g), Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1998),
and another which dismissed an appeal without providing an opportunity to pay the fee, though it dismissed without
prejudice and stated that the appellant “may resume this appeal upon prepaying the filing fee.” Rodriguez v. Cook,
169 F.3d 1176, 1182 (9th Cir. 1999). Neither decision made reference to the appropriateness of immediate dismissal
versus allowing an opportunity to pay the fee. They then stated: “This conclusion is consistent with the conclusions
reached in at least three other circuits,” appropriately citing Dupree v. Palmer, but then asserting that the Fifth and
Sixth Circuit also “follow the same rule” requiring dismissal without an opportunity to pay the fee. Miller, 2011
WL 285080, *1 (emphasis supplied); accord, Dean, 2010 WL 3943525, *2. From the Fifth Circuit, they cited
Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), which indeed dismissed the three-striker plaintiff’s appeal, but
without discussing whether an opportunity to pay the filing fee was appropriate. 103 F.3d at 388. From the Sixth
Circuit, they cited In re Alea, 286 F.3d 378 (6th Cir. 2002), which stands for the precisely opposite proposition: “we
conclude the district court properly applied the three-strikes provision in this action by assessing the full filing fee
against the petitioner and giving him 30 days in which to pay that fee before dismissing the action.” 286 F.3d at 382
(emphasis supplied). The Miller and Dean decisions do not acknowledge contrary authority from other circuits and
from their own district, cited in the preceding footnote. Other decisions in the same district have held similarly. See
Williams v. Higgins, 2013 WL 310560, *1-2 (E.D.Cal., Jan. 25, 2013); Givens v. Knipp, 2012 WL 4755166, *1-2
(E.D.Cal., Oct. 4, 2012); McElroy v. Asad, 2012 WL 3839409, *1-2 (E.D.Cal., Sept. 4, 2012); Bell v. Dileo, 2011

318

Dismissal, whether directly or after failing to pay the filing fee as ordered, is without prejudice,
so the plaintiff can re-file and use the ordinary civilian in forma pauperis procedures if released
(i.e., no longer a prisoner) before the limitations period has run.1428 However, that fact does not
moot an appeal of the denial of IFP status if the plaintiff is released during its pendency.1429
This statute bars many litigants with substantial claims from litigating them.1430 The
limitations period is not tolled by three strikes status, so a prisoner cannot wait until after release
to file suit if the limitations period expires while he is incarcerated.1431 Further, the inclusion in
the statutory criteria of failure to state a claim allows prisoners to be charged strikes for raising
claims that are legitimately debatable and about which courts are divided. 1432 One court has held
that a litigant with three strikes can be barred from filing any further papers in court until all
previously incurred fees have been paid.1433 However, that rule cannot be extended to bar in
forma pauperis filings by prisoners whose cases satisfy the “imminent danger of serious physical
injury” exception to § 1915(g).1434
One federal appeals court has held that the three strikes provision is not the exclusive
basis for denying IFP status to prisoners perceived to have abused the privilege. A court may
deny IFP status to a prisoner who does not have three strikes based on “the number, content,
frequency, and disposition of [the litigant’s] previous filings to determine if there is a pattern of
abusing the IFP privilege in his litigation history.”1435 This power is said to be distinct from the
courts’ power to enjoin the activities of abusive litigants, and requires a lesser showing of abuse,
since the latter involves a direct restriction on the right of access to courts, and the denial of IFP
status is merely the restriction of a privilege.1436 Having held that it is not restricted in this area
by the terms of the PLRA, the court then adopted the terms of the PLRA with respect to the
“imminent danger of serious physical injury” exception, discussed below, stating that such an
exception “would comport with the considered policy judgment of Congress as expressed in the

WL 1327711, *4 (E.D.Cal., Apr. 5, 2011) (adopting part of same argument); Saif'ullah v. Sisto, 2011 WL 1235197,
*2 (E.D.Cal., Mar. 31, 2011) (same, citing additional cases).
1428
Harris v. City of New York, 607 F.3d at 24; Vogel v. Roy, 2012 WL 2045963, *1 n.1 (D.Minn., June 6, 2012)
(noting nothing would impede three-strike plaintiff’s re-filing after release where dismissal was without prejudice);
Woodall v. Schwarzenegger, 2011 WL 864372, *1 (S.D.Cal., Mar. 9, 2011) (assessing IFP application according to
usual civilian standards where plaintiff was barred by three strikes but re-filed after release); Johnson v. Delgado,
2010 WL 2367389, *6 (S.D.Ill., June 11, 2010). Compare Rhine v. U.S., 2013 WL 5724067, *2 (N.D.W.Va., Oct.
21, 2013) (holding released plaintiff who had not re-filed was bound by prisoner status at time of filing).
1429
Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 893 (9th Cir. 2011) (“When considering whether a
case is moot, we ask whether we can grant any effective relief ‘within the confines of the case itself.’” (citations
omitted)).
1430
See, e.g., Bowler v. Ray, 2007 WL 1725354, *1 (W.D.Va., June 13, 2007) (applying § 1997e(e) to prisoner’s
challenge to seven-year retention in segregation).
1431
James v. Branch, 2009 WL 4723139, *10-11 (E.D.La., Dec. 1, 2009) (“This provision did not prevent James
from filing a timely suit, it only prohibited his ability to do so as a pauper, without pre-payment of the filing fee.”).
1432
Hudson v. Michigan Dept. of Corrections, 2009 WL 56759, *9 (W.D.Mich., Jan. 8, 2009) (holding challenge to
restriction on Uniform Commercial Code materials does not state a claim, charging strike, after lengthy discussion
which notes that other cases have held to the contrary).
1433
Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999).
1434
Miller v. Donald, 541 F.3d 1091, 1099 (11th Cir. 2008).
1435
Butler v. Department of Justice, 492 F.3d 440, 446 (D.C.Cir. 2007).
1436
Butler, 492 F.3d at 446. Mr. Butler was found to be an abusive litigant and denied IFP status based on some ten
appeals and at least 15 actions, all but one unsuccessful. Id.

319

PLRA”1437—despite its willingness to depart from the policy judgment of Congress in the PLRA
as to when to exclude prisoners from IFP status. This argument has commanded some respect in
another circuit, fortunately only in a sideshow of a concurring opinion,1438 and has been
effectively refuted by the dissenting judge in that case, who pointed out that the more specific
guidance of Congress in § 1915(g) regarding exclusion from IFP status surely governs the use of
the more general pre-existing discretion to do so.1439
Some states have passed their own statutes intended to control frivolous litigation by
prisoners or by all litigants. One such provision, the California “vexatious litigant” statute,1440
has been invoked in federal court prison litigation on a number of occasions.1441 However, some
federal courts have held that state law provisions of this sort are redundant of § 1915(g)’s
requirement to prepay the filing fee and in conflict with its exception for cases of imminent
danger of serious physical injury,1442 or are otherwise inappropriate for invocation by federal
courts.1443
1. Strikes Defined
“Strikes” comprise only actions dismissed for the reasons stated in the statute:
frivolousness, maliciousness, or failure to state a claim.1444 (An affirmative defense that is
1437

Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 420 (D.C.Cir. 2009) (stating that the exception it adopted
“mirrors the PLRA’s”).
1438
Blakely v. Wards, 738 F.3d 607, 619-22 (2013) (Wilkinson, J., concurring), pet. for cert. filed, No. 13-8905
(Feb. 27, 2014).
1439
Blakely, 738 F.3d at 629 (Motz, J., dissenting) (“It is ‘a commonplace of statutory construction that the specific
governs the general,’ and this command applies with particular force where, as here, the general clause (§
1915(a)(1)) is a ‘relic’ of an earlier (pre-§1915(g) reign.” (citing Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384, 385 (1992))).
1440
Cal.C.C.P. § 391.1 (Title 3A, part 2, of the California Code of Civil Procedure).
1441
See, e.g., Tyler v. Knowles, 2012 WL 5523405, *1, 8 (E.D.Cal., Nov. 13, 2012) (declaring plaintiff a vexatious
litigant, enjoining filings, requiring $850 security to continue this action); Hollis v. Gorby, 2011 WL 2924322, *3-4
(E.D.Cal., July 15, 2011) (declining to declare plaintiff a vexatious litigant), reconsideration denied, 2011 WL
4634157 (E.D.Cal., Oct. 4, 2011). At least one district court has adopted this provision as a discretionary local rule.
See Stephen v. Zhang, 2011 WL 2516244, *2 (E.D.Cal., June 21, 2011) (citing Local Rule 151(b)), report and
recommendation adopted, 2011 WL 3500724 (E.D.Cal., Aug. 8, 2011).
1442
Stephen v. Zhang, 2011 WL 2516244, *2.
1443
Brock v. Skolnik, 2012 WL 683909, *6 (D.Nev., Jan. 25, 2012) (declining to apply state statute sanctioning
prisoners with loss of good time in light of § 1915(g) and other options open to federal court, as well as the state
statute’s lack of authorization of judicial action), report and recommendation adopted, 2012 WL 724711 (D.Nev.,
Mar. 2, 2012), appeal dismissed, No. 12-15575 (9th Cir., June 12, 2012).
1444
O'Neal v. Price, 531 F.3d 1146, 1155, n. 9 (9th Cir. 2008) (observing that “actions dismissed for procedural
defects are not necessarily strikes under § 1915(g), though they may constitute strikes under certain
circumstances.”); Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (refusing to treat an appeal dismissed as
premature as a strike, stating the PLRA “was designed to stem the tide of egregiously meritless lawsuits, not those
temporarily infected with remediable procedural or jurisdictional flaws”); Heard v. Blagojevich, 216 Fed.Appx. 568,
570, 2007 WL 445007, *2 (7th Cir., Feb. 7, 2007) (unpublished) (holding dismissal for fraud was not a strike);
Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); Saunders v. Saunders, 2013 WL 4040766, *5 (E.D.Cal.,
Aug. 7, 2013) (holding dismissal for non-payment of filing fee was not a strike where there it was unclear whether
there was an underlying finding of the enumerated factors); Williams v. Horner, 2012 WL 5298466, *2 (E.D.Ark.,
Oct. 18, 2012) (holding dismissal after an evidentiary hearing for failure to produce enough evidence to create a jury
issue was not a strike), report and recommendation adopted, 2012 WL 5290273 (E.D.Ark., Oct. 25, 2012);
Benyamini v. Ogbeide, 2012 WL 4364329, *1 (E.D.Cal., Sept. 21, 2012) (holding dismissal as “so vague and
conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for

320

apparent on the face of the complaint means that the complaint fails to state a claim and is a
strike.1445)
A dismissal that invokes the correct statutory grounds and standard is a strike even if it
cites other reasons for dismissal in addition.1446 Dismissals made on any of the specified grounds
of § 1915(g) are strikes regardless of the statutory authority under which they are granted or the
procedural posture of the case.1447 Dismissals that fit the statutory criteria are strikes regardless
of age1448 and even if they occurred before enactment of § 1915(g).1449
At least, the foregoing—which adds up to no more than interpreting the statute the way it
is written—represents the central tendency of the case law. Some district courts seem
determined to push the envelope and find ways to broaden the definition of strikes,1450 thereby
relief” is not a strike because it “did not affirmatively find the complaint was either frivolous or failed to state a
claim”); Thomas v. Felker, 2012 WL 2116406, *4 (E.D.Cal., June 11, 2012) (affirmance of denial of injunctive
motion as premature because the complaint had not been served was not a strike); Martinez v. U.S., 812 F.Supp.2d
1052, 1057 (C.D.Cal. 2010) (dismissal of duplicative claim not found to be malicious was not a strike); Drollinger v.
Carlson, 2009 WL 348082, *1 (D.Or., Feb. 9, 2009) (dismissal for failure to authorize payment of the filing fee is
not a strike); Morefield v. Brewton, 2008 WL 5209984, *2 (S.D.Ga., Dec. 11, 2008) (dismissal as duplicative of
another case is not a strike absent a finding the case was frivolous, malicious, or failed to state a claim); Fortson v.
Kern, 2005 WL 3465843, *2 (E.D.Mich., Dec. 19, 2005) (holding dismissal for failure to pay initial filing fee is not
a strike); Maree-Bey v. Williams, 2005 WL 3276276, *2 (D.D.C., Aug. 1, 2005) (holding dismissal under
Fed.R.Civ.P. 8 is not a strike). In Anderson v. Soukup, 2008 WL 623491, *1 (W.D.Wash., Mar. 4, 2008), the
magistrate judge said the plaintiff appeared to have stated two possibly meritorious claims and gave him leave to file
an amended complaint; he did not do so. The district court rejected the recommendation to dismiss the case for
failure to state a claim and to charge a strike because of the potentially meritorious claims. But see Westefer v.
Snyder, 2011 WL 766188, *4 (S.D.Ill., Feb. 25, 2011) (holding frivolous attempt to intervene in a class action was a
strike); Baxter v. Samples, 2010 WL 2836393, *1 (D.D.C., July 19, 2010) (holding dismissal for res judicata is
failure to state a claim, and therefore a strike); Burgess v. Conway, 631 F.Supp.2d 280, 281-82 (W.D.N.Y. 2009)
(holding dismissal of claim because it could have been pursued in prior actions which were ended by stipulation of
dismissal was a strike; stating defect was “fatal” and not remediable, but not connecting it to statutory categories).
Arguably, a dismissal that is not by nature a strike may be a strike if the prisoner’s claim or some other
aspect of the case is so egregious as to be frivolous. See Partee v. Connolly, 2009 WL 1788375, *3 (S.D.N.Y., June
23, 2009) (appeal filed two years late was frivolous).
1445
This is true of dismissals for non-exhaustion. See nn. 1523-1524 below, for further discussion of such
dismissals. See also Smith v. Doe, 2011 WL 613556, *1 (N.D.Ill., Feb. 14, 2011) (holding case that was timebarred on the face of the complaint was a strike). The Smith case goes on to hold, questionably, that the plaintiff’s
argument for equitable tolling could also be determined on a motion to dismiss, though the arguments against
equitable tolling were not based on the complaint).
1446
Smith v. Veterans Admin., 636 F.3d 1306, 1312-13 (10th Cir. 2011), cert. denied, 132 S.Ct. 381 (2011).
1447
See Tolbert v. Stevenson, 635 F.3d 646, 654 n.9 (4th Cir. 2011) (holding dismissal of entire case on motion for
judgment on the pleadings is a strike); Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177 (10th Cir. 2011)
(holding dismissals under 28 U.S.C. § 1915A are strikes, as well as dismissals under § 1915(e)(2)(B)); Andrews v.
King, 398 F.3d 1113, 1121 (9th Cir. 2005) (holding dismissals under Rule 12(b)(6) are strikes).
1448
Thomas v. Yates, 2012 WL 2520924, *2 (E.D.Cal., June 27, 2012) (holding 22-year-old dismissal is a strike;
“The passage of time, the discharge or deactivation of Plaintiff's prior prison identification number, and Plaintiff's
discharge from prison after filing suit are irrelevant.”); Simpson v. Prison Health Services, Inc., 2009 WL 4950487,
*2 (W.D.Mich., Dec. 14, 2009) (citing strikes spanning a period of 20 years), reconsideration denied, 2010 WL
431371 (W.D.Mich., Jan. 25, 2010).
1449
Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C.Cir. 2000); Welch v. Galie, 207 F.3d 130, 132 (2d
Cir. 2000) (citing cases).
1450
See, e.g., Gibson v. Harrington, 2013 WL 1703543, *3 (S.D.Ill., Apr. 19, 2013) (stating that if plaintiff does not
pay the full filing fee within 35 days, the court will dismiss with prejudice and count the case as a strike, without
basis in the statute); McKee v. McKenna, 2012 WL 4127732, *7 (W.D.Wash., Aug. 10, 2012) (“Congress outlined
three situations in which an inmate may receive a ‘strike.’ . . . Courts have read related situations into § 1915(g)

321

hastening prisoners’ exclusion from the benefits of in forma pauperis status. In the following
elaboration of three strikes law, many of the footnotes will end with a But see or Contra section,
citing cases that reflect this tendency.
The weight of authority holds that cases not brought in forma pauperis can be strikes;
courts have emphasized that the statutory phrase “action or appeal” is not in terms limited to IFP
cases.1451 Some district courts have held to the contrary, on the ground that the purpose of §
1915(g) is to prevent abuse of IFP procedures and that it appears within the IFP statute,1452 and
that the “action or appeal” language is “a shorthand form referring back to the earlier use of the
phrase ‘a civil action or appeal . . . under this section’— i.e., an action or appeal brought under
the IFP section,”1453 noting that the Second Circuit had in fact interpreted § 1915(g) in that
manner in a different context.1454
There is a conflict between circuits on the question whether a decision that does not
explicitly state it was on the enumerated grounds can be a strike if other aspects of the decision
suggest that it is based on those grounds. One court has held that “the dismissal of a complaint
as repetitive and an abuse of process constitutes a strike under § 1915(g), regardless of whether
when a claim is baseless, without merit, or an abuse of the judicial process. While these situations are not literally
within § 1915(g), they are clearly associated with actions that are frivolous, malicious, or fail to state a claim upon
which relief may be granted.”) (citations omitted), report and recommendation adopted, 2012 WL 4117625
(W.D.Wash., Sept. 18, 2012); Benyamini v. Hommer, 2011 WL 5875787, *2 (E.D.Cal., Nov. 22, 2011) (counting as
a strike a case in which the court said it could not tell whether the complaint stated a claim or was frivolous, and was
then dismissed for failure to prosecute when the plaintiff failed to file an amended complaint, citing as authority a
case in which the court did find that the complaint did not state a claim); Read v. Bill, 2011 WL 6148635, *2
(W.D.N.Y., Oct. 21, 2011); Hargrove v. Johnson, 2012 WL 3987585, *2 (M.D.Ga., Aug. 15, 2012) (stating appeals
dismissed for lack of jurisdiction (failure to designate an order appealed from and attempt to appeal a nonappealable order) were “essentially found to be without legal merit” and were therefore frivolous), report and
recommendation adopted, 2012 WL 3987632 (M.D.Ga., Sept. 11, 2012), appeal dismissed, No. 12-1487 (11th Cir.,
Dec. 10, 2012); Bridgeforth v. U.S. Navy Recruitment Office, 2011 WL 5881780, *3 n.3, 5 (N.D.N.Y., May 18,
2011) (holding partial dismissals on the enumerated grounds to be strikes, stating “the goal of the PLRA is to not
only reduce frivolous prisoner litigation, but to further reduce the congestion on the court's docket. Such goals were
obtained through this partial dismissal”; charging two strikes for a case which was partly dismissed on the
enumerated grounds, and then after an amended complaint was entirely dismissed; charging a strike where the
plaintiff was not a prisoner when he filed an appeal, but filed an amended notice of appeal after reincarcaration),
report and recommendation adopted, 2011 WL 5881778 (N.D.N.Y., Nov. 23, 2011).
1451
See Byrd v. Shannon, 715 F.3d 117, 122-24 (3d Cir. 2013); Burghart v. Corrections Corp. of America, 350
Fed.Appx. 278, 279 (10th Cir. 2009); Hyland v. Clinton, 3 Fed.Appx. 478, 479 (6th Cir. 2001); Duvall v. Miller,
122 F.3d 489, 490 (7th Cir. 1997). Contra, Jones v. Moorjani, 2013 WL 6569703, *8-10 (S.D.N.Y., Dec. 13, 2013),
report and recommendation adopted, 2014 WL 351628 (S.D.N.Y., Jan. 31, 2014).
1452
Liner v. Fischer, 2012 WL 2847910, *3 (S.D.N.Y., July 11, 2012) (holding non-IFP dismissals are not strikes;
noting that the three strikes provision was intended “to limit the ability of prisoners to file numerous lawsuits
without regard to the costs or the merits of their claims,” and that it is a subsection of the IFP statute and not other
PLRA provisions), report and recommendation adopted, 2012 WL 4849130 (S.D.N.Y., Oct. 12, 2012).
1453
Jones v. Moorjani, 2013 WL 6569703, *8-10 (S.D.N.Y., Dec. 13, 2013), report and recommendation adopted,
2014 WL 351628 (S.D.N.Y., Jan. 31, 2014)
1454
The court pointed out that in Jones v. Smith, 720 F.3d 142 (2d Cir.2013), in determining that dismissal of a
habeas petition is not a strike, the Second Circuit held that “the most natural reading of the three strikes provision is
that the term ‘action or appeal’ in the second half of the provision is simply an abbreviated reference to the term
‘civil action or appeal’” appearing earlier in the same sentence. 720 F.3d at 146. The Jones v. Moorjani court
concluded: “If, as [Jones v. Smith] held, the second occurrence of ‘action or appeal’ necessarily imputes the
adjective ‘civil’ from the first, the same logic calls for the modifying phrase ‘under this section’ to be carried over as
well. 2013 WL 6569703, *9.

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the district court used the words ‘frivolous’ or ‘malicious.’”1455 In my view, such a rule is
excessively broad. Cases can be repetitive for various reasons, such as confusion on the part of
the plaintiff, or the existence of a genuine issue as to the extent to which the claims are precluded
by prior judgments. “Abuse of process” is a broad and almost contentless phrase outside the
context of the common law tort of that name. For either category, requiring that the district court
actually make a judgment that the case was frivolous or malicious is important to keep the
application of the statute within the bounds of its language. Arguably this entire discussion in
the Childs opinion is dictum because in that case, the magistrate judge did use the word
malicious, though the district judge did not do so when adopting the magistrate judge’s
recommendation.1456 However, it appears clear that the appeals court intended to announce a
rule governing future litigation in that circuit.
Two days after Childs, the Third Circuit took the opposite approach, holding that a strike
will accrue “only if the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,’
‘malicious,’ or ‘fails to state a claim’ or (2) dismissed pursuant to a statutory provision or rule
that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28
U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal
Rules of Civil Procedure.”1457 This decision, unusually, rejected on rehearing its own six-weekold prior opinion, which had held that a dismissal as “without merit” under 28 U.S.C. §
1915(e)(2)(B) that did not reference any of the language of § 1915(g) was a strike since the
“without merit” characterization is often associated with frivolousness, and the entire appeal had
been described as “without merit.”1458 The court explained its turnaround and adoption of a
bright-line rule on rehearing that “we are ultimately persuaded that the PLRA's purpose is best
served by taking an approach that does not open the door to more litigation surrounding §
1915(g).”1459 The Seventh Circuit adopted a similar bright-line rule in holding that cases that
were not dismissed on the statutory grounds are not strikes even if they could or should have
been dismissed on those grounds.1460
Failure to state a claim, for purposes of § 1915(g), is generally taken to have the same
meaning as it has under Rule 12(b)(6), Fed.R.Civ.P.1461 However, some federal appeals courts
have held that dismissals under Rule 8(a), which prescribes a “short and plain” statement of the

1455

Childs v. Miller, 713 F.3d 1262, 1265-66 (10th Cir. 2013).
Childs v. Miller, 713 F.3d at 1266.
1457
Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013); accord, Everett v. Whaley, 504 Fed.Appx. 245, 246 (4th
Cir. 2013) (unpublished) (holding dismissal is not a strike without “an explicit determination that Everett's entire
action failed to state a claim or was otherwise frivolous or malicious”).
1458
Byrd v. Shannon, 709 F.3d 211 (3rd Cir. 2013), rehearing granted and opinion vacated, 711 F.3d 370 (3rd Cir.
2013), on rehearing, 715 F.3d 117 (3d Cir. 2013).
1459
Byrd v. Shannon, 715 F.3d at 126.
1460
Paul v. Marberry, 658 F.3d 702, 706 (7th Cir. 2011) (holding dismissals for failure to prosecute that should have
been dismissed as failing to state a claim were not strikes; “the plaintiff was entitled to take the previous dismissals
at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he
was not incurring strikes by the repeated dismissals”).
1461
Coleman v. Tollefson, 733 F.3d 175, 177 (6th Cir. 2013); Childs v. Miller, 713 F.3d 1262, 1266 (10th Cir.
2013); Moore v. Maricopa Cnty. Sheriff's Office, 657 F.3d 890, 893 (9th Cir.2011) (citing past cases in jurisdiction);
Haury v. Lemmon, 656 F.3d 521, 523 (7th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 437–38 (D.C.Cir. 2007).
1456

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claim and the basis for jurisdiction, and a demand for the relief sought, may also be strikes if the
plaintiff has repeatedly failed to amend to correct the violation.1462
Dismissal for suing an immune defendant is not listed in § 1915(g) as the basis for a
strike, despite its presence in other PLRA sections pertaining to in forma pauperis
proceedings,1463 and most courts that have considered § 1915(g)’s language in context have
drawn the obvious conclusion that Congress did not intend such dismissal automatically to
constitute strikes.1464 However, suing an immune defendant can certainly be found to be
frivolous at least in some cases, and the Second Circuit, the only circuit to decide the question,
has held that such dismissals are per se frivolous.1465 This holding is questionable, since it erases
the distinction between § 1915’s omission of immunity dismissals and other PLRA provisions’
inclusion of them.1466 At a minimum, a case-by-case analysis of whether the particular claim
1462

Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“We hold that dismissals following the repeated
violation of Rule 8(a)'s ‘short and plain statement’ requirement, following leave to amend, are dismissals for failure
to state a claim under § 1915(g). . . . When a litigant knowingly and repeatedly refuses to conform his pleadings to
the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”);
Paul v. Marberry, F.3d 702, 705 (7th Cir. 2011) (holding that a complaint that is “irremediably unintelligible” gives
rise to an inference that the plaintiff cannot state a claim).
1463
Compare 28 U.S.C. § 1915(e)(1)(B) (providing for dismissal of an in forma pauperis claim that “(i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief”); 28 U.S.C. § 1915A (providing for dismissal of prisoner cases against
government defendants on same grounds); 42 U.S.C. § 1997e(c) (providing for dismissal of prisoner challenges to
prison conditions on same grounds).
1464
Ball v. Famiglio, 726 F.3d 448, 461 (3d Cir. 2013) (“The text of the PLRA, however, treats dismissal for
frivolousness as separate and distinct from dismissal on grounds of immunity. Like failure to state a claim,
frivolousness is listed as a ground for prescreening dismissal, and it is listed separately and distinctly from dismissal
due to immunity.”), pet. for cert. filed, Nos. 13-8254, 13A434m 2014 WL 199634 (Mar. 24, 2014); Byrd v.
Shannon, 715 F.3d 117, 126 (3d Cir. 2013) (holding citation to 28 U.S.C. § 1915(e)(2)(B) in dismissal did not
establish a strike, since that statute is not limited to dismissals as frivolous, malicious, or failing to state a claim, but
also provides in § 1915(e)(2)(B)(iii) for dismissals for suing an immune defendant); Perkins v. Lora, 2011 WL
1790460, *2 (E.D.Mich., May 10, 2011) (“The plain language of the statute, however, supports a finding that
[immunity dismissal] should not constitute a strike. . . . That the immune-from-such-relief language is included in §
1915(e) (2) and excluded from § 1915(g) indicates that Congress did not intend a dismissal on immunity grounds to
count as a strike.”); Finley v. Gonzales, 2009 WL 2581357, *3 (E.D.Cal., Aug. 20, 2009), report and
recommendation adopted, 2009 WL 3816907 (E.D.Cal., Nov. 13, 2009); Muqit v. Kitchens, 2009 WL 87429, *1 n.1
(D.S.C., Jan. 13, 2009); Searcy v. Federal Bureau of Prisons, 2007 WL 4322152, *5 (D.S.C., Dec. 6, 2007). There
is contrary authority, but it mostly does not analyze the statutory language. See, e.g., Barnes v. Seymour, 2009 WL
6547636, *2 (D.S.C., Nov. 10, 2009), report and recommendation adopted, 2010 WL 2293237 (D.S.C., June 4,
2010), aff’d in part, vacated in part on other groundt, remanded, 416 Fed.Appx. 300 (4th Cir. 2011); Johnson v.
Marshall, 2009 WL 4827383, *1 (M.D.Ala., Dec. 10, 2009); Lamb v. Kirkland Correctional Inst., 2009 WL
3378263, *2 (D.S.C., Oct. 14, 2009); Garland v. Armor Health Services, 2009 WL 3242290, *3 (S.D.Fla., Sept. 30,
2009); Rivera v. McNeil, 2009 WL 1154118, *2 (S.D.Fla., Apr. 24, 2009); Lamb v. Does, 2009 WL 982586, *7
(D.S.C., Apr. 9, 2009).
Notwithstanding the above, if the defendant’s immunity is apparent on the face of the complaint, the
complaint fails to state a claim or is frivolous. Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir.
2011).
1465
Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“The IFP statute does not explicitly categorize as frivolous a
claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of absolute judicial
immunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”); accord, Palmer v. Salazar, 2010 WL 520516, *2
(N.D.Cal., Feb. 6, 2010). Contra, Ball v. Famiglio, 726 F.3d 448, 461-63 (3d Cir. 2013) (rejecting Second Circuit
holding), pet. for cert. filed, Nos. 13-8254, 13A434, 2014 WL 199634 (Mar. 24, 2014).
1466
Similarly, the decision in Simpson v. WCHS/Eyewitness News, 2010 WL 4256185, *2 (S.D.W.Va., Oct. 21,
2010), holding that plaintiff has three strikes, based on decisions that he had failed to state a claim against judicial

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was frivolous under the circumstances would seem to be required.1467 The Second Circuit has
acknowledged this point in connection with prosecutorial immunity.1468
Dismissals for lack of prosecution,1469 lack of jurisdiction,1470 improper venue,1471 or
expiration of the statute of limitations are not generally strikes1472 unless there is also a finding
officers entitled to absolute immunity, appears to gloss over the statutory distinction between strikes and immunity
dismissals.
1467
Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir. 2011) (holding that if the defendant’s
immunity is apparent on the face of the complaint, the complaint fails to state a claim or is frivolous).
1468
Collazo v. Pagano, 656 F.3d 132 (2d Cir. 2011) (applying Mills v. Fischer holding to claim of prosecutorial
immunity). In Collazo, the court said:
We recognize that, unlike absolute judicial immunity, absolute prosecutorial immunity can be
difficult to adjudicate. . . . We also recognize that a pro se plaintiff is unlikely to be able to
distinguish between a meritorious and a frivolous case in many instances. We therefore limit our
holding to dismissals for that readily distinguishable heartland of immune prosecutorial conduct
that was spelled out by the Supreme Court twenty years ago in Burns [v. Reed]—conduct that is
“intimately associated with the judicial phase of the criminal process.” . . . Accordingly, our
holding does not extend to cases in which the claimed injury arises our of investigatory or other
non-immune conduct by a prosecutor. . . . Neither does it extend to cases in which the complaint
is not dismissed sua sponte pursuant to 28 U.S.C. § 1915(g).
Collazo, 656 F.3d at 134 n.2. Accord, Flagler v. Trainor, 663 F.3d 543, 551 (2d Cir. 2011) (concurring opinion)
(emphasizing Collazo’s limits on holding dismissals for prosecutorial immunity frivolous, and noting some claims
dismissed on grounds of prosecutorial immunity are not frivolous even if they lose).
1469
Paul v. Marberry, 658 F.3d 702, 706 (7th Cir. 2011) (holding “plaintiff was entitled to take the previous
dismissals [for lack of prosecution] at face value, and since none of them was based on any of the grounds specified
in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals”); Butler v. Department of
Justice, 492 F.3d 440, 443-45 (D.C.Cir. 2007) (holding dismissal for lack of prosecution is not a strike); Morris v.
Virga, 2013 WL 6185244, *1 (E.D.Cal., Nov. 26, 2013) (holding failure to prosecute by failure to pay the filing fee
is not a strike); Woods v. Ayers, 2013 WL 489620, *1-2 (N.D.Cal., Feb. 7, 2013) (holding dismissal of appeal for
lack of prosecution is not a strike unless the case’s underlying merits are frivolous, malicious, or fail to state a
claim); Adams v. Wesley, 2012 WL 7657938, *2 (M.D.Ga., Oct. 31, 2012) (dismissal for want of prosecution for
failing to pay the filing fee is not a strike absent findings that case was malicious, frivolous, or failed to state a
claim), report and recommendation adopted, 2013 WL 829696 (M.D.Ga., Mar. 6, 2013); Jacobs v. Bayha, 2009 WL
1790506, *1 (W.D.Pa., June 23, 2009); Morefield v. Brewton, 2008 WL 5209984, *2 (S.D.Ga., Dec. 11, 2008)
(dismissal for lack of prosecution after failing to pay the appellate filing fee was not a strike); Harden v. Harden,
2007 WL 2257327, *1 (D.Neb., Aug. 3, 2007) (dismissals for lack of jurisdiction or failure to prosecute are not
strikes); Green v. Dewitt, 2006 WL 1074983, *1 (D.S.C., Apr. 20, 2006) (declining to treat dismissal for failure to
prosecute as a strike). A decision holding that “[a] history of failure to prosecute is akin to the filing of a frivolous
claim” and is a strike, Gill v. Pidlypchak, 2006 WL 3751340, *4 n.7 (N.D.N.Y., Dec. 19, 2006), appears to be
wrong, since the statute does not refer to claims that are “akin” to frivolous claims. But see Hargrove v. Johnson,
2012 WL 3987585, *2 (M.D.Ga., Aug. 15, 2012) (counting dismissal for lack of prosecution as strikes), report and
recommendation adopted, 2012 WL 3987632 (M.D.Ga., Sept. 11, 2012), appeal dismissed, No. 12-14871 (11th Cir.,
Dec. 10, 2012); Rose v. Johnson, 2011 WL 5023532, *5 (D.Mont., Oct. 19, 2011) (counting failure to prosecute as a
strike); Guarneri v. Wood, 2011 WL 4592209, *10 (N.D.N.Y., Sept. 2, 2011) (holding a dismissal for failure to
prosecute, following multiple requests to the court and failure to comply with court orders to inform the court of
plaintiff’s whereabouts, was a strike because it was “closer to Congress' intended policy behind the three-strike
provision to prevent ‘the tide of egregiously meritless lawsuits’”) (citation omitted), report and recommendation
adopted, 2011 WL 4594149 (N.D.N.Y., Sept. 30, 2011); Morefield v. Ajibade, 2010 WL 5689539, *1 n.4 (S.D.Ga.,
Oct. 5, 2010) (holding failure to prosecute a strike), report and recommendation adopted, 2011 WL 346997
(S.D.Ga., Jan. 31, 2011); Rainey v. Bureau of Prisons, 2008 WL 4960229, *2 (W.D.La., Nov. 20, 2008) (holding
dismissal for non-prosecution a strike because plaintiff failed to obey an order to pay the filing fee and delayed with
“frivolous excuses”).
1470
Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 893 (9th Cir. 2011) (adopting reasoning and holding
of Thompson v. DEA); Haury v. Lemmon, 656 F.3d 521, 523 (7th Cir. 2011) (“We agree that a dismissal for lack of

325

that the plaintiff’s position was frivolous.1473 If a case is dismissed for lack of jurisdiction,
statements in the court’s opinion indicating that grounds might exist for a § 1915(g) dismissal do
not convert the dismissal into a strike.1474 Some courts have held that if the substantive reason
underlying the disposition is one of the statutory grounds, the case is a strike even if the
dismissal is technically framed in some other terms.1475 Under that view, denial of in forma
pauperis status at initial screening on the grounds specified in the statute is a strike even if the
jurisdiction does not warrant a strike under 28 U.S.C. § 1915(g), at least when the assertion of jurisdiction is not
itself found to be frivolous.”); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 437 (D.C.Cir. 2007); Tafari
v. Hues, 473 F.3d 440 (2d Cir. 2007); Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005); Sidney v. Fischer,
2011 WL 4478679, *3 (N.D.N.Y., Aug. 8, 2011) (following Thompson v. DEA), report and recommendation
adopted, 2011 WL 4478556 (N.D.N.Y., Sept. 26, 2011); Gould v. Owens, 2011 WL 3347907, *4 (M.D.Ga., July 6,
2011) (holding dismissal for lack of jurisdiction can be a strike if examination of the opinion shows a finding of
failure to state a claim), report and recommendation adopted, 2011 WL 3328653 (M.D.Ga., Aug. 3, 2011); Ortiz v.
Cox, 759 F.Supp.2d 1258, 1261 (D.Nev. 2011); Lewis v. Norton, 2009 WL 1041815, *3 n.3 (E.D.Wis., Apr. 17,
2009), aff’d, 355 Fed.Appx. 69 (7th Cir. 2009); Daniels v. Woodford, 2008 WL 2079010, *6, 8 (C.D.Cal., May 13,
2008); Ray v. Seventh Ave. Co., 2007 WL 5303981, *1 (W.D.Wis., July 11, 2007); Fitts v. Burt, 2008 WL 842705,
*5 (E.D.Mich., Jan. 24, 2008), report and recommendation adopted, 2008 WL 878522 (E.D.Mich., Mar. 28, 2008),
reconsideration denied, 2008 WL 2357739 (E.D.Mich., June 10, 2008); Harden v. Harden, 2007 WL 2257327, *1
(D.Neb., Aug. 3, 2007). Contra, Hargrove v. Johnson, 2012 WL 3987585, *2 (M.D.Ga., Aug. 15, 2012) (holding
jurisdictional dismissals for failure to identify an order appealed from and attempt to appeal a non-appealable order
to be strikes), report and recommendation adopted, 2012 WL 3987632 (M.D.Ga., Sept. 11, 2012), appeal dismissed,
No. 12-14871 (11th Cir., Dec. 10, 2012); Mayo v. Norris, 2009 WL 4730687, *2 (E.D.Ark., Dec. 4, 2009)
(declaring strike in case dismissed for lack of standing; court does not explain how this jurisdictional dismissal fits §
1915(g)); Crane v. Hatton, 2009 WL 3112077, *2 (N.D.Cal., Sept. 23, 2009) (asserting lack of jurisdiction is failure
to state a claim, no explanation).
1471
Chappell v. Fleming, 2013 WL 2156575, *3 (E.D.Cal., May 17, 2013), report and recommendation adopted,
2013 WL 3872794 (E.D.Cal., July 25, 2013); Moten v. Adams, 2012 WL 2529204, *2 (E.D.Cal., June 29, 2012),
report and recommendation adopted, 2012 WL 9245876 (E.D.Cal., Aug. 13, 2012), reconsideration denied, 2013
WL 5492692 (E.D.Cal., Sept. 30, 2013); Jennings v. Federal Bureau of Prisons, 2011 WL 6934764, *3 (E.D.N.Y.,
Nov. 17, 2011), report and recommendation adopted, 2011 WL 6936354 (E.D.N.Y., Dec. 30, 2011).
1472
Myles v. U.S., 416 F.3d 551, 553 (7th Cir. 2005) (noting that dismissal based on limitations is not a strike since
it is based on an affirmative defense); Daniels v. Woodford, 2008 WL 2079010, *6, 8 (C.D.Cal., May 13, 2008). In
Ransom v. Gonzalez, 2013 WL 5230040, *5 (E.D.Cal., Sept. 16, 2013), report and recommendation adopted in
pertinent part, 2013 WL 6331208 (E.D.Cal., Dec. 5, 2013) the court noted that a case may be dismissed as timebarred for reasons evident on the face of the complaint (which would constitute a strike), or by motion to dismiss if
the defense is not facially evident, and that it could not determine which was the case without examining the order of
dismissal as well as the docket entry.
1473
See Cohen v. Corrections Corp. of America, 439 Fed.Appx. 489, 491 (6th Cir. 2011) (unpublished) (dismissal for
lack of jurisdiction can be a strike where the invocation of federal jurisdiction was frivolous, i.e., there was no
possible basis for asserting it); Ellison v. Kennelly, 2013 WL 1788511, *2 (S.D.Ill., Apr. 26, 2013) (“Dismissal for
lack of subject matter jurisdiction in a situation such as this, where the assertion of jurisdiction is frivolous,
constitutes as ‘strike’ for purposes of 28 U.S.C. § 1915(g).”); Burnett v. Fitzgerald, 2011 WL 2881302, *3
(W.D.Mich., May 31, 2011) (holding claim dismissed for lack of jurisdiction under Rooker-Feldman doctrine was
frivolous and therefore a strike), report and recommendation adopted, 2011 WL 2881249 (W.D.Mich., July 18,
2011).
1474
Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 895 (9th Cir. 2011).
1475
Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1178-79 (10th Cir. 2011) (dismissal for failure to pay the
filing fee after finding of frivolousness and denial of IFP status was a strike); Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 433 (D.C.Cir. 2007) (holding case declared frivolous on appeal, with the plaintiff given 35
days to file for reconsideration and then dismissed for lack of prosecution, is a strike since the finding of
frivolousness is the reason it is not going forward); Saunders v. Saunders, 2013 WL 4040766, *4 (E.D.Cal., Aug. 7,
2013) (similar to Hafed); Thomas v. Yates, 2012 WL 2520924, *2-3 (E.D.Cal., June 27, 2012) (similar to
Thompson); Thomas v. Felker, 2012 WL 2116406, *3 (E.D.Cal., June 11, 2012) (similar to Hafed).

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district court does not used the word “dismissed.”1476 However, courts have held that if a case is
dismissed for failure to submit an amended complaint, or voluntarily dismissed in lieu of filing
an amended complaint, it is not a strike.1477 This holding makes sense because the three strikes
provision “was designed to stem the tide of egregiously meritless lawsuits, not those temporarily
infected with remediable procedural or jurisdictional flaws.”1478
One federal circuit has held that dismissal for abuse of the judicial system, as by
disobeying a court order or misrepresenting facts to the court, is a strike.1479 That is a
1476

O'Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008).
See Pierce v. Turner, 2013 WL 1704903, *1 (E.D.Cal., Apr. 19, 2013) (dismissal for failure to submit amended
complaint was not a strike), report and recommendation adopted, 2013 WL 2664668 (E.D.Cal., June 11, 2013);
Johnson v. Truedo, 2012 WL 3054114, *4 (N.D.N.Y., June 15, 2012) (dismissal for failure to file an amended
complaint, absent a finding of frivolousness or failure to state a claim, is not a strike), report and recommendation
adopted, 2012 WL 3062293 (N.D.N.Y., July 26, 2012); Palmer v. Woodford, 2011 WL 3439286, *2 (E.D.Cal., Aug.
5, 2011) (voluntary dismissal following dismissal with leave to amend was not a strike); Toliver v. Perri, 2011 WL
43461, *1 (S.D.N.Y., Jan. 6, 2011) (dismissal for failure to submit an amended complaint as ordered, after finding
that initial complaint did not state a claim, was not a strike); Miller v. California State Prison, 2009 WL 1211068, *2
(E.D.Cal., May 1, 2009) (same), report and recommendation adopted, 2009 WL 1953173 (E.D.Cal., July 7, 2009);
Keeton v. Cox, 2009 WL 650413, *1, 6 (E.D.Cal., Mar. 12, 2009) (same), report and recommendation adopted,
2009 WL 902094 (E.D.Cal., Apr. 1, 2009).
1478
Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007).
1479
See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (dismissal for abuse of judicial process is a strike even
if it does not expressly say the case is frivolous or malicious; plaintiff failed to disclose all his prior litigation
history), cert. denied, 524 U.S. 978 (2008); accord, Pinson v. Grimes, 391 Fed.Appx. 797, 799 (11th Cir. 2010)
(following Rivera), cert. denied, 131 S.Ct. 527 (2010); Henderson v. Morales, 2012 WL 5473057, *2 n.7 (S.D.Ga.,
Oct. 10, 2012) (“Dismissals for providing false filing-history information and failing to comply with court orders
both fall under the category of ‘abuse of the judicial process,’ which the Eleventh Circuit has held to be a ‘strikeworthy’ form of dismissal under § 1915(g).”), report and recommendation adopted, 2012 WL 5473768 (S.D.Ga.,
Nov. 9, 2012); McKee v. McKenna, 2012 WL 4127732, *7 (W.D.Wash., Aug. 10, 2012) (“Courts have read related
situations into § 1915(g) when a claim is baseless, without merit, or an abuse of the judicial process. While these
situations are not literally within § 1915(g), they are clearly associated with actions that are frivolous, malicious, or
fail to state a claim upon which relief may be granted.”), report and recommendation adopted, 2012 WL 4117625
(W.D.Wash., Sept. 18, 2012); Henderson v. Wright, 2012 WL 399125, *1 & n.2 (S.D.Ga., Jan. 10, 2012) (dismissals
for misrepresenting prior litigation history are strikes), report and recommendation adopted, 2012 WL 399087
(S.D.Ga., Feb. 7, 2012); Cobb v. Coursey, 2010 WL 2044484, *1 n.2 (S.D.Ga., Apr. 28, 2010) (dismissal for failure
to obey a court order is a strike), report and recommendation adopted, 2010 WL 2044483 (S.D.Ga., May 21, 2010);
Hoffman v. Florida, 2010 WL 330312, *3 (S.D.Fla., Jan. 19, 2010) (dismissals for abuse of the judicial process are
strikes, including lying under penalty of perjury, refusing to comply with court orders, and repeated assertion of
previously raised claims); Wilson v. James, 2009 WL 763563, *3 (S.D.Ala., Mar. 18, 2009) (declaring a strike for
misrepresentation of prior litigation history); Bure v. Miami-Dade Police Dept., 2008 WL 2374149, *2-3 (S.D.Fla.,
June 6, 2008) (same as Hoffman). Cf. Cooks v. Ellis, 2008 WL 686134, *1 & n.1 (N.D.Fla., Mar. 11, 2008)
(holding dismissal for failure to disclose prior litigation was “tantamount” to dismissal as malicious; but cases were
dismissed as malicious), report and recommendation adopted, 2008 WL 1723689 (N.D.Fla., Apr. 10, 2008). A case
filed in state court and removed to federal court should not count as a strike for failure to disclose litigation history
unless the prisoner was actually required to disclose that history in the state court. Bagley v. Tucker, 2013 WL
1912580, *1-2 (N.D.Fla., Feb. 25, 2013), report and recommendation adopted, 2013 WL 1912579 (N.D.Fla., May
8, 2013).
A recent appellate decision holds that “the dismissal of a complaint as repetitive and an abuse of process
constitutes a strike under § 1915(g), regardless of whether the district court used the words ‘frivolous’ or
‘malicious.’” Childs v. Miller, 713 F.3d 1262, 1265-66 (10th Cir. 2013). Whether the phrase “abuse of process” is
coextensive with the “abuse of the judicial process” referenced by Rivera v. Allin is unclear; Childs involved
repetitive claims. See nn. 1455-1456, above, for further discussion of the Childs decision.
One decision, Evans v. Mahoney, 2010 WL 5805663, *13 (D.Mont., Dec. 22, 2010), report and
recommendation adopted as modified, 2011 WL 550084 (D.Mont., Feb. 9, 2011), cites a standing order of the
1477

327

questionable generalization; the statute refers to an “action or appeal . . . dismissed” as frivolous,
malicious, or failing to state a claim, language which seems directed to the nature of the claims,
and not to collateral misconduct that a prisoner may engage in during or before litigation.1480 Of
course a court may declare a particular abuse of the judicial process to be malicious.1481
A duplicative complaint is not a strike unless it is deemed malicious by the court.1482
One circuit has held that dismissal without prejudice for failure to state a claim is not a strike,
since such dismissals include perfectly meritorious cases that were inadequately pled, though
dismissal as frivolous is always a strike.1483 Other circuits have rejected this conclusion.1484 One
district court stating that “no prisoner may maintain more than two (2) civil actions in forma pauperis at one time,
unless the prisoner shows that he or she is under imminent danger of serious physical injury,” and states that if the
plaintiff files any additional IFP complaints containing multiple causes of action, he should be assessed a strike for
each separate claim. There is no discernible basis in the statute for this holding, and the cited standing order appears
inconsistent with the in forma pauperis statutory scheme, of which the three strikes provision is a part.
1480
See Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011) (holding disobedience of a court order is not a strike, and
not malicious absent a finding of intent to harass); Kalwasinski v. McCraken, 2009 WL 4042973, *5 (W.D.N.Y.,
Nov. 19, 2009) (dismissal for gross misconduct comprising threats to murder the defendants and their families was
not a strike; “[a]s egregious as Plaintiff's conduct was in that case,” it does not fit the statutory criteria).
1481
See, e.g., May v. Patterson, 2013 WL 4776345, *3 (S.D.Ala., Sept. 5, 2013) (holding “[a]n action is deemed
malicious under § 1915(e)(2)(B)(i) when a prisoner plaintiff affirmatively misrepresents his prior litigation history
on a complaint form requiring disclosure of such history and signs it under penalty of perjury, as such a complaint is
an abuse of the judicial process that warrants the case's dismissal without prejudice”), motion for relief from
judgment denied, 2013 WL 5634141 (S.D.Ala., Oct. 16, 2013). Compare O'Connor v. Carnahan, 2014 WL 293457,
*3-4 (N.D.Fla., Jan. 27, 2014) (declining to find incomplete information on prior litigation malicious where the
plaintiff disclosed all that he could remember and explained that he did not have his personal property which would
have records of others).
1482
Buchanan v. Clark, 2012 WL 6726535, *2 (E.D.Cal., Dec. 27, 2012), report and recommendation adopted, 2013
WL 594309 (E.D.Cal., Feb. 14, 2013); Turner v. Cates, 2012 WL 5014537, *1 n.1 (E.D.Cal., Oct. 17, 2012) (stating
“it is not at all clear that a complaint dismissed simply as duplicative qualifies as a strike under § 1915(g).”);
Thomas v. Felker, 2012 WL 2116406, *4 (E.D.Cal., June 11, 2012) (holding duplicative appeal not dismissed as
malicious was not a strike); Foster v. Statti, 2011 WL 4543212, *2 (E.D.Cal., Sept. 28, 2011) (holding some of
plaintiff’s litigation not to be strikes, though it is repetitive; “[w]hile it appears that plaintiff may be abusing the
system, § 1915(g) is clear in what constitutes a strike. . . .”), report and recommendation adopted, 2011 WL
6756975 (E.D.Cal., Dec. 9, 2011); Martinez v. U.S., 812 F.Supp.2d 1052, 1057 (C.D.Cal. 2010). Contra, Horob v.
Wright, 2012 WL 5292877, *2 (D.Mont., Oct. 25, 2012); see Gordon v. Huncke, 2012 WL 706064, *2 (W.D.N.C.,
Mar. 5, 2012) (declaring duplicative filing to be frivolous, malicious, and a strike); Curry v. Young, 2011 WL
5403353, *3 (D.S.C., Aug. 23, 2011) (declaring duplicative filing to be frivolous and a strike), report and
recommendation adopted, 2011 WL 5403299 (D.S.C., Nov. 8, 2011).
Some courts—including, now, one federal appellate court—seem to believe that duplicative complaints are
inherently malicious. See Childs v. Miller, 713 F.3d 1262, 1265-66 (10th Cir. 2013) (stating “the dismissal of a
complaint as repetitive and an abuse of process constitutes a strike under § 1915(g), regardless of whether the
district court used the words ‘frivolous’ or ‘malicious’”; Turner v. Gibson, 2013 WL 5587391, *1 (E.D.Cal., Oct.
10, 2013) (citing pre-PLRA cases Cato v. U.S., 70 F.3d 1103, 1105 n. 2 (9th Cir.1995) and Bailey v. Johnson, 846
F.2d 1019, 1021 (5th Cir.1988)); Nichols v. Montana, 2013 WL 943281, *3 (D.Mont., Feb. 6, 2013) (“It is
malicious for a litigant to file a lawsuit that duplicates allegations of another federal lawsuit.”), report and
recommendation adopted, 2013 WL 943202 (D.Mont., Mar. 11, 2013); Coleman v. Tanner, 2012 WL 3138173, *4
(E.D.La., July 13, 2012) (“Duplicative and repetitive lawsuits are malicious for purposes of 28 U.S.C. §
1915(e)(2)(B)(i) and must be dismissed for that reason.”), report and recommendation adopted, 2012 WL 3138115
(E.D.La., Aug. 1, 2012).
1483
McLean v. U.S., 566 F.3d 391, 396-99 (4th Cir. 2009). The earlier decision in Day v. Maynard, 200 F.3d 665,
667 (10th Cir. 1999) (per curiam), says otherwise, but as McLean points out, Day does not provide any reasoning to
support its conclusion, and the cases Day relies on did not involve dismissals for failure to state a claim. McLean,
566 F.3d at 398. The Third Circuit has held that a “dismissal based on failure to exhaust, pursuant to Rule 12(b)(6),
[must] be with prejudice” to be a strike, since 28 U.S.C. § 1915(g) uses the language of Rule 12(b)(6), and Rule

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court has held that dismissal at initial screening is a strike, but dismissal resulting from a
defendant’s Rule 12(b)(6) motion is not; this holding is not supported by the statutory
language.1485 Certification that an appeal would not be taken in good faith does not make a
dismissal a strike; “[i]t is the underlying disposition which matters.”1486 Cases need not be about
prison conditions for their dismissal to constitute a strike.1487 An action consisting only of a
preliminary injunction motion, with no complaint ever filed, is a strike if dismissed on the
statutory grounds.1488
If the basis of a dismissal cannot be determined, the dismissal cannot be counted as a
strike.1489 Dismissals in state court are not strikes.1490 Voluntary dismissal is not a strike.1491
12(b)(6) dismissals are on the merits unless specified to be without prejudice. Ball v. Famiglio, 726 F.3d 448, 460
n.17 (3d Cir. 2013), pet. for cert. filed, Nos. 13-8254, 13A434, 2014 WL 199634 (Mar. 24, 2014). The holding is
limited to dismissals for non-exhaustion, but the court’s rationale would seem to extend to all Rule 12(b)(6)
dismissals—and, for that matter, to all other dismissals for failure to state a claim, e.g., under 28 U.S.C. §
1915(e)(2)(ii), 28 U.S.C. § 1915A(b)(1), or 42 U.S.C. § 1997e(c)(1).
1484
Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011) (reaffirming Day v. Maynard holding), cert.
denied, 132 S.Ct. 381 (2011); Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012); Paul v. Marberry, 658 F.3d 702,
704 (7th Cir. 2011); O'Neal v. Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008) (following Day v. Maynard, holding
distinction between dismissals with and without prejudice is irrelevant to § 1915(g)); accord, Gould v. Owens, 2011
WL 3347907, *4 (M.D.Ga., July 6, 2011), report and recommendation adopted, 2011 WL 3328653 (M.D.Ga., Aug.
3, 2011); Nunn v. Thompson, 2010 WL 3829643, *1 (M.D.Ala., Sept. 29, 2010); Johnson v. Delgado, 2010 WL
2367389, *4-5 (S.D.Ill., June 11, 2010); Smith v. City of Milwaukee Police Dept., 2010 WL 1404351, *1 (E.D.Wis.,
Apr. 2, 2010) (dismissal without prejudice for failure to state a claim is on the merits and is a strike); Smith v.
Milwaukee Secure Detention Facility, 2010 WL 960012, *2 (E.D.Wis., Mar. 12, 2010) (dismissal that did not say
with prejudice, but found that the complaint failed to state a claim, was an adjudication on the merits and a strike).
1485
Owens-Ali v. Pennell, 2010 WL 1225097, *3 (D.Del., Mar. 30, 2010). The court reasoned that the PLRA’s
intent is to curb excessive frivolous filings and it does so by providing for sua sponte dismissal at the outset, and the
three strikes provision should therefore be applied only to dismissals at that procedural stage. It acknowledged that
the statute includes language similar to that in Rule 12(b)(6), Fed.R.Civ.P., but said that the statute did not explicitly
refer to Rule 12(b)(6)—an unconvincing decision, in my view. Numerous courts have held that the standard to be
applied under § 1915(g) is the same as is applied on a motion under Rule 12(b)(6). See, e.g., Tafari v. Hues, 473
F.3d 440, 442 (2d Cir. 2007); Arambula v. Hedgpeth, 2010 WL 3749331, *3 (N.D.Cal., Sept. 23, 2010); Johnson v.
Delgado, 2010 WL 2367389, *4 (S.D.Ill., June 11, 2010); Kitchen v. Peguese, 2005 WL 4827386, *5 (D.Md.,
November 23, 2005).
1486
Vaughn v. Indiana Dept. of Corr., 502 Fed.Appx. 579, 580 (7th Cir. 2012) (unpublished) (holding cases where
the district court certified that the plaintiff’s appeals had not been taken in good faith are not strikes “because [the
orders] did not dismiss the actions in their entirety”); Cohen v. Corrections Corp. of America, 2009 WL 3259124, *3
(N.D.Ohio, July 7, 2009) (noting that several such cases of plaintiff’s are grants of summary judgment, which
suggests that those complaints did state a claim and could not be disposed of on a motion to dismiss), report and
recommendation adopted in part, 2009 WL 3259079 (N.D.Ohio, Oct. 7, 2009); Daniels v. Woodford, 2008 WL
2079010, *6, 8 (C.D.Cal., May 13, 2008) (holding determination that an appeal would not be taken in good faith is
not a strike). Courts have held that a finding that an appeal would not be taken in good faith can “clarify” that a
dismissal is frivolous. Sidney v. Fischer, 2011 WL 4478679, *2 (N.D.N.Y., Aug. 8, 2011), report and
recommendation adopted, 2011 WL 4478556 (N.D.N.Y., Sept. 26, 2011)
1487
DeBrew v. Atwood, 2010 WL 5055821, *2 (D.D.C., Dec. 6, 2010), stay lifted, 2011 WL 285874 (D.D.C., Jan.
28, 2011); Young-Bey v. Robinson, 2009 WL 3255698, *1 (D.D.C., Oct. 9, 2009).
1488
Kotewa v. Corrections Corp. of America, 2010 WL 5156031, *2 (M.D.Tenn., Dec. 14, 2010). One court has
held the denial of a preliminary injunction motion to be a strike even though the case was not dismissed. Cohen v.
Growse, 2011 WL 947085, *2 (E.D.Ky., Mar. 14, 2011). That is clearly contrary to the language of § 1915(g),
which refers to “action[s]” that are “dismissed.”
1489
Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); Ransom v. Gonzalez, 2013 WL 5230040, *4 (E.D.Cal.,
Sept. 16, 2013), report and recommendation adopted in pertinent part, 2013 WL 6331208 (E.D.Cal., Dec. 5, 2013);
Bontemps v. Sotak, 2013 WL 178210, *2 (E.D.Cal., Jan. 16, 2013), report and recommendation adopted, 2013 WL

329

The denial of a temporary restraining order is not a strike.1492 Cases that were not filed while the
plaintiff was a prisoner are not strikes.1493 Cases dismissed because the court disallowed
multiple plaintiffs’ proceeding jointly are not strikes.1494

632702 (E.D.Cal., Feb. 20, 2013); Deen-Mitchell v. Lappin, 2010 WL 2382568, *1 (D.D.C., June 8, 2010); Duckett
v. District of Columbia, 2005 WL 3276284, *1 (D.D.C., July 29, 2005); Shaw v. Dodson, 2005 WL 2406154, *2
(S.D.Ga., Sept. 29, 2005); Freeman v. Lee, 30 F.Supp.2d 52, 54 (D.D.C. 1998).
1490
Wheeler v. Ulisny, 482 Fed.Appx. 665, 668 (3d Cir. 2012) (unpublished); Ortiz v. Kelly, 2010 WL 3748436, *1
(D.Nev., Sept. 20, 2010); Elliott v. Beard, 2006 WL 4404771, *3 (W.D.Pa., Sept. 27, 2006) (holding state courts are
not “courts of the United States” as the statute prescribes); Miller v. John Doe, 2005 WL 1308408, *1 (E.D.Wis.,
May 31, 2005); Freeman v. Lee, 30 F.Supp.2d 52, 54 (D.D.C. 1998). Cf. Johnson v. U.S., 82 Fed.Cl. 150, 153 n.4
(Fed.Cl. 2008) (Court of Federal Claims is a “court of the United States” for purposes of § 1915(g), though not for
other purposes).
1491
Tolbert v. Stevenson, 635 F.3d 646, 654 (4th Cir. 2011); Ransom v. Gonzalez, 2013 WL 6331208, *3 (E.D.Cal.,
Dec. 5, 2013) (holding voluntary dismissal, where the court had initially dismissed without prejudice with leave to
file an amended complaint, was not a strike unless the final order of dismissal was premised on one of the § 1915(g)
grounds); Saunders v. Saunders, 2013 WL 4040766, *5 (E.D.Cal., Aug. 7, 2013); Ball v. Famiglio, 2012 WL
727841, *1 n.1 (M.D.Pa., Mar. 6, 2012) (“Plaintiff may avoid [a strike] by moving for voluntary dismissal of any
pending claim she fears is in danger of dismissal on the grounds that is frivolous, malicious, or fails to state a
claim.” (citing Tolbert)); Calderon v. Dickhaut, 2011 WL 3652766, *2 n.3 (D.Mass., Aug. 17, 2011); Bey v.
Sullivan, 2011 WL 2413997, *3 n.5 (D.Mass., June 9, 2011); Rahmings v. Ellis, 2011 WL 971695, *2 (N.D.Fla.,
Mar. 16, 2011) (warning plaintiff to avoid strike by taking a voluntary dismissal); Hollis v. Downing, 2010 WL
5115196, *3 (E.D.Cal., Dec. 9, 2010), report and recommendation adopted, 2011 WL 590756 (E.D.Cal., Feb. 10,
2011); Daniels v. Woodford, 2008 WL 2079010, *5 (C.D.Cal., May 13, 2008); Voyles v. State of Alaska, 2005 WL
1172430, *3 n.39 (D.Alaska, May 11, 2005); see Muhammad v. Sisto, 2011 WL 2447975, *2 (E.D.Cal., June 20,
2011) (rejecting defendants’ request to rule on their motion to revoke IFP for three strikes, despite request for
voluntary dismissal, and to declare plaintiff a vexatious litigant; “While CDCR may wish to seek preclusive
sanctions against plaintiff, it should do so in an action in which plaintiff remains an active participant.”). However,
some courts have held that a prisoner who receives a magistrate judge’s recommendation for dismissal cannot avoid
a strike by dismissing voluntarily. See Ludy v. Nelson, 2014 WL 468509, *1 (M.D.Ga., Feb. 5, 2014) (“Rule 41(a)
is trumped by the PLRA's screening and three-strikes provisions, and the Plaintiff may not voluntarily dismiss his
case to circumvent the three-strikes provision once it has been recommended that his case be involuntarily dismissed
for abuse of the judicial process.”); Galeas v. Gray, 2013 WL 1890746, *3 (E.D.N.C., May 6, 2013); Kirby v.
Outlaw, 2011 WL 4704202, *1 (E.D.Ark., Oct. 6, 2011) (plaintiff “may not litigate with zeal and then avoid the
reach of the Act”); Williams v. Johnson State Prison, 2011 WL 2680770, *1 (S.D.Ga., July 8, 2011); Ashley v.
Colohan, 2010 WL 322741, *1 (S.D.Ga., Jan. 27, 2010) (noting prisoner had declined earlier opportunity to
dismiss); Grindling v. Hawaii, 2009 WL 4857399, *1-2 (D.Hawai'i, Dec. 16, 2009) (holding that the later-enacted
PLRA trumps Rule 41(a), Fed.R.Civ.P.); Latson v. Johnson, 2009 WL 2824874, *2 (W.D.La., Sept. 2, 2009) (“the
PLRA does not permit this type of gamesmanship”); Stone v. Smith, 2009 WL 368620, *1 (S.D.Ga., Feb. 13, 2009)
(noting prisoner had declined earlier opportunity to dismiss); Wilson v. Freesemann, 2007 WL 2083827, *1
(S.D.Ga., July 13, 2007) (same); Johnson v. Edlow, 37 F. Supp. 2d 775, 776–78 (E.D. Va. 1999) (citing prior pattern
of seeking voluntary dismissal after court and defendants have expended substantial resources on the case;
dismissing as malicious); see Blaisdell v. Hawaii Dept. of Public Safety, 2012 WL 5996797, *3 (D.Haw., Nov. 30,
2012) (declining to allow voluntary dismissal where complaint had already been dismissed for failure to state a
claim); see also Bloodworth v. Timmerman-Cooper, 2011 WL 1740031, *4 (S.D.Ohio, May 5, 2011) (agreeing
generally that a strike cannot be avoided through voluntary dismissal after a magistrate judge’s recommendation, but
declining to reopen voluntary dismissal where dismissal had been sought because plaintiff was in segregation and
unable to litigate); White v. Jones, 2010 WL 2162634, *2 (S.D.Ill., May 26, 2010) (voluntary dismissal after several
claims had previously been dismissed on the merits was a strike). But see Palmer v. Salazar, 2010 WL 520516, *2
(N.D.Cal., Feb. 6, 2010) (voluntary dismissal, after dismissal without prejudice for failure to state a claim, in lieu of
filing an amended complaint is not a strike); Williams v. Grannis, 2008 WL 4078664, *3-4 (E.D.Cal., Aug. 29,
2008) (same).
1492
Ortiz v. Kelly, 2010 WL 3748436, *2 (D.Nev., Sept. 20, 2010).
1493
Nali v. Caruso, 2008 WL 718155, *2 (E.D.Mich., Mar. 14, 2008).

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Most courts have held that a grant of summary judgment is not a strike.1495 That makes
sense, since the question on summary judgment is whether material facts are in dispute, not
whether the case is frivolous, malicious, or fails to state a claim. However, one recent Fourth
Circuit decision has qualified that view, holding that “the fact that an action was dismissed as
frivolous, malicious, or failing to state a claim, and not the case's procedural posture at dismissal,
determines whether the dismissal constitutes a strike under Section 1915(g).”1496 That is, “a
summary judgment dismissal stating on its face that the dismissed action was frivolous,
malicious, or failed to state a claim counts as a strike for purposes of the PLRA’s three-strikes
provision.”1497 The court based its holding in large part on the fact that “dismiss” is defined in
1494

Bryant v. Wade, 2011 WL 1123400, *3 (M.D.Ga., Mar. 2, 2011), report and recommendation adopted, 2011
WL 1193208 (M.D.Ga., Mar. 30, 2011).
1495
Taylor v. First Medical Management, 508 Fed.Appx. 488, 494 (6th Cir. 2012) (unpublished); Cincoski v.
Richard, 418 Fed.Appx. 571, 572 (8th Cir. 2011) (unpublished) (stating “we note that a case resolved through
summary judgment does not count as a strike”); Richardson v. Ray, 402 Fed.Appx. 775, 776 (4th Cir. 2010)
(unpublished); Armenta v. Chatman, 371 Fed.Appx. 452, 454 n.3 (5th Cir. 2010) (unpublished), cert. denied, 131
S.Ct. 114 (2010); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C.Cir. 2007); Stallings v.
Kempker, 109 Fed.Appx. 832, 2004 WL 2165363, *1 (8th Cir. 2004) (unpublished); Angelle v. Gibson, 253 F.3d
704, 2001 WL 498763, *1 (5th Cir., Apr. 12, 2001) (per curiam) (unpublished); Saunders v. Saunders, 2013 WL
4040766, *6 (E.D.Cal., Aug. 7, 2013); Sidney v. Fischer, 2011 WL 4478679, *3 (N.D.N.Y., Aug. 8, 2011), report
and recommendation adopted, 2011 WL 4478556 (N.D.N.Y., Sept. 26, 2011); Martinez v. U.S., 812 F.Supp.2d
1052, 1057 (C.D.Cal. 2010); Ortiz v. Cox, 759 F.Supp.2d 1258, 1261-62 (D.Nev., 2011); Page v. Reynolds, 2008
WL 4427324, *1 n.* (D.S.C., Sept. 29, 2008) (citing Pressley v. Rutledge, 82 Fed.Appx. 857, 858, 2003 WL
22999339, *1 (4th Cir. 2003)); Daniels v. Woodford, 2008 WL 2079010, *6 (C.D.Cal., May 13, 2008); Chavis v.
Curlee, 2008 WL 508694, *4 (N.D.N.Y., Feb. 21, 2008); Ramsey v. Goord, 2007 WL 1199573, *2 (W.D.N.Y., Apr.
19, 2007); Chappell v. Pliler, 2006 WL 3780914, *3 (E.D.Cal., Dec. 21, 2006) (“The granting of summary judgment
on some claims precludes a determination that the case was dismissed for failure to state a claim on which relief
could be granted.”); Weber v. Gathers, 2006 WL 2796374, *3 (D.S.C., Sept. 26, 2006) (stating “an action
proceeding to the summary judgment stage can rarely be characterized as ‘frivolous, malicious, or fail[ing] to state a
claim upon which relief may be granted” for purposes of 28 U.S.C. § 1915(g)’”) (citation omitted); Johnson v.
Sheahan, 2005 WL 2739183, *4 (N.D.Ill., Oct. 24, 2005); Barela v. Variz, 36 F.Supp.2d at 1259; Walker v.
Kirschner, 1997 WL 698190, *2 (S.D.N.Y., Nov. 7, 1997). Contra, Cohen v. Growse, 2011 WL 947085, *2
(E.D.Ky., Mar. 14, 2011) (counting summary judgment dismissal as a strike); Dunkin v. Zulpo, 2010 WL 4921595,
*1 (E.D.Ark., Nov. 29, 2010) (declaring summary judgment dismissal a strike); Krivec v. Roscoe, 2010 WL
3925989, *8-9 (D.Mont., Sept. 2, 2010) (holding summary judgment a strike where plaintiff’s claims “when
provided with the undisputed facts are frivolous”), report and recommendation adopted, 2010 WL 3909442
(D.Mont., Sept. 29, 2010); Blakely v. South Carolina, 2009 WL 4920371, *1 (D.S.C., Dec. 11, 2009) (assuming
summary judgment dismissals are strikes); Appellate affirmance of a grant of summary judgment is not a strike.
Armenta v. Chatman, 371 Fed.Appx. at 454 n.3.
1496
Blakely v. Wards, 738 F.3d 607, 610 (4th Cir. 2013), pet. for cert. filed, No. 13-8905 (Feb. 27, 2014); accord,
Crump v. Morey, 2013 WL 4483054, *2-3 (E.D.Mich., Aug, 19, 2013) (same as Davis, below); Davis v. Kakani,
2007 WL 2221402, *2 (E.D.Mich., July 31, 2007) (holding summary judgment can be a strike if the decision says
no claim was stated).
1497
Blakely, 738 F.3d at 613 n.3 (emphasis supplied). The court further stressed the requirement of explicitness in a
footnote: “Whether a court rings the PLRA bell in its opinion or judgment order is immaterial, so long as the
summary judgment dismissal is explicitly predicated on one of the three grounds enumerated in Section 1915(g).”
Id., 738 F.3d at 613 n.3. Under this holding, district courts need not “‘parse summary judgment orders and their
supporting documents’ to determine if the orders constituted strikes.” Id., 738 F.3d at 616 (quoting Tolbert, 635
F.3d 646, 653 n.7 (4th Cir. 2011)). The Blakely court distinguished much prior precedent from its own circuit and
elsewhere on the ground that prior decisions did not involve purported strikes which actually made findings of
frivolousness, malice, or failure to state a claim. Blakely, 738 F.3d at 613-15. Accord, Parks v. Samuels, 540
Fed.Appx. 146, 150 (3d Cir. 2014) (following Blakely, holding summary judgment decision in case which had
previously been held to state a claim is not a strike).

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various dictionaries as meaning to terminate without a trial.1498 It also held that its construction
is consistent with the purpose of the statute to reduce the number of frivolous prisoner suits.1499
This holding is troubling because it invites district courts granting summary judgment to
adopt the three strikes language as boilerplate in cases they have determined should not go
forward under a different standard, without requiring that they spell out their reasoning for
making a three strikes finding in addition to the summary judgment finding that is sufficient to
dispose of the case. This decision itself illustrates this concern, since the cases denoted as strikes
state, e.g., that they
should “be considered a ‘strike’ for purposes of the ‘three strikes' rule set forth in
28 U.S.C. § 1915(g). This court holds that this case qualifies as a dismissal on the
grounds that it is ‘frivolous, malicious, or fail [ ] to state a claim upon which relief
may be granted[,]’ . . . .1500
Where a court does not even identify which of the three separate bases for finding a strike it is
relying on, in a case where a three strikes determination is surplusage anyway for purposes of
deciding the case, it is difficult to be confident that its use of the three strikes language is reliable
enough to be credited in deciding whether a litigant will have access to in forma pauperis status
in the future. The dissenting opinion points out that this problem undermines the majority’s
promise that requiring an explicit finding of one of the enumerated factors in § 1915(g) will
simplify the courts’ task:
This asserted limitation, however, runs into a different problem. It requires an
appellate court inappropriately to acquiesce in a district court's determination of
an issue that the parties may not have had an opportunity to address and that is
totally unnecessary to the court's grant of summary judgment. . . . The majority's
view thus forces appellate courts into an untenable catch–22: rubberstamp district
court decisions on issues not strictly before them or expend time and energy to
decide these issues independently.1501
The statute counts appeals as strikes only if they are “dismissed . . . [as] frivolous,
malicious, or fail[ing] to state a claim upon which relief may be granted.”1502 Mere affirmance
of the district court’s dismissal is not a strike,1503 even summary affirmance,1504 nor is dismissal
1498

Blakely, 738 F.3d at 611-12. The dissenting opinion responded: “But neither imprecise common usage nor an
overbroad dictionary definition can eliminate a lesson learned in the first year of law school: dismissal and summary
judgment differ in important respects. Both can terminate an action, but a case resolved by summary judgment is not
‘dismissed.’ ” 738 F.3d at 626 (Motz, J., dissenting).
1499
Blakely, 738 F.3d at 612-13. The dissenting judge pointed out that reducing frivolous suits was “but a means to
an end,” the end being “to reduce the burden on overworked courts,” and argued that counting summary judgments
as strikes “would require courts to engage in a time-intensive, individualized inquiry” to determine which ones
qualified. Id., 738 F.3d at 627 (dissenting opinion).
1500
Blakely, 738 F.3d at 616 (record citation omitted).
1501
Blakely, 738 F.3d at 628 (dissenting opinion).
1502
28 U.S.C. § 1915(g); see Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (holding that an appeal
dismissed for lack of jurisdiction is not a strike); Newlin v. Helman, 123 F.3d 429, 433 (7th Cir. 1997), cert. denied,
522 U.S. 1054 (1998), overruled in part on other grounds, Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000), cert.
denied, 531 U.S. 1029 (2000).
1503
Ball v. Famiglio, 726 F.3d 448, 464 (3d Cir. 2013), pet. for cert. filed, Nos. 13-8254, 13A434, 2014 WL 199634
(Mar. 24, 2014); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 436 (D.C.Cir. 2007); Owens v. Isaac, 487
F.3d 561, 563 (8th Cir. 2007) (per curiam); Malek v. Reding, 195 Fed. Appx. 714, 716 (10th Cir. 2006); Jennings v.

332

of the appeal on grounds not specified in the statute.1505 Two strikes are charged if the district
court dismissal is a strike and the appeals court also dismisses on the statutory grounds.1506
Most courts have held that partial dismissal on the enumerated grounds is not a strike.1507
One federal circuit held to the contrary, with little basis in my view. 1508 The result of this rule
Natrona County Detention Center, 175 F.3d 775, 780 (10th Cir. 1999); Patton v. Jefferson Correctional Center, 136
F.3d 458, 464 (5th Cir. 1998); Williams v. Horner, 2012 WL 5298466, *3 (E.D.Ark., Oct. 18, 2012), report and
recommendation adopted, 2012 WL 5290273 (E.D.Ark., Oct. 25, 2012); Whiteside v. Collins, 2011 WL 6934500,
*2 (S.D.Ohio, Aug. 23, 2011), report and recommendation adopted, 2011 WL 6934495 (S.D.Ohio, Dec. 30, 2011);
Soto v. Birkett, 2007 WL 3121606, *1-2 (E.D.Mich., Oct. 23, 2007); Barela v. Variz, 36 F. Supp. 2d 1254, 1258
(S.D. Cal. 1999) (“Insofar as an affirmance is not concerned with the merits of the appeal but is rather a finding of
no error at the district court level, it should not count as a strike.”); Freeman v. Lee, 30 F. Supp. 2d 52, 54 & n.3
(D.D.C. 1998) (holding that a circuit court’s affirmation of a § 1915(g) dismissal does not count as second strike);
see also Henderson v. Norris, 129 F.3d 481, 485 n.4 (8th Cir. 1997) (recognizing that appeals of claims found to be
frivolous are not automatically also frivolous).
1504
Morris v. Virga, 2013 WL 6185244, *2 (E.D.Cal., Nov. 26, 2013).
1505
Tafari v. Hues, 473 F.3d 440, 442-44 (2d Cir. 2007) (holding an appeal dismissed as premature was not a strike);
Farley v. Virga, 2012 WL 3070632, *3 (E.D.Cal., July 26, 2012) (holding an appellate finding that issues are
“insubstantial” and a summary affirmance are not the same as a finding of frivolousness; declining to charge a
strike), report and recommendation adopted, 2012 WL 4468540 (E.D.Cal., Sept. 26, 2012).
1506
Chavis v. Chappius, 618 F.3d 162, 168-69 (2d Cir. 2010) (citing cases); Ball v. Hummel, 2012 WL 3614045, *1
(M.D.Pa., Aug. 21, 2012).
1507
See Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013) (“We agree with the majority of our sister courts of
appeals that § 1915(g) requires that a prisoner's entire action or appeal be dismissed on enumerated grounds in order
for the dismissal to count as a strike.”); Taylor v. Hull, 538 Fed.Appx. 734, 735 (8th Cir. 2013) (unpublished) (“The
plain language in § 1915(g) requires that the entire action be dismissed on one or more of three enumerated grounds,
i.e., as frivolous, malicious, or for failing to state a claim.” (citing Tolbert v. Stevenson, infra); Taylor v. Phillips,
417 Fed.Appx. 607, 608 (8th Cir. 2011) (unpublished) (relying on Tolbert); Tolbert v. Stevenson, 635 F.3d 646,
651 (4th Cir. 2011) (holding “§ 1915(g) requires that a prisoner's entire ‘action or appeal’ be dismissed on
enumerated grounds in order to count as a strike”; describing Jones v. Bock’s use of “action” to mean “claim”
anomalous, based only on boilerplate character of “no action shall be brought” language); Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 432 (D.C.Cir. 2007) (statute does not apply to actions “containing at least one
claim falling within none of the three strike categories”); Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599,
617 (5th Cir. 2008) (holding case should not be a strike because some claims should have survived to summary
judgment stage); Powells v. Minnehaha County Sheriff Dept., 198 F.3d 711, 713 (8th Cir. 1999); Jones v. Moorjani,
2013 WL 6569703, *6-8 (S.D.N.Y., Dec. 13, 2013) (noting that “action” is used to mean the entire case throughout
the PLRA and in the Federal Rules of Civil Procedure), report and recommendation adopted, 2014 WL 351628
(S.D.N.Y., Jan. 31, 2014); Orraca v. Augustine, 2013 WL 5411703, *2 n.4 (W.D.N.Y., Sept. 26, 2013); Gillard v.
Canfield, 2013 WL 5276546, *3-4 (W.D.N.Y., Sept. 17, 2013); McNair v. Kelly, 2013 WL 4574247, *2 (S.D.N.Y.,
Aug. 26, 2013); Jackson v. Fromm, 2012 WL 6853512, *2-3 (N.D.Fla., Dec. 27, 2012), report and recommendation
adopted, 2013 WL 147627 (N.D.Fla., Jan. 14, 2013); Jennings v. Federal Bureau of Prisons, 2011 WL 6934764, *34 (E.D.N.Y., Nov. 17, 2011), report and recommendation adopted, 2011 WL 6936354 (E.D.N.Y., Dec. 30, 2011);
Tafari v. Hues, 539 F.Supp.2d 694, 701-02 (S.D.N.Y. 2008) (extensive discussion and review of case law);
Maree-Bey v. Williams, 2006 WL 463259, *1 (D.D.C., Feb. 24, 2006) (“Under the plain language of the statute, the
dismissal of a claim in a pending action cannot possibly trigger the so-called three-strikes bar.”); Juarez v. Frank,
2006 WL 47064, *5 (W.D.Wis., Jan. 6, 2006) (where state law claim was dismissed because court declined to
exercise supplemental jurisdiction, case was not a strike); Fortson v. Kern, 2005 WL 3465843, *2 (E.D.Mich., Dec.
19, 2005) (holding that case deemed frivolous as to one defendant and otherwise dismissed for failure to pay the
filing fee was not a strike); Boriboune v. Litscher, 2003 WL 23208940 (W.D.Wis., Feb. 24, 2003) (holding that
dismissal was not a strike; though federal claim was dismissed for failure to state a claim, state law claim was not
dismissed on the merits), aff’d, 91 Fed.Appx. 498, 2003 WL 23105329 (7th Cir. 2003); Barela v. Variz, 36
F.Supp.2d 1254, 1259 (S.D.Cal. 1999) (partial dismissal is not a strike); see also Orr v. Clements, 688 F.3d 463, 466
(8th Cir. 2012) (citing Tolbert for the proposition that “action” under § 1915(g) means “entire ‘case’ or ‘suit’ ”;
issue was whether two suits about the same incident could be separate strikes). Contra, Williams v. Williams, 2012

333

was that prisoners proceeding pro se were, in effect, required to file perfect complaints to avoid
being penalized, since the case was counted as a strike if any claim was dismissed on § 1915(g)
grounds.1509 However, that court has now recognized the incongruity and lack of basis for that
holding and has repudiated it, adopting the prevailing view that “a strike is incurred under §
1915(g) when an inmate's case is dismissed in its entirety based on the grounds listed in §
1915(g).”1510
Two circuits have held that strikes should be assessed for partial dismissals on the
enumerated grounds under limited circumstances: “if a complaint is dismissed in part for failure
WL 5289869, *1 (N.D.Tex., Oct. 26, 2012); Bridgeforth v. U.S. Navy Recruitment Office, 2011 WL 5881780, *3
n.3 (N.D.N.Y., May 18, 2011), report and recommendation adopted, 2011 WL 5881778 (N.D.N.Y., Nov. 23, 2011);
Wilson v. City of Meridian Police Dept., 2011 WL 3510942, *2 n.4 (S.D.Miss., May 24, 2011), report and
recommendation adopted, 2011 WL 3510933 (S.D.Miss., Aug. 10, 2011); Eaker v. Burns, 2011 WL 304701, *1
(W.D.N.C., Jan. 28, 2011) (overruled by Tolbert v. Stevenson, supra); Davis v. Kakani, 2007 WL 2221402, *3
(E.D.Mich., July 31, 2007); Eady v. Lappin, 2007 WL 1531879, *2-3 (N.D.N.Y., May 22, 2007) (noting that only
one strike can be assessed per case if there are separate dismissals of multiple claims); see also Rogers v. City of
West Columbia, 2007 WL 2332465, *3 (D.S.C., Aug. 13, 2007) (treating dismissal of one of several defendants on
immunity grounds as a strike).
One court has bootstrapped a partial dismissal on the enumerated grounds into a strike where several claims
were found not to state a claim and the plaintiff was given leave to amend. The plaintiff did not amend and the case
was later dismissed, and the later court held that since these events were set in motion because several claims failed
to state a claim, the case was a strike. Palmer v. Woodford, 2010 WL 1135887, *3 (E.D.Cal., Mar. 22, 2010),
vacated on reconsideration on other grounds, 2011 WL 3439286 (E.D.Cal., Aug. 5, 2011). This reasoning does not
satisfy the statute’s requirement that the action be dismissed as frivolous, malicious, or failing to state a claim. The
same is true of Johnson v. Delgado, 2010 WL 2367389, *5 (S.D.Ill., June 11, 2010), which characterized as a strike
a case where several claims were dismissed for not stating a claim, but other claims were settled, with no stipulation
of dismissal for the case as a whole.
1508
In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the court held that joint litigation by prisoners is
permissible, but that each plaintiff should be assessed a full filing fee. En route to that conclusion, the court
observed: “A prisoner litigating on his own behalf takes the risk that one or more of his claims . . . may count toward
the limit of three weak forma pauperis claims allowed by § 1915(g). . . . [W]hen any claim in a complaint or appeal
is ‘frivolous, malicious, or fails to state a claim upon which relief may be granted,’ all plaintiffs incur strikes.” 391
F.3d at 855-56. The court did not cite any authority for these statements and did not engage in any substantial
statutory analysis. The court later reiterated its view that any frivolous claim in a complaint makes the complaint
count as a strike, and cited that proposition as a reason why the joinder rules must be carefully enforced in prisoner
cases—otherwise prisoners could lump unrelated claims and defendants into the same suit and minimize their
exposure to the risk of receiving three strikes. George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007).
1509
See, e.g., Hedgespeth v. Bartow, 2009 WL 2432350, *2 (W.D.Wis., Aug. 6, 2009) (charging a strike where state
law claim was dismissed but federal claim went forward); Upthegrove v. Holm, 2009 WL 1296969, *1-2
(W.D.Wis., May 7, 2009) (charging a strike for dismissal of equal protection claim based on same facts for which an
Eighth Amendment claim was allowed to go forward); Lee v. Charlebois, 2008 WL 5210845, *2-3 (W.D.Wis., Dec.
12, 2008) (charging a strike in a case where plaintiff’s Fourth Amendment excessive force claim was allowed to go
forward but his municipal liability claim was dismissed).
1510
Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010) (emphasis in original). The court characterized this
holding as “the obvious reading of the statute,” id. at 1008-09, described its prior statements to the contrary as dicta,
and expressed its regret for the resulting “confusion among the district courts.” Id. at 1012.
At least one district court has construed Turley directly contrary to its holding, stating that even in actions
where some claims survive, if claims are improperly joined, “each improperly joined claim constitutes a separate
action, and it is proper to assess a strike when such actions are dismissed.” West v. Hallet, 2011 WL 3273565, *1
(E.D.Wis., July 29, 2011). This court’s premise that “Turley does not change the application of George v. Smith,
507 F.3d 605 (7th Cir. 2007), and Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), to prisoner complaints” is
simply wrong. Turley states of George and Boriboune: “The references to § 1915(g) . . . are not essential to the
outcome in either case.” 625 F.3d at 1011. Turley’s ultimate holding, quoted in the text, leaves no room for
charging a strike when a case is not dismissed in its entirety.

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to exhaust and in part for failure to state a claim or other grounds stated in § 1915(g), the
dismissal is a strike, at least insofar as the new suit does not simply re-file previously nonexhausted claims.”1511 One district court has held that prisoners who join unrelated claims in an
amended complaint, after being warned of the inappropriateness of doing so, will be charged
strikes for all such claims, citing no basis in the statute or elsewhere for doing so.1512
A dismissal in a habeas corpus action is not a strike.1513 Most courts have held that
actions dismissed because they were improperly filed under 42 U.S.C. § 1983, but should have
been filed as habeas petitions (mostly “Heck-barred”1514 actions), count as strikes,1515 though
1511

Pointer v. Wilkinson, 502 F.3d 369, 376 (6th Cir. 2007); accord, Thomas v. Parker, 672 F.3d 1182 (10th Cir.
2012); see Ezell v. Wilkinson, 2013 WL 5445860, *2-4 (E.D.Okla., Sept. 30, 2013) (reaching same result but not
citing Pointer or providing explanation), appeal dismissed, No. 13-7074 (10th Cir., Dec. 3, 2013). Contra, Turley v.
Gaetz, 625 F.3d at 1009; Afeworki v. Hubert, 2008 WL 3243950, *1 (W.D.Wash., Aug. 5, 2008).
Pointer cautioned that dismissal for failure to plead exhaustion, under the now-abrogated rule under which
exhaustion was treated as a pleading requirement, is not a strike. See Feathers v. McFaul, 274 Fed.Appx. 467, 469
(6th Cir. 2008) (unpublished) (applying Pointer holding); see also Banks v. U.S. Marshal, 274 Fed.Appx. 631, 635
n.2 (10th Cir. 2008) (unpublished) (holding that a dismissal in part with prejudice for failure to state a claim and in
part without prejudice for lack of personal jurisdiction over a defendant was a strike; citing Pointer); Chavis v.
Curlee, 2008 WL 508694, *4 & n.7 (N.D.N.Y., Feb. 21, 2008) (dismissals in part for failure to state a claim and in
part for lack of standing are strikes).
Some district courts have characterized Pointer erroneously as holding more broadly that dismissals
partially on the statutory grounds are strikes. See Gross v. Haute, 2013 WL 2941567, *2 (E.D.Mich., June 14, 2013)
(quoting Pointer selectively to hold generally that partial dismissals are strikes); Clay v. Ambriz, 2012 WL 1309197,
*2 (S.D.Tex., Apr. 16, 2012) (holding that partial dismissal under § 1915(g) is a strike unless other claims survived
and were “meritorious”), appeal dismissed, No. 12-40504 (5th Cir., June 7, 2012); Freeman v. Voorhies, 2011 WL
833337, *2 (S.D.Ohio, Mar. 3, 2011) (characterizing Pointer as “the first case holding that even a partial dismissal
of case for failure to state a claim counts as a strike under § 1915(g)”). One unpublished Tenth Circuit decision has
characterized Thomas v. Parker, supra, similarly. See Barrett v. Workman, 2012 WL 2308674, *2 (10th Cir. 2012)
(unpublished) (citing Thomas for the holding that “a mixed petition, dismissed in part for failure to state a claim, can
count as a strike for purposes of the PLRA.”)
1512
Ellis v. Tilton, 2009 WL 89196, *2 (E.D.Cal., Jan. 12, 2009); Mendoza v. Mendoza-Powers, 2008 WL 4642926,
*2 (E.D.Cal., Oct. 20, 2008). Another district court has recently held the same (but without the requirement of a
warning). See West v. Hallet, 2011 WL 3273565, *1 (E.D.Wis., July 29, 2011). West cited George v. Smith, 507
F.3d 605, 607-08 (7th Cir. 2007) for that proposition. George did not so hold, and the cited portion of George has
been overruled in any case. See n. 1510, above.
1513
Jones v. Smith, 720 F.3d 142, 147 (2d Cir. 2013) (holding dismissal of habeas petition or of appeal in a habeas
proceeding is not a strike; expressing no view as to habeas petitions directed to conditions of confinement); Andrews
v. King, 398 F.3d at 1122-23 & n.12; Jennings v. Natrona County Detention Center Med. Facility, 175 F.3d 775,
779 (10th Cir. 1999); Critten v. Donald, 2007 WL 3102161, *1 (S.D.Ga., Oct. 22, 2007). Andrews relied in part on
that court’s earlier opinion in Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997), which stated generally: “A review of
the language and intent of the PLRA reveals that Congress was focused on prisoner civil rights and conditions cases,
and did not intend to include habeas proceedings in the scope of the Act, especially in light of the major revisions to
habeas corpus law contained in the AEDPA, enacted just two days before the PLRA.”
1514
See Heck v. Humphrey, 512 U.S. 477, 485 (1994) (holding that prisoners cannot bring actions “that necessarily
require the plaintiff to prove the unlawfulness of his conviction or confinement” without first getting the conviction
or sentence overturned via a state court proceeding or via a federal court writ of habeas corpus).
1515
See In re Jones, 652 F.3d 36, 38-39 (D.C.Cir. 2011) (per curiam) (holding Heck-barred claim fails to state a
claim and is therefore a strike); Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (citing Davis v.
Kan. Dep't of Corr., 507 F.3d 1246, 1248, 1249 (10th Cir. 2007)), cert. denied, 132 S.Ct. 381 (2011); Roberts v.
Langton, 2013 WL 6183992, *6 (D.Mont., Nov. 25, 2013) (noting “the Supreme Court in Heck stated its ruling was
based on a denial of ‘the existence of a cause of action’”); Ridge v. Larson, 2012 WL 4328341, *5 (D.Mont., Aug.
6, 2012), report and recommendation adopted, 2012 WL 4328337 (D.Mont., Sept. 19, 2012); Berner v. Hill, 2012
WL 726830, *2 (W.D.Mich., Mar. 6, 2012); Ransom v. Martinez, 2011 WL 867069, *1 (E.D.Cal., Mar. 10, 2011)
(“A dismissal pursuant to Heck is a dismissal because Plaintiff's claims are not cognizable, which is a dismissal for

335

decisions are not unanimous.1516 Dismissal of a mandamus petition can be a strike if the
mandamus claim is analogous to prison conditions claims under § 1983.1517 One circuit has held
that a complaint dismissed without prejudice is not a strike, and some district courts in that
circuit have applied that rule to dismissals of cases required to be pursued via habeas corpus,
while warning the plaintiff that a second attempt to pursue the claim without first getting the
underlying judgment overturned would be frivolous and would be a strike for that reason.1518
Similarly, a case that should have been filed under § 1983 but was filed as a habeas
petition to avoid the three strikes provision may be counted as a strike.1519 In the past, courts
have sometimes just treated habeas petitions that should have been filed under § 1983 as § 1983
cases and gone forward with them,1520 but courts are now reluctant to do for several PLRAfailure to state a claim.”); Alston v. F.B.I., 747 F.Supp.2d 28, 32 (D.D.C. 2010); Ransom v. Westphal, 2010 WL
1494557, *3 (E.D.Cal., Apr. 14, 2010) (Heck-barred claims are frivolous or fail to state a claim); Houston v.
Schwarzenegger, 2009 WL 3487625, *4 (E.D.Cal., Oct. 23, 2009) (“Plaintiff's claims were either premature because
he had not yet achieved favorable termination, or Plaintiff's claims were non-cognizable because Plaintiff failed to
establish the required predicates for stating a claim. In either case, Plaintiff failed to state a claim.”), report and
recommendation adopted, 2010 WL 530154 (E.D.Cal., Feb. 9, 2010); Lewis v. Healy, 2008 WL 5157194, *4-5
(N.D.N.Y., Dec. 8, 2008); Bure v. Miami-Dade Police Dept., 2008 WL 2374149, *3 (S.D.Fla., June 6, 2008);
Crawford v. Kershaw County DSS, 2007 WL 2934887, *5 (D.S.C., Oct. 5, 2007); Gattis v. Fuller, 2007 WL
2156697, *2 (D.S.C., July 26, 2007); Wells v. Caskey, 2006 WL 2805338, *2 (S.D.Miss., Sept. 25, 2006); Grant v.
Sotelo, 1998 WL 740826, *1 (N.D.Tex., Oct. 17, 1998) (citing cases) (all holding § 1983 cases that should have
been filed under habeas corpus are frivolous); see also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (holding
Heck-barred claim frivolous).
At least one court has implied that a dismissal under the abstention doctrine of Younger v. Harris is a strike.
Liner v. Fischer, 2012 WL 2847910, *3 (S.D.N.Y., July 11, 2012) (citing multiple bases for dismissal, including
Younger, in finding a strike), report and recommendation adopted, 2012 WL 4849130 (S.D.N.Y., Oct. 12, 2012).
Contra, Morris v. Virga, 2013 WL 6185244, *1 (E.D.Cal., Nov. 26, 2013) (holding Younger dismissal is for lack of
jurisdiction); Morris v. Guffee, 2013 WL 5739151, *1 (E.D.Cal., Oct. 22, 2013) (same).
1516
See Mejia v. Harrington, 541 Fed.Appx. 709, 710 (7th Cir. 2013) (“Heck and Edwards [v. Balisok] deal with
timing rather than the merits of litigation.”); McCotter v. Repischak, 2012 WL 2160821, *3 (E.D.Wis., June 13,
2012) (holding “because the plaintiff may pursue a separate petition for a writ of habeas corpus, . . . the plaintiff will
not incur a strike under 28 U.S.C. § 1915(g)”); Howard v. Nelson, 2007 WL 5595944, *3 (W.D.Wis., June 20,
2007) (“Because failure to choose the correct procedural vehicle for raising a claim is not one of the enumerated
grounds, a strike will not be recorded against petitioner under § 1915(g).”); Whitfield v. Lawrence Correctional
Center, 2008 WL 3874718, *3-4 (S.D.Ill., Aug. 18, 2008), reconsideration denied, 2008 WL 4185937 (S.D.Ill.,
Sept. 8, 2008); Rogers v. Wisconsin Dept. of Corrections, 2005 WL 300291, *3 (W.D.Wis., Feb. 3, 2005) (holding
that dismissal of a § 1983 action that should have been filed as a habeas petition is not a strike because “dismissal . .
. for failure to use the proper avenue for relief” is not a ground listed in the statute.); see also Bemis v. Tacoma
Police Dept., 2013 WL 1965151 (W.D.Wash., Apr. 22, 2013) (recommending no strike be charged where plaintiff
stated he did not understand the Heck requirement), report and recommendation adopted, 2013 WL 1965061
(W.D.Wash., May 10, 2013). But see Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998) (holding that
§ 1983 actions that should have been filed as habeas petitions but would have been frivolous as such were strikes).
1517
Hamilton v. Tristan, 2012 WL 1438807, *1 (E.D.Cal., Apr. 25, 2012). This distinction is more or less the same
as the law governing when a mandamus proceeding is considered a civil action under the PLRA. See n. 57, above.
1518
Stewart v. Tuck, 2009 WL 3614460, *3 n.2 (W.D.Va., Oct. 30, 2009); Wilson v. Cassell, 2009 WL 2207921, *2
n.1 (W.D.Va., July 23, 2009); see McLean v. U.S., 566 F.3d 391, 396-99 (4th Cir. 2009).
1519
Andrews v. King, 398 F.3d at 1123 n.12. If the prisoner is not attempting to evade the three strikes provision, a
strike may be inappropriate. See Neal v. U.S., 2013 WL 1801673, *3 (Fed.Cl., Apr. 29, 2013) (holding a strike
inappropriate where there was no indication the plaintiff intentionally sought to evade § 1915(g)); Thomas v. Felker,
2012 WL 2116406, *3 (E.D.Cal., June 11, 2012) (declining to find a strike where the prior dismissal did not suggest
bad faith but noted that the Supreme Court has not determined whether conditions claims can be brought via
habeas).
1520
See Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997) (construing habeas corpus petition as a § 1983 case).

336

related reasons, including the concern that prisoners not end up being charged a strike without
the chance to think it over before proceeding.1521 Denial of a motion filed in an already filed
case is not a strike.1522
Failure to satisfy the PLRA administrative exhaustion requirement is not a failure to state
a claim unless non-exhaustion is apparent on the face of the complaint.1523 That means dismissal
for non-exhaustion should generally not be a strike.1524 Some courts have resisted this
1521

Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (dismissing habeas corpus actions and indicating
plaintiffs may refile complaints as civil rights claims), cert. denied, 528 U.S. 954 (1999); accord, Robinson v.
Sherrod, 631 F.3d 839, 841 (7th Cir. 2011), cert. denied, 132 S.Ct. 397 (2011); Thomas v. Ochoa, 2013 WL 610772,
*1 (C.D.Cal., Feb. 15, 2013); Lugo v. Gill, 2012 WL 5499864, *3 (E.D.Cal., Nov. 13, 2012); Thomas v. Valenzuela,
2012 WL 2428215, *1 (C.D.Cal., June 26, 2012); Armstrong v. Thomas, 2012 WL 1118637, *3-4 (C.D.Cal., Mar.
1, 2012), report and recommendation adopted, 2012 WL 1118630 (C.D.Cal., Apr. 2, 2012); Herrera v. Sanders,
2012 WL 424378, *2 (C.D.Cal., Feb. 8, 2012), appeal dismissed, No. 12-55372 (9th Cir., June 21, 2012); Cheatom
v. Grounds, 2011 WL 3555775, *1 (N.D.Cal., Aug. 11, 2011); Raia v. Aviles, 2011 WL 2710275, *2 n.3 (D.N.J.,
July 6, 2011); Brock v. White, 2011 WL 1565188, *4 (E.D.Mich., Apr. 25, 2011); Flores v. Jacquez, 2010 WL
3294122, *2 (N.D.Cal., Aug. 17, 2010); Williams v. Zuercher, 2010 WL 420066, *4 (E.D.Ky., Feb. 1, 2010); Brown
v. Woodring, 2009 WL 4040067, *3 (C.D.Cal., Nov. 17, 2009) (citing PLRA filing fee and initial screening
requirements, three strikes provision, and fact that plaintiff did not seem to have exhausted administrative remedies
as reasons not to convert habeas to § 1983 action); Underwood v. Schultz, 2009 WL 2982633, *3 n.2 (D.N.J., Sept.
8, 2009); Isreal v. Hedgpeth, 2009 WL 2612374, *1 (N.D.Cal., Aug. 24, 2009); Toolasprashad v. Grondolsky, 570
F.Supp.2d 610, 630 n. 28 (D.N.J.2008). But see Stine v. Berkebile, 2014 WL 406752, *2 (10th Cir. 2014)
(unpublished) (treating habeas petition as civil suit and charging the plaintiff civil filing fees); Alpine v. Thaler,
2012 WL 3756607, *2 (S.D.Tex., Aug. 28, 2012) (where three-strike plaintiff admitted he filed habeas petition to
avoid the filing fee, treating petition as a § 1983 action, dismissing as frivolous, and charging the filing fee as a
sanction), appeal dismissed, No. 12-20640 (5th Cir., Oct. 15, 2012).
1522
Belton v. U.S., 2008 WL 2273272, *10 (E.D.Wis., June 2, 2008) (decision on motion under Rule 60(b) is not a
strike; statute “does not apply to motions, only ‘actions’ or ‘appeals’”).
1523
Jones v. Bock, 549 U.S. 199, 214-15 (2007). That is the case with respect to the PLRA exhaustion requirement,
but other statutes may require that exhaustion be pled; in such a case, failure to plead exhaustion could be failure to
state a claim. Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C.Cir. 2007).
1524
Ball v. Famiglio, 726 F.3d 448, 460 (3d Cir. 2013) (holding “dismissal based on a prisoner's failure to exhaust
administrative remedies does not constitute a PLRA strike, unless a court explicitly and correctly concludes that the
complaint reveals the exhaustion defense on its face and the court then dismisses the unexhausted complaint for
failure to state a claim”), pet. for cert. filed, Nos. 13-8254, 13A434, 2014 WL 199634 (Mar. 24, 2014); Turley v.
Gaetz, 625 F.3d 1005, 1013 (7th Cir.2010) (stating “[a] prisoner's failure to exhaust administrative remedies is
statutorily distinct from his failure to state a claim upon which relief may be granted”); Williams v. Tobiasz, 2013
WL 3929985, *3 (W.D.Wis., July 29, 2013); Williams v. Horner, 2012 WL 5298466, *3 (E.D.Ark., Oct. 18, 2012),
report and recommendation adopted, 2012 WL 5290273 (E.D.Ark., Oct. 25, 2012); Finley v. Gonzales, 2009 WL
2581357, *2 (E.D.Cal., Aug. 20, 2009), report and recommendation adopted, 2009 WL 3816907 (E.D.Cal., Nov.
13, 2009); Harry v. Doe, 2009 WL 2152531, *2 (E.D.N.Y., July 17, 2009). Before Jones v. Bock, a number of
courts had already so held. See Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (holding non-exhaustion is not
failure to state a claim and is not a strike); Green v. Young, 454 F.3d 405, 408-09 (4th Cir. 2006) (same); Greene v.
C.D.C., 2006 WL 2385150, *2 (E.D.Cal., Aug. 17, 2006), report and recommendation adopted, 2006 WL 2686992
(E.D.Cal., Sept. 19, 2006); Johnson v. Morales, 2006 WL 2168999, *1 (E.D.Cal., Aug. 1, 2006); Smith v. Duke, 296
F.Supp.2d 965, 965 66 (E.D.Ark. 2003); Henry v. Med. Dep’t at SCI Dallas, 153 F.Supp.2d 553, 556 (M.D.Pa.
2001). Cf. Andrews v. Whitman, 2009 WL 857604, *12-13 (S.D.Cal., Mar. 27, 2009) (courts are free to dismiss for
non-exhaustion rather than reach the substantive merits in order to charge the prisoner a strike).
One circuit had held that “[a] claim that fails to allege the requisite exhaustion of remedies is tantamount to
one that fails to state a claim upon which relief may be granted” and may therefore be counted as a strike. Rivera v.
Allin, 144 F.3d 719, 731 (11th Cir. 1998)), cert. denied, 524 U.S. 978 (1998). After Jones v. Bock, such holdings
appear clearly wrong, since Jones holds that prisoners are not required to allege exhaustion of remedies, and anyway
the statute doesn’t authorize strikes for things a court considers “tantamount” to failing to state a claim. See
Adamson v. De Poorter, 2008 WL 4382815, *4 (N.D.Fla., Sept. 25, 2008) (acknowledging overruling of Rivera by

337

conclusion. The Eleventh Circuit had held before Jones v. Bock that “[a] claim that fails to
allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon
which relief may be granted” and may therefore be counted as a strike.1525 After Jones v. Bock,
such holdings appear clearly wrong, since Jones holds that prisoners are not required to allege
exhaustion of remedies, and anyway the statute doesn’t authorize strikes for things a court
considers “tantamount” to failing to state a claim.1526 Nonetheless, some decisions continue to
assert that non-exhaustion dismissals are strikes, often in unexamined reliance on Rivera.1527 At
least one district court has acknowledged Jones but has nonetheless held “this Court must follow
the Eleventh Circuit's precedent in Rivera.”1528
Other courts have held that a dismissal for non-exhaustion is a strike because it seeks
“relief to which [the plaintiff] is not entitled” and is therefore is frivolous.1529 I think that is
Jones; noting that case may be frivolous where brought with “full knowledge” that it is subject to dismissal for nonexhaustion, but “debatable” exhaustion claim is not a strike). Nonetheless, some decisions continue to assert that
non-exhaustion dismissals are strikes, often in unexamined reliance on Rivera. See, e.g., Medrano v. Thaler, 2012
WL 3308113, *7 (E.D.Tex., Aug. 10, 2012) (“Dismissal for failure to exhaust before filing a lawsuit is in effect a
dismissal for failure to state a claim upon which relief may be granted.”); D'Angelo v. Schofield, 2012 WL 1300819,
*2 (M.D.Ga., Apr. 16, 2012) (citing Rivera); Gould v. Hembrick, 2011 WL 1671814, *3 (M.D.Ga., Mar. 29, 2011)
(dictum), report and recommendation adopted, 2011 WL 1670929 (M.D.Ga., May 3, 2011); Hogan v. Georgia State
Prison, 2011 WL 841182, *1 (S.D.Ga., Feb. 16, 2011), report and recommendation adopted, 2011 WL 841173
(S.D.Ga., Mar. 8, 2011); Moss v. Bottom, 2010 WL 3455879, *1 (M.D.Ga., Aug. 26, 2010); Garland v. Broward
County Courthouse, 2009 WL 3497078, *2 (S.D.Fla., Oct. 27, 2009); Crane v. Hatton, 2009 WL 3112077, *2
(N.D.Cal., Sept. 23, 2009); Martin v. Hall, 2009 WL 2606081, *2 (M.D.Ga., Aug. 20, 2009); Rivera v. McNeil,
2009 WL 1154118, *3 (S.D.Fla., Apr. 24, 2009).
The statement in Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003), that dismissal
based on lack of exhaustion “may constitute a strike for purposes of 28 U.S.C. § 1915(g)” also seems to be based on
that court’s view that exhaustion must be pled in the prisoner’s complaint, which was rejected in Jones v. Bock. See
also Pointer v. Wilkinson, 502 F.3d 369, 376 (6th Cir. 2007) (holding a case is a strike if it is dismissed in part for
non-exhaustion and in part as frivolous, malicious, or failing to state a claim).
1525
Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998)), cert. denied, 524 U.S. 978 (1998).
1526
See Adamson v. De Poorter, 2008 WL 4382815, *4 (N.D.Fla., Sept. 25, 2008) (acknowledging overruling of
Rivera by Jones; noting that case may be frivolous where brought with “full knowledge” that it is subject to
dismissal for non-exhaustion, but “debatable” exhaustion claim is not a strike).
1527
See, e.g., Medrano v. Thaler, 2012 WL 3308113, *7 (E.D.Tex., Aug. 10, 2012) (“Dismissal for failure to exhaust
before filing a lawsuit is in effect a dismissal for failure to state a claim upon which relief may be granted.”);
D'Angelo v. Schofield, 2012 WL 1300819, *2 (M.D.Ga., Apr. 16, 2012) (citing Rivera); Gould v. Hembrick, 2011
WL 1671814, *3 (M.D.Ga., Mar. 29, 2011) (dictum), report and recommendation adopted, 2011 WL 1670929
(M.D.Ga., May 3, 2011); Hogan v. Georgia State Prison, 2011 WL 841182, *1 (S.D.Ga., Feb. 16, 2011), report and
recommendation adopted, 2011 WL 841173 (S.D.Ga., Mar. 8, 2011); Moss v. Bottom, 2010 WL 3455879, *1
(M.D.Ga., Aug. 26, 2010); Garland v. Broward County Courthouse, 2009 WL 3497078, *2 (S.D.Fla., Oct. 27,
2009); Crane v. Hatton, 2009 WL 3112077, *2 (N.D.Cal., Sept. 23, 2009); Martin v. Hall, 2009 WL 2606081, *2
(M.D.Ga., Aug. 20, 2009); Rivera v. McNeil, 2009 WL 1154118, *3 (S.D.Fla., Apr. 24, 2009).
1528
Nelson v. Singer, 2013 WL 2285088, *1 (M.D.Fla., May 22, 2013).
1529
See, e.g., Wallmark v. Johnson, 2003 WL 21488141, *1 (N.D. Tex., Apr. 28, 2003). Similarly, some courts
have held that a case dismissed under the Rooker-Feldman doctrine was properly dismissed for lack of subject
matter jurisdiction and was frivolous, and therefore a strike. Greer v. Household Finance Corp., 2010 WL 2680677,
*2 (W.D.Mich., June 3, 2010) (citing cases), report and recommendation adopted, 2010 WL 2680710 (W.D.Mich.,
July 6, 2010).
A more recent and creative argument that dismissal for non-exhaustion is a strike appears in Robert v.
Walls, 2011 WL 1599652, *1 n.5 (W.D.Pa., Mar. 14, 2011), report and recommendation adopted, 2011 WL
1598972 (W.D.Pa., Apr. 27, 2011), which holds—relying on habeas corpus doctrine—that a case “not dismissed for
a mere failure to exhaust, but rather because Plaintiff procedurally defaulted his claims, . . . was, in effect, a
dismissal with prejudice . . . i.e., a determination that the suit is permanently barred.” However, this borrowing from

338

wrong; an unexhausted case does not necessarily fail to raise “an arguable question of law” or
rest on an “indisputably meritless legal theory,” the definition of “frivolous” discussed above. 1530
Further, the Second Circuit has said in interpreting the three strikes provision that the PLRA
“was designed to stem the tide of egregiously meritless lawsuits, not those temporarily infected
with remediable procedural or jurisdictional flaws.”1531 Certainly, if the prisoner put forward a
colorable argument that he or she had exhausted, that no administrative remedy was available, or
that there were reasons why the failure to exhaust should be excused, the fact that those
arguments did not prevail does not render them frivolous.1532
Exhaustion dismissals present a retroactivity problem. In the past, some courts held that
exhaustion was a pleading requirement, and many cases were dismissed for failure to state a
claim because they did not adequately plead exhaustion. The Supreme Court’s decision to the
contrary in Jones v. Bock eliminated the basis for those dismissals, and arguably they should not
be counted as strikes.1533 The usual rule that the basis for dismissals will not be re-examined in
later litigation about strikes1534 presumably should not apply when the legal basis of the dismissal
has been completely undermined. However, one recent decision has purported to treat the
question as governed by standard retroactivity doctrine and has held that only those cases
pending on direct appeal at the time of Jones v. Bock are affected by its holding, and exhaustionbased dismissals for failure to state a claim that became final before Jones should continued to be
habeas doctrine is contrary to § 1915(g), which does not make dismissal for procedural default a strike, and to Jones
v. Bock, which spells out when an exhaustion dismissal can be treated as a dismissal for failure to state a claim.
1530
Booth v. Carril, 2007 WL 295236, *2-4 (E.D.Mich., Jan. 29, 2007) (holding that the meaning of frivolous as
well as of failing to state a claim suggests that Congress intended to count as strikes only decisions on the merits).
But see Galeas v. Previtire, 2012 WL 5985667, *4 (W.D.N.C., Nov. 28, 2012) (holding non-exhaustion dismissal
malicious and therefore a strike because plaintiff alleged there was no grievance procedure despite having used it);
Donley v. Fraker, 2012 WL 2395879, *5 (W.D.Wash., Apr. 30, 2012) (holding a non-exhaustion dismissal a strike
in light of the “frivolous circumstances”: plaintiff filed suit immediately and did not wait for the grievance decision,
which was favorable), report and recommendation adopted, 2012 WL 2390011 (W.D.Wash., June 25, 2012).
1531
Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007).
The assertion that unexhausted claims are “premature as a matter of law” and therefore strikes, Ostrander v.
Dennis, 2004 WL 1047642, *1 (N.D.Tex., May 10, 2004), is contrary both to the statutory language, which does not
authorize dismissals of “premature” claims, and to the above quoted language in Tafari.
1532
Presumably the converse is also true. See Holmberg v. Warner, 2013 WL 3421913, *7 (W.D.Wash., May 30,
2013) (holding frivolous the plaintiff’s claim that his issue was nongrievable, declaring strike), report and
recommendation adopted, 2013 WL 3421951 (W.D.Wash., July 8, 2013); Reed v. CCA/Crossroads Correctional
Center, 2012 WL 5830582, *3 (D.Mont., Oct. 25, 2012) (declaring strike because of the “frivolous circumstances”
of the case’s filing and the court’s belief that non-exhaustion was “a deliberate and defiant refusal to grieve his
disputes”), report and recommendation adopted, 2012 WL 5838694 (D.Mont., Nov. 16, 2012); Phillips v. Hussey,
2009 WL 3188432, *3-4 (E.D.Wash., Sept. 30, 2009) (holding non-exhaustion dismissal frivolous and therefore a
strike where plaintiff, who was familiar with the exhaustion requirement from prior litigation, simply misrepresented
that he had exhausted).
1533
In one case where a strike had been found based on non-exhaustion, and the judgment affirmed, but the district
court later vacated its dismissal in light of Jones v. Bock, the appellate judgment was not treated as a strike since its
basis had ceased to exist. Howard v. Kraus, 2011 WL 5554012, *1 (M.D.Fla., Nov. 15, 2011). Similarly, in
Thornton v. Deddeh, 2012 WL 124483, *1 n.1 (S.D.Cal., Jan. 17, 2012), appeal dismissed, No. 11CV2401 (9th Cir.,
June 19, 2012), though the plaintiff had been found in previous litigation to have three strikes, the court did not give
effect to that prior finding in light of an intervening decision which clarified that dismissals are not strikes until all
appeals, including certiorari, have been exhausted or waived. Similarly, one court in a circuit that has held that
dismissals without prejudice are not strikes has held that such dismissals are no longer to be treated as strikes.even if
they had formerly been found to be strikes. Cox v. U.S., 2012 WL 1570081,*1 (D.S.C., Mar. 28, 2012), report and
recommendation adopted, 2012 WL 1570075 (D.S.C., May 3, 2012).
1534
See n. 1556, below.

339

counted as strikes.1535 This application of retroactivity doctrine appears misplaced. Applying
the rule of Jones v. Bock to decisions that became final before Jones does not reverse or vacate
judgments formerly deemed to be strikes. Rather, it determines how a court is prospectively to
apply the rule of § 1915(g) to determine the effect of those judgments on subsequent litigation.
This view is supported by considerable and seemingly unanimous authority among those
courts that have actually considered the question that whether a dismissal is a strike should be
determined at the point when it makes a difference, i.e., when the court must decide whether a
prisoner is barred from proceeding in forma pauperis.1536 If that is the case, surely that
determination should be made on the basis of the law at the time of the decision. However, the
practice is widespread of declaring a strike when an action or an appeal is dismissed,1537 even in
the circuits that have held to the contrary.1538
One court has held that in a multi-plaintiff lawsuit, each plaintiff’s claims must be treated
as a separate “action,” and each plaintiff must be charged a strike for each plaintiff whose
“action” is entirely dismissed1539—a result with little evident basis in statutory language or
1535

Strope v. Cummings, 653 F.3d 1271, 1274-75 (10th Cir. 2011).
Vlasich v. S D Superior Ct., 325 Fed.Appx. 610 (9th Cir. 2009) (unpublished); Andrews v. King, 398 F.3d 1113,
1119 n.8 (9th Cir. 2005); Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004);Gleash v. Yuswak, 308 F.3d 758, 761-62
(7th Cir. 2002) (stating prior notation of strike is “no more than a housekeeping matter. . .; whether a prisoner is
disqualified under § 1915(g) must be determined by the court in which the fourth action is filed”); Lucien v.
Jockisch, 133 F.3d 464, 469 n. 8 (7th Cir. 1998) (holding prospective order barring plaintiff from proceeding IFP
because of strikes was improper. “The time to tally up Lucien’s previous strikes is when Lucien has an action
before the court to which § 1915(g) might apply.”); Ortiz v. Cox, 759 F.Supp.2d 1258, 1261-62 (D.Nev., Jan. 5,
2011) (holding summary judgment is not a strike even if the court entering it said it was assessing strikes for
frivolous motions); Ortiz v. Kelly, 2010 WL 3748436, *2 (D.Nev., Sept. 20, 2010) (holding denial of a temporary
restraining order is not a strike, even if the court that denied it said it was); Belton v. U.S., 2008 WL 2273272, *10
(E.D.Wis., June 2, 2008).
1537
See, e.g., Williams v. Dretke, 306 Fed.Appx. 164, 167 (5th Cir. 2009); Hill v. Cockrell, 71 Fed.Appx. 390, 2003
WL 21976270 (5th Cir. 2003) (declaring two strikes); Rainey v. Bruce, 74 Fed.Appx. 8, 2003 WL 21907609 (10th
Cir. 2003) (declaring two strikes); Downey v. Johnson, 2009 WL 150667, *2 (E.D.Va., Jan. 21, 2009), aff’d, 326
Fed.Appx. 131 (4th Cir. 2009); Criddell v. Belcher, 2009 WL 188481, *2 (C.D.Ill., Jan. 27, 2009) (“The clerk of the
court is directed to record the plaintiff's strike in the three-strike log. . . .”); Wilson v. Smart, 2009 WL 117612, *2
(W.D.Mich., Jan. 9, 2009); D'Angelo v. Kiles, 2009 WL 86697, *2 (S.D.Ga., Jan. 13, 2009); Sharp v. Geo Group,
Inc., 2009 WL 89640, *2 (W.D.Okla., Jan. 13, 2009).
1538
Ring v. Knecht, 130 Fed.Appx. 51, 52 (7th Cir. 2005) (declaring dismissal and appellate affirmance to be two
strikes and the plaintiff to have “struck out”), cert. denied, 546 U.S. 1184 (2006); Paulson v. Snohomish County,
2010 WL 5129835, *1 (W.D.Wash., Dec. 10, 2010) (declaring dismissal a strike at defendants’ request); White v.
Benton, 2010 WL 3515555, *2 (S.D.Ill., Aug. 31, 2010); Smith v. Milwaukee Secure Detention Facility, 2010 WL
684997, *3 (E.D.Wis., Feb. 22, 2010), reconsideration denied, 2010 WL 960012 (E.D.Wis., Mar. 12, 2010); Wilson
v. Perkinson, 2009 WL 161192, *3 (E.D.Cal., Jan. 22, 2009) (directing clerk to enter strike in the docket); Little v.
Behner, 2008 WL 5459780, *3 (W.D.Wash., Dec. 8, 2008); Lawrence v. Mahoney, 2008 WL 5416381, *2
(D.Mont., June 11, 2008); Porter v. Gummerson, 2007 WL 446026, *4-5 (N.D.N.Y., Feb. 8, 2007) (granting motion
to deem this case a strike).
1539
Boriboune v. Berge, 2005 WL 1320345, *4-8 (W.D.Wis., June 1, 2005) (declaring that several plaintiffs
received three strikes from this single multi-plaintiff lawsuit). The court does not purport to find the basis for its
holding in the statutory language; rather, it says it is interpreting an earlier Seventh Circuit opinion remanding the
case, and expresses hope that the court of appeals will clarify the matter. See Boriboune v. Berge, 391 F.3d 852 (7th
Cir. 2004), discussed further in note 1508, above; see also Ross v. Hardy, 2013 WL 951164, *2 (N.D.Ill., Mar. 12,
2013) (warning plaintiffs of Boriboune interpretation); Ali v. Milwaukee County Jail, 2005 WL 2902489, *3
(W.D.Wis., Nov. 3, 2005) (applying Boriboune, charging two strikes each to four plaintiffs where two plaintiffs’
allegations did not state a claim), reconsideration denied, 2005 WL 3146880 (W.D.Wis., Nov. 17, 2005).
1536

340

logic.1540 In a class action, only the named plaintiffs are subject to the three strikes provision.1541
Where a prisoner files multiple cases which are consolidated and dismissed together, each case is
counted as a separate strike.1542
Most circuits have held that a dismissal should not be considered a strike until it is
final—i.e., until the prisoner has exhausted or waived his appeals.1543 Otherwise, a prisoner who
received a third strike in the district court could not proceed in forma pauperis to seek appellate
review of that decision under the statute’s literal language. Most courts have specifically held
that IFP status should be available for an appeal of a third strike determination.1544
1540

See Swenson v. MacDonald, 2006 WL 240233, *3-4 (D.Mont., Jan. 30, 2006). Swenson points out that
Boriboune’s imposition of strikes based on the separate claims of individual plaintiffs contradicts the statute’s
reference to “action[s]” rather than claims; that its view that each prisoner litigant is responsible under Rule 11 for
statements made by other plaintiffs is inconsistent with the lack of authority of pro se litigants to make
representations on behalf of anyone other than themselves and with pro se prisoners’ limited ability to investigate
the merits of others’ claims; and that the practical difficulties of multi-plaintiff prisoner litigation does not lend itself
to assuming one litigants’ responsibility for all actions and decisions in such litigation.
1541
Meisberger v. Donahue, 245 F.R.D. 627, 630 (S.D.Ind. 2007).
1542
Palmer v. New York State Dep’t of Correctional Services, 342 Fed. Appx. 654, 655-56 (2d Cir. 2009)
(unpublished); Southerland v. Patterson, 2012 WL 208105, *1 n.1 (S.D.N.Y., Jan. 23, 2012); Walton v. Alston,
2011 WL 873245, *2-3 (S.D.N.Y., Feb. 15, 2011), report and recommendation adopted, 2011 WL 891205
(S.D.N.Y., Mar. 11, 2011), adhered to, 2011 WL 1045933 (S.D.N.Y., Mar. 21, 2011). Walton acknowledged that
“[t]here is little doubt that this rule penalizes pro se litigants for their ignorance of the Federal Rules of Civil
Procedure.” 2011 WL 873245, *3.
1543
Ball v. Famiglio, 726 F.3d 448, 464-66 (3d Cir. 2013), pet. for cert. filed, Nos. 13-8254, 13A434, 2014 WL
199634 (Mar. 24, 2014); Henslee v. Keller, 681 F.3d 538, 541 (4th Cir. 2012) (citing cases), vacated and remanded
on other grounds, 481 Fed.Appx. 842 (4th Cir. 2012) (“We emphasize that our earlier PLRA ruling is not affected
by this decision and remains standing.”); Jordan v. Cicchi, 428 Fed.Appx. 195, 198 n.2 (3d Cir. 2011)
(unpublished); Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir.2011); Smith v. Veterans Admin., 636 F.3d 1306,
1310–11 (10th Cir.2011); Campbell v. Davenport Police Dept., 471 F.3d 952, 953 (8th Cir. 2006); Thompson v.
Drug Enforcement Admin., 492 F.3d 428, 440 (D.C.Cir. 2007); Nicholas v. Am. Detective Agency, 254 Fed.Appx.
116, 116 (3d Cir.2007) (unpublished); Jennings v. Natrona County Detention Center, 175 F.3d at 780 n. 3;
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). More specifically, courts have said that “a strike counts
against a prisoner from the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the
prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not. And if
the prisoner did not file a direct appeal in a circuit court, a district court's dismissal counts as a strike from the date
when his time to file a direct appeal expired.” Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1175 (10th Cir.
2011); accord, Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011); Henry v. Davis, 2011 WL 2436916,
*1-2 (S.D.N.Y., June 6, 2011). Contra, Gross v. Haute, 2013 WL 2941567, *1-2 (E.D.Mich., June 14, 2013); Harris
v. Croft, 2013 WL 775724, *1 (S.D.Ohio, Mar. 1, 2013); Simpson v. Prison Health Services, Inc., 2010 WL 425157,
*4 (W.D.Mich., Jan. 27, 2010) (dictum); Simpson v. Pramstaller, 2010 WL 204146, *3-4 (W.D.Mich., Jan. 15,
2010) (dictum).
Some recent decisions have held that once a dismissal is final and deemed a strike, it is effective
retroactively and can be used to revoke IFP status in any case filed after the dismissal was entered. Lowe v.
Dollison, 2011 WL 7063334, *3 (E.D.Tex., Nov. 3, 2011) (strikes do not count until appeals are exhausted, but once
strikes are affirmed, they are effective as of their decision date), report and recommendation adopted, 2012 WL
162026 (E.D.Tex., Jan. 18, 2012), reconsideration denied, 2012 WL 1554903 (E.D.Tex., Apr. 30, 2012), appeal
dismissed, No. 12-41387 (5th Cir., Jan. 10, 2013); K'napp v. Arlitz, 2011 WL 4983628, *2 (E.D.Cal., Oct. 19,
2011); see also Kellat v. Jackson, 2013 WL 461044, *1 (S.D.Ga., Feb, 6, 2013) (holding dismissed case is a strike
for purposes of a later filed case even if a post-judgment motion to reopen is later granted).
1544
Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (“. . . [O]n a direct appeal, we cannot assume that a
district court's legal rulings are correct. Hence, when a district court has dismissed a suit in what could be a
prisoner's third strike, the presumption would seem to be for the reviewing court to give that dismissal no weight as
of yet.”); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432 (D.C.Cir. 2007) (“A contrary rule would,

341

The Seventh Circuit has disagreed on a technical and procedural basis, holding that
district courts should not grant IFP because prisoners have “a perfectly good remedy” for this
problem in the appeals court itself: seek IFP status from the appeals court, which in the course of
deciding whether the prisoner actually does have three strikes will review the correctness of the
district court’s determination, at least to the extent of determining whether the appeal should be
allowed to go forward.1545 This hyper-technical rule, while satisfying the court’s concern with
formal compliance with the statute, will create a technical trap for uncounselled and
unsophisticated litigants while serving no actual useful purpose for the judicial system.1546
A recent Sixth Circuit decision rejects any requirement that a strike be final to take effect,
holding that it is effective when decided.
Not only does this rule follow the plain meaning of the statute, but it is also
consistent with how judgments are treated for purposes of res judicata. Under that
doctrine, cases on appeal have preclusive effect until they are reversed or
vacated.1547
This decision then defines the problem of appellate rights for the third strike out of
existence, noting that the statute refers to dismissals on “prior occasions,” and stating: “A third
strike that is on appeal is not a prior occasion for the purposes of that appeal, because it is the
same occasion.”1548 The dissenting opinion rejects this supposed plain-language approach,
pointing out that the phrase “prior occasion” is not free from ambiguity, since the statute does
not address whether a prior dismissal must be final to be a strike, and in any case “prior
occasion”
. . . “may refer to a single moment or to a continuing event: to an appeal,
independent of the underlying action, or to the continuing claim, inclusive of both
the action and its appeal.” Hence, there are as many as three possible readings of
what counts as a strike: (1) a suit dismissed under § 1915(g); (2) a suit dismissed
under § 1915(g) but only after an appeal of that ruling has been waived or
exhausted; (3) an appeal dismissed as frivolous, regardless of the ruling below.

within those narrow set of cases in which the third strike is appealed, effectively eliminate our appellate function.
Had Congress intended such an unusual result, we expect it would have clearly said so.”); Campbell v. Davenport
Police Dept., 471 F.3d at 953; Jennings, 175 F.3d at 779-80; Adepegba, 103 F.3d at 387. The Ninth Circuit, in Silva
v. Di Vittorio, based its conclusion that decisions must have become final to be counted as strikes in part on this
concern to preserve the courts’ statutory appellate jurisdiction, citing the Supreme Court’s admonition that courts
applying the PLRA should not depart from the usual procedural requirements without express statutory direction.
658 F.3d at 1098 (citing Jones v. Bock, 549 U.S. 199, 212 (2007). In Chandler v. Department of Justice, 2007 WL
7767876, *1 (D.C. Cir., Oct. 19, 2007), the court allowed plaintiff to proceed IFP on a mandamus petition seeking to
proceed IFP in the district court. It stated: “The petition appears to be a true mandamus petition, seeking to compel
a lawful exercise of the district court's authority, rather than ‘an alternative device for obtaining the relief sought in
civil actions that are covered by the [Prisoner Litigation Reform Act, 28 U.S.C. § 1915].’” Accord, In re Perea,
2008 WL 9001647, *1 (D.C.Cir., Nov. 21, 2008).
1545
Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002); see Boriboune v. Berge, 2005 WL 1378930 (W.D.Wis.,
June 9, 2005) (instructing plaintiff in how to use the prescribed procedure).
1546
See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 433 (D.C.Cir. 2007) (quoting government brief
noting that this approach “creat[es] more work than is appropriate for either the courts or the litigants to resolve a
request for IFP privileges”).
1547
Coleman v. Tollefson, 733 F.3d 175, 177-78 (6th Cir. 2013).
1548
Coleman v. Tollefson, 733 F.3d at 178.

342

Given this statutory ambiguity, it is proper for us to interpret the meaning of the
statute in light of its history and purpose.1549
In any case, a non-final decision in a separate case that is pending on appeal would be a strike
notwithstanding the possibility that it might be reversed. Thus the Sixth Circuit majority’s
approach “could potentially bar the filing of meritorious claims and preserve district court errors
by preventing prisoners from bringing claims in federal court while one or more of their first
three dismissals were being reversed on appeal.”1550
Of course, if a finding of frivolousness is reversed on appeal, the strike is eliminated.1551
But that might well be too late for revisiting dismissals of complaints or appeals dismissed while
the case was pending on appeal.
2. Litigating Three Strikes Issues
The three strikes provision is not an affirmative defense that must be raised by defendants
or waived; it can be raised sua sponte by the court.1552 Once a prima facie case has been made
that the prisoner has three strikes, the burden shifts to the prisoner to show otherwise.1553 Merely
producing docket entries showing dismissals is not sufficient to shift the burden if the entries do
not show the reason for the dismissal; defendants or the court must establish that the dismissals
were on the grounds prescribed by § 1915(g).1554 Thus, a docket entry showing dismissal based
on the statute of limitations cannot establish a strike where it does not make clear whether the
defense was apparent on the face of the complaint and the complaint therefore did not state a
claim.1555 Plaintiffs may not revisit the correctness of prior dismissals for purposes of §

1549

Coleman, 733 F.3d at 180 (Daughtrey, J., dissenting) (quoting Henslee v. Keller, 681 F.3d 538, 543-44 (4th Cir.
2012) (internal punctuation adjusted)).
1550
Coleman, 733 F.3d at 180 (dissenting opinion).
1551
Jennings, 175 F.3d at 780; Adepegba, 103 F.3d at 387.
1552
Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010) (noting that the PLRA was intended “to give district
courts greater power to protect their dockets from meritless lawsuits” as well as to protect prison systems);
Thompson v. Drug Enforcement Admin., 492 F.3d 428, 435-36 (D.C.Cir. 2007); Andrews v. King, 398 F.3d 1113,
1120 (9th Cir. 2005); Owens-El v. U.S., 2006 WL 2252845, *1 n.3 (W.D.Okla., Aug. 7, 2006); see Pinson v.
Pacheco, 2010 WL 2640474, *1 (D.Colo., June 30, 2010) (magistrate judge appropriately demanded information
from plaintiff on the disposition of his numerous prior lawsuits).
1553
Andrews v. King, 398 F.3d at 1116, 1120 (9th Cir. 2005); accord, Thompson v. Drug Enforcement Admin., 492
F.3d at 435-36 (D.C.Cir. 2007); Green v. Morse, 2006 WL 2128609, *2-3 (W.D.N.Y., May 26, 2006).
One court has held that prisoners are not entitled to notice and a hearing in connection with three strikes
determinations because they have already had notice and an opportunity to be heard in connectiion with the
litigation for which strikes are being charged. Clay v. Ambriz, 2012 WL 1309197, *3 (S.D.Tex., Apr. 16, 2012),
appeal dismissed, No. 12-40504 (5th Cir., June 7, 2012).
1554
Harris v. City of New York, 607 F.3d at 23-24 (docket entries may be used if they show clearly the nature of the
disposition); Andrews v. King, 398 F.3d at 1120; see Thompson v. Drug Enforcement Admin., 492 F.3d at 436;
Rodriguez v. Goord, 2009 WL 3122951 (N.D.N.Y., Sept. 28, 2009); Harry v. Doe, 2009 WL 2152531, *1-2
(E.D.N.Y., July 17, 2009); Green v. Morse, 2006 WL 2927871, *4 (W.D.N.Y., Oct. 12, 2006) (all finding docket
entries sufficient to establish strikes); see also Adams v. Carcy, 2009 WL 1212194, *2 (E.D.Cal., Apr. 29, 2009)
(strike not charged because defendants did not show that the plaintiff was the same Ronald Adams as the present
plaintiff). But see Lewis v. Healy, 2008 WL 5157194, *4 (N.D.N.Y., Dec. 8, 2008) (since “determination of
whether a prior dismissal does in fact constitute a strike is dependent upon the precise nature of the dismissal and the
grounds supporting it,” court obtained copies of actual orders of dismissal rather than relying on docket entries).
1555
Ransom v. Gonzalez, 2013 WL 6331208, *2 (E.D.Cal., Dec. 5, 2013).

343

1915(g).1556 However, an error in classifying a dismissal as a strike should be subject to
correction, consistently with the view that it is the court making the three strikes determination
that ultimately decides what dismissals are strikes.1557 This point is especially important because
many prisoners were charged with strikes for dismissals for failure to exhaust administrative
remedies in jurisdictions where exhaustion was considered a pleading requirement before the
contrary Supreme Court decision in Jones v. Bock.1558 Similarly, many prisoners in the Seventh
Circuit were charged strikes for partial dismissals under the rule of George v. Smith before that
decision was overruled in Turley v. Gaetz.1559
The three strikes provision cannot be applied to revoke in forma pauperis status in a case
filed before the plaintiff had three strikes, since the statute is a limit on prisoners’ ability to
“bring” suit, not on their ability to maintain suits previously brought.1560 A case is “brought” for
these purposes when the plaintiff tenders the complaint to the court, even if there is a significant
time lag caused by the in forma pauperis and merits screening before it is filed.1561 For the same
reason, a case filed when the plaintiff was not a prisoner cannot be a strike even if the plaintiff
becomes a prisoner later.1562

1556

Casey v. Scott, 493 Fed.Appx. 1000 , 1001 (11th Cir. 2012) (unpublished) (“Plaintiffs are bound by the
judgments in their prior cases, and may not dispute their merits in order to challenge a ‘three-strikes’
determination.”); D'Angelo v. Schofield, 2012 WL 1300819, *2 (M.D.Ga., Apr. 16, 2012) (“Plaintiff should have
addressed any alleged ‘errors’ in these cases by appealing the cases themselves.”); Childress v. Ray, 2011 WL
3568672, *2 (E.D.Mich., Aug. 15, 2011); Price v. Cunningham, 2011 WL 864677, *3 (E.D.Cal., Mar. 10, 2011)
(counting case dismissed as Heck-barred as a strike even though the dismissal was probably erroneous), report and
recommendation adopted, 2011 WL 2110761 (E.D.Cal., May 25, 2011); Granillo v. Corrections Corp. of America,
2010 WL 1250734, *2 (D.Ariz., Mar. 24, 2010), reconsideration denied, 2010 WL 4054132 (D.Ariz., Oct. 15,
2010); Brown v. Gallegos, 2008 WL 782533, *1 (N.D.Cal., Mar. 24, 2008); Hawthorne v. Caruso, 2007 WL
2710106, *2 (E.D.Mich., Sept. 13, 2007); Oluwa v. Bliesner, 2007 WL 2457510, *1 (N.D.Cal., Aug. 27, 2007); see
Scarver v. Litscher, 2008 WL 4962676, *1 (W.D.Wis., Nov. 19, 2008) (where plaintiff argued that eight-year-old
strike should be removed because the claims were subsequently recognized in other litigation as possibly
meritorious, court held that Rule 60(b) motion must be brought in a “reasonable time” and eight years was not that).
1557
See n. 1536, above.
1558
See Feathers v. McFaul, 274 Fed.Appx. 467, 469 (6th Cir. 2008) (unpublished) (holding two prior dismissals
were for failure to plead exhaustion and were not strikes). But see n. 1556, above.
1559
See nn. 1508-1510, above; see also Whitfield v. Walker, 438 Fed.Appx. 501, 502 (7th Cir. 2011) (unpublished)
(noting court recalled mandate and reinstated appeal in case where it had denied IFP status under now-overruled
law); Rowe v. Morton, 2011 WL 1740169, *1 (N.D.Ind., May 4, 2011) (noting that two of plaintiff’s strikes were
“George strikes,” no longer valid under Turley).
1560
Nicholas v. American Detective Agency, 254 Fed.Appx. 116, 117 (3d Cir. 2007) (unpublished); Mills v. White,
2006 WL 1458312, *1 (8th Cir., May 30, 2006) (unpublished); Brown v. Timmerman-Cooper, 2011 WL 1429078,
*1-3 (S.D.Ohio, Apr. 14, 2011), report and recommendation adopted, 2011 WL 1740706 (S.D.Ohio, May 4, 2011);
Wilson v. Director of Div. of Adult Institutions, 2009 WL 311150, *3 (E.D.Cal., Feb. 9, 2009); Cruz v. Marcial,
2002 WL 655520 (D.Conn., Apr. 18, 2002). Contra, McGrew v. Barr, 2011 WL 1107195, *2-3 (M.D.La., Mar. 22,
2011) (citing goals of the statute but not addressing its actual language); Nichols v. Rich, 2004 WL 743938, *2
(N.D.Tex., Apr. 7, 2004) (same), report and recommendation adopted, 2004 WL 1119689 (N.D.Tex., May 18,
2004).
1561
O'Neal v. Price, 531 F.3d 1146, 1151-52 (9th Cir. 2008). But see Perkins v. Napoli, 2012 WL 5464607, *3
(W.D.N.Y., Nov. 8, 2012) (holding case was not “properly filed” until in forma pauperis status was granted,
allowing the court to count a recently dismissed case as a third strike). The weight of authority under various PLRA
provisions is consistent with O’Neal. See nn. 7, 483 above.
1562
Cohen v. Corrections Corp. of America, 2009 WL 3259079, *2 (N.D.Ohio, Oct. 7, 2009) (holding case filed
when the plaintiff was an immigration detainee was not a strike).

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Courts have routinely revoked previously-granted IFP status when it has come to their
attention that the plaintiff has three strikes,1563 or new information is developed relevant to an
“imminent danger” finding.1564 Doing so is consistent with pre-PLRA practice under which “IFP
status may be acquired or lost during the course of the litigation.”1565 One court has rejected a
laches defense to a belated request for a three strikes finding, on the ground that the prisoner
invoking that equitable doctrine did not have “clean hands” because he failed to disclose the
relevant litigation history.1566 Another court has held that a motion to revoke IFP status based on
§ 1915(g) is appropriately treated as a motion under Rule 59(e), F.R.Civ.P., which must be
brought within 28 days of the judgment, or Rule 60(b), which must be brought within a
“reasonable time,” and that a motion to revoke filed over six years after the court granted IFP
status was not timely.1567 Neither of these rules appears apposite, since Rule 59(e) permits
alteration or amendment of a “judgment,” and Rule 60(b) is addressed to a “final judgment,
order, or proceeding,” neither of which describes a grant of IFP status.
Appellate review of the application of § 1915(g) is de novo.1568 One court of appeals has
held “in the order denying leave to proceed in forma pauperis the district court must cite
specifically the case names, case docket numbers, districts in which the actions were filed, and
the dates of the orders dismissing the actions.”1569 However, another has held, rather selfdefeatingly, that federal law does not require district courts to specify the dispositions on which
their three-strikes findings rest, while noting that the failure to do so may result in remand for

1563

See, e.g., Houston v. Torres, 2013 WL 5587555, *1 n.3 (E.D.Cal., Oct. 10, 2013) (revoking IFP where
defendants filed their motion after IFP grant, seven and a half months after plaintiff filed suit); Whiteside v. Collins,
2011 WL 6934500, *1 (S.D.Ohio, Aug. 23, 2011), report and recommendation adopted, 2011 WL 6934495
(S.D.Ohio, Dec. 30, 2011); Guarneri v. Wood, 2011 WL 4592209, *8 (N.D.N.Y., Sept. 2, 2011) (“When a court
becomes aware of three prior strikes only after granting IFP status, it is appropriate to revoke that status and bar the
complaint under § 1915(g).” (citing McFadden v. Parpan, 16 F.Supp.2d 246, 247 (E.D.N.Y.1998))), report and
recommendation adopted, 2011 WL 4594149 (N.D.N.Y., Sept. 30, 2011); Ransom v. Martinez, 2011 WL 573823
(E.D.Cal., Feb. 11, 2011), reconsideration denied, 2011 WL 4762122 (E.D.Cal., Sept. 29, 2011); Walton v. Alston,
2011 WL 873245, *1 (S.D.N.Y., Feb. 15, 2011), report and recommendation adopted, 2011 WL 891205 (S.D.N.Y.,
Mar. 11, 2011), adhered to, 2011 WL 1045933 (S.D.N.Y., Mar. 21, 2011); Pellegrino v. Weber, 2010 WL 5249832,
*4 (D.S.D., Sept. 27, 2010), report and recommendation adopted, 2010 WL 5248739 (D.S.D., Dec. 16, 2010).
1564
See nn. 1606-1607, below.
1565
See, e.g., Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D.Cal.1994), vacated on other grounds Olivares v.
Marshall, 59 F.3d 109 (9th Cir.1995).
1566
Conseillant v. Worle, 2013 WL 164242, *6-7 (W.D.N.Y., Jan. 15, 2013) (dismissing claims with prejudice),
appeal dismissed, No. 13-2575 (2d Cir., Aug. 6, 2013).
1567
Wright v. Kupczyk, 2011 WL 167258, *2 (N.D.Ill., Jan. 18, 2011). In fact, the facially relevant provisions of
Rule 60 would seem to be Rule 60(b)(1) (“mistake, inadvertence, surprise, or excusable neglect”) or 60(b)(2)
(“newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b)”). Such motions are governed by a one-year time limit. Rule 60(c)(1), Fed.R.Civ.P.
1568
Jones v. Smith, 720 F.3d 142, 145 (2d Cir. 2013); Taylor v. First Medical Management, 508 Fed.Appx. 488, 491
n.3 (6th Cir. 2012); Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011); Chavis v. Chappius, 618 F.3d 162, 167
(2d Cir. 2010); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007); Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir.
2007); Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003); Dupree v. Palmer, 284 F.3d 1234, 1235 (11th Cir. 2002).
1569
Evans v. Ill. Dep't of Corr., 150 F.3d 810, 812 (7th Cir. 1998). See Muhammad v. Workman, 479 Fed.Appx.
871, 872 (10th Cir. 2012) (vacating and remanding three strikes finding where district court did not include opinions
and judgments in the record for appellate review). Of course if the prisoner has previously been found to have three
strikes, it is not necessary for a later court to identify the strikes. Nickerson v. Correctional Managed Care
Providers, 2012 WL 5207594, *1 (S.D.Tex., Oct. 22, 2012).

345

further proceedings if the plaintiff disputes the existence of three strikes. 1570 Yet another has
stated that the “preferred practice” is not to rely on admissions by litigants in finding three
strikes, but to “make a record of the prisoner's strikes, so that, if necessary, we can evaluate those
strikes on appeal.”1571
Ordinarily, the denial of in forma pauperis status is immediately appealable under the
collateral order doctrine.1572 However, one appeals court has held that when a litigant is denied
IFP status under § 1915(g) and then pays the filing fee, the court lacks appellate jurisdiction
since the plaintiff will be able to proceed in the district court and seek review of the IFP decision
at the end of the case.1573
3. Actions Removed from State Courts
Removal from state to federal court1574 presents two questions. First, can a case filed in
state court, then removed to federal court by the defendants, be a strike? Some courts have
charged the plaintiff a strike in that situation.1575 This appears to be wrong, since § 1915(g)
applies to those who on three occasions “brought an action or appeal in a court of the United
States” that was dismissed as frivolous, malicious, or failing to state a claim. A prisoner who
files in state court does not bring the action in a court of the United States.1576
Second, is a case filed in state court and removed affected by § 1915(g) if the plaintiff has
three strikes? No, according to the statute: it applies to those who “bring a civil action or appeal
a judgment in a civil action or proceeding under this section,” i.e., litigants who invoked the
federal in forma pauperis provisions when the case was “brought.”1577 A case brought in state
1570

Gibson v. City Municipality of New York, 692 F.3d 198, 200 n.2 (2d Cir. 2012).
Parks v. Samuels, 540 Fed.Appx. 146, 149 n.1 (3d Cir. 2014). The court does note that it can review the
plaintiff’s strikes even if the district court did not identify them. Id.
1572
Roberts v. U.S. Dist. Court, 339 U.S. 844, 845 (1950); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.
2007).
1573
Burnett v. Miller, 507 Fed.Appx. 796, 798 (10th Cir. 2013) (unpublished).
1574
A defendant may remove a state court case to federal court if it is a case that could have been filed in federal
court initially, 28 U.S.C. § 1441, or if it is against federal officers or agencies. 28 U.S.C. § 1442.
1575
See Kotewa v. Corrections Corp. of America, 2010 WL 5156031, *2 (M.D.Tenn., Dec. 14, 2010); Olmsted v.
Frank, 2008 WL 4104009, *1, 6 (W.D.Wis., Sept. 3, 2008); Olmsted v. Sherman, 2008 WL 3455300, *1 (W.D.Wis.,
Aug. 12, 2008); Farnsworth v. Washington State Department of Corrections, 2007 WL 1101497, *1–2 (W.D.Wash.,
Apr. 9, 2007). Contra, Bryant v. Lovick, 2010 WL 1286791, *11 (W.D.Wash., Mar. 25, 2010) (case filed in state
court and removed cannot be a strike).
1576
Heilman v. Ridge, 2014 WL 524045, *2 (S.D.Cal., Feb. 10, 2014); Townsel v. Washington State Dept. of
Corrections, 2013 WL 5603467, *2 (E.D.Wash., Oct. 11, 2013) (“Because this case was originally filed in Walla
Walla County Superior Court, the dismissal of Plaintiff's claims does not result in a strike under § 1915(g).”); Hollis
v. Downing, 2010 WL 5115196, *3 (E.D.Cal., Dec. 9, 2010), report and recommendation adopted, 2011 WL
590756 (E.D.Cal., Feb. 10, 2011). A state court is not a “court of the United States.” See cases cited in n. 1490,
above.
1577
As one court put it:
The CDCR's removal of this case, not any action by plaintiff, caused the action to be filed in
federal court. . . . As a result of the CDCR's removal, there was, and is, no need for plaintiff to
seek leave to proceed without prepayment of the filing fee pursuant to Section 1915. In short, the
removal of this action rendered plaintiff's Three-Strikes status irrelevant for purposes of the filing
fee that otherwise would have been required to be paid in this case. While the situation is a
curious, and even troubling, one—namely, because a defendant elected to remove the plaintiff's
state case, that plaintiff who, under Section 1915(g), would have been denied leave to proceed
1571

346

court is not subject to those provisions, but rather to the state court’s rules, which may or may
not parallel federal rules.1578 When an action is removed, it is the defendants, not the plaintiff,
who are responsible for paying the filing fee, and the plaintiff is not proceeding under the federal
in forma pauperis statutes.1579
Despite the plain statutory language, some courts have suggested that it is inappropriate,
or even sanctionable, for prisoners with three strikes to file actions in forma pauperis in state
court, which defendants then remove to federal court, allowing the prisoner to evade the three
strikes bar.1580 This view seems unwarranted. Indeed, one federal appeals court has explicitly
without prepayment of the full filing fee is able to proceed without payment of the filing fee in
federal court—it is a situation that cannot be rectified by Section 1915(g).
Carrea v. California, 2010 WL 3984832, *8 (C.D.Cal., Aug. 25, 2010), report and recommendation adopted, 2010
WL 3985820 (C.D.Cal., Oct. 5, 2010), order vacated (Dec. 13, 2010).
1578
See Blevins v. O'Malley, 2010 WL 4976729, *1 n.2 (N.D.Ind., Dec. 2, 2010) (noting three-strike plaintiff had
obtained leave to proceed without payment of fees before removal); Pickett v. Hardy, 2010 WL 4103712, *2-3
(C.D.Ill., Oct. 18, 2010) (noting there was “no cause to consider the in forma pauperis statute” in removed case);
Carrea v. California, 2010 WL 3984832, *8 (noting that state court IFP decision was governed by state law and
federal court lacked power to revoke or modify it after removal); Lakes v. State, 333 S.C. 382, 387, 510 S.E.2d 228
(S.C.Ct.App. 1998) (holding prisoner could proceed IFP in state court, since South Carolina has no analogy to
PLRA’s three strikes provision).
1579
28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties instituting any civil action, suit or
proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350. . . .”); see
Howard v. Braddy, 2013 WL 5461680, *4 (M.D.Ga., Sept. 30, 2013) (“The Court will not construe 28 U.S.C. §
1915(g) to apply to non-in forma pauperis cases” removed from state court); Ransom v. Vogel, 2013 WL 3968388,
*1 n.1 (E.D.Cal., July 31, 2013) (noting defendants paid the filing fee in removed case and plaintiff’s three strikes
status was irrelevant to the case); Simmons v. Akanno, 2013 WL 1455647, *2 (E.D.Cal., Apr. 9, 2013) (“Because
this case was removed from the California Superior Court by CDCR and the filing fee was paid by CDCR, Simmons
is not proceeding in forma pauperis in this case.”); Ransom v. Aguirre, 2013 WL 398903, *1 n.1 (E.D.Cal., Jan. 31,
2013) (holding three-striker’s status is not relevant where defendants removed and paid the fee); Jones v. Ozmit,
2012 WL 602643, *1 n.1 (D.S.C., Jan. 31, 2012) (noting defendants paid three-striker’s filing fee in removed case),
report and recommendation adopted, 2012 WL 602639 (D.S.C., Feb. 23, 2012), appeal dismissed, No. 12-6429 (4th
Cir., Apr. 16, 2012); Hairston v. Blackburn, 2010 WL 145793, *1 (S.D.Ill., Jan. 12, 2010). But see Crooker v. U.S.,
2011 WL 1375613, *2 n.7 (D.Mass., Apr. 12, 2011) (citing earlier order requiring plaintiff to pay filing fee in
removed action; characterizing this as a sanction). Cf. Carrea v. Iserman, 2011 WL 1233111, *2 (E.D.Cal., Mar. 31,
2011) (court purports to revoke IFP status in removed case, acknowledging doing so will have little immediate
effect since defendant paid the fee), reconsideration denied, 2011 WL 4527407 (E.D.Cal., Sept. 27, 2011).
1580
Mitchell v. Dallas County Sheriff Dept., 2012 WL 7170403, *4 (N.D.Tex., July 12, 2012) (sanctioning prisoner
for filing in state court to avoid three strikes order), supplemented, 2013 WL 646548 (N.D.Tex., Jan. 7, 2013),
report and recommendation adopted, 2013 WL 646535 (N.D.Tex., Feb. 20, 2013); Crooker v. Burns, 544 F.Supp.2d
59, 62 (D.Mass., Apr. 10, 2008) (citing prior unpublished opinion). This litigant has been directed in some cases to
show good cause why he should not be required to pay the removal fee (a requirement not authorized in the relevant
statutes), or to show cause why his statements should not be regarded “as probative evidence of Crooker's lack of a
bona fide intent to prosecute his eight civil actions at the time he filed those actions in the state courts, and as
evidence of a manipulative attempt to circumvent” the three strikes provision warranting “severe sanctions.”
Crooker v. Burns, 2010 WL 3781877, *4-5 (D.Mass., Sept. 21, 2010). Most recently, the court has simply applied §
1915(g) to one of his removed cases, dismissing subject to reinstatment upon paying the filing fee—notwithstanding
the statutory requirement that the removing defendant pay the fee. Crooker v. Global Tel Link, 2012 WL 651644,
*2 (D.R.I., Jan. 6, 2012), report and recommendation adopted, Crooker v. Global Tel Link, 2012 WL 651641
(D.R.I., Feb. 28, 2012), appeal dismissed, No. 12-1318 (1st Cir., June 14, 2012); accord, Riggins v. Corizon
Medical Services, 2012 WL 5471248, *2 (S.D.Ala., Oct. 19, 2012) (stating “not to apply the ‘three-strikes’ rule to
Plaintiff's removed state court action would allow Plaintiff to accomplish an end-run around the ‘three-strikes’ rule
by filing in state court and hoping, perhaps, for removal of his action to this Court”), report and recommendation
adopted, 2012 WL 5470892 (S.D.Ala., Nov. 9, 2012). Cf. Willis v. Brown, 2012 WL 6016834, *1 (S.D.Ga., Dec. 3,

347

held that prisoners can “seek relief in state court, where limitations on filing I.F.P. may not be as
strict,” as one of the grounds for upholding the constitutionality of § 1915(g).1581 As noted, §
1915(g) applies only to persons with three strikes who “bring” an action under the federal in
forma pauperis statute; if Congress had wished to forbid state court filings by such persons, it
could have said so (though there would be questions about its power to do so), and if it did not
wish for such cases to be removed to federal court, it could have amended the removal statute to
that end. Litigants should hardly be penalized for reading statutes they way they are written,
especially in view of the Supreme Court’s warning that courts should not expand the PLRA’s
requirements according to their policy views.1582
Some courts have held that the three strikes provision cannot be applied to a removed
case, but that the case must be remanded to state court if the plaintiff has three strikes—
preserving the plaintiff’s right of court access and to appeal, but depriving the defendants of their
statutory right to remove.1583 These decisions, too, ignore the key proviso applying the statute
only to those cases “brought” under the federal IFP statute. Recent appellate decisions have
rejected that practice on the ground that the PLRA does not strip the courts of the jurisdiction
conferred by the removal statute.1584 (These decisions do not resolve whether the district court
can simply dismiss the properly removed case or must entertain it.1585) Some courts have held

2012) (acknowledging that removed case cannot be dismissed based on three strikes provision, but dismissing
because the plaintiff misrepresented his prior litigation to the state court), report and recommendation adopted,
2012 WL 6553919 (S.D.Ga., Dec. 14, 2012).
1581
Abdul-Akbar v. McKelvie, 239 F.3d 307, 314-15 (3d Cir. 2001). The court is correct in at least some cases
about state IFP rules. See Crooker v. U.S., 2009 WL 6366792, *4-5 (W.D.Pa., Nov. 20, 2009) (noting lack of three
strikes rule in Pennsylvania law); Lakes v. State, 333 S.C. 382, 387, 510 S.E.2d 228, 231 (S.C. Ct. App. 1998)
(holding prisoner could proceed IFP, since South Carolina has no analogy to PLRA’s three strikes provision).
This is not to deny that some litigants may abuse the structure of the statute. However, courts are limited
by that structure in what they can do about it. Thus, in Crooker v. U.S., 2009 WL 6366792 (W.D.Pa., Nov. 20,
2009), the court noted its lack of power to act on the filing of vexatious federal claims in state court in the
expectation of removal, barred him from seeking IFP status and entered a filing injunction in federal court (which
would not affect his ability to continue filing in state court), and “as a courtesy to our sister courts” sent its decision
to the state court judges within the district, presumably hoping that they would be able to curb the plaintiff’s filings
in some fashion. In Chandler v. James, 783 F.Supp.2d 33, 39 (D.D.C., May 4, 2011), the court did not question the
propriety of proceeding on the removed claims, but refused to allow the complaint’s amendment to assert new
claims unrelated to the original claims.
1582
Jones v. Bock, 549 U.S. 199, 212-16, 220-24 (2007); see Miller v. Donald, 541 F.3d 1091, 1099 (11th Cir. 2008)
(applying Jones prohibition on judicial supplementation of PLRA to three strikes provision).
1583
Bartelli v. Pa Dept. of Corrections, 2011 WL 470370, *3 (W.D.Pa., Jan. 19, 2011), report and recommendation
adopted, 2011 WL 474339 (W.D.Pa., Feb. 4, 2011); Bartelli v. Beard, 2008 WL 4363645, *2 (M.D.Pa., Sept. 24,
2008).
1584
Lloyd v. Benton, 686 F.3d 1225, 1227-28 (11th Cir. 2012); Lisenby v. Lear, 674 F.3d 259, 262-63 (4th Cir.
2012); accord, Hartley v. Comerford, 2014 WL 241759, *5-6 (N.D.Fla., Jan. 22, 2014) (declining to remand on
grounds not specified in the removal statute; § 1915(g) does not defeat removal jurisdiction); Pickett v. Hardy, 2010
WL 4103712, *2-3 (C.D.Ill., Oct. 18, 2010) (denying motion to reconsider removal to federal court); Lanier v.
Holiday, 2005 WL 1513106, *2-3 (W.D.Tenn. June 16, 2005) (acknowledging defendants’ “absolute” right to
remove a § 1983 case; screening removed complaint under 28 U.S.C. § 1915A).
1585
Lisenby v. Lear, 674 F.3d at 263 n.3 (“Plaintiff argues that he did not ‘bring’ the action in federal court, and
Defendants paid the filing fee upon removal, suggesting that, aside from his status as a ‘three strikes’ prisoner, the
plain language of § 1915(g) is inapplicable to the situation presented here. That question, however, is not squarely
before us here, and we properly leave it for the district court to determine in the first instance.”); accord, Lloyd v.
Benton, 686 F.3d at 1228 (following Lisenby).

348

that it is appropriate to require a litigant with three strikes to put up security for costs,1586 but at
least one recent appellate decision has rejected that proposition on the ground that ordering a
bond the plaintiff cannot pay is an abuse of discretion; the purpose of a bond is to conserve the
plaintiff’s assets to pay costs if he loses, not to sanction the plaintiff.1587
4. The Imminent Danger Exception
A prisoner who is in “imminent danger of serious physical injury” may proceed in forma
pauperis notwithstanding the three strikes provision.1588 “Imminent danger” has been said to
exist “[w]hen a threat or prison condition is real and proximate.”1589 The danger must exist at the
time the complaint is filed.1590 Past danger does not constitute imminent danger unless there is
reason to believe it will recur imminently.1591 Allegations of recent or ongoing physical abuse
1586

Carrea v. Iserman, 2011 WL 1233111, *2, 6 (E.D.Cal., Mar. 31, 2011) (determining plaintiff is a vexatious
litigant under state law, requiring a $2500 bond within 20 days on pain of dismissal), reconsideration denied, 2011
WL 4527407 (E.D.Cal., Sept. 27, 2011); Gay v. Chandra, 2011 WL 884127, *1-3 (S.D.Ill., Mar. 11, 2011)
(acknowledging lack of statutory authorization, claiming inherent power to impose $1000 bond requirement based
on plaintiff’s past failure to pay obligations), reconsideration denied, 2011 WL 1752235 (S.D.Ill., May 6, 2011);
Pickett v. Hardy, 2010 WL 4103712, *1, 3 (citing “history of filing frivolous lawsuits and ignoring court orders,”
not limited to having three strikes).
1587
Gay v. Chandra, 682 F.3d 590, 593-94 (7th Cir. 2012).
1588
28 U.S.C. § 1915(g).
In Miller v. Donald, 541 F.3d 1091, 1099 (11th Cir. 2008), the court rejected the district court’s practice of
barring prisoners with three strikes from filing under “imminent danger of serious physical injury” exception if they
had not paid filing fees owed from previous cases.
1589
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002); see U.S. v. Tokash, 282 F.3d 962, 971 (7th Cir.) (holding
that “imminence” under the PLRA may not be as narrowly defined as in the context of a justification defense to
criminal charges), cert. denied, 535 U.S. 1119 (2002); see also Jones v. Morton, 409 Fed.Appx. 936, 937-38, *2 (7th
Cir. 2010) (stating court is “inclined to agree” that the prospect of being returned in seven months to the prison
where plaintiff was attacked constitutes imminent danger) (dictum).
1590
Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C.Cir. 2006) (holding deterioration from lack of treatment
for Hepatitis C was “imminent danger”); Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003); Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); AbdulAkbar v. McKelvie, 239 F.3d 307, 313-16 (3d Cir. 2000), cert. denied, 533 U.S. 953 (2001); Medberry v. Butler,
185 F.3d 1189, 1192-93 (11th Cir. 1999) and cases cited; Banos v. O'Guin, 144 F.3d 883, 884–85 (5th Cir. 1998);
see Vandiver v. Vasbinder, 416 Fed.Appx. 560, 561-62 (6th Cir. 2011) (unpublished) (rejecting convoluted statutory
construction argument to the contrary); Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (rejecting argument
that time-of-filing rule denies court access to those who can’t get their claims in during the time they are in danger).
The time of filing for this purpose is likely to be determined by using the “prison mailbox rule,” which deems the
complaint filed when it is delivered to prison staff for mailing to the court. Levesque v. State Farm Ins., 2013 WL
2237827, *2 n.2 (N.D.N.Y., May 21, 2013).
1591
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (stating plaintiff alleging past injury must also allege
“specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”); Radford v. Tollister, 2014 WL 122620, *2-3 (W.D.Ark., Jan. 14, 2014)
(holding allegation of past attacks by prisoners were insufficient absent “specific allegations detailing whether
Plaintiff is still being housed with his attackers and allegations as to the likelihood of future injury from attacks by
these inmates”); Parmelee v. Clark, 2013 WL 3777093, *1-2 (E.D.Wash., July 17, 2013) (holding substantial
allegations of health-threatening food service over a period of time did not satisfy imminent danger exception since
plaintiff did not state explicitly that they were currently ongoing), appeal dismissed, No. 13-35792 (9th Cir., Feb.
26, 2014); Dye v. Grisdale, 2012 WL 6055021, *2 (W.D.Wis., Dec. 6, 2012) (holding possible renewal of denial of
single-cell status, which had been restored to plaintiffs three months before suit was filed, was speculative and not
imminent); Nickerson v. Correctional Managed Care Providers, 2012 WL 5207594, *4 (S.D.Tex., Oct. 22, 2012)
(holding medical condition whose recurrence occurred without warning did not present imminent danger); Ransom
v. Scribner, 2010 WL 3069249, *3 (E.D.Cal., Aug. 3, 2010) (rejecting argument that prisoner could not rely on risk

349

and/or threats have been held sufficient by most courts, though not all.1592 Courts typically hold
that a prisoner complaining about problems at a prison from which he or she had been transferred
at the time of filing fails to show imminent danger.1593 Other actions by prison officials may also
negate imminent danger.1594 The risk of future injury can be sufficient to invoke the imminent

of infection with Hepatitis C because he was already infected; he could become reinfected), report and
recommendation adopted, 2010 WL 3565762 (E.D.Cal., Sept. 9, 2010); Francis v. Tilton, 2010 WL 235041, *2
(E.D.Cal., Jan. 21, 2010) (finding no imminent danger where plaintiff had been transferred away from prison where
he said he was endangered; the possibility of gang leaders who might endanger him at the new prison was
speculative); Henderson v. Anderson, 2007 WL 707336, *3 (E.D.Ark., Mar. 2, 2007) (holding prisoner who
complained that his toe had to be amputated because of medical neglect did not show imminent danger after the
fact); Flakes v. Department of Corrections and Corrections Corp. of America, 2006 WL 2009035, *2 (W.D.Wis.,
July 17, 2006) (holding allegations of past injury do not satisfy the requirement, but allegation of ongoing need for
hip surgery might); see Nelson v. Moncrief, 2006 WL 3690933, *2-3 (E.D.Ark., Dec. 13, 2006) (rejecting argument
that plaintiffs’ claim of deprivation of medication pre-dated complaint, reading plaintiff’s papers liberally and
finding evidence of imminent harm).
1592
Compare Mendez v. Arizona Dept. of Corrections, 478 Fed.Appx. 437 (9th Cir. 2012) (unpublished) (allegation
of recent brutal beating and threats of death if plaintiff sought legal redress met the imminent danger standard);
Tucker v. Pentrich, 483 Fed.Appx. 28, 29-30 (6th Cir. 2012) (unpublished) (holding allegations of five explicit
threats related to complaints about previous physical abuse met the imminent danger standard); Smith v. Clemons,
465 Fed.Appx. 835, 837 (11th Cir. 2012) (unpublished) (holding incident of physical abuse followed by threats of
more from same officers satisfied imminent danger standard); Prall v. Bocchini, 421 Fed.Appx. 143, 145 (3d Cir.
2011) (holding allegation of physical abuse “at least once a week” clearly stated an ongoing danger that was
imminent when the complaint was filed); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“An allegation of a
recent brutal beating, combined with three separate threatening incidents, some of which involved officers who
purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent
danger exception.”); Ford v. Godinez, 2013 WL 210846, *1-2 (S.D.Ill., Jan. 18, 2013) (holding allegations of
physical abuse by staff, followed by more abuse and threats after he complained about it, established imminent
danger); Claiborne v. Blauser, 2011 WL 2559443, *3 (E.D.Cal., June 27, 2011) (allegation of policy and practice
that led to a beating satisfied imminent danger standard; multiple beatings not required) with Turner v. Gibson, 2013
WL 5587391, *3 (E.D.Cal., Oct. 10, 2013) (allegations of repeated assaults over two-year period did not show
imminent danger because the possibility of recurrence was speculative); Calton v. Wright, 2012 WL 3135675, *2, 56 (E.D.Tex., Aug. 1, 2012) (allegation of continued proximity to guards who had allegedly beaten the plaintiff four
times in 13 months did not show imminent danger because incidents were past), appeal dismissed, No. 12-40901
(5th Cir., Sept. 11, 2012); Davis v. Flagg, 2011 WL 3207742, *1-2 (S.D.Miss., June 30, 2011) (holding complaint
filed March 30, 2010, based on several assaults, most recently on March 17, 2010, did not show imminent danger
because it was premised on past harms), report and recommendation adopted, 2011 WL 3207554 (S.D.Miss., July
28, 2011); Richardson v. Ray, 2010 WL 1028088, *1-2 (W.D.Va., Mar. 15, 2010) (finding no imminent danger
where plaintiff filed suit in February 2009 and cited five violent assaults between late 2006 and September 2009; no
“pattern of misconduct” alleged), vacated and remanded on other grounds, 402 Fed.Appx. 775 (4th Cir. 2010)
(unpublished).
1593
Palmer v. New York State Dept. of Corrections, 342 Fed.Appx. 654, 656 (2d Cir. 2009) (unpublished); Arnold
v. Meisel, 2013 WL 2062360, *2 (E.D.Pa., May 15, 2013) (holding allegation that the Bloods had a contract on
plaintiff did not constitute imminent danger where threats and assaults occurred in local jails and plaintiff was in
state prison protective custody at the time of filing); Williams v. Heidorn, 2009 WL 77995, *3 (E.D.Wis., Jan. 9,
2009) (prisoner complaining of bad medical care at a previous prison for serious conditions did not show imminent
danger); Reeves v. Wallington, 2007 WL 3037705, *3-4 (E.D.Mich., Oct. 17, 2007) (holding prisoner transferred
away from the prison where he said he was assaulted, who had not been assaulted at the new prison, did not show
imminent danger).
1594
Davidson v. Kaseta, 2009 WL 1444208, *2 (N.D.Fla., May 20, 2009) (plaintiff who alleged he had been raped
and threatened with further rape by an officer did not show imminent danger where he had had no further contact
with the officer, was held in close management and monitored, and the Secretary of Corrections had been notified of
the allegation).

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danger exception,1595 though many such claims have been rejected as not imminent enough, or as
too speculative.1596 Conditions that are long-standing may be held not to constitute imminent
danger,1597 though it is not clear why that should be the case if a condition is both dangerous and

1595

See Jones v. Morton, 2010 WL 4893794, *2 (7th Cir., Dec. 2, 2010) (stating court is “inclined to agree” that
prospect of return in seven months to prison where plaintiff was previously attacked is imminent danger) (dictum)
(unpublished); Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C.Cir. 2006) (holding that deterioration from
lack of treatment for Hepatitis C sufficiently pled imminent danger of serious physical injury); Brown v. Johnson,
387 F.3d 1344, 1350 (11th Cir. 2004) (similar to Ibrahim); McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002)
(holding that a prisoner who alleged that he was transferred to a prison without adequate dental facilities while in the
midst of a course of dental treatment, and dental infection was spreading in his mouth, sufficiently pled imminent
danger); Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998) (relying on alleged environmental hazards in prison);
Custard v. Allred, 2013 WL 6796531, *2 (D.Colo., Dec. 23, 2013) (holding allegation that staff members called the
plaintiff “snitch” on an onging basis held to plead imminent danger in combination with allegation that he had been
assaulted in an exercise cage and the prisoners who assaulted him continued to exercise nearby and are housed 20
feet from his cell).
1596
See Roberson v. Burl, 2013 WL 3491320, *2 (W.D.Ark., July 11, 2013) (rejecting claim based on “fear that
some hypothetical future harm may come to him as a result of being incarcerated at a maximum security facility
with ‘big timers’”); Spivey v. Smith, 2013 WL 1326521, *2 (S.D.Ill., Apr. 2, 2013) (holding allegation that
defendants or their friends would attack plaintiff for filing this lawsuit, without more, did not establish imminent
danger); Ransom v. Ortiz, 2012 WL 3639120, *3 (E.D.Cal., Aug. 23, 2012) (holding allegation about long-standing
inadequate sanitation of barbering tools was not imminent); Allen v. Hart, 2012 WL 5205748, *2 (S.D.Ga., July 24,
2012) (holding prison official’s calling plaintiff “head snitch” in front of other prisoners did not create imminent
danger), report and recommendation adopted, 2012 WL 5200113 (S.D.Ga., Oct. 22, 2012); Tierney v. Alo, 2012
WL 1409660, *2-3 (D.Haw., Apr. 20, 2012) (holding allegation of re-transfer to a prison where a guard and two
other prisoners had assaulted plaintiff three years previously did not establish imminent danger absent allegations
that those individuals again threatened him or were even still present in the prison), aff’d, 517 Fed.Appx. 560 (9th
Cir. 2013) (unpublished); Robinson v. Mawer, 2008 WL 1986239, *2-3 (W.D.Mich., May 2, 2008) (holding claim
that prisoner’s hand was broken and he couldn’t defend himself against assault did not allege imminent danger
because there was no showing that he would imminently be assaulted); Brown v. Beard, 492 F.Supp.2d 474, 479
(E.D.Pa. 2007) (risk factors for heart disease were not sufficiently “imminent” to meet the requirement); Staley v.
Yu, 2007 WL 1149874, *1 & n.2 (D.S.C., Apr. 11, 2007) (holding side effects of forced psychotropic medication
might meet the standard except that plaintiff did not allege he was actually suffering from them); Coleman v.
Granholm, 2007 WL 1011662, *1 (E.D.Mich., Mar. 29, 2007) (holding alleged failure to provide adequate
toothpaste, which had led to several extractions and the risk of more, was “too attenuated and uncertain” to be
“imminent danger”); Spencer v. Missouri Dept. of Corrections, 2007 WL 781210, *1 (E.D.Mo., Mar. 9, 2007)
(holding claim that 17 months of tooth pain means “it is only a matter of time” before plaintiff gets an infection or
“something worse” happens does not satisfy imminent danger standard), reconsideration denied, 2007 WL 1049339
(E.D.Mo., Apr. 5, 2007); Mayfield v. Geo Group Inc., 2007 WL 609778, *3 (N.D.Tex., Feb. 27, 2007) (holding
allegation that rubbing of denture on gum and bone created a danger of infection did not satisfy imminent danger
standard); Johnson v. Barney, 2005 WL 2173950, *1 (S.D.N.Y., Sept. 6, 2005) (holding a prisoner who had been
beaten once at a particular prison did not face an “imminent danger” just because he might be at that prison again in
the future).
1597
Vaughn v. Alabama, 2013 WL 790941, *4 (S.D.Ala., Feb. 6, 2013) (allegation of swollen foot which had
existed since the 1990s and which was under treatment did not show imminent danger), report and recommendation
adopted, 2013 WL 790764 (S.D.Ala., Mar. 4, 2013), appeal dismissed, No. 13-11255 (11th Cir., Apr. 24, 2013);
McCree v. Myers, 2013 WL 608068, *4 (S.D.Ala., Jan. 15, 2013) (allegation of long-standing condition with no
allegation of exacerbation or of the consequences of lack of desired treatment did not satisfy imminent danger
exception), report and recommendation adopted, 2013 WL 607994 (S.D.Ala., Feb. 19, 2013); Brown v. Beard, 2010
WL 1257967, *4 (E.D.Pa., Mar. 25, 2010) (prisoner with Hepatitis C for 10 years did not show the risk to his health
was imminent); Simpson v. Prison Health Services, Inc., 2010 WL 425157, *3 (W.D.Mich., Jan. 27, 2010) (lower
back pain that has gotten worse and better over years with no indication it will become more serious); Simpson v.
Pramstaller, 2010 WL 204146, *3 (W.D.Mich., Jan. 15, 2010) (skin condition of nearly 20 years’ duration that “has
flared and subsided on numerous occasions” without serious risk did not establish imminent danger).

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ongoing.1598 Conditions must be shown to be personally dangerous to the plaintiff, not just
dangerous generally.1599
Courts have disagreed over the appropriateness of reassessing imminent danger based on
post-complaint events. Several decisions have held that entitlement to the imminent danger
exception can be withdrawn based on post-complaint mitigation of the danger.1600 Others have
held that the imminent danger finding, once made, is not affected by post-complaint
circumstances.1601 There is a similar disagreement over whether a danger that arose or worsened
1598

Alkebu-Lan v. Dickinson, 2013 WL 3490655, *1 (E.D.Cal., July 10, 2013) (“The alleged ongoing nature of
Defendants' actions bolsters, as opposed to diminishes, Plaintiff's claims that the danger he faced was ‘imminent.’”)
1599
Harris v. Nink, 2013 WL 4777187, *1 (S.D.Ohio, Sept. 5, 2013) (holding allegations of understaffing,
overcrowding, medical care and violence do not show imminent danger to the plaintiff); Jemison v. Thomas, 2012
WL 5997151, *2 (S.D.Ala., Nov. 1, 2012) (holding allegations of health-threatening heat and unsanitary food
service and living conditions did not establish imminent danger where the plaintiff did not specifically allege current
or future injury to himself), report and recommendation adopted, 2012 WL 5997454 (S.D.Ala., Nov. 29, 2012);
Miller v. County of Nassau, 2012 WL 4741592, *4 (E.D.N.Y., Oct. 3, 2012) (finding no imminent danger to this
plaintiff from bad jail conditions); Fontroy v. Owens, 2012 WL 4473216, *1-2 (E.D.Pa., Sept. 28, 2012) (holding
complaint that jail was grossly overcrowded with inadequate medical services, rats, vermin, and unsanitary
conditions failed to allege that the plaintiff himself was in imminent danger), order issued, 2012 WL 4473242
(E.D.Pa., Sept. 28, 2012); Ransom v. Ortiz, 2012 WL 3639120, *2 (E.D.Cal., Aug. 23, 2012) (holding plaintiff
failed to allege that inadequate barbering sanitation endangered him personally); Moten v. Adams, 2012 WL
2529204, *2 (E.D.Cal., June 29, 2012) (holding plaintiff failed to allege how heat conditions posed a risk to him),
report and recommendation adopted, 2012 WL 9245876 (E.D.Cal., Aug. 13, 2012), reconsideration denied, 2013
WL 5492692 (E.D.Cal., Sept. 30, 2013); Hatten v. Barker, 2011 WL 995854, *1 (D.Colo., Mar. 17, 2011) (holding
allegation that a particular prison is dangerous and defendants are conspiring to put plaintiff in it does not establish
imminent danger); Cardona v. Lappin, 2010 WL 3862814, *1-2 (M.D.Pa., Sept. 28, 2010) (holding general
allegation that overcrowding causes violence did not show imminent danger to the plaintiff).
1600
Owens v. Schwartz, 519 Fed.Appx. 992, 993 (11th Cir. 2013) (noting imminent danger had passed because of
post-complaint transfer); Willngham v. Summers, 2013 WL 3710893, *2 (W.D.N.C., July 12, 2013) (noting plaintiff
cannot show imminent danger because he has been released from prison); Short v. Rubenstein, 2010 WL 4968269,
*3 (N.D.W.Va., Dec. 1, 2010) (rejecting argument that imminent danger need only exist at the time of filing, noting
that plaintiff had been moved away from alleged danger); Jackson v. Jackson, 2010 WL 3655974, *4 n.6 (S.D.Ga.,
Mar. 18, 2010) (declining to dismiss where imminent danger court had previously recognized had been averted in
the interim), report and recommendation adopted, 2010 WL 3655971 (S.D.Ga., Sept. 15, 2010), aff’d, 456
Fed.Appx. 813 (11th Cir. 2012); Stearnsmiller v. Florida, 2009 WL 5067668, *5 (N.D.Fla., Dec. 17, 2009) (noting
law concerning assessment at time of filing, then ruling adversely based on lack of current complaint); Jones v.
Spaeth, 2009 WL 1325716, *3 (E.D.Cal., May 12, 2009) (in two-year-old case, court allows parties to supplement
the record to see if plaintiff’s imminent danger is still extant); Coleman v. Furman, 2008 WL 6958560, *1 (E.D.Va.,
July 20, 2008) (finding no imminent danger based on post-complaint receipt of dental treatment).
1601
Cooley v. Zewe, 2012 WL 6677885, *1-2 (W.D.Pa., Dec. 21, 2012) (holding imminent danger is not reassessed
as of the filing of an amended complaint, despite the usual rule that an amended complaint replaces the original
complaint for all purposes); Ellington v. Alameida, 2010 WL 2650632, *5 (E.D.Cal., July 1, 2010) (holding
imminent danger need not be reassessed upon filing of an amended complaint after prisoner was transferred away
from the danger); Stewart v. King, 2010 WL 1628992, *4 (M.D.Tenn., Apr. 20, 2010) (imminent danger need not
be shown again when complaint is amended); Simpson v. Thorpe, 2010 WL 1138426, *3 (W.D.Wis., Mar. 19,
2010) (declining to dismiss where plaintiff had been transferred away from danger), reconsideration denied, 2010
WL 2813123 (W.D.Wis., July 15, 2010) and 2010 WL 3667003 (W.D.Wis., Sept. 15, 2010); Andrews v. Cervantes,
2008 WL 1970345, *1 (E.D.Cal., May 5, 2008) (allowing filing of amended complaint though prisoner had been
transferred away from alleged danger because it existed when the case was first filed), report and recommendation
adopted, 2008 WL 2705405 (E.D.Cal., July 9, 2008); Dunigan v. FRDC, 2007 WL 2360101, *1 (E.D.Mo., Aug. 14,
2007) (rejecting argument that case filed under imminent danger exception should be dismissed when plaintiff was
transferred to a different prison away from the danger). But see Lowe v. Stotts, 2013 WL 5979671, *2 (E.D.Tex.,
Sept. 18, 2013) (assessing allegations in proposed amended complaint as of time of motion to file it where

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after the case was filed, and is ongoing, can establish imminent danger,1602 or whether a
threshold finding of no imminent danger is binding regardless of subsequent events.1603 Ongoing
pain or other consequences from past injuries do not constitute imminent danger.1604
Most courts address the imminent danger exception on the pleadings, at least initially.1605
If colorable allegations are disputed, the court may hold a hearing or rely on affidavits,
depositions, etc., to resolve the question,1606 though doing so is relatively uncommon. While
allegations of original complaint had been mooted), report and recommendation adopted, 2013 WL 5979672
(E.D.Tex., Nov. 7, 2013), appeal dismissed, 13-41283 (5th Cir., Jan. 8, 2014).
1602
See Pellegrino v. Weber, 2010 WL 1029536, *1 (D.S.D., Mar. 15, 2010) (plaintiff whose claim of imminent
danger was initially rejected showed imminent danger based on new allegations of lack of follow-up medical
treatment); White v. Saginaw County Jail, 2009 WL 6925218, *1 (E.D.Mich., Nov. 18, 2009) (plaintiff whose claim
of imminent danger was initially rejected showed imminent danger based on new allegations of denial of diabetic
snacks). As the White court pointed out: “Although this Court could deny Plaintiff's motion to reconsider and force
him to refile the same complaint alleging physical injury, this would only further delay these proceedings.” 2009
WL 6925218, *1 n.2.
1603
See Armstrong v. Brunsman, 2012 WL 6057578, *1 (S.D.Ohio, Dec. 6, 2012) (holding allegation that plaintiff
was assaulted because of filing this complaint was not cognizable for imminent danger purposes); Johnson v.
Morales, 2012 WL 243319, *1 (S.D.Ga., Jan. 25, 2012) (dangerous events occurring after filing are “immaterial to
the imminent danger inquiry”); Tholmer v. Yates, 2010 WL 1980180, *2 (E.D.Cal., May 17, 2010) (imminent
danger alleged in an amended complaint, but not the initial complaint, cannot satisfy the statute); Wilkerson v. Kim,
2009 WL 1542818, *2 (S.D.Ill., June 2, 2009) (rejecting effort to “reset” the case with amended/supplemental
complaint asserting dangers post-dating the initial filing), reconsideration denied, 2010 WL 55693 (S.D.Ill., Jan. 5,
2010); Trice v. Vazquez, 2006 WL 3191175, *2 (S.D.Ga., Nov. 1, 2006); see also Peterson v. Perdue, 2008 WL
3887630, *1 n.1, *3 (S.D.Ga., Aug. 21, 2008) (magistrate judge held that alleged threat of sexual assault did not
meet standard because plaintiff had not been assaulted or injured; district judge held that subsequent sexual assault
did not meet standard because it occurred after filing).
1604
Bridges v. Cox, 2009 WL 36659, *1 (W.D.Wis., Jan. 7, 2009) (prisoner complaining about the continuing
effects of past bad medical care did not show imminent danger); Reeves v. Correctional Medical Services, 2008 WL
4642592, *1 (E.D.Mich., Oct. 20, 2008); Cherry v. Boughton, 2008 WL 4609963, *1 (W.D.Wis., Jan. 8, 2008).
1605
Vandiver v. Vasbinder, 416 Fed.Appx. 560, 563 (6th Cir. 2011) (unpublished) (holding plaintiff “sufficiently
alleged [imminent danger], and that is all that is required by § 1915(g)”) (emphasis supplied); Jackson v. Jackson,
335 Fed.Appx. 14, 15 (11th Cir. 2009) (“Based on these allegations, which we must construe liberally, accept as
true, and view as a whole, . . . we conclude that Jackson has sufficiently demonstrated that he was in imminent
danger of serious physical injury when he filed suit.”); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007)
(courts must rely on complaint’s allegations; “the three-strikes rule is a screening device that does not judge the
merits of prisoners’ lawsuits”); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (requiring “specific fact
allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent
serious physical injury”); Ciarpiaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003) (describing standard as
“amorphous,” disapproving extensive inquiry into seriousness of allegations at pleading stage); Gilmore v. Bostic,
636 F.Supp.2d 496, 514-15 (S.D.W.Va. 2009) (holding allegations of stomach and lower intestinal problems,
headaches, cold sweats, rashes, nightmares, vomiting, and teeth grinding sufficient at the pleading stage; court
presumes they are “severe and continuous” at this point); Palacio v. New York State Div. of Parole, 2008 WL
4899255, *2 n.2 (N.D.N.Y., Nov. 12, 2008) and cases cited (imminent danger assessed based on “non-conclusory
allegations” in complaint). But see Clay v. Doctor Zae Young Zeon, 2014 WL 204241, *2 (S.D.Tex., Jan. 17, 2014)
(at initial screening, directing state Attorney General to produce report and medical records in order to assess
presence of imminent danger); May v. Barber, 2013 WL 6228881, *4 & n.3 (S.D.Ala., Dec. 2, 2013) (rejecting
claim based on lack of treatment for condition that frequently caused dangerously high blood pressure and was
associated with aneurysms in about half the cases; complaint “fails to provide factually supported, specific
allegations that he faces such imminent danger from his condition”).
1606
Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997); accord, Taylor v. Watkins, 623 F.3d 483, 485-86 (7th Cir.
2010) (holding “when a defendant contests a plaintiff’s claims of imminent danger, a court must act to resolve the
conflict”; a hearing of properly limited scope is one means; citing Gibbs); White v. State of Colorado, 157 F.3d
1226, 1232 (10th Cir. 1998), cert. denied, 526 U.S. 1008 (1999); see Vance v. Klemm, 2014 WL 109101, *2

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most determinations take place at initial screening or on a motion to dismiss, allegations that
survive at the pleading stage may be found insufficient at summary judgment or another factbased proceeding.1607 One appeals court has held (though in an unpublished opinion, and
questionably) that if the district court’s disposition of a case is inconsistent with the plaintiff’s
assertion of imminent danger, the plaintiff should not be granted IFP status on appeal. 1608
Imminent danger is a question for the court, not a jury.1609
(W.D.Pa., Jan. 10, 2014) (revoking IFP status based on court’s review of medical records which did not corroborate
plaintiff’s allegations); Tafari v. Baker, 2012 WL 5381235, *4 (N.D.N.Y., Oct. 31, 2012) (rejecting imminent
danger claim after evidentiary hearing preceded by extensive dscovery), reconsideration denied, 2012 WL 5880375
(N.D.N.Y., Nov. 21, 2012); Allen v. Barnes, 2009 WL 1758806, *6-8 (S.D.Ala., June 18, 2009) (after granting IFP
status, court revokes it upon reviewing plaintiff’s medical history showing he received extensive care); Norwood v.
Radtke, 2007 WL 5431018, *1 (W.D.Wis., Dec. 2, 2007) (allowing case to proceed based on alleged risk of assault
by other prisoners, setting evidentiary hearing expecting either to grant preliminary relief or revoke in forma
pauperis status); Brown v. City of Philadelphia, 2009 WL 1011966 (E.D.Pa., Apr. 14, 2009) (concluding based on a
hearing that claims of imminent danger were meritless); James v. Dormire, 2008 WL 625027, *2-3 (W.D.Mo., Mar.
4, 2008) (court allowed claim to go forward based on allegations that sharing electric razors presented a danger of
spreading infection, then found no imminent danger after a hearing because officials said they cleaned the razors
between uses and wiped them down with Barbicide); Williams v. Goord, 2007 WL 952053, *6 (N.D.N.Y., Mar. 29,
2007) (holding complications of a knee injury did not meet the standard where plaintiff’s exhibits show he had
received a lot of medical treatment); Breach v. Prison Health Services, Inc., 2007 WL 951747, *4 (M.D.Ala., Mar.
27, 2007) (rejecting claim of imminent danger from denial of hernia surgery based on declaration from doctor that
the condition can be treated non-surgically and should not be painful); Thomas v. Woodford, 2006 WL 3437525, *2
(E.D.Cal., Nov. 27, 2006) (rejecting claim of imminent danger based on allegedly inadequate medical care for blurry
vision, gum disease, and HIV with risk of nerve damage; court reviewed medical records and said plaintiff was
getting ongoing care); Morrison v. Brady, 2005 WL 3234300, *1-2 (E.D.Mich., Nov. 30, 2005) (holding exception
inapplicable to prisoner who complained of denial of asthma medication, based on court’s reading of his medical
records). In one recent decision the court directed the plaintiff to supplement his IFP request “with an affidavit
explaining the course of treatment he has received since he arrived at the Chillicothe Correctional Institution,
accompanied by any medical records or grievances related to his claim that he is still being denied treatment in a
way that threatens his future health or safety. It shall also address his current housing and bunk assignments and
explain any efforts he has made to be granted accommodations.” Pointer v. Marc, 2011 WL 847012, *3 (S.D.Ohio,
Mar. 8, 2011), subsequent determination, 2011 WL 2669743 (S.D.Ohio, July 7, 2011), report and recommendation
adopted, 2011 WL 3236526 (S.D.Ohio, July 28, 2011).
1607
Stine v. U.S. Federal Bureau of Prisons, 465 Fed.Appx. 790, 794 n.4 (10th Cir. 2012) (unpublished) (noting that
if defendants contest imminent danger after a grant of IFP status, the court must decide the dispute); Banks v.
Muhammad, 2013 WL 5646674, *1 (N.D.Ill., Oct. 15, 2013) (noting the court granted IFP status and defendants
successfully moved for reconsideration after they were served); Abdullah v. Migoya, 955 F.Supp.2d 1300, 1304,
1309-10 (S.D.Fla. 2013) (granting summary judgment on imminent danger); Pellegrino v. Weber, 2010 WL
5249832, *4 (D.S.D., Sept. 27, 2010) (revoking IFP status based on imminent danger, citing evidence that
defendants were trying to treat medical problems but plaintiff did not cooperate), report and recommendation
adopted, 2010 WL 5248739 (D.S.D., Dec. 16, 2010); Slocumb v. Delaney, 2010 WL 1345270, *1, 4 (D.S.C., Mar.
30, 2010) (rejecting imminent danger claim on summary judgment after initially crediting it), aff’d, 422 Fed.Appx.
272 (4th Cir. 2011); Bronson v. Kerestes, 2010 WL 411720, *5 (M.D.Pa., Jan. 25, 2010) (granting motion to revoke
IFP status based on doctor’s declaration after review of plaintiff’s medical condition), reconsideration denied, 2010
WL 1949037 (M.D.Pa., May 14, 2010); Harman v. Bell, 2008 WL 606998, *2 n.2 (E.D.Ark., Feb. 29, 2008)
(plaintiff’s allegation that failure to provide his prescribed high-calorie, high-protein diet consistently threatened his
life established imminent danger at the pleading stage; defendants are free to challenge his allegations by properly
supported motion); Baptiste v. Harper, 2007 WL 4224727, *1 (M.D.Ga., Nov. 27, 2007) (court granted IFP status
initially, asked for a report from defendants, which they asked be treated as a summary judgment motion; court
holds claim of risk of assault because the plaintiff had been labelled a snitch did not meet the standard where he had
never asked for protective custody and had not been assaulted in months in general population).
1608
Almond v. Pollard, 443 Fed.Appx. 198, 201 (7th Cir. 2011) (unpublished). The reason this holding is
questionable is that it presumes the district court’s finding of a three strikes bar is correct and in practice will deny

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Courts have rejected numerous claims of imminent danger as incredible or
insubstantial,1610 or simply not serious enough.1611 Many courts seem simply to have made ad
hoc judgments about the credibility of the prisoner’s claim based on no more than the pro se
complaint’s allegations, sometimes supplemented by the prisoner’s response to an order to show
appellate review of that decision to an indigent prisoner. In the arguably analogous context of district court
holdings that if correct constitute the prisoner’s third strike, almost all courts to decide the question—except the
Seventh Circuit—have held that the appeal should be allowed to go forward IFP. See nn. 1544-1545, above.
1609
Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 2010); Johnson v. Johnston, 2010 WL 3734121, *2 (N.D.Tex.,
Sept. 23, 2010) (holding “imminent danger of serious physical injury is another threshold issue which must be
determined by a court and which calls for judicial resolution of factual issues without the participation of a jury”).
1610
See Brown v. City of Philadelphia, 331 Fed.Appx. 898, 899 (3d Cir. 2009), cert. denied, 558 U.S. 999 (2009)
(court properly did not credit “vague, generalized, and unsupported claims”); Mathis v. Smith, 2006 WL 1342840,
*1 (11th Cir., May 17, 2006) (unpublished) (affirming rejection on credibility grounds of claim of ongoing threats to
life by guard because of prisoner’s prior false representations, history of frivolous litigation, and unrelated
allegations in his complaint); Ellison v. Quinn, 2013 WL 1144696, *4 (S.D.Ill., Mar. 19, 2013) (holding the mere
fact of being in prison, allegedly because of wrongful convictions, is too attenuated to constitute imminent danger);
Williams v. Murray, 2011 WL 2391099, *1 (E.D.Cal., June 10, 2011) (rejecting claim that staff were trying to
poison plaintiff with arsenic where he had made that allegation in ten prior cases over five years and was still alive);
James v. Unshaw, 2009 WL 2567833, *4 (S.D.Ala., Aug. 17, 2009) (rejecting claim that involuntary Prolixin
administration caused unspecified side effects and made plaintiff “crazy”); Hudnall v. Earnshaw, 2009 WL
1451648, *2 (S.D.Ala., May 20, 2009) (claim of denial of mental health care did not satisfy imminent danger
standard where it had been going on for a year and where plaintiff did not identify any specific danger or provide a
detailed account of his condition and needs); Tate v. Marshall, 2009 WL 1107752, *1 (M.D.Ala., Mar. 25, 2009)
(rejecting claim that plaintiff was required to live around inmates “potentially infected with contagious diseases”
who engaged in sexual activity with one another), report and recommendation adopted, 2009 WL 1107737
(M.D.Ala., Apr. 23, 2009); Merriweather v. Reynolds, 2008 WL 2076731, *3 (D.S.C. May 11, 2008) (rejecting
allegations of threats, enemies, danger from prison gangs, etc.; “unsupported, vague, self-serving, conclusory
speculation” does not establish imminent danger); Althouse v. Roe, 542 F.Supp.2d 543, 546 (E.D.Tex. 2008)
(holding claim that attention deficit hyperactivity disorder might lead the plaintiff impulsively to put himself in
danger was too speculative to show imminent danger); Burghart v. Corrections Corp. of America, 2008 WL 619308,
*1 (W.D.Okla., Mar. 4, 2008) (complaints of migraine headaches, fatigue, depression, weight gain and sleeping
disorders did not meet standard); see Appendix A for additional authority on this point.
1611
Lott v. Kemp, 2013 WL 653044, *1 (S.D.Ga., Feb. 20, 2013) (holding denial of pain medication did not
establish imminent danger where it did not cause further injury or deterioration); Freeman v. Mohr, 2013 WL
434023, *2 (S.D.Ohio, Feb. 5, 2013) (rejecting claim based on hernia surgery despite plaintiff’s alleged pain
because the plaintiff received some medical care and the procedure is deemed elective); Berryhill v. Oklahoma
Dept. of Corrections, 2012 WL 1391927, *1 (W.D.Okla., Apr. 20, 2012) (rejecting claim suggesting risk of loss of
teeth), appeal dismissed, No. 12-6210 (10th Cir., Sept. 12, 2012); Lockett v. Wexford Health Sources, Inc., 2011
WL 6029816, *2 (C.D.Ill., Dec. 5, 2011) (rejecting claim based on alleged bad reaction to soy protein diet where
medical records indicated good health despite plaintiff’s allegation of serious symptoms); Tia v. Paderes, 2011 WL
4104506, *3 (D.Hawai'i, Sept. 13, 2011) (weight loss did not constitute imminent danger where plaintiff had been
overweight and did not claim nutritional inadequacy), reconsideration denied, 2011 WL 4590406 (D.Hawai'i, Sept.
29, 2011); Green v. Curtin, 2010 WL 4318915, *3-4 (W.D.Mich., Oct. 22, 2010) (prisoner with sarcoidosis
dependent on oxygen, who could not go to the yard for exercise because officials refused to provide a portable
oxygen tank, did not show imminent danger because of resulting weight gain and diabetes because he could eat less
and exercise in his cell); Cook v. Standley, 2010 WL 3433060, *2 (C.D.Ill., Aug. 26, 2010) (“Having feces and spit
thrown on you as you walk down the gallery under the escort of correctional officers does not qualify as imminent
danger within the meaning of the statute. Getting hit by a shoe is not imminent danger. . . .”); Barbour v. Stanford,
2010 WL 2754465, *1 n.1 (W.D.Va., July 12, 2010) (“potential accelerated rate of tooth decay” did not establish
imminent danger); Simpson v. Prison Health Services, Inc., 2010 WL 425159, *3 (W.D.Mich., Jan. 27, 2010) (nasal
dryness, sinusitis, chronic sore throat are not serious physical injury); Simpson v. Prison Health Services, Inc., 2010
WL 425157, *3 (W.D.Mich., Jan. 27, 2010) (chronic lower back pain “is not sufficiently dangerous or impairing” to
be serious physical injury); Moore v. Barrow, 2010 WL 446128, *1 (S.D.Ga., Feb. 8, 2010) (migraine headaches
held “not of the type of serious injury” that meets the standard).

355

cause or objections to a magistrate judge’s report.1612 Some courts have rejected seemingly
substantial allegations of threat of injury.1613 Courts have reached disparate results in seemingly
similar situations, which may be distinguished only by the articulateness of the plaintiff in
describing the risk.1614 A number of decisions have noted the plaintiff’s citation of the same
supposed risks invoked in previous cases in rejecting an imminent danger argument.1615
1612

See, e.g., Senator v. Cates, 2012 WL 2046793, *2 (E.D.Cal., June 5, 2012) (finding no imminent danger based
on court’s lay reading of medical records attached to the complaint), aff’d, 2013 WL 978276 (E.D.Cal., Mar. 12,
2013); Word v. Annucci, 2010 WL 2179954, *2 (S.D.N.Y., May 27, 2010) (complaint that second-hand smoke
“lingers” in outdoor air and “partially spreads” indoors, with conclusory statements about health consequences, did
not meet imminent danger standard); Simpson v. Prison Health Services, Inc., 2009 WL 4950487, *1 (W.D.Mich.,
Dec. 14, 2009) (“Where a prisoner has disputed the adequacy of medical treatment for a period of years but fails to
allege any serious injury other than in a conclusory fashion, he has failed sufficiently to allege imminent danger.”),
reconsideration denied, 2010 WL 431371 (W.D.Mich., Jan. 25, 2010); Wilson v. Hubbard, 2009 WL 2971619, *2
(E.D.Cal., Sept. 11, 2009) (“While pain may constitute a serious physical injury, plaintiff could have treated his joint
pain with prescribed Tylenol, for example, rather than the dietary supplements.” Also, discontinuing those
supplements is “unlikely” to have caused “imminent pain,” but instead “a gradual worsening of symptoms.”), report
and recommendation adopted, 2009 WL 3381522 (E.D.Cal., Oct. 16, 2009); Reeves v. Peters, 2009 WL 1930043,
*2, 5 (E.D.Mich., July 2, 2009) (rejecting claim of imminent danger based on complaint of ongoing inadequate
cardiac care which had resulted in at least one hospitalization); Jackson v. Auburn Correctional Facility, 2009 WL
1663986, *5 (N.D.N.Y., June 15, 2009) (rejecting claim of imminent danger from second-hand smoke which
aggravated the plaintiff’s asthma; allegations were too conclusory to meet the narrowly-tailored imminent danger
exception”); Lee v. Folk, 2009 WL 856989, *3 (S.D.Ala., Mar. 24, 2009) (rejecting complaint about being “sick”
and “passing blood” for lack of specific allegations; “In fact, the opening from which the blood is passing is not
mentioned.”); Clay v. Hofbauer, 2008 WL 4534414, *2 (W.D.Mich., Sept. 29, 2008) (rejecting claim of imminent
danger from second-hand smoke based on failure to enforce no-smoking rule and poor ventilation); see Appendix A
for additional authority on this point.
1613
See Skillern v. Georgia Dept. of Corrections, 2006 WL 1843561, *3 (11th Cir., July 6, 2006) (unpublished)
(holding that allegation of repeated transfers of prisoner with diagnosed cardiac condition did not meet the standard
since defendants hospitalized him after each transfer to treat his dehydration, fatigue, angina pectoris, and syncope
episodes); May v. Barber, 2013 WL 6228881, *4 & n.3 (S.D.Ala., Dec. 2, 2013) (rejecting imminent danger claim
based on lack of treatment for Arterial Venous Malformation, a disorder which “frequently” causes dangerously
high blood pressure, with aneurysms forming in about half the cases; complaint “fails to provide factually supported,
specific allegations that he faces such imminent danger from his condition”); Lazor v. Gipson, 2013 WL 6009935,
*1 (E.D.Cal., Nov. 13, 2013) (rejecting allegation that plaintiff “suffers from unspecified respiratory disease and
hyper-sensitivity to environmental chemicals, the ventilation system in his cell triggers a reaction which causes
chronic cough, and the cough damages his throat and voice and agitates cellmates so they want to attack him” as
uncorroborated “paranoia and speculation” with no showing of a diagnosed medical condition), report and
recommendation adopted, 2013 WL 6388655 (E.D.Cal., Dec. 6, 2013); Custard v. Belter, 2012 WL 1586740, *2-3
(D.Colo., May 7, 2012) (holding allegation that staff members repeatedly called plaintiff a snitch in front of other
prisoners and repeatedly turned his lights off, leaving him in pitch dark conditions at risk of injury, did not
sufficiently allege imminent danger); Hadley v. Homme, 2011 WL 2493761, *2 (E.D.Cal., June 22, 2011) (holding
allegation that plaintiff was at risk of sudden death without timely recalibration of his “Implantable Cardioverter
Defibrillator” device was conclusory); McCarthy v. Ette, 2010 WL 4866590, *3 (D.Mont., Oct. 25, 2010) (holding
allegation of coughing up mucus with blood in it did not “rise to the level of imminent danger”), report and
recommendation adopted, 2010 WL 4852648 (D.Mont., Nov. 22, 2010); Reeves v. Peters, 2008 WL 5381580, *1, 3
(E.D.Mich., Dec. 23, 2008) (holding claim of worsening vision with severe headaches and constant eye irritation did
not show imminent danger); Escalera v. Graham, 2008 WL 4181741, *3 (N.D.N.Y., May 27, 2008) (rejecting claim
of deprivation of medication for a seizure disorder because plaintiff didn’t allege that medical staff refused to see
him, he hadn’t run out of it as of the filing of the complaint, and he did not allege it was necessary to prevent daily
seizures), subsequent determination, 2008 WL 4200128 (N.D.N.Y., Sept. 8, 2008); see Appendix A for additional
authority on this point.
1614
Compare Fuller v. Wilcox, 288 Fed.Appx. 509, 511, 2008 WL 2961388 (10th Cir. 2008) (denial of a wheelchair,
meaning that plaintiff alleged he must crawl, and could not walk to the shower or lift himself to his bed, “could

356

To meet the “serious physical injury” requirement, injury need not be so serious as to
violate the Eighth Amendment in itself,1616 and need not entitle the plaintiff to a preliminary
injunction1617—though at least one court has held that if the plaintiff has sufficiently alleged
imminent injury, it should treat the complaint as requesting a preliminary injunction and proceed
with a hearing.1618 Other courts have held that the fact that a plaintiff seeks only money
result in a number of serious physical injuries”) with Ellington v. Clark, 2011 WL 3500970, *5 (E.D.Cal., Aug. 8,
2011) (“Plaintiff complains that because he was deprived of ambulatory devices, such as a wheelchair or walker, he
is forced to crawl. . . . The denial of ambulatory devices, without more, does not rise to the level of imminent
danger. Plaintiff's allegations of imminent danger of serious physical injury are speculative.”), report and
recommendation adopted, 2011 WL 6780910 (E.D.Cal., Dec. 27, 2011); Lamb v. Lieber Correctional Inst., 2009
WL 4035903, *2 (D.S.C., Nov. 20, 2009) (holding allegation that plaintiff is denied “a medical bed,” a “wheelchair
and a handicap shower” for his “handicap problem” does not establish imminent danger); see also Bell v. Dileo,
2011 WL 1327711, *4 (E.D.Cal., Apr. 5, 2011) (holding allegations that plaintiff suffers from type II diabetes,
chronic pain in the lumbar region and numbness of lower extremities, and that without intervention he will be
paralyzed or die, were too “vague and conclusory”); Maisano v. McNamee, 2010 WL 625793, *2 (D.Ariz., Feb. 18,
2010) (holding allegation that plaintiff “most likely” has Amyotrophic Lateral Sclerosis did not establish imminent
danger because he did not explain the basis for the claim, provide a physician’s diagnosis, or describe his
symptoms). Compare Cooks v. Glasier, 2012 WL 910262, *1 (E.D.Mo., Mar. 16, 2012) (allegation of inadequate
food causing weight loss satisfied imminent danger standard) with Sayre v. Waid, 2009 WL 249982, *3
(N.D.W.Va., Feb. 2, 2009) (rejecting claim of 30-pound weight loss because “weight loss, in and of itself, is not
indicative of a serious physical injury”).
1615
Grandinetti v. Otani, 2013 WL 5503138, *1 (D.Hawai'i, Oct. 2, 2013) (noting that same alleged injuries had
been cited as long ago as 2005); Manago v. Cate, 2013 WL 1326637, *2 (E.D.Cal., Apr. 2, 2013) (noting citation of
previously dismissed claims and previously rejected allegations of imminent danger), report and recommendation
adopted, 2013 WL 1832775 (E.D.Cal., May 1, 2013); Nash v. Fuerst, 2012 WL 4511269, *3-4 (N.D.Ohio, Oct. 1,
2012) (noting that plaintiff had cited the same risk, recurrence of MRSA, in an earlier suit, and that judge had
ordered medical follow-up); Ransom v. Ortiz, 2012 WL 3639120, *3-4 (E.D.Cal., Aug. 23, 2012); Broadhead v.
Taylor, 2012 WL 2805037, *3 (S.D.Ala., June 13, 2012) (stating “the filing of repetitive actions based on similar
assaults with similar injuries over the years corroborates the undersigned conclusion that plaintiff did not face an
‘imminent danger of serious physical injury’ at the time of filing), report and recommendation adopted, 2012 WL
2804266 (S.D.Ala., July 9, 2012); Tierney v. Abercrombie, 2012 WL 2526808, *2 (D.Haw., June 29, 2012); Tia v.
Borges, 2012 WL 1537459, *2 (D.Haw., Apr. 30, 2012), appeal dismissed, No. 12-16158 (9th Cir., Sept. 10, 2012).
But see Moore v. Aikens, 2012 WL 3128947, *1 (M.D.Ga., June 26, 2012) (finding imminent danger in allegation
that blood pressure medication was stopped, even though this claim had been first asserted two years before), report
and recommendation adopted, 2012 WL 3128945 (M.D.Ga., July 31, 2012) .
1616
Gibbs v. Cross, 160 F.3d 962, 966-67 (3d Cir. 1998). Contra, Taylor v. Blessing, 2009 WL 425927, *2 (S.D.Ill.,
Feb. 20, 2009).
1617
Morefield v. Brewton, 2008 WL 5209984, *2-3 (S.D.Ga., Dec. 11, 2008); see also McDonald v. Shearing, 2013
WL 5346906, *2 (S.D.Ill., Sept. 23, 2013) (allowing plaintiff to proceed IFP on his complaint about treatment for
peripheral artery disease, despite denial of TRO; stating “in denying a temporary restraining order, whether
immediate intervention is necessary is a deciding factor. In contrast, the analysis under Section 1915(g) pertains
only to ‘imminent danger of serious physical injury.’”). But see Ammons v. Hannula, 2009 WL 799670, *3
(W.D.Wis., Mar. 24, 2009) (a failure to show some likelihood of success on the merits may call into question
whether there was imminent danger to begin with); Young v. Parks, 2009 WL 1371811, *2 (E.D.Cal., May 15,
2009) (“If plaintiff truly believed he was in imminent danger, he presumably would have sought an injunction.”),
report and recommendation adopted, 2009 WL 6530051 (E.D.Cal., Aug. 4, 2009), adhered to on reconsideration,
2010 WL 2197418 (E.D.Cal., May 28, 2010).
1618
Norwood v. Thurmer, 2010 WL 503088, *3 (W.D.Wis., Feb. 8, 2010), motion to certify appeal denied, 2010
WL 1418875 (W.D.Wis., Apr. 7, 2010); McSwain v. Sumnicht, 2009 WL 2601263, *4 (W.D.Wis., Aug. 19, 2009);
Ammons v. Hannula, 2009 WL 799670, *3 (W.D.Wis., Mar. 24, 2009). A finding of imminent danger does not
establish entitlement to a preliminary injunction, since the finding is made as of the time the case is filed, and the
Rule 65 analysis of injunctive relief is not thus “frozen in time.” Stine v. Allred, 2011 WL 3793771, *14 (D.Colo.,
Aug. 25, 2011).

357

damages, not an injunction, as relief “belies any representation that he might be under imminent
danger,”1619 a conclusion I believe is highly inappropriate to draw from a pro se complaint.1620
Successful claims of imminent danger most commonly involve allegations of failure to
treat serious or potentially serious medical conditions,1621 potentially injurious failure to
accommodate disabilities,1622 exposure to dangerous living conditions,1623 or failure to protect
1619

Brownlee v. Swingle, 2010 WL 117720, *1 (E.D.Cal., Jan. 7, 2010), aff’d, 436 Fed.Appx. 810 (9th Cir. 2011)
(unpublished); accord, Davidson v. Allen, 2010 WL 8510350, *1 (N.D.Fla., Oct. 7, 2010); see Williams v. Ashcroft,
2010 WL 329958, *3 (N.D.Cal., Jan. 20, 2010) (where plaintiff who had been transferred did not seek an injunction
against medical staff at current prison, he did not sufficiently allege imminent danger).
1620
See Alkebu-Lan v. Dickinson, 2013 WL 3490655, *2 (E.D.Cal., July 10, 2013). The court stated:
In any event, the explicitness with which a prisoner plaintiff requests injunctive relief should not
determine whether he has sufficiently alleged an “imminent danger of serious physical injury.” . . .
If that plaintiff fails to specifically request that the court enjoin the defendant's behavior, or fails to
properly articulate his desire that the behavior cease, that failure should not diminish the
sufficiency of his primary and basic assertion that he faces an imminent danger of serious physical
injury. To find otherwise would be to create, by a judicial sleight of hand, additional hurdles for
the prisoner plaintiff to overcome. . . .
1621

Bradford v. Vella-Lopez, 486 Fed.Appx. 643 (9th Cir. 2012) (unpublished) (denial of treatment for blood
clotting disorder); Stine v. U.S. Federal Bureau of Prisons, 465 Fed.Appx. 790, 793-95 (10th Cir. 2012)
(unpublished) (allegation of failure to provide Omeprazole prescribed for chronic acid reflux); Vandiver v.
Vasbinder, 416 Fed.Appx. 560, 562-63 (6th Cir. 2011) (unpublished) (“Failure to receive adequate treatment for
potentially life-threatening illnesses such as [diabetes and Hepatitis C] clearly constitutes ‘imminent danger’ under
the Act.”); Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010) (citing allegation of
untreated injuries after a beating); Smith v. Wang, 370 Fed.Appx. 377, 378 (4th Cir. 2010) (unpublished) (citing
failure to follow up on evidence of a tumor); Smith v. Mayes, 358 Fed.Appx. 411, 412 (4th Cir. 2009) (complaint of
refusal to provide care for Hepatitis C, painful hernia, acute edema, and herniated disk in spine, unless plaintiff
acknowledged name “Smith” rather than “X,” satisfied imminent danger standard); Jackson v. Jackson, 335
Fed.Appx. 14, 15 (11th Cir. 2009) (plaintiff “claims that he has a hernia that causes him to suffer from severe pain in
his testicles and abdomen, blood in his urine, nausea, and weight loss. Jackson contends that without surgery, which
the defendant prison officials will not approve, he will continue to suffer from those injuries and may even face
tissue death, gangrene, and internal bleeding.”); Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C.Cir. 2006)
(holding deterioration from lack of treatment for Hepatitis C was “imminent danger”); Ciarpiaglini v. Saini, 352
F.3d 328, 330-31 (7th Cir. 2003) (holding allegations of panic attacks leading to heart palpitations, chest pains,
labored breathing, choking sensations, and paralysis meet the imminent danger standard); Martin v. Cook, 2014 WL
457576, *3 (S.D.Ohio, Feb. 4, 2014) (holding alleged failure to treat skin cancer and positive colonoscopy finding
sufficiently supported imminent danger claim); Custard v. Allred, 2013 WL 6283962, *1 (D.Colo., Dec. 4, 2013)
(holding allegations of excessive noise causing hearing loss, denial of care for Hepatitis C with active symptoms,
denial of care for bleeding skin graft, and denial of care for broken dentures which cause lacerations and bleeding of
gums meet the imminent danger standard), order clarified, 2013 WL 6796531 (D.Colo., Dec. 23, 2013); Driver v.
Alexander, 2013 WL 5886211, *5 (M.D.Tenn., Oct. 31, 2013) (holding allegation of failure to provide treatment for
Hepatitis C and consequent deterioration of health satisfied imminent danger standard); Maisano v. Corizon Health
Inc., 2013 WL 5376559, *1 (M.D.Tenn., Sept. 25, 2013) (holding allegation of failure to provide prescribed
treatment for serious urological condition satisfied imminent danger standard); see Appendix A for additional
authority on this point.
1622
Fuller v. Wilcox, 288 Fed.Appx. 509, 511, 2008 WL 2961388 (10th Cir. 2008) (denial of a wheelchair, meaning
that plaintiff must crawl, and could not walk to the shower or lift himself to his bed, “could result in a number of
serious physical injuries”); Dye v. Bartow, 2013 WL 5295690, *2 (W.D.Wis., Sept. 19, 2013) (requirement that
prisoner with malformed thumb and degenerative arthritis use a short-handled toothbrush, causing pain); McDonald
v. Maue, 2012 WL 6016900, *1-2 (S.D.Ill., Dec. 3, 2012) (failure to heed plaintiff’s post-surgery medical
restrictions), reconsideration denied, 2013 WL 161868 (S.D.Ill., Jan. 15, 2013); Dye v. Grisdale, 2011 WL
5110402, *2 (W.D.Wis., Oct. 25, 2011) (rescission of single-cell feed-in status to prisoner with eating
disorder/phobia that prevented him from eating around others, resulting in “serious hunger pains, lack of bowel
movements for days at a time, headaches, weakness,” constituted imminent danger); Claiborne v. Blauser, 2011 WL

358

from the risk of assault from other prisoners.1624 In medical care cases, the question of imminent
danger is sometimes conflated with the merits: IFP may be denied a prisoner with seemingly
2559443, *2 (E.D.Cal., June 27, 2011) (policy of rear-handcuffing mobility-impaired prisoners despite medical
recommendations and taking their crutches and canes when moving them satisfied imminent danger standard);
Williams v. Walker, 2011 WL 1807432, *1 (E.D.Cal., May 9, 2011) (prisoner with multiple mobility disabilities
creating a risk of further injury unless he is placed in a bottom bunk sufficiently pled imminent danger); Wilson v.
Tilton, 2010 WL 1539851, *2 (E.D.Cal., June 16, 2010) (prisoner with mental illness pled imminent danger from
double-celling, in that it might result in self-harm), report and recommendation adopted, 2010 WL 2765592
(E.D.Cal., July 13, 2010); Brown v. Hubbard, 2009 WL 2407414, *2 (E.D.Cal., Aug. 3, 2009) (legally blind plaintiff
satisfied imminent danger standard with allegations that prison officials ignored medical orders to provide assistance
with grooming, dressing, and eating, to place him in a lower tier cell and lower bunk, with no stairs in his path);
Brownlee v. Clayton, 2009 WL 1212271, *2 (E.D.Cal., May 5, 2009) (allegation that plaintiff with back problems
was required to lie down when alarm sounded, resulting in pain and inability to get back up); Harris v. Beard, 2007
WL 404042, *2 (M.D.Pa., Feb. 1, 2007) (holding complaint of inadequate medical care for chronic back injury, plus
deprivation of cane despite need to walk long distances and climb stairs, and deprivation of lower bunk status, met
imminent danger standard); Miller v. Meadows, 2005 WL 1983838, *4 (M.D.Ga., Aug. 11, 2005) (holding
paraplegic who alleged he was denied physical therapy and necessary medical devices and/or treatments and that
this denial is “resulting in bed sores, serious atrophy, and deterioration of his spinal condition” sufficiently alleged
imminent danger of serious physical injury).
1623
Davis v. Kelso, 514 Fed.Appx. 656, 657 (9th Cir. 2013) (unpublished) (citing risk of contracting Valley Fever),
cert. denied, ___ S.Ct. ____, 2014 WL 684218 (U.S., Feb. 24, 2014); Brown v. Secretary Pennsylvania Dept. of
Corrections, 486 Fed.Appx. 299, 301-02 (3d Cir. 2012) (citing lack of open windows, no air conditioning, a
ventilation system that is faulty and dirty, excessive heat, and polluted air); Smith v. Wang, 370 Fed.Appx. 377, 378
(4th Cir. 2010) (unpublished) (citing exposure to environmental tobacco smoke allegedly causing nosebleeds and
headaches); Rankins v. Rowland, 188 Fed.Appx. 201, 202 n.1 (4th Cir. 2006) (unpublished) (holding that an
allegation that a poor ventilation system caused the plaintiff bodily harm and he was denied medical treatment for
his symptoms made a “colorable showing” of imminent danger); Chapa v. Arpaio, 2013 WL 474367, *1 (D.Ariz.,
Feb. 7, 2013) (holding allegation of “poor ventilation and unsanitary conditions that allow the circulation of dust,
pollen, and ‘human pathogens’” resulting in watery eyes, numerous respiratory problems, and possible exposure to
tuberculosis stated imminent danger); Williams v. Higgins, 2013 WL 310560, *4 (E.D.Cal., Jan. 25, 2013) (holding
allegations of ongoing poisoning stated imminent danger); Cochran v. Geit, 2011 WL 3109991, *2 (W.D.Wis., July
26, 2011) (holding risk of having to climb to a top bunk without a ladder met imminent danger standard); Cole v.
Ellis, 2010 WL 5564632, *2 (N.D.Fla., Dec. 28, 2010) (holding “the continuing harm of sleeping without heat
during the winter months without additional clothing or blankets, could constitute an ongoing threat of serious
physical harm”), report and recommendation adopted, 2011 WL 91002 (N.D.Fla., Jan. 11, 2011), aff’d, 451
Fed.Appx. 827 (11th Cir. 2011) (unpublished); Williams v. Lopez, 2010 WL 2197352, *1 (E.D.Cal., May 28, 2010)
(allegation that defendants were about to transfer HIV-positive prisoner to prison where he would be exposed to
potentially fatal valley fever met imminent danger standard); Peterson v. Thatcher, 2009 WL 2341978, *3
(N.D.Ind., July 27, 2009) (allegation that asthmatic plaintiff described by doctor as “very allergic to cat dander” was
held in a housing area where cats were kept as pets met imminent danger standard); Smith v. Ozmint, 2008 WL
1883200, *4 (D.S.C., Apr. 23, 2008) (imminent danger standard met by allegations of use of hazardous Chinese
products, 24-hour illumination in cells, exposure to deranged behavior and unsanitary conditions from mentally ill
prisoners in the segregation unit, deprivation of sunlight, and exposure to mold), aff’d, 356 Fed.Appx. 646 (4th Cir.
2009) (unpublished), cert. denied, 131 S.Ct. 142 (2010).
1624
Gibbs v. Roman, 116 F.3d at 85-86; Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (alleging prison
officials placed plaintiff in proximity with known enemies); Martin v. Gatez, 2012 WL 384526, *2 (S.D.Ill., Feb. 6,
2012) (alleging officials failed to protect against ongoing threat of gang assault); Johnson v. Fischer, 2011 WL
6945706, *4 (N.D.N.Y., Dec. 22, 2011) (allegation that plaintiff “continually warned defendants about threats that
both he and his family members were consistently receiving from enemy gang members, he was housed with such
enemy gang members at Upstate, he continues to remain housed with enemy gang members and without protective
custody in Upstate” sufficiently alleged imminent danger); Shawley v. Pennsylvania Dept. of Corrections, 2010 WL
3069584, *2 (M.D.Pa., Aug. 2, 2010) (allegation that plaintiff was subject to retaliation by staff for litigation
through assaults by other prisoners); Rowe v. Morton, 2010 WL 2732712, *2 (N.D.Ind., July 7, 2010) (allegation of
threats, assault, and ongoing risk from gangs, with no action from prison officials, satisfied imminent danger

359

serious medical problems who appears only to disagree with the nature or extent of the treatment
and does not show deliberate indifference.1625
Mental health conditions are outside the scope of the imminent danger exception unless
they do in fact threaten serious physical injury.1626 Some courts have held that self-inflicted
injury cannot constitute imminent danger because, as one court put it, “[e]very prisoner would
then avoid the three strikes provision by threatening suicide.”1627 This view is extreme and
unwarranted, and several courts have rightly rejected it.1628 Many prison suicides, attempted
standard); Brady v. Elverado, 2009 WL 3873570, *1 (E.D.Mich., Nov. 17, 2009) (allegation that staff member
threatened plaintiff and called him a snitch in other prisoners’ presence); Kelly v. Gutierrez, 2009 WL 3460419, *2
(S.D.Tex., Oct. 21, 2009) (alleging plaintiff was assaulted both by staff and by gang members and officials would
not transfer him); Cox v. Huddleston, 2009 WL 1534551, *1 (W.D.Ky., May 29, 2009) (alleging that plaintiff had
had “trouble” with officers and inmates in his housing area and officials refused to move him somewhere safer);
Cain v. Jackson, 2007 WL 2787979, *2 (S.D.Tex., Sept. 24, 2007) (alleging that plaintiff had been assaulted
repeatedly by gang members and denied protective custody); Matthews v. U.S., 72 Fed.Cl. 274, 278 (Fed.Cl. 2006)
(alleging that prison officials defamed plaintiff, resulting in threats and violence from other prisoners),
reconsideration denied, 73 Fed.Cl. 524 (Fed.Cl. 2006). But see Childs v. Olson, 2010 WL 2400060, *1 (D.Colo.,
June 15, 2010) (rejecting claim that being falsely labelled a sex offender subjected plaintiff to risk of physical harm);
Pettus v. Mangano, 2005 WL 1123761, *1 (E.D.N.Y., May 9, 2005) (holding that placement in a maximum security
prison with “anti-social, aggressive, hostile, and violent inmates” did not meet the “imminent danger” standard).
1625
Emmett v. Julye, 2013 WL 5537251, *1-2 (S.D.Tex., Oct. 4, 2013) (rejecting imminent danger claim because
there is no evidence of deliberate indifference); Rittner v. Williams, 2013 WL 4782356, *1-2 (N.D.Ohio, Aug. 12,
2013), reconsideration denied, 2013 WL 5428738 (N.D.Ohio, Sept. 26, 2013) .
1626
In Custard v. Allred, 2013 WL 6283962, *2 (D.Colo., Dec. 4, 2013), order clarified, 2013 WL 6796531
(D.Colo., Dec. 23, 2013), the court first observed: “An untreated psychological condition does not meet the
imminent danger exception.” However, it held that the plaintiff’s condition did meet that standard in light of his
additional allegation that the defendants’ practice of pounding on his cell door at night caused him to wake in a
terrified state and harm himself. Id.
1627
Wallace v. Cockrell, 2003 WL 21418639, *3 (N.D.Tex., Mar. 10, 2003), approved as supplemented, 2003 WL
21447831 N.D.Tex., Mar. 27, 2003); accord, Gay v. Blackman, 2011 WL 10604427, *2 (S.D.Ill., May 11, 2011)
(noting that the court earlier informed the plaintiff that “it would no longer tolerate this manipulation” and require
him to pay fees); Ochoa v. Nakashima, 2012 WL 6204780, *2 (D.Nev., Oct. 22, 2012) (holding plaintiff with
fanciful food complaint who had stopped eating in order to meet the imminent-harm standard at the time of the
cmplaint was not allowed to proceed IFP), report and recommendation adopted, 2012 WL 6204700 (D.Nev., Dec.
12, 2012); Gay v. Powers, 2011 WL 334282, *1 (S.D.Ill., Feb. 1, 2011) (“The Court is not inclined to grant Gay
ready access to the federal judicial system every time that Gay takes it into his head to cut himself.”); Cash v.
Bernstein, 2010 WL 5222126, *3 (S.D.N.Y., Dec. 20, 2010) (declining to find imminent danger where plaintiff
thwarted defendants’ efforts to treat his medical problem (citing Nelson v. Scoggy, 2009 WL 5216955, *4
(N.D.N.Y., Dec. 30, 2009)); West v. Bennett, 2010 WL 1524626, *2 (S.D.Ga., Mar. 18, 2010) (allegation of failure
to protect from self-mutilation, inter alia, did not satisfy imminent danger requirement), report and recommendation
adopted, 2010 WL 1524613 (S.D.Ga., Apr. 15, 2010); Fails v. Simon, 2009 WL 5217072, *1 (N.D.Fla., Dec. 30,
2009); Argetsinger v. Ritter, 2009 WL 3201088, *4 (D.Colo., Sept. 29, 2009); Bea v. Watson, 2009 WL 1764834,
*2 (W.D.Va., June 22, 2009); Steyer v. Rogers, 2008 WL 508596, *4 (D.N.J., Feb. 21, 2008). Cf. Brown v.
President and CEO of Prison Health Services, Inc., 2012 WL 926146, *3 (E.D.Pa., Mar. 16, 2012) (holding claim of
delayed medical care could not constitute imminent danger where it resulted from plaintiff’s own interference with
and refusal of care), order entered, 2012 WL 917646 (E.D.Pa., Mar. 16, 2012).
1628
Walker v. Scott, 472 Fed.Appx. 514, 515 (9th Cir. 2012) (unpublished) (allegation that “repeated placement in
double-cell housing without first completing treatment for coping in that environment caused his mental health to
deteriorate such that he became suicidal and violent towards others” satisfied imminent danger standard); Marshall
v. Weber, 2012 WL 6591649, *1 (D.Md., Dec. 17, 2012 (noting plaintiff was allowed to proceed IFP based on
allegations he “felt suicidal” and had swallowed razor blades and had bitten his tongue during a panic attack);
Wilson v. Tilton, 2010 WL 1539851, *2 (E.D.Cal., June 16, 2010), report and recommendation adopted, 2010 WL
2765592 (E.D.Cal., July 13, 2010); Norwood v. Thurmer, 2010 WL 503088, *3 (W.D.Wis., Feb. 8, 2010)
(allegation of ongoing failure to protect prisoner with suicidal tendencies constituted imminent danger), motion to

360

suicides, and other acts of self-harm result directly from serious mental illness,1629 and barring
from court mentally ill prisoners seeking treatment for their mental illness or other measures to
ameliorate its risks would be callous and life-threatening. However, a risk of self-inflicted injury
may not be imminent under the circumstances.1630
There must be some relationship between the allegations of imminent danger and the
substantive allegations in the complaint to fall within the exception.1631 The Second Circuit has
held that there must be some “nexus” between the complaint’s allegations and the danger of
injury, and has analogized the matter to standing: “In deciding whether such a nexus exists, we
will consider (1) whether the imminent danger of serious physical injury that a three-strikes
litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a
favorable judicial outcome would redress that injury.”1632 Several courts have held that the
imminent danger exception was not satisfied because the case as framed would not cure the
imminent danger alleged.1633 Appellate courts, and some district courts, have held that if a
plaintiff’s allegations of imminent danger meet the statutory standard, the case as a whole should
be allowed to proceed in forma pauperis without being restricted to the claims to which the
certify appeal denied, 2010 WL 1418875 (W.D.Wis., Apr. 7, 2010); Gilbert-Mitchell v. Lappin, 2008 WL 4545343,
*3 (S.D.Ill., Oct. 10, 2008) (allegation that discontinuation of psychotropic medications caused plaintiff to injure
himself could mean that he was in imminent danger of self-injury without them). Several decisions have held that
self-inflicted injury can satisfy the physical injury requirement of 42 U.S.C. § 1997e(e). See n. 1314, above.
1629
See, e.g., Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001); Eng v. Smith, 849 F.2d 80 (2d Cir. 1988).
1630
Pauline v. Mishner, 2009 WL 1505672, *2 (D.Haw., May 28, 2009) (plaintiff who said he might be suicidal, but
had been moved to a medical unit and was under close observation, was not in imminent danger).
1631
See Reynolds v. Luckenbaugh, 2012 WL 592879, *2-3 (D.Colo., Feb. 23, 2012) (allegations of assault in 2011
are not related to allegations based on events occurring in 1988); Morrison v. Watkins, 2010 WL 342248, *2
(N.D.Tex., Jan. 29, 2010) (complaints about prison conditions did not meet the imminent danger requirement where
the substantive claims were against the prosecutor and about plaintiff’s criminal conviction); Fuller v. Johnson
County Bd. of County Com’rs, 2007 WL 2316926, *1 (D.Kan., Aug. 8, 2007) (complaints about the ventilation
system did not meet the imminent danger standard where the plaintiff’s claim addressed accessibility for the
disabled); Barber v. Ohio University, 2007 WL 1831099, *2 (S.D.Ohio, June 25, 2007) (claim plaintiff was in
danger from retaliation for filing this lawsuit was not closely enough related to claims in complaint to invoke
imminent danger exception).
1632
Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009); accord, Tafari v. Prack, 2012 WL 2571310, *3
(N.D.N.Y., May 23, 2012) (allegations of subsequent threats and harassment would not be redressed by relief for the
plaintiff’s claims arising from prior disciplinary proceedings), report and recommendation adopted, 2012 WL
2571305, *1 (N.D.N.Y., July 3, 2012); Heard v. Tanner, 2011 WL 5149186, *2 (S.D.Ga., Sept. 28, 2011) (medical
care allegations did not establish imminent danger in suit challenging handling of grievances), report and
recommendation adopted, 2011 WL 5118890 (S.D.Ga., Oct. 25, 2011); McCoy v. F.B.I., 775 F.Supp.2d 188, 190
(D.D.C., Apr. 7, 2011) (“The imminent-danger exception only applies where ‘the action is connected to the
imminent danger.’” Plaintiff’s FOIA action was not connected to his complaints of alleged danger in prison); Davis
v. Middlesex Superior Court, 2011 WL 901805, *4 (D.Mass., Mar. 10, 2011) (“In order to invoke the exception of
the three-strikes rule based on the allegation of imminent danger of serious bodily harm, two elements must be met:
the harm must be imminent and the claim for relief asserted must be for the alleviation of that threat of harm.”).
1633
Thus, in Perry v. Boston Scientific Family, 2013 WL 6328760, *2 (D.Minn., Dec. 5, 2013), leave to file for
reconsideration denied, 2014 WL 555208 (D.Minn., Feb. 12, 2014), the plaintiff complained that the defendant
corporation had manufactured his defective pacemaker, but the court held he did not satisfy the imminent danger
exception because his suit could not protect him from the resulting danger even if it were imminent because the
court did not believe it could enjoin the manufacturer to remove it and provide treatment, since prison officials were
responsible for his medical treatment, and the present action could yield nothing but a damages award. Accord,
Brown v. U.S., 2013 WL 6583539, *2 (N.D.W.Va., Dec. 16, 2013) (declining to grant IFP status since plaintiff’s
Federal Tort Claims Action would only provide damages and would not avert the alleged imminent danger); see
cases cited in n. 1619, above.

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imminent danger is related.1634 However, a number of district courts have restricted IFP status to
the particular claims associated with imminent danger.1635 A claim of imminent danger does not
excuse the prisoner from the PLRA’s administrative exhaustion requirement.1636 Some courts
have also held that a complaint that satisfies the imminent danger exception cannot be amended
to include claims that do not involve imminent danger.1637
1634

Chavis v. Chappius, 618 F.3d 162, 171-72 (2d Cir. 2010) (“Nothing in the text of § 1915 provides any
justification for dividing an action into individual claims and requiring a filing fee for those that do not relate to
imminent danger.”); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (“qualifying prisoners can file their
entire complaint IFP; the exception does not operate on a claim-by-claim basis or apply to only certain types of
relief”); Ciarpiaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (holding damages claim could go forward even
though injunctive claim on which “imminent danger” allegation was based was moot); Gibbs v. Roman, 116 F.3d
83, 87 n.7 (3d Cir. 1997); Nelson v. Moncrief, 2006 WL 3690933, *2-3 (E.D.Ark., Dec. 13, 2006) (rejecting
argument that damages claims should not go forward because they don’t serve the purpose of the imminent danger
exception); Bond v. Aguinaldo, 228 F.Supp.2d 918, 919 (N.D.Ill. 2002) (allowing prisoner’s medical care claim to
go forward, including allegations against defendants responsible for medical care at prisons from which he had been
transferred); see Ibrahim v. District of Columbia, 463 F.3d 3, 5-7 (D.C.Cir. 2006) (granting IFP status based on
imminent danger, noting “smorgasbord” of other claims but not excluding them from the grant); Hendon v. Rigg,
2013 WL 3940982, *2 (E.D.Cal., July 30, 2013) (declining to revoke IFP status where claim on which imminent
harm finding was based was no longer in the case), report and recommendation adopted in part, rejected in part on
other grounds, 2013 WL 5274354 (E.D.Cal., Sept. 17, 2013); Freeman v. Collins, 2011 WL 6339687, *5 (S.D.Ohio,
Dec. 19, 2011) (allowing entire complaint to go forward even though the particular claim involving imminent
danger had been dismissed for lack of service; “the imminent-danger determination is based on the conditions as
alleged at the time of the complaint, and subsequent events do not alter the imminent-danger analysis”).
1635
See Custard v. Allred, 2013 WL 6283962, *1-3 (D.Colo., Dec. 4, 2013), order clarified, 2013 WL 6796531
(D.Colo., Dec. 23, 2013); Brown v. Lyons, ___ F.Supp.2d ____, 2013 WL 5629774, *4 & n.8 (E.D.Pa., Oct. 16,
2013) (rejecting out-of-circuit appellate holding that entire complaint should go forward); Redmond v. University of
Texas Medical Branch Hosp. Galveston, 2013 WL 4763978, *2 (S.D.Tex., Sept. 4, 2013) (holding claim for
injunction re medical care should be “explored” under imminent danger exception but claims of past mistreatment
causing the problem would not be cognizable); Naseer v. Miller, 2013 WL 3716946, *3 (W.D.Wis., July 12, 2013);
Allah v. Gramiak, 2013 WL 3772508, *1, 2 (M.D.Ga., July 16, 2013); Schuenke v. Wisconsin Dept. of Corrections,
2013 WL 2558251, *1 (W.D.Wis., June 11, 2013); Abdulaziz/Askew v. Williams, 2012 WL 6917788, *2 (E.D.Ark.,
Dec. 3, 2012), report and recommendation adopted, 2013 WL 241700 (E.D.Ark., Jan. 22, 2013); Thompson v.
Medical College of Georgia, 2012 WL 4738674, *2 (M.D.Ga., Oct. 3, 2012) (directing plaintiff to file “a new, more
focused lawuit” limited to claims involving imminent danger); Williams v. Sloan, 2012 WL 4717874, *2 (E.D.Ark.,
Sept. 24, 2012) (recommending dismissal for claims not involving imminent danger), report and recommendation
adopted, 2012 WL 4717877 (E.D.Ark., Oct. 1, 2012); Davis v. Hadden, 2012 WL 996612, *1 (E.D.Tenn., Mar. 22,
2012) (noting lack of circuit authority); Holton v. Wisconsin, 2011 WL 6886001, *3 (W.D.Wis., Dec. 29, 2011);
Joiner v. Mason, 2011 WL 2142768, *4 (M.D.Ala., May 23, 2011); Aziz v. Crawford, 2009 WL 962819, *1
(E.D.Mo., Apr. 8, 2009); Shelley v. Hepp, 2009 WL 483161, *3 (W.D.Wis., Feb. 25, 2009); Miller v. Meadows,
2005 WL 1983838, *5 (M.D.Ga., Aug. 11 2005). One recent decision dismisses the entire complaint rather than
determine which if any claims related to the imminent danger allegations. Dimanche v. Anderson, 2013 WL
4830802, *4 (N.D.Fla., Sept. 10, 2013) (“The § 1915(g) exception, however, should not be permitted when a case
presents a myriad of alleged injustices and insults, non-specific threats, and alleged violations of numerous rights.”).
1636
Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010); McAlphin v. Toney, 375 F.3d
753, 755 (8th Cir. 2004); Cole v. Ellis, 2010 WL 5564632, *3 (N.D.Fla., Dec. 28, 2010), report and
recommendation adopted, 2011 WL 91002 (N.D.Fla., Jan. 11, 2011), aff’d, 451 Fed.Appx. 827 (11th Cir. 2011);
Jensen v. Knowles, 621 F.Supp.2d 921, 927 (E.D.Cal. 2008). The Fletcher decision holds that if the grievance
system does not work quickly enough to avert imminent danger, it is not an available remedy for the prisoner’s
problem; if there is an emergency grievance procedure that could work quickly enough, the prisoner must use it.
1637
See McAlphin v. Toney, 375 F.3d 753 (8th Cir. 2004); Comeaux v. Broom, 2012 WL 4748200, *1 (N.D.Tex.,
Oct. 4, 2012); Conley v. McKune, 2012 WL 3637749, *3 (D.Kan., Aug. 23, 2012); Bingham v. Morales, 2012 WL
2375950, *1 n.2 (S.D.Ga., May 31, 2012), report and recommendation adopted, 2012 WL 2375349 (S.D.Ga., June
22, 2012); Ellington v. Alameida, 2007 WL 1501840, *2 (E.D.Cal., May 23, 2007).

362

5. Constitutional Issues
Challenges to the constitutionality of the three strikes provision have been
unsuccessful.1638 District court decisions holding the provision unconstitutional have been
reversed or overruled.1639
In my view the statute is unconstitutional. The appellate cases have ignored prior
authority striking down overbroad restrictions on filing lawsuits, including denial of access to in
forma pauperis procedures, as violating the right of access to courts.1640
The courts have also failed to address the statute’s constitutionality in light of standard
First Amendment doctrine. The right of court access “is part of the right of petition protected by
the First Amendment.”1641 As such, it is “generally subject to the same constitutional analysis” as
is the right to free speech.1642 Because the three strikes provision addresses the conduct of
litigation in court and not the internal operations of prisons, it is governed by the same First
Amendment standards as other “free world” free speech claims.1643 This body of law includes a
principle of narrow tailoring.1644
Applying that narrow tailoring principle, the Supreme Court said that public officials
could not recover damages for defamation unless the statements they sued about were knowingly
false or made with reckless disregard for their truth; the First Amendment requires “breathing
space,” and a margin for error is required for inadvertently false speech, or true speech will be
deterred.1645 This principle has also been applied in antitrust and labor law enforcement;
sanctions may not be imposed under the relevant statutes against persons who bring litigation
unless the litigation is both objectively and subjectively baseless.1646
Applied to the three strikes provision, the “breathing space” principle means that
prisoners can only be sanctioned for knowing falsehood or intentional abuse of the judicial
system–a category far narrower than the scope of § 1915(g). A sanction that penalizes lay
1638

See, e.g., Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007); Lewis v. Sullivan, 279 F.3d at 528-31 (7th Cir.
2002); Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir. 2001), cert. denied, 535 U.S. 1040 (2002); Rodriguez v.
Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Conseillant v. Worle, 2013 WL 164242, *3-4 (W.D.N.Y., Jan. 15,
2013) (reviewing constitutional challenges); see also James v. Branch, 2009 WL 4723139, *2 (E.D.La., Dec. 1,
2009) (one-year limitations period did not deny prisoners with three strikes access to the courts).
1639
See Lewis v. Sullivan, 135 F.Supp.2d 954 (W.D.Wis. 2001), rev’d, 279 F.3d 526 (7th Cir. 2002); Ayers v.
Norris, 43 F.Supp.2d 1039, 1050-51 (E.D.Ark. 1999) (applying equal protection strict scrutiny where prisoner would
be barred from court on a claim asserting a fundamental right), overruled, Higgins v. Carpenter, supra; Lyon v.
Krol, 940 F.Supp. 1433 (S.D.Iowa 1996) (similar rationale), appeal dismissed and remanded, 127 F.3d 763, 765
(8th Cir. 1997) (finding lack of standing).
1640
See DeLong v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990), cert. denied, 498 U.S. 1001 (1990); AbdulAkbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990); Matter of Davis, 878 F.2d 211, 212-13 (7th Cir. 1989); In re
Powell, 851 F.2d 427, 431-34 (D.C.Cir. 1988); Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1988).
1641
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
1642
Wayte v. U.S., 470 U.S. 598, 610 n. 11 (1985). Indeed, the Supreme Court has stated the matter more directly
and acknowledged that advocacy in litigation is speech. Legal Services Corporation v. Velazquez, 531 U.S. 533,
542-43 (2001).
1643
Cf. Thornburgh v. Abbott, 490 U.S. 401, 403 (1989).
1644
NAACP v. Button, 371 U.S. 415, 438 (1963).
1645
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
1646
Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-61 (1993); Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 511 (1972).

363

persons proceeding pro se–and in some cases results in barring them from court–for honest
mistakes of law will have the same inhibiting effect on meritorious claims that an overbroad law
of defamation would have on true speech about public officials. This argument is equally
applicable to other laws penalizing the filing of perceivedly frivolous litigation.1647

IX.

Screening and Dismissal

Three overlapping provisions of the PLRA, taken together, extend the courts’ powers of
summary dismissal by requiring the early screening of prisoner cases and extending the courts’
authority to dismiss cases sua sponte to include cases that do not state a claim or that seek
damages from an immune defendant, as well as those that are frivolous or malicious,1648
regardless of whether they are in forma pauperis or fee paid.1649 This screening is a threshold
requirement addressing the pleadings and does not impose on a court “an ongoing obligation to
sua sponte and continuously evaluate the sufficiency of an inmate’s action even after counsel has
entered an appearance on behalf of the defendants.”1650 The screening requirement obligates
district courts to proceed “as soon as practicable,” leading at least one appellate court to
condemn delays of months in initial screening.1651 However, it appears that substantial delays in
screening exist in some jurisdictions.1652
The screening requirement applies to cases removed from state courts, at least under 28
U.S.C. § 1915A and 42 U.S.C. § 1997e(c), which are not limited to cases filed under the federal
in forma pauperis scheme.1653 The Second Circuit has agreed with other circuits that dismissal
under 28 U.S.C. § 1915A, which applies to all civil complaints filed by prisoners against
governmental officials or entities regardless of whether they proceed in forma pauperis, can be
with prejudice.1654 The Supreme Court has held that failure to exhaust administrative remedies is
1647

See, e.g., Carter v. Rednour, 2010 WL 3835777, *1-2 (S.D.Ill., Sept. 24, 2010) (applying Illinois statute making
frivolous lawsuits disciplinary offenses; constitutional issues not discussed), certificate of appealability granted,
2010 WL 4735964 (S.D.Ill., Nov. 16, 2010).
1648
28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1); see Vanderberg v. Donaldson, 259 F.3d
1321 (11th Cir. 2001), cert. denied, 535 U.S. 976 (2002); Ray v. Evercom Systems, Inc., 2006 WL 2475264, *3-4
(D.S.C., Aug. 25, 2006) (holding fee-paid prisoner case raising antitrust claims rather than prison conditions, and
joining governmental defendants, is subject to § 1915A screening), appeal dismissed on other grounds, 234
Fed.Appx. 248 (5th Cir. 2007).
1649
Plunk v. Givens, 234 F.3d 1128 (10th Cir. 2000).
1650
Wolfel v. Collins, 2011 WL 14457, *3 (S.D.Ohio, Jan. 4, 2011). In Wolfel, defendants sought to rely on the
screening provision to obtain dismissal of a claim as time-barred, though they had failed to plead limitations in their
answer and the claim’s untimeliness was not apparent on the face of the complaint.
1651
Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012) (“Congress has the authority to
require judges to expedite particular matters, . . . and § 1915A(a) exercises that authority. Ten months exceeds any
understanding of ‘as soon as practicable’.”).
1652
See Taylor v. Carter, 2013 WL 5754951, *2 (E.D.Cal., Oct. 23, 2013) (denying motion for preliminary
injunction raising safety issues because plaintiff’s three-month-old case had not been screened; “Plaintiff is advised
that the Court presently has a large number of cases awaiting preliminary screening.”); see also In re Brown, ___
Fed.Appx. ____, 2013 WL 5977550, *1-2 (3d Cir. 2013) (denying mandamus for eight-month delay in proceeding,
citing 28 U.S.C. § 1915(e)(2) screening authority to justify no action until the case is screened).
1653
Hairston v. Blackburn, 2010 WL 145793, *2-3 (S.D.Ill., Jan. 12, 2010); Crooker v. Burns, 544 F.Supp.2d 59, 67
(D.Mass., Apr. 10, 2008) and cases cited.
1654
Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004) and cases cited. Other circuits have held that dismissal
under 28 U.S.C. § 1915, the in forma pauperis statute, must be without prejudice, consistently with pre-PLRA law;
the Second Circuit has not decided the question. Id. (citing cases).

364

not failure to state a claim for screening purposes unless non-exhaustion is apparent on the face
of the complaint.1655 The same is true of dismissal based on other affirmative defenses.1656
The Second Circuit, like all others, has held that under the PLRA, as under prior law, pro
se litigants should be allowed to amend their complaints to avoid dismissal,1657 though one
federal circuit has only recently abandoned the contrary view.1658 The PLRA also does not affect
the rule that a court reviewing a complaint must accept as true all allegations of material fact and
construe them in the light most favorable to the plaintiff, or the rule that courts must construe pro
se pleadings liberally.1659
The standard of appellate review under the PLRA screening provisions has not been
decided in the Second Circuit.1660
One court has held that the PLRA-dictated screening process is generally good cause for
extending the 120-day time period for serving process.1661 Courts have disagreed over the effect
of passing initial screening on defendants’ right to seek dismissal under Rule 12(b)(6).1662

X.

Waiver of Reply

The PLRA allows defendants in prisoner cases to “waive the right to reply” and provides
that “[n]o relief shall be granted to the plaintiff unless a reply has been filed.” The court may

1655

Jones v. Bock, 549 U.S. 199, 214-15 (2007); see n. 295, above, for discussion of how non-exhaustion can, and
cannot, be apparent on the face of the complaint.
1656
See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1097 (10th Cir. 2009) (holding dismissal at screening as timebarred requires that the lack of meritorious tolling issues be clear from the face of the complaint, or else that the
court has provided notice and an opportunity to be heard for the prisoner).
1657
Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 795-96 (2d Cir. 1999); accord, Brown v. Johnson, 387
F.3d 1344, 1348-49 (11th Cir. 2004); Grayson v. Mayview State Hosp., 293 F.3d 103, 109-14 (3d Cir. 2002)
(addressing 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000).
1658
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013), overruling McGore v. Wrigglesworth, 114 F.3d 601,
612 (6th Cir. 1997). LaFountain acknowledged that the former no-amendment rule was inconsistent with the
Supreme Court’s holding that “the PLRA's screening requirement does not—explicitly or implicitly—justify
deviating from the usual procedural practice beyond the departures specified by the PLRA itself.” Jones v. Bock,
549 U.S. at 214.
1659
See Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000); Gomez v. USAA Federal Savings Bank, 171 F.3d at
795-96.
1660
Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 n. 2 (2d Cir. 2000); Cruz v. Gomez, 202
F.3d 593, 596 n. 4 (2d Cir. 2000) (noting most circuits use de novo standard). But see Bilal v. Driver, 251 F.3d
1346, 1348-49 (11th Cir.) (endorsing de novo standard for dismissals that do not state a claim and abuse of
discretion standard for dismissals as frivolous), cert. denied, 534 U.S. 1044 (2001).
1661
Shabazz v. Franklin, 380 F.Supp.2d 793, 799-800 (N.D.Tex. 2005).
1662
Compare Harrison v. Cox, 2014 WL 411537, *1 n.2 (E.D.Cal., Feb. 3, 2014) (citing “Court's disfavor of
12(b)(6) motions for failure to state a claim where a reasoned screening decision exists”; court dismisses on other
grounds); Shockley v. McCarty, 677 F.Supp.2d 741, 746 (D.Del. 2009) (holding a screening decision is the law of
the case as to whether the complaint states a claim, and a motion to dismiss should be denied on that ground unless
the complaint has been amended in the interim) with Castle v. Eurofresh, Inc., 2010 WL 797138, *2 (D.Ariz., Mar.
8, 2010) (holding motion to dismiss appropriate because of the complexity of the claims, noting that at screening the
court did not have the benefit of counsel’s briefs), stay denied, 2010 WL 1657635 (D.Ariz., Apr. 21, 2010), leave to
appeal denied, 2010 WL 2035576 (D.Ariz., May 20, 2010).

365

require a reply “if it finds that the plaintiff has a reasonable opportunity to prevail on the
merits.”1663
“Reasonable opportunity to prevail” seems to mean no more than that the case has
survived initial screening–i.e., the complaint states a claim, is not frivolous or malicious, and
does not seek damages from an immune defendant.1664 No default or default judgment can be
entered if defendants have not been directed to answer the complaint.1665 Some courts have gone
further and held that prisoners cannot get a default judgment for failure to answer in a case filed
from prison,1666 though the question is not settled,1667 and default judgments continue to be
granted in some prison cases.1668

XI.

Hearings by Telecommunication and at Prisons

The PLRA encourages the use of telecommunications to hold pre-trial proceedings
without removing the prisoner from the prison, and authorizes arrangements to hold hearings in
the same manner.1669 This statute seems mainly to ratify pre-existing practice.1670
1663

42 U.S.C. § 1997e(g); see, e.g., Daniel v. Power, 2005 WL 1958350, *2 (S.D.Ill., July 20, 2005) (after initial
screening, “ [d]efendants are ORDERED to timely file an appropriate responsive pleading to the Amended
Complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).”) The Supreme Court has rejected
the argument that this provision requires prisoners to plead exhaustion of administrative remedies. Jones v. Bock,
549 U.S. 199, 216 (2007).
1664
See Cameron v. Rantz, 2008 WL 5111875, *6 (D.Mont., Dec. 4, 2008); Rush v. Giurbino, 2007 WL 3473223,
*2 (S.D.Cal., Nov. 14, 2007); Jones v. Bowersox, 2005 WL 1185598, *1-2 (W.D.Mo., May 18, 2005); Reed v.
McBride, 96 F.Supp.2d 845, 849 (N.D.Ind. 2000).
1665
Lafountain v. Martin, 2009 WL 4729933, *4 (W.D.Mich. Dec. 3, 2009); Olmstead v. Balcarecel, 2007 WL
2121937, *3 (E.D.Mich., July 24, 2007); Cidone v. Chiarelli, 2007 WL 2068317, *1 n.1 (M.D.Pa., July 17, 2007);
Wallin v. Brill, 2007 WL 781566, *5 (D.Colo., Mar. 13, 2007) (setting aside default), aff’d, 269 Fed.Appx. 820
(10th Cir. 2008), cert. denied, 555 U.S. 1051 (2008).
1666
Johns v. Lockhart, 2013 WL 1289393, *1 (W.D.Mich., Feb. 7, 2013) (“The only action required of any
defendant is the filing of an appearance within the time allowed by the Court's order of service. No default will be
entered against any defendant for exercising the right under section 1997(e(g)(1) not to respond to the complaint.”),
affirmed in part, vacated in part, remanded on other grounds, No. 13-1720 (6th Cir., Feb. 18, 2014) (unpublished);
Smith v. Heyns, 2013 WL 1163172, *16 (E.D.Mich., Jan. 10, 2013), report and recommendation adopted, 2013 WL
1155568 (E.D.Mich., Mar. 20, 2013); Russell v. Tribley, 2011 WL 4387589, *7 (E.D.Mich., Aug. 10, 2011), report
and recommendation adopted, 2011 WL 4396784 (E.D.Mich., Sept. 21, 2011); Rhinehart v. Scutt, 2010 WL
3701788, *8 (E.D.Mich., Aug. 16, 2010) (holding “where a defendant has failed to respond to a civil rights
complaint brought by a prisoner, the Court's sole power is to order the defendant to file a reply”), report and
recommendation adopted, 2010 WL 3701787 (E.D.Mich., Sept. 15, 2010); Lafountain v. Martin, 2009 WL
4729933, at *4 (W.D.Mich. Dec.3, 2009); Bell v. Lesure, 2009 WL 1290984, *3-4 (W.D.Okla., May 6, 2009)
(holding the PLRA forbids entry of default judgments in prisoner cases); Vinning v. Walls, 2009 WL 839052, *1
(S.D.Ill., Mar. 31, 2009) (holding default judgment could be entered, but no relief ordered, under the PLRA).
1667
In McCurdy v. Johnson, 2012 WL 3135906, *2 (D.Nev., Aug. 1, 2012), the court held that a default judgment
may be entered if the court has entered an order specifically based on 42 U.S.C. § 1997e(g)(2), which authorizes
requiring a reply where the court has found a reasonable opportunity to prevail on the merits. McCurdy also holds
that a prisoner must demonstrate exhaustion before obtaining a default judgment. 2012 WL 3135906, *3. The court
does not explain why the plaintiff must negate an affirmative defense that the defendant has the burden of raising.
See § IV.D.1, above.
1668
See Montez v. Hampton, 2013 WL 6404990, *1-2 (S.D.Tex., Dec. 6, 2013) (awarding damages based on earlier
default judgment); Benton v. Rousseau, 940 F.Supp.2d 1370, 1380-81 (M.D.Fla. 2013) (entering default judgment
against defendant who did not answer third amended complaint); Johnson v. MDOC, 2009 WL 224907, *3
(N.D.Miss., Jan. 28, 2009); Cameron v. Myers, 569 F.Supp.2d 762 (N.D.Ind. 2008).
1669
42 U.S.C. § 1997e(f).

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It is not clear whether this PLRA provision extends to trials or other evidentiary
proceedings. A non-PLRA decision authorizing psychiatric commitment hearings by video
emphasized that (unlike trials) such decisions are generally based on expert testimony and do not
depend much on either the witnesses’ demeanor or the “impression” made by the person being
committed, and that the proceeding does not involve factfinding in the usual sense. 1671 This
reasoning suggests the statute should not be viewed as extending to trials. 1672 Before the PLRA,
courts had expressed a strong preference for having prisoner plaintiffs present in court for
trial.1673

XII.

Revocation of Earned Release Credit

The PLRA authorizes courts “[i]n any civil action brought by an adult convicted of a
crime and confined in a Federal correctional facility” to deprive federal prisoners of all of their
good time if they find that a prisoner has filed a claim for a malicious purpose or solely to harass
the defendant, or that the prisoner has testified falsely or otherwise knowingly presented false
evidence or information to the court.1674 This action is available only in a civil action brought by
the prisoner—not in a proceeding brought by the government referring to past civil actions.1675
This provision is rarely invoked; the only reported applications of it, aside from the case referred
to just above, appear to be in several cases in the District of South Carolina.1676
There is not a word in the statute about the procedural protections due the prisoner if this
statute is invoked. In my view such action is analogous to criminal contempt, and the prisoner
should be entitled to the protections of the criminal process for the reasons stated in International
Union, United Mine Workers of America v. Bagwell.1677

1670

See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (noting telephone evidentiary hearing to assess
frivolousness of claim); James v. Alfred, 835 F.2d 605, 606 (5th Cir.) (describing “Spears hearing” held in prison),
cert. denied, 485 U.S. 1036 (1988).
1671
U.S. v. Baker, 45 F.3d 837 (4th Cir. 1994), cert. denied, 516 U.S. 872 (1995).
1672
But see Williams v. Forcade, 2004 WL 1698671, *1-2 (E.D.La., July 28, 2004) (directing that plaintiff
participate in trial by telephone).
1673
Hernandez v. Whiting, 881 F.2d 768, 770-72 (9th Cir. 1989); Muhammad v. Warden, Baltimore City Jail, 849
F.2d 107, 113 (4th Cir. 1988); Poole v. Lambert, 819 F.2d 1025, 1029 (11th Cir. 1987).
1674
28 U.S.C. § 1932.
1675
U.S. v. Belt, 2011 WL 3236065, *6 (D.Md., July 26, 2011) (refusing to revoke good time in action filed by the
government seeking injunctive and declaratory relief against prisoner’s litigation practices).
1676
Rice v. National Security Council, 244 F.Supp.2d 594, 597, 605 (D.S.C. 2001) (citing cases), aff’d, 46
Fed.Appx. 212 (4th Cir. 2002), cert. denied, 538 U.S. 951 (2003). More recently, the court has applied this
provision to statements made in a motion to vacate, set aside, or correct sentence under 18 U.S.C. § 2255, without
commenting on whether such a motion by a convicted criminal defendant in his criminal case is a “civil action”
brought by an adult convict as the statute requires. U.S. v. Williams, 2011 WL 4479537, *2-3 (D.S.C., Sept. 26,
2011). Another court has suggested in dictum that failure to disclose prior litigation history could result in
revocation of good time under § 1932. Moody v. Bemberry, 2011 WL 6887703, *3 (D.N.J., Dec. 29, 2011).
1677
512 U.S. 821, 828-34 (1994). In U.S. v. Williams, supra, where the prisoner alleged misconduct by his defense
attorney which she denied, the court set the matter for an evidentiary hearing, then inferred the statutorily required
findings from the prisoner’s withdrawing the motion before the hearing.

367

XIII.

Diversion of Damage Awards

Compensatory damages awarded to prisoners in civil actions against correctional
personnel are to be paid directly to satisfy outstanding restitution orders.1678 Reasonable efforts
are to be made to notify the victims of the crime for which the prisoner was convicted and
incarcerated of any pending payment of compensatory damages. 1679 The statute does not say
who is responsible for making the “reasonable efforts to notify the victims.” There has been
almost no judicial construction of these statutes.1680 One very significant question is whether the
phrase “compensatory damages awarded,” which appears in both, includes settlement of a
damages claim. As a matter of plain English, it presumably does not, and so, apparently, holds
the only relevant decision I am aware of.1681 In addition, as plaintiff’s counsel in that case
argued, the statute applies only to compensatory damages, and settlements are not generally
characterized as compensatory or punitive, so it cannot be determined what part, if any, of a
settlement represents compensatory damages.
Some states, including New York, have passed statutes governing the disposition of
damage awards received by prisoners. It is arguable that the PLRA provisions pre-empt such
statutes insofar as they affect awards made in federal court in cases brought under federal
law.1682

1678

Pub.L.No. 104-134, Stat. 1321 § 807 (April 24, 1996) (not codified; appears after 18 U.S.C.A. § 3626).
Pub.L.No. 104-134, Stat. 1321 § 808 (April 24, 1996) (not codified; appears after 18 U.S.C.A. § 3626).
1680
In Loucony v. Kupec, 2000 WL 1050905 (D.Conn., Feb. 17, 2000), defendants sought early in the litigation to
require the plaintiff to provide the name of the victim of his crime so he or she could be compensated from any
award. However, the court ruled that since the plaintiff did not file suit until he was out of prison, he was not a
“prisoner” subject to the statute.
1681
In Dodd v. Robinson, Civil Action No. 03-F-571-N, Order, *1 (M.D.Ala., Mar. 26, 2004), in which a district
attorney sought to satisfy a restitution order by moving in the court in which a case had been settled, the district
court held that the PLRA provision concerning restitution orders “is not applicable in this case because the parties
have reached a private settlement agreement.” The court expressed confidence that the District Attorney had ample
means in state court to enforce the restitution order. Cf. Torres v. Walker, 356 F.3d 238, 243 (2d Cir. 2004) (holding
that a “so ordered” stipulation settling a damage claim was not a money judgment).
1682
Cf. Felder v. Casey, 487 U.S. 131 (1988) (holding that a state notice of claim requirement was pre-empted by
federal law eschewing such a requirement in § 1983 cases, even when brought in state court); Hankins v. Finnel, 964
F.2d 853, 861 (8th Cir.) (holding that § 1983 pre-empts a state Incarceration Reimbursement Act and makes it
unenforceable against a § 1983 damage judgment), cert. denied, 506 U.S. 1013 (1992).
1679

368

APPENDIX A
Additional Authority
To make the preceding text more presentable, I have removed some cumulative materials
from some of the longer footnotes.
Note 120: Countryman v. Palmer, 2012 WL 4340659, *4 (D.Nev., Aug. 7, 2012) (holding
demand to reinstate all 2009 religious programs was not narrowly drawn to remedy a three-day
deprivation of religious exercise), report and recommendation adopted, 2012 WL 4339048 (D.Nev., Sept.
19, 2012); Mitts v. Obandina, 2012 WL 4060013, *2 (S.D.Ill., Aug. 27, 2012) (declaring an injunction to
provide prescribed medical care pendent lite “the least intrusive means to correct the treatment
deficiency”), report and recommendation adopted, 2012 WL 4059982 (S.D.Ill., Sept. 14, 2012); Pinson
v. Prieto, 2011 WL 6294479, *4 (C.D.Cal., Dec. 13, 2011) (holding demand for “review of existing
policies and procedures regarding housing members of gangs in the general population of agency
facilities” was not narrowly drawn to correct plaintiff’s complaint that gang members had a contract on
him and he needed protection); Hughes v. Lavender, 2011 WL 2457840, *1, 6 (S.D.Ohio, June 16, 2011)
(holding demand for examination by experienced infectious disease physician and “evaluation of the
condition of Mr. Hughes's liver, immune system, and back, as well as a prescribed course of treatment
which will restore and maintain their full function as they existed at the time of his commitment to [jail],”
was not narrowly drawn); Chan v. County of Sacramento, 2011 WL 2636262, *4 (E.D.Cal., July 5, 2011)
(declining to recommend specific procedures, but directing defendants to send plaintiff to a dentist
competent to perform root canals, permanent fillings, and dentures in order to develop and act on a
treatment plan); Flynn v. Doyle, 630 F.Supp.2d 987, 993-94 (E.D.Wis., Apr. 24, 2009) (enjoining
defendants to submit a plan to ensure that medication is dispensed by persons with credentials equal to
Licensed Practical Nurses, that they are trained in prison procedures, and that medication orders are
timely processed and dispensed); Perez v. Cate, 2009 WL 440508, *4 (N.D.Cal., Feb. 23, 2009) (where
prisoners transferred out of state lost the benefit of an agreement governing prison dental care, least
restrictive and intrusive remedy was not to enjoin the transfers, but possibly to exclude prisoners
acknowledged to have dental problems of a certain degree of urgency); Ashanti v. Tilton, 2009 WL
413593, *4 (E.D.Cal., Feb. 18, 2009) (enjoining defendants to provide kosher food to Muslim prisoner as
the least restrictive means of enforcing his dietary rights), report and recommendation adopted, 2009 WL
541220 (E.D.Cal., Mar. 2, 2009); Farnam v. Walker, 593 F.Supp.2d 1000, 1017-18 (C.D.Ill. 2009)
(enjoining defendants to follow plaintiff’s experts medical treatment recommendations, but only until
they got the patient to a Cystic Fibrosis Center; selecting an alternate medical device that poses less
security risk); Turley v. Rednour, 2011 WL 1897922, *3 (S.D.Ill., May 18, 2011) (“Requiring that Turley
be housed in a different facility does not fall within the parameters of narrowly-drawn relief.”); Williams
v. Martin, 2011 WL 2268477, *6 (D.Nev., Apr. 20, 2011) (holding demand for “sixteen-point
personalized medical plan” for deep vein thrombosis was overbroad, focusing on demand for Coumadin
and housing that does not require plaintiff to be sedentary), report and recommendation adopted, 2011
WL 2214189 (D.Nev., June 7, 2011); Reynolds v. Rios, 2011 WL 617424, *3 (E.D.Cal., Feb. 10, 2011)
(prisoner who complained of denial of magazines would not be entitled to have court’s decision mailed to
every federal prisoner); Fernandez v. Nevada, 2010 WL 5678693, *7 (D.Nev., Oct. 28, 2010) (holding
sex offender denied hearing before psychological board necessary for parole eligibility was entitled to an
injunction granting him the hearing, not to removal of sex offender classification), report and
recommendation adopted, 2011 WL 344745 (D.Nev., Feb. 1, 2011); Sims v. Sayre, 2010 WL 3932080,
*6 (N.D.Cal., Sept. 30, 2010) (stating that plaintiff failed to show that a transfer is the least intrusive

369

means of remedying his medical condition); Matthews v. Legrand, 2009 WL 3088325, *6 (D.Nev., Sept.
22, 2009) (stating that ordering a prison transfer would be more intrusive than reform of prison
procedures); Cassini v. Lappin, 2009 WL 224147, *3 (E.D.Cal., Jan. 29, 2009) (transfer from private
prison back to federal custody and expungement of disciplinary record would not correct plaintiff’s equal
protection claim about denial of normal federal administrative review to federal prisoner in private
facility); Johnson v. Sullivan, 2008 WL 5396614, *7-8 (E.D.Cal., Dec. 23, 2008) (requiring a one-hour
telephone call weekly between plaintiff and his counsel pending trial; § 3626(a) cited but no analysis
presented), reconsideration denied, 2009 WL 160250 (E.D.Cal., Jan. 21, 2009); Johnson v. Martin, 2005
WL 3312566, *8 (W.D.Mich., Dec. 7, 2005) (holding that enjoining a total prohibition on receipt of
publications from a religious sect satisfied the PLRA’s requirements), reconsideration denied, 2006 WL
223108 (W.D.Mich., Jan. 30, 2006); Greybuffalo v. Frank, 2003 WL 23211615, *5 (W.D.Wis., Nov. 4,
2003) (“Generally, a prison transfer would be a much broader form of relief than that necessary to remedy
a constitutional or statutory rights violation. . . . [T]he appropriate remedy would be to provide plaintiff
with the item he requested or allow him to engage in the desired religious practice.”); Dodge v. County of
Orange, 282 F.Supp.2d 41, 89 (S.D.N.Y. 2003) (enjoining jail officials from strip-searching new
admissions without reasonable suspicion of contraband based on crime, characteristics of arrestee, or
circumstances of arrest. “I cannot imagine an injunction that is narrower, less extensive, or less intrusive.
. . . I am not mandating any specific actions defendants must take. Rather, I am telling defendants that
they must adhere to the reasonable suspicion standard. . . .”), appeal dismissed, remanded on other
grounds, 103 Fed.Appx. 688, 2004 WL 1567870 (2d Cir. 2004); Charles v. Verhagen, 2002 WL
32348353 (W.D.Wis., Dec. 19, 2002) (holding in RLUIPA case that the violation was in refusing to
permit Muslims to possess any quantity of prayer oil, declining on PLRA grounds to require defendants to
allow it other than in expensive one-ounce bottles).
Note 139: Hadix v. Caruso, 465 F.Supp.2d 776, 804-06, 810-11 (W.D.Mich. 2006) (directing
comprehensive medical staffing plan, plans for specialty care access, and creation and funding of Office
of Independent Monitor with powers to intervene in patient care), amended on reconsideration on other
grounds, 2007 WL 162279 (W.D.Mich., Jan. 16, 2007), remanded on other grounds, 2007 WL 2753026
(6th Cir. 2007) (per curiam); Hadix v. Caruso, 492 F.Supp.2d 743, 749-51, 753-54 (W.D.Mich. 2007)
(rejecting defendants’ plan for protecting high-risk prisoners from extreme heat, directing they be housed
where the summer heat index is below 90), remanded on other grounds, 2007 WL 2753026 (6th Cir.
2007) (per curiam); Hadix v. Caruso, 461 F.Supp.2d 574 (W.D.Mich. 2006) (emphasizing throughout that
medical care remedial plan is to be developed by defendants within court’s broad outline), remanded on
other grounds, 2007 WL 2753026 (6th Cir. 2007) (per curiam); Hadix v. Johnson, 2005 WL 2243091,
*49-52 (W.D.Mich., Sept. 14, 2005) (requiring replacement of locking system in addition to
implementation of defendants’ own fire safety proposals), reconsideration denied, 2005 WL 2654287
(W.D.Mich., Oct. 13, 2005); Little v. Shelby County, Tenn., 2003 WL 23849734, *1-2 (W.D.Tenn., Mar.
25, 2003) (approving very detailed plan for staffing and prisoner supervision); see Mayweathers v.
Terhune, 328 F.Supp.2d 1086, 1099 (E.D.Cal. 2004) (directing parties to propose an appropriate remedy
where defendants’ claims of administrative difficulty were too general for the court to formulate a remedy
conforming to the PLRA standards); Goff v. Harper, 1997 WL 34715292, *52 (S.D.Iowa, June 5, 1997)
(court directs defendants to come up with a remedial plan for the constitutional violations found, then
directs them to “consider” eight highly specific measures).
Note 295: Lee v. Smith, 2010 WL 114876, *2 (S.D.Ga., Jan. 12, 2010) (statement that grievance
was dismissed because plaintiff attached extra pages to it did not admit non-exhaustion where he also
alleged that a staff member gave him permission to do so); Stewart v. Central Arizona Correction Facility,
2009 WL 3756504, *3 (D.Ariz., Nov. 9, 2009) (admission of non-exhaustion on the face of the complaint
did not warrant dismissal where other allegations would support an argument that remedies were
unavailable), reconsideration denied, 2009 WL 5184466 (D.Ariz., Dec. 22, 2009); Hernandez v. Ryan,
2009 WL 3462178, *2 (S.D.Fla., Oct. 22, 2009) (where grievances attached to the complaint did not show

370

exhaustion, court declines to dismiss, since those grievances may not tell the whole story and defendants
have the burden of proof); Andrade v. Christ, 2009 WL 2848984, *8-9 (D.Colo., Sept. 1, 2009) (applying
Aquilar Avellaveda; though non-exhaustion was apparent, whether plaintiff was misinformed about the
remedy, and what the remedy was, were not apparent); Cruickshank v. Pierce County Jail, 2009 WL
2057043, *3 (W.D.Wash., July 15, 2009) (declining to dismiss, though complaint said plaintiff’s
grievance was still pending after three months, where defendants provided no evidence about the
grievance process); Leterski v. Kingfisher County Jail, 2007 WL 1039224, *2 (W.D.Okla., Apr. 3, 2007)
(declining to dismiss where complaint followed grievance by only 17 days, since the complaint did not
show what remedies were available, what effort plaintiff made to exhaust them, or whether those efforts
were timely and in compliance with the rules), subsequent determination, 2007 WL 1683841 (W.D.Okla.,
June 8, 2007).
Note 301: Parris v. New York State Dept. Correctional Services, 947 F.Supp.2d 354, 361-62
(S.D.N.Y. 2013) (holding complaint that said plaintiff appealed but did not specifically reference the third
and final stage of the process did not establish non-exhaustion; “ambiguity is not a valid basis for
dismissal under Jones”); Briel v. Fields, 2013 WL 1833248, *4 (E.D.N.Y., May 1, 2013) (holding
complaint reference to grievances still pending did not make non-exhaustion apparent because other
grievances might have been completed); Cannon v. City of New York, 2013 WL 1234962, *4 (S.D.N.Y.,
Jan. 29, 2013) (declining to dismiss where plaintiffs alleged they filed grievances but did not allege taking
all the steps in the grievance system), report and recommendation adopted, 2013 WL 1248546 (S.D.N.Y.,
Mar. 27, 2013); Rosenberg v. Coon, 2013 WL 1223516, *2 (S.D.N.Y., Mar. 27, 2013); Mims v. Wexford
Health Sources, 2012 WL 6187117, *3 (N.D.Ill., Dec. 12, 2012); Hoang Minh Tran v. Gore, 2012 WL
5511765, *8-9 (S.D.Cal., Nov. 14, 2012); Thomas v. Palakovich, 2012 WL 1079441, *5 (M.D.Pa., Mar.
30, 2012) (holding statement in complaint that exhaustion is not required to seek damages or where it is
futile was not a concession of non-exhaustion), order entered, 2012 WL 1078250 (M.D.Pa., Mar. 30,
2012); Gssime v. Watson, 2012 WL 540926, *6 n.2 (E.D.N.Y., Feb. 16, 2012) (rejecting argument that
statements in the complaint about internal affairs investigations established the failure to exhaust a
grievance); Brown v. Timmerman-Cooper, 2012 WL 2829827, *2-3 (S.D.Ohio, July 10, 2012) (declining
to dismiss based on defendants’ arguments based on gaps in complaint attachment; disapproving
defendants’ failure to move for summary judgment and submit the relevant evidence); Hendricks v.
Wessell, 2011 WL 7637312, *3 (S.D.Ohio, Dec. 5, 2011) (“Neither can a failure to exhaust be inferred
based on the fact that Mr. Hendricks did allege that he took some steps to seek administrative remedies.”);
Harsh v. Barone, 2011 WL 6100804, *5 (W.D.Pa., Nov. 18, 2011) (holding pleadings showing
exhaustion of one claim did not establish that others were not exhausted); Johnson v. Westchester County
Dept. of Correction Medical Dept., 2011 WL 2946168, *2 (S.D.N.Y., July 19, 2011) (complaint that
asserts compliance with grievance rules but “lack[s] specifics as to how the plaintiff grieved his claim” is
not subject to dismissal); Baker v. County of Missaukee, 2011 WL 1670953, *7 (W.D.Mich., Mar. 28,
2011) (incomplete pleading and documentation of exhaustion does not show non-exhaustion, since
plaintiff has no obligation to plead exhaustion), report and recommendation adopted, 2011 WL 1670949
(W.D.Mich., May 3, 2011); Nible v. Knowles, 2010 WL 3245325, *3 (E.D.Cal., Aug. 17, 2010)
(defendants must submit evidence of non-exhaustion, not just argue based on attachments to complaint);
Hurd v. Sumner County Jail, 2010 WL 1494261, *2 (M.D.Tenn., Mar. 3, 2010) (statement that plaintiff
had “just started [his] paperwork” was ambiguous, and non-exhaustion was not apparent on the face of a
complaint that did not even state that the jail has a grievance system), report and recommendation
adopted, 2010 WL 1494233 (M.D.Tenn., Apr. 14, 2010); Swinson v. Department of Corrections, 2009
WL 33330, *8 (W.D.Pa., Jan. 5, 2009) (court would not dismiss based on defendants’ interpretation of
supposed admission of non-exhaustion, since it was defendants’ burden to plead and prove it); Castillo v.
Costan, 2008 WL 398412, *2 (D.Del., Feb. 11, 2008) (court would not infer from statements that plaintiff
wrote to internal affairs and director of CiviGenics that he did not exhaust).

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Note 323: Ethridge v. Childs, 2013 WL 1414645, *7 (E.D.Cal., Apr. 8, 2013) (same as Vasquez, below);
Dews v. Kern Radiology Medical Group, Inc., 2013 WL 1152049, *3 (E.D.Cal., Mar. 19, 2013) (same as
Vasquez, below), appeal dismissed, 2013 WL 6068589 (9th Cir. 2013), cert. denied, 134 S.Ct. 689
(2013); Vasquez v. County of Merced Correctional Facility, 2013 WL 593700, *3 (E.D.Cal., Feb. 14,
2013) (“If Plaintiff chooses to amend, he should allege facts showing he exhausted each level of appeal as
to all named Defendants or that he was excepted from such exhaustion requirements.”); Wheeler v.
Aliceson, 2013 WL 56960, *9 (E.D.Cal., Jan. 3, 2013) (similar to Swearington, below); Barger v.
California State Prison, Corcoran, 2012 WL 6628965, *4 (E.D.Cal., Dec. 19, 2012) (similar to
Swearington, below); Swearington v. California Dept. of Corrections and Rehabilitation, 2012 WL
5288812, *11 (E.D.Cal., Oct. 23, 2012) (noting failure to allege exhaustion, stating plaintiff should
“allege facts supporting exhaustion at each level of prison appeal as to all named Defendants” if he
amends); Evans v. Beck, 2012 WL 4747220, *6 (E.D.Cal., Oct. 4, 2012) (dismissing on merits with leave
to amend, but directing plaintiff to plead exhaustion if he amends), reconsideration denied, 2012 WL
5866635 (E.D.Cal., Nov. 19, 2012); Lena v. Marin County, 2012 WL 4485625, *2 (N.D.Cal., Sept. 27,
2012) (titling section “Failure to Allege Exhaustion of Available Administrative Remedies”); Bolin v.
Brown, 2012 WL 2933502, *4 (E.D.Cal., July 18, 2012) (finding non-exhaustion based on failure to
plead exhaustion); Jenkins v. Bernatene, 2012 WL 2886678, *6-7 (E.D.Cal., July 13, 2012) (noting
plaintiff’s failure to allege all stages of exhaustion, instructing plaintiff to do so in any amended
complaint); Luna v. California Health Care Services, 2012 WL 1978391, *4-5 (E.D.Cal., June 1, 2012)
(noting the plaintiff’s failure to allege exhaustion as to various defendants); McCollum v. Waddington,
2012 WL 262583, *2 (D.Kan., Jan. 30, 2012) (where plaintiff checked a box on the complaint form
indicating exhaustion, but submitted only an initial grievance, court says the complaint shows nonexhaustion); Bahr v. Ratti, 2011 WL 2888049, *3 (N.D.Cal., July 19, 2011) (where plaintiff checked a
box on the complaint form indicating he had presented the facts through the grievance procedure, but did
not cite appeal numbers or dates or state that he had completed the last step, it “appears from the face of
the complaint that he has not exhausted,” and court dismisses with leave to amend and allege exhaustion);
Blurton v. Laney, 2011 WL 2357367, *4 (D.N.D., Mar. 14, 2011) (where plaintiff did not say he had
exhausted or remedies were unavailable, court directs him to file an amended complaint specifically
addressing exhaustion), report and recommendation adopted, 2011 WL 1672472 (D.N.D., May 3, 2011);
Ortega v. Ritchie, 2011 WL 1667469, *3 (N.D.Cal., May 3, 2011) (where plaintiff said he tried to exhaust
but “all issues were ignored or passed,” court said it was “unclear” whether he allowed enough time for
the process, and therefore it appeared the claims were unexhausted, and plaintiff would have to amend to
allege exhaustion); Taylor v. Qualls, 2011 WL 1624972, *1 (M.D.Tenn., Apr. 27, 2011) (where plaintiff’s
claim was a disciplinary matter, dismissed for not pleading exhaustion of the disciplinary process);
Kellogg v. California, 2011 WL 768691, *3 (N.D.Cal., Feb. 28, 2011) (where plaintiff wrote on
complaint form about exhaustion, “They denied me due process, and passed the buck,” court holds “[i]t
thus appears Plaintiff has not exhausted,” and dismisses subject to filing of amended complaint to “prove”
exhaustion); Fisher v. Taylor, 2010 WL 3259821, *3 (D.N.J., Aug. 17, 2010) (requiring plaintiffs seeking
to proceed jointly to provide information concerning their efforts to exhaust); Tufono v. Ortega, 2010 WL
3059180, *2 (N.D.Cal., Aug. 2, 2010) (expressing doubts about exhaustion, directing amended complaint
alleging exhaustion and providing documentation, on pain of dismissal); Watford v. Balicki, 2010 WL
2985639, *3 (D.N.J., July 23, 2010) (similar to Fisher); Cook v. Cate, 2010 WL 1838706, *3 (N.D.Cal.,
May 5, 2010) (where allegations were unclear, prisoner’s claims “could be unexhausted”; complaint
dismissed with leave to amend to show exhaustion of all claims against all defendants); Bey v. Shearin,
2009 WL 4728693, *1 (D.Md., Dec. 3, 2009) (dismissing at screening based on lack of information about
exhaustion); Meneweather v. Evans, 2009 WL 3872032, *1-2 (N.D.Cal., Nov. 16, 2009) (“A question
which must be answered before Plaintiff can proceed with his claims is whether he has exhausted
available administrative remedies with respect to each claim.” Absent exhaustion allegations, court
dismisses with leave to amend to allege exhaustion.); Gram v. Napa State Hospital, 2009 WL 3837269,
*2 (N.D.Cal., Nov. 16, 2009) (where exhaustion allegations were unclear, court dismisses with leave to
amend to allege exhaustion); Callegari v. Lee, 2009 WL 2258337, *4 (N.D.Cal., July 28, 2009) (where

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plaintiff alleged he had grieved but not received a response, court directs him to file an amended
complaint to allege additional detail concerning exhaustion and submit relevant documentation); Smith v.
Hartshorn, 2009 WL 2195909, *2 (C.D.Ill., July 14, 2009) (noting screening conducted by telephone,
finding non-exhaustion based on plaintiff’s credibility problems); Flowers v. Ahern, 650 F.Supp.2d 988,
992 (N.D.Cal. 2009) (characterizing lack of specificity about exhaustion and failure to attach grievance
forms as non-exhaustion apparent on the face of the complaint; directing plaintiff to plead exhaustion in
any amended complaint); Anderson v. Tilton, 2009 WL 210451, *2 (N.D.Cal., Jan. 26, 2009) (dismissing
because inter alia “plaintiff does not allege he has exhausted his administrative remedies with respect to
his claims”); Wilson v. San Francisco City & County, 2009 WL 112844, *2-3 (N.D.Cal., Jan. 15, 2009)
(dismissing complaint at initial screening for lack of clarity on exhaustion, with leave to amend to allege
exhaustion); Stelly v. Tootell, 2008 WL 5069749, *2 (N.D.Cal., Nov. 25, 2008) (plaintiff pled that he had
filed grievances but didn’t say whether he exhausted; because he didn’t attach a final decision, the court
states it appears from the face of the complaint he didn’t exhaust; so his complaint is dismissed with leave
to amend); Phillips v. California, 2008 WL 5047676, *2 (N.D.Cal., Nov. 25, 2008) (where plaintiff said
decisions were attached, but failed to attach them, court says non-exhaustion “appears from the face of the
complaint” and dismisses with leave to amend and show exhaustion); Ferguson v. Cook County Dept. of
Corr., 2008 WL 4844737, *1 (N.D.Ill., Nov. 5, 2008) (dismissing for lack of “showing” of exhaustion in
complaint); Settle v. Bell, 2008 WL 3244959, *5 (M.D.Tenn., July 24, 2008) (stating plaintiff has the
burden of showing exhaustion), report and recommendation adopted in part, rejected in part on other
grounds, 2008 WL 3244933 (M.D.Tenn., Aug. 6, 2008); Hudson v. Jabe, 2008 WL 2271150, *4
(E.D.Va., June 2, 2008) (directing plaintiff to submit additional information about exhaustion at initial
screening stage); Sanders v. Bassett, 2008 WL 1967503, *3 (W.D.Va., May 5, 2008) (dismissing for
failure to allege or document exhaustion).
Note 337: Whiteside v. Collins, 2012 WL 4361253, *12 (S.D.Ohio, Sept. 25, 2012) (declining to
dismiss for failure to appeal grievances where defendants failed to show that the particular grievances
were appealable), reconsideration denied, 2013 WL 1787321 (S.D.Ohio, Apr. 25, 2013); Johnson v.
Cantrall, 2012 WL 5398473, *1 (W.D.Okla., Sept. 17, 2012) (declining to dismiss where defendants did
not identify any remedy available to plaintiff under the circumstances), report and recommendation
adopted, 2012 WL 5398469 (W.D.Okla., Nov. 2, 2012); Albadry v. Wiepper, 2012 WL 3726698, *5
(E.D.Tenn., Aug. 27, 2012) (declining to dismiss, despite admission in complaint of non-exhaustion,
where defendants did not show a remedy was available for the plaintiff’s problem); Washington v.
Correction Corp. of America, 2012 WL 2127914, *2 (E.D.Okla., June 11, 2012) (declining to dismiss
where defendants submitted no evidence of a grievance process); Hampton v. Brown, 2012 WL 1491914,
*3-4 (W.D.La., Mar. 5, 2012) (declining to dismiss for non-exhaustion absent evidence that a grievance
system was functioning in the relevant prison), report and recommendation adopted, 2012 WL 1491903
(W.D.La., Apr. 26, 2012), aff’d, 544 Fed.Appx. 416 (5th Cir. 2013) (unpublished); Roberts v. Jones, 2012
WL 1072218, *4 (W.D.Okla., Feb. 29, 2012) (declining to dismiss for non-exhaustion where defendants
did not show that the issue was grievable), report and recommendation adopted, 2012 WL 1142514
(W.D.Okla., Mar. 30, 2012); Rotondo v. Ryan, 2012 WL 424384, *3 (D.Ariz., Feb. 9, 2012) (declining to
dismiss where defendants failed to submit evidence of how the plaintiff could have exhausted their
process); Rahim v. Sheahan, 2001 WL 1263493, *6-7 and n.3 (N.D.Ill., Oct. 19, 2001) (holding
defendants have the burden of “proving that there is an administrative process that would be able to take
action in response to [the specific] complaints–action, that is, other than saying, ‘Sorry, we can’t do
anything about it.’”); Raines v. Pickman, 103 F.Supp.2d 552, 555 (N.D.N.Y. 2000) (holding “it is
[defendants’] burden to come forward to show that an administrative remedy exists for plaintiff to pursue
in reference to his claims of excessive force”); Peck v. Thomas, 2011 WL 5525964, *4 (D.Nev., Aug. 24,
2011) (declining to dismiss, despite admission of non-exhaustion, where defendants failed to describe or
document an available procedure; court notes it was unclear how plaintiff could have grieved given that
he was in transit and remained in the jail for only two days), report and recommendation adopted, 2011
WL 5525994 (D.Nev., Nov. 14, 2011); Dunmore v. Balicki, 2011 WL 1205481, *3 (D.N.J., Mar. 28,

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2011) (declining to dismiss where defendants submitted no actual evidence of particular prison’s
remedy); Holston v. DeBranca, 2011 WL 666880, *4-5 (E.D.Cal., Feb. 11, 2011) (declining to dismiss
where defendants did not show remedy was available to prisoner who was only briefly present in the jail,
or that he could have pursued the remedy after transfer), report and recommendation adopted, 2011 WL
884864 (E.D.Cal., Mar. 10, 2011); Lute v. Johnson, 2011 WL 284491, *2-3 (D.Idaho, Jan. 26, 2011)
(declining to dismiss where defendants submitted grievance policy from a later period than at issue in the
case); Hastings v. May, 2010 WL 6560269, *3 (E.D.Ark., Nov. 26, 2010) (same as Dunmore); Williams
v. Turner, 2010 WL 3724827, *2 (W.D.Ark., Sept. 17, 2010) (defendants failed to establish “what the
grievance procedure is, or who responds to the grievances”); Parisi v. Arpaio, 2009 WL 4051077, *3
(D.Ariz., Nov. 20, 2009) (where plaintiff said he was told his issue was non-grievable, defendants failed
to show otherwise, e.g., by showing that other prisoners had grieved it); Warner v. Ewing, 2009 WL
806802, *2 (D.Neb., Mar. 26, 2009) (defendants failed to show there was a remedy for plaintiff’s detainer
problem); Burkett v. Marshall, 2009 WL 454133, *5-6 (S.D.Ga., Feb. 23, 2009) (defendants failed to
show that appeal procedure not in the inmate handbook was actually available to prisoners); Main v.
Martin, 2009 WL 215404, *6 (D.Colo., Jan. 22, 2009) (where prisoner had been denied a grievance form
and told that his problem was non-grievable, defendants failed to show that he had an available remedy);
Fernandez v. Morris, 2008 WL 2775638, *3 (S.D.Cal., July 16, 2008) (defendants who failed to show
availability of remedies in segregation were not entitled to dismissal for non-exhaustion); Ayala v.
C.M.S., 2008 WL 2676602, *3 (D.N.J., July 2, 2008) (defendants who failed to specify what procedures
were available were not entitled to dismissal for non-exhaustion); Ammouri v. Adappt House, Inc., 2008
WL 2405762, *3 (E.D.Pa., June 12, 2008) (defendants who provided only “minimal explanation or proof”
concerning the relevant grievance procedures did not establish non-exhaustion); Bryant v. Sacramento
County Jail, 2008 WL 410608, *4-5 (E.D.Cal., Feb. 12, 2008) (defendants who showed there was a
grievance system and plaintiff didn’t use it, but failed to show the plaintiff was notified of the grievance
system, did not meet their burden on summary judgment), report and recommendation adopted, 2008 WL
780704 (E.D.Cal., Mar. 21, 2008); Martino v. Westchester County Dept. of Corrections, 2008 WL
144827, *2 (S.D.N.Y., Jan. 15, 2008) (defendants who failed to identify available remedies or show that
they were available to the plaintiff did not establish non-exhaustion); McCray v. Peachey, 2007 WL
3274872, *4-5 (E.D.La., Nov. 6, 2007) (holding defendants failed to show that the grievance policy they
relied on was in effect at the relevant time and the plaintiff was advised of it); Farrell v. Hunter, 2006 WL
4756454, *4 (M.D.Fla., Oct. 27, 2006) (holding defendants who failed to place their administrative
procedures in the record had not met their burden of showing lack of exhaustion); Haggenmiller v. Klang,
2006 WL 2917177, *3 (D.Minn., Oct. 11, 2006) (“defendant has not established that an administrative
complaint procedure exists” at the jail); Conner v. Martinez, 2006 WL 2668977, *2 (D.Ariz., Sept. 14,
2006) (“Defendant bears the burden of specifying what remedies were ‘available’ to Plaintiff.”); Baker v.
Allen, 2006 WL 1128712, *9 (D.N.J., Apr. 24, 2006) (denying motion to dismiss because medical
provider failed to describe grievance procedures existed for its program), amended on reconsideration,
2006 WL 2226351 (D.N.J., Aug. 3, 2006); Monroe v. Fletcher, 2006 WL 1699701, *2 (W.D.Va., June
12, 2006) (holding defendants did not show the existence of a “specific, available remedy” against the
U.S. Marshals Service); Worthy v. Dep’t of Corrections, 2006 WL 776791, *4-5 (D.N.J., Mar. 27, 2006)
(holding that defendants’ submissions did not sufficiently establish available administrative remedies);
Jordan v. Linn County Jail, 2006 WL 581254, *3 (N.D.Iowa, Mar. 10, 2006) (rejecting defendants’
argument that the plaintiff failed to appeal on the ground that the record did not establish the existence of
an appeals process), report and recommendation adopted, 2006 WL 1071758 (N.D.Iowa, Apr. 20, 2006);
Clavier v. Goodson, 2005 WL 3213914, *3 (E.D.Mo., Nov. 30, 2005) (holding that defendants seeking
summary judgment must submit evidence establishing what grievance procedure was available); Goebert
v. Lee, 2005 WL 1705485, *2 (M.D.Fla., July 19, 2005) (holding defendants who failed to submit the
alleged jail grievance procedure failed to establish non-exhaustion of available remedies); Bafford v.
Simmons, 2001 WL 1677574, *4 (D.Kan., Nov. 7, 2001) (holding that defendants moving for summary
judgment “must identify the specific remedies and provide evidence that they were not exhausted”).

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Note 343: Ferguson v. Bauers, 2013 WL 5295651, *6 (W.D.N.Y., Sept. 18, 2013) (holding
defendants who had destroyed the grievance files and logs for the relevant year could not show nonexhaustion; lack of clerk’s signature or number on plaintiff’s grievance copy did not show non-exhaustion
where plaintiff attested to his filing the grievance); Howard v. Memnon, 2013 WL 1175256, *11
(M.D.Fla., Feb. 12, 2013) (declining to dismiss for non-exhaustion where defendants produced some
grievances, plaintiff produced additional grievances, and defendants did not submit an affidavit from the
records custodian or other evidence establishing that all relevant grievances were before the court), report
and recommendation adopted, 2013 WL 1175253 (M.D.Fla., Mar. 21, 2013); Alston v. Lewis, 2012 WL
3704934, *5 (E.D.N.C., Aug. 27, 2012) (noting that defendants’ evidence about plaintiff’s grievance
appeals failed to identify the subjects of the appeals and covered only part of plaintiff’s stay in the
prison); Mincy v. McConnell, 2011 WL 6337931, *7 (W.D.Pa., Nov. 22, 2011) (holding submission of
documents inadequate absent certification that they were a complete and accurate record of plaintiffs’
grievance proceedings), report and recommendation adopted, 2011 WL 6337787 (W.D.Pa., Dec. 19,
2011); Smith v. Pennsylvania Dept. of Corrections, 2011 WL 4573364, *11 (W.D.Pa., Sept. 30, 2011)
(declaration that discussed unexhausted grievances without stating whether these were all the grievances
plaintiff filed did not support summary judgment for non-exhaustion); Gray v. Metropolitan Detention
Center, 2011 WL 2847430, *9 (E.D.N.Y., July 15, 2011) (search of records of grievances filed while
plaintiff was at a particular jail was not adequate where prisoner was transferred before grievance
deadline had passed, and search would have missed grievances filed after transfer); Hightower v.
Schwarzenegger, 2011 WL 2620376, *5 (E.D.Cal., June 30, 2011) (holding lists of grievances and
appeals, without evidence of their content, and documents copied on one side only did not establish that
the plaintiff had failed to exhaust the issues before the court), report and recommendation adopted, 2011
WL 3665021 (E.D.Cal., Aug. 19, 2011); Johnson v. Danberg, 2011 WL 780839, *3-4 (D.Del., Feb. 28,
2011) (noting defendants’ record search did not include time period when plaintiff said she filed her
grievance); Urena v. Wolfson, 2010 WL 5057208, *6-7 (E.D.N.Y., Dec. 6, 2010) (noting that defendants’
record search did not include the period for which plaintiff submitted copies of grievances); Hendon v.
Baroya, 2010 WL 2942655, *3 (E.D.Cal., July 23, 2010) (noting failure to search records for entire
relevant period and possible failure to examine actual grievances rather than merely a tracking log),
report and recommendation adopted, 2010 WL 3504865 (E.D.Cal., Sept. 7, 2010); Franklin v. Bearden,
2009 WL 3052613, *5 (D.S.C., Sept. 23, 2009) (affidavit stating no grievance had been filed against the
present defendants did not establish non-exhaustion where there was no “name the defendant” rule and
plaintiff had filed some grievances); Jackson v. Carroll, 643 F.Supp.2d 602, 615 (D.Del., Aug. 5, 2009)
(defendants failed to present all of the grievances filed, the resolution of the grievances, or the pertinent
policy regarding the appeal process); Cotton v. Runnels, 2009 WL 1158941, *6 (E.D.Cal., Apr. 29, 2009)
(holding declaration of grievance coordinator that there was no record of plaintiff’s grievance did not
meet defendants’ burden where he was not in the job at the relevant time, did not describe how records
were searched, and did not address plaintiff’s allegation that he had filed a grievance and then asked about
its status), report and recommendation adopted, 2009 WL 1606617 (E.D.Cal., June 8, 2009), aff’d on
reconsideration, 2009 WL 1606644 (E.D.Cal., June 8, 2009); DeFranco v. Wolfe, 2007 WL 1704770, *45 (W.D.Pa., June 12, 2007) (holding declaration that showed only that the declarant had searched records
in her own office did not show that plaintiff had failed to file a grievance), reconsideration denied on
other grounds, 2007 WL 1810722 (W.D.Pa., June 21, 2007), vacated on other grounds, 2007 WL
1830770 (W.D.Pa., June 22, 2007); Gruenberg v. Maricopa County Sheriff’s Office, 2007 WL 809864,
*2 (D.Ariz., Mar. 15, 2007) (refusing to dismiss for non-exhaustion where plaintiff said he had filed a
grievance while under a different booking number than the one the defendants had used in searching their
records); Woods v. Arpaio, 2006 WL 197149, *3 (D.Ariz., Jan. 24, 2006) (noting that affidavit
concerning search of grievance records showed that affiant had searched under the wrong inmate
number); Livingston v. Piskor, 215 F.R.D. 84, 85-86 (W.D.N.Y. 2003) (holding that defendants’
affidavits that they had no record of grievances and appeals by the plaintiff were inadequate where they
did not respond to his allegations that his grievances were not processed as policy required, and where
they gave no detail as to “the nature of the searches . . ., their offices’ record retention policies, or other

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facts indicating just how reliable or conclusive the results of those searches are”); Thomas v. New York
State Dept. of Correctional Services, 2002 WL 31164546 (S.D.N.Y., Sept. 30, 2003) (similar to
Livingston).
Note 347: Olivier v. Molina, 2011 WL 3607461, *2 (C.D.Cal., July 14, 2011) (defense
representation that a jail official who would have been expected to receive the plaintiff’s grievance says
he never refused to forward a complaint form was unpersuasive where he had no recollection of the
plaintiff and interacted with hundreds or thousands of prisoners), report and recommendation adopted,
2011 WL 3607212 (C.D.Cal., Aug. 15, 2011); Hicks v. Irvin, 2011 WL 2213721, *8 (N.D.Ill., June 7,
2011) (holding absence of a log entry did not establish that plaintiff did not submit a grievance where
officer admitted he didn’t always sign the log); Leyva v. Moreno, 2010 WL 2546073, *3-5 (E.D.Cal.,
June 23, 2010) (finding defendants’ evidentiary presentation incoherent and contradictory), report and
recommendation adopted, 2010 WL 3431816 (E.D.Cal., Aug. 31, 2010); Dye v. Deangelo, 2010 WL
2898318, *3-4 (E.D.Mich., June 16, 2010) (holding failure to re-file grievance as instructed did not show
failure to exhaust where prisoner denied having received such instruction and defendants’ documentation
did not establish it had been delivered to him), report and recommendation adopted, 2010 WL 2898314
(E.D.Mich., July 22, 2010); Phipps v. Sheriff of Cook County, 681 F.Supp.2d 899, 907-08 (N.D.Ill. 2009)
(holding defendants failed adequately to explain why they treated plaintiff’s filing as a non-appealable
“request” rather than a grievance, since subsequent failure to follow the grievance procedure might not
have been plaintiff’s fault); Bond v. Taylor, 2009 WL 2634627, *2-3 (D.N.J., Aug. 24, 2009)
(defendants’ certification of non-exhaustion was not sworn or declared under penalty of perjury); Romeo
v. Marshall, 2008 WL 4375776, *3 (C.D.Cal., Aug. 25, 2008) (defendants who failed to show when
plaintiff received a grievance decision thereby failed to show his appeal from it was untimely); Franklin
v. Butler, 2008 WL 4078797, *2 (E.D.Cal., Aug. 29, 2008) (declaration of prison grievance officer about
lack of grievance was irrelevant where the grievance had allegedly been filed at a different prison;
declaration of grievance appeals chief was irrelevant where plaintiff’s grievance would have been
channeled into a separate “staff complaint” process), report and recommendation adopted, 2008 WL
4601081 (E.D.Cal., Oct. 15, 2008); Deemer v. Stalder, 2007 WL 4589799, *2 (W.D.La., Nov. 27, 2007)
(declining to dismiss where defendants’ affidavit failed to explain source of much information); Tabarez
v. Butler, 2007 WL 988040, *2-3 (E.D.Cal., Mar. 30, 2007) (holding defendants’ claim that prisoners
“customarily” have access to grievance forms did not mean this plaintiff did, especially since he said only
those who were “on good terms” with the guards could get forms), report and recommendation adopted,
2007 WL 1804968 (E.D.Cal., June 21, 2007); Johnson v. Crutchfield, 2007 WL 833303, *2 (E.D.Cal.,
Mar. 16, 2007) (holding that evidence plaintiff didn’t receive a decision at the highest level did not show
non-exhaustion, since a favorable decision at an earlier point may obviate the need to appeal); Thixton v.
Berge, 2006 WL 3761342, *3 (W.D.Wis., Dec. 19, 2006) (holding that defendants’ statement that there
was no grievance appeal about lack of a working toilet and sink did not show lack of exhaustion, since
plaintiff might have prevailed at the first stage and not have needed to appeal, and he might have filed a
general grievance concerning conditions of his Behavior Management Program which encompassed the
toilet/sink issue); Montgomery v. Johnson, 2006 WL 2403305, *11 (W.D.Va., Aug. 18, 2006) (crediting
evidence that policies and practices were not followed and remedies were not in fact available to the
plaintiff during the relevant time period), report and recommendation adopted, 2006 WL 3099651
(W.D.Va., Oct. 30, 2006); Wigfall v. Duval, 2006 WL 2381285 (D.Mass., Aug. 15, 2006) (citing
“unacceptable lack of candor and completeness” in defendants’ presentation of evidence re exhaustion;
they claimed to log all grievances, but evidence suggested use of force claims were not considered
grievances); Blount v. Fleming, 2006 WL 1805853, *2-4 (W.D.Va., June 29, 2006) (finding that officials’
representation concerning non-exhaustion of certain claims was false); Simpson v. Nickel, 2005 WL
2429805, *3 (W.D.Wis., Sept. 29, 2005) (holding that defendants did not establish plaintiff’s failure to
raise an issue in his disciplinary hearing where they failed to submit the statement of his advocate at the
hearing); Paez v. Cambra, 2005 WL 1342843, *2 (E.D.Cal. May 27, 2005) (holding the lack of a record
of a final level grievance did not establish non-exhaustion since the grant of relief at a lower level may

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mean no further appeal is required); Perkins v. Obey, 2005 WL 433580, *4 (S.D.N.Y., Feb. 23, 2005)
(holding the absence of a computer record did not establish non-exhaustion, since it could reflect the
failure to make a record).
Note 348: Garcia v. Wright, 2013 WL 3381269, *1 n.1 (D.Colo., July 8, 2013) (noting
defendants’ acknowledgement that they had denied the existence of one of plaintiff’s grievances); Brewer
v. Grossbaum, 2013 WL 1651958, *3-4 (E.D.Cal., Apr. 16, 2013) (noting plaintiff’s submission of
receipt-stamped copy of grievance plaintiff resubmitted after rejection, but defendants did not process
because they had no record of it), report and recommendation adopted, 2013 WL 2292052 (E.D.Cal. May
23, 2013); Scott v. McDonald, 2013 WL 978239, *4 (E.D.Cal., Mar. 12, 2013), report and
recommendation adopted, 2013 WL 1325366 (E.D.Cal., Mar. 29, 2013); Pointec v. Geoghegan, 2013 WL
858205, *5 (W.D.Wash., Feb. 6, 2013) (noting plaintiff’s production of appeal defendants denied existed,
stating under oath that it was filed), report and recommendation adopted, 2013 WL 858176 (W.D.Wash.,
Mar. 7, 2013); Hopkins v. Livingston, 2013 WL 503711, *4 (N.D.Cal., Feb. 8, 2013); Sapp v. Collins,
2012 WL 5357476, *3 (N.D.Fla., Oct. 15, 2012) (noting plaintiff submitted a report of an investigation
conducted in response to his grievance), report and recommendation adopted, 2012 WL 5357467
(N.D.Fla., Oct. 31, 2012); Cohen v. Wagner, 2012 WL 1548294, *2 (E.D.Pa., May 1, 2012) (noting
memo to plaintiff from prison staff member acknowledging grievance that defendants denied existed);
Coley v. Harris, 2012 WL 171661, *4 (D.Md., Jan. 19, 2012) (noting plaintiff’s submission of appeal
defendants denied he took, dismissed as untimely); Brown v. McCullough, 2012 WL 670001, *3
(E.D.Cal., Feb. 29, 2012) (noting plaintiff’s submission of a receipt-stamped grievance that defendants
denied existed), report and recommendation adopted, 2012 WL 1082499 (E.D.Cal., Mar. 29, 2012);
Rocha v. Twilleger, 2012 WL 573875, *6 (D.Colo., Jan. 3, 2012) (noting defendants denied existence of
Step 3 grievance but later found it after plaintiff maintained he had filed it), report and recommendation
adopted, 2012 WL 573849 (D.Colo., Feb. 22, 2012); Schiro v. Clark, 2011 WL 7116315, *7 (D.Nev.,
Dec. 8, 2011) (noting plaintiff produced a grievance appeal, and had filed a second grievance about the
lack of response to that appeal, that the defendants deemed abandoned because they had no record of it),
report and recommendation adopted, 2012 WL 275392 (D.Nev., Jan. 31, 2012); Coley v. Harris, 2012
WL 171661, *4 (D.Md., Jan. 19, 2012) (noting plaintiff produced rejected appeal of grievance defendants
said he did not appeal); Santure v. Hatt, 2011 WL 7445091, *4-5 (E.D.Mich., Dec. 30, 2011) (noting
plaintiff produced appeal of which defendants had no record and submitted additional evidence that it had
been filed); Brown v. Kavanaugh, 2011 WL 7031500, *4 (E.D.Cal., Dec. 15, 2011) (noting plaintiff had
attached the earlier grievance to a later grievance), report and recommendation adopted, 2012 WL
116572 (E.D.Cal., Jan. 13, 2012); Towns v. Cowan, 2011 WL 6302888, *2 (S.D.Ill., Nov. 15, 2011)
(finding plaintiff sufficiently supported authenticity of grievance defendants denied he had filed), report
and recommendation adopted, 2011 WL 6303254 (S.D.Ill., Dec. 16, 2011); Keller v. Thomas, 2011 WL
5026225, *6 (S.D.Ill., Oct. 21, 2011) (noting plaintiff’s production of grievance, time and date stamped,
and finding that he had in fact submitted it despite defendants’ lack of a record); Peacher v. Travis, 2011
WL 4529388, *4 (N.D.Ind., Sept. 28, 2011) (noting plaintiff’s production of a signed document from a
grievance official acknowledging his filing a grievance at the time in question); Aguirre v. Guerro, 2011
WL 6814032, *3-4 (C.D.Cal., Sept. 20, 2011) (noting documentary evidence of receipt of grievance
defendants disputed), report and recommendation adopted, 2011 WL 6814015 (C.D.Cal., Dec. 22, 2011);
Lacey v. Braxton, 2011 WL 3320801, *8 (W.D.Va., Aug. 1, 2011) (noting the plaintiff produced a
grievance response documenting completion of the process), aff’d, 463 Fed.Appx. 222 (4th Cir. 2012),
cert. denied, 133 S.Ct. 534 (2012); Hicks v. Irvin, 2011 WL 2213721, *8 (N.D.Ill., June 7, 2011); Jones
v. Lantz, 2011 WL 2144651, *5 (D.Conn., May 31, 2011) (plaintiff produced notes from counselor
responding to his inquiries about the fate of his grievances); Hughes v. Lavender, 2011 WL 1337155, *89 (S.D.Ohio, Apr. 6, 2011), report and recommendation adopted, 2011 WL 2457840 (S.D.Ohio, June 16,
2011); McMichael v. Pallito, 2011 WL 1135341, *7 (D.Vt., Jan. 27, 2011), report and recommendation
adopted, 2011 WL 1113233 (D.Vt., Mar. 24, 2011); Colston v. McLeod, 2011 WL 673941, *4
(W.D.Mich., Feb. 17, 2011); Chizum v. Marandet, 2011 WL 611895, *2 & n.1 (N.D.Ind., Feb. 15, 2011)

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(noting this is not the first time officials had submitted an affidavit claiming non-exhaustion only to be
confronted with official documents confirming exhaustion); McLaughlin v. Freeman, 2010 WL 6052845,
*4 (N.D.Ind., Nov. 5, 2010) (finding officials had responded to a grievance they said they had no record
of), report and recommendation adopted, 2011 WL 886205 (N.D.Ind., Mar. 14, 2011); Kerce v. Ball,
2010 WL 5300880, *5 (M.D.Pa., Sept. 30, 2010), report and recommendation adopted, 2010 WL
5300877 (M.D.Pa., Dec. 20, 2010); Taylor v. Clark, 2010 WL 3069243, *7 (E.D.Cal., Aug. 4, 2010),
report and recommendation adopted, 2010 WL 5393533 (E.D.Cal., Dec. 22, 2010); Mitchell v. Wolfe,
2010 WL 1923795, *3 (D.Md., May 10, 2010); Wilson v. Correctional Medical Services, 2010 WL
1032673, *3-4 (D.N.J., Mar. 17, 2010), subsequent determination, 2010 WL 2521717 (D.N.J., June 15,
2010), aff’d, 412 Fed.Appx. 424 (3d Cir. 2010) (unpublished); Starnes v. Chase, 2010 WL 1050361, *2
(M.D.Ga., Feb. 23, 2010), report and recommendation adopted, 2010 WL 1050420 (M.D.Ga., Mar. 18,
2010); Tomas v. Neotti, 2009 WL 4806891, *3 (S.D.Cal., Dec. 8, 2009); Herrera v. Box Elder County
Sheriff, 2009 WL 3855032, *3 (D.Utah, Nov. 17, 2009); Kelsey v. Chase, 2009 WL 3188938, *3
(M.D.Ga., Sept. 30, 2009); Franklin v. Bearden, 2009 WL 3052613, *5 (D.S.C., Sept. 23, 2009); McElroy
v. Cox, 2009 WL 2705698, *3 (E.D.Cal., Aug. 25, 2009); Chisley v. Rowley, 2009 WL 2426252, *2
(D.Md., Aug. 6, 2009); Harris v. Jones, 2009 WL 6338406, *5 (W.D.Mich., July 13, 2009), report and
recommendation adopted, 2010 WL 1424040 (W.D.Mich., Mar. 31, 2010); Iseley v. Beard, 2009 WL
1675731, *6 (M.D.Pa., June 15, 2009) (plaintiff’s grievance appeal was dismissed for failure to take an
intermediate appeal to the Superintendent, but plaintiff produced memos from the Superintendent
showing he had taken that appeal); Ramos v. Monteiro, 2009 WL 1370998, *9 (C.D.Cal., May 14, 2009)
(defendants said plaintiff never submitted a second level appeal; plaintiff produced it, and pointed out that
when he resubmitted it, it was rejected as duplicative); Jones v. Spaeth, 2009 WL 1325716, *5-6
(E.D.Cal., May 12, 2009) (defendants said lack of a log entry showed appeal forms were not received, but
plaintiff produced his copies with “received” stamps); Reeves v. Schetter, 2009 WL 884577, *4
(W.D.Mich., Mar. 30, 2009) (noting that grievances with written responses identified by plaintiff did not
appear in defendants’ records); Jaquez v. Newell, 2009 WL 523105, *2 (N.D.Okla., Feb. 27, 2009)
(defendants said none of plaintiffs’ requests asked for a grievance form, but plaintiff produced additional
requests that did ask for forms; court suggests jail officials and the District Attorney should investigate
the jail grievance process); Easley v. Nixon-Hughes, 2009 WL 237733, *3 (S.D.Ohio, Jan. 29, 2009)
(plaintiff produced final decisions on grievances defendants said he did not file); Baker v. Schriro, 2008
WL 3877973, *5 (D.Ariz., Aug. 20, 2008); Menteer v. Applebee, 2008 WL 2649504, *6 (D.Kan., June
27, 2008) (finding material issue of fact where defendants said plaintiff filed no grievances but plaintiff
produced copies of the grievances and the decisions on them); Marlin v. Dube-Gilley, 2008 WL 2952072,
*2 (E.D.Ark., June 24, 2008) (plaintiff produced the grievance form that defendants said they could not
find), report and recommendation adopted, 2008 WL 2952113 (E.D. Ark., July 29, 2008),
reconsideration denied, 2008 WL 3992232 (E.D. Ark., Aug. 20, 2008); Hattrick v. FMC-Devens Staff,
2008 WL 687410, *5 (D.Mass., Mar. 5, 2008) (refusing to dismiss where defendants said they had no
record of plaintiff’s grievance but he produced other grievances not listed in their database); Bennett v.
Douglas County, 2006 WL 1867031, *3 n.2 (D.Neb., June 30, 2006) (noting cases where jail officials had
asserted they were “unable to locate” grievances but the prisoners produced them); Lodato v. Ortiz, 314
F.Supp.2d 379, 385 (D.N.J. 2004) (denying summary judgment where defendants said they had no record
of plaintiff’s grievance, but they also had no record of other grievances which were undisputably filed);
see Wilks v. Stowers, 2010 WL 2104153, *3 (W.D.Wash., May 25, 2010) (noting that a quarter of the
plaintiffs’ appeals were lost or misplaced, “undermin[ing] the reliability” of defendants’ evidence);
Mennick v. Smith, 2009 WL 1783505, *2 n.1 (D.Idaho, June 20, 2009) (noting that prison staff
inaccurately transcribed grievance information in their files, as shown by original forms provided by
plaintiff); Collier v. Brown, 635 F.Supp.2d 1144, 1154 (C.D.Cal. 2008) (plaintiff’s copy of a grievance
bore official “received” stamp from appeals office, defendants’ did not); Ortiz v. Kilquist, 2006 WL
2583714, *2 (S.D.Ill., Aug. 3, 2006) (noting that while defendants said they had no record of plaintiff’s
grievances, his medical records indicated he was seen because of a grievance).

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Note 350: Ellis v. Navarro, 2011 WL 845902, *3-4 (N.D.Cal., Mar. 8, 2011) (absence of a record
of plaintiff’s grievance was not responsive to his evidence that it was misdirected to a higher level of the
grievance system); Mauldin v. Nason, 2010 WL 3187047, *2 (E.D.Cal., Aug. 11, 2010) (“While the
absence of evidence that a grievance was officially filed may indicate that a plaintiff never submitted the
grievance, it may also indicate that the grievance was discarded or ignored by staff as Plaintiff contends
here.”); Cherer v. Williams, 2010 WL 7697474, *6 (C.D.Cal., July 27, 2010) (declarations indicating no
record of a grievance did not rebut allegation of lost or disregarded grievance); Sutherland v. Herrmann,
2010 WL 2303206, *5 (E.D.Cal., June 7, 2010) (noting that records of grievance appeals are not
responsive to plaintiff’s claim that grievance was disregarded or lost), report and recommendation
adopted, 2010 WL 3184294 (E.D.Cal., Aug. 6, 2010); Sanchez v. Stancliff, 2009 WL 2498257, *4
(E.D.Cal., Aug. 14, 2009) (“where Plaintiff submitted evidence that he attempted to properly utilize the
appeals process, but received no response to his appeals, Defendants must do more than show an inability
to locate an appeal. . . . [T]hey must address Plaintiff's contention and demonstrate what remedies were
available in such a situation.”); Stach v. Elfo, 2009 WL 1464282, *3-4 (W.D.Wash., May 19, 2009)
(defendants’ evidence that there was no record of most of plaintiff’s claimed grievances ignored
plaintiff’s allegations that he could not get grievance forms from staff and that he filed grievances on
plain paper to which he received no response); Davis v. Barton, 2007 WL 2782366, *6 (E.D.Mo., Sept.
21, 2007) and 2007 WL 2782369, *3-4 (E.D.Mo., Sept. 21, 2007) (holding evidence that there was no
record of plaintiff’s grievance was unresponsive to his allegation that officials refused to process it);
Alden v. Smith, 2007 WL 776868, *7 (M.D.Pa., Mar. 12, 2007) (holding defendants’ lack of a record of
plaintiff’s grievances does not show non-exhaustion, since he alleged that defendants failed to
acknowledge and respond to his grievances); Ellis v. Albonico, 2007 WL 809804, *5 (E.D.Cal., Mar. 15,
2007) (holding evidence that grievance personnel had no record of plaintiff’s grievance being accepted
did not refute his evidence that he had submitted it), report and recommendation adopted, 2007 WL
954727 (E.D.Cal., Mar. 29, 2007).
Note 358: Walton v. Breeyear, 2007 WL 446010, *8 (N.D.N.Y., Feb. 8, 2007) (finding waiver
based on failure to plead); Wright v. Goord, 2006 WL 839532, *5 (N.D.N.Y., Mar. 27, 2006) (holding
otherwise well taken non-exhaustion defense, raised on a summary judgment motion, was waived by
failure to plead it or raise it by motion to dismiss); Jones v. Gardels, 2006 WL 37039, *3 (D.Del., Jan. 6,
2006) (holding failure to raise exhaustion in motion to dismiss, in interrogatories directed to affirmative
defenses, or otherwise until a summary judgment motion filed after the close of discovery waived the
defense); Markay v. Yee, 2005 WL 3555473, *8 (E.D.Cal., Dec. 23, 2005) (holding defense waived
where defendants did not include non-exhaustion in their motion to dismiss), report and recommendation
adopted, 2006 WL 403919 (E.D.Cal., Feb. 17, 2006); Rose v. Garbs, 2003 WL 548384, *4 n.3 (N.D.Ill.,
Feb. 26, 2003) (holding exhaustion waived when raised only in a summary judgment reply brief);
Mayoral v. Illinois Dept. Of Corrections, 2002 WL 31324070, *1 (N.D.Ill., Oct. 17, 2002) (finding
waiver where exhaustion was not raised until a summary judgment motion); Goodson v. Sedlack, 212
F.Supp.2d 255, 256 n.1 (S.D.N.Y. 2002) (finding waiver where exhaustion was not raised in or before a
summary judgment motion); Rahim v. Sheahan, 2001 WL 1263493, *6-7 and n.3 (N.D.Ill., Oct. 19, 2001)
(finding waiver where the defense had not been raised through four complaints, a motion to dismiss, and
an appeal); see Dalluge v. Coates, 2008 WL 678647, *3 (E.D.Wash., Mar. 7, 2008) (answer admission
that “the grievance process is completed” waived the defense), reconsideration denied, 2008 WL 828261
(E.D.Wash., Mar. 25, 2008), aff’d, 2009 WL 2222360 (9th Cir., July 27, 2009) (unpublished).
Note 442: Flick v. Vadlamudi, 2010 WL 3884508, *8-9 (W.D.Mich., Aug. 9, 2010) (holding
court could take judicial notice of grievance filings because “grievance procedure is an administrative
review regulated by the agency's Policy Directives”), report and recommendation adopted, 2010 WL
3884126 (W.D.Mich., Sept. 28, 2010); Bennett v. Onua, 2010 WL 2159199, *35 (S.D.N.Y., May 26,
2010) (granting judgment on the pleadings based on extrinsic material including an affidavit, and on
ambiguous statements in a form complaint), reconsideration denied, 2010 WL 2331964 (S.D.N.Y., June

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8, 2010); Cannon v. Mason, 2009 WL 1422016, *2 (E.D.Okla., May 20, 2009) (“In deciding a motion to
dismiss based on nonexhaustion, the court can consider the administrative materials submitted by the
parties.”), aff’d, 357 Fed.Appx. 969 (10th Cir., Dec. 22, 2009), cert. denied, 131 S.Ct. 178 (2010);
Simpson v. Greenwood, 2007 WL 5445538, *1 (W.D.Wis., Apr. 6, 2007) (court can take judicial notice
of the filing of grievances and responses, though not of the allegations in them); Mingues v. Nelson, 2004
WL 324898, *2 (S.D.N.Y., Feb. 20, 2004) (stating the court may consider documents “either in plaintiff’s
possession or of which he has knowledge and relied on in bringing the action” on a motion to dismiss);
Johnson v. Ingum, 2004 WL 253347, *1 (W.D.Wis., Feb. 4, 2004) (“I can consider the parties’
documents without converting the motion to dismiss into a motion for summary judgment because the
documents of a prisoner’s use of the inmate complaint review system is a matter of public record.”);
Nicholson v. Murphy, 2003 WL 22909876 (D.Conn., Sept. 19, 2003) (considering exhaustion on a
motion to dismiss where the plaintiff received notice of the defendants’ argument, argued that the copies
of grievance forms attached to the complaint showed exhaustion, and made no other relevant allegations).
Note 444: Lopez v. Wall, 2010 WL 4225944, *4 (D.R.I., Aug. 19, 2010) (holding plaintiff’s
statement “All grievances to defendant McCutcheaon [sic] were NEVER responded to” insufficient to
overcome the McCutcheon Affidavit stating that Plaintiff never filed any Level 2 grievances with the
Grievance Coordinator. Plaintiff does not (i) specifically state that he sent Formal Grievance Forms to
Grievance Coordinator McCutcheon or (ii) present copies of the grievances he allegedly filed.”), report
and recommendation adopted, 2010 WL 4225872 (D.R.I., Oct. 25, 2010), motion to reopen denied, 2011
WL 3667592 (D.R.I., Aug. 22, 2011); McKeighan v. Corrections Corp. of America, 2010 WL 3913227,
*7 (D.Kan., Sept. 30, 2010) (rejecting plaintiffs’ claims of exhaustion and obstruction for failure to
specify dates, persons involved, etc.); White v. Saginaw County Jail, 2010 WL 3867042, *6 (E.D.Mich.,
Aug. 24, 2010) (granting summary judgment where plaintiff said he had filed grievances and saw
grievances being discarded, but did not identify them as related to his complaint or detail the grievances
he said he had filed), report and recommendation adopted, 2010 WL 3842012 (E.D.Mich., Sept. 28,
2010); Rosado v. Fessetto, 2010 WL 3808813, *7 (N.D.N.Y., Aug. 4, 2010) (holding claim that plaintiff
had filed grievances of which officials had no record, supported by declarations of other prisoners who
had failed to get grievance responses, insufficient to avoid summary judgment), report and
recommendation adopted, 2010 WL 3809991 (N.D.N.Y., Sept. 21, 2010); Hill v. Tisch, 2009 WL
3698380, *4 (E.D.N.Y., Oct. 30, 2009) (granting summary judgment where prisoner did not identify or
describe the person who he said told him his issue was not grievable); Nekvasil v. Rehberg, 2009 WL
2824781, *7 (S.D.W.Va., Aug. 28, 2009) (granting summary judgment where plaintiff’s affidavit was
conclusory and contradicted her complaint and defendants submitted declarations showing nonexhaustion); Patch v. Arpaio, 2009 WL 211090, *3 (D.Ariz., Jan. 29, 2009) (holding plaintiff’s “general
allegations” that jail staff refused to accept his grievances and threatened to place him in protective
custody could not withstand summary judgment against defendants’ evidence that a grievance system
existed for the plaintiff’s problems); Winston v. Woodward, 2008 WL 2263191, *9-10 (S.D.N.Y. May
30, 2008) (citing plaintiffs’ failure to state dates, details, or officers involved in alleged threats and
harassment, or copy of relevant document, or “corroborating evidence,” in granting summary judgment);
Cole v. Arpaio, 2008 WL 2277885, *2 (D.Ariz., May 30, 2008) (similar to Winston); Josey v. Noonan,
2008 WL 2066400, *5 (D.S.C., May 13, 2008) (“the Court is not required to simply accept [plaintiff’s]
general and conclusory statement that he filed grievances concerning these claims when there is contrary
documentary evidence”); Sanders v. Bennett, 2008 WL 754972, *7 (D.Kan., Mar. 19, 2008) (“while
plaintiff claims he was repeatedly rebuffed in his efforts to obtain and pursue grievances, he has provided
little specific detail”); Morgan v. Arizona, 2007 WL 2808477, *7 (D.Ariz., Sept. 27, 2007) (refusing to
allow plaintiff to “subvert” the exhaustion requirement by merely submitting an affidavit stating that an
officer told him he could not file a grievance); Baldauf v. Garoutte, 2007 WL 2697445, *8 (D.Colo., Sept.
11, 2007) (granting summary judgment to defendants because plaintiff did not provide specific dates for
his allegations of interference with exhaustion, even though he provided names and descriptions of
conduct); Fuentes-Ramos v. Arpaio, 2007 WL 1670142, *2 (D.Ariz., June 8, 2007) (granting summary

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judgment, citing lack of specificity in plaintiff’s statement that officers told him his issues were not
grievable); Bane v. Virginia Dept. of Corrections, 2007 WL 1378523, *5 (W.D.Va., May 8, 2007)
(acknowledging factual disputes but stating that the plaintiff’s affidavit “fails to describe the proceedings
with adequate specificity”); Harris v. Austin, 2007 WL 1120540, *3 (M.D.Pa., Apr. 13, 2007) (granting
summary judgment against plaintiff, though he and a witness said he handed his appeal to the mail clerk,
absent evidence that he addressed it to the right place).
Note 463: Mario Sentelle Cavin, LLC v. Heyns, 2012 WL 5031503, *5-6 (W.D.Mich., July 30,
2012) (holding plaintiff who filed suit 131 days after submitting final appeal, which had a deadline for
response of 120 days, exhausted), report and recommendation adopted, 2012 WL 5002292 (W.D.Mich.,
Oct. 17, 2012); Peoples v. Fischer, 2012 WL 1575302, *9 n.125 (S.D.N.Y., May 3, 2012) (“when an
inmate has complied with all administrative requirements and waited for the response period to expire, he
has exhausted all the administrative remedies that are available to him”), on reconsideration in part, 898
F.Supp.2d 618 (S.D.N.Y. 2012); Thomas v. Ricks, 2012 WL 681640, *5 n.8 (S.D.Ga., Jan. 31, 2012),
report and recommendation adopted, 2012 WL 676234 (S.D.Ga., Feb. 29, 2012); Workman v. Reinke,
2011 WL 4431748, *5 n.1 (D.Idaho, Sept. 22, 2011) (holding “a prison cannot claim that the failure to
complete a procedural step is a reason for dismissal when the prison did not process a grievance at that
step in a timely manner according to its own policies”); Frierson v. Bell, 2010 WL 3878732, *5 (D.S.C.,
Sept. 28, 2010) (where response was delayed long past 180-day deadline, plaintiff had exhausted); Bryant
v. Wright, 2010 WL 3629443, *5-6 (S.D.N.Y., Aug. 31, 2010) (where prisoner had taken all prescribed
steps to appeal and his appeals were lost, he had exhausted), report and recommendation adopted, 2010
WL 3629426 (S.D.N.Y., Sept. 15, 2010); Almond v. Pollard, 2010 WL 3122553, *2 (W.D.Wis., Aug. 5,
2010) (where officials extended the time for decision, and plaintiff did not wait for the extended decision
date, he did not exhaust); Pellum v. Burtt, 2008 WL 759084, *16 (D.S.C., Mar. 20, 2008) (where
grievance system automatically advances grievances to the appellate level, plaintiff need only wait until
the time limit for final action had passed), appeal dismissed, 294 Fed.Appx. 798 (4th Cir. 2008);Williams
v. Cornell Corrections of Georgia, 2007 WL 2317633, *3 (S.D.Ga., Aug. 10, 2007) (noting grievance
rules required nothing more of prisoner than filing the final appeal and waiting 90 days); Malik v. Sabree,
2007 WL 781640, *4 (D.S.C., Mar. 13, 2007) (where grievance system automatically advances
grievances to the appellate level, plaintiff need only wait until the time limit for final action had passed);
James v. McCall, 2007 WL 752161, *6 (D.S.C., Mar. 8, 2007) (rejecting argument that plaintiff didn’t
exhaust because grievance was still pending, since decision was late); Mattress v. Taylor, 487 F.Supp.2d
665, 670-62 (D.S.C. 2007) (holding plaintiff had exhausted where the deadline for final decision was 180
days and the plaintiff had waited 11 months to file); Parker v. Stratton, 2006 WL 2620403, *2 (E.D.Cal.,
Sept. 12, 2006) (holding plaintiff who filed suit before deadline for grievance decision failed to exhaust,
even though grievance decision was then months late); Tillis v. Lamarque, 2006 WL 644876, *5
(N.D.Cal., Mar. 9, 2006) (agreeing that “exhaustion occurs when prison officials fail to respond to an
appeal within the time limit. . . . The only question is ‘determining at what point prison officials have
sufficiently thwarted the process so as to render it unavailable.’”); Page v. Breslin, 2004 WL 2713266, *5
(E.D.N.Y., Nov. 29, 2004) (holding plaintiff was justified in filing his complaint after the deadline for
decision of the final appeal had passed); Malanez v. Stalder, 2003 WL 1733536 (E.D.La., Mar. 31, 2003)
(dismissing where prisoner filed suit before time for a grievance response had expired); Jones v. Detella,
12 F.Supp.2d 824, 826 (N.D.Ill. 1998); Barry v. Ratelle, 985 F.Supp.1235, 1238 (S.D.Cal. 1997); see
Akey v. Haag, 2007 WL 1266123, *4 (D.Vt., May 1, 2007) (declining to dismiss where policy requires
waiting “a reasonable time” for a final response and “suggest[s]” 15 days, the plaintiff dated the
complaint after 13 days, and it arrived at court after 17 days); Taylor v. Doctor McWeeney, 2005 WL
1378808 (S.D.Ohio, May 27, 2005) (holding that a prisoner who filed suit over two months after the
decision deadline, and over one month after receiving a notice saying the decision-maker needed more
time, had waited a “reasonable” time and had exhausted).
Note 469: Kons v. Longoria, 2009 WL 3246367, *4 (E.D.Cal., Oct. 6, 2009); Curtis v. Buckley,

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2008 WL 1970812, *2 (E.D.Cal., May 2, 2008), report and recommendation adopted, 2008 WL 2477631
(E.D.Cal., June 16, 2008); Stornes v. Guild, 2008 WL 828790, *4-5 (W.D.Mich., Mar. 27, 2008); Eberle
v. Wilkinson, 2007 WL 1666229, *1-2 (S.D.Ohio, June 4, 2007); DeJesus v. Williams, 2007 WL
1201599, *3 (D.Del., Apr. 23, 2007) (declining to dismiss for non-exhaustion where plaintiff’s grievance
took seven months to get to the medical unit and he had filed suit before it was decided); Arreola v.
Hickman, 2006 WL 2590890, *2 (E.D.Cal., Sept. 8, 2006); Christian v. Goord, 2006 WL 1459805, *6
(N.D.N.Y., May 22, 2006); Thompson v. Koneny, 2005 WL 1378832, *5 (E.D.Mich., May 4, 2005);
Dimick v. Baruffo, 2003 WL 660826, *4 (S.D.N.Y., Feb. 28, 2003).
Note 477: Barnhouse v. John Does, 2009 WL 1259040, *1 (W.D.Wash., May 5, 2009) (allowing
plaintiff to complete exhaustion without dismissal if it can be done quickly); Tatmon v. Hartley, 2009 WL
1748861, *6 (E.D.Cal., June 18, 2009) (where prisoner had exhausted the substance of his complaint, the
fact that he still had an additional grievance pending against one defendant was not a failure to exhaust),
report and recommendation adopted, 2009 WL 2941472 (E.D.Cal., Sept. 10, 2009); Miles v. Daniels,
2004 WL 2110708, *3 (D.Or., Sept. 21, 2004) (declining to dismiss for non-exhaustion where the
plaintiff filed a habeas action without exhausting, then filed a Bivens complaint after exhausting, and the
Bivens complaint was docketed as an amended complaint in the habeas action), report and
recommendation adopted as modified, 2005 WL 708422 (D.Or., Mar. 28, 2005).
Note 485: Fitzgerald v. Busby, 2009 WL 4251087, *2 (E.D.Ark., Nov. 23, 2009); Voth v. Mills,
2009 WL 2952030, *1 (D.Or., Sept. 11, 2009); Frederick v. California Dept. of Corrections and
Rehabilitation, 2009 WL 2045249, *1-2 (N.D.Cal., July 9, 2009), leave to file for reconsideration denied,
2010 WL 234857 (N.D.Cal., Jan. 14, 2010); Walkowiak v. Heinzl, 2009 WL 1307867, *2 (W.D.Wis.,
May 7, 2009); Franklin v. Scribner, 2009 WL 703234, *6-7 (S.D.Cal., Mar. 16, 2009); Pauline v. Patel,
2009 WL 454653, *7 (D.Hawai'i, Feb. 23, 2009), report and recommendation adopted, 2009 WL 750188
(D.Hawai'i, Mar. 19, 2009); Ellenburg v. Mahoney, 2008 WL 1992162, *5 (D.Mont., May 7, 2008);
Chalif v. Spitzer, 2008 WL 1848650, *13 (N.D.N.Y., Apr. 23, 2008); Gray v. Mills, 2008 WL 313926, *4
(E.D.Ark., Feb. 1, 2008) (holding claim of retaliation could not be added to complaint, but must be filed
in a new complaint after exhaustion); Nash v. Department of Corrections, 2007 WL 1991040, *2
(E.D.Wash., July 5, 2007); Hunt v. Hopkins, 2006 WL 1877107, *2 (D.Neb., July 6, 2006).
Note 486: Johnson v. Pollard, 2009 WL 3063327, *12 (E.D.Wis., Sept. 16, 2009); Murphy v.
Grenier, 2009 WL 1044832, *19-20 (E.D.Mich., Apr. 20, 2009) (referring to claims that had not arisen as
of the original complaint and were to be added by supplemental complaint); Keup v. Hopkins, 2008 WL
427556, *4 (D.Neb., Feb. 14, 2008); Martinson v. Menifee, 2007 WL 2106516, *4 n.2 (S.D.N.Y., July
18, 2007) (holding claims unexhausted at initial filing, but exhausted at the time of an amended complaint
reasserting them, need not be dismissed); Lawson v. McDonough, 2006 WL 3844474, *22 (N.D.Fla.,
Dec. 27, 2006) (noting that local rule prescribed that amended complaints completely replace prior
complaints, so exhaustion will be considered from the date of the amended complaint); Ajaj v. U.S., 2006
WL 1305198, *7 (D.Colo., May 11, 2006); Anthony Smith v. Worsham, 2005 WL 2239925, *3-4
(D.Colo., Sept. 14, 2005); Amador v. Superintendents of Dept. of Correctional Services, 2005 WL
2234050, *8 n.9 (S.D.N.Y. Sept. 13, 2005); Cline v. Fox, 266 F.Supp.2d 489, 493 (N.D.W.Va. 2003),
reconsideration granted, 282 F.Supp.2d 490 (N.D.W.Va. 2003) (dismissing unexhausted claim, then
allowing it to be reinstated after exhaustion); Carter v. Wright, 211 F.R.D. 549, 551 (E.D.Mich. 2003);
Madison v. Mazzuca, 2004 WL 3037730, *14 (S.D.N.Y., Dec. 30, 2004).
Note 495: Holt v. Bledsoe, 2012 WL 511916, *4-5 (M.D.Pa., Jan. 11, 2012) (denying summary
judgment where there was no record of plaintiff’s grievance forms, his grievance submitted on plain paper
allegedly never reached his counselor, and the Regional Office rejected his complaint of lack of access to
the grievance process); Royal v. Knight, 2012 WL 639548, *4-5 (E.D.Cal., Feb. 27, 2012); Joyner v.
O'Neil, 2012 WL 560199, *6 (E.D.Va., Feb. 21, 2012) (noting defendants did not dispute plaintiff’s claim

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that his first grievance was never answered); Sykes v. Farris, 2012 WL 443314, *5-6 (S.D.Ill., Jan. 17,
2012) (finding claim of non-response to medical grievance supported by other prison documentation),
report and recommendation adopted, 2012 WL 458488 (S.D.Ill., Feb. 10, 2012); Pope v. Ross, 2011 WL
5573035, *7 (S.D.Ill., Oct. 6, 2011) (crediting plaintiff’s testimony that he submitted his grievance twice
and it was destroyed or not returned both times), report and recommendation adopted, 2011 WL 5572875
(S.D.Ill., Nov. 16, 2011); Nassar v. Warden, Butler County Jail, 2011 WL 7268004, *5 (S.D.Ohio, Sept.
1, 2011) (holding prisoner who properly pursued grievance but did not receive responses consistently
with policy at either stage had no available remedy); Hill v. Best, 2011 WL 4585658, *3 (S.D.Ill., July
26, 2011) (noting failure to respond of a counselor, a grievance officer, and the warden); Contreraz v.
Stockbridge, 2011 WL 2620367, *2 (E.D.Cal., June 29, 2011); Underwood v. Knowles, 2011 WL
1322531, *3 (E.D.Cal., Apr. 1, 2011) (noting unexplained failure to respond); Proctor v. Board of County
Com'rs of County of Pottawatomie, 2010 WL 711198, *3 (W.D.Okla., Feb. 25, 2010) (noting undisputed
failure to respond); Ratcliff v. Schriro, 2009 WL 2515623, *2-4 (D.Ariz., Aug. 13, 2009) (noting plaintiff
filed informal grievance, formal grievance, and grievance appeal without response, then wrote to
Director, whose office responded that he should file a grievance); James v. Hernandez, 2009 WL
1979261, *1 (S.D.N.Y., July 9, 2009) (noting lack of response to initial grievance and to appeals to
Warden, Inspector General, and Board of Correction, but dismissing because he did not take the final
appeal); Sims v. Piper, 2008 WL 3318746, *4 n.4 (E.D.Mich., Aug. 8, 2008) (noting defendants neither
disputed nor explained their failure to address plaintiff’s grievances at first two stages); Whitmore v.
Walker, 2008 WL 926486, *2-4 (S.D.Ill., Apr. 2, 2008) (recounting plaintiff’s repeated efforts and
complete failure to get responses to his grievances); Clarke v. Thornton, 515 F.Supp.2d 435, 438-41
(S.D.N.Y. 2007) (noting plaintiff had filed seven grievances without proper response, but dismissing for
non-exhaustion anyway because she did not appeal any of them to the final step).
Note 500: Williams v. Lewis, 2008 WL 860113 *3 (N.D.Cal., Mar. 28, 2008) (prisoner who got
no response at the “informal level” did not exhaust because he failed to ask the Appeals Coordinator to
waive the informal level requirement as the rules permitted); Clarke v. Thornton, 515 F.Supp.2d 435,
438-41 (S.D.N.Y. 2007); Williams v. Arpaio, 2007 WL 2903025, *3 (D.Ariz., Sept. 28, 2007); Walker v.
Seal, 2007 WL 1169364, *2 (E.D.La., Apr. 19, 2007); Rockwell ex rel. Gill v. State Oregon, 2007 WL
1039521, *4 (D.Or., Apr. 3, 2007) (noting rules permitted filing a new grievance about the lack of
response to an earlier grievance); Donahue v. Bennett, 2004 WL 1875019, *6 n.12 (W.D.N.Y., Aug. 17,
2004); Bailey v. Sheahan, 2003 WL 21479068, *3 (N.D.Ill., June 20, 2003); Sims v. Blot, 2003 WL
21738766, * 3 (S.D.N.Y., July 25, 2003); Larry v. Byno, 2003 WL 1797843, *2 n.3 (N.D.N.Y., Apr. 4,
2003) (“This Court’s decision should not be seen as condoning” the failure to follow procedure by not
rendering a decision); Harvey v. City of Philadelphia, 253 F.Supp.2d 827, 830 (E.D.Pa. 2003) (holding
that failure to use a procedure permitting sending a grievance directly to the Commissioner if the prisoner
believes he is being denied access to the process was a failure to exhaust); Croswell v. McCoy, 2003 WL
962534, *4 (N.D.N.Y., Mar. 11, 2003); Mendoza v. Goord, 2002 WL 31654855, *3 (S.D.N.Y., Nov. 21,
2002) (dismissing for failure to appeal a non-response even though the plaintiff “tried many avenues to
seek relief from prison authorities”); Petty v. Goord, 2002 WL 31458240, *4 (S.D.N.Y., Nov. 4, 2002);
Graham v. Cochran, 2002 WL 31132874 (S.D.N.Y., Sept. 25, 2002); Reyes v. Punzal, 206 F.Supp.2d
431, 432-33 (W.D.N.Y.2002); Martinez v. Dr. Williams R., 186 F.Supp.2d 353, 357 (S.D.N.Y. 2002);
Saunders v. Goord, 2002 WL 1751341, *3 (S.D.N.Y., July 29, 2002); Jorss v. Vanknocker, 2001 WL
823771, *2 (N.D.Cal., July 19, 2001), aff’d, 44 Fed.Appx. 273, 2002 WL 1891412 (9th Cir. 2002); Smith
v. Stubblefield, 30 F.Supp.2d at 1174; Morgan v. Arizona Dept. of Corrections, 976 F.Supp. 892, 895
(D.Ariz. 1997).
Note 505: Doyle v. Broussard, 2010 WL 5663012, *4 (W.D.La., Dec. 7, 2010), report and
recommendation adopted, 2011 WL 308901 (W.D.La., Jan. 28, 2011); Jones v. Felker, 2010 WL 582131,
*7 (E.D.Cal., Feb. 12, 2010) (summary judgment denied where plaintiff tried to grieve, got no response or
log number, complained to central office with no response, appeal to central office was rejected for not

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going through channels), report and recommendation adopted, 2010 WL 1034097 (E.D.Cal., Mar. 17,
2010); Wilkerson v. Jenkins, 2010 WL 384737, *3 (D.Md., Jan. 27, 2010) (similar to Dole v. Chandler);
Hill v. Truelove, 2010 WL 56144, *10 (W.D.Okla., Jan. 6, 2010); Hambrick v. Morton, 2009 WL
1759564, *1, 3 (S.D.Ga., June 19, 2009) (allegation that prisoner whose grievance remained pending after
a year and who was denied an appeal form sufficiently alleged exhaustion of available remedies); Jones v.
Spaeth, 2009 WL 1325716, *6 (E.D.Cal., May 12, 2009) (prisoner who did not receive a decision did not
fail to exhaust since he could not appeal without it); Perry v. Green, 2009 WL 814447, *14 (E.D.Mich.,
Mar. 26, 2009) (plaintiff’s grievance was returned without being given a number; “Perhaps it would have
been difficult to appeal the rejection of an undocumented grievance.”); Mintun v. Corrections Corp. of
America, 2009 WL 666958, *4 (W.D.Okla., Mar. 10, 2009) (declining to dismiss for non-exhaustion
where plaintiff could not file a grievance without responses to his informal complaints); Webb v. Beaty,
2008 WL 4889105, *4-5 (W.D.Okla., Nov. 12, 2008) (denying summary judgment where only response
to required “request to staff” was officials were “looking into” the matter, with no decision provided);
Franklin v. Butler, 2008 WL 4078797, *3 (E.D.Cal., Aug. 29, 2008) (similar to Dole), report and
recommendation adopted, 2008 WL 4601081 (E.D.Cal., Oct. 15, 2008); Ortiz v. Hayman, 2008 WL
1319203, *4 (D.N.J., Apr. 10, 2008) (where prisoner alleged he gave his grievance to an officer for
mailing, and defendants said he didn’t file it because they had no record of it, the factual dispute barred
summary judgment); Whitmore v. Walker, 2008 WL 926486, *2-4 (S.D.Ill., Apr. 2, 2008) (where
prisoner repeatedly filed grievances with no response at the facility and the central office grievance body
refused to consider them without a facility response, court refuses to dismiss for non-exhaustion); Moro v.
Winsor, 2008 WL 718687, *4-5 (S.D.Ill., Mar. 14, 2008) (holding remedy unavailable to prisoner whose
appeal was untimely because he could not get a timely answer at the first level in a system that required a
response in order to appeal); Johnson v. Tedford, 616 F.Supp.2d 321, 326 (N.D.N.Y. 2007) (holding a
prisoner whose grievance is not recorded or given a grievance number, so the lack of response cannot be
appealed, may have exhausted) and cases cited, report and recommendation adopted in part, rejected in
part, 616 F.Supp. 321 (N.D.N.Y. 2007); Cooper v. Rothstein, 2007 WL 1452989, *2 (N.D.Ill., May 17,
2007) (following Brengettcy); Woulard v. Food Service, 294 F.Supp.2d 596, 602 (D.Del. 2003); Green v.
Hartman, 2006 WL 2699336, *3 (N.D.Ill., Sept. 18, 2006) (refusing to dismiss where plaintiff received
no decision from which he could appeal and waited 60 days to file though the decision deadline was 30
days); Smith v. Boyle, 2003 WL 174189, *3 (N.D.Ill., Jan. 27, 2003); Taylor v. Dr. Barnett, 105
F.Supp.2d 483, 486 (E.D.Va. 2000).
Note 506: Njos v. Norwood, 2012 WL 6014761, *11 (C.D.Cal., Oct. 18, 2012) (noting prisoner
failed to complain that “unit team” was refusing to process his requests), report and recommendation
adopted, 2012 WL 6014777 (C.D.Cal., Nov. 30, 2012); Logan v. Emerson, 2012 WL 3292829, *5
(N.D.Ill., Aug. 9, 2012); Mateo v. O'Connor, 2012 WL 1075830, *6-7 (S.D.N.Y., Mar. 29, 2012) (holding
prisoner who did not inquire about the fate of a vanished grievance appeal did not exhaust); Harvey v.
Menzina, 2012 WL 645893, *2-3 (M.D.La., Jan. 10, 2012) (holding prisoner who waited seven months to
inquire about a disappearing grievance failed to exhaust), report and recommendation adopted, 2012 WL
641562 (M.D.La., Feb. 28, 2012); Allen v. Oregon, 2012 WL 698361, *10 (D.Or., Jan. 31, 2012), report
and recommendation adopted, 2012 WL 719000 (D.Or., Feb. 29, 2012); Dunbar v. Barone, 2012 WL
259982, *5 (W.D.Pa., Jan. 27, 2012) (holding that plaintiff should have filed a grievance about the failure
to decide his grievances), aff’d, 487 Fed.Appx. 721 (3rd Cir. 2012) (unpublished); Norwood v.
Nanganama, 2010 WL 4806965, *5-6 (E.D.Cal., Nov. 18, 2010) (holding prisoner whose grievance
disappeared and who did not try again failed to exhaust), report and recommendation adopted, 2011 WL
94543 (E.D.Cal., Jan. 11, 2011); Goodrick v. French, 2010 WL 3735699, *4 (D.Idaho, Sept. 17, 2010)
(holding prisoner who receives no response “must still show that he was reasonably diligent in pursuing
relief through the administrative system,” independently of anything in the grievance policy),
reconsideration denied, 2011 WL 675265 (D.Idaho, Feb. 17, 2011); Erickson v. Blades, 2010 WL
3210959, *4-5 (D.Idaho, Aug. 12, 2010) (“It is not enough to argue simply that the grievance system
doesn't state what to do in the event of a lost grievance or he thought it was too late at that point to

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resubmit it.”); Riley v. Taylor, 2010 WL 1335877, *8 (D.Del., Mar. 31, 2010) (plaintiff was obliged to
grieve the failure to respond to his grievances); Cohea v. California Dept. of Corrections and
Rehabilitation, 2010 WL 1135917, *4 (E.D.Cal., Mar. 22, 2010) (plaintiff who alleged he mailed his
grievance and then resubmitted it “was familiar with the grievance process and could have sought further
administrative review to remedy any failure to respond”); Hookey v. Lomas, 2010 WL 936230, *5
(M.D.Pa., Mar. 15, 2010) (dismissing for non-exhaustion where appeal body said it had not received her
appeal and she did not re-file it), aff’d, 438 Fed.Appx. 110 (3d Cir. 2011); Allen v. Schmutzler, 2010 WL
618489, *5-7 (D.Colo., Feb. 18, 2010), appeal dismissed, 401 Fed.Appx. 355 (10th Cir. 2010); McClain,
Jr. v. Alveriaz, 2009 WL 3467836, *3 n.1, *10 (E.D.Pa., Oct. 26, 2009); Ming Ching Jin v. Hense, 2005
WL 3080969, *3 (E.D.Cal., Nov. 15, 2005) (holding a prisoner informed that there was no record of his
appeal was obliged to take steps to pursue the appeal), report and recommendation adopted, 2006 WL
177424 (E.D.Cal., Jan. 20, 2006); Ellis v. Cambra, 2005 WL 2105039, *4-5 (E.D.Cal., Aug. 30, 2005)
(holding prisoner failed to exhaust where he filed two grievances which disappeared, and was told he
could proceed to the next level but did not), report and recommendation adopted, 2006 WL 547921
(E.D.Cal., Mar. 3, 2006).
Note 507: Towns v. Cowan, 2011 WL 6302888, *2 (S.D.Ill., Nov. 15, 2011) (rejecting argument
that plaintiff was obliged to grieve the failure to respond to a grievance); Oliverez v. Albitre, 2010 WL
5059616, *6 (E.D.Cal., Dec. 6, 2010) (“Plaintiff is not required to conceive of ways to work around the
failure of the reviewer to respond to his properly submitted appeals. . . . The regulations governing the
inmate appeals process apply with equal force to inmates and prison officials. If an inmate complies with
the procedural rules, but staff members fail to respond to the appeal in compliance with applicable
procedural rules or otherwise thwart the process, it becomes unavailable.”), report and recommendation
adopted, 2011 WL 127113 (E.D.Cal., Jan. 14, 2011); Bryant v. Wright, 2010 WL 3629443, *5-6
(S.D.N.Y., Aug. 31, 2010) (holding prisoner who had done everything the rules prescribed to appeal, but
whose appeals were lost, was not obliged to wait for answers to letters inquiring about their fate), report
and recommendation adopted, 2010 WL 3629426 (S.D.N.Y., Sept. 15, 2010); Maraglia v. Maloney, 499
F.Supp.2d 93, 97 (D.Mass. 2007) (holding that prisoner was not required to file a grievance about the
failure to respond to a grievance absent a regulation to that effect).
Note 510: Sims v. Piper, 2008 WL 3318746, *5 & n.7 (E.D.Mich., Aug. 8, 2008) (holding nonresponse at early stages means the prisoner has exhausted regardless of rules allowing appeal of nonresponse); Davis v. Kirk, 2007 WL 4353798, *8 (S.D.Tex., Dec. 11, 2007) (stating prisoner who received
no decisions had “nothing from which to appeal”); Carter v. Morrison, 2007 WL 4233500, *7 (E.D.Pa.,
Nov. 28, 2007); Diaz v. Carroll, 2007 WL 2154202, *3 (D.Del., July 26, 2007) (“It is unclear to the court
. . . how one appeals from an absolute failure to respond.”); DeJesus v. Williams, 2007 WL 1201599, *3
(D.Del., Apr. 23, 2007) (declining to dismiss for non-exhaustion where plaintiff’s grievance took seven
months to get to the medical unit and he had filed suit in the interim); Pierre v. County of Broome, 2007
WL 625978, *4 (N.D.N.Y., Feb. 23, 2007) (holding lack of response to repeated attempts to grieve
justified plaintiff’s failure to comply with requirements); Rainey v. Ford, 2006 WL 3513687, *4-5
(D.S.C., Dec. 5, 2006) (holding lack of a timely grievance decision means the plaintiff has not exhausted
and the remedy is not available; grievance was “held in abeyance” pending decision by Division of
Investigation); Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 97 (D.Mass. 2005) (noting officials’
failure to respond; stating, “[h]aving failed to abide by the strictures of their own regulations, defendants
should not be allowed to claim plaintiff’s noncompliance as a bar.”); Rowe v. Corcoran State Prison,
2005 WL 1344379, *2 (E.D.Cal., May 27, 2005) (stating “exhaustion occurs when prison officials fail to
respond to a grievance within the policy time limits”), report and recommendation adopted, 2005 WL
2086044 (E.D.Cal., Aug. 26, 2005); Williams v. First Correctional Medical, 2004 WL 2434307, *1 n.4
(D.Del., Oct. 13, 2004) (“Defendants have presented insufficient evidence to show any response to the
grievance forms, as mandated by the grievance procedure itself. Thus, the court finds that plaintiff
exhausted his administrative remedies.”); Holland v. Correctional Medical Systems, 2004 WL 322905, *3

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(D.Del., Feb. 11, 2004); Lane v. Doan, 287 F.Supp.2d 210, 212-13 (W.D.N.Y. 2003) (holding a prisoner
who made “reasonable attempts” to file and prosecute grievances, but had many of his grievances and
inquiries ignored, had exhausted); Barrera v. Acting Executive Director of Cook County Dep’t of
Corrections, 2003 WL 21976753, *2-3 (N.D.Ill., Aug. 18, 2003) (holding that prisoner who received no
response for 28 months had exhausted, notwithstanding claim that it was still under investigation after 28
months); Sweet v. Wende Correctional Facility, 253 F.Supp.2d 492, 495 (W.D.N.Y. 2003) (holding that
prisoner’s allegation that he commenced the grievance process but prison officials did not act on his
complaints was sufficient to avoid summary judgment for non-exhaustion); Smith v. Boyle, 2003 WL
174189, *3 (N.D.Ill., Jan. 27, 2003) (holding that a plaintiff who waited seven months for a decision in a
system that required a decision in order to appeal had no available remedy); Rose v. Garbs, 2003 WL
548384, *4 n.3 (N.D.Ill., Feb. 26, 2003); Dennis v. Johnson, 2003 WL 102399 (N.D.Tex., Jan. 7, 2003)
(holding that plaintiff who filed a step two grievance and did not receive a timely response had
exhausted); Martin v. Snyder, 2002 WL 484911, *3 (N.D.Ill., Mar. 28, 2002) (rejecting claim that
plaintiff “should have filed even more grievances about defendants’ failure to respond”); Armstrong v.
Drahos, 2002 WL 187502, *1 (N.D.Ill., Feb. 6, 2002) (“If [plaintiff] received no response, there was
nothing to appeal.”); Harmon v. Aroostook County Sheriff’s Dept., 2001 WL 1165406, *3 (D.Me., Oct. 2,
2001) Long v. Lafko, 2001 WL 863422, *2 n. 1 (S.D.N.Y., July 31, 2001); Bowers v. Mounet, 2001 WL
826556, *2 (D.Del., July 18, 2001); Nitz v. French, 2001 WL 747445, *3 (N.D.Ill., July 2, 2001); Reeder
v. Department of Correction, 2001 WL 652021, *2 (D.Del., Feb. 22, 2001).
Note 511: Andrews v. Whitman, 2008 WL 878466, *6 (S.D.Cal., Mar. 28, 2008) (“When official
action ends a prisoner's administrative appeal rights, the Ninth Circuit has held administrative remedies
are no longer ‘available.’” Plaintiff’s grievance was never processed); Woods v. Carey, 2007 WL
2254428, *3 (E.D.Cal., Aug. 3, 2007) (holding prisoner trying to appeal had exhausted where grievance
official and medical appeals analyst each said he had to go to the other), vacated on other grounds, 2007
WL 2688819 (E.D.Cal., Sept. 13, 2007); Langford v. Ifediora, 2007 WL 1427423, *3-4 (E.D.Ark., May
11, 2007) (refusing to dismiss for non-exhaustion where grievances were returned labelled “no further
action necessary”); Williams v. MacArthur, 2007 WL 1381764, *4 (D.Nev., May 8, 2007) (holding
failure to appeal grievances dismissed as “improper,” which could have led to disciplinary sanctions, was
not a failure to exhaust); Baylis v. Taylor, 475 F.Supp.2d 484, 488 (D.Del. 2007) (holding officials’
withdrawal of plaintiff’s grievances because of litigation meant that he had exhausted, since no further
remedies were available); Hernandez v. Schriro, 2006 WL 2989030, *4 (D.Ariz., Oct. 18, 2006); Smith v.
Baugh, 2006 WL 2771039, *5 (M.D.Tenn., Sept. 25, 2006) (holding that plaintiff satisfied the exhaustion
requirement where his grievances were returned unprocessed because grievance personnel said he had
previously filed a grievance); Fuller v. California Dept. of Corrections, 2006 WL 2385177, *3 (E.D.Cal.,
Aug. 17, 2006) (refusing to dismiss for non-exhaustion where a second-level appeal was returned for
defects of form, without instructions whether to resubmit it or go to the next level if dissatisfied, and the
plaintiff was not shown to have remedies remaining); James v. Davis, 2006 WL 2171082, *17 (D.S.C.,
July 31, 2006) (holding that return of grievances unprocessed, on the ground that the problems were taken
care of and that damages claims could not be grieved, left him unable to exhaust); Bennett v. Douglas
County, 2006 WL 1867031, *2 (D.Neb., June 30, 2006) (declining to dismiss for failure to appeal to the
Chief Deputy of the jail where there was no Chief Deputy); Dukes v. S.H.U. C.O. John Doe No. 1, 2006
WL 1628487, *5 (S.D.N.Y., June 12, 2006) (noting that the failure to record and assign numbers to
plaintiff’s grievances might have made appeal impossible); Wood v. Idaho Dept. of Corrections, 2006
WL 694654, *6 (D.Idaho, Mar. 16, 2006) (holding that a prisoner whose grievance was returned because
he was only allowed to have three pending at one time had exhausted, since he had done what he could
do); see Pascalli v. O'Grady, 2007 WL 3124709, *5 (D.N.J., Oct. 23, 2007) (noting it was unclear
whether the prisoner was informed of grievance findings, or whether he could appeal if grievances were
simply returned without findings).
Note 514: Rosa v. Morvant, 2008 WL 347733, *5 (E.D.Tex., Feb. 6, 2008) (prisoner exhausted

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where his first step grievance was referred for an Inspector General’s investigation and that was all the
relief the process could provide for his complaint), amended and superseded on other grounds, 2008 WL
786466 (E.D.Tex., Mar. 19, 2008); Cahill v. Arpaio, 2006 WL 3201018, *3 (D.Ariz., Nov. 2, 2006)
(holding plaintiff reasonably relied on grievance hearing officer told him that “(1) the matter was under
investigation and he would not be notified of the results, (2) he could not appeal and would not be given a
form, and (3) he should proceed to federal court,” notwithstanding that the preprinted decision form said
it could be appealed); Clark v. Mason, 2005 WL 1189577, *8 (W.D.Wash., May 19, 2005) (holding that
prisoner who made “significant attempts” to bring his concerns to prison officials, who responded that
they would not consider the issues again, exhausted); Daker v. Ferrero, 2004 WL 5459957, *2 (N.D.Ga.,
Nov. 24, 2004) (prisoner who was not allowed to file appeal of intermediate stage grievance denial, filed
suit, and was later afforded an opportunity to appeal had exhausted when he was prevented from
appealing).
Note 521: Worthen v. Oklahoma Dept. of Corrections, 2010 WL 3295010, *6 (W.D.Okla., Aug.
4, 2010), report and recommendation adopted, 2010 WL 3294999 (W.D.Okla., Aug. 19, 2010); James v.
Chamberlain, 2010 WL 2245564, *3 (W.D.Pa., Mar. 31, 2010), report and recommendation adopted,
2010 WL 2196267 (W.D.Pa., June 1, 2010); Patch v. Arpaio, 2010 WL 432354, *7-10 (D.Ariz., Feb. 2,
2010) (plaintiff who complained of spoiled food exhausted where jail authorities apologized, replaced the
food, and gave instructions to prevent any recurrence); Barrett v. Maricopa County Sheriff's Office, 2010
WL 46786, *4-5 (D.Ariz., Jan. 4, 2010) (prisoner who got his medication, which was all he sought,
through the pre-grievance informal process had exhausted); Gallegos v. Parsons, 2009 WL 3714629, *4
(S.D.Cal., Nov. 4, 2009) (denying summary judgment to defendants on exhaustion where they failed to
refute plaintiff’s statement that he filed informal grievances which were granted); Brooks v. Frank, 2009
WL 1227880, *4 (D.Haw., May 1, 2009) (holding response to grievance about toxic fumes that said
prison officials would take precautionary measures to prevent any recurrence meant plaintiff had
exhausted, especially since grievance officials had insisted the matter was moot); Myers v. Rozum, 2009
WL 995606, *3 (W.D.Pa., Apr. 14, 2009); Smith v. Yarborough, 2008 WL 4877464, *10 (C.D.Cal., Nov.
7, 2008) (grievance alleging inability to exercise because of assignment to a yard with gang members was
exhausted when plaintiff was assigned to exercise alone); Henderson v. Moore, 2008 WL 2704674, *4
(S.D.Tex., July 2, 2008); Henderson v. Bettus, 2008 WL 899251, *4 (M.D.Fla., Mar. 31, 2008) (holding
favorable decision completed exhaustion where policy did not require appealing a grievance that was
satisfactorily resolved); Redden v. Kearney, 2008 WL 440370, *7-8 (D.Del., Feb. 15, 2008) (plaintiff
who received the relief sought exhausted; grievance rules said resolution at the first level ends the
grievance process); Gill v. Myers, 2007 WL 2728344, *3 (N.D.Ind., Sept. 13, 2007) (dictum) (noting that
grievance policy forbade continuing the process after a favorable resolution); Jackson v. Corrections
Corp. of America, 2007 WL 1848014, *6 (D.D.C., June 27, 2007) (holding prisoner whose grievances
about cell bunk assignment, medical treatment, and cell ventilation had been addressed had exhausted
without appealing); Bivens v. Lisath, 2007 WL 2891416, *3, *6 (S.D.Ohio, Sept. 28, 2007) (citing
grievance procedure’s instruction to “STOP” rather than file a grievance where informal procedures
solved the problem; declining to dismiss for non-exhaustion where prisoner was “told that the situation
would be handled to his satisfaction”); Roundtree v. Adams, 2007 WL 1232173 at *7-8 (E.D.Cal., Apr.
25, 2007) (holding prisoner who grieved and was told his mobility aids would be provided “when ready”
had exhausted without further appeal); Harper v. Harmonn, 2006 WL 2522409, *3-4 (E.D.Cal., Aug. 29,
2006) (holding that a prisoner whose disciplinary conviction was thrown out at an intermediate stage need
not have appealed further); Roberson v. McShan, 2006 WL 2469368, *3 (S.D.Tex., Aug. 24, 2006)
(holding that a prisoner who filed a grievance complaining of sexual assault and asking for an
investigation had exhausted when the first step response promised an investigation); Guy v. California
Dept. of Corrections, 2006 WL 1376076, *2 (E.D.Cal., May 17, 2006) (holding prisoner who requested
medical attention and received it as a result of his grievance need not have proceeded further; defendants
“do not explain what further relief plaintiff could have obtained”); Brown v. Duncan, 2006 WL 1280914,
*6 (D.Or., May 4, 2006) (holding prisoner who had received the medical treatment he sought had

387

exhausted where defendants failed to identify “any relief” he could have obtained through a further
appeal); Trahan v. Reinken, 2006 WL 1169105, *5 (S.D.Tex., May 1, 2006) (declining to dismiss claim
of a prisoner who had grieved, been promised he would see a vision specialist, and been released two and
a half months later without seeing one); Gabby v. Meyer, 390 F.Supp.2d 801, 804 (E.D.Wis. 2005)
(holding that prisoner who filed grievances seeking transfer to hospital and removal of sutures, and did
not appeal because those actions were taken, had no further remedies available); Mullicane v. Marshall,
2005 WL 3299079, *3 (E.D.Cal., Dec. 1, 2005) (holding a prisoner who received a first level response
stating “Granted” and that his requests would be met had exhausted all available remedies), report and
recommendation adopted, 2006 WL 547929 (E.D.Cal., Mar. 3, 2006); Roundtree v. Adams, 2005 WL
1503926, *10 (E.D.Cal., June 23, 2005) (“Once an appeal is granted in full, the process ends.”); Nevels v.
Pliler, 2005 WL 1383185 (E.D.Cal., June 7, 2005) (holding a prisoner who was told his grievance was
granted need not appeal further; “Defendant fails to identify any remedy that remained available to
plaintiff.”), report and recommendation adopted, 2005 WL 1561532 (E.D.Cal., June 30, 2005); Cotton v.
Kingston, 2004 WL 2325053, *4 (W.D.Wis., Sept. 4, 2004); Bolton v. U.S., 347 F.Supp.2d 1218, 1220
(N.D.Fla. 2004) (holding a prisoner exhausted when she complained informally, the first step of the
Federal Bureau of Prisons remedy, and the offending officer resigned when confronted; “When a prisoner
wins in the administrative process, he or she need not continue to appeal the favorable ruling.”); Branch v.
Brown, 2003 WL 21730709, *6, 12 (S.D.N.Y., July 25, 2003) (holding a prisoner who was told he would
see a doctor soon and his medical status would be reviewed “arguably had nothing to appeal” and at least
raised a factual question barring summary judgment concerning exhaustion), judgment granted on other
grounds, 2003 WL 22439780 (S.D.N.Y., Oct. 28, 2003); Fogell v. Ryan, 2003 WL 21756096, *5 (D.Del.,
July 30, 2003) (holding grievance was “resolved informally” where plaintiff initiated the process and was
then told by a prison official that “they had fired the doctor” and she should seek legal representation);
Sulton v. Wright, 265 F.Supp.2d 292, 298-99 (S.D.N.Y. 2003); Dixon v. Goord, 224 F.Supp.2d 739, 749
(S.D.N.Y. 2002) (“The exhaustion requirement is satisfied by resolution of the matter, i.e., an inmate is
not required to continue to complain after his grievances have been addressed.”); Gomez v. Winslow, 177
F.Supp.2d 977, 984-85 (N.D.Cal. 2001) (allowing damage claim to go forward where the prisoner had
stopped pursuing the grievance system when he received all the relief it could give him); Brady v.
Attygala, 196 F.Supp.2d 1016, 1020 (C.D.Cal. 2002) (holding plaintiff had exhausted where he grieved to
see an ophthalmologist and was taken to see an ophthalmologist before the grievance process was
completed); Nitz v. French, 2001 WL 747445, *3 (N.D.Ill., July 2, 2001) (holding that a prisoner who
asked for separation from another prisoner and transfer, and got it, but never got a grievance decision,
exhausted; “It would be a strange rule that an inmate who has received all he expects or reasonably can
expect must nevertheless continue to appeal, even when there is nothing to appeal.”); McGrath v.
Johnson, 67 F.Supp.2d 499, 510 (E.D.Pa. 1999), aff’d, 35 Fed.Appx. 357, 2002 WL 1271713 (3d Cir.
2002); see Marvin v. Goord, 255 F.3d 40, 43 n.3 (2d Cir. 2001) (holding that succeeding through informal
channels without a grievance met the exhaustion requirement, since the grievance procedure states that it
is “intended to supplement, not replace, existing formal or informal channels of problem resolution.”);
Stevens v. Goord, 2003 WL 21396665, *4 (S.D.N.Y., June 16, 2003) (following Marvin), adhered to on
reargument, 2003 WL 22052978 (S.D.N.Y., Sept. 3, 2003).
Note 528: Sullivan v. Tolentino, 2009 WL 1774275, *9 (C.D.Cal., June 23, 2009) (similar to
Ransom and Hendon below); Ransom v. Rojas, 2008 WL 4640619, *3 (E.D.Cal., Oct. 16, 2008) (where
grievance response said “Granted” and that investigation had been conducted that would not be disclosed,
and did not identify any further review available, plaintiff had exhausted; defendants’ claim that plaintiff
could have obtained a formal apology, policy changes, a hearing, etc. was unsupported by evidence);
Rosa v. Morvant, 2008 WL 347733, *5 (E.D.Tex., Feb. 6, 2008) (prisoner exhausted where his first step
grievance was referred for an Inspector General’s investigation and that was all the relief the process
could provide for his complaint), amended and superseded on other grounds, 2008 WL 786466
(E.D.Tex., Mar. 19, 2008); Black v. Tuggles, 2007 WL 2330765, *2 (E.D.Cal., Aug. 13, 2007) (prisoner
whose grievance claiming kitchen workers were not provided protective equipment or training to work

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with detergents was granted had exhausted); Hendon v. Ramsey, 2007 WL 1120375, *9-10 (S.D.Cal.,
Apr. 12, 2007) (holding plaintiff had exhausted where his appeal was partly granted and he was told that
it was being referred for investigation and any finding of staff misconduct would be confidential and he
would not be informed of it); Cahill v. Arpaio, 2006 WL 3201018, *3 (D.Ariz., Nov. 2, 2006) (holding
plaintiff reasonably relied on grievance hearing officer telling him that “(1) the matter was under
investigation and he would not be notified of the results, (2) he could not appeal and would not be given a
form, and (3) he should proceed to federal court,” notwithstanding that the preprinted decision form said
it could be appealed); Candler v. Woodford, 2007 WL 3232435, *4-5 (N.D.Cal., Nov. 1, 2007) (similar to
Hendon and Cahill).
Note 552: Braxton v. Nichols, 2010 WL 1010001, *12 (S.D.N.Y., Mar. 18, 2010) (grievance
complaining that indoor smoking is “pervasive” exhausted plaintiff’s claim of underenforcement of prison
smoking ban); Mallory v. Marshall, 659 F.Supp.2d 231, 238 (D.Mass 2009) (holding plaintiff assaulted
by another prisoner sufficiently exhausted, without identifying specific wrongful conduct by prison staff,
where policy asked only for “a brief statement of facts” in addition to time, place, etc., where officials
investigated the incident, and where plaintiff said he was seeking damages, which indicates fault on the
part of prison staff); Holmes v. Kingston, 2008 WL 4610320, *3 (E.D.Wis., Oct. 15, 2008) (holding
exhaustion of complaint about denial of a wheelchair also exhausted complaints about conditions
resulting from that denial); Bouman v. Robinson, 2008 WL 2595180, *1 (W.D.Wis., June 27, 2008)
(prisoner who grieved retaliation for his opinions, without saying what the opinions were, exhausted; “If
prison administrators had wanted additional detail, they could have asked for it, but they did not.”);
Cromer v. Braman, 2008 WL 907468, *12-13 (W.D.Mich., Mar. 31, 2008) (grievance stating a defendant
was responsible for taking plaintiff’s property, either personally or through his “crew,” exhausted
supervisory claim about failure to train subordinates in what was contraband; grievance stating that an
officer “continues to harass” and “will go exaggerate a misconduct” were too vague to exhaust); Winburn
v. Hadfield, 2008 WL 783580, *6 (W.D.Mich., Mar. 20, 2008) (claim that plaintiff was denied access to a
toilet was exhausted despite failure to include in the grievance the fact that he had kidney stones and that
the defendant officer had invented the “rule” forbidding him from toilet access); Smith v. Gibson, 2008
WL 717590, *3 (E.D.Ark., Mar. 14, 2008) (grievance stating an officer “grabe me and rush me and said,
did I have what he said?” sufficiently exhausted plaintiff’s use of force claim); Holloway v. Correctional
Medical Services, 2007 WL 1445701 *4 (E.D.Mo., May 11, 2007) (holding plaintiff’s failure to state that
his claim was under the Americans with Disabilities Act was not a failure to exhaust absent a requirement
to that effect in the policy); Tyson v. Grant County Sheriff, 2007 WL 1395563, *4 (N.D.Ind., May 9,
2007) (holding prisoners who alleged that the jail was crowded and caused tension and stress and
dangerous conditions need not also have alleged that these violated the Constitution); Hendon v. Ramsey,
2007 WL 1120375, *5 (S.D.Cal., Apr. 12, 2007) (holding failure to state the dates of multiple similar
incidents was not a failure to exhaust); Harris v. Schriro, 2007 WL 865390, *6 (D.Ariz., Mar. 20, 2007)
(holding grievance seeking a modified kosher diet because of Crohn’s disease exhausted his claim for
denial of kosher diet even though the grievance didn’t say his concern was religious; prisoner need not
“list every nuance or theory of recovery he plans to raise in his § 1983 action”), reconsideration denied,
2007 WL 1219738 (D.Ariz., Apr. 24, 2007); Caines v. Hendricks, 2007 WL 496876, *6 (D.N.J., Feb. 9,
2007) (finding exhaustion where grievances inquired when plaintiff would get his MRI and complained
about shoulder pain and lack of adequate treatment, without specifically alleging misconduct in not
providing his MRI); Mark v. Imberg, 2005 WL 3201115, *7 (W.D.Wis., Nov. 28, 2005) (holding that a
grievance stating the prisoner was required to remove Wiccan magical seals from his cell door and walls
sufficiently exhausted a claim that the seals were taken and destroyed, since the gist of both versions was
that not having the seals interfered with his religious exercise); Tyler v. Bett, 2005 WL 2428036, *6
(E.D.Wis., Sept. 30, 2005) (holding that grievance stating the plaintiff was not notified that he had a law
library pass exhausted his claim that his pass was cancelled; “[d]efendants ask too much” in asserting
non-exhaustion), reconsideration denied, 2005 WL 3132198 (E.D.Wis., Nov. 21, 2005); Freeman v.
Berge, 2004 WL 1774737, *3 (W.D.Wis., July 28, 2004) (holding standard met by statement that plaintiff

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was “denied food because I did not have my light on, etc. This is using food as punishment. I have never
refused my meals.”).
Notes 556-557: Norwood v. Byers, 2013 WL 3330643, *10-11 (E.D.Cal., July 1, 2013) (holding
complaint about treatment of skin condition exhausted plaintiff’s claims that a nurse practioner failed to
follow the dermatologist’s instructions, misreported his medication compliance, and failed to refer him to
a specialist), report and recommendation adopted, 2013 WL 5156572 (E.D.Cal., Sept. 12, 2013);
Rhinehart v. Cate, 2013 WL 322533, *2 (N.D.Cal., Jan. 28, 2013) (“By complaining about lockdowns
and ask[ing] that they cease, the administrative appeals provided sufficient notice to prison officials that
Plaintiff was complaining about the conditions of the lockdowns, including not being allowed outdoors
for exercise.”); Mitchell v. Felker, 2012 WL 2521827, *4 (E.D.Cal., June 28, 2012) (complaint about
racially based lockdowns resulting in 24-hour, 7-day cell confinement for months, with no yard time,
during which plaintiff “did not receive adequate outdoor exercise, exacerbated a leg injury, and
experienced physical and psychological problems,” sufficiently exhausted Eighth and Fourteenth
Amendment claims about lockdowns), report and recommendation adopted, 2012 WL 3070084 (E.D.Cal.,
July 27, 2012); Hall v. Leclaire, 2011 WL 832839, *3 (S.D.N.Y., Mar. 4, 2011) (complaint that
wheelchair had broken and plaintiff had been injured, asking for compensation and a new wheelchair,
need not “use key phrases like ‘fear of future injury’ or ‘unsafe wheelchair’ in light of the fact that such
concerns were reasonably conveyed by the content of Plaintiff's grievance”); Griffin v. Miller, 2010 WL
4919774, *4 (S.D.Ohio, Nov. 2, 2010) (complaint about lack of toothpaste exhausted claim about lack of
dental care; “fair notice” standard applied), report and recommendation adopted, 2010 WL 4918771
(S.D.Ohio, Nov. 29, 2010); Bean v. Lucas, 2010 WL 817125, *5 (E.D.Tex., Mar. 3, 2010) (complaint of
“inappropriate contact” gave sufficient notice of claim of excessive force); Newson v. Steele, 2010 WL
2384928, *9-10 (E.D.Mich., Jan. 14, 2010) (complaint that a defendant “interfered” with plaintiff’s
medication exhausted a claim that he falsified plaintiff’s medical records and prevented a doctor from
increasing the dosage; allegations in suit need not “precisely match, sentence for sentence, the details in
the grievance”), objections overruled in pertinent part and sustained on other grounds, 2010 WL
2384924 (E.D.Mich., June 10, 2010); Lees v. Felker, 2009 WL 2824862, *4 (E.D.Cal., Sept. 1, 2009)
(grievance stating plaintiff was assaulted by staff, a supervisor ordered others to destroy his property, and
acted in reprisal gave sufficient notice to cover his claim that the supervisor assaulted him too); Green v.
Gunn, 2009 WL 1809932, *4 (W.D.N.Y., June 24, 2009) (grievance stating that officer “grabbed”
plaintiff sufficiently exhausted his use of force claim, even though his complaint alleged more serious
force); Gause v. Diguglielmo, 2009 WL 116959, *6 (E.D.Pa., Jan. 15, 2009) (grievance stating
“inhumane treatment and improper medical treatment here, which applies to my 3/29/06 accident in the
main kitchen. On 4/7/06 Dr. Zora [Zaro] said I'm moving at 50% of my motion [be]cause of the pain”
exhausted medical care claim against Dr. Zaro), aff’d, 339 Fed.Appx. 132 (3d Cir. 2009); Bailey v.
Shelton, 2009 WL 37615, *3 (D.Or., Jan. 6, 2009) (grievance about treatment of a skin condition causing
pain and discomfort was not inadequate because it did not identify the condition as scabies); Evans v.
Correctional Medical Services, 2008 WL 1805375, *3-4 (E.D.Ark., Apr. 18, 2008) (holding a grievance
stating that he submitted “numerous sick calls” about his hemorrhoids but did not see a doctor, and
discussed his medical needs with nurses and other staff members, and a correctional staff member said
she “couldn’t do anything” about his inappropriate work assignment sufficiently exhausted concerning his
medical care and work assignment); Thompson v. Stalder, 2008 WL 874138, *4 (M.D.La., Apr. 1, 2008)
(holding a general statement that plaintiff was “unable to practice [his] religious beliefs” did not exhaust
his specific claims to a meat-free diet and Rastafarian services and literature; it did not provide a fair
opportunity to address the claims later asserted in his suit); Carter v. Symmes, 2008 WL 341640, *4
(D.Mass., Feb. 4, 2008) (adopting administrative law rule that “claims not enumerated in an initial
grievance are allowed notwithstanding the exhaustion requirement if they ‘are like or reasonably related
to the substance of charges timely brought before [the agency]’”); Masterson v. Campbell, 2007 WL
2536934, *13-14 (E.D.Cal., Aug. 31, 2007) (holding plaintiff had exhausted his “broad retaliation claim”
even though he did not describe each alleged instance); Crawford v. Dretke, 2007 WL 172628, *7 (S.D.

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Tex., Jan. 11, 2007) (holding that a generalized statement sufficed to exhaust where the alleged violations
were repetitive and involved the same defendants), report and recommendation adopted, 2007 WL
784343 (S.D.Tex., Mar. 12, 2007), appeal dismissed, 265 Fed.Appx. 296 (5th Cir. 2008) (unpublished);
Watson v. Delgado, 2006 WL 1716869, *6-7 (S.D.N.Y., June 20, 2006) (holding a grievance that said an
officer beat the plaintiff up, threatened to poison him if he complained, and asked that “the matter” be
investigated, sufficiently exhausted plaintiff’s use of force claim notwithstanding defendants’ argument
that the force claim was only there to explain the threat); Underwood v. Mendez, 2006 WL 860142, *5
(M.D.Pa., Mar. 31, 2006) (holding that a prisoner who complained of a retaliatory transfer need not also
have mentioned in his grievance a falsified progress report and a conspiracy, since these were just factual
allegations supporting his retaliation claim); Tillis v. Lamarque, 2006 WL 644876, *7 (N.D.Cal., Mar. 9,
2006) (“In determining whether a claim has been exhausted, a court must consider whether a reasonable
investigation of the complaint would have uncovered the allegations now before it.”); Hooks v. Rich,
2006 WL 565909, *5 (S.D.Ga., Mar. 7, 2006) (“Section 1997e(a) is not intended to result in
‘fact-intensive litigation’ over whether every fact relevant to the cause of action was included in the
grievance.”); Mester v. Kim, 2005 WL 3507975, *2 (E.D.Cal., Dec. 22, 2005) (holding that a grievance
asserting that the plaintiff had a hernia and had not received necessary surgery sufficiently exhausted
without detailing the acts or omissions of individual defendants), report and recommendation adopted,
2006 WL 354654 (E.D.Cal., Feb. 15, 2006); Pineda-Morales v. De Rosa, 2005 WL 1607276, *6 (D.N.J.,
July 6, 2005) (holding that a complaint seeking increased accommodation for his religion, and stating that
it could not be accommodated by existing Protestant services and that their doctrines were incompatible,
sufficiently exhausted his claim for official recognition of his Apostolic sect even though it did not
mention the Religious Freedom Restoration Act or specifically request recognition); Lyerly v. Phillips,
2005 WL 1802972, *2 (S.D.N.Y., July 29, 2005) (holding that complaint of exposure to second-hand
smoke sufficiently exhausted without detail of the plaintiff’s medical condition, the relief sought, or the
names of the culprits); Parker v. Kramer, 2005 WL 1343853, *3 (E.D.Cal., Apr. 28, 2005) (holding
inmates need not “draft grievances with the precision of an attorney, laying out every fact, identifying
every defendant by name, and identifying which constitutional rights were violated by which actions or
omissions”); Davis v. Stanford, 382 F.Supp.2d 814, 819 (E.D.Va. 2004) (holding a claim of inadequate
medical care, “liberally construed,” was encompassed by a grievance concerning inadequate treatment for
the resulting pain), aff’d, 127 Fed.Appx. 680, 2005 WL 1100818 (4th Cir. 2005) (unpublished); Cassels v.
Stalder, 342 F.Supp.2d 555, 560 (M.D.La. 2004) (holding that disciplinary appeal from conviction for
“spreading rumors,” in which the prisoner stated that he had placed an advertisement “in seek of legal
help” and was “being retaliated against,” sufficiently exhausted his claims of denial of access to courts
and the right to seek counsel, retaliation, and vagueness and overbreadth of the disciplinary rule);
Hoffenberg v. Federal Bureau of Prisons, 2004 WL 2203479, *12 (D.Mass., Sept. 14, 2004) (holding that
a prisoner’s complaint that restrictions on his legal telephone calls interfered with his efforts to pursue
litigation to collect money owed him, so he could satisfy his restitution obligation, “comprehended” his
access to courts claim, notwithstanding defendants’ “overly technical” argument to the contrary); Skundor
v. Coleman, 2003 WL 22088342, *8 (S.D.W.Va., July 31, 2003) (holding that a grievance complaining
that strip searches observed “by other prisoners and passersby” violated his privacy sufficiently exhausted
a claim that opposite sex staff members observed the searches), report and recommendation adopted, 280
F.Supp.2d 524 (S.D.W.Va. 2003), aff’d, 98 Fed.Appx. 257, 2004 WL 1205718 (4th Cir.), `, 543 U.S.
1009 (2004); Casarez v. Mars, 2003 WL 21369255, *6 (E.D.Mich., June 11, 2003) (holding that
discrepancies in dates between grievance and complaint did not mean a failure to exhaust, since it was
clear that they referred to the same events); Sulton v. Wright, 265 F.Supp.2d 292, 298 (S.D.N.Y. 2003)
(stating “[i]t would be illogical to impose a higher technical pleading standard in informal prison
grievance proceedings than would be required in federal court”; “it is sufficient to present the “relevant
factual circumstances giving rise to a potential claim”; noting that this rule “has particular application to
the complex issues involved in medical care cases”); Baskerville v. Blot, 224 F.Supp.2d 723, 730
(S.D.N.Y. 2002) (holding that a grievance that mentioned an alleged assault by staff but asked for no
relief for it, while focusing on alleged deprivation of medical care, sufficed to exhaust as to the alleged

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assault); Gomez v. Winslow, 177 F.Supp.2d 977, 982 (N.D.Cal. 2001) (holding that allegations that
defendants failed to notify the plaintiff that he had tested positive for hepatitis C antibodies, to begin his
treatment timely, or to provide him with adequate information were “encompassed within Gomez’s claim
of inadequate medical care”); Irvin v. Zamora, 161 F.Supp.2d 1125, 1135 (S.D.Cal. 2001) (holding that
grievances that presented the facts giving rise to the claim, requested the identities of the responsible
officials, and requested officials to investigate “were sufficient under the circumstances to put the prison
on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement. As long
as the basic purposes of exhaustion are fulfilled, there does not appear to be any reason to require a
prisoner plaintiff to present fully developed legal and factual claims at the administrative level.”); Thomas
v. Zinkel, 155 F.Supp.2d 408, 413 (E.D.Pa. 2001) (holding it was enough for the prisoner to mention all
of his complaints at every stage of the proceeding, even if he was “more specific” about one claim than
the others); Williams v. Wilkinson, 122 F.Supp.2d 894, 899 (S.D.Ohio 2000) (rejecting an argument by
defendants that “each claim at each stage [of the grievance process] must parallel each and every claim in
the federal complaint.”).
Note 559: Monger v. Tilton, 2008 WL 3863696, *4-5 (E.D.Cal., Aug. 18, 2008) (statements
made by plaintiff during grievance interviews and acknowledged in the response to his grievance helped
show what was grieved), report and recommendation adopted, 2008 WL 4379180 (E.D.Cal., Sept. 25,
2008); Freeman v. Salopek, 2008 WL 743952, *4 (M.D.Fla., Mar. 19, 2008) (rejecting claim that
grievance was “undated, unclear, and vague” where final decisionmaker gave response addressing the
precise issue raised in the grievance); Carter v. Symmes, 2008 WL 341640, *5 (D.Mass., Feb. 4, 2008)
(issue not raised in the grievance, but spelled out in a timely letter from counsel, and actually investigated
by defendants, was exhausted); Holley v. California Dept. of Corrections, 2007 WL 586907, *6-8
(E.D.Cal., Feb. 23, 2007) (holding prisoner who complained about being required to cut his hair, asserting
religious discrimination at the first stage and gender discrimination at the last, and received a decision on
the merits, exhausted), report and recommendation adopted, 2007 WL 869956 (E.D.Cal., Mar. 22, 2007);
Ambriz v. Kernan, 2007 WL 214594, * 6 (E.D.Cal., Jan. 25, 2007) (noting that the “responses of the
reviewers flesh out the circumstances of which plaintiff was complaining,” finding exhaustion), report
and recommendation adopted, 2007 WL 869732 (E.D.Cal., Mar. 21, 2007); Baskerville v. Blot, 224
F.Supp.2d. 723, 730 (S.D.N.Y. 2002) (applying “time and opportunity” rationale to hold that plaintiff
exhausted as to issues that were actually investigated as a result of his grievance).
Note 567: Gravley v. Beard, 2010 WL 3829370, *2 (W.D.Pa., Aug. 31, 2010) (“Retaliation is a
separate claim and prisoners must raise a specific claim of retaliation in their prison grievance in order to
exhaust administrative remedies.”), report and recommendation adopted, 2010 WL 3829434 (W.D.Pa.,
Sept. 23, 2010); Thomas v. Pichardo, 2010 WL 3119623, *13 (S.D.Fla., June 2, 2010) (stating “the
essence of each claim . . . must have clearly been outlined and complained of in the prisoner's underlying
administrative grievances”), report and recommendation adopted, 2010 WL 3119544 (S.D.Fla., Aug. 3,
2010); Sowemimo v. Bader, 2010 WL 2803980, *2 (S.D.Ill., July 15, 2010) (plaintiff who “presented his
grievances about the propriety of his account charges, not their allegedly retaliatory nature” did not
exhaust retaliation claim); O'Roy v. Mares, 2010 WL 653579, *2 (E.D.Cal., Feb. 19, 2010); Thomas v.
Sheppard-Brooks, 2009 WL 3365872, *5 (E.D.Cal., Oct. 16, 2009), report and recommendation adopted,
2009 WL 4042876 (E.D.Cal., Nov. 20, 2009); Baker v. Liadacker, 2009 WL 3297497, *6 (N.D.Fla., Oct.
13, 2009); Parker v. Walker, 2009 WL 1209066, *3-4 (S.D.Ill., May 4, 2009); Green v. Rubenstein, 644
F.Supp.2d 723, 746 (S.D.W.Va. 2009); Brown v. Karlow, 2009 WL 700200, *2-3 (E.D.Cal., Mar. 16,
2009) (plaintiff who did not mention retaliatory motive until final grievance appeal did not exhaust
retaliation claim); Brown v. Austin, 2009 WL 613316, *5 (S.D.N.Y., Mar. 4, 2009); Douglas v. Caruso,
2008 WL 4534061, *9 (W.D.Mich., Sept. 30, 2008) (grievance alleging retaliation exhausted as to
retaliatory acts, including those that came after the grievance was filed); Wine v. Pollard, 2008 WL
4379236, *3 (W.D.Wis., Sept. 23, 2008) (prisoner must identify the retaliatory act and the protected
conduct in the grievance, though need not identify all defendants involved); Wilson v. Woodford, 2008

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WL 1970817, *3 (E.D.Cal., May 2, 2008), report and recommendation adopted, 2008 WL 2697547
(E.D.Cal., July 8, 2008); Dawson v. Norwood, 2007 WL 3302102, *9 (W.D.Mich., Nov. 6, 2007); Greene
v. North Kern State Prison, 2006 WL 3050822, *2 (E.D.Cal., Oct. 25, 2006); Curtis v. Solomon, 2006
WL 1653608, *4 (N.D.Fla., June 7, 2006); Lindell v. Casperson, 360 F.Supp.2d 932, 949 (W.D.Wis.
2005), aff’d, 169 Fed.Appx. 999 (7th Cir., Mar. 13, 2006), cert. denied, 549 U.S. 874 (2006); Scott v.
Gardner, 2005 WL 984117, *3-4 (S.D.N.Y., Apr. 28, 2005); Ellis v. Cambra, 2005 WL 2105039, *7
(E.D.Cal., Aug. 30, 2005), report and recommendation adopted, 2006 WL 547921 (E.D.Cal., Mar. 3,
2006); Parker v. Kramer, 2005 WL 1343853, *3 (E.D.Cal., Apr. 28, 2005) (holding retaliation allegation
must be made in grievance to give prison officials “fair notice” of the events that are later sued about,
even though inmates need not “draft grievances with the precision of an attorney, laying out every fact,
identifying every defendant by name, and identifying which constitutional rights were violated by which
actions or omissions”); Robins v. Atchue, 2006 WL 1283470, *4 (E.D.Cal., May 10, 2006) (holding
disciplinary appeal that did not mention retaliation could not exhaust a retaliation claim), report and
recommendation adopted, 2006 WL 1882940 (E.D.Cal., July 7, 2006).
Note 568: Knapp v. Ali, 2009 WL 2591255, *6 (E.D.Cal., Aug. 21, 2009) (if underlying events
are grieved, retaliation need not be pled because it is a legal theory), report and recommendation adopted
in pertinent part, rejected in part on other grounds, 2009 WL 3013243 (E.D.Cal., Sept. 17, 2009);
Barretto v. Smith, 2009 WL 1271984, *7 (E.D.Cal., Mar. 6, 2009) (“Plaintiff is not required to file a
separate internal grievance to put prison officials on notice of every possible theory of recovery or every
factual detail that he later discovers regarding the same incident.”), reconsideration denied, 2009 WL
1119513 (E.D.Cal., Apr. 24, 2009); Lugo v. Van Orden, 2008 WL 2884925, *2 (N.D.N.Y., July 23, 2008)
(plaintiff exhausted despite not specifically mentioning retaliation where he “raised the identical fact
pattern” in grievance and lawsuit); Cromer v. Braman, 2008 WL 907468, *13 (W.D.Mich., Mar. 31,
2008) (grievance alleging harassment that was considered on the merits need not have also alleged
retaliation); Daher v. Kasper, 2008 WL 553644, *4 (N.D.Ind., Feb. 26, 2008); El-Shaddai v. Wheeler,
2008 WL 410711, *5 (E.D.Cal., Feb. 12, 2008) (where the grievance form merely directs prisoners to
“describe the problem and the action requested,” the prisoner need not specify legal theories including
whether the motive was retaliatory), report and recommendation adopted, 2008 WL 892900 (E.D.Cal.,
Mar. 31, 2008); Reeder v. Doe 5, 507 F.Supp.2d 468, 482 n.16 (D.Del. 2007) (rejecting argument that
“plaintiff must submit a specific grievance complaining of retaliation. . . . There need be only a shared
factual basis, not perfect overlap, between a grievance and the complaint.”); Davison v. MacLean, 2007
WL 1520892, *6 (E.D.Mich., May 22, 2007) (holding prisoner should include “known and obviously
material facts” such as officer’s stated religious bias, but cannot be required to present information he
does not have at the time), reconsideration denied, 2007 WL 1806204 (E.D.Mich., June 21, 2007); Varela
v. Demmon, 491 F.Supp.2d 442, 448 (S.D.N.Y. 2007) (holding grievance need not include the word
“retaliation” if it states facts from which retaliation can be inferred); Jennings v. Huizar, 2007 WL
2081200, *4 (D.Ariz., July 19, 2007) (holding prisoner need not have alleged retaliation in his grievance;
alleging that act was done for an improper purpose was sufficient; plaintiff “not required to specifically
identify . . . theories of recovery in his inmate grievance”), aff’d, 315 Fed.Appx. 633 (9th Cir. 2009)
(unpublished).
Note 571: Gordon v. Stalder, 2007 WL 4976050, *4-5 (W.D.La., Dec. 27, 2007) (grievance
about inadequate medical care did not exhaust claim that certain treatments were afforded only to
Caucasian prisoners); Farrell v. Unit Staff, 2007 WL 3377077, *3 (W.D.Okla., Nov. 13, 2007); Sparks v.
Rittenhouse, 2007 WL 987473, *9 (D.Colo., Mar. 29, 2007); Williby v. Woodford, 2007 WL 611240, *5
(E.D.Cal., Feb. 27, 2007), report and recommendation adopted, 2007 WL 869017 (E.D.Cal., Mar. 20,
2007); Valienterbanales v. Robinson, 2006 WL 1540995, *2 (W.D.Va., May 31, 2006); Irvin v. Dormire,
2005 WL 998597, *1 (W.D.Mo., Apr. 18, 2005); Goldsmith v. White, 357 F.Supp.2d 1336, 1338-41
(N.D.Fla. 2005); Young v. Goord, 2002 WL 31102670, * 4 (E.D.N.Y., Sept. 3, 2002) (holding that a
prisoner who alleged in his grievance only that he had been disciplined for conduct that did not violate the

393

rules could not litigate an equal protection claim that he was disciplined for discriminatory reasons), aff’d
in part, vacated in part on other grounds, 67 Fed.Appx. 638, 2003 WL 21243302 (2d Cir. 2003).
Note 575: Lilly v. Smith, 2007 WL 1832040, *2 (C.D.Ill., June 25, 2007) (dismissing claim
about placement in restraint chair which was not mentioned in plaintiff’s use of force grievance); Malik v.
Sabree, 2007 WL 781640, *4 (D.S.C., Mar. 13, 2007) (holding grievance about Muslim feasts did not
exhaust a claim about Muslim fasts); Purvis v. Crosby, 2006 WL 1836034, *11 (N.D.Fla., June 30, 2006)
(holding that a grievance concerning the imposition and collection of liens on allegedly exempt funds did
not exhaust the issue of the failure to provide notice and a hearing prior to deducting funds from the
prisoner’s account); Belton v. Robinson, 2006 WL 231608, *3-4 (D.N.J., Jan. 30, 2006) (holding that an
appeal of a disciplinary conviction did not exhaust a claim that the officer injured the plaintiff during the
incident); Beltran v. O’Mara, 405 F.Supp.2d 140, 152 (D.N.H. 2005) (holding that complaints about
specific segregation conditions, such as lack of toilet paper, did not exhaust as to conditions in general or
conditions not mentioned in the grievances), on reconsideration, 2006 WL 240558 (D.N.H., Jan. 31,
2006); Henderson v. Sebastian, 2004 WL 1946398, *2-3 (W.D.Wis., Aug. 25, 2004) (holding that
complaint that the Program Director selected a Christian TV channel exhausted the plaintiff’s
Establishment Clause claim but not his Free Exercise claim that he was denied copies of Taoist books and
forced to submit to a Christian behavior modification program), modification denied, 2004 WL 2110773
(W.D.Wis., Sept. 21, 2004); Murray v. Artz, 2002 WL 31906464 (N.D.Ill., Dec. 31, 2002) (holding that
grievances about disciplinary conviction and excessive force, and later grievance about continuing
medical problems, did not exhaust as to medical care at the time of the use of force); Petty v. Goord, 2002
WL 31458240, *4 (S.D.N.Y., Nov. 4, 2002) (holding that grievance could not exhaust as to actions
subsequent to the filing of the grievance); Bey v. Pennsylvania Dept. of Corrections, 98 F.Supp.2d 650,
660 (E.D.Pa. 2000) (holding that appeal of disciplinary conviction did not exhaust as to medical care
claim or administrative custody status claim even if they “flowed proximately” from the alleged
misconduct incident); Cooper v. Garcia, 55 F.Supp.2d 1090, 1094-95 (S.D.Cal. 1999); Payton v. Horn, 49
F.Supp.2d 791, 796 (E.D.Pa. 1999) (exhaustion of disciplinary appeal did not exhaust as to separate
decision to keep plaintiff in administrative segregation after the completion of the disciplinary penalty, or
the unauthorized withdrawal of funds from his inmate account); Jenkins v. Toombs, 32 F.Supp.2d 955,
959 (W.D.Mich. 1999).
Note 577: Franklin v. Wedell, 2011 WL 4905736, *3 (E.D.Cal., Oct. 14, 2011) (holding
grievance about esophageal diverticuli didn’t exhaust claims about intestinal problems); Spencer v. Beard,
2011 WL 1085697, *6-7 (M.D.Pa., Mar. 21, 2011) (holding a passing reference to placement in “stripped
cell” did not exhaust complaint about cell conditions in grievance primarily about cell extraction and use
of force); Miller v. Taylor, 2011 WL 1045564, *4-5 (D.Del., Mar. 15, 2011) (grievance that described
assault by another prisoner but concluded with a request for “squashing of sick call cost” without
referring to a failure to protect did not exhaust latter claim); Smith-Bey v. CCA/CTF, 703 F.Supp.2d 1, 67 (D.D.C. 2010) (complaint of two cockroaches in food did not exhaust broad claim of unsanitary kitchen
conditions); Mauldin v. Nason, 2010 WL 3187047, *3 (E.D.Cal., Aug. 11, 2010) (holding grievance
about disciplinary charge arising from assault did not exhaust claim that staff did not intervene in assault);
Ross v. Thaler, 2010 WL 1064714, *1 (S.D.Tex., Mar. 18, 2010) (holding “grievances which may have
alluded to the incident in question but failed to raise the specific ground for relief” failed to exhaust);
Wilbert v. Quarterman, 647 F.Supp.2d 760, 766-67 (S.D.Tex. 2009) (where plaintiff’s timely grievance
mentioned that there were no seatbelts on his transport van, but he didn’t allege a deliberate indifference
claim and asked only for a copy of the accident report and continuing medical treatment, he did not
exhaust a claim about the failure to provide seatbelts); Harrison v. Watts, 609 F.Supp.2d 561, 571
(E.D.Va. 2009) (grievance challenging restrictions on Five Percenters alleging they pursue a “way of life”
did not exhaust claim that they are a religion), aff’d, 2009 WL 3634283 (4th Cir., Nov. 4, 2009), cert.
denied, 130 S.Ct. 3521 (2010); Smith v. Yarborough, 2008 WL 4877464, *9 (C.D.Cal., Nov. 7, 2008)
(grievance alleging denial of access to exercise yard did not exhaust claim of subsequent inability to use

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yard because of presence of gang members); Sims v. Baker, 2008 WL 1946273, *2-3 (E.D.Cal., May 1,
2008) (grievance about an assault by another prisoner did not exhaust complaint that staff members set
plaintiff up to be assaulted), report and recommendation adopted, 2008 WL 2544049 (E.D.Cal., June 23,
2008); McCollum v. California, 2007 WL 4390616, *1-2 (N.D.Cal., Dec. 13, 2007) (holding grievances
about lack of access to a Wiccan chaplain did not exhaust a claim that the policy of not paying Wiccan
chaplains was unconstitutional); Mobley v. Smith, 2007 WL 1650934, *4 (W.D.Mich., June 4, 2007)
(holding a grievance about failure to provide a kosher diet did not exhaust Eighth Amendment claim that
plaintiff lost weight as a result); Lunney v. Brureton, 2007 WL 1544629, *7 (S.D.N.Y., May 29, 2007)
(holding grievances alleging SHU inmates received too little milk and “healthy food items” did not
exhaust claims that the food was spoiled or otherwise posed a health risk), objections overruled, 2007 WL
2050301 (S.D.N.Y., July 18, 2007); Robinson v. Green, 2007 WL 1447871, *5 (D.S.C., May 11, 2007)
(holding “an oblique reference to high blood sugar buried in a grievance concerning the flu” did not
exhaust a claim that plaintiff was denied diabetic treatment); Slone v. Barklay, 2007 WL 505287, *3
(D.Ariz., Feb. 14, 2007) (complaint of inadequate medical care because of lack of staff gave sufficient
notice that his claim involved a staffing or budget issue); Robins v. Atchue, 2006 WL 1283470, *3
(E.D.Cal., May 10, 2006) (holding the “incidental mention” of strip searches in grievances concerning
inappropriate racial and harassing statements did not exhaust as to the searches), report and
recommendation adopted, 2006 WL 1882940 (E.D.Cal. July 7, 2006); Mark v. Imberg, 2005 WL
3201115, *7 (W.D.Wis., Nov. 28, 2005) (holding claim that was buried in discussion of another claim,
was not decided, and was not identified by the plaintiff in his grievance appeal was not exhausted).
Note 581: Nunez v. Hasty, 2006 WL 2589254, *7 (E.D.N.Y., Sept. 8, 2006) (holding injured
prisoner’s grievance asking for MRI and specialist examination exhausted more generally as to
inadequate medical care and deteriorating physical condition); Wilkerson v. Doughty, 2006 WL 2568213,
*3 (S.D.Ill., Sept. 5, 2006) (holding that request by a paraplegic for an eggcrate mattress exhausted his
complaint about bedsore treatment); Martin v. Alameida, 2006 WL 495997, *2 (E.D.Cal., Feb. 28, 2006)
(holding complaint about denial of medical care exhausted allegations that supervisors acquiesced in the
denial and did not train subordinates), report and recommendation adopted, 2006 WL 845516 (E.D.Cal.,
Mar. 30, 2006); Branch v. Brown, 2003 WL 21730709, *12 (S.D.N.Y., July 25, 2003) (holding that
although some aspects of plaintiff’s complaint might technically fall outside his grievance, dismissal for
non-exhaustion was improper because the gravamen of his complaint is that defendants failed and
continued to fail to acknowledge his medical restriction), judgment granted on other grounds, 2003 WL
22439780 (S.D.N.Y., Oct. 28, 2003); Sulton v. Wright, 265 F.Supp.2d 292, 298 (S.D.N.Y. 2003) (“Rigid
‘issue exhaustion’ appears inappropriate when the fundamental issue is one of medical care from the same
injury”); Gomez v. Winslow, 177 F.Supp.2d 977, 981-82 (N.D.Cal. 2001) (refusing to break down
complaint of inadequate medical treatment into separate claims of failure to timely diagnose, failure to
timely treat, and failure to inform); Torrence v. Pelkey, 164 F.Supp.2d 264, 278-79 (D.Conn. 2001)
(declining to require exhaustion of new issues disclosed in discovery that arose from the “same series of
events” concerning his medical care that he had exhausted).
Note 585: Morrison v. Carey, 2009 WL 3126497, *4-5 (E.D.Cal., Sept. 24, 2009) (grievance
against being housed with a chronic smoker despite plaintiff’s medical condition exhausted the claim that
this problem resulted from failure to train or supervise), report and recommendation adopted, 2009 WL
4931889 (E.D.Cal., Dec. 15, 2009); Ramos v. Monteiro, 2008 WL 4184644, *13 (C.D.Cal., Sept. 8,
2008) (claim of inadequate training does not set forth a separate claim but a theory of liability as to
certain defendants); Conyers v. Abitz, 2007 WL 2773763, *10-11 (E.D.Wis., Sept. 21, 2007) (holding
grievance alleging denial of Ramadan participation exhausted claim that one defendant failed to overrule
another defendant’s decision); Brown v. Runnels, 2006 WL 2849871, *4 (E.D.Cal., Oct. 3, 2006)
(declining to dismiss for non-exhaustion based on failure specifically to grieve that supervisory
defendants failed to rectify the problem); Martin v. Alameida, 2006 WL 495997, *2 (E.D.Cal., Feb. 28,
2006) (holding complaint about denial of medical care exhausted allegations that supervisors acquiesced

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in the denial and did not train subordinates), report and recommendation adopted, 2006 WL 845516
(E.D.Cal., Mar. 30, 2006).
Note 605: Hoffman v. Khatri, 2010 WL 3063293, *7 (S.D.Cal., Aug. 3, 2010) (where plaintiff
complained of inadequate care for back injury and asked for a cane, a specialist appointment, and pain
medication, his grievance exhausted as to his back problem generally, and not just to those items of
relief); McAdory v. Engelsgjerd, 2010 WL 1131484, *3 (E.D.Mich., Feb. 11, 2010) (where plaintiff
grieved the failure to treat his skin condition, the later discovery that he had cancer which would have
been discovered with proper treatment of the skin condition did not make his claim unexhausted; “That
plaintiff has more fully alleged the consequences of that failure to treat” does not mean his claim is
different.), report and recommendation adopted, 2010 WL 1132548 (E.D.Mich., Mar. 23, 2010); Voorhis
v. Gaetz, 2009 WL 2230763, *2 (C.D.Ill., July 22, 2009) (“The plaintiff gave sufficient notice of the
problem in his grievance—he needed medical treatment for hypoglycemia and was not getting it.” All
defendants are sued about deliberate indifference to that medical problem.); Ketzner v. Douglas, 2009
WL 1655004, *12 (E.D.Mich., June 11, 2009) (“As a general rule, ‘claims relating to an ongoing medical
condition arising before, as well as after, the relevant grievance was filed may be considered
exhausted.’”) (citations omitted); Mehari v. Cox, 2009 WL 1405019, *4 (E.D.Cal., May 19, 2009)
(“Prisoners are not required to file and exhaust a separate grievance each time they allegedly receive
inadequate medical care for an ongoing condition.”); Thomas v. Ghosh, 2009 WL 910183, *4 (N.D.Ill.,
Mar. 31, 2009) (“the plaintiff did not have to continue filing grievances each time he perceived his need
for medical care . . . met a new obstacle”); Martinez v. California, 2009 WL 649892, *16 (E.D.Cal., Mar.
11, 2009) (“The Court rejects Defendants' argument that Plaintiff was required to grieve each fact at every
turn in what were ongoing issues in order to satisfy the exhaustion requirement.” Plaintiff’s complaints
addressed accommodation of his quadriplegia.); Young v. Good, 2008 WL 4816474, *4 (W.D.Pa., Nov.
4, 2008) (where plaintiff filed at least five grievances about persistent failure to provide a medically
ordered diet, “[h]is failure to have filed a daily grievance” does not defeat his claim); Tatmon v. Hartley,
2009 WL 1748861, *6 (E.D.Cal., June 18, 2009) (similar to Lewis, infra), report and recommendation
adopted, 2009 WL 2941472 (E.D.Cal., Sept. 10, 2009); Coley v. Cassim, 2008 WL 2073949, *4-5
(E.D.Cal., May 14, 2008) (similar to Lewis, infra; the “argument for repeat exhaustion of the same
ongoing claim would require the court to impose on plaintiff a judicially-created rule similar to the
‘name-all-defendants’ rule rejected by the Supreme Court”; repeat exhaustion would not have increased
defendants’ awareness of plaintiff’s complaint), report and recommendation adopted, 2008 WL 2629882
(E.D.Cal., July 3, 2008); Gordon v. Stalder, 2007 WL 4976050, *4-5 (W.D.La., Dec. 27, 2007)
(grievance concerning Hepatitis B care exhausted as to matters occurring after the grievance involving
additional members of medical staff); Lewis v. Naku, 2007 WL 3046013, *4-5 (E.D.Cal., Oct. 18, 2007)
(holding grievances about ongoing medical problems exhausted even though they were filed before the
current defendants had treated the plaintiff; “. . . repeated exhaustion of the same grievance is unnecessary
to satisfy the PLRA exhaustion requirement”); Fischer v. Federal Bureau of Prisons, 2007 WL 2702341,
*6 (M.D.Fla., Sept. 14, 2007) (holding grievance concerning delayed and inadequate care for prostate and
kidney problems sufficiently exhausted, despite plaintiff’s not having filed additional grievances about
“current or future” issues); Basham v. Correctional Medical Services, Inc., 2007 WL 2481338, *9
(S.D.W.Va., Aug. 29, 2007) (holding a prisoner complaining of inadequate medical care leading to
amputation of his leg need not have separately grieved the denial of post-amputation rehabilitative
services); Hampton v. Sahota, 2007 WL 1449726, *6 & n.3 (E.D.Cal., May 15, 2007) (one grievance
complaining of inadequate post-surgical follow-up sufficed to exhaust; “repeat exhaustion” was not
required as plaintiff saw different practitioners); Allison v. Khoury, 2006 WL 1023426, *9 (E.D.Cal.,
Apr. 18, 2006) (“Plaintiff is not required to file additional grievances regarding an ongoing violation,” in
this case problems arising from his dialysis shunt), report and recommendation adopted, 2006 WL
1775391 (E.D.Cal., June 26, 2006); Davis v. Hyden, 2005 WL 3116641 *2 (D.Alaska, Nov. 21, 2005)
(holding that a grievance concerning “an ongoing situation involving a specific medical condition” may
exhaust as to events after the grievance); Tyler v. Bett, 2005 WL 2428036, *7 (E.D.Wis., Sept. 30, 2005)

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(holding that a prisoner who had exhausted once with respect to a complaint of insect infestation need not
complete exhaustion of a second grievance to litigate the issue; “a prisoner is not required to exhaust
consecutive complaints on the same issue as long as prison officials are sufficiently aware of the
problem”), reconsideration denied, 2005 WL 3132198 (E.D.Wis., Nov. 21, 2005).
Note 611: Jackson v. CDCR, 2010 WL 1611096, *4 (E.D.Cal., Apr. 21, 2010) (prisoner who
complained about policy of body searches by opposite sex staff exhausted as to similar post-grievance
incidents), report and recommendation adopted, 2010 WL 2195998 (E.D.Cal., May 27, 2010); Flanagan
v. Shipman, 2009 WL 4043063, *7 (N.D.Fla., Nov. 20, 2009) (where prisoner grieved failure to make
arrangements for Native American religious services, the fact that services later did not occur and were
taken off the schedule were to be expected and were encompassed by the grievance); Jefferson v.
Naiman, 2006 WL 3780537, *1 (N.D.Fla., Dec. 19, 2006) (holding prisoner who had grieved the decision
not to meet his religious diet requests did not have to grieve again when officials carried out their
decision); Freeman v. Berge, 2004 WL 1774737, *5 (W.D.Wis., July 28, 2004) (“Enforcement of the
[contrary] rule would make it impossible for prisoners to obtain full relief in cases involving ongoing
constitutional violations without filing additional lawsuits each time a new violation occurred because §
1997e(a) requires prisoners to seek an administrative remedy before they file a complaint in federal court.
. . . Such a result that would be both wasteful and contrary to the policy behind § 1983 and § 1997e(a).”);
Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis. 2000) (holding prisoners who had exhausted
concerning a regulation need not also exhaust with respect to each application of the regulation).
Note 623: Wade v. Cain, 2011 WL 612732, *2 (M.D.La., Jan. 13, 2011) (disciplinary appeal did
not exhaust plaintiff’s related complaint of staff sexual assault), report and recommendation adopted,
2011 WL 606842 (M.D.La., Feb. 11, 2011); Bennett v. Fischer, 2010 WL 5525368, *6 (N.D.N.Y., Aug.
17, 2010) (disciplinary appeal did not exhaust related religious exercise claim), report and
recommendation adopted, 2011 WL 13826 (N.D.N.Y., Jan. 4, 2011); Terrase v. Cain, 2008 WL 717737,
*2 (M.D.La., Mar. 17, 2008) (a disciplinary appeal did not exhaust a claim of failure to protect, since it
did not give officials adequate notice of that claim); Singh v. Goord, 520 F.Supp.2d 487, 497-98
(S.D.N.Y. 2007) (holding successful disciplinary appeal challenging discipline for refusing work contrary
to religious beliefs did not exhaust plaintiff’s challenge to the underlying disciplinary rule; a separate
grievance was required); Chavis v. Goord, 2007 WL 2903950, *9-10 (N.D.N.Y., Oct. 1, 2007) (holding
disciplinary appeal did not exhaust plaintiff’s claim for retaliation and interference with religious
exercise; noting case is “readily distinguishable” from due process challenges to hearing); Webster v.
Kurtz, 2006 WL 893606, *2 (D.Colo., Mar. 31, 2006) (holding that successful disciplinary appeal did not
exhaust claims of subsequent retaliation and refusal to reinstate visiting privileges; these should have been
grieved notwithstanding rule prohibiting grieving disciplinary convictions); Belton v. Robinson, 2006 WL
231608, *3-4 (D.N.J., Jan. 30, 2006) (holding that an appeal of a disciplinary conviction did not exhaust a
claim that the officer injured the plaintiff during the incident); Rodney v. Goord, 2003 WL 21108353, *6
(S.D.N.Y., May 15, 2003) (holding an allegation of false disciplinary charges had to be grieved in
addition to appealing the disciplinary conviction); Tookes v. Artuz, 2002 WL 1484391, *4 (S.D.N.Y.,
July 11, 2002) (holding that appeal of disciplinary conviction did not exhaust as to claim against officer
who allegedly wrote a false disciplinary report); Cherry v. Selsky, 2000 WL 943436, *7 (S.D.N.Y., July
7, 2000) (same as Tookes); Hattie v. Hallock, 8 F.Supp.2d 685, 689 (N.D.Ohio 1998) (holding that in
order to challenge a prison rule, the prisoner must not only appeal from the disciplinary conviction for
breaking it, but must also grieve the validity of the rule), judgment amended, 16 F.Supp.2d 834
(N.D.Ohio 1998).
Note 667: Downing v. Correction Medical Services Inc., 2009 WL 511849, *7 (W.D.Mich., Feb.
26, 2009) (naming some individuals plus all Bureau of Health Care personnel “throughout and down to
the institutional level for those who have been treating me over the last 20 months” sufficed); Heggie v.
Michigan Dept. of Corrections, 2008 WL 5459338, *5-7 (W.D.Mich., Nov. 26, 2008) (grievance against

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“health care” was “more than sufficient to put on notice any and all individuals and entities involved with
providing health care to prisoners” at the prison), report and recommendation adopted in pertinent part,
rejected in part, 2009 WL 36612 (W.D.Mich., Jan. 5, 2009); Young v. Good, 2008 WL 4816474, *4
(W.D.Pa., Nov. 4, 2008) (grievance identifying “food services” sufficiently identified Food Services
Supervisor, Cook Supervisor, and Deputy Warden who supervised food services); Austin v. Correctional
Medical Services, Inc., 2008 WL 4426342, *5 (W.D.Mich., Sept. 26, 2008) (grievance naming “the
Medical Services Department” sufficiently gave notice as to all health care providers at the prison), on
reconsideration in part on other grounds, 2008 WL 4911795 (W.D.Mich., Nov. 13, 2008); Stevenson v.
Michigan Dept. of Corrections, 2008 WL 623783, *11 (W.D.Mich., Mar. 4, 2008) (a policy requiring
plaintiff to provide “the facts” including “who” did not require naming all defendants; naming “health
care” exhausted against the private provider of medical care); Jackson v. Caruso, 2008 WL 828118, *4
(W.D.Mich., Feb. 12, 2008) (“library staff” sufficed to exhaust against individual members of the library
staff), report and recommendation adopted as modified on other grounds, 2008 WL 828116 (W.D.Mich.,
Mar. 26, 2008).
Note 758: Partee v. Grood, 2007 WL 2164529, *4 (S.D.N.Y., July 25, 2007) (declining to
dismiss where prisoner was told his issue was “beyond the purview” of the grievance program;
analogizing to the unclear rule in Giano), aff’d, 2009 WL 1582927 (2d Cir. 2009); Lawyer v. Gatto, 2007
WL 549440, *8 (S.D.N.Y., Feb. 21, 2007) (holding prisoner whose grievance was referred to the
Inspector General’s office was not obliged to wait until the IG’s investigation was concluded since the
rules did not say otherwise; it was the prison system’s responsibility to make such a requirement clear);
Martinez v. Weir, 2006 WL 2884775, *2 (D.Conn., Oct. 10, 2006) (refusing to dismiss, noting that the
plaintiff had exhausted twice in the face of a disappearing grievance and prison officials’ own procedural
mistakes); Barad v. Comstock, 2005 WL 1579794, *7-8 (W.D.N.Y., June 30, 2005) (holding allegation
that prison staff told plaintiff erroneously that his time to commence a grievance had lapsed while he was
hospitalized and bedridden constituted special circumstances); Roque v. Armstrong, 392 F.Supp.2d 382,
391 (D.Conn. 2005) (denying summary judgment to defendants where it appeared that neither the
prisoner nor the grievance system entirely followed the rules but the prisoner had received a response
from the Commissioner, the final grievance authority); Warren v. Purcell, 2004 WL 1970642, *6
(S.D.N.Y. Sept. 3, 2004) (holding “baffling” grievance response that left prisoner with no clue what to do
next was a special circumstance).
Note 760: Johnson v. Miller, 2009 WL 3763846, *3-4 (W.D.Okla., Nov. 10, 2009) (where
grievance was referred to the warden, who never responded, plaintiff reasonably relied on that response
and did not abandon the grievance process), aff’d, 387 Fed.Appx. 832 (10th Cir. 2010); Shaw v. Jahnke,
607 F.Supp.2d 1005, 1008-09 (W.D.Wis. 2009) (prisoner’s receipt of three contradictory decisions in
three attempts to exhaust meant remedy was unavailable); Miller v. Berkebile, 2008 WL 635552, *7-9
(N.D.Tex., Mar. 10, 2008) (unjustified refusal to process initial grievances made remedy unavailable;
court rejects argument that prisoners should have taken other steps not specified in the policy to get
around the grievance officer’s misconduct; PLRA law applied in § 2241 case); Crawford v. Berkebile,
2008 WL 323155, *7-8 (N.D.Tex., Feb. 6, 2008) (same); Monroe v. Beard, 2007 WL 2359833, *12-13
(E.D.Pa., Aug. 16, 2007) (holding the grievance process unavailable where prisoners were told to object
to certain searches through an Unacceptable Correspondence Form, and they would be notified of the
results of an investigation and then could file a grievance, but were not so notified), aff’d, 536 F.3d 198,
205 n.6 (3d Cir. 2008); Woods v. Carey, 2007 WL 2254428, *3 (E.D.Cal., Aug. 3, 2007) (holding
plaintiff exhausted where he could not complete the process because staff members refused to process his
grievance on improper grounds), vacated on other grounds, 2007 WL 2688819 (E.D.Cal., Sept. 13,
2007); Cooper v. Beard, 2007 WL 1959300, *5 (M.D.Pa., July 2, 2007) (where Request for Religious
Accommodation was a prerequisite for a grievance, and plaintiff did not get a timely response and had
moved on to the grievance process by the time he received a late response, court excuses plaintiff’s
procedural non-compliance in light of defendants’ noncompliance); Ray v. Jones, 2007 WL 397084, *10

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(W.D.Okla., Feb. 1, 2007) (holding plaintiff exhausted where in response to his complaint he was
repeatedly told that the matter had been turned over to Internal Affairs and where relief was granted in
that process); Woods v. Lozer, 2007 WL 173704, *3 (M.D.Tenn., Jan. 18, 2007) (holding a prisoner
exhausted when he appealed a decision that his use of force claim was not grievable because it was
mistakenly said to seek review of disciplinary procedures and punishments); Hernandez v. Schriro, 2006
WL 2989030, *4 (D.Ariz., Oct. 18, 2006) (finding special circumstances justifying failure to appeal
rejection of grievance where it was returned unprocessed because defendants mischaracterized it); Kinzey
v. Beard, 2006 WL 2829000, *10 (M.D. Pa. Sept. 1, 2006) (refusing to dismiss for non-exhaustion where
the failure to exhaust was caused by prison officials’ failure to follow their own rules); Almond v. Tarver,
468 F.Supp.2d 886, 896-97 (E.D.Tex. 2006) (finding exhaustion where plaintiff’s grievance was delayed
for investigation past his release date, he didn’t appeal once released, but filed suit after reincarceration; it
would be “particularly inequitable” to dismiss under these circumstances); Brady v. Halawa Correctional
Facility Medical Unit Staff, 2006 WL 2520607, *17-18 (D.Haw., Aug. 29, 2006) (holding prisoner
transferred while his grievance was pending exhausted where he “was inadvertently thwarted by the two
prisons’ confusion over the matter”); Scott v. California Supreme Court, 2006 WL 2460737, *7
(E.D.Cal., Aug. 23, 2006) (holding that a prisoner who had relied on officials’ misinformation and sought
relief in state court had exhausted, notwithstanding officials’ subsequent issuance of an untimely decision
which he did not appeal; “Prison officials cannot effectively thwart an inmate’s attempt to exhaust a claim
by failing to follow their own regulations and then later require him to begin the exhaustion process again
once they decide to follow the regulations.”); Fuller v. California Dept. of Corrections, 2006 WL
2385177, *3 (E.D.Cal., Aug. 17, 2006) (holding that a prisoner whose intermediate appeal was rejected
for “excessive verbiage” and failure to complete documents correctly was not shown to have further
available remedies because officials did not instruct him whether to resubmit a corrected appeal or appeal
to the next level if he wished to pursue the matter); Ouellette v. Maine State Prison, 2006 WL 173639,
*3-4 (D.Me., Jan. 23, 2006) (denying summary judgment to defendants where plaintiff’s failure to
exhaust was attributable to grievance staff’s procedural deviations), aff’d, 2006 WL 348315 (D.Me., Feb.
14, 2006); Dunmire v. DePasqual, 2005 WL 4050175, *1 (W.D.Pa., Oct. 21, 2005) (denying motion to
dismiss for non-exhaustion in light of plaintiff’s objections that prison officials had failed to comply with
their own procedures); Shaheed Muhammad v. Dipaolo, 393 F.Supp.2d 80, 97 (D.Mass. 2005) (“Having
failed to abide by the strictures of their own regulations, defendants should not be allowed to claim
plaintiff’s noncompliance as a bar.”).
Note 766: Cottrell v. Wright, 2010 WL 4806910, *6 (E.D.Cal., Nov. 18, 2010) (where plaintiff
gave his appeal to a nurse for filing, defendants failed to show that this was contrary to grievance rules),
report and recommendation adopted, 2011 WL 319080 (E.D.Cal., Jan. 28, 2011); Garner v. Richland
Parish Detention Center, 2010 WL 5140704, *5-6 (W.D.La., Nov. 4, 2010) (refusing to enforce grievance
requirements not in the written policy or any other place prisoners could be expected to see it), report and
recommendation adopted, 2010 WL 5140790 (W.D.La., Dec. 13, 2010); Ferguson v. Bizzario, 2010 WL
4227298, *6 (S.D.N.Y., Oct. 19, 2010) (time limit that appeared in internal grievance policy but was
shorter than the one in the inmate handbook could make the remedy unavailable to prisoners who relied
on the handbook); Hall v. Berdanier, 2010 WL 2262045, *3 (M.D.Pa., June 1, 2010) (time limit that
appeared in grievance policy but not in inmate handbook could not be enforced without evidence the
policy was available to the plaintiff); Davis v. Williams, 2010 WL 2330358, *1-2 (S.D.Ill., May 12,
2010) (plaintiff exhausted when he completed the steps prescribed by policy, notwithstanding that the
grievance body then “remanded” his grievance and a new decision was issued, where remand procedure
did not exist in the policy and plaintiff received no instructions as to what he could or should do further),
report and recommendation adopted, 2010 WL 2330354 (S.D.Ill., June 9, 2010); Reyes v. Ramos, 2010
WL 1241621, *3 (S.D.Ill., Mar. 23, 2010) (alleged grievance rule not found in the inmate orientation
manual could not be enforced); Burkett v. Marshall, 2009 WL 454133, *5-6 (S.D.Ga., Feb. 23, 2009)
(defendants failed to show that appeal procedure not in the inmate handbook was actuall available to
prisoners); Sims v. Rewerts, 2008 WL 2224132, *5-6 (E.D.Mich., May 29, 2008) (declining to dismiss

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where plaintiff failed to comply with a time limit that had been changed without notice); Cabrera v.
LeVierge, 2008 WL 215720, *5-6 (D.N.H., Jan. 24, 2008) (refusing to hold prisoners to rules and
procedures not described in inmate handbook); Lampkins v. Roberts, 2007 WL 924746, *3 (S.D.Ind.,
Mar. 27, 2007) (refusing to dismiss for missing a five-day time deadline which was not made known in
the materials made available to prisoners).
Note 783: Whitney v. Simonson, 2007 WL 3274373, *2 (E.D.Cal., Nov. 5, 2007) (dismissing
because plaintiff filed a new grievance rather than seeking reinstatement of his existing grievance; court
admits defendants’ approach is “hyper-technical” but holds Woodford requires dismissal), report and
recommendation adopted, 2007 WL 4591593 (E.D.Cal., Dec. 28, 2007), aff’d, 317 Fed.Appx. 690 (9th
Cir. 2009) (unpublished); Cadogan v. Vittitow, 2007 WL 2875464, *2-3 (E.D.Mich., Sept. 30, 2007)
(dismissing where grievance was rejected for “including extraneous information, going beyond the scope
of the issue being grieved”—by attaching 7 pages of information relating to requests for dental care,
medical information, and dental care standards, apparently relevant to claim); Cordova v. Frank, 2007
WL 2188587, * 6 (W.D.Wis., July 26, 2007) (holding that a prisoner who clearly had good cause for his
late grievance failed to exhaust because he didn’t explain the reason so officials could consider whether to
excuse his lateness); Chatman v. Johnson, 2007 WL 2023544, *6 (E.D.Cal., July 11, 2007) (dismissing
where prisoner re-submitted his appeal to Inmate Appeals Branch rather than to the appeals coordinator as
directed), report and recommendation adopted, 2007 WL 2796575 (E.D.Cal., Sept. 25, 2007);
Scarborough v. Cohen, 2007 WL 934594, *6 (N.D.Fla., Mar. 26, 2007) (dismissing for non-exhaustion
where plaintiff had filed an “inmate request form” rather than an “informal grievance” before formally
grieving); Hashiyah v. Wisconsin Dept. of Corrections, 2006 WL 2845701, *10 (E.D.Wis., Sept. 29,
2006) (dismissing for non-exhaustion where grievance was dismissed because plaintiff added his religious
name as well as his “incarcerated name”); McNeal v. Cabana, 2006 WL 2794337, *1 (N.D.Miss., Jan. 23,
2006) (dismissing for non-exhaustion because the plaintiff mailed his appeal directly to the appeal body
rather than using a request for services form).
Note 797: Mennick v. Smith, 2009 WL 1783505, *2 (D.Idaho, June 20, 2009); Riker v. Gibbons,
2009 WL 910971, *1 (D.Nev., Mar. 31, 2009) (defendants could not rely on “no multiple issues” rule
where they had decided the issues plaintiff’s grievance raised); Halpin v. David, 2009 WL 789684, *6
(N.D.Fla., Mar. 20, 2009); Solliday v. Spence, 2009 WL 559526, *10 (N.D.Fla., Mar. 2, 2009)
(defendants could not rely on untimeliness where grievance about sexual assault was not dismissed as
untimely, but was denied because the process could not provide the requested remedies of money
damages or reduction of sentence); Torrez v. McKee, 2008 WL 4534126, *7 (W.D.Mich., Sept. 30, 2008)
(where intermediate appeal was dismissed on procedural grounds, but final appeal addressed the merits,
plaintiff exhausted); Pasley v. Oliver, 2008 WL 4056552, *6 (W.D.Mich., Aug. 27, 2008) (plaintiff’s
failure to discuss issue informally with defendant before filing grievance was not a failure to exhaust
where officials decided the merits); Subil v. U.S. Marshal, 2008 WL 835712, *5 (N.D.Ind., Mar. 24,
2008) (declining to dismiss for non-exhaustion where grievance was not filed in the normal channels, but
the final reviewing authority accepted and responded to it); Broder v. Correctional Medical Services, Inc.,
2008 WL 704229, *2 (E.D.Mich., Mar. 14, 2008); Pierce v. Hillsborough County Dept. of Corrections,
2008 WL 215716, *6 (D.N.H., Jan. 24, 2008); Furnace v. Evans, 2008 WL 160968, *3-4 (N.D.Cal., Jan.
15, 2008); Trenton v. Arizona Dept. of Corrections, 2008 WL 169642, *4 (D.Ariz., Jan. 14, 2008); Baker
v. Vanderark, 2007 WL 3244075, *7-8 (W.D.Mich., Nov. 1, 2007) (citing Woodford “proper exhaustion”
holding as requiring officials to raise procedural defects timely); Riley v. Hawaii Dept. of Public Safety,
2007 WL 3072777, *4-6 (D.Haw., Oct. 17, 2007) (holding prisoners complaining of sexual assault who
completed the emergency grievance procedure as instructed, and whose complaints were processed
through it, had exhausted despite not also completing the standard grievance process); Odighizuwa v.
Strouth, 2007 WL 1170640, *4 (W.D.Va., Apr. 17, 2007), aff’d, 261 Fed.Appx. 498 (4th Cir. 2008)
(unpublished); Ellis v. Albonico, 2007 WL 809804, *4 (E.D.Cal., Mar. 15, 2007) (where defendants
couldn’t locate plaintiff’s alleged first level grievance, but the warden said his complaint would be

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investigated regardless, the requirement to submit a first level grievance was waived), report and
recommendation adopted, 2007 WL 954727 (E.D.Cal., Mar. 29, 2007); Strope v. Collins, 2006 WL
3390393, *3 (D.Kan., Nov. 22, 2006); Jones v. Stewart, 457 F.Supp.2d 1131, 1134-37 (D.Nev. 2006);
Kretchmar v. Beard, 2006 WL 2038687, *5 (E.D.Pa., July 18, 2006) (“When the merits of a prisoner’s
claim have been fully examined and ruled upon by the ultimate administrative authority, prison officials
can no longer assert the defense of failure to exhaust, even if the inmate did not follow proper
administrative procedure.”).
Note 813: Thomas v. Hernandez, 2012 WL 4496826, *3 (S.D.Cal., Sept. 28, 2012) (rejecting
argument that rule stating appeal must be “forwarded to” the appeals coordinator meant it must be “filed
with” the appeals coordinator by the prisoner); Rodriguez v. Miramontes, 2012 WL 1983340, *6 (D.Ariz.,
June 4, 2012) (rejecting defendants’ claim that “working days” include Saturday and Sunday for purposes
of determining timeliness); Bishop v. McLaughlin, 2012 WL 1029499, *5 (M.D.Ga., Mar. 26, 2012)
(declining to dismiss where grievance with attached front-and-back Witness Statement form was rejected
under rule prohibiting attaching more than one page); Mark v. Jackson, 2012 WL 1035879, *4-5
(W.D.Okla., Mar. 12, 2012) (declining to dismiss where grievance appeal was dismissed for using an
outdated form, where the policy did not require use of the most current form and defendants identified no
deficiencies in what the plaintiff submitted), report and recommendation adopted, 2012 WL 1035761
(W.D.Okla., Mar. 28, 2012); Clark v. Jacobs, 2012 WL 579429, *3 (D.Md., Feb. 21, 2012) (declining to
dismiss for non-exhaustion where grievance body erroneously rejected grievance as duplicative of prior
grievance), aff’d, 474 Fed.Appx. 197 (4th Cir. 2012) (unpublished); Reeves v. Salisbury, 2012 WL
3206399, *5-6 (E.D.Mich., Jan. 30, 2012) (similar to Lafountain v. Martin, supra; stating “but the Court
is not required to blindly accept the state's application of the procedural rule”), report and
recommendation adopted in pertinent part, rejected in part on other grounds, 2012 WL 3151594
(E.D.Mich., Aug. 2, 2012); Johnson v. Meier, 842 F.Supp.2d 1116, 1118-19 (E.D.Wis. 2012) (rejecting
finding that plaintiff failed to raise a single clearly identified issue); Calloway v. Byrd, 2011 WL
7172207, *4 (D.S.C., Oct. 18, 2011) (declining to dismiss where defendants claimed that grievance was
deemed abandoned because the plaintiff was masturbating when they sought to serve the response, absent
a policy requiring such result, or a request and refusal to the plaintiff to stop and accept the response),
report and recommendation adopted, 2012 WL 405691 (D.S.C., Feb. 8, 2012); Halloum v. Ryan, 2011
WL 4571683, *10 (D.Ariz., Oct. 4, 2011) (holding grievance body “improperly screened” plaintiff’s
grievance for failure to attach necessary documents, where the grievance on its face included the
necessary documents); Chizum v. Marandet, 2011 WL 611895, *3-5 (N.D.Ind., Feb. 15, 2011) (holding
rejection of grievance for failure to attempt informal resolution was contrary to administrative record;
“Where prison officials render a grievance remedy ‘unavailable’ by mishandling a prisoner's grievance,
the inmate is excused from the exhaustion requirement.”); Williams v. Cate, 2011 WL 444788, *10-11
(E.D.Cal., Feb. 8, 2011) (rejecting grievance body’s conclusion that plaintiff was improperly trying to
change the issue on appeal), report and recommendation adopted in pertinent part, rejected on other
grounds, 2011 WL 1121965 (E.D.Cal., Mar. 24, 2011); Sampson v. Ozmint, 2010 WL 4929849, *7
(D.S.C., Nov. 2, 2010) (rejecting grievance finding that plaintiff had not made sufficient efforts to resolve
his problem informally), aff’d, 2010 WL 4930996 (D.S.C., Nov. 30, 2010); Roberson v. Torres, 2010 WL
3842376, *5 (E.D.Mich., July 19, 2010) (rejecting grievance findings that plaintiff had failed to resolve
his complaints informally), report and recommendation adopted, 2010 WL 3834630 (E.D.Mich., Sept.
27, 2010); Henderson v. Phillips, 2010 WL 3894574, *2 (N.D.Ind., Sept. 29, 2010) (rejecting finding that
plaintiff did not indicate efforts at informal resolution, where the record plainly showed otherwise); Jones
v. White, 2010 WL 1382109, *4-5 (N.D.Ind., Mar. 30, 2010) (holding remedy was made unavailable by
procedural rejection of grievance that was unsupported by the grievance record), reconsideration denied,
2011 WL 1296755 (N.D.Ind., Mar. 31, 2011); Bowers v. Burnett, 2009 WL 7729553, *9 (W.D.Mich.,
July 27, 2009) (rejecting grievance body’s determination that grievance was duplicative and was about
the rejection of another grievance; finding claim exhausted); Banks v. Cox, 2009 WL 1505579, *2
(W.D.Wis., May 28, 2009) (rejecting finding that plaintiff didn’t appeal where plaintiff averred that he

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mailed his appeal, rejecting argument that plaintiff must “state that the appeal was mailed in an envelope
with adequate prepaid postage properly addressed to the CCE”); Andrews v. Cervantes, 2009 WL
800915, *6 (E.D.Cal., Mar. 25, 2009) (holding rejection of grievance because it contained the word
“moron” was improper under defendants’ grievance policy); Price v. Kozak, 569 F.Supp.2d 398, 407
(D.Del. 2008) (holding plaintiff’s grievances timely despite their rejection as late); Fosselman v. Evans,
2008 WL 4369984, *2 (N.D.Cal., Sept. 24, 2008) (rejecting decision that plaintiff failed to show there
had been an adverse effect on his welfare; a prison memo restricted his privileges); Moton v. Cowart,
2008 WL 2117120, *6 (M.D.Fla., May 19, 2008) (rejecting decision that plaintiff’s complaint was not
grievable, and an appeal decision that it must be re-commenced at the facility, as contrary to prison
system’s own policy); Shoucair v. Warren, 2008 WL 2033714, *7-8 (E.D.Mich., May 9, 2008) (rejecting
decision that grievance failed to identify a policy violation, since the grievance rules did not require it,
and that decision was vague, since it set forth basic facts and defendants failed to follow their rules
requiring investigation of such complaints); Johnson v. Correctional Medical Services, Inc., 2008 WL
878767, *5 (W.D.Mich., Mar. 3, 2008) (rejecting officials’ decision that grievance was duplicative);
Elliott v. Jones, 2008 WL 420051, *4-5 (N.D.Fla., Feb. 12, 2008) (refusing to dismiss where defendants
rejected plaintiff’s emergency grievance, which the court concludes met the standards, and then rejected
his regular grievance for no apparent reason, and rejected his appeal for writing outside the lines); Gatlin
v. Nichols, 2007 WL 4219170, *2 (E.D.Cal., Nov. 29, 2007) (finding that plaintiff’s grievance was
improperly screened out as duplicative, and plaintiff exhausted), report and recommendation adopted,
2008 WL 191989 (E.D.Cal., Jan. 23, 2008); Bates v. Elwood, 2007 WL 2809787, *7 (E.D.Ky., Sept. 25,
2007) (finding that plaintiff had exhausted where claim to the contrary resulted from Bureau of Prisons’
error); Rollins v. Magnusson, 2007 WL 2302141, *5 (D.Me., Aug. 9, 2007) (rejecting denial of grievance
as untimely, since plaintiff was “clearly grieving the continued confiscation of his legal material”);
Woods v. Carey, 2007 WL 2254428, *3 (E.D.Cal., Aug. 3, 2007) (holding grievance decision saying
plaintiff had not complied with requirement to try to solve his problem informally was factually
incorrect), vacated on other grounds, 2007 WL 2688819 (E.D.Cal., Sept. 13, 2007); Chatman v. Johnson,
2007 WL 2023544, *6 (E.D.Cal., July 11, 2007) (rejecting denial of grievance for failure to attempt
informal resolution, since it fell into categories not requiring informal resolution), report and
recommendation adopted, 2007 WL 2796575 (E.D.Cal., Sept. 25, 2007); Mayes v. University of TX
Medical Branch, 2007 WL 1577670, *3 (W.D.Tex., May 30, 2007) (refusing to be bound by dismissal of
grievance for failing to name the medication plaintiff said he was being denied, where the court found that
the information appeared in the response to the initial grievance); Wade v. Nardolillo, 2007 WL 1575415,
*3 (E.D.Pa., May 29, 2007) (holding grievance appeal timely despite its rejection on contrived and
hypertechnical grounds); Woods v. Lozer, 2007 WL 173704, *3 (M.D.Tenn., Jan. 18, 2007) (holding
prison personnel had misapplied their rules in holding a use of force complaint non-grievable on the
ground that it sought to challenge disciplinary procedures or outcomes); Neighbors v. Holtorf, 2007 WL
61008, *2 (E.D.Cal., Jan. 8, 2007) (holding prisoner had exhausted when grievance system erroneously
refused to consider his grievance on the mistaken ground that it duplicated an earlier grievance), report
and recommendation adopted, 2007 WL 956642 (E.D.Cal., Mar. 29, 2007); George v. Smith, 2006 WL
3751407, *5-6 (W.D.Wis., Dec. 12, 2006) (holding that timeliness of grievance appeals must be assessed
based on when they were sent, not when they arrived, despite grievance body’s contrary interpretation of
its own rule), aff’d, 507 F.3d 605 (7th Cir. 2007); Thomas v. Hickman, 2006 WL 2868967, *9-10
(E.D.Cal., Oct. 6, 2006) (allowing case to go forward even though grievance was untimely, since the
prisoner did not know of her injury until long after the grievance deadline had passed); Wilkerson v.
Beitzel, 2005 WL 5280675, *3 n.4 (D.Md., Nov. 10, 2005) (holding plaintiff exhausted despite rejection
of his grievances on the ground that challenges to prison policy must be grieved within 30 days of arrival
at the prison, even if the complaint is ongoing), aff’d, 184 Fed.Appx. 316 (4th Cir. 2006); O’Connor v.
Featherston, 2002 WL 818085, *2 (S.D.N.Y., Apr. 29, 2002) (refusing to be bound by rejection of request
to file a late grievance where the plaintiff had been kept in medical restriction for the 14 days in which he
was required to file a timely grievance); Graham v. Perez, 121 F.Supp.2d 317, 322 & n.9 (S.D.N.Y. 2000)
(holding that the court will independently determine whether a prisoner has presented “mitigating

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circumstances” under grievance rules for late grievance).
Note 815: Hinton v. Bowers, 2011 WL 3329641, *2-4 (W.D.Okla., July 18, 2011) (holding a
prisoner who did not follow instructions failed to exhaust even if the instructions were wrong), report and
recommendation adopted, 2011 WL 3329706 (W.D.Okla., Aug. 3, 2011), aff’d, 458 Fed.Appx. 755 (10th
Cir. 2012); Davis v. Corrections Corp. of America, 2011 WL 1304639, *4 (E.D.Okla., Mar. 31, 2011);
Rivera v. Pennsylvania Dept. of Corrections, 2010 WL 339854, *3 (W.D.Pa., Jan. 22, 2010) (prisoner
who disregarded instruction to comply with a two-page limit failed to exhaust), aff’d, 388 Fed.Appx. 107
(3d Cir. 2010), cert. denied, 131 S.Ct. 978 (2011); Rivera v. Pennsylvania Department of Corrections,
2009 WL 3447388, *5 (W.D.Pa., Oct. 21, 2009) (prisoner who appealed rather than follow instructions to
conform to two-page limit on statement of facts in grievances failed to exhaust); Nunez v. Federal Bureau
of Prisons, 2008 WL 5096001, *3 (E.D.Ky., Dec. 1, 2008) (prisoner who appealed rather than following
directions to comply with rules did not exhaust); Abdulhaseeb v. Calbone, 2008 WL 904661, *15
(W.D.Okla., Apr. 2, 2008) (holding prisoner failed to exhaust when he did not comply with demand to
supplement his grievance with information about additional grievances he had filed after the one in
question, despite his belief that the demand was unreasonable); Skipper v. South Carolina Dept. of
Corrections, 2008 WL 608575, *4 (D.S.C., Mar. 4, 2008); Keeton v. Forsythe, 2008 WL 436945, *2
(E.D.Cal., Feb. 14, 2008) (plaintiff failed to exhaust when he did not comply with instruction to resubmit
his grievance because his writing was too small to read), report and recommendation adopted, 2008 WL
780700 (E.D.Cal., Mar. 20, 2008); Whitney v. Simonson, 2007 WL 3274373, *2 (E.D.Cal., Nov. 5, 2007)
(dismissing claim of prisoner who filed a new grievance rather than trying to reinstate the old one as
instructed; court concedes this approach is “hyper-technical” but required by Woodford v. Ngo), report
and recommendation adopted, 2007 WL 4591593 (E.D.Cal., Dec. 28, 2007), aff’d, 317 Fed.Appx. 690
(9th Cir. 2009) (unpublished); Richardson v. Llamas, 2007 WL 2389835, *3 (E.D.Cal., Aug. 20, 2007)
(holding plaintiff did not exhaust where he failed to cooperate with an interview concerning his complaint
of sexual abuse), report and recommendation adopted, 2007 WL 2904087 (E.D.Cal., Oct. 1, 2007); Cyrus
v. Shepard, 2007 WL 2155527, *7-8 (M.D.Pa., July 26, 2007) (holding a plaintiff who used a “sensitive
grievance” procedure, was told to use the regular procedure, and didn’t, failed to exhaust); Walton v.
Ayon, 2007 WL 1792309, *2 (E.D.Cal., June 19, 2007), report and recommendation adopted, 2007 WL
3170679 (E.D.Cal., Oct. 26, 2007); Fleming v. Geo Group, Inc., 2007 WL 162535, *2 (W.D.Okla., Jan.
18, 2007) (dismissing for non-exhaustion where prisoner ignored instructions to submit a legible copy of
his grievance and appealed twice instead); Faysom v. Timm, 2005 WL 3050627, *2-3 (N.D.Ill., Nov. 9,
2005) (holding plaintiff who did not respond to Administrative Review Board’s request for more
information and clarification failed to exhaust); Jones v. Doty, 2005 WL 2860971, *2 (E.D.Tex., Oct. 28,
2005) (holding a prisoner who used the “sensitive grievance” procedure and was told he should use the
regular grievance procedure, but did not, failed to exhaust, even though he appealed the denial of the
“sensitive grievance”); Robinson v. Shannon, 2005 WL 2416116, *5 (M.D.Pa., Sept. 30, 2005) (holding
that prisoner who was instructed on appeal to attach the Superintendent’s response did not exhaust where
he failed to respond and say there was no response); Hazleton v. Alameida, 358 F.Supp.2d 926, 935
(C.D.Cal. 2005) (holding prisoner who failed to follow instructions did not exhaust); Colon v. Harvey,
344 F.Supp.2d 896, 898 (W.D.N.Y. 2004) (holding plaintiff who sent his grievance appeal directly to the
Superintendent, and then disregarded an instruction to contact the Grievance Clerk to appeal, failed to
exhaust); Chase v. Peay, 286 F.Supp.2d 523, 529 (D.Md. 2003) (holding a prisoner who neither followed
directions to resubmit a separate grievance for each issue, nor appealed that direction, failed to exhaust),
aff’d, 98 Fed.Appx. 253 (4th Cir. 2004); Jones v. H.H.C., Inc., 2003 WL 1960045, *4 (S.D.N.Y., Apr. 8,
2003) (prisoner who made an “end-run around the grievance system” by going directly to “Inmate
Counsel” and Warden did not exhaust); Kaiser v. Bailey, 2003 WL 21500339, *5-6 (D.N.J., July 1, 2003)
(holding that a prisoner who failed to follow explicit instructions as to how to comply with complaint
procedures failed to exhaust even under the “substantial compliance” standard); Wallace v. Burbury, 2003
WL 21302947, *4 (N.D.Ohio, June 5, 2003) (“. . . where a prisoner is notified that a document relating to
his grievance has been lost or misfiled, failure to refile constitutes a failure to exhaust. . . .”); Jeanes v.

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U.S. Dept. of Justice, 231 F.Supp.2d 48, 50-51 (D.D.C. 2002) (holding that a prisoner who bypassed the
initial steps of the process, and then ignored instructions to use them because his grievance did not meet
the standards for bypassing them, failed to exhaust); Ford v. Page, 2002 WL 31818996, *3 (N.D.Ill., Dec.
13, 2002) (holding that a plaintiff who refused directions to grieve one issue at a time failed to exhaust);
Saunders v. Goord, 2002 WL 31159109, *4 (S.D.N.Y., Sept. 27, 2002) (holding that a prisoner who
refused to put his commitment name on the grievance failed to exhaust); Barkley v. Brown, 2002 WL
1677709, *3 (N.D.Cal., July 2002) (holding that prisoner who withheld cooperation with grievance
system by refusing to be interviewed and to sign necessary documents had not exhausted); Newell v.
Angelone, 2002 WL 378438, *6 (W.D.Va., Mar. 7, 2002) (holding that failure to follow instructions and
file a separate grievance for each issue was a failure to exhaust), aff’d, 2003 WL 22039201 (4th Cir.
2003) (unpublished).
Note 838: Thompson v. Worcester County, 2011 WL 4829972, *3 (D.Mass., Oct. 11, 2011)
(rejecting grievance body’s finding of untimeliness based on apparent mis-count of days); Edwards v.
Schrubbe, 807 F.Supp.2d 809, 812-13 (E.D.Wis. 2011) (rejecting grievance body’s finding of
untimeliness of grievance about continuing violation); Vasquez v. Shartle, 2011 WL 1004934, *2-3
(N.D.Ohio, Mar. 18, 2011) (relying on “prison mailbox” rule, rather than grievance body’s interpretation
of exhaustion rule, to assess timeliness; case is habeas petition but construction of regulations should be
the same as in a civil action); Killebrew v. Jackson, 2011 WL 976545, *7 (E.D.Wis., Mar. 17, 2011)
(holding grievance was timely where grievance officials rejected carbon copy, told plaintiff to submit the
original, and declared it untimely when he promptly did so); Williams v. Cate, 2011 WL 444788, *8
(E.D.Cal., Feb. 8, 2011) (same as Williams v. Franklin), report and recommendation adopted in part,
rejected in part on other grounds, 2011 WL 1121965 (E.D.Cal., Mar. 24, 2011); Riggs v. MacDonald,
2011 WL 534014, *3 (D.Mont., Jan. 25, 2011) (same as Williams v. Franklin), report and
recommendation adopted, 2011 WL 534038 (D.Mont., Feb. 15, 2011); Barker v. Belleque, 2011 WL
285228, *4 (D.Or., Jan. 26, 2011) (holding timeliness of medical care complaint should have been
measured from denials of care complained of, not from onset of condition); Schadel v. Evans, 2010 WL
2696456, *2-3 (C.D.Ill., July 7, 2010) (holding timeliness of grievance appeal was determined by prison
mailbox rule, not date of receipt at destination); Johnson v. Rush, 2010 WL 500445, *5 (M.D.Pa., Feb. 5,
2010) (declining to credit grievance decision dismissing as untimely where the record did not show when
he filed it or when he received the previous determination); Davis v. Hedgpeth, 2010 WL 308035, *3
(E.D.Cal., Jan. 19, 2010) (declining to dismiss for non-exhaustion where court concluded that handing an
appeal to an officer for mailing constituted forwarding it to the appeals coordinator under prison rules),
report and recommendation adopted, 2010 WL 890495 (E.D.Cal., Mar. 10, 2010); Underwood v.
Correctional Medical Services, 2010 WL 1064400, *6 (E.D.Mich., Jan. 13, 2010) (independently
calculating timeliness of grievance, rejecting finding that it was untimely), report and recommendation
adopted, 2010 WL 1064149, *2 (E.D.Mich., Mar. 19, 2010) (stating “an erroneous determination of the
timeliness of a grievance appeal by administrative authorities does not require the court to make the same
erroneous determination”); Williams v. Hickman, 2009 WL 2379979, *3-5 (E.D.Cal., July 30, 2009)
(declining to dismiss for non-exhaustion where plaintiff provided a sworn statement indicating that he had
mailed his appeal timely, and defendants produced no contrary evidence; rejecting argument that where
plaintiff did not date the appeal, he could not prove when it was sent); Fox v. Rodgers, 2009 WL
1508429, *3 (E.D.Mich., May 29, 2009) (rejecting grievance body’s finding of untimeliness where
plaintiff declared under penalty of perjury that he had mailed it timely, and rules referred to date of
mailing and not date of receipt); Barretto v. Smith, 2009 WL 1271984, *6 (E.D.Cal., Mar. 6, 2009)
(holding rejection as untimely was not dispositive where prisoner had been hospitalized and then in the
prison infirmary in a condition of pain and discomfort during the relevant period), reconsideration denied,
2009 WL 1119513 (E.D.Cal., Apr. 24, 2009); Price v. Kozak, 569 F.Supp.2d 398, 407 (D.Del. 2008)
(holding plaintiff’s grievances timely despite their inexplicable rejection as late); Fosselman v. Evans,
2008 WL 4369984, *2 (N.D.Cal., Sept. 24, 2008) (same); Kelley v. DeMasi, 2008 WL 4298475, *4
(E.D.Mich., Sept. 18, 2008) (where grievance response told plaintiff to wait 7-10 days to learn the

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medical provider’s decision about his care, the 10-day appeal deadline should run from that decision,
despite grievance body’s finding of untimeliness); Paynes v. Runnels, 2008 WL 4078740, *7 (E.D.Cal.,
Aug. 29, 2008) (refusing to dismiss where highest-level dismissal as untimely was contrary to grievance
rules in light of intermediate decision reaching the merits), report and recommendation adopted, 2008
WL 4464828 (E.D.Cal., Sept. 30, 2008); Harbison v. Little, 2007 WL 6887552, *2 (M.D.Tenn., July 19,
2007) (holding challenge to lethal injection protocol was timely based on date of its disclosure to plaintiff,
rather than on earlier events before the plaintiff had access to the protocol); Ashker v. Schwarzenegger,
2007 WL 1725417, *6 (N.D.Cal., June 14, 2007) (denying summary judgment where defendants said
plaintiff’s grievance was untimely but plaintiff said it was timely measured from his receipt of the
decision at issue), amended on reconsideration on other grounds, 2007 WL 2781273 (N.D.Cal., Sept. 20,
2007); George v. Smith, 2006 WL 3751407, *5-6 (W.D.Wis., Dec. 12, 2006) (holding that timeliness of
grievance appeals must be assessed based on when they were sent, not when they arrived, citing “prison
mailbox” rule, despite grievance body’s contrary interpretation of its own rule), aff’d on other grounds,
507 F.3d 605 (7th Cir. 2007); Thomas v. Hickman, 2006 WL 2868967, *9-10 (E.D.Cal., Oct. 6, 2006)
(holding that a prisoner had no available remedy where she did not know of the wrong within the 15-day
time limit and officials dismissed her grievances as untimely).
Note 844: Ortega v. Felker, 2009 WL 1582850, *5 (E.D.Cal., June 4, 2009) (declining to dismiss
for non-exhaustion where untimeliness of appeal resulted from the grievance decision’s being provided
after the appeal deadline had expired), report and recommendation adopted, 2009 WL 2241804
(E.D.Cal., July 27, 2009); Petrucelli v. Hasty, 605 F.Supp.2d 410, 421-22 (E.D.N.Y. 2009) (holding
grievance about SHU placement was timely where defendants delayed in providing him both with
grievance forms and with a statement of why he had been placed in SHU), reconsideration denied, 2010
WL 455002 (E.D.N.Y., Feb. 2, 2010); Kelley v. DeMasi, 2008 WL 4298475, *4 (E.D.Mich., Sept. 18,
2008) (grievance time limit should be tolled where plaintiff was fighting an infection leading to
hospitalization and surgery); Plaster v. Kneal, 2008 WL 4090790, *3-4 (M.D.Pa., Aug. 29, 2008)
(declining to dismiss where plaintiff missed a deadline after following prison staff’s erroneous advice
about how to appeal); Moro v. Winsor, 2008 WL 718687, *4-5 (S.D.Ill., Mar. 14, 2008) (holding remedy
unavailable to prisoner whose appeal was untimely because he could not get a timely answer at the first
level in a system that required a response in order to appeal); Thorns v. Ryan, 2008 WL 544398, *3-4
(S.D.Cal., Feb. 26, 2008) (refusing to dismiss where grievance appeal was untimely because of delay in
receiving the decision; appeal was timely measured from when plaintiff received it); Sanchez v. Penner,
2008 WL 544591, *6 (E.D.Cal., Feb. 26, 2008) (same as Thorns), report and recommendation adopted,
2008 WL 892760 (E.D.Cal., Mar. 31, 2008); Macahilas v. Taylor, 2008 WL 220364, * 4 (E.D.Cal., Jan.
25, 2008) (denying summary judgment where prisoner said “his mind was too clouded” by illness even to
know he had a claim within the time limit), report and recommendation adopted, 2008 WL 506109
(E.D.Cal., Feb. 22, 2008); Cordova v. Frank, 2007 WL 2188587, *6 (W.D.Wis., July 26, 2007) (holding
remedy unavailable where a prisoner’s appeal was late because he was indigent and prison rules forbade
advancing him the postage to mail it); Kaufman v. Schneiter, 474 F.Supp.2d 1014, 1032 (W.D.Wis. 2007)
(stating same view as Cordova); Cruz v. Jordan, 80 F.Supp.2d 109, 124 (S.D.N.Y. 1999) (holding
remedies were not available to a prisoner who was unconscious and hospitalized during the time period
for filing a grievance, where prison officials rejected his later grievance as time-barred).
Note 847: Calloway v. Contra Costa County Jail Correctional Officers, 2007 WL 134581, *28
(N.D.Cal., Jan. 16, 2007) (holding prisoner removed from jail to prison and then returned to jail where
claim arose should have filed a grievance upon return to jail), aff’d, 243 Fed.Appx. 320 (9th Cir. 2007)
(unpublished); Bradley v. Washington, 441 F.Supp.2d 97, 101 (D.D.C. 2006) (holding a week’s
deprivation of writing materials did not make remedies unavailable where the plaintiff had 15 days to file
a grievance); Stanley v. Rich, 2006 WL 1549114, *3 (S.D.Ga., June 1, 2006) (holding a prisoner who
complained of threats of retaliation should have filed a grievance when conditions changed, i.e., the
administration was replaced and several officers were suspended and eventually terminated); Isaac v. Nix,

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2006 WL 861642, *4 (N.D.Ga., Mar. 30, 2006) (holding prisoner who said he couldn’t get grievance
forms within a five-day time limit should have filed a grievance within five days of getting the forms);
Winstead v. Castellaw, 2005 WL 1081353, *2 (E.D.Va., May 6, 2005) (dismissing for non-exhaustion
where prisoner claimed he could not get grievance forms in segregation but did not file a grievance once
released from segregation).
Note 849: Green v. McBride, 2007 WL 2815444, *3 (S.D.W.Va., Sept. 25, 2007) (holding
prisoner who was kept on suicide watch without necessary materials until past the grievance deadline
should have filed a late grievance); Stephens v. Howerton, 2007 WL 1810242, *4 (S.D.Ga., June 21,
2007) (holding injured prisoner should have filed a grievance when he was able to write), aff’d, 270
Fed.Appx. 750 (11th Cir. 2008) (unpublished), cert. denied, 555 U.S. 854 (2008); Benfield v. Rushton,
2007 WL 30287, *4 (D.S.C., Jan. 4, 2007) (holding a hospitalized prisoner should have filed a grievance
upon release from the hospital); Duvall v. Dallas County, Tex., 2006 WL 3487024, *4 5 (N.D.Tex., Dec.
1, 2006) (similar to Benfield); Washington v. Texas Dept. of Criminal Justice, 2006 WL 3245741, *4-5
(S.D.Tex., Nov. 5, 2006) (similar to Benfield; the prisoner was in intensive care with injuries causing
memory loss during the period for filing a grievance); Haroon v. California Dept. of Corrections and
Rehabilitation, 2006 WL 1097444, *3 (E.D.Cal., Apr. 26, 2006) (holding that a prisoner who was in a
coma during the usual time limit should have filed afterwards), report and recommendation adopted,
2006 WL 1629123 (E.D.Cal., June 9, 2006); Brazier v. Maricopa County Sheriff’s Office, 2006 WL
753157, *4 (D.Ariz., Mar. 22, 2006) (holding that a prisoner who was physically traumatized and unable
to file a grievance within the 48-hour time limit was required to exhaust later, even untimely),
reconsideration denied, 2006 WL 1455569 (D.Ariz., May 22, 2006); Goldenberg v. St. Barnabas Hosp.,
2005 WL 426701, *5 (S.D.N.Y., Feb. 23, 2005) (stating prisoner who was physically and mentally
incapable of filing a grievance after the challenged conduct failed to explain why he didn’t exhaust later).
Note 879: Wisenbaker v. Farwell, 2010 WL 3385303, *8 (D.Nev., June 7, 2010) (holding
grievance two years late exhausted where merits were decided), report and recommendation adopted,
2010 WL 3385310 (D.Nev., Aug. 24, 2010); Moran v. Dovey, 2010 WL 1342917, *4 (E.D.Cal., Apr. 5,
2010); Mallory v. Marshall, 659 F.Supp.2d 231, 237 (D.Mass 2009); Seibel v. Johnson, 2009 WL
2590428, *7 (D.N.D., Aug. 19, 2009); Smith v. Fitter, 2008 WL 4861514, *6 (C.D.Cal., Nov. 10, 2008);
Ellis v. Vadlamudi, 568 F.Supp.2d 778. 785-86 (E.D.Mich. 2008) (citing Woodford v. Ngo’s analogy to
the habeas corpus procedural default rule, and pointing out that in habeas, if a state court decides the
merits, procedural default is excused); Harris v. West, 2008 WL 695404, *3 (W.D.Mich., Mar. 11, 2008);
Stevenson v. Michigan Dept. of Corrections, 2008 WL 623783, *12 (W.D.Mich., Mar. 4, 2008); Shaw v.
Frank, 2008 WL 283007, *8 (E.D.Wis., Jan. 31, 2008) (grievance untimely by five years), aff’d, 2008
WL 2906766 (7th Cir. 2008); Johnson v. Beardslee, 2007 WL 2302378, *3 (W.D.Mich., Aug. 8, 2007);
Jenkins v. Baumler, 2007 WL 2023538, *3 (E.D.Cal., July 11, 2007), report and recommendation
adopted, 2007 WL 2782875 (E.D.Cal., Sept. 25, 2007); Coronado v. Schriro, 2007 WL 1687604, *5
(D.Ariz., June 8, 2007); Armitige v. Cherry, 2007 WL 1751738, *6 (S.D.Tex., May 30, 2007); Maraglia
v. Maloney, 2006 WL 3741927, *7 (D.Mass., Dec. 18, 2006); Laurencio v. Secretary, 2006 WL 2729642,
*5 (M.D.Fla., Sept. 25, 2006) (holding exhaustion requirement satisfied where grievance was rejected as
untimely at two lower levels but addressed and investigated on the merits at the highest level); Jones v.
Stewart, 457 F.Supp.2d 1131, 1134-37 (D.Nev. 2006); Harris v. Aidala, 2006 WL 2583256, *2
(W.D.N.Y., Sept. 6, 2006); Griswold v. Morgan, 317 F.Supp.2d 226, 229-30 (W.D.N.Y. 2004).
Note 896: Mavins v. McFadden, 2009 WL 4906573, *5 (D.S.C., Dec. 18, 2009) (“It appears that
there is no reported federal case supporting a requirement that a plaintiff pursue any type of state APA
judicial review by a separate agency which is not part of the prison system before seeking relief in federal
court.”); Richardson v. South Carolina Dept. of Corrections, 2009 WL 2972994, *4 n.2 (D.S.C., Sept. 10,
2009); James v. South Carolina Dept. of Corrections, 2009 WL 1147994, *2 n.2 (D.S.C., Apr. 27, 2009);
Littlejohn v. Ozmint, 2009 WL 692876, *5 (D.S.C., Mar. 13, 2009); Johnson v. Ozmint, 567 F.Supp.2d

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806, 820 n.5 (D.S.C. 2008); Gore v. Kirkland, 2008 WL 2224395, *1 n.2 (D.S.C., May 29, 2008); Frost v.
Ozmint, 2008 WL 426381, *3 (D.S.C., Feb. 13, 2008) (“This district has almost uniformly rejected such
an argument.”), on reconsideration in part, 2008 WL 615864 (D.S.C., Feb. 29, 2008); Hughes v. Staudt,
2008 WL 220093, *5 (D.S.C., Jan. 23, 2008); Greene v. Stonebreaker, 2007 WL 2288123, *4-5 (D.S.C.,
Aug. 6, 2007); Brown v. Evans Correctional Institution Medical Staff, 2007 WL 1290359, *4 (D.S.C.,
Apr. 30, 2007) (“the fact that the South Carolina legislature made a court available to prisoners who
wanted to appeal a final decision by the SCDC denying a SCDC grievance does not alter the federal
PLRA by extending its administrative exhaustion requirement to include exhaustion in all state judicial
forums.”); Cabbagestalk v. Dubose, 2007 WL 201028, *3 n.1 (D.S.C., Jan. 22, 2007); Wagner v. U.S.,
486 F.Supp.2d 549, 558 n.2 (D.S.C. 2007), appeal dismissed, 31 Fed.Appx. 267 (4th Cir. 2007);
Randolph v. South Carolina Dept. of Corrections, 2006 WL 4508058, *3-4 (D.S.C., Nov. 27, 2006),
report and recommendation adopted, 2007 WL 1290579 (D.S.C., Apr. 30, 2007); Charles v. Ozmint,
2006 WL 1341267, *4 n.3 (D.S.C., May 15, 2006) (holding that appeal to an administrative law judge
under state Administrative Procedures Act “would invoke state judicial remedies” and is not required by
the PLRA).
Note 916: James v. Superior Court of New Jersey Bergen County, 2007 WL 3071794, *10
(D.N.J., Oct. 19, 2007) (holding tort claims require exhaustion of the tort claim procedure), vacated on
other grounds, 287 Fed.Appx. 140, 2008 WL 2783242 (3d Cir. 2008); Richard v. Capps, 2007 WL
2428928, *3-4 (N.D.Tex., Aug. 28, 2007) (noting no need to canvass ARP exhaustion for a FTCA claim.
“The exhaustion requirements for a Bivens claim are separate and distinct from the exhaustion
requirements under the FTCA.”); Davis v. Miner, 2007 WL 1237924, *5 (M.D.Pa., Apr. 26, 2007)
(dismissing Bivens claim for failure to exhaust administrative remedy, noting plaintiff can still file tort
claim and proceed under FTCA); McClenton v. Menifee, 2006 WL 2474872, *16 (S.D.N.Y., Aug. 22,
2006) (“The exhaustion procedures under the two statutes differ, and the fulfillment of one does not
constitute satisfaction of another.”) (citation omitted); Hartman v. Holder, 2005 WL 2002455, *6-8
(E.D.N.Y., Aug. 21, 2005) (allowing FTCA claim to go forward notwithstanding failure to exhaust ARP
and dismissal of Bivens claims; rejecting argument that FTCA administrative claim exhausted Bivens
claims, or that prisoner could have reasonably believed it did); Taveras v. Hasty, 2005 WL 1594330, *2-3
(E.D.N.Y., July 7, 2005) (holding prisoner who filed tort claim but not ARP complaint exhausted his
FTCA claim but not his Bivens claim); Williams v. U.S., 2005 WL 44533, *1 (D.Kan., Jan. 7, 2005)
(“With respect to his FTCA claims, plaintiff must file an administrative tort claim prior to filing suit. . . .
With respect to his Bivens claims, plaintiff must first complete the administrative grievance process.”);
Bolton v. U.S., 347 F.Supp.2d 1218, 1221 (N.D.Fla. 2004) (holding prisoner seeking damages properly
followed the “appropriate statutorily-mandated procedure” by filing an FTCA claim); Baez v. Bureau of
Prisons, Warden, 2004 WL 1777583, *7 (S.D.N.Y. May 11, 2004) (assuming that FTCA requires only
submission of tort claim); Baez v. Parks, 2004 WL 1052779, *7 (S.D.N.Y., May 11, 2004) (same);
Williams v. U.S., 2004 WL 906221 (S.D.N.Y., Apr. 28, 2004) (treating FTCA exhaustion as requiring
tort claim and Bivens exhaustion as requiring Administrative Remedy Procedure filing); Gaughan v. U.S.
Bureau of Prisons, 2003 WL 1626674, *2 (N.D.Ill., Mar. 25, 2003); Hylton v. Federal Bureau of Prisons,
2002 WL 720605, *2 (E.D.N.Y., March 11, 2002) (holding that the plaintiff could exhaust for Federal
Tort Claims Act purposes without exhausting under the PLRA as required for a Bivens claim).
Note 938: Langton v. Combalecer, 2008 WL 896062, *3 (E.D.Mich., Mar. 31, 2008) (holding
defendants were “disingenuous” to argue that plaintiff should have grieved his sexual abuse claim, since
state policy provided that all such grievances were to be referred to Internal Affairs, to which plaintiff had
complained); Jackson v. Caruso, 2008 WL 828118, *4 (W.D.Mich., Feb. 12, 2008) (noting that issues
regarding the content of a policy are properly raised via the Warden’s Forum and not the grievance
system), report and recommendation adopted as modified on other grounds, 2008 WL 828116
(W.D.Mich., Mar. 26, 2008); Berryman v. Granholm, 2007 WL 2259334, *10-11 (E.D.Mich., Aug. 3,
2007) (same as Jackson v. Caruso); Beltran v. O’Mara, 405 F.Supp.2d 140, 150 (D.N.H. 2005) (holding

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that filing a grievance about classification, rather than the required classification appeal, did not exhaust),
on reconsideration, 2006 WL 240558 (D.N.H., Jan. 31, 2006); Lindell v. Casperson, 360 F.Supp.2d 932,
949 (W.D.Wis. 2005) (holding that filing a grievance, rather than the required non-delivery of mail
complaint, did not exhaust), aff’d, 169 Fed.Appx. 999 (7th Cir., Mar. 13, 2006), cert. denied, 549 U.S.
874 (2006); Wallace v. Burbury, 2003 WL 21302947, *3-4 (N.D.Ohio, June 5, 2003) (holding that filing
a “general” grievance rather than the required Request for Accommodation of Religious Beliefs did not
exhaust); Mack v. Artuz, 2002 WL 31845087, *6 (S.D.N.Y., Dec. 19, 2002) (holding complaint about
“Central Monitoring Case” status was exhausted through separate CMC appeal process); Timley v.
Nelson, 2001 WL 309120, *1 (D.Kan., Feb. 16, 2001) (holding that a plaintiff with a religious claim who
“pursued some avenues of administrative relief” but did not follow the Request for Religious
Accommodation procedure had not exhausted).
Note 945: Davis v. Rouse, 2009 WL 4728988, *2 (D.Md., Dec. 3, 2009) (holding plaintiff had
exhausted where his grievance was referred to the internal investigation unit and he was told that he could
not pursue the grievance for that reason), vacated in part on reconsideration on other grounds, 2010 WL
2025554 (D.Md., May 18, 2010); Lanier v. Smith, 2009 WL 1758904, *1 (M.D.Fla., June 19, 2009)
(dismissal for non-exhaustion denied where prisoner was repeatedly told his grievance was referred to the
Inspector General); Ricchio v. Robinson, 2008 WL 2568138, *6-7 (C.D.Cal., June 26, 2008) (refusing to
dismiss where plaintiff repeatedly grieved sexual assault but grievances were rejected because they were
being investigated, or had been investigated, by Internal Affairs, and appeals were rejected because of the
lack of a first level decision, and plaintiff was told to direct her complaints to Internal Affairs); Hixon v.
MCSP Admin. Office, 2007 WL 2390417, *3 (E.D.Cal., Aug. 20, 2007) (holding plaintiff exhausted
when his grievance was referred as a “staff complaint” and he was not given the option of further
appeals), report and recommendation adopted, 2007 WL 2793272 (E.D.Cal., Sept. 26, 2007); Hendon v.
Ramsey, 2007 WL 1120375, *9-10 (S.D.Cal., Apr. 12, 2007) (declining to dismiss where grievance was
partly granted and referred for a “supervisory fact-finding investigation,” and plaintiff was told would not
be informed of the outcome and was not told that any further review was available); Cahill v. Arpaio,
2006 WL 3201018, *3 (D.Ariz., Nov. 2, 2006) (holding plaintiff reasonably relied on grievance hearing
officer’s statement that “(1) the matter was under investigation and he would not be notified of the results,
(2) he could not appeal and would not be given a form, and (3) he should proceed to federal court,”
notwithstanding that the preprinted decision form said it could be appealed).
Note 949: Muhammad v. Pico, 2003 WL 21792158, *23 (S.D.N.Y., Aug. 5, 2003) (holding that
letters to Commissioner or Superintendent do not exhaust); Croswell v. McCoy, 2003 WL 962534, *4
(N.D.N.Y., Mar. 11, 2003) (holding that a letter to the Superintendent did not exhaust); Moore v. Baca,
2002 WL 31870541, *2 (C.D.Cal., Dec. 11, 2002) (holding that a letter from counsel to the Sheriff does
not exhaust in a jail with a grievance procedure); Sunn v. Cattell, 2002 WL 31455482 (D.N.H., Oct. 31,
2002) (holding that a letter to the Governor forwarded to the prison warden did not exhaust); McNair v.
Sgt. Jones, 2002 WL 31082948, *7 (S.D.N.Y., Sept. 18, 2002) (holding that verbal complaints,
complaints to the Legal Aid Society, and letters to the Superintendent do not exhaust), report and
recommendation adopted, 2003 WL 22097730 (S.D.N.Y., Sept. 10, 2003); Saunders v. Goord, 2002 WL
1751341, *3 (S.D.N.Y., July 29, 2002) (holding that writing letters to superintendent does not substitute
for filing grievances); Nunez v. Goord, 2002 WL 1162905 (S.D.N.Y., June 3, 2002); Skinner v.
Cunningham, 2002 WL 337446, *2 (D.N.H., Feb. 28, 2002).
Note 950: Mason v. Smith, 2007 WL 2386411, *7-8 (S.D.Ga., Aug. 17, 2007) (holding referral
of grievance to Internal Affairs did not excuse plaintiff from completing the grievance process, since the
grievance policy did not say it did), aff’d, 261 Fed.Appx. 225 (11th Cir. 2008), cert. denied, 555 U.S. 853
(2008); Hill v. Robinson, 2005 WL 3299808, *3 (W.D.Wis., Dec. 5, 2005) (holding complaint to Federal
Bureau of Prisons Inspector General did not exhaust); Roach v. Bandera County, 2004 WL 1304952, *4
(W.D.Tex., June 9, 2004) (holding that independent investigations by Sheriff and FBI did not exhaust);

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Bokin v. Davis, 2003 WL 21920922, *3 (N.D.Cal., Aug. 7, 2003) (holding that internal affairs
investigations are not administrative remedies); Hock v. Thipedeau, 245 F.Supp.2d 451, 454-55 (D.Conn.
2003) (holding that direct, voluntary cooperation with a prison-initiated investigation does not satisfy the
exhaustion requirement), reconsideration denied, 2003 WL 21003431 (D.Conn. Apr. 28, 2003).
Note 1001: Williams v. City of Philadelphia, 2010 WL 3986104, *14-15 (E.D.Pa., Oct. 8, 2010)
(holding overcrowding non-grievable where grievance policy excludes “matters beyond the control” of
the prison system and it was clear the prisons could not control crowding); McQuilkin v. Central New
York Psychiatric Center, 2010 WL 3765847, *10-11 (N.D.N.Y., Aug. 27, 2010) (citing grievance
decisions stating that Office of Mental Health policies and procedures were not within grievance system’s
jurisdiction), report and recommendation adopted, 2010 WL 3765715 (N.D.N.Y., Sept. 20, 2010);
Benning v. Georgia, 2010 WL 4000616, *1 (M.D.Ga., Oct. 12, 2010) (holding rules of state Board of
Corrections were not grievable where grievance policy excluded “[m]atters over which the Department
[of Corrections] has no control”); Westefer v. Snyder, 2010 WL 235003, *4 (S.D.Ill., Jan. 15, 2010)
(noting decisions of the Director are non-grievable); Upthegrove v. Westerhouse, 2009 WL 961132, *3
(W.D.Wis., Apr. 8, 2009) (noting “administrative rules of the department” were non-grievable, rules of
particular prisons were not); Setzke v. Norris, 2009 WL 723244, *7 (W.D.Ark., Mar. 17, 2009) (noting
issues pertaining to parole release and state sex offender registration statute were non-grievable); Cromer
v. Braman, 2008 WL 907468, *16 (W.D.Mich., Mar. 31, 2008) (where grievance was rejected as raising a
non-grievable issue, plaintiff had exhausted); Rickman v. Michigan Dept. of Corrections, 2008 WL
907469, *6 (W.D.Mich., Mar. 31, 2008) (rejecting argument that a grievance rejected as non-grievable
means the plaintiff didn’t exhaust); Lawson v. Hall, 2008 WL 793635, *4 (S.D.W.Va., Mar. 24, 2008)
(noting that West Virginia grievance policy exempts claims of physical or sexual abuse from coverage);
Murphy v. Colorado Dept. of Corrections (CDOC), 2008 WL 608583, *5 (D.Colo., Mar. 4, 2008) (noting
exclusion of prisoners transferred under Interstate Corrections Compact from grievance system made
remedy unavailable to them); Charity v. Carroll, 2007 WL 2408527, *5 (E.D.Cal., Aug. 21, 2007)
(finding that grievance system did not address actions performed at the request of authorities in another
state), report and recommendation adopted, 2007 WL 2703165 (E.D.Cal., Sept. 14, 2007); Mitchell v.
Caruso, 2006 WL 3825077, *2 (E.D.Mich., Dec. 26, 2006) (noting that “the content of a policy or
procedure” is not grievable in Michigan); Clark v. Mason, 2005 WL 1189577, *5 (W.D.Wash., May 19,
2005) (listing non-grievable issues in Washington prison system); Cordero v. Bureau of Prisons, 2005
WL 1205808, *1 (M.D.Pa., Apr. 27, 2005) (noting that Privacy Act and Freedom of Information Act
matters are excluded from the federal Administrative Remedy Program); Richards v. Massachusetts Dept.
of Correction, 2005 WL 283203, *1 (D.Mass., Feb. 7, 2005) (noting that Massachusetts system allows
grievances about “matters concerning access to medical or mental health care” but not “medical or
clinical decisions related to an inmate’s physical or mental condition”); Murphy v. Martin, 2004 WL
1658489, *3 (E.D.Mich., May 28, 2004) (noting that Michigan system makes non-grievable “the content
of policy or procedure”); Stevens v. Goord, 2003 WL 21396665, *5 (S.D.N.Y., June 16, 2003) (holding
that private prison medical provider failed to meet its burden of showing that claims against it were
grievable), adhered to on reargument, 2003 WL 22052978 (S.D.N.Y., Sept. 3, 2003); Borges v.
Administrator for Strong Memorial Hosp., 2002 WL 31194558, *3 (W.D.N.Y., Sept. 30, 2002) (holding
defendants did not show that grievance procedure was available to prisoners injured by dentists at an
outside hospital, given their policy making non-grievable any action taken by an “outside agency”);
Baldwin v. Armstrong, 2002 WL 31433288, *1 (D.Conn., Sept. 12, 2002) (holding that a claim about
calculation or application of good time credit need not be exhausted where the grievance policy, which
lists grievable matters, does not include good time); Nicholson v. Snyder, 2001 WL 935535, *3 (D.Del.,
Aug. 10, 2001) (holding that classification decisions excluded from the grievance procedure need not be
exhausted); Anderson v. Goord, 2001 WL 561227, *4 (S.D.N.Y., May 24, 2001) (holding exhaustion
requirement inapplicable because individual decisions of Temporary Release Committee are not
grievable), aff’d in part, vacated in part, 317 F.3d 194 (2d Cir. 2003); Freeman v. Snyder, 2001 WL
515258, *6 (D.Del., Apr. 10, 2001) (holding that defendants’ admission that an issue was not grievable

409

excused exhaustion; their claim that a grievance would have been “redirected” was not persuasive absent
any explanation of what happens to non-grievable, redirected grievances); McGrath v. Johnson, 67
F.Supp.2d 499, 511 (E.D.Pa. 1999), aff’d, 35 Fed.Appx. 357, 2002 WL 1271713 (3d Cir. 2002); Davis v.
Frazier, 1999 WL 395414, *3 (S.D.N.Y., June 15, 1999).
Note 1015: Jenkins v. Federal Bureau of Prisons, 2011 WL 4482074, *5 (D.S.C., Sept. 26, 2011)
(holding procedure was unavailable to a prisoner who had been hospitalized with serious injuries
requiring a skin graft to his hand, which was bandaged until two days before he filed his untimely
grievance); Williams v. Hacker, 2010 WL 2507778, *3 (M.D.Tenn., June 3, 2010) (prisoner who was
incapacitated by injury and surgery during grievance-filing period and whose late grievance was rejected
was entitled to “Days exception” to exhaustion), report and recommendation adopted, 2010 WL 2507779
(M.D.Tenn., June 18, 2010); Ellington v. Wolfenbarger, 2010 WL 891278, *3 (E.D.Mich., Mar. 10,
2010) (claim of plaintiff who alleged remedies were not available to him because of his injuries could not
be dismissed at the pleading stage); Childers v. Bates, 2010 WL 1268143, *6-7 (S.D.Tex., Jan. 14, 2010)
(remedy that required identification of defendants was not “personally available” to prisoner who could
not do so because of a head injury and memory loss), report and recommendation rejected on other
grounds, 2010 WL 1268139 (S.D.Tex., Mar. 26, 2010); Jones v. Carroll, 628 F.Supp.2d 551, 558 (D.Del.
2009) (allegation that prisoner could not grieve because he was heavily medicated after surgery presented
a jury question; “although plaintiff was described in the medical records as being oriented and
ambulatory, a postsurgical patient's ability to follow directions from a nurse does not necessarily equate to
the ability to independently perform new tasks”); Barretto v. Smith, 2009 WL 1271984, *6 (E.D.Cal.,
Mar. 6, 2009) (holding failure to pursue grievance timely was not dispositive where prisoner had been
hospitalized and then in the prison infirmary in a condition of pain and discomfort during the relevant
period), reconsideration denied, 2009 WL 1119513 (E.D.Cal., Apr. 24, 2009); Macahilas v. Taylor, 2008
WL 220364, *4 (E.D.Cal., Jan. 25, 2008) (denying summary judgment to defendants where prisoner said
“his mind was too clouded” by a physical illness to grieve timely), report and recommendation adopted,
2008 WL 506109 (E.D.Cal., Feb. 22, 2008); Ricketts v. AW of Unicor, 2008 WL 1990897, *6 (M.D.Pa.,
May 6, 2008) (denying dismissal for non-exhaustion where prisoner said he was in the hospital paralyzed
throughout the period for filing a grievance); Holcomb v. Director of Corr., 2006 WL 3302436, *6-7
(N.D. Cal., Nov. 14, 2006) (holding a prisoner rendered quadriplegic and never returned to prison after
his injury did not have an opportunity to file timely); Muniz v. Goord, 2007 WL 2027912, *7 (N.D.N.Y.,
July 11, 2007) (holding allegation that plaintiff was too ill to file a grievance or seek a time extension
sufficiently pled special circumstances excusing proper exhaustion).
Note 1016: Wright v. Langford, 2012 WL 1074508, *2 (M.D.Ga., Mar. 29, 2012) (holding
allegation that hand injury prevented plaintiff from grieving was not credible where grievance policy
provided for seeking assistance from staff or other prisoners and plaintiff did not show he was unable to
do this), reconsideration denied, 2012 WL 2989602 (M.D.Ga., July 20, 2012); Smith v. Sharp, 2010 WL
3609527, *4 (D.S.C., July 23, 2010) (holding injuries did not justify non-exhaustion where staff
assistance was available for disabled prisoners, and physical inability to file was a recognized basis for
allowing late filing), report and recommendation adopted, 2010 WL 3609492 (D.S.C., Sept. 13, 2010),
aff’d, 409 Fed.Appx. 673 (4th Cir. 2011) (unpublished); Leaf v. Felker, 2010 WL 144357, *4 (E.D.Cal.,
Jan. 8, 2010) (holding injuries did not justify non-exhaustion where medical records indicated plaintiff
was in good health, his injuries would not have interfered with thinking and communication, and he made
other complaints during the same period); Hunter v. Indiana Dept. of Corrections, 2009 WL 3199170, *6
(N.D.Ind., Sept. 29, 2009) (holding physical and mental condition of prisoner just released from the
hospital did not justify non-exhaustion where he made other complaints during the same time period);
Lopez v. Smelosky, 2009 WL 3062342, *3 (S.D.Cal., Sept. 22, 2009) (rejecting claim of medical inability
to file a grievance since plaintiff was not housed in a medical unit, he filed another grievance in the same
time period, and he had been medically cleared for normal activity before the grievance deadline expired);
Chavez v. Thorton, 2008 WL 2020319, *4-5 (D.Colo., May 9, 2008) (holding plaintiff who missed a five-

410

day grievance deadline while hospitalized for six days after a stabbing failed to exhaust; he had written
other complaints about other subjects during that time); Haggenmiller v. Feneis, 2007 WL 2264707, *6
(D.Minn., Aug. 6, 2007) (rejecting claim that prisoner’s condition after an assault excused him from
exhausting because he “has not shown that he was, in fact, physically or mentally incapable of pursuing
his available administrative remedies before filing suit”); Harris v. Walker, 2006 WL 2669050, *3-4
(S.D.Miss., Sept. 18, 2006) (holding that prisoner who filed a grievance several weeks late after being
stabbed and having a kidney removed in the hospital failed to exhaust; he was physically capable before
the deadline and the law “does not allow for tolling or excuse prompt filing of prison administrative
remedies because of mental or emotional injury.”); Garrett v. Partin, 2006 WL 2655980, *3-4 (E.D.Tex.,
Sept. 14, 2006) (holding plaintiff, who was unable to file a timely grievance because of his medical
condition, failed to exhaust because he filed after 18 days but had filed another grievance after only 14
days), aff’d, 2007 WL 2809915 (5th Cir. 2007) (unpublished).
Note 1020: Chen v. U.S., 2011 WL 2039433, *12 (E.D.N.Y., May 24, 2011) (holding
unfamiliarity with English merits assistance in filing appeals under prison regulations, but does not
excuse non-exhaustion); Grant v. Henderson, 2011 WL 902357, *4-6 (N.D.Fla., Feb. 7, 2011) (holding
language problems do not excuse non-exhaustion as a matter of law; also finding claim factually
erroneous), report and recommendation adopted, 2011 WL 902228 (N.D.Fla., Mar. 15, 2011); Benavidez
v. Stansberry, 2008 WL 4279559, *4 (N.D.Ohio, Sept. 12, 2008) (there is no exception to the exhaustion
requirement for prisoners who cannot read the procedures in English).
Note 1022: Cole v. Sobina, 2007 WL 4460617, *7 (W.D.Pa., Dec. 19, 2007) (refusing to dismiss
for non-exhaustion where plaintiff alleged mental disabilities which could account for his noncompliance
with grievance procedures); Whitington v. Sokol, 491 F.Supp.2d 1012, 1019 (D.Colo. 2007) (refusing to
dismiss for non-exhaustion where plaintiff alleged he had no remedies because he was mentally
incapacitated and was transferred to a mental institution shortly after the incident he sued about); Petty v.
Goord, 2007 WL 724648, *8 (S.D.N.Y., Mar. 5, 2007) (refusing to dismiss for non-exhaustion where
prisoner was transferred to a mental hospital after filing a grievance and missed the final deadline; the
court notes there is no evidence before it of his mental state at the time, and holds that two months plus in
a mental hospital constituted special circumstances); Ullrich v. Idaho, 2006 WL 288384, *3 (D.Idaho,
Feb. 6, 2006) (dismissing for non-exhaustion, but directing prison officials to appoint someone to assist
the plaintiff, who alleged mental illness and denial of psychiatric treatment, complete exhaustion);
LaMarche v. Bell, 2005 WL 2998614, *3 (D.N.H., Nov. 8, 2005) (acknowledging that evidence of mental
illness might support argument that late grievance should be deemed effective).
Note 1023: Walker v. Lovelle, 2009 WL 1313221, *2 (N.D.Cal., May 11, 2009) (rejecting claim
of mental health problems where the prisoner had filed and appealed other grievances); Baker v. Schriro,
2008 WL 622020, *5-6 (D.Ariz., Mar. 4, 2008) (rejecting claim of inability to follow grievance procedure
where plaintiff was representing himself in three criminal appeals and initating three civil rights actions
during the same time period), review denied, 2008 WL 2003757 (D.Ariz., May 8, 2008); Winters v.
Shearin, 2011 WL 6300464, *2 n.7 (D.Md., Dec. 15, 2011) (“Given that this case involves delivery of
psychological services to a prisoner with mental impairment, the court shall accept Winters's truncated
pursuit of [a grievance] as a sufficient attempt to exhaust administrative remedies.”); Hilson v. Maltese,
2011 WL 767696, *2 (N.D.N.Y., Feb. 28, 2011) (where plaintiff alleged he didn’t exhaust because he
“was mentally unstable at the time” and “had a mental break down,” non-exhaustion was not apparent on
the face of the complaint and might be justified by special circumstances); Locke v. Sobina, 2011 WL
841368, *4 (W.D.Pa., Mar. 8, 2011) (where plaintiff complained of traumatic brain injury that impaired
his cognitive abilities, court declines to rule on exhaustion on existing record and proceeds to the merits);
Saggese v. Corrente, 2008 WL 474110, *5 & n.5 (D.N.J., Feb. 15, 2008) (rejecting prisoner’s claim that
he was mentally ill and “in a blur” since his claims of overmedication and injury only cover two weeks
and he could have exhausted after that); Williams v. Pettiford, 2007 WL 3119548, *2-3 (D.S.C., Oct. 22,

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2007) (rejecting argument that prisoner who was dyslexic and mentally ill was not required to exhaust),
aff’d, 272 Fed.Appx. 311 (4th Cir. 2008) (unpublished); Yorkey v. Pettiford, 2007 WL 2750068, *4-5
(D.S.C., Sept. 20, 2007) (stating Woodford v. Ngo “appears to have foreclosed” argument that mental
illness excused plaintiff from exhausting), aff’d, 271 Fed.Appx. 337 (4th Cir. 2008) (unpublished); Bester
v. Dixion, 2007 WL 951558, *10 (N.D.N.Y., Mar. 27, 2007) (noting initial concern that prisoner had
been transferred to a psychiatric hospital because of a mental condition, but dismissing since he had
written complaints and spoken to investigators); Hall v. Cheshire County Dept. of Corrections, 2007 WL
951657, *1-2 (D.N.H., Mar. 27, 2007) (dismissing for non-exhaustion even though plaintiff’s claim was
failure to treat his mental illness resulting in conduct such as cutting himself repeatedly and swallowing
glass; no inquiry into whether his mental condition could have affected his ability to exhaust); Williams v.
Kennedy, 2006 WL 18314, *2 (S.D.Tex., Jan. 4, 2006) (dismissing despite prisoner’s claim he didn’t
know of the exhaustion requirement and a prior brain injury made it difficult for him to remember things);
Bakker v. Kuhnes, 2004 WL 1092287 (N.D.Iowa, May 14, 2004) (rejecting plaintiff’s argument that his
medication doses were so high they “prohibited him from being of sound mind to draft a grievance”;
noting that he failed to submit a grievance after his medication was corrected, and he filed other
grievances during the relevant period).
Note 1024: Gomez v. Swanson, 2009 WL 1085274, *4 (E.D.Cal., Apr. 22, 2009) (“He has
neither come forward with evidence illustrating the nature and severity of those problems, nor has he
alleged facts showing precisely how his mental status was an issue in failing to exhaust.”); Rigsby v.
Schriro, 2008 WL 2705376, *3 (D.Ariz., July 9, 2008) (dismissing for non-exhaustion where plaintiff
said that in 2007 he had been the victim of assaults in 2004 that resulted in brain swelling, partial memory
loss, depression, and PTSD; plaintiff “provides no specific information about how these injuries
prevented him from initiating, much less completing, the inmate grievance process”); Fleming v. Dettloff,
2008 WL 2558021, *2 (E.D.Mich., June 24, 2008) (dismissing for non-exhaustion despite plaintiff’s
allegation of mental incompetence and his participation in the prison Mental Health Program, since he
presented “no evidence of mental incompetency beyond allegations and conclusory statements in the
pleadings”); Lawson v. Davis, 2008 WL 1885813, *2 (W.D.Va., Apr. 28, 2008) (dismissing challenge to
90-day waiting period for psychiatric medications since the plaintiff did not allege facts indicating his
mental problems prevented him from understanding or using the grievance procedures), aff’d, 285
Fed.Appx. 77, 2008 WL 2945397 (4th Cir. 2008) (unpublished); Evans v. McWilliams, 2007 WL
2410370, *2 (D.Ariz., Aug. 21, 2007) (refusing to exempt prisoner from exhaustion requirement based on
claim of mental illness since there is no “extenuating circumstances” exception, he provided no evidence
of his illness, and he had made complaints to authorities), subsequent determination, 2007 WL 2949007
(D.Ariz., Oct. 10, 2007).
Note 1029: Jones v. Cowens, 2010 WL 3239286, *2 (D.Colo., Aug. 12, 2010) (holding
allegation that prisoner returned from state to local custody did not actually have access to state grievance
system barred summary judgment); Corye v. Carr, 2010 WL 396363, *7-8 (N.D.N.Y., Jan. 26, 2010)
(finding factual question whether prisoner transferred from jail to prison had opportunity to use jail
grievance system); Key v. Toussaint, 660 F.Supp.2d 518, 523-25 (S.D.N.Y. 2009) (noting transfer to a
federal facility renders prisoners unable to comply with state grievance process requirements;
distinguishing transfers within same prison system; notes that this prisoner had been transferred to
quickly he did not have time to exhaust first); Key v. Moscoso, 2009 WL 2901636, *5 (S.D.N.Y., Sept.
10, 2009) (same); Green v. Roberts, 2008 WL 4767471, *4 (M.D.Ala., Oct. 29, 2008) (holding prisoner
who was transferred from jail, wrote to the jail seeking to exhaust, and received no response satisfied the
exhaustion requirement); Carr v. Hazelwood, 2008 WL 4556607, *5 (W.D.Va., Oct. 8, 2008) (jail
grievance process was not available to prisoner transferred out three days after being assaulted; there was
no evidence the procedure could be completed in three days or was available to persons at other
locations), report and recommendation adopted, 2008 WL 4831710 (W.D.Va., Nov. 3, 2008); Williams
v. Figueroa, 2008 WL 4525527, *6 (W.D.Okla., Oct. 2, 2008) (Vermont prisoner in private prison in

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Oklahoma was not required to exhaust Vermont grievance procedure absent a rule to that effect in the
private prison grievance process); Gomez v. Ficket, 2008 WL 4279596, *3 (W.D.Wash., Sept. 16, 2008)
(where prisoner’s claim against county jail personnel did not accrue until he was in state prison,
defendants failed to show the jail remedy was available); Ammouri v. Adappt House, Inc., 2008 WL
2405762, *3 (E.D.Pa., June 12, 2008) (noting that plaintiff was repeatedly told he could not grieve
matters from his previous institution); Davis v. Kirk, 2007 WL 4353798, *7 (S.D.Tex., Dec. 11, 2007)
(holding prisoner’s grievance appeal was moot on transfer); Thomas v. Maricopa County Bd. of
Supervisors, 2007 WL 2995634, *4 (D.Ariz., Oct. 12, 2007) (declining to dismiss where the prisoner did
not have knowledge of the violation until after his release and the grievance policy did not provide for
grievances after release); Ray v. Hogg, 2007 WL 2713902, *12 (E.D.Mich., Sept. 18, 2007) (holding
prisoner transferred out of jail had no access to jail grievance process); Basham v. Correctional Medical
Services, Inc., 2007 WL 2481338, *5 (S.D.W.Va., Aug. 29, 2007) (holding defendants failed to show a
grievance appeal was available to a hospitalized prisoner separated from his grievance documents);
Knight v. Dutcher, 2007 WL 2407034, *12 (D.Neb., Aug. 20, 2007) (declining to dismiss where plaintiff
was transferred before he could grieve and defendants did not meet their burden of showing the remedy
was available after transfer); Goldwater v. Arpaio, 2007 WL 1577891, *2 (D.Ariz., May 31, 2007)
(declining to dismiss for non-exhaustion where prisoner was transferred and grievance policy did not
provide for post-transfer grievances); Mellender v. Dane County, 2006 WL 3113212, *3 (W.D. Wis., Oct.
27, 2006) (refusing to dismiss for non-exhaustion where prisoner transferred from jail to prison tried to
mail a grievance to the jail and then tried to use the prison’s grievance system to complain about the jail);
Szkup v. Arpaio, 2006 WL 2821685, *2 (D.Ariz., Sept. 29, 2006) (declining to dismiss for nonexhaustion where defendants did not show that plaintiff could use the jail grievance process after being
transferred from jail to prison); Almond v. Tarver, 468 F.Supp.2d 886, 896-97 (E.D.Tex., Aug. 15, 2006)
(finding remedies were not “personally obtainable” to a prisoner whose grievance decision was delayed
until he was released and who did not then appeal, and who filed suit only after reincarceration 11 months
later); Bradley v. Washington, 441 F.Supp.2d 97, 102-03 (D.D.C. 2006) (holding D.C. remedies became
unavailable upon prisoner’s transfer to federal medical facility, since D.C. procedures say they apply to
facilities under authority, jurisdiction, or contract with D.C.); Lofton v. Sheahan, 2004 WL 2032100, *2
(N.D.Ill., Aug. 31, 2004) (holding remedies were likely unavailable where the prisoner was transferred
two days after his medical problem appeared); Adamson v. De Poorter, 2006 WL 2724785, *2-3
(N.D.Fla., July 25, 2006) (holding federal prisoner transferred to a state prison was not excluded from
federal administrative remedy despite regulation suggesting otherwise, and that he was obliged to try to
seek federal forms and exhaust by mail or through the state prison grievance program), report and
recommendation adopted, 2006 WL 2724639 (N.D.Fla., Sept. 21, 2006); Tabarez v. Butler, 2005 WL
1366445 (E.D.Cal., June 2, 2005) (holding prisoner who could not file a grievance within the required 15
days because of a transfer, but filed once settled at his new prison, had exhausted); Barnard v. District of
Columbia, 223 F.Supp.2d 211, 214 (D.D.C. 2002) (holding that a prisoner who was first hospitalized,
then involved in hearings, then transferred during the 15 days he had to file a grievance, may not have
been able to use the grievance system); Lindsay v. Dunleavy, 177 F.Supp.2d 398, 401-02 (E.D.Pa. 2001)
(declining to dismiss claim of transferred plaintiff where defendants provided no information on remedies
available after his transfer); Flowers v. Velasco, 2000 WL 1644362, *2 (N.D.Ill., Oct. 19, 2000) (holding
that a jail grievance system was not available to a prisoner held there for three weeks before transfer to
state custody; his grievance would have been aborted by his transfer); Muller v. Stinson, 2000 WL
1466095, *2 (N.D.N.Y., Sept. 25, 2000) (excusing exhaustion by prisoner who had been transferred
before the expiration of the time for filing a grievance about events at the sending prison); Watkins v.
Khamu, 2000 WL 556614, *1 (N.D.Ill., May 3, 2000) (holding that an allegation that the jail grievance
procedure is no longer available because plaintiff is in state prison system, and that he reported the
incident to staff and had been “told they would handle the situation,” “suffices to allow him into the
federal courthouse door as a threshold matter”); Mitchell v. Angelone, 82 F.Supp.2d 485, 490 (E.D.Va.
1999) (excusing exhaustion by prisoner who had been transferred so frequently he had never had time to
exhaust).

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Note 1030: Medley v. Luther, 2008 WL 5103209, *3-4 (C.D.Cal., Dec. 3, 2008) (prisoner who
learned she had been exposed to TB in jail only after she had been returned to state prison had to exhaust
jail grievance process, which was allegedly available to former prisoners); In re Bayside Prison Litigation,
2008 WL 2387324, *5 (D.N.J., May 19, 2008) (prisoner transferred within New Jersey prison system
could still use the grievance system); Cohea v. Jones, 2008 WL 114956, *5 (E.D.Cal., Jan. 11, 2008)
(same for California), report and recommendation adopted, 2008 WL 496143 (E.D.Cal., Feb. 21, 2008),
aff’d, 2009 WL 1452627 (9th Cir., May 26, 2009) (unpublished); Jackson v. Walker, 2007 WL 2344938,
*5 (E.D.Ky., Aug. 14, 2007) (holding transfer did not excuse non-exhaustion because the process can be
completed by mail), amended on reconsideration in part, 2007 WL 2702325 (E.D.Ky., Sept. 12, 2007),
amended in part, 2007 WL 3145957 (E.D.Ky., Oct. 25, 2007); Lawrence v. Washington, 2006 WL
1071510, *2 (D.D.C., Apr. 21, 2006) (holding transfer within system did not excuse failure to exhaust
where regulations permit grievances after transfer), aff’d, 204 Fed.Appx. 27 (D.C. Cir. 2006); James v.
Williams, 2005 WL 4859251, *2 (W.D.N.C., May 24, 2005) (noting that the prisoner had 11 days to file a
new grievance after his first one was rejected and that under the grievance policy he could have filed it at
the new prison as well); Soto v. Belcher, 339 F.Supp.2d 592, 595 (S.D.N.Y. 2004) (holding transfer did
not excuse exhaustion since regulations permit grievances after transfer); Delio v. Morgan, 2003 WL
21373168, *3 (S.D.N.Y., June 13, 2003); Timmons v. Pereiro, 2003 WL 179769, *2 (S.D.N.Y., Jan. 27,
2003) (holding that transfer out of state did not excuse failure to exhaust where there was time to file
before the plaintiff was moved and in any case the system permits grievances to be pursued after transfer),
aff’d in part, vacated in part, and remanded, 88 Fed.Appx. 447, 2004 WL 322702 (2d Cir. 2004); Steele
v. New York State Dept. of Correctional Services, 2000 WL 777931 (S.D.N.Y., June 19, 2000) (holding
that a prisoner who was out of the institution during the entire time for filing a grievance was nonetheless
obliged to file a grievance because the deadline could be waived in “extreme circumstances”; prisoner’s
conduct characterized as “deliberate bypass”), motion to vacate denied, 2000 WL 1731337 (S.D.N.Y.,
Nov. 21, 2000).
Note 1044: Marquez v. Antilus, 2010 WL 2629409, *1-2 (D.N.H., June 28, 2010) (specific
allegations of threats and intimidation supported claims of estoppel and special circumstances and barred
summary judgment for non-exhaustion); Paynes v. Runnels, 2008 WL 4078740, *6 (E.D.Cal., Aug. 29,
2008) (offer to plaintiff to provide a safe housing placement only if he dropped the grievance made the
grievance process unavailable), report and recommendation adopted, 2008 WL 4464828 (E.D.Cal., Sept.
30, 2008); Zaritsky v. Crawford, 2008 WL 4132225, *8 (D.Nev., Aug. 29, 2008) (refusing to dismiss
where prisoner had previously reported an inmate attack and no protective action had been taken);
Cotton-Schrichte v. Peate, 2008 WL 3200775, *1, 4 (W.D.Mo., Aug. 5, 2008) (remedies were unavailable
to a prisoner who was raped, threatened into silence, and later beaten); Morris v. Zefferi, 2008 WL
2952114, *2 (E.D.Mo., July 28, 2008) (remedies would be unavailable based on allegations that staff
member warned plaintiff that there would be “repercussions” from filing a grievance and prisoners had
been punished for them; “Whatever you do, do not piss them off!”); Norris v. County of Lycoming, 2008
WL 2914513, *8 (M.D.Pa., July 24, 2008) (allegation that prisoner was told to stop submitting requests
for medical attention and placed in restrictive housing when he tried to follow up on his requests raised
question whether remedies were available); Banks v. One or More Unknown Named Confidential
Informants of Federal Prison Camp Canaan, 2008 WL 2563355, *4 (M.D.Pa., June 24, 2008) (“Courts
have invariably held that affirmative misconduct by prison officials—designed to impede or prevent an
inmate's attempts to exhaust—may render administrative remedies unavailable”), reconsideration denied,
2008 WL 2810156 (M.D.Pa., July 21, 2008); Baker v. Schriro, 2008 WL 622020, *8 (D.Ariz., Mar. 4,
2008) (holding plaintiffs’ allegations of threats by staff and of practice of requiring grievances to be
screened by gang members satisfied “ordinary firmness” standard), review denied, 2008 WL 2003757
(D.Ariz., May 8, 2008); Mitchell v. Adams, 2008 WL 314129, *9-13 (E.D.Cal., Feb. 4, 2008) (citing
course of threatening conduct affecting multiple grievances), report and recommendation adopted, 2008
WL 595922 (E.D.Cal., Mar. 3, 2008); Harcum v. Shaffer, 2007 WL 4190688, *5 (E.D.Pa., Nov. 21,
2007) (holding that threats causing the prisoner to withdraw his grievance “removed the availability of

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further administrative remedies”); Stanley v. Rich, 2006 WL 1549114, *2 (S.D.Ga., June 1, 2006) (stating
“threats of violent reprisal may, in some circumstances, render administrative remedies ‘unavailable’ or
otherwise justify an inmate’s failure to pursue them”; citing Hemphill); Holiday v. Giusto, 2005 WL
3244329, *2-3 (D.Or., Nov. 30, 2005) (adopting Hemphill analysis); Osborne v. Coleman, 2002 WL
32818913, *4 (E.D.Va. Sept. 9, 2002) (holding that an allegation that the plaintiff was threatened to
dissuade him from pursuing grievances created a factual issue barring summary judgment as to failure to
exhaust); see Ealey v. Schriro, 208 F.3d 217, 2000 WL 235048, *1 (8th Cir., Mar. 2, 2000) (unpublished)
(allegation that authorities threatened prisoner with retaliation “may” support claim remedies are
unavailable), cert. denied, 531 U.S. 901 (2000).
Note 1047: Funk v. Washburn, 2007 WL 1747384, *2 (M.D.Fla., June 18, 2007) (holding fear of
reprisal does not excuse exhaustion, and state had special procedure for filing with the Office of the
Secretary in such cases); Broom v. Rubitschun, 2006 WL 3344997, *5 (W.D.Mich., Nov. 17, 2006)
(“Plaintiff argues that he should not have to grieve those Defendants who harassed and retaliated against
him. . . . The PLRA does not excuse exhaustion for prisoners who are under imminent danger of serious
physical injury, much less for those who are afraid to confront their oppressors.”); Ware v. Tappin, 2006
WL 3533116, *6-7 (W.D.La., Nov. 3, 2006) (holding fear of retaliation is “no valid defense for failing to
exhaust”); Enright v. Heine, 2006 WL 2594485, *2 (D.Mont., Sept. 11, 2006) (“Even a prisoner’s fear of
retaliatory action could not excuse her from pursuing administrative remedies.”); Broom v. Engler, 2005
WL 3454657, *3 (W.D.Mich., Dec. 16, 2005) (stating, where plaintiff recounted threats he received,
“[t]he PLRA does not excuse exhaustion for a prisoner . . . who is afraid to complain”); Umstead v.
McKee, 2005 WL 1189605, *2 (W.D.Mich. May 19, 2005) (stating “it is highly questionable whether
threats of retaliation could in any circumstances excuse the failure to exhaust administrative remedies”).
Note 1048: Calloway v. Grimshaw, 2011 WL 4345299, *4-5 (N.D.N.Y., Aug. 10, 2011) (holding
allegation that plaintiff was “surrounded by several Correctional Officer[s] and an [u]nknown [s]ergeant
in D Block in the transitional Inmate Care Program” and was told that if he “didn't sign off on the
grievance, they would set [him] up by placing a weapon in [his] cell and [ ] they could make it hard for
[him] if [he] was transferred” was too conclusory because it did not identify the staff members and state
the time of the incident), report and recommendation adopted, 2011 WL 4345296 (N.D.N.Y., Sept. 15,
2011); Obama v. Sanderlin, 2011 WL 2292956, *1 (E.D.Ark., June 9, 2011) (plaintiff’s “allegations
about retaliation are too vague to allow the conclusion that his administrative remedies were
unavailable”); Champ v. Lafayette, 2011 WL 565648, *3 (M.D.Fla., Feb. 8, 2011) (conclusory allegations
of threats without indication of who made them were insufficient); Bennett v. James, 737 F.Supp.2d 219,
226 (S.D.N.Y. 2010) (same as Champ); Cox v. Grayer, 2010 WL 1286837, *8-9 (N.D.Ga., Mar. 29,
2010) (rejecting fear of retaliation as not “objectively reasonable”); Brown v. Napoli, 687 F.Supp.2d 295,
297-98 (W.D.N.Y. 2009) (generalized fear of retaliation unsupported by factual allegations does not
excuse non-exhaustion); Bogard v. Bernal, 2009 WL 2634483, *3 (E.D.Cal., Aug. 25, 2009) (“overall
fear of retaliation” does not excuse exhaustion); Mauskar v. Lewis, 2009 WL 2351750, *2 (S.D.Tex., July
28, 2009) (claim of fear without actual retaliation does not excuse exhaustion); Ledbetter v. Emery, 2009
WL 1871922, *4-5 (C.D.Ill., June 20, 2009) (female prisoner’s general fear of retaliation for complaining
about sexual harassment would not have deterred a “person of ordinary firmness”); Harrison v. Stallone,
2007 WL 2789473, *5-6 (N.D.N.Y., Sept. 24, 2007) (holding “reasonable fear” of retaliation may make
remedies unavailable, but “general fear” does not; the fact that the present claim is for retaliation doesn’t
necessarily create a reasonable fear of further retaliation); Monroe v. Fletcher, 2007 WL 853771, *2
(W.D.Va., Mar. 16, 2007) (holding placement in filthy, isolated medical segregation cell did not excuse
failure to appeal grievance, since medical isolation was part of what the plaintiff had asked for), aff’d,
2007 WL 2710412 (4th Cir., Sept. 14, 2007); Mayo, Sr. v. Louisiana Dept. of Public Safety (WCI), 2006
WL 1985975, *3 (E.D.La., June 7, 2006) (rejecting claim of fear of retaliation where the plaintiff did not
allege a threat was made to him and did not identify the officer he feared); Ketchens v. Rocha, 2006 WL
1652658, *2 (E.D.Cal., June 14, 2006) (holding allegation that defendants had threatened plaintiff with

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placement in administrative segregation was only a “generalized fear of retaliation [which] is not an
exception to the exhaustion requirement”), report and recommendation adopted, 2006 WL 2255517
(E.D.Cal., Aug. 7, 2006); Stanley v. Rich, 2006 WL 1549114, *2 (S.D.Ga., June 1, 2006) (rejecting “nonspecific allegations of fear” and complaints of “allegedly malevolent stares alone”).
Note 1049: Valentine v. Lindsay, 2011 WL 3648261, *7 (E.D.N.Y., Aug. 17, 2011) (holding
claim of fear of retaliation did not excuse failure to complete the last step where the plaintiff had
completed the preceding three steps); Guarneri v. West, 782 F.Supp.2d 51, 60 (W.D.N.Y. 2011) (claim
that retaliation inhibited plaintiff’s exhaustion is inconsistent with subsequent filing of numerous
grievances); Champ v. Lafayette, 2011 WL 565648, *3 (M.D.Fla., Feb. 8, 2011) (noting plaintiff filed
other grievances); Stewart v. Howard, 2010 WL 3907227, *9 (N.D.N.Y., Apr. 26, 2010) (holding
plaintiff’s allegation of fear of filing grievances against certain staff was “belied by his actual conduct” of
filing a different grievance against one of the officers), report and recommendation adopted, 2010 WL
3907137 (N.D.N.Y., Sept. 30, 2010); Dixon v. Correction Corp. of America, Inc., 2010 WL 1462350, *5
(D.Idaho, Apr. 8, 2010) (“Plaintiff's continued engagement in the grievance process shows that Plaintiff
was not prevented from exhausting his administrative remedies based on prison staff's conduct toward
him.”), aff’d, 420 Fed.Appx. 766 (9th Cir. 2011); Baker v. County of Sonoma, 2010 WL 1038401, *21
(N.D.Cal., Mar. 19, 2010) (ruling on state exhaustion law); Garcia v. Baca, 2008 WL 5119156, *5
(C.D.Cal., Dec. 2, 2008); Guerra v. Arkansas Dept. Correction, 2007 WL 4591589, *3 (E.D.Ark., Dec.
28, 2007) (holding that plaintiff who failed to appeal his grievance could not credibly argue that he was
intimidated, since he filed a grievance in the first place); Hernandez v. Coffey, 2006 WL 2109465, *4
(S.D.N.Y., July 26, 2006) (same as Guerra), vacated on other grounds, 582 F.3d 303 (2d Cir. 2009);
Patterson v. Goord, 2002 WL 31640585, *1 (S.D.N.Y., Nov. 21, 2002) (holding allegations of staff
threats insufficient to justify late grievance where prisoner failed to submit grievance promptly upon
transfer from prison where he was being threatened).
Note 1058: Brown v. Runnels, 2006 WL 2849871, *5 (E.D.Cal., Oct. 3, 2006) (refusing to
dismiss for non-exhaustion where grievances were rejected for failure to attach a document that the
plaintiff had not yet received); Bennett v. Douglas County, 2006 WL 1867031, *2 (D.Neb., June 30,
2006) (declining to dismiss for failure to appeal to the Chief Deputy of the jail where there was no Chief
Deputy); Howard v. City of New York, 2006 WL 2597857, *7 (S.D.N.Y., Sept. 6, 2006) (holding
allegations that plaintiff asked to see the grievance officer but was never called, and when transferred was
told he could not grieve a matter from the previous facility, did not support dismissal of the complaint);
Dukes v. S.H.U. C.O. John Doe No. 1, 2006 WL 1628487, *5 (S.D.N.Y., June 12, 2006) (noting that the
failure to record and assign numbers to plaintiff’s grievances might have made appeal impossible); Hause
v. Smith, 2006 WL 2135537, *1-2 (W.D.Mo., July 31, 2006) (holding allegations that attempts to file
grievances were “significantly thwarted” suffice at the pleading stage); Smith v. Briley, 2005 WL
2007230, *3 (N.D.Ill., Aug. 16, 2005) (holding sworn allegations that plaintiff was denied access to
counselor for informal exhaustion purposes supported denial of summary judgment for non-exhaustion);
Johnson v. True, 125 F.Supp.2d 186, 188-89 (W.D.Va. 2000) (holding allegation that efforts to exhaust
were frustrated by prison officials raised an issue of material fact whether plaintiff exhausted “available”
remedies), appeal dismissed, 32 Fed.Appx. 692, 2002 WL 596403 (4th Cir. 2002); Johnson v. Garraghty,
57 F.Supp.2d 321 (E.D.Va. 1999) (holding that factual conflict over whether the plaintiff had been
prevented from exhausting “merits an evidentiary hearing.”).
Note 1062: Threadgill v. Moore, 2011 WL 4388832, *3 (S.D.Miss., July 25, 2011) (dismissing
for non-exhaustion where prisoner’s grievance was “backlogged” because he already had a grievance
pending), report and recommendation adopted, 2011 WL 4386460 (S.D.Miss., Sept. 20, 2011); Ridley v.
Whitener, 2011 WL 3476472, *8 (W.D.N.C., Aug. 9, 2011) (holding “one at a time” grievance policy did
not make the remedy unavailable where prisoners had a year to file a grievance and grievances were to be
disposed of within 40 days; “The fact that Plaintiff's filings were so prolific that they may have interfered

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with his ability to file all of his particular grievances within the one-year statute of limitations does not
exempt him from complying with ARP rules.”) (footnote omitted); Canady v. Keller, 2010 WL 5452111,
*1 (W.D.N.C., Dec. 28, 2010) (holding plaintiff failed to exhaust where system limited prisoners to one
pending grievance at a time and plaintiff did not withdraw his earlier grievance); Escobar v. Brown, 2010
WL 5230877, *5 (D.Colo., Aug. 10, 2010) (holding in substance that restrictions preventing a prisoner
from exhausting do not excuse the prisoner from exhausting), report and recommendation adopted, 2010
WL 5230874 (D.Colo., Dec. 16, 2010); Williams v. Central Prison, 2010 WL 3672252, *4-5 (E.D.N.C.,
Sept. 20, 2010) (same as Canady); Cummings v. Crumb, 2009 WL 3154446, *15 (3d Cir., Oct. 2, 2009)
(restriction to no more than one grievance every 15 days did not prevent plaintiff from filing suit); White
v. Epps, 2010 WL 2539659, *2-3 (S.D.Miss., Mar. 3, 2010) (similar to Clayborne, below), report and
recommendation adopted, 2010 WL 2540113 (S.D.Miss., June 16, 2010); Harvey v. LeBlanc, 2010 WL
996435, *2 (W.D.La., Feb. 5, 2010) (dictum) (stating exhaustion defense was “potentially meritorious”
where policy provided that only one grievance would be processed at a time and others were
“backlogged”; plaintiff had 34 backlogged grievances), report and recommendation adopted, 2010 WL
996433 (W.D.La., Mar. 17, 2010), appeal dismissed, 394 Fed.Appx. 154 (5th Cir. 2010); Blach v.
Kernan, 2008 WL 4447718, *2 (N.D.Cal., Sept. 29, 2008) (limit of one grievance a week did not prevent
exhaustion where plaintiff had two years to get his grievance filed); Clayborne v. Epps, 2008 WL
4056293, *3-4 (S.D.Miss., Aug. 25, 2008) (plaintiff failed to exhaust where system limited prisoners to
one pending grievance at a time and plaintiff did not withdraw his prior grievance); West v. Endicott,
2008 WL 906225, *3 (E.D.Wis., Mar. 31, 2008) (holding a system that allowed two grievances a week
did not prevent the plaintiff from exhausting), reconsideration denied, 2008 WL 2035474 (E.D.Wis., May
12, 2008), and 2008 WL 3992772 (E.D.Wis., Aug. 22, 2008); Williams v. Washington, 2008 WL
2078124, *4 (W.D.Wash., Feb. 21, 2008) (prisoner whose grievance was rejected because he was not
allowed to have more than five grievances “active” at one time, and who did not withdraw a grievance so
he could file the new one, failed to exhaust), report and recommendation adopted, 2008 WL 2078123
(W.D.Wash., May 14, 2008); McGrew v. Teer, 2008 WL 516547, *2 (M.D.La., Jan. 23, 2008)
(dismissing for non-exhaustion where plaintiff’s grievance was not decided but was “placed on backlog”
pending exhaustion of other previously filed grievances; he filed suit three and a half months after filing
his grievance); Oestriecher v. Wallace, 2007 WL 4224929, *3 n.7 (E.D.La., Nov. 27, 2007) (dictum)
(stating that a “backlog system” that deferred multiple grievances from the same prisoner is
constitutionally permissible and does not excuse failure to exhaust); Edmond v. Lindsey, 2006 WL
3203755, *2 (S.D.Miss., Nov. 3, 2006) (holding that officials’ refusal to process grievances based on a
rule allowing only 10 grievances to be pending at once did not excuse the plaintiff’s failure to exhaust);
Hernandez v. Schriro, 2006 WL 2989030, *4 (D.Ariz., Oct. 18, 2006) (holding grievance process
unavailable where grievance was mistakenly rejected pursuant to a rule that allowed only one conditions
of confinement grievance and returned additional ones unprocessed and unappealable).
Note 1064: Sanders v. Davis, 2012 WL 5830423, *4-5 (S.D.Ill., Oct. 15, 2012) (holding
remedies unavailable where officials refused to sign off and to process plaintiff’s grievance), report and
recommendation adopted, 2012 WL 5830401 (S.D.Ill., Nov. 16, 2012); Martin v. Rednour, 2012 WL
3705102, *5 (S.D.Ill., Aug. 6, 2012) (holding remedies unavailable where grievance staff refused to
accept grievances returned from central grievance body with instructions to file at the prison), report and
recommendation adopted, 2012 WL 3705093 (S.D.Ill., Aug. 27, 2012); Penton v. Dickinson, 2012 WL
2620528, *8-10 (E.D.Cal., July 5, 2012) (holding remedies unavailable where grievance staff demanded
plaintiff attach meterials he did not have), report and recommendation adopted, 2012 WL 4050075
(E.D.Cal., Sept. 13, 2012); Carroll v. Read, 2012 WL 1229335, *6 (C.D.Cal., Apr. 12, 2012) (holding that
where authorities declined to process grievance, instead charging the plaintiff with conduct violations for
filing it, the remedy was unavailable); Thurmond v. Cool, 2012 WL 601251, *7 (D.Nev., Jan. 9, 2012)
(“Plaintiff exhausted all available remedies by supplying prison officials with his property inventory
sheet, addressing his property issue with his caseworker, and filing numerous grievances, which
thoroughly explained his simple request. In response, prison officials requested additional unnecessary

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documents, denied grievances, and frustrated plaintiff's attempts to exhaust his administrative
remedies.”), report and recommendation adopted, 2012 WL 590021 (D.Nev., Feb. 21, 2012); Schoenlein
v. Halawa Correctional Facility, 2008 WL 4761791, *5-6 (D.Haw., Oct. 29, 2008) (officials should not
have terminated plaintiffs’ grievances when they filed suit prematurely; though their suit had been
dismissed, the issues had not been mooted, and exhaustion may be excused upon re-filing on these facts);
Woods v. Carey, 2008 WL 447553 (E.D.Cal., Feb. 15, 2008) (where grievance official directed plaintiff
to the medical appeals analyst, but that person said plaintiff’s grievance must first be processed by the
grievance office, plaintiff had exhausted; court refers to “runaround”); Bradley v. McVay, 2008 WL
495732, *3) (E.D.Cal., Feb. 21, 2008) (if prison officials required plaintiff to go to an interview room for
an investigation, and he could not do so without the cane he had been deprived of, the grievance process
would not be available to him), report and recommendation adopted, 2008 WL 669858 (E.D.Cal., Mar. 7,
2008); Baylis v. Taylor, 475 F.Supp.2d 484, 488 (D.Del. 2007) (holding officials’ withdrawal of
plaintiff’s grievances because of litigation meant that he had exhausted, since no further remedies were
available); Ray v. Jones, 2007 WL 397084, *2 (W.D.Okla., Feb. 1, 2007) (holding grievance process was
not an available remedy because of ongoing internal affairs investigation); Marshall v. Knight, 2006 WL
3354700, *4 (N.D. Ind. Nov. 17, 2006) (holding that instructions to grievance personnel to respond to
grievances about law library hours only by sending prisoners a copy of a memo deprived grievance staff
of authority to act on those grievances and made the remedy unavailable); James v. Davis, 2006 WL
2171082, *17 (D.S.C., July 31, 2006) (holding that return of grievances unprocessed, on the ground that
the problems were taken care of and that damages claims could not be grieved, thwarted plaintiff’s ability
to exhaust); Rolllins v. Magnusson, 2004 WL 3007090, *1 (D.Me., Dec. 28, 2004) (refusing to dismiss
for non-exhaustion where the prisoner’s right to file grievances had been suspended), adopted, 2005 WL
226218 (D.Me., Jan. 31, 2005); Labounty v. Johnson, 253 F.Supp.2d 496, 502-06 (W.D.N.Y. 2003)
(denying summary judgment where grievance supervisor’s alleged failure to follow procedures prevented
plaintiff’s appeal from going forward and where evidence showed that his grievance was consolidated
with another prisoner’s, and the decision did not mention the issue he was concerned about, presenting a
factual issue whether it was “reasonable for plaintiff to be confused under such circumstances”); Bullock
v. Horn, 2000 WL 1839171, *2 (M.D.Pa., Oct. 31, 2000) (holding allegation that prison officials returned
grievances unprocessed, without grievance numbers, making appeal impossible was sufficient to defeat a
motion to dismiss).
Note 1065: Allen v. City of Saint Louis, 2008 WL 695393, *4-5 (E.D.Mo., Mar. 12, 2008)
(finding remedies unavailable where plaintiff’s requests for forms and information about how to file were
ignored, denied, or “pacified with promises” of an investigation, and he was improperly segregated to
prevent access to the grievance procedure and third parties); Miller v. Berkebile, 2008 WL 635552, *7-9
(N.D.Tex., Mar. 10, 2008) (where official refused to process first-stage grievances contrary to policy,
remedy was unavailable; prisoners need not take steps not prescribed in the policy to get around him;
PLRA law applied in § 2241 case); Smith v. Westchester County Dept. of Corrections, 2008 WL 361130,
*3 (S.D.N.Y., Feb. 7, 2008) (remedies were unavailable if supervisors refused to accept plaintiff’s
grievance); Crawford v. Berkebile, 2008 WL 323155, *7-8 (N.D.Tex., Feb. 6, 2008) (counselor’s refusal
to accept grievance forms made the remedy unavailable; prisoners were not required to go to other
officials where it was the counselor’s job to receive grievances); Barndt v. Pucci, 2007 WL 1031509, *23 (M.D.Pa., Mar. 30, 2007) (denying summary judgment where prisoner alleged he could not grieve
because he was deprived of writing materials and legal paperwork for four months); Lomako v. CSP
Corcoran, 2010 WL 2698743, *7-8 (E.D.Cal., July 7, 2010) (holding remedies unavailable where
plaintiff’s request for accommodation was returned for supplementation but made due on a date that was
already past, and then mis-recorded as having been withdrawn by the plaintiff), report and
recommendation adopted, 2010 WL 3502514 (E.D.Cal., Sept. 2, 2010); Kress v. CCA of Tenn., 2010 WL
2694986, *5 (S.D.Ind., July 2, 2010) (holding remedy unavailable where defendants said they would not
consider the issue plaintiff raised); Exmundo v. Kane, 2010 WL 1904837, *5-6 (E.D.Cal., May 7, 2010)
(where grievance coordinator directed prisoner to submit grievance to two other staff members, and they

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did not reply, their violation of procedure would render remedies unavailable); Tuttle v. Boynton, 2009
WL 2134968, *4 (W.D.Mich., July 15, 2009) (holding that prisoner whose grievance was not answered
timely and whose requests for an appeal form were denied or ignored had exhausted available remedies);
Ortega v. Felker, 2009 WL 1582850, *5 (E.D.Cal., June 4, 2009) (declining to dismiss for non-exhaustion
where untimeliness of appeal resulted from the grievance decision’s being provided after the appeal
deadline had expired), report and recommendation adopted, 2009 WL 2241804 (E.D.Cal., July 27, 2009);
Antolin v. Halawa Correctional Facility, 2009 WL 855806, *4 n.6 (D.Haw., Mar. 31, 2009) (grievance
response stating that other prisoners had filed litigation and no grievances would be processed on the
subject “strongly suggests” no remedies were available); Blackburn v. South Carolina, 2009 WL 632542,
*9 (D.S.C., Mar. 10, 2009) (declining to dismiss where grievance official did not respond to plaintiffs’
grievance because of a backlog of grievances; “If the prison administrators do not or will not respond to a
defendant attempting to administratively resolve his grievances, it would be fundamentally unjust for this
court to deny such a party access to a remedy when they could get no response from prison officials.”);
Alwood v. Randt, 2006 WL 2639887, *2 (N.D.Ind., Sept. 12, 2006) (denying summary judgment where
prisoner’s sworn statement said that a prison official came to his cell and “ripped up his grievance,
thereby refusing to allow it to be processed”); Collins v. Goord, 438 F.Supp.2d 399, 415 (S.D.N.Y. 2006)
(holding allegations that facility personnel invented a screening procedure and did not allow him to file
his grievance raised a material issue under “an exception to the PLRA’s exhaustion requirement where
prison authorities actively obstruct an inmate’s ability to ‘properly’ file a prison grievance”); Blount v.
Fleming, 2006 WL 1805853, *2-4 (W.D.Va., June 29, 2006) (stating “when prison officials prevent an
inmate from access to or use of a prison inmate’s grievance system, an inmate’s failure to exhaust is
excused because he had no ‘available’ administrative remedy”; finding inter alia that defendants falsely
claimed not to have received plaintiff’s grievances); Carter v. Newland, 441 F.Supp.2d 208, 211 (D.Mass.
2006) (declining to dismiss for non-exhaustion in view of allegations that a prison counselor tore up the
plaintiff’s grievances); Liggins v. Barnett, 2001 WL 737551 *14-15 (S.D.Iowa, May 15, 2001) (allegation
that plaintiff filed grievances and prison staff destroyed them supported claim of substantial compliance;
though “the question is close,” allegation that grievances were destroyed and grievance committee given a
false report by staff member raised an inference that filing a grievance was an unavailable remedy).
Note 1069: Lineberry v. Federal Bureau of Prisons, 923 F.Supp.2d 284, 292-93 (D.D.C. 2013);
McLemore v. Cruz, 2013 WL 1174435, *3-4 (M.D.Fla., Mar. 20, 2013); Thornton v. Chandler, 2013 WL
244061, *5 (D.Del., Jan. 22, 2013); Manon v. Albany County, 2012 WL 6202987, *5 (N.D.N.Y., Oct. 9,
2012), report and recommendation adopted, 2012 WL 6202984 (N.D.N.Y., Dec. 12, 2012); Vazquez v.
Curcione, 2012 WL 6569367, *3 (W.D.N.Y., Dec. 17, 2012); Flores v. Wall, 2012 WL 4471101, *4-5
(D.R.I., Aug. 31, 2012) (holding allegation that “specific claim” that identified officers who refused
plaintiff grievance forms raised a material factual issue of availability), report and recommendation
adopted, 2012 WL 4470998 (D.R.I., Sept. 25, 2012); Swisher v. Porter County Sheriff's Dept., 2012 WL
3776363, *3 (N.D.Ind., Aug. 29, 2012) (denying summary judgment to defendant where plaintiff “states
under penalty of perjury that he attempted to grieve the incidents he presents in his complaint but that jail
officials would not provide him with a grievance form”; this is not conclusory), reconsideration denied,
2013 WL 550507 (N.D.Ind., Feb. 11, 2013); Franklin v. Mosley, 2012 WL 3535772, *2 (E.D.Mo., Aug.
14, 2012) (denying summary judgment based on claim of denial of forms); Dodson v. Box, 2012 WL
2721914, *3 (N.D.Ind., July 9, 2012) (refusing to grant summary judgment for non-exhaustion where
plaintiff’s grievance was late because of failure to provide forms timely); Hankins v. Pennsylvania, 2011
WL 6739289, *12 (W.D.Pa., Nov. 30, 2011) (refusing to dismiss for non-exhaustion where plaintiff
documented his efforts to obtain grievance forms), report and recommendation adopted in part, rejected
in part on other grounds, 2011 WL 6739288 (W.D.Pa., Dec. 22, 2011); Marella v. Terhune, 2011 WL
4074865, *9-10 (S.D.Cal., Aug. 16, 2011); Williams v. Calton, 2011 WL 1598775, *3 (W.D.Va., Apr. 27,
2011);Brown v. Fischer, 2010 WL 5797359, *3 (N.D.N.Y., Dec. 8, 2010), report and recommendation
adopted, 2011 WL 552039 (N.D.N.Y., Feb. 9, 2011); Bailey v. Fortier, 2010 WL 4005258, *6-7
(N.D.N.Y., Aug. 30, 2010), report and recommendation adopted, 2010 WL 3999629 (N.D.N.Y., Oct. 12,

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2010); Wilson v. Collins, 2010 WL 785377, *14 (W.D.Va., Mar. 5, 2010), appeal dismissed, 382
Fed.Appx. 286 (4th Cir. 2010); Russo v. Honen, e755 F.Supp.2d 313, 315 (D.Mass. 2010); Beckhum v.
Hirsch, 2010 WL 582095, *9 (D.Ariz., Feb. 17, 2010); Cipriani v. Schenectady County, 2009 WL
3111681, *11 (N.D.N.Y., Sept. 24, 2009); Perry v. Torres, 2009 WL 2957277, *4 (S.D.N.Y., Sept. 16,
2009) (if appeal had to be filed on the form bearing the grievance decision, and prisoner did not receive a
decision, defendants would be estopped from insisting on the form); Hulvey v. Quigley, 2009 WL
2477308, *6 (W.D.Mich., Aug. 11, 2009) (denying summary judgment where plaintiff used the wrong
forms because, he said, he couldn’t get the right ones); Kantamanto v. King, 651 F.Supp.2d 313, 323-24
(E.D.Pa. 2009) (plaintiffs’ account of being denied appeal forms raised a disputed factual issue barring
summary judgment); Bertres v. Byers, 2007 WL 4224389, *8 (M.D.Pa., Nov. 28, 2007) (“plaintiff's
statements under penalty of perjury in his complaint that he was not provided a grievance form are
adequate to establish that it is in dispute whether he was reasonably able to exhaust”); Chatham v.
Adcock, 2007 WL 2904117, *14 (N.D.Ga., Sept. 28, 2007) (“It would be an anomalous result, indeed, if
prison officials could foreclose prison inmates from filing civil rights lawsuits in federal court simply by
depriving them of the means to fulfill a mandatory prerequisite to doing so.”), aff’d, 334 Fed.Appx. 281
(11th Cir. 2009); Hedgespeth v. Hendricks, 2007 WL 2769627, *5 (D.N.J., Sept. 21, 2007) (refusing to
dismiss where plaintiff alleged that he was told by housing officers there were no grievance forms, and
inmate handbook said housing officers were the source of forms); Cody v. White, 2007 WL 1726583, *2
(D.N.D., June 13, 2007) (denying summary judgment where segregation prisoner said he couldn’t get
forms from staff and rules did not seem to allow him to go to grievance office); Tabarez v. Butler, 2007
WL 988040, *2-3 (E.D.Cal., Mar. 30, 2007) (holding defendants’ claim that prisoners “customarily” have
access to grievance forms did not mean this plaintiff did, especially since he said only those who were
“on good terms” with the guards could get forms), report and recommendation adopted, 2007 WL
1804968 (E.D.Cal., June 21, 2007); Bowers v. City of Philadelphia, 2007 WL 219651, *16 (E.D.Pa., Jan.
25, 2007) (holding grievance process unavailable where forms were not provided in police custody or jail
intake area); Allen v. McMorris, 2007 WL 172564, *2 (E.D.Mo., Jan. 19, 2007) (holding allegation that
prisoner could not get grievance policy or forms barred summary judgment for defendants); Wallace v.
Williams, 2006 WL 3091435, *3 (S.D.Ga., Oct. 30, 2006) (refusing to dismiss for non-exhaustion where
prisoner repeatedly requested forms without success); Enigwe v. Zenk, 2006 WL 2654985, *4 (E.D.N.Y.,
Sept. 15, 2006) (denying summary judgment to defendants where plaintiff asserted his repeated efforts to
obtain forms were fruitless); Montgomery v. Johnson, 2006 WL 2403305, *11 (W.D.Va., Aug. 18, 2006)
(crediting evidence that policies and practices were not followed and plaintiff was unable to obtain
forms), report and recommendation adopted, 2006 WL 3099651 (W.D.Va. Oct. 30, 2006); Hollon v.
Prison Health Services, 2006 WL 1131808, *2 (S.D.Ind., Apr. 25, 2006); McDonald v. Schuster, 2006
WL 411062, *5 (D.Ariz., Feb. 16, 2006) (“One way that prison officials can prevent an inmate from
utilizing a remedy is by denying him access to the requisite grievance forms until the window for filing
grievances has passed.”); Smith v. Briley, 2005 WL 2007230, *3 (N.D.Ill., Aug. 16, 2005) (denying
summary judgment where plaintiff alleged that he was denied grievance forms and grievances he
submitted on pieces torn from a paper bag were never answered); Ziemba v. Armstrong, 343 F.Supp.2d
173 (D.Conn. 2004) (holding remedies unavailable where prisoner was denied forms and Warden wrote
“We will make the decision which grievances are processed or responded to.”); Washington v. Proffit,
2005 WL 1176587, *2-3 (W.D.Va., May 17, 2005) (holding that a plaintiff who sought to exhaust after
dismissal for non-exhaustion, and was told by the defendants’ lawyer to contact defendants only through
her and then refused to provide him grievance forms, had been “thwarted” by defendants and his claim
would not be dismissed for non-exhaustion), report and recommendation adopted, 2005 WL 1429312
(W.D.Va., June 17, 2005); Dudgeon v. Frank, 2004 WL 1196820, *1 (W.D.Wis., May 18, 2004); Arreola
v. Choudry, 2004 WL 868374, *3 (N.D.Ill., Apr. 22, 2004) (same); Kendall v. Kittles, 2003 WL
22127135, *4 (S.D.N.Y., Sept. 15, 2003); Abney v. County of Nassau, 237 F.Supp.2d 278, 282 (E.D.N.Y.
2002) (holding that prisoner who could not get grievance forms, wrote grievance on plain paper, but never
got a response had exhausted).

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Note 1072: Taylor v. Thames, 2010 WL 3614189, *4-5 (N.D.N.Y., July 22, 2010) (similar to
Robinson), report and recommendation adopted, 2010 WL 3614191 (N.D.N.Y., Sept. 8, 2010); Robinson
v. Gordon, 2010 WL 1794701, *2-3 (D.N.H., May 5, 2010) (where one staff member declined to give
plaintiff a grievance form, he should have asked another officer); Allen v. Jussila, 2010 WL 759870, *6
(D.Minn., Mar. 2, 2010) (rejecting claim where plaintiff “never described the forms he required, the
efforts he made to try to obtain the forms, or whether he was actually denied access to the administrative
remedy forms by the BOP”; conclusory statements were inadequate); Noland v. Garfield County
Detention Center, 2009 WL 5067206, *6 (W.D.Okla., Dec. 15, 2009) (rejecting claim of denial of forms
by a single staff member where the plaintiff did not explain why he didn’t try to get forms from someone
else, and there was no time limit for grievances); Wall v. Black, 2009 WL 3215344, *6 (S.D.Miss., Sept.
30, 2009) (holding prisoner must provide “identification of the prison employee(s) from whom Plaintiff
requested forms; identification of the specific form(s) requested; the date the alleged requests were made;
evidence detailing the prison officials' response(s) to his alleged request(s); and evidence detailing
complaints of denial” (citation omitted); Medina v. Bahlarama, 2009 WL 2973097, *3-4 (W.D.Wash.,
Sept. 9, 2009) (rejecting claim that the duty officer and floor sergeant did not provide grievance forms
where the policy said they should be provided by the housing officer); Carter v. Arpaio, 2009 WL
2509202, *3 (D.Ariz., Aug. 13, 2009) (citing failure to identify persons who denied him forms); Gomez
v. Swanson, 2009 WL 1085274, *3 (E.D.Cal., Apr. 22, 2009) (citing failure to say when or to whom he
made the request, whether he repeated the request or went to a supervisor about it); Lomas v. U.S., 2008
WL 819459, *3 (W.D.Okla., Mar. 25, 2008) (citing plaintiff’s failure to state “to whom or when the
requests were made or to explain his access to certain forms and not others”); Dye v. Bartow, 2007 WL
3306771, *6 (E.D.Wis., Nov. 6, 2007) (citing plaintiff’s failure to identify the forms he requested and the
date of request, to supply a copy of his request, or to submit evidence detailing officials’ response to his
requests), aff’d, 282 Fed.Appx. 434 (7th Cir. 2008) (unpublished); Beasley v. Kontek, 2007 WL 3306637,
*2 (N.D.Ohio, Nov. 5, 2007) (“A prisoner may not be excused from exhausting internal remedies if his
failure resulted from a form not being provided to him, unless he alleges that there was no other source
for the form or that he can prove that he made other attempts to ‘obtain a form or file a grievance.’”
(quoting Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001)).
Note 1074: Henderson v. Phillips, 2010 WL 3894574, *2 (N.D.Ind., Sept. 29, 2010) (holding
remedies were unavailable where officials rejected plaintiff’s grievance and directed him to a process that
by policy would not address his problem); Cooper v. Evans, 2010 WL 2219625, *6 (S.D.Ill., May 28,
2010) (declining to dismiss where plaintiff was told by the highest grievance authority to use a form that
was in fact unavailable because reserved for prison staff), report and recommendation adopted, 2010 WL
3895702 (S.D.Ill., Sept. 29, 2010); Johnson v. Cannon, 2010 WL 936706, *4-5 (D.S.C., Mar. 15, 2010)
(plaintiff who was directed to address his grievance to the Major, and did so without response,
exhausted), aff’d, 390 Fed.Appx. 256 (4th Cir., Aug. 6, 2010); Randolph v. Kelly, 2010 WL 883747, *5
(E.D.Va., Mar. 9, 2010) (plaintiff who, inter alia, was repeatedly given contradictory information about
where his grievances should be directed had no available remedy); Robertson v. Dart, 2009 WL 2382527,
*3 (N.D.Ill., Aug. 3, 2009) (finding appeal unavailable where illiterate plaintiff was given wrong
instructions how to fill out the appeal form); Shaw v. Jahnke, 607 F.Supp.2d 1005, 1008-09 (W.D.Wis.
2009) (finding no failure to exhaust where failure to complete the process resulted from misinformation in
contradictory grievance decisions); Sumpter v. Skiff, 2008 WL 4518996, *6 (N.D.N.Y., Sept. 30, 2008)
(finding special circumstances justifying failure to follow administrative appeal rules where
administrative decision gave instructions that contradicted the rules); Plaster v. Kneal, 2008 WL 4090790,
*3-4 (M.D.Pa., Aug. 29, 2008) (declining to dismiss where plaintiff missed a deadline after following
erroneous advice from prison staff about how to appeal); Chinnici v. Edwards, 2008 WL 3851294, *5
(D.Vt., Aug. 12, 2008) (supervisor’s statement that sex abuse complaint did not require completing the
grievance process could constitute estoppel or special circumstances excusing non-exhaustion); Spinney
v. U.S., 2008 WL 1859810, *6 (W.D.Pa., Apr. 23, 2008) (if plaintiff delayed one grievance on advice of
counselor, remedy may not have been available to him); McCray v. Peachey, 2007 WL 3274872, *6

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(E.D.La., Nov. 6, 2007) (holding plaintiff who complied with the policy he was informed of exhausted,
even if his grievance was rejected “solely on the basis that some other complaint process or policy was
apparently in existence”); Ray v. Jones, 2007 WL 397084, *2 (W.D.Okla., Feb. 1, 2007) (declining to
dismiss for non-exhaustion where the plaintiff was repeatedly advised that an internal affairs investigation
was a substitute for the grievance process); Flory v. Claussen, 2006 WL 3404779, *3-4 (W.D. Wash.,
Nov. 21, 2006) (holding prisoner who followed officials’ instruction to file an “appeal” to the Facility
Risk Management Team about removal from his job, rather than a grievance, exhausted); Cahill v.
Arpaio, 2006 WL 3201018, *3 (D.Ariz., Nov. 2, 2006) (holding plaintiff reasonably relied on grievance
hearing officer’s statement that “(1) the matter was under investigation and he would not be notified of
the results, (2) he could not appeal and would not be given a form, and (3) he should proceed to federal
court,” notwithstanding that the preprinted decision form said it could be appealed); Scott v. California
Supreme Court, 2006 WL 2460737, *7 (E.D.Cal., Aug. 23, 2006) (holding that a prisoner who had relied
on officials’ misinformation and sought relief in state court had exhausted, notwithstanding officials’
subsequent issuance of an untimely decision which he did not appeal); Wheeler v. Goord, 2005 WL
2180451, *6 (N.D.N.Y., Aug. 29, 2005) (holding prisoner who was erroneously told to “write to Sergeant
Coffee” to grieve raised an issue whether remedies were available); Croswell v. McCoy, 2003 WL
962534, *4 (N.D.N.Y., Mar. 11, 2003) (holding that a prisoner who relies on prison officials’
representations as to correct procedure has exhausted); O’Connor v. Featherston, 2003 WL 554752, *2-3
(S.D.N.Y., Feb. 27, 2003) (holding allegation that prison Superintendent told a prisoner to complain via
the Inspector General rather than the grievance procedure presented triable factual issues); Heath v.
Saddlemire, 2002 WL 31242204, *5 (N.D.N.Y., Oct. 7, 2002) (holding that a prisoner who was told by
the Commission of Correction that notifying the Inspector General was the correct procedure was entitled
to rely on that statement); Thomas v. New York State Dept. of Correctional Services, 2002 WL
31164546, *3 (S.D.N.Y., Sept. 30, 2002) (holding that a prisoner’s allegation that an officer told him he
didn’t need to grieve because other prisoners had done so was sufficient to defeat summary judgment for
non-exhaustion); Lee v. Walker, 2002 WL 980764, *2 (D.Kan., May 6, 2002) (holding that prisoner who
sent his grievance appeal to the wrong place would be entitled to reconsideration of dismissal if he
showed that the prison handbook said it was the right place); Hall v. Sheahan, 2001 WL 111019, *2
(N.D.Ill., Feb. 2, 2001) (holding that a prison officials’ statement to the plaintiff that she would have the
toilet fixed, and he should stop asking her about it, might estop defendants from claiming non-exhaustion;
it “raises the question whether Baker effectively represented (or misrepresented) to Hall that he had done
all he needed to do, or that the grievance procedure was useless, i.e., ‘available,’ but not a ‘remedy.’”);
Feliz v. Taylor, 2000 WL 1923506, *2-3 (E.D.Mich., Dec. 29, 2000) (holding that a plaintiff who was
told his grievance was being investigated, then when he tried to appeal later was told it was untimely, had
exhausted, since he had no reason to believe he had to appeal initially).
Note 1075: Boclair v. Illinois Dept. of Corrections, 2012 WL 463236, *4 (S.D.Ill., Jan. 24, 2012)
(counselor’s statement that a grievance was unnecessary and internal affairs’ instruction “not to write crap
(grievances) in again on staff” did not excuse failure to pursue grievance absent “affirmative misconduct”
by staff or their representation that he had done all that was necessary), report and recommendation
adopted, 2012 WL 878219, *3 n.3 (S.D.Ill., Mar. 14, 2012); Stuart v. Carbonelly, 2011 WL 7005724, *3
(N.D.Fla., Nov. 3, 2011) (“Prisoners cannot subvert the PLRA's exhaustion requirement merely by
alleging prison officials told them an administrative process was futile or unnecessary because the
prisoner sought monetary compensation unavailable through the administrative process.”), report and
recommendation adopted, 2012 WL 94620 (N.D.Fla., Jan. 12, 2012), appeal dismissed, No. 12-11109
(11th Cir., July 13, 2012); Balorck v. Reece, 2007 WL 3120110, *4 (W.D.Ky., Oct. 23, 2007) (holding
prisoner who was told by the Grievance Aide, the only means of filing a grievance, that his late grievance
would not be accepted, could nonetheless have asked the Grievance Coordinator for an extension of time
to file); Morgan v. Arizona, 2007 WL 2808477, *6 (D.Ariz., Sept. 27, 2007) (holding prisoner who was
told he could not grieve an assault by his counselor, who refused to accept his grievance, was not excused
from exhausting because he did not allege that he needed the counselor’s permission to file); Lopez

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Gutierrez v. Maricopa County Sheriff’s Office, 2006 WL 2925666, *2 (D.Ariz., Oct. 11, 2006) (holding
statement that unidentified officers said his “request did not warrant a grievance” did not make remedies
unavailable); U.S. v. Ali, 396 F.Supp.2d 703, 707 (E.D.Va. 2005) (holding that a prisoner who received a
response that “[a]s these issues are addressed by your attys [sic] and the government you will be
informed” and did not appeal failed to exhaust); Thomas v. New York State Dep’t of Correctional
Services, 2003 WL 22671540, *3-4 (S.D.N.Y., Nov. 10, 2003) (dismissing case where prison staff told
the prisoner a grievance was not necessary; this was “bad advice, not prevention or obstruction,” and the
prisoner did not make sufficient efforts to exhaust).
Note 1076: Stuart v. Taylor, 2012 WL 729220, *3 (W.D.Okla., Feb. 16, 2012) (declining to grant
summary judgment for non-exhaustion of private corporation’s remedies which excluded complaints
about contracting agencies’ policies or decisions), report and recommendation adopted, 2012 WL 729066
(W.D.Okla., Mar. 6, 2012); Walker v. McDonald, 2011 WL 5513446, *2 (E.D.Cal., Nov. 10, 2011)
(holding plaintiff who received grievance response stating “The action or decision being appealed is not
within the jurisdiction of the department” did not fail to exhaust; “plaintiff did what he was required to do
and then was shut-out of the grievance process for a reason which appears to run afoul of the regulations
for the inmate grievance process.”); Zlotorzynski v. Bozman, 2011 WL 5150854, *3 (D.Md., Oct. 27,
2011) (holding plaintiff was not obliged to appeal a grievance decision stating his request for protective
custody was a non-grievable case management matter); Mclemore v. Cruz, 2011 WL 4101729, *3
(M.D.Fla., Sept. 14, 2011) (declining to dismiss in light of allegations that prison investigator told
plaintiff a grievance would interfere with her investigation and was unnecessary); Weathington v. U.S.,
2011 WL 1211509, *4 (W.D.La., Mar. 3, 2011) (denying summary judgment where plaintiff who filed a
grievance was told a damages claim should be pursued through an administrative tort claim), report and
recommendation adopted, 2011 WL 1226046 (W.D.La., Mar. 30, 2011); Doner v. Mason, 2011 WL
915755,*6 (W.D.Pa., Feb. 25, 2011) (denying summary judgment where plaintiff was told that threats and
harassment were not grievable issues), report and recommendation adopted in part, rejected in part on
other grounds, 2011 WL 901008 (W.D.Pa., Mar. 15, 2011); James v. Hayden, 2010 WL 3341822, *10
(S.D.N.Y., Aug. 23, 2010), report and recommendation adopted in part, rejected in part on other
grounds, 2010 WL 3703841 (S.D.N.Y., Sept. 21, 2010); Walker v. Shaw, 2010 WL 2541711, *14
(S.D.N.Y., June 23, 2010) (denying summary judgment where acts and statements of staff suggested
“security risk group” classification was not grievable when plaintiff sought to grieve it); Davis v. Rouse,
2009 WL 4728988, *2 (D.Md., Dec. 3, 2009) (holding plaintiff had exhausted where his grievance was
referred to the internal investigation unit and he was told that he could not pursue the grievance for that
reason), vacated in part on reconsideration on other grounds, 2010 WL 2025554 (D.Md., May 18, 2010);
Tolliver v. Ercole, 2009 WL 3094870, *5 (S.D.N.Y., Sept 9, 2009); Upthegrove v. Health Professionals,
Ltd., 2009 WL 2244723, *5 (W.D.Wis., July 24, 2009) (holding plaintiff was entitled to rely on staff
statements that grievance process could not overrule medical decisions), report and recommendation
adopted, 2010 WL 1222053 (S.D.N.Y., Mar. 29, 2010); Johnson v. Van Boening, 2008 WL 4162901, *4
(W.D.Wash., Sept. 3, 2008) (plaintiff exhausted despite failure to appeal to third and final level where
decisions at first two levels said complaint was non-grievable); Greene v. C.D.C., 2008 WL 413750, *2
(E.D.Cal., Feb. 8, 2008) (plaintiff exhausted without completing the grievance process where the response
to his grievance said it was an abuse of the process and plaintiff should instead use a form for requesting
an interview instead), report and recommendation adopted, 2008 WL 683551 (E.D.Cal., Mar. 13, 2008);
Marr v. Fields, 2008 WL 828788, *6 (W.D.Mich., Mar. 27, 2008) (where prisoner was told by staff his
disciplinary retaliation claim could not be grieved, dismissal for non-exhaustion was denied); Kelley v.
Roberts, 2008 WL 714097, *2 (W.D.Wash., Mar. 14, 2008) (declining to dismiss claim of plaintiff who
was advised through an “initial grievance” that his issue should be addressed through the classification
process and not the grievance process, and did so); Bryant v. Sacramento County Jail, 2008 WL 410608,
*5-6 (E.D.Cal., Feb. 12, 2008) (denying summary judgment where prisoner was directed to “citizen
complaint” procedure rather than jail grievance procedure), report and recommendation adopted, 2008
WL 780704 (E.D.Cal., Mar. 21, 2008); Smith v. Westchester County Dept. of Corrections, 2008 WL

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361130, *3 (S.D.N.Y., Feb. 7, 2008) (plaintiff reasonably believed his claim was not grievable where a
Sergeant told him so); Riley v. Hawaii Dept. of Public Safety, 2007 WL 3072777, *4-6 (D.Haw., Oct. 17,
2007) (holding sexual assault victims who completed the emergency grievance process as instructed,
rather than the regular grievance process, had exhausted); Rasmussen v. Richards, 2007 WL 2677129, *2
(W.D.Wash., Sept. 7, 2007) (declining to dismiss for non-exhaustion where prisoner challenging failure
to release him on the proper date was told he could not file a grievance concerning his sentence); Lewis v.
Cunningham, 2007 WL 2412258, *2 (S.D.N.Y., Aug. 23, 2007) (holding prisoner who was told by
grievance official that his medical complaint should go to the Chief Medical Officer rather than the
grievance system showed special circumstances excusing lack of proper exhaustion); Partee v. Grood,
2007 WL 2164529, *4 (S.D.N.Y., July 25, 2007) (prisoner whose grievance response said his issue is
“beyond the purview” of the grievance process showed special circumstances justifying failure to appeal);
Davis v. Williams, 495 F.Supp.2d 453, 457 (D.Del., July 19, 2007) (where grievance response said “not
grievable” because “inmates cannot request or demand disciplinary action on staff,” plaintiff had no
available remedy); Tweed v. Schuetzle, 2007 WL 2050782, *8 (D.N.D., July 12, 2007) (declining to
dismiss for not completing grievances where officials had advised that was not the correct procedure);
Kounelis v. Sherrer, 2005 WL 2175442, *7-8 (D.N.J., Sept. 6, 2005) (declining to dismiss for not
appealing a grievance where prisoner was told he could not file a grievance because the issue belonged in
the disciplinary process or in court); Beltran v. O’Mara, 405 F.Supp.2d 140, 154 (D.N.H. 2005) (holding,
where a grievance was rejected on the ground that incidents which were the subject of disciplinary
proceedings could not be grieved, “a reasonable inmate in [the plaintiff’s] position” would believe the
grievance process was not an available remedy and his claims should be raised in the disciplinary
process), on reconsideration, 2006 WL 240558 (D.N.H., Jan. 31, 2006); Martin v. Gold, 2005 WL
1862116, *8 (D.Vt., Aug. 4, 2005) (“an inmate who is told that a claim is not grievable is not required to
appeal the investigator’s determination”); Willis v. Smith, 2005 WL 550528, *13 (N.D.Iowa, Feb. 28,
2005) (declining to dismiss where plaintiff relied on the statement of a prison official that the written
grievance policy was unavailable); Lane v. Doan, 287 F.Supp.2d 210, 212 (W.D.N.Y. 2003) (holding that
exhaustion is excused where the plaintiff is led to believe the complaint is not a grievance matter or would
otherwise be investigated, or that administrative remedies are unavailable); Boomer v. Lanigan, 2002 WL
31413804, *8 (S.D.N.Y., Oct. 25, 2002); Simpson v. Gallant, 231 F.Supp.2d 341, 350 (D.Me. 2002);
Simpson v. Gallant, 2002 WL 1380049 (D.Me., June 26, 2002); Boomer v. Lanigan, 2001 WL 1646725
(S.D.N.Y., Dec. 17, 2000); Freeman v. Snyder, 2001 WL 515258, *7-8 (D.Del., Apr. 10, 2001).
Note 1078: Martin v. Niagara County Jail, 2012 WL 3230435, *7 (W.D.N.Y., Aug. 6, 2012)
(declining to grant summary judgment for non-exhaustion where prisoner attested that he had not received
the handbook describing the grievance policy); Sees the Ground v. Corrections Corp. of America, 2012
WL 2878606, *2-3 (D.Mont., June 19, 2012) (declining to dismiss for non-exhaustion where prison
handbook included only general information concerning the grievance process but did not describe the
process, and defendants failed to show this information was made available otherwise to the plaintiff),
report and recommendation adopted, 2012 WL 2878415 (D.Mont., July 13, 2012); Hood v. Perkins, 2012
WL 2861728, *4-5 (N.D.Ala., May 25, 2012) (declining to dismiss for non-exhaustion where there was a
factual dispute whether plaintiff had received notice of rather informal grievance system whose existence
was conveyed by word of mouth), report and recommendation adopted, 2012 WL 2861823 (N.D.Ala.,
July 6, 2012); Cowan v. Justus, 2011 WL 5914627, *3-4 (S.D.Ill., Nov. 2, 2011) (finding a jail had no
“legitimate” grievance system where instructions to prisoners consisted of a single sentence in in the
prisoners’ handbook, which contradicted the directions on the grievance form, and where neither
described an appeal procedure), report and recommendation adopted, 2011 WL 5914324 (S.D.Ill.. Nov.
28, 2011); Troy D. v. Mickens, 806 F.Supp.2d 758, 767 (D.N.J. 2011) (declining to find state
administrative code provision an available remedy “absent any evidence that juveniles at JJC-operated
facilities were educated about this procedure or had access to the materials necessary to utilize it”); Miller
v. Shah, 2011 WL 2672257, *4 (S.D.Ill., June 8, 2011) (noting defendants showed only that there was
only a brief reference in a 23-page rulebook to complaint procedures, and no evidence of any further

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instruction), report and recommendation adopted, 2011 WL 2679091 (S.D.Ill., June 30, 2011); Schneider
v. Parker, 2011 WL 722759, *3 n.2 (M.D.Fla., Feb. 23, 2011) (declining to dismiss where prisoner stated
he never received an inmate handbook or other information about the grievance system); Bush v. Horn,
2010 WL 1712024, *3-4 (S.D.N.Y., Mar. 2, 2010) (failure to provide grievance procedure is a special
circumstance excusing non-exhaustion); Berry v. Peterman, 2010 WL 724391, *6 (E.D.Wis., Feb. 26,
2010) (refusing to dismiss where plaintiff denied receiving a copy of the grievance procedure and stated
that he received misinformation when he asked about it); Torres v. Anderson, 674 F.Supp.2d 394, 400
(E.D.N.Y. 2009) (refusing to find lack of proper exhaustion in failure to comply with rule about grieving
after a transfer that was neither in the regulations nor the internal procedures of the prisons involved, but
was only in a Program Statement that was available in the law library but there was no indication why the
prisoner should look at it); Peterson v. Anderson, 2009 WL 4506542, *2-3 (D.Mont., Dec. 2, 2009)
(denying summary judgment to defendants based on evidence there was no inmate manual or posted
policy describing a grievance procedure); Hunter v. Indiana Dept. of Corrections, 2009 WL 3199170, *46 (N.D.Ind., Sept. 29, 2009) (denying summary judgment where plaintiff missed a two-day deadline
because he was hospitalized, learning later that the deadline had been extended but he had not been
informed of the change); Upthegrove v. Health Professionals, Ltd., 2009 WL 2244723, *5 (W.D.Wis.,
July 24, 2009) (denying summary judgment absent evidence that plaintiff would have known of the need
to appeal); Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 233-34 (M.D.Pa. 2009) (denying summary
judgment to defendants where policy was not in inmate handbook and was posted only intermittently in
housing units, and staff responsible for enforcing it were not shown to have understood it); Reynolds v.
Curry County Sheriff Dept. Employees, 2008 WL 5146122, *3 (D.Or., Dec. 4, 2008) (declining to
dismiss where plaintiff denied receiving Inmate Manual or other information about grievance process);
Sims v. Rewerts, 2008 WL 2224132, *5-6 (E.D.Mich., May 29, 2008) (declining to dismiss where
plaintiff failed to comply with a time limit that had been changed without notice); Cabrera v. LeVierge,
2008 WL 215720, *6 (D.N.H., Jan. 24, 2008) (“inmates cannot be expected to meet procedural
requirements that are undisclosed”); Romanelli v. Suliene, 2008 WL 4587110, *6 (W.D.Wis., Jan. 10,
2008) (“If officials want to use § 1997e(a) to obtain dismissal of lawsuits filed without using the
administrative remedy process, they must at least tell the prisoner what the process is.”); Lampkins v.
Roberts, 2007 WL 924746, *3 (S.D.Ind., Mar. 27, 2007) (refusing to dismiss for missing a five-day time
deadline which was not made known in the materials made available to prisoners); Allen v. McMorris,
2007 WL 172564, *2 (E.D.Mo., Jan. 19, 2007) (holding allegation that prisoner could not get grievance
policy or forms barred summary judgment for defendants); Russell v. Unknown Cook County, Sheriff’s
Officers, 2004 WL 2997503, *4-5 (N.D.Ill., Dec. 27, 2004) (holding where plaintiff alleged ignorance of
the remedy, defendants must establish that they gave actual notice of it); Sadler v. Rowland, 2004 WL
2061518, *7 (D.Conn., Sept. 13, 2004) (refusing to dismiss claim of Connecticut prisoner transferred to
Virginia who attempted to grieve in Virginia and was not told to file separate grievances in Connecticut);
Burgess v. Garvin, 2004 WL 527053, *5 (S.D.N.Y., Mar. 16, 2004) (holding that “procedural channels . .
. not made known to prisoners . . . are not an ‘available’ remedy in any meaningful sense. . . . [Congress]
cannot have meant that prisoners would be expected to exhaust remedies of which they were kept entirely
ignorant.”); Arnold v. Goetz, 2003 WL 256777, *6-7 (S.D.N.Y., Feb. 4, 2003) (holding defendants
required to make a “reasonable, good faith effort to make the grievance procedure available to inmates”);
Hall v. Sheahan, 2001 WL 111019, *2 (N.D.Ill., Feb. 2, 2001) (“An institution cannot keep inmates in
ignorance of the grievance procedure and then fault them for not using it. A grievance procedure that is
not made known to inmates is not an ‘available’ administrative remedy.”); Alvarez v. U.S., 2000 WL
557328, *2 (S.D.N.Y., May 8, 2000) (stating that a showing that prisoner was not “meaningfully
informed” about administrative remedies could establish that they were not available), on
reconsideration, 2000 WL 679009 (S.D.N.Y., May 24, 2000).
Note 1079: Thrower v. U.S., 2012 WL 3679702, *6 (M.D.Pa., Aug. 24, 2012), judgment
affirmed, 528 Fed.Appx. 108 (3d Cir. 2013); Morgan v. City of Henderson Detention Center, 2012 WL
2884889, *5 (D.Nev., July 13, 2012) (rejecting claim of ignorance of appeal procedures where they were

425

set out in a policy identified on the grievance disposition; court characterizes rule as “administrative
remedies are unavailable to inmates if they cannot discover those remedies through reasonable effort”);
Martin v. Corrections Corp. of America, 2012 WL 715551, *4 (D.Ariz., Mar. 6, 2012); Dillard v. Pierce
County, 2011 WL 2530971, *3 (W.D.Wash., May 31, 2011) (rejecting claim of ignorance where Inmate
Handbook was available to every prisoner), report and recommendation adopted, 2011 WL 2516388
(W.D.Wash., June 23, 2011); Tope v. Fabian, 2010 WL 3307351, *9-11 (D.Minn., July 29, 2010), report
and recommendation adopted, 2010 WL 3307354 (D.Minn., Aug. 19, 2010); Shesler v. Carlson, 2010
WL 2803091, *5 (E.D.Wis., July 15, 2010); Graham v. County of Gloucester, Va., 668 F.Supp.2d 734,
739-40 (E.D.Va., Nov. 4, 2009); Bryant v. Williams, 2009 WL 1706592, *7-8 (W.D.N.Y., June 17,
2009); Francisco v. Reese, 2009 WL 77458, *4 (S.D.Miss., Jan. 9, 2009) (claim of ignorance of remedy
discounted where plaintiff had signed for receipt of information about it); Russell v. Unknown Cook
County, Sheriff’s Officers, 2004 WL 2997503, *4 & n.4 (N.D.Ill., Dec. 27, 2004) (stating that defendants
must establish such a handbook exists and is distributed); Rizzuto v. City of New York, 2003 WL
1212758, *5 (S.D.N.Y., Mar. 17, 2003); Carter v. Woodbury County Jail, 2003 WL 1342934 (N.D.Iowa,
Mar. 18, 2003); Edwards v. Alabama Dep’t of Corrections, 81 F.Supp.2d 1242, 1256-57 (M.D.Ala.
2000); Andrews v. Maryland, 2004 WL 3262745, *2 (D.Md., June 3, 2004).
Note 1095: Collins v. Cline, 2009 WL 1862429, *1 (D.Kan., June 26, 2009); Smith v. Rose,
2009 WL 1444140, *4-5 (W.D.Wis., May 20, 2009) (allegation that grievance appeal was blocked does
not state a claim but would be relevant if defendants sought dismissal for non-exhaustion); Lopez v.
McGill, 2009 WL 179787, *5 (D.Conn., Jan. 21, 2009); Avent v. Doe, 2008 WL 877176, *9 (N.D.N.Y.,
Mar. 31, 2008); Chapman v. Johnson, 2008 WL 899224, *2 (W.D.Va., Apr. 1, 2008); Tolliver v.
Thornton, 2007 WL 4219459, *1 (N.D.Cal., Nov. 29, 2007); Irvin v. Fluery, 2007 WL 3036493, *4
(W.D.Mich., Oct. 16, 2007) (holding obstruction of the grievance system did not deny access to courts
because remedies would not be “available” in that situation), vacated in part on reconsideration on other
grounds, 2008 WL 2714450 (W.D.Mich., July 8, 2008), reconsideration denied, 2008 WL 2922894
(W.D.Mich., July 28, 2008); Mayo v. Illinois Dept. of Corrections, 2007 WL 1424544, *1 (C.D.Ill., May
11, 2007); Rhodes v. Hoy, 2007 WL 1343649, *6-7 (N.D.N.Y., May 5, 2007), dismissed on other
grounds, 2007 WL 1674093 (N.D.N.Y., June 7, 2007); Magee v. Middendorf, 2006 WL 488646, *1
(S.D.Ill., Feb. 28, 2006); Kitchen v. Peguese, 2005 WL 4827386, * 3 (D.Md., Nov. 23, 2005).
Note 1099: Tweed v. Schuetzle, 2007 WL 2050782, *8 (D.N.D., July 12, 2007) (officials might
be estopped from claiming plaintiffs should have completed the grievance process where they had
advised plaintiffs that was not the correct procedure); Snyder v. Goord, 2007 WL 957530, *10 (N.D.N.Y.,
Mar. 29, 2007) (holding grievance supervisor’s advice that if a problem had been brought “to some
administration’s attention” it need not be grieved might estop the defendants); Lawyer v. Gatto, 2007 WL
549440, *7 (S.D.N.Y., Feb. 21, 2007) (holding defendants estopped from arguing plaintiff should have
refiled his grievance citing mitigating circumstances for its lateness where the grievance supervisor had
already rejected his mitigating circumstances); Rivera v. Goord, 2003 WL 1700518, *7 (S.D.N.Y., Mar.
28, 2003) (stating that prison officials may be estopped from asserting non-exhaustion where a prisoner
has been told by officials that his complaint is not a “grievance matter” and is being otherwise
investigated, or has been led to believe that administrative remedies are unavailable); Heath v.
Saddlemire, 2002 WL 31242204, *5 (N.D.N.Y., Oct. 7, 2002) (holding that reliance on officials’
representations as to proper procedure estops prison officials from claiming non-exhaustion as to prisoner
who followed the representations); Simpson v. Gallant, 223 F.Supp.2d 286, 292 (D.Me. 2002) (holding
prison officials who said the plaintiff’s problem was not grievable were estopped from claiming nonexhaustion), aff’d, 62 Fed.Appx. 368, 2003 WL 21026723 (1st Cir. 2003); Hall v. Sheahan, 2001 WL
111019, *2 (N.D.Ill., Feb. 2, 2001) (holding that a prison official’s statement to the plaintiff that she
would have the toilet fixed, and he should stop asking her about it, might estop defendants from claiming
non-exhaustion); Davis v. Frazier, 1999 WL 395414, *4 (S.D.N.Y., June 15, 1999) (holding that an
allegation that prisoners were told at orientation that “a grievance cannot be brought against Officers or

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Staff” supports an estoppel defense to non-exhaustion).
Note 1107: Sanders v. Norris, 2008 WL 2926198, *2 n.8 (E.D.Ark., July 24, 2008)
(“Recognizing an exception for ‘urgent medical needs’ would defeat the purpose of the exhaustion
requirement, which is to give prison officials the first opportunity to promptly remedy a situation within
the prison system.”); Shendock v. Green Rock Correctional Center, 2008 WL 2038794, *1-2 (W.D.Va.,
May 12, 2008) (prisoner must pursue grievance even if the harm is done before exhaustion can be
completed); Aburomi v. U.S., 2006 WL 2990362, *1 (D.N.J. Oct. 17, 2006) (“It is understandable that
Plaintiff would want immediate treatment for a perceived recurrence of cancer, but the administrative
remedy program is mandatory regardless of the nature of the relief sought.”); Kane v. Winn, 319 F. Supp.
2d 162, 223 (D.Mass. 2004) (rejecting “grave harm” argument while noting that the administrative
process takes less than four months and the plaintiff was complaining about lack of treatment for a slowly
progressing case of Hepatitis C); Griffin v. Samuels, 2008 WL 961241, *3 (D.N.J., Apr. 8, 2008);
Cochran v. Caruso, 2008 WL 397597, *3 (W.D.Mich., Feb. 11, 2008) (plaintiff’s allegation of urgent
need for medical intervention did not justify failure to exhaust before filing); Rendelman v. Galley, 2007
WL 2900460, *2 (D.Md., Feb. 15, 2007) (dismissing despite plaintiff’s claim of imminent danger and
request for a “protective order” pending exhaustion), aff’d, 230 Fed.Appx. 314 (4th Cir. 2007), cert.
denied, 552 U.S. 953 (2007); Williams v. CDCR, 2007 WL 2384510, *4 (E.D.Cal., Aug. 17, 2007) (“The
presence of exigent circumstances does not relieve a plaintiff from fulfilling this requirement.”), report
and recommendation adopted, 2007 WL 2793117 (E.D.Cal., Sept. 26, 2007); Ford v. Smith, 2007 WL
1192298, *2 (E.D.Tex., Apr. 23, 2007) (dismissing where plaintiff said his safety was in danger and he
sought a continuance until exhaustion was completed); Patterson v. La. Corr. Servs., Inc., 2006 WL
3845017, *6 (W.D. La. Oct. 20, 2006); Dartson v. Kastner, 2006 WL 3702634, *2 (E.D. Tex. Dec. 13,
2006); Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314 (S.D. Cal. 2006) (holding “irrelevant” prisoner’s
claim that the time constraints imposed on him by litigation did not allow for completion of grievance
process concerning law library access); Jones v. Oaks Corr. Facility Health Servs., 2005 WL 3312562, *2
(W.D. Mich. Dec. 7, 2005) (stating even a case that presents imminent danger of serious physical harm
must be exhausted); Calderon v. Anderson, 2005 WL 2277398, *5 (S.D. W.Va. Sept. 19, 2005) (stating
exhaustion was required despite the prisoner’s claim of “life-or-death situation”); Drabovskiy v. United
States, 2005 WL 1322550, *2 (E.D. Ky. June 2, 2005); Joseph v. Jocson, 2004 WL 2203298, *1 (D. Or.
Sept. 29, 2004) (“Plaintiff contends he should not be required to exhaust available remedies because delay
may result in irreparable harm. Exhaustion is mandatory.”).
Note 1244: McFarlin v. Livingston, 2011 WL 7562688, *2 (E.D.Tex., Nov. 15, 2011), report
and recommendation adopted, 2012 WL 947546 (E.D.Tex., Mar. 20, 2012); Witmer v. Grady County
Jail, 2011 WL 4578453, *2 (W.D.Okla., Sept. 30, 2011) (“The Court also notes no allegation that
Plaintiff suffered a physical injury that might satisfy the requirements of the [PLRA].”); Van Scott v.
Cherish, 2011 WL 3421551, *3 (W.D.Pa.. July 14, 2011) (dismissing claim for compensatory damages
where plaintiff alleged emotional injury but did not allege physical injury), report and recommendation
adopted, 2011 WL 3421526 (W.D.Pa., Aug. 4, 2011); Fleury v. Collins, 2011 WL 1706835, *3 (D.Colo.,
Apr. 14, 2011), report and recommendation adopted, 2011 WL 1706908 (D.Colo., May 5, 2011); Vega v.
McCann, 2010 WL 1251444, *4 (N.D.Ill., Mar. 23, 2010); Young v. Beard, 2009 WL 3111742, *6
(M.D.Pa., June 1, 2009) (“Plaintiff makes no allegations of physical injury in his amended complaint. . . .
Absent claims of physical injury, compensatory damages are barred.”) (footnote omitted), report and
recommendation adopted in part, rejected in part on other grounds, 2009 WL 3111736 (M.D.Pa., Sept.
23, 2009); Polk v. Bowman, 2008 WL 4937592, *2 (N.D.Tex., Nov. 18, 2008) (“It is also now
established law that a plaintiff must recite that he suffered more than a de minimis physical injury.”);
Salter v. Dallas Sheriff's Dept., 2008 WL 4393268 (N.D.Tex., Sept. 26, 2008) (“Plaintiff has failed to
allege a physical injury under 42 U.S.C. § 1997e(e).”); Singh v. Mental Health Dept. of Attica
Correctional Facility, 2008 WL 4371777, *4 (N.D.N.Y., Sept. 18, 2008) (citing “Failure to Allege
Physical Injury Under the PLRA” as one of several bases for dismissal).

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Note 1266: Reese v. Oliver, 2011 WL 2940947, *6 (S.D.Ala., June 20, 2011) (applying §
1997e(e) to a claim of economic injury because of lack of physical injury), report and recommendation
adopted, 2011 WL 2940629 (S.D.Ala., July 20, 2011); Portier v. Defusco, 2008 WL 5533987, *10
(D.Colo., Nov. 26, 2008) (plaintiff “has not alleged that he suffered any physical injury, which is a
requirement for an inmate to bring a federal claim for monetary damages”), stay denied, 2009 WL 130343
(D.Colo., Jan. 20, 2009), report and recommendation adopted, 2009 WL 823551 (D.Colo., Mar. 27,
2009), reconsideration denied, 2009 WL 2338056 (D.Colo., July 27, 2009); Nelis v. Kingston, 2007 WL
4171517, *6 (E.D.Wis., Nov. 20, 2007) (“under the Prison Litigation Reform Act (PLRA), recovery in
prisoner lawsuits is limited where, as here, there is no showing of physical injury”); Wimble v. Cotton,
2007 WL 756597, *3 (D.Vt., Mar. 8, 2007) (“It is well established that a prisoner may not collect
compensatory damages for a constitutional violation without showing that he has suffered a physical
injury.”); Bownes v. MDOC Employees, 2006 WL 3690743, *1 (N.D.Miss., Dec. 12, 2006) (stating “the
Plaintiff has not alleged the requisite physical injury that must accompany any § 1983 claim for
damages”); Dingler v. Bowles, 2003 WL 22964269 (N.D.Tex., Dec. 12, 2003), appeal dismissed, 101
Fed.Appx. 441, 2004 WL 1386303 (5th Cir. 2004) (unpublished).
Note 1270: Van Wyhe v. Reisch, 536 F.Supp.2d 1110, 1126 (D.S.D. 2008) (applying § 1997e(e)
to removal from religious diet), aff’d in part, rev’d in part on other grounds, 581 F.3d 639 (8th Cir.
2009), cert. denied sub nom. Reisch v. Sisney, 130 S.Ct. 3323 (2010) and sub nom. Sisney v. Reisch, 131
S.Ct. 2149 (2011); Sisney v. Reisch, 533 F.Supp.2d 952, 973-74 (D.S.D. 2008) (applying § 1997e(e) to
various religious deprivations), aff’d in part on other grounds, rev’d in part on other grounds sub nom.
Van Wyhe v. Reisch, supra; Nelis v. Kingston, 2007 WL 4171517, *6 (E.D.Wis., Nov. 20, 2007)
(applying § 1997e(e) to claim of exclusion from religious exercises); Priest v. Department of Corrections,
2007 WL 2728354, *1-2 (N.D.Fla., Sept. 14, 2007) (applying § 1997e(e) to Muslim prisoner’s claim of
subjection to blasphemy in 12-step addiction program); Gill v. Hoadley, 2007 WL 1341468, * 4
(N.D.N.Y., May 4, 2007) (applying § 1997e(e) to deprivation of religious exercise); Perez v. Frank, 2007
WL 1101285, *17 (W.D.Wis., Apr. 11, 2007) (holding plaintiff asserting various religious violations
“will not be entitled to compensation for any emotional or spiritual distress he may have suffered”);
Quin’ley v. Corrections Corporation of America, 2007 WL 624539, *1 (N.D.Miss., Feb. 23, 2007)
(applying mental/emotional injury provision to failure to provide Asaru religious services, refusing to
credit claim that migraines, insomnia, cramps and nervous problems resulted); Scott v. Ozmint, 467
F.Supp.2d 564, 569 (D.S.C. 2006) (holding claim of refusal to recognize religion barred absent physical
injury); Massingill v. Livingston, 2006 WL 2571366, *2-3 (E.D.Tex., Sept. 1, 2006) (holding claims
asserting various religious restrictions were subject to mental/emotional injury provision); Daniels v.
Waller, 2006 WL 763115, *2 (S.D.Miss., Mar. 24, 2006) (holding claim of refusal to acknowledge
Muslim name was one for mental or emotional injury).
Note 1271: Mauwee v. Donat, 2009 WL 3161836, *19 (D.Nev. May 28, 2009), report and
recommendation adopted in part, rejected in part on other grounds, 2009 WL 3062787 (D.Nev., Sept. 18,
2009) (damages can be recovered based on constitutional violations and not on alleged mental or
emotional injury); Porter v. Caruso, 2008 WL 3978972, *9 (W.D.Mich., Aug. 22, 2008) (§ 1997e(e) does
not apply to First Amendment claims); Eng v. Blood, 2008 WL 2788894, *4 (N.D.N.Y., July 17, 2008)
(“[the] physical injury requirement does not apply to actions for First Amendment violations”); Fabricius
v. Maricopa County, 2008 WL 2001264, *4 (D.Ariz., May 7, 2008) (complaint of forced exposure to
“Judaeo-Christian” (Christmas) music was not subject to § 1997e(e)); Goodrick v. Roane, 2007 WL
853980, *7 (D.Idaho, Mar. 19, 2007) (holding plaintiff who complained of confiscation of Muslim oils
was not limited in remedies to the $20 and replacement costs the defendants offered him); Reischauer v.
Jones, 2007 WL 1521578, *9 (W.D.Mich., May 23, 2007) (noting plaintiff deprived of religious
publications did not seek damages for “emotional injury” but for “the violation itself”); Carr v.
Whittenburg, 2006 WL 1207286, *2-3 (S.D.Ill., Apr. 28, 2006) (stating that specific First Amendment
violations may be compensable through “general damages” or “presumed damages” even without proof

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of injury, though damages cannot be recovered based on the abstract value or importance of the right);
Shabazz v. Martin, 2006 WL 305673, *6 (E.D.Mich., Feb. 9, 2006) (following Canell); Percial v.
Rowley, 2005 WL 2572034, *2 (W.D.Mich., Oct. 12, 2005) (following Canell); Lipton v. County of
Orange, NY, 315 F.Supp.2d 434, 457 (S.D.N.Y. 2004) (“Although § 1997e(e) applies to plaintiff’s First
Amendment retaliation claim, a First Amendment deprivation presents a cognizable injury standing alone
and the PLRA ‘does not bar a separate award of damages to compensate the plaintiff for the First
Amendment violation in and of itself.’”) (quoting Ford v. McGinnis,198 F.Supp.2d 363, 366
(S.D.N.Y.2001)); Cancel v. Mazzuca, 205 F.Supp.2d 128, 138 (S.D.N.Y. 2002) (noting that plaintiff
“brought this action, inter alia, for alleged violations of his First Amendment rights, rather than ‘for
mental or emotional injury.’”).
Note 1279: Prevost v. Orleans Parish Prison, 2010 WL 2218571, *1-2 (E.D.La., Apr. 20, 2010)
(insect infestation, mold and mildew on walls, open electrical wires, excessive water leaks and moisture),
report and recommendation adopted, 2010 WL 2218159 (E.D.La., May 26, 2010); Nichols v. Head, 2010
WL 1224091, *3 (M.D.Ga., Mar. 22, 2010) (confinement without a working light), reconsideration
denied, 2010 WL 4261395 (M.D.Ga., Oct. 21, 2010); Diggs v. Nelson Coleman Corr. Ctr., 2010 WL
1038229, *1 (E.D.La., Feb. 17, 2010) (litany of conditions complaints), report and recommendation
adopted, 2010 WL 1038230 (E.D.La., Mar. 17, 2010); Carroll v. Gusman, 2009 WL 2949997, *1, 7
(E.D.La., Sept. 10, 2009) (allegation that plaintiff was abandoned in a locked cell for four days and nights
without food, water, light, etc., after Hurrican Katrina); Hutt v. Hofman, 2009 WL 2601927, *8 (D.Vt.,
Aug. 18, 2009) (“Without an Eighth Amendment claim, however, [a segregated prisoner’s] only claim is
for a due process violation—a claim that, by its nature, does not inflict physical injury.”); Richard v.
Cupp, 2009 WL 840218, *4, 6 (W.D.La., Mar. 25, 2009) (allegations that plaintiff had to sleep on the
floor for two weeks, and was exposed to smelly and unsanitary toilets and moldy showers); Bryant v.
Moore, 2008 WL 190462, *2-3 (E.D.Ark., Jan. 18, 2008) (deprivation of food, water, and restroom
during trip to hospital); Stainbrook v. Houston, 2007 WL 3244086, *1 (D.Neb., Nov. 1, 2007) (deaf
prisoner’s complaint of lack of visual alarm system and assistive communications devices); Norman v.
TDCJ-ID, 2007 WL 3037129, *6 (E.D.Tex., Oct. 18, 2007) (applying § 1997e(e) to claim of failure to
accommodate disability); Jones v. Stadler, 2007 WL 2900495, *1-2 (M.D.La., Oct. 2, 2007) (allegation
that bilateral amputee was deprived of his prosthesis, requiring him to scoot across the floor to get to the
toilet); Lopez v. S.C.D.C., 2007 WL 2021875, *3 (D.S.C., July 6, 2007) (confinement for seven days
without toilet, sink, bed, mattress, soap, toothbrush, running water, so plaintiff had to urinate and defecate
on the floor or in trays or cups and was unable to shower); Ashe v. Smith, 2007 WL 1423730, *1-2
(D.S.C., May 10, 2007) (exposure to human waste during cell block floods); Meyers v. Arpaio, 2007 WL
1302746, *5 (D.Ariz., May 3, 2007) (crowding and resulting violent conditions, where plaintiff was not
himself injured); Lloyd v. Briley, 2007 WL 917385, *5 (N.D.Ill., Mar. 23, 2007) (confinement in strip
cell with no light and no running water); Henderson v. Johnson, 2007 WL 781767, *6-7 (C.D.Ill., Mar.
12, 2007) (setting aside $300 jury award for segregation where plaintiff submitted no evidence of physical
injury; reducing punitive damages from $5,000 to $500); Ellis v. ABL Food Serv., 2007 WL 196860, *12 (M.D.Ga., Jan. 23, 2007) (rusty pipes and chipping ceiling paint in the cooking area, resulting in rust
and paint chips in the food); Jones v. Epps, 2006 WL 3196460, *1 (S.D.Miss., Nov. 3, 2006) (exposure to
human waste from defective toilets), certificate of appealability denied, 2008 WL 1932402 (S.D.Miss.,
Apr. 28, 2008); Pearson v. Strain, 2006 WL 3858737, *11 (E.D.La., Oct. 30, 2006) (thirst, hunger pains,
and brief nausea from the smell of feces and urine in the aftermath of Hurricane Katrina); Owens v.
Leavins, 2006 WL 1313192, *3 (N.D.Fla., May 12, 2006) (plaintiff “complains only that he was
subjected to disciplinary confinement” but alleges no physical injury); Vega v. Hill, 2005 WL 3147862,
*3 (N.D.Tex., Oct. 14, 2005) (allegations of “exposure to mold, mildew, dead bugs, dirty showers, and
spoiled food”); Stames v. Gillespie, 2004 WL 1003358, *9 (D.Kan., Mar. 29, 2004) (denial to segregation
prisoner of showers, drinking water, and water for cleaning and personal hygiene, and of communicating
with lawyer and family); Gibson v. Ramsey, 2004 WL 407025 (N.D.Ill., Jan. 29, 2004) (crowding, noise,
bad water and lack of ventilation); Hammond v. Briley, 2004 WL 413293, *5 (N.D.Ill., Jan. 29, 2004)

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(lack of a working light in cell); Osterback v. Johnson, 2003 WL 25571396, *6 (M.D.Fla., June 2, 2003)
(complaint of placement in segregation and resulting loss of 11 pounds, nausea, back pain, sinus
condition, appetite loss and headaches); Adnan v. Santa Clara County Dept. of Corrections, 2002 WL
32058464, *3 (N.D.Cal., Aug. 15, 2002) (prisoner kept in solitary confinement, his hands and feet
shackled, and subjected to body cavity strip searches and allowed out of his cell only three hours a week);
Lynch v. Robinson, 2002 WL 1949731, *2 (N.D.Ill., Aug. 22, 2002) (restrictions of segregated
confinement).
Note 1283: Washington v. Brown, 2010 WL 2737141, *19 (E.D.Cal., July 12, 2010) (“Because
plaintiff's claims are premised on constitutional violations, he is not barred by § 1997e(e) and may
recover compensatory damages without a showing of physical injury.”), report and recommendation
adopted, 2010 WL 3341645 (E.D.Cal., Aug. 25, 2010); Low v. Stanton, 2010 WL 234859, *4 (E.D.Cal.,
Jan. 14, 2010) (Fourteenth Amendment claim of denial of telephone access during booking “may have
very little financial value” but is still viable), report and recommendation adopted, 2010 WL 684969
(E.D.Cal., Feb. 23, 2010); Lira v. Director of Corrections, 2008 WL 619017, *12 (N.D.Cal., Mar. 4,
2008) (allowing claim of eight-year SHU confinement leading to PTSD to go forward); Carr v.
Whittenburg, 2006 WL 1207286, *3 (S.D.Ill., Apr. 28, 2006) (stating that specific First Amendment
violations may be compensable even without proof of injury); Lipton v. County of Orange, NY, 315
F.Supp.2d 434, 457 (S.D.N.Y. 2004) (“Although § 1997e(e) applies to plaintiff’s First Amendment
retaliation claim, a First Amendment deprivation presents a cognizable injury standing alone and the
PLRA ‘does not bar a separate award of damages to compensate the plaintiff for the First Amendment
violation in and of itself.’”) (quoting Ford v. McGinnis,198 F.Supp.2d 363, 366 (S.D.N.Y.2001)); Cancel
v. Mazzuca, 205 F.Supp.2d 128, 138 (S.D.N.Y. 2002) (noting that plaintiff “brought this action, inter alia,
for alleged violations of his First Amendment rights, rather than ‘for mental or emotional injury.’”)
Note 1284: Benge v. Scalzo, 2008 WL 2157024, *10 (D.Ariz., May 21, 2008) (allegations of
psychiatric neglect were not subject to § 1997e(e)); Wittkamper v. Arpaio, 2008 WL 1994908, * 1-2
(D.Ariz. May 6, 2008) (allegations of unsanitary conditions were not subject to § 1997e(e)); Davis v.
Arpaio, 2008 WL 1840732, *2-3 (D.Ariz. Apr. 23, 2008) (holding allegations of denial of rights with
respect to clothing, hygiene, legal calls, recreation, library access, medical problems, sleep deprivation,
etc., were not subject to § 1997e(e)); Cockcroft v. Kirkland, 2008 WL 683446, *7 (N.D.Cal., Mar. 10,
2008) (“the violation of a constitutional right has a compensatory value regardless of what the
physical/emotional injuries are”; plaintiff alleged exposure to waste from back-flushing toilet); Harris v.
Arpaio, 2008 WL 190399, *8 (D.Ariz., Jan. 18, 2008) (plaintiff could seek compensatory and other
damages for delay in medical diet), reconsideration denied, 2008 WL 508651 (D.Ariz., Feb. 21, 2008);
Fields v. Ruiz, 2007 WL 1821469, *7 (E.D.Cal., June 25, 2007) (holding prisoner alleging he was
confined in a cell with an overflowing toilet for 28 days was not “seeking compensatory damages for
mental or emotional injuries”; for Eighth Amendment claims, “the issue is the nature of the deprivation,
not the injury”), report and recommendation adopted, 2007 WL 2688453 (E.D.Cal., Sept. 10, 2007); Hill
v. Arpaio, 2007 WL 1120305, *3 (D.Ariz., Apr. 11, 2007) (holding plaintiff could not recover for mental
stress caused by crowding, but could recover for violation of the Fourteenth Amendment); Pippin v.
Frank, 2005 WL 756155, *1 (W.D.Wis., Mar. 30, 2005) (stating that § 1997e(e) precludes claims for
mental or emotional injury but not a claim that plaintiff was “falsely confined” in segregation as a result
of constitutional violations).
Note 1312: Hejny v. Dallas County Jail, 2007 WL 426228, *2 (N.D.Tex., Feb. 5, 2007) (holding
bruises, deep scratches, and sore neck from being slammed to the ground were de minimis); Green v.
McBride, 2007 WL 295592, *4 (D.S.C., Jan. 29, 2007) (holding plaintiff who alleged that he was
punched in the face and thrown on his face on the floor and sustained a bruised, swollen, and scraped
cheek had only de minimis injuries); Geter v. Goode, 2006 WL 1129407, *2 (D.S.C., Apr. 25, 2006)
(holding “superficial abrasions and scarred tissue” de minimis); Trevino v. Johnson, 2005 WL 3360252,

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*5 (E.D.Tex., Dec. 8, 2005) (holding a prisoner who was struck twice in the face and had his fingers
pulled back had de minimis injury where he sustained only an abrasion to the forehead); Rawls v. Payne,
2006 WL 2844563, *5 (S.D.Miss., Sept. 11, 2006) (holding “scratches, bruises, a busted lip, and a
sprained ankle” resulting from an assault were de minimis); Gibson v. Galaza, 2006 WL 829120, *10
(E.D.Cal., Mar. 29, 2006) (holding multiple abrasions, a small cut on lip, and a bruised right knee are de
minimis); Wallace v. Brazil, 2005 WL 4813518, *1 (N.D.Tex., Oct. 10, 2005) (holding a knot on the head
allegedly inflicted by an officer with an iron bar was de minimis); Cuciak v. Hutler, 2005 WL 1140690,
*2-3 (D.N.J., May 13, 2005) (dismissing allegation that defendant pushed plaintiff, stepped on his bare
foot and broke his toenail; court notes that the plaintiff did not allege his injury required medical
attention); McDonald v. Smith, 2003 WL 22208554 (N.D.Tex., Sept. 25, 2003) (holding “large amount of
muscle spasm across lumbar sacral area of back” after a use of force did not meet the physical injury
requirement); Luong v. Hatt, 979 F.Supp. 481, 485-86 (N.D.Tex. 1997) (“A physical injury is an
observable or diagnosable medical condition requiring treatment by a medical care professional”; holding
abrasion of arm and chest, contusion and swelling of jaw did not meet that standard.).
Note 1313: Ruffin v. Winnebago County Jail, 2010 WL 3359478, *7 (S.D.Ill., Aug. 25, 2010)
(repeated bruising and swelling of arms and legs resulting from lack of accessible facilities for
wheelchair-bound prisoner satisfied § 1997e(e)); Blackshear v. Bailey, 2010 WL 934002, *10 (M.D.Fla.,
Mar. 10, 2010) (claim of ongoing head and back pain required further factual development; “minor”
injury is not the same as de minimis); Story v. Lucas, 2010 WL 964696, *13 (W.D.Ark., Feb. 25, 2010)
(contusion of elbow and back pain after use of force satisfied § 1997e(e)), report and recommendation
adopted, 2010 WL 964620 (W.D.Ark., Mar. 16, 2010); Story v. Knighton, 2009 WL 2136107, *8
(W.D.Ark., July 15, 2009) (swollen ankles and feet from extended placement in leg irons, which persisted
for days after release, satisfied § 1997e(e)); Jackson v. Armstrong, 2008 WL 3876604, *5-6 (S.D.Ohio,
Aug. 20, 2008) (edema of forearm and pain from repeated baton blows were “palpable physical injury”
satisfying § 1997e(e)); Sanders v. Day, 2008 WL 748170, *2 (M.D.Ga., Mar. 19, 2008) (holding
allegation of kicking and using pepper spray on a handcuffed suspect was not de minimis; no details
stated); Lathon v. Washbourne, 2007 WL 2710429, *8 (W.D.Ark., Sept. 13, 2007) (holding a bleeding
leg, swollen testicles, and injuries to back and neck satisfied the physical injury requirement); Edwards v.
Miller, 2007 WL 951696, *1-2 (D.Colo., Mar. 28, 2007) (allegation of being punched in the face and
bitten on the arm over a 10-minute period, causing damage to forehead and facial injuries, and leaving a
lasting effect in the form of severe headaches, is more than de minimis); Cotney v. Bowers, 2006 WL
2772775, *7 (M.D.Ala., Sept. 26, 2006) (holding bruised ribs that took weeks to heal could be found not
de minimis); Oliver v. Gaston, 2006 WL 2805343, *6 (S.D.Miss., Sept. 7, 2006) (holding “numerous
swollen spots, bruises and abrasions to the face and scalp” were more than de minimis); Evans v.
Alameida, 2006 WL 618298, *1 (E.D.Cal., Mar. 10, 2006) (noting prior decision that “abrasions and
bleeding” met the standard), report and recommendation adopted, 2006 WL 1774875 (E.D.Cal., June 26,
2006); Hardin v. Fullenkamp, 2001 WL 35816398, *7 (S.D.Iowa, June 22, 2001) (holding evidence
prisoner was cut and bruised and other inmates’ affidavits that they saw him beaten and later limping met
the standard).
Note 1317: Butler v. LaBarge, 2010 WL 3907263, *1 (N.D.N.Y., May 21, 2010) (officer’s
alleged feeling of genitals and aggressive rubbing of buttocks was not physical injury), report and
recommendation adopted, 2010 WL 3907258 (N.D.N.Y., Sept. 30, 2010); Petry v. Couvillon, 2010 WL
2710395, *5 (W.D.La., May 17, 2010) (rubbing of knee and thigh “in a sexual manner” along with
implied sexual proposition did not satisfy § 1997e(e)), report and recommendation adopted, 2010 WL
2710392 (W.D.La., July 6, 2010); Beene v. Rasseki, 2010 WL 2196597, *6 (M.D.Tenn., May 27, 2010)
(claim of “alleged homosexual advances” did not allege physical injury); Gist v. Little Sandy Correctional
Complex, 2010 WL 1839911, *4 (E.D.Ky., May 7, 2010) (claim of sexual harassment consisting of
verbal abuse and minor touching did not allege physical injury); McCoy v. Bazzle, 2009 WL 3169963,
*2-3 (D.S.C., Sept. 28, 2009) (allegation that officer sexually harassed plaintiff by touching his buttocks

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was de minimis); Garcia v. Watts, 2009 WL 2777085, *1, *20 (S.D.N.Y., Sept. 1, 2009) (allegation that
staff member grabbed plaintiff’s buttocks and later rubbed his penis against them, combined with other
non-physical mistreatment, did not allege physical injury); Garcia v. Watts, 2009 WL 2777085, *1, *20
(S.D.N.Y., Sept. 1, 2009) (allegation that staff member grabbed plaintiff’s buttocks and later rubbed his
penis against them, combined with other non-physical mistreatment, did not allege physical injury);
Wilson v. Longino, 2009 WL 1076684, *4 (W.D.La., Apr. 21, 2009) (holding male prisoner’s complaint
of coerced sex with female staff member involved no physical injury); Marino v. Commissioner, Maine
Dept. of Corrections, 2009 WL 1150104, *2 (D.Me., Apr. 28, 2009) (allegation that officers forced
plaintiff to grab his genitals in a provocative position and walk down the hall in view of opposite sex
staff; neither physical pain nor later panic attack were physical injuries), report and recommendation
adopted, 2009 WL 1395164 (D.Me., May 18, 2009); Jones v. Gudmundson, 2008 WL 651994, *3
(D.Minn., Mar. 7, 2008) (holding male prisoner’s complaint of sexual relationship with female employee
was precluded absent physical injury; nothing indicates the relationship was nonconsensual or the
plaintiff suffered any non-physical harm); Cobb v. Kelly, 2007 WL 2159315, *1 (N.D.Miss., July 26,
2007) (holding male prisoner’s allegation that female officer “reached her hand between his legs and
rubbed his genitals” was not a physical injury under § 1997e(e)); Smith v. Shady, 2006 WL 314514, *2
(M.D.Pa., Feb. 9, 2006) (holding allegation that officer grabbed prisoner’s penis and held it in her hand
was de minimis under § 1997e(e)).
Note 1322: Chatham v. Adcock, 2007 WL 2904117, *16 (N.D.Ga., Sept. 28, 2007) (holding
hallucinations, anxiety, and nightmares resulting from denial of Xanax did not meet physical injury
requirement); Granger v. Naphcare Medical Contractor, 2007 WL 2825915, *4 (E.D.Tex., Sept. 26, 2007)
(allegation of nosebleed and blurred vision from medication error did not meet the physical injury
standard); Ladd v. Dietz, 2007 WL 160762, *1 (D.Neb., Jan. 17, 2007) (holding pain resulting from
placing ear medication in plaintiff’s eye was “not enough” to constitute physical injury); Morgan v.
Dallas County Sheriff Dept., 2005 WL 57282, *2 (N.D.Tex., Jan. 11, 2005) (holding that a complaint of
“undue pain . . . on a regular basis” resulting from denial of medication is insufficient to establish
physical injury), report and recommendation adopted, 2005 WL 2075796 (N.D.Tex., Aug. 26, 2005);
Davis v. Bowles, 2004 WL 1205182, *2 (N.D.Tex., June 1, 2004) (holding an increase in blood pressure
to 180/108 and headaches resulting from withholding of prescribed medication did not meet the physical
injury threshold), report and recommendation adopted, 2004 WL 1381045 (N.D.Tex., June 18, 2004).
Note 1323: Dickinson v. Livingston, 2010 WL 3810779, *1 (E.D.Tex., Aug. 10, 2010) (staph
infection allegedly caused by conditions of confinement), report and recommendation adopted, 2010 WL
3810633 (E.D.Tex., Sept. 23, 2010); Andrade v. Christ, 2009 WL 3004575, *4 (D.Colo., Sept. 18, 2009)
(pain resulting from failure to treat traumatic injury); Bain v. Cotton, 2009 WL 1660051, *7 (D.Vt., June
12, 2009) (“severe chronic pain” from termination of drug regime for prisoner who had serious head and
spinal injuries from auto accident); DeRoche v. Funkhouse, 2008 WL 881286, *7 (D.Ariz., Mar. 28,
2008) (further liver damage and daily pain, swelling, nausea and hypertension from lack of treatment for
Hepatitis C satisfied the physical injury requirement); Maddle v. Correctional Medical Services, Inc.,
2008 WL 839715, *6 (M.D.Tenn., Mar. 26, 2008) (presence of a thyroid mass requiring testing and then
surgery satisfied the physical injury requirement, notwithstanding that the surgery was successful even
though delayed; plaintiff complained of pain and complications including bleeding, nausea, and
difficulties swallowing, eating, and breathing); Custard v. Young, 2008 WL 791954, *10 (D.Colo., Mar.
20, 2008) (“pain, bleeding, swelling, scarring” to gums and a significant loss of weight resulting from
denial of denture adhesive, dental care or a soft diet satisfied § 1997e(e) at the pleading stage); Perrey v.
Donahue, 2007 WL 4277621, *6 (N.D.Ind., Dec. 3, 2007) (holding complaint of “prolonged and extreme
pain, constant malaise, body soreness and aches, diarrhea, headaches, [and] loss of appetite” met the
physical injury pleading standard); Boles v. Dansdill, 2007 WL 2770473, *21 (D.Colo., Sept. 20, 2007)
(holding allegation that denial of medical care made plaintiff “physically ill” satisfied physical injury
standard at pleading stage); Reeves v. Wallington, 2007 WL 1016979, *2 (E.D.Mich., Mar. 29, 2007)

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(holding standard met by shortness of breath, chest pain, hospitalization for observation and to rule out
myocardial infarction following delay in receiving medication and exposure to chemical agents),
subsequent determination, 2007 WL 2300798 (E.D.Mich., Aug. 7, 2007); Such v. Vincent, 2007 WL
906170, *3-5 (W.D.Pa., Mar. 22, 2007) (holding standard met by allegations that refusal to permit
paralyzed prisoner to self-catheterize increased urinary tract infections, pain from being unable to urinate
as needed, and incontinence); Clifton v. Eubank, 418 F.Supp.2d 1243, 1248 (D.Colo. 2006) (addressing
“prolonged” pain attendant upon labor and stillbirth), on reconsideration on other grounds, 2006 WL
893600 (D.Colo., Apr. 5, 2006); Fleming v. Clarke, 2005 WL 2170093, *2 (D.Neb., Sept. 6, 2005)
(holding swelling, pain, and deterioration resulting from denial of prescribed knee brace met physical
injury requirement); Martin v. Gold, 2005 WL 1862116, *9 (D.Vt., Aug. 4, 2005) (holding pain resulting
from lack of dentures met physical injury requirement, though resulting headaches and hunger pains
might not). But see Smith v. Dallas County Jail System, 2007 WL 1140215, *2 (N.D.Tex., Apr. 16,
2007) (staph infections did not satisfy physical injury requirement); Calderon v. Foster, 2007 WL
1010383, *8 (S.D.W.Va., Mar. 30, 2007) (pain, standing alone, is de minimis; plaintiff alleged two hours
of chest pain which was resolved with nitroglycerine), aff’d, 264 Fed.Appx. 286 (4th Cir. 2008)
(unpublished); Purtell v. Corrections Corp. of America, 2007 WL 1464376, *2 (N.D.Miss., Mar. 26,
2007) (severe headache for a day and a half was de minimis); Cooper v. Dretke, 2006 WL 3447679, *3
(S.D.Tex., Nov. 21, 2006) (holding that failure to repair a hearing aid that the prisoner used to alleviate
symptoms associated with tinnitus did not show required “specific physical injury”); Cranford v. Payne,
2006 WL 2701273, *7 (S.D.Miss., Aug. 23, 2006) (holding a scalp infection is de minimis); Williams v.
Smith, 2006 WL 938980, *2 (W.D.Ky., Apr. 10, 2006) (holding asthma attack requiring hospitalization
was de minimis).
Note 1325: Jones v. Helder, 2011 WL 1194008, *6 (W.D.Ark., Mar. 8, 2011) (holding
complaints of diarrhea, joint pain, muscle soreness, and migraines resulting from inadequate diet did not
constitute physical injury), report and recommendation adopted, 2011 WL 1193733 (W.D.Ark., Mar. 29,
2011); Sims v. Caruso, 2011 WL 672232, *2 (W.D.Mich., Feb. 18, 2011) (loss of “some weight” does not
satisfy the statute); May v. Donneli, 2009 WL 3049613, *3 (N.D.N.Y., Sept. 18, 2009 (minor weight loss
was de minimis); Ransburgh v. Ladner, 2009 WL 1766793, *1 (S.D.Miss., June 22, 2009) (denial of food
for 28 hours did not meet requirement), reconsideration denied, 2010 WL 376960 (S.D.Miss., Jan. 26,
2010); Linehan v. Crosby, 2008 WL 3889604, *13 (N.D.Fla., Aug. 20, 2008) (weight loss from denial of
a kosher diet did not meet requirement); Bradford v. Caruso, 2008 WL 3843291, *3 (E.D.Mich., Aug. 14,
2008) (same as Linehan); Green v. Padula, 2007 WL 4124830, *2-3 (D.S.C., Sept. 25, 2007) (holding
three-day denial of food and several hours’ restraint during strip cell placement did not meet the physical
injury requirement), report and recommendation rejected in part on other grounds, 2007 WL 4124663
(D.S.C., Nov. 19, 2007); Ghashiyah v. Wisconsin Dept. of Corrections, 2006 WL 2845701, *11
(E.D.Wis., Sept. 29, 2006) (holding 20 30 pound weight loss was not a physical injury).
Note 1328: Ringgold v. Federal Bureau of Prisons, 2007 WL 2990690, *2, 4-5 (D.N.J., Oct. 5,
2007) (holding an injection that might have exposed the plaintiff to other people’s blood did not meet the
injury threshold); Patrick v. Bobby, 2007 WL 2446574, *3 (N.D.Ohio, Aug. 23, 2007) (rejecting claim
based on failure to remove plaintiff from a unit where smoking is permitted, since his medical records
show no resulting physical injury); Muhammad v. Sherrer, 2007 WL 2021789, *5 (D.N.J., July 9, 2007)
(holding claim prisoner was “overcome” by silicon fumes and suffered high blood pressure as a result was
de minimis); Mayes v. Travis State Jail, 2007 WL 1888828, *4-5 (W.D.Tex., June 29, 2007) (sinus
infection allegedly caused by black mold and diarrhea allegedly caused by spoiled food were de minimis);
Cotter v. Dallas County Sheriff, 2006 WL 1652714, *3-4 (N.D.Tex., June 15, 2006) (holding exposure to
welding dust and metal shaving allegedly resulting in an undiagnosed nervous condition did not constitute
physical injury); Moore v. Bucher, 2006 WL 1451544, *2 (N.D.Fla., May 23, 2006) (holding prisoner
who said he was subjected to smoke and fumes from construction and renovation for 10-12 hours a day
for about ten days did not meet the physical injury standard because he complained only “that he has

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asthma, suffered pain, and had to be treated with medication such as antibiotics and ibuprofen”); Gill v.
Shoemate, 2006 WL 1285412, *5 (W.D.La., May 8, 2006) (holding headaches and eye and throat
irritation resulting from exposure to mold, mildew, dust and fumes were de minimis); Reeves v. Jensen,
2005 WL 2090896, *1-2 (W.D.Mich., Aug. 30, 2005) (dismissing as de minimis a claim that plaintiff
“became ill” after a chemical agent was used against another prisoner); Hogg v. Johnson, 2005 WL
139103, *1, *3 (N.D.Tex., Jan. 21, 2005) (dismissing allegation that plaintiff was “gassed three times for
asking for a mattress and standing up for his rights” for lack of physical injury), report and
recommendation adopted, 2005 WL 762137 (N.D.Tex., Apr. 1, 2005).
Note 1382: Calderon v. Dickhaut, 2011 WL 3652766, *2 (D.Mass., Aug. 17, 2011) (“The filing
fee—which represents only a modest portion of the Court's cost of deploying its resources—is a means to
insure that resources are not consumed thoughtlessly. There is no basis to relieve any prisoner plaintiff,
including Calderon, of the consequences of an improvident filing because upon reflection, he decides he
would like to use the monies which will be applied to his filing fee in some other manner.”); Bey v.
Sullivan, 2011 WL 2413997, *1-2 (D.Mass., June 9, 2011) (holding district court cannot waive filing
fee); Hassan v. Maricopa County Sheriff's Office, 2010 WL 3724747, *3 (D.Ariz., Sept. 16, 2010)
(holding court could not waive filing fee after dismissal where it had granted plaintiff’s IFP request);
Williams v. Adams, 2010 WL 3199936, *1 (D.Nev., Aug. 11, 2010) (holding court could not refund
filing fee to prisoner seeking to withdraw suit); Slater v. Lemens, 2010 WL 960004, *2 (E.D.Wis., Mar.
12, 2010) (plaintiff “incurred the filing fee by filing the notice of appeal”); Stewart v. Baker, 2009 WL
1211350, *1 (W.D.Mo., May 1, 2009) (“The filing of a notice of appeal is considered a consent by the
inmate to allow prison officials to deduct an initial partial appellate filing fee and later installments from
the prisoner's account.”), motion to proceed in forma pauperis denied, 2009 WL 1664471 (W.D.Mo.,
June 12, 2009), aff’d, 360 Fed.Appx. 696 (8th Cir. 2010); Morgan v. Baker, 2008 WL 4831414, *1
(D.Conn., Nov. 5, 2008) (court cannot excuse filing fee as part of settlement of case).
Note 1426: Perkins v. Napoli, 2011 WL 6148988, *1 (W.D.N.Y., December 12, 2011) (allowing
30 days to pay the fee); Emmett v. Warren, 2011 WL 4835679, *2 (E.D.Tex., Oct. 11, 2011) (allowing 15
days to pay the fee); Rindahl v. Daugaard, 2011 WL 4625984, *4 (D.S.D., Sept. 30, 2011); Woods v.
Dewberry, 2011 WL 6097986 (E.D.Tex., Dec. 5, 2011) (allowing 30 days to pay); Luevano v. Perry,
2011 WL 4625934, *1 (D.Minn., Sept. 12, 2011) (dismissing after plaintiff failed to pay during monthplus allowed), report and recommendation adopted, 2011 WL 4625911 (D.Minn., Oct. 3, 2011);
Muhammad v. Sisto, 2011 WL 2493775, *2 (E.D.Cal., June 22, 2011) (allowing payment of filing fee
within the 21 days for filing objections; citing authority that payment of the filing fee moots issues
concerning denial of IFP status); Williams v. Murray, 2011 WL 2391099, *2 (E.D.Cal., June 10, 2011)
(allowing 30 days to pay the fee); Bogan v. Brunsman, 2011 WL 4915055, *2 (S.D.Ohio, May 27, 2011)
(allowing 30 days to pay the fee), report and recommendation adopted, 2011 WL 4915016 (S.D.Ohio,
Oct. 14, 2011); Cardona v. Bledsoe, 2011 WL 1832777, *7 (M.D.Pa., May 12, 2011) (allowing 21 days to
pay the fee); McGrew v. Barr, 2011 WL 1107195, *4 (M.D.La., Mar. 22, 2011) (allowing 30 days to pay
the fee); Pickens v. Dretke, 2011 WL 855688, *5 (E.D.Tex., Jan. 26, 2011) (allowing 30 days to pay the
filing fee), report and recommendation adopted, 2011 WL 846845 (E.D.Tex., Mar. 8, 2011); Price v.
Cunningham, 2011 WL 864677, *4 (E.D.Cal., Mar. 10, 2011) (allowing chance to pay the filing fee,
noting dismissal would be harsh because plaintiff’s claim might be time-barred), report and
recommendation adopted, 2011 WL 2110761, *2 (E.D.Cal., May 25, 2011) (allowing 45 days to pay);
Pinder v. Linkous, 2010 WL 6032627, *2 (W.D.Ark., Nov. 16, 2010) (noting litigant ordinarily would get
a chance to pay the fee, but this plaintiff’s claims were subject to dismissal as frivolous), report and
recommendation adopted, 2011 WL 868811 (W.D.Ark., Mar. 14, 2011); Houston v. Schwarzenegger,
2009 WL 3487625, *6 (E.D.Cal., Oct. 23, 2009) (rejecting contrary authority, rejecting argument that
litigant should not “reap the early benefits” of IFP status such as service by the Marshals; dismissal would
cause delay and inconvenience and might result in the claim’s being time-barred; court grants 30 days to
pay filing fee), report and recommendation adopted, 2010 WL 530154 (E.D.Cal., Feb. 9, 2010); Greene

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v. C.D.C., 2006 WL 2385150, *1 n.1 (E.D.Cal., Aug. 17, 2006) (noting that the statute says only that
prisoners can’t proceed “under this section”–i.e., 28 U.S.C. § 1915, the in forma pauperis statute–if they
have three strikes, while other provisions of § 1915 explicitly provide for dismissal), report and
recommendation adopted, 2006 WL 2686992 (E.D.Cal., Sept. 19, 2006).
Note 1610: Tucker v. Dawkins, 2008 WL 510199, *2 (W.D.N.C., Feb. 22, 2008) (broad and
unsupported allegation that superintendent had solicited prisoners to murder plaintiff does not meet
imminent danger standard); Johnson v. Alabama Dept. of Corrections, 2008 WL 276577, *1 (M.D.Ala.,
Jan. 29, 2008) (discontinuance of hormone treatment for gender identity disorder, allegedly causing
“excessive weight gain, complete body fat redistribution, dizzy spells, fainting spells, headaches, hotflashes, anxiety, severe depression, more depression than usual, . . . [and] the growth of first time facial
hair,” did not meet the imminent danger standard); Gillilan v. Powell, 2007 WL 3286684, *2 (S.D.Ga.,
Nov. 6, 2007) (rejecting claim of great pain and risk of death from failure to remove gallbladder where
records showed he had had gallstones for over a year and he didn’t specifically argue that his condition
had worsened over that time); Leach v. Brownlee, 2007 WL 3025092, *2 (E.D.Ark., Oct. 15, 2007)
(holding that prospect of being sent to a sex offender program and being housed with sex offenders who,
the plaintiff said, might cut his throat was not specific enough to show imminent danger); Oluwa v.
Bliesner, 2007 WL 2457510, *1 (N.D.Cal., Aug. 27, 2007) (holding lack of a Rastafarian diet did not
meet the standard); Smith v. Harris, 2007 WL 710172, *4 (N.D.Fla., Mar. 6, 2007) (holding threats of
bodily harm and death do not constitute imminent danger absent conduct or other evidence supporting
their credibility; the fact that the plaintiff filed grievances and this lawsuit shows he didn’t take them
seriously); Rodriguez v. Texas Dept. of Public Safety, 2007 WL 162830, *2-3 (E.D.Tex., Jan. 22, 2007)
(stating, after a hearing where plaintiff reported a three-month-old threat to “bash his brains in” and his
cell door having been left open on the night of a homicide, that plaintiff’s “subjective belie[f]” in danger
was not supported by objective evidence); Skillern v. Jackson, 2006 WL 1687752, *2 (S.D.Ga., June 14,
2006) (rejecting allegation that denial of access to courts had and would continue to cause heart attacks).
Note 1612: Jones v. Epps, 2008 WL 907663, *1 (S.D.Miss., Apr. 2, 2008) (rejecting claim of
imminent danger based on exposure to second-hand smoke and resulting asthma), certificate of
appealability denied, 2008 WL 1932402 (S.D.Miss., Apr. 28, 2008); Pruden v. Mayer, 2008 WL 919554,
*3 (M.D.Pa., Apr. 2, 2008) (concluding that prisoner’s medical care claims did not pose imminent danger
because they had occurred over a long period of time); Porter v. Barfield, 2007 WL 4365449, *1
(M.D.Fla., Dec. 10, 2007) (rejecting claim of imminent danger based on alleged death threats by guards,
on the ground that none of those guards were defendants, plaintiff had filed still-pending grievances
concerning them, and he did not seek injunctive relief); Hickmon v. Florida Dept. of Corrections, 2007
WL 3023990, *2 (N.D.Fla., Oct. 16, 2007) (holding that prisoner’s complaint lacked sufficient detail to
demonstrate imminent danger, and the fact that he had been placed in protective custody and then waited
two months to file showed it was not imminent); Martinez v. Cosner, 2007 WL 2962733, *1 (D.Colo.,
Oct. 9, 2007) (holding that claim of gang attack did not meet standard where plaintiff had been placed in
protective custody and did not say he was housed with gang members; claim of suicide risk did not meet
standard because he waited almost a month before presenting his claims and did not seek injunctive
relief); Gillilan v. Walkins, 2007 WL 2904129, *2 (S.D.Ga., Oct. 1, 2007) (holding plaintiff’s claim of
suicide risk arising from his mental health problems did not present an imminent risk because he had a
new mental health counselor); Perry v. Mills, 2007 WL 2821803, *3 (W.D.Va., Sept. 27, 2007) (holding
plaintiff’s claim of nosebleeds and migraine headaches caused by lint and dust from the ventilation
system did not show imminent danger without support for his allegation of causation and lack of
specificity about their frequency); Reeves v. Alexander, 2007 WL 2792222, *2 n.1 (W.D.Mich., Sept. 24,
2007) (holding allegation that unsanitary environment causes asthmatic breathing difficulties, bleeding,
and headaches as a result of allergies does not meet imminent danger standard, since plaintiff has been
taken to the hospital by ambulance as needed); Gilmore v. Wright, 2007 WL 2564702, *2-3 (D.S.C.,
Aug. 14, 2007) (assuming complaint of inability to see an “HIV doctor” reflects only a desire to see a

435

doctor of plaintiff’s choice, holding internal bleeding does not pose imminent danger because it seems to
have been a problem for two years), report and recommendation adopted, 2007 WL 2493569 (D.S.C.,
Aug. 29, 2007).
Note 1613: Palmer v. N.Y.S. Dept. of Correction Greenhaven, 2007 WL 4258230, *3 (S.D.N.Y.,
Dec. 4, 2007) (finding frivolous a prisoner’s allegation of imminent danger in that his toenails were
turning black, yellow and green from an infection, and his fingernails were becoming swollen, and he was
going to lose six toenails and a fingernail as a result), aff’d, 342 Fed.Appx. 654 (2d Cir. 2009); Censke v.
Smith, 2007 WL 2594539, *2 (W.D.Mich., Sept. 4, 2007) (holding that a prisoner who alleged that he
was routinely exposed to raw sewage flooding his cell and leaking from the ceiling, and who said he had
experienced various illnesses as a result, did not meet the standard), reconsideration denied, 2007 WL
2904047 (W.D.Mich., Oct. 3, 2007); Fuller v. Johnson County Bd. of County Com’rs, 2007 WL 2316926,
*1 n.3 (D.Kan., Aug. 8, 2007) (holding plaintiff’s claim that “emission of dust, lint, shower odor, and
dead human skin caused him to suffer headaches, watery eyes, a change in voice, and increased mucus”
did not satisfy the exception because he “did not as directly complain of breathing difficulties” as a
prisoner in another case); Owens v. Filsinger, 2007 WL 844827, *2 (W.D.Mich., Mar. 19, 2007) (holding
plaintiff complaining of lack of Hepatitis C treatment for years did not allege imminent danger absent
non-conclusory claim of serious injury); Watley v. Collins, 2006 WL 3422996, *1-2 (S.D.Ohio, Nov. 28,
2006) (holding plaintiff failed to meet imminent danger standard despite allegations that he is mentally ill
and has been placed in supermax conditions as a result of his misbehavior, which aggravates his mental
illness and therefore his misbehavior; has attempted suicide; engages in deranged behavior disturbing
other inmates, who throw urine and feces at him; and has been maced); Hamilton v. Blunt, 2006 WL
2714910, *1-2 (W.D.Mo., Sept. 22, 2006) (holding allegation that environmental tobacco smoke
aggravated plaintiff’s preexisting asthma did not meet imminent danger standard); Jones v. Large, 2005
WL 2218420, *1 (W.D.Va., Sept. 13, 2005) (holding exception inapplicable despite prisoner’s allegation
of verbal threats by staff, including to “whupp his ass” and to kill him).
Note 1621: McDonald v. Shearing, 2013 WL 5346906, *2 (S.D.Ill., Sept. 23, 2013) (holding
allegation of withdrawal of accommodations for Peripheral Artery Disease satisfied the imminent danger
standard); Maisano v. Corizon Inc., 2013 WL 3974521, *2 (M.D.Tenn., Aug. 1, 2013) (holding allegation
of “extreme and rapid weight loss” (30 pounds in a few months) resulting from failure to provide
prescribed diet satisfied imminent danger standard); Allah v. Gramiak, 2013 WL 3772508, *1-2
(M.D.Ga., July 16, 2013) (holding allegation of plaintiff with sleep apnea that defendants failed to
maintain his CPAP machine in working order satisfied imminent danger standard); Medley v. Ryan, 2013
WL 617088, *1 (D.Ariz., Feb. 19, 2013) (holding plaintiff’s allegation of two and a half years’ delay in
following up on discovery that she had “a 3/4 chondral loss at the patella apex” and suffered “severe
swelling, numbness, and excruciating pain,” and had to use a wheelchair or cane, satisfied imminent
danger standard); Brown v. Prison Health Services, Inc., 2013 WL 646469, *2 (E.D.Pa., Feb. 21, 2013)
(holding allegations of failure to respond to symptoms of prostate cancer sufficiently alleged imminent
danger); Liner v. Fischer, 2012 WL 2847910, *4 (S.D.N.Y., July 11, 2012) (holding allegation of denial
of glaucoma medication and resulting risk of blindness sufficiently alleged imminent danger), report and
recommendation adopted, 2012 WL 4849130 (S.D.N.Y., Oct. 12, 2012); Sturdevant v. Roal-Werner,
2012 WL 2312111, *2 (S.D.Ill., June 18, 2012) (holding nearly three-year denial of dental care to
prisoner without teeth or dentures, whose eating was therefore impaired, whose digestion was impaired by
lack of gall bladder, and whose diabetes was said to be aggravated by inability to eat properly, sufficiently
alleged imminent danger); Chapa v. Alvarez, 2012 WL 1184445, *1 (D.Ariz., Apr. 9, 2012) (holding
denial of pain medication and eyeglasses sufficiently alleged imminent danger); Stephen v. Kelso, 2012
WL 371604, *1 n.1 (E.D.Cal., Feb. 3, 2012) (noting imminent danger finding based on based on
allegations that plaintiff was denied physician-recommended colon surgery after a confirmed finding of a
polyp), report and recommendation adopted, 2012 WL 1131363 (E.D.Cal., Mar. 31, 2012); Freeman v.
Collins, 2011 WL 6339687, *4 (S.D.Ohio, Dec. 19, 2011) (holding refusal to treat “severe medical

436

complications to his throat, neck, shoulder, and spine” despite prior medical recommendations and
prescriptions” met the imminent danger standard); Davis v. Middlesex Superior Court, 2011 WL
1344155, *2 (D.Mass., Apr. 7, 2011) (holding alleged “dire circumstances with respect to his medical
care for both his skin condition and his diabetic condition” met imminent danger standard); Funtanilla v.
Williams, 2010 WL 3769134, *1 (E.D.Cal., Sept. 22, 2010) (allegation of denial of treatment for dental
injury and spreading gum infection met imminent danger standard); Barefoot v. Pettit, 2010 WL 2332279,
*2 (E.D.N.C., June 9, 2010) (allegation of denial of dental care resulting in periodontal disease and
permanent structural bone damage); Stewart v. King, 2010 WL 1628992, *3, 5 (M.D.Tenn., Apr. 20,
2010) (allegation of ongoing threats by medical staff to mistreat prisoner with infection presenting risk of
amputation); Rindahl v. Reisch, 2010 WL 597175, *1 (D.S.D., Feb. 18, 2010) (holding numbness in neck
and arms and evidence of lack of follow-up on spinal injury met imminent danger standard); Scobellitti v.
Goldson, 2010 WL 335696, *1 (N.D.Cal., Jan. 22, 2010) (complaint of denial of toothpaste for two years,
resulting in severe periodontal disease and risk of tooth loss and possibly heart disease, met standard);
Almond v. Doyle, 2009 WL 3762000, *2 (W.D.Wis., Nov. 6, 2009) (allegation of untreated painful back
and groin ailments, exacerbation of back pain by removal of mattress); Day v. Bannish, 2009 WL
2589556, *1-2 (D.Conn., Aug. 21, 2009) (allegation of chronic infection causing pain and ulcers on legs
satisfied imminent danger standard); Pettus v. Oakes, 2009 WL 2392025, *1 (W.D.N.Y., Aug. 3, 2009)
(allegation that discontinuation of medication resulted in disabling pain such that the prisoner could not
walk properly satisfied the imminent danger standard); Callegari v. Lee, 2009 WL 2258337, *1
(N.D.Cal., July 28, 2009) (allegation of failure to treat Hepatitis A, B and C satisfied imminent danger
standard); Marts v. Yu, 2009 WL 2355768, *1 (N.D.Fla., July 24, 2009) (allegation of untreated hepatitis
C, hypertension, hypoglycemia and heart problems met standard, if only “marginally”); Bennett v. Moore,
2009 WL 1871856, *1 (S.D.Ill., June 26, 2009) (allegation of refusal of recommended surgery for a torn
colon resulting from sexual assault sufficiently alleged imminent danger); Bell v. Phillips, 2009 WL
1535883, *3 (E.D.Mo., June 1, 2009) (allegation that prison staff cuffed plaintiff’s hands behind his back
contrary to a medical order met the standard); Joiner v. Commissioner, 2009 WL 928869, *2 (M.D.Ala.,
Apr. 3, 2009) (allegation that though plaintiff had received much medical care, defendants had failed to
arrange recommended follow-up, cancelled all outside medical visits, refused to allow assessment of
alleged injury during post-surgical care, and failed to provide adequate pain medication, inter alia);
Reeves v. Correctional Medical Services, 2008 WL 5102257, *1 (E.D.Mich., Dec. 1, 2008) (allegation of
disabling pain in back, legs, and groin, with threat of paralysis if spinal problems were not properly
addressed, satisfied imminent danger standard); Almond v. Wisconsin, 2008 WL 2903574, *1 (E.D.Wis.,
July 24, 2008) (allegation of untreated infection satisfied requirement); Grissom v. Pininski, 2008 WL
2218262, *1-2 (W.D.Wis., May 23, 2008) (allegation of denial of medical care for apparent broken wrist
met the imminent danger standard); Pennington v. Kelly, 2008 WL 927694, *1 (E.D.Ark., Apr. 3, 2008)
(noting that court had allowed plaintiff with three strikes to go forward based on a complaint of failure to
treat Hepatitis C); Jensen v. Knowles, 2008 WL 744726, *2 (E.D.Cal., Mar. 18, 2008) (holding complaint
of failiure to provide diabetic diet met the standard, noting need “to avoid overly detailed inquiries into
what dangers are serious enough”); Weidow v. Crist, 2007 WL 4570569, *2 (N.D.Fla., Dec. 20, 2007)
(plaintiff must allege “specific facts which indicate ongoing serious physical injury, or a pattern of
misconduct evidencing the likelihood of imminent serious physical injury”); Bacon v. Epps, 2006 WL
1382314, *2 (W.D.Mo., May 17, 2006) (allowing claim to go forward under imminent danger standard
that a dentist’s drill bit came loose, was lost inside plaintiff, and he did not receive treatment even after
passing blood); Voth v. Lytle, 2005 WL 3358909, *1 (D.Or., Dec. 8, 2005) (holding plaintiff’s claim of
severe pain and rectal bleeding and overruling of recommendations for surgery satisfy the “imminent
danger of serious physical injury” standard notwithstanding defendants’ claim that the condition is
“relatively stable and long standing”).

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438

APPENDIX B
The Prison Litigation Reform Act, as Codified

I.

SCOPE AND APPLICABILITY OF THE STATUTE
From the prospective relief provisions:
18 U.S.C. § 3626(h). Definitions.
* * *

(2) the term “civil action with respect to prison conditions” means any civil proceeding
arising under Federal law with respect to the conditions of confinement or the effects of actions
by government officials on the lives of persons confined in prison, but does not include habeas
corpus proceedings challenging the fact or duration of confinement in prison;
(3) the term “prisoner” means any person subject to incarceration, detention, or admission
to any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program;
* * *
(5) the term “prison” means any Federal, State, or local facility that incarcerates or
detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law;

From the prisoner litigation provisions:
42 U.S.C. § 1997e(h). Definition.
As used in this section, the term “prisoner” means any person incarcerated or detained in
any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.
28 U.S.C. § 1915A(c). Definition.--As used in this section, the term “prisoner” means
any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for,
or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.

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II. PROSPECTIVE RELIEF RESTRICTIONS
18 U.S.C. § 3626. Appropriate remedies with respect to prison conditions
(a) Requirements for relief.-(1) Prospective relief.--(A) Prospective relief in any civil action with respect to prison
conditions shall extend no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief
unless the court finds that such relief is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right. The court shall give substantial weight to any adverse impact on
public safety or the operation of a criminal justice system caused by the relief.
(B) The court shall not order any prospective relief that requires or permits a government
official to exceed his or her authority under State or local law or otherwise violates State or local
law, unless-(i) Federal law requires such relief to be ordered in violation of State or local law;
(ii) the relief is necessary to correct the violation of a Federal right; and
(iii) no other relief will correct the violation of the Federal right.
(C) Nothing in this section shall be construed to authorize the courts, in exercising their
remedial powers, to order the construction of prisons or the raising of taxes, or to repeal or
detract from otherwise applicable limitations on the remedial powers of the courts.
(2) Preliminary injunctive relief.--In any civil action with respect to prison conditions, to
the extent otherwise authorized by law, the court may enter a temporary restraining order or an
order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm the court finds requires preliminary relief,
and be the least intrusive means necessary to correct that harm. The court shall give substantial
weight to any adverse impact on public safety or the operation of a criminal justice system
caused by the preliminary relief and shall respect the principles of comity set out in paragraph
(1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire
on the date that is 90 days after its entry, unless the court makes the findings required under
subsection (a)(1) for the entry of prospective relief and makes the order final before the
expiration of the 90-day period.
(3) Prisoner release order.--(A) In any civil action with respect to prison conditions, no
court shall enter a prisoner release order unless-(i) a court has previously entered an order for less intrusive relief that has failed to
remedy the deprivation of the Federal right sought to be remedied through the prisoner release
order; and
(ii) the defendant has had a reasonable amount of time to comply with the previous court
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orders.
(B) In any civil action in Federal court with respect to prison conditions, a prisoner
release order shall be entered only by a three-judge court in accordance with section 2284 of title
28, if the requirements of subparagraph (E) have been met.
(C) A party seeking a prisoner release order in Federal court shall file with any request
for such relief, a request for a three-judge court and materials sufficient to demonstrate that the
requirements of subparagraph (A) have been met.
(D) If the requirements under subparagraph (A) have been met, a Federal judge before
whom a civil action with respect to prison conditions is pending who believes that a prison
release order should be considered may sua sponte request the convening of a three-judge court
to determine whether a prisoner release order should be entered.
(E) The three-judge court shall enter a prisoner release order only if the court finds by
clear and convincing evidence that-(i) crowding is the primary cause of the violation of a Federal right; and
(ii) no other relief will remedy the violation of the Federal right.
(F) Any State or local official including a legislator or unit of government whose
jurisdiction or function includes the appropriation of funds for the construction, operation, or
maintenance of prison facilities, or the prosecution or custody of persons who may be released
from, or not admitted to, a prison as a result of a prisoner release order shall have standing to
oppose the imposition or continuation in effect of such relief and to seek termination of such
relief, and shall have the right to intervene in any proceeding relating to such relief.
(b) Termination of relief.-(1) Termination of prospective relief.--(A) In any civil action with respect to prison
conditions in which prospective relief is ordered, such relief shall be terminable upon the motion
of any party or intervener-(i) 2 years after the date the court granted or approved the prospective relief;
(ii) 1 year after the date the court has entered an order denying termination of prospective
relief under this paragraph; or
(iii) in the case of an order issued on or before the date of enactment of the Prison
Litigation Reform Act, 2 years after such date of enactment.
(B) Nothing in this section shall prevent the parties from agreeing to terminate or modify
relief before the relief is terminated under subparagraph (A).
(2) Immediate termination of prospective relief.--In any civil action with respect to prison
conditions, a defendant or intervener shall be entitled to the immediate termination of any

441

prospective relief if the relief was approved or granted in the absence of a finding by the court
that the relief is narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of the Federal
right.
(3) Limitation.--Prospective relief shall not terminate if the court makes written findings
based on the record that prospective relief remains necessary to correct a current and ongoing
violation of the Federal right, extends no further than necessary to correct the violation of the
Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to
correct the violation.
(4) Termination or modification of relief.--Nothing in this section shall prevent any party
or intervener from seeking modification or termination before the relief is terminable under
paragraph (1) or (2), to the extent that modification or termination would otherwise be legally
permissible.
(c) Settlements.-(1) Consent decrees.--In any civil action with respect to prison conditions, the court shall
not enter or approve a consent decree unless it complies with the limitations on relief set forth in
subsection (a).
(2) Private settlement agreements.--(A) Nothing in this section shall preclude parties from
entering into a private settlement agreement that does not comply with the limitations on relief
set forth in subsection (a), if the terms of that agreement are not subject to court enforcement
other than the reinstatement of the civil proceeding that the agreement settled.
(B) Nothing in this section shall preclude any party claiming that a private settlement
agreement has been breached from seeking in State court any remedy available under State law.
(d) State law remedies.--The limitations on remedies in this section shall not apply to
relief entered by a State court based solely upon claims arising under State law.
(e) Procedure for motions affecting prospective relief.-(1) Generally.--The court shall promptly rule on any motion to modify or terminate
prospective relief in a civil action with respect to prison conditions. Mandamus shall lie to
remedy any failure to issue a prompt ruling on such a motion.
(2) Automatic stay.--Any motion to modify or terminate prospective relief made under
subsection (b) shall operate as a stay during the period-(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made
under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed, in the case of a motion made
under any other law; and

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(B) ending on the date the court enters a final order ruling on the motion.
(3) Postponement of automatic stay.--The court may postpone the effective date of an
automatic stay specified in subsection (e)(2)(A) for not more than 60 days for good cause. No
postponement shall be permissible because of general congestion of the court’s calendar.
(4) Order blocking the automatic stay.--Any order staying, suspending, delaying, or
barring the operation of the automatic stay described in paragraph (2) (other than an order to
postpone the effective date of the automatic stay under paragraph (3)) shall be treated as an order
refusing to dissolve or modify an injunction and shall be appealable pursuant to section
1292(a)(1) of title 28, United States Code, regardless of how the order is styled or whether the
order is termed a preliminary or a final ruling.
(f) Special masters.-(1) In general.--(A) In any civil action in a Federal court with respect to prison
conditions, the court may appoint a special master who shall be disinterested and objective and
who will give due regard to the public safety, to conduct hearings on the record and prepare
proposed findings of fact.
(B) The court shall appoint a special master under this subsection during the remedial
phase of the action only upon a finding that the remedial phase will be sufficiently complex to
warrant the appointment.
(2) Appointment.--(A) If the court determines that the appointment of a special master is
necessary, the court shall request that the defendant institution and the plaintiff each submit a list
of not more than 5 persons to serve as a special master.
(B) Each party shall have the opportunity to remove up to 3 persons from the opposing
party’s list.
(C) The court shall select the master from the persons remaining on the list after the
operation of subparagraph (B).
(3) Interlocutory appeal.--Any party shall have the right to an interlocutory appeal of the
judge’s selection of the special master under this subsection, on the ground of partiality.
(4) Compensation.--The compensation to be allowed to a special master under this
section shall be based on an hourly rate not greater than the hourly rate established under section
3006A for payment of court-appointed counsel, plus costs reasonably incurred by the special
master. Such compensation and costs shall be paid with funds appropriated to the Judiciary.
(5) Regular review of appointment.--In any civil action with respect to prison conditions
in which a special master is appointed under this subsection, the court shall review the
appointment of the special master every 6 months to determine whether the services of the
special master continue to be required under paragraph (1). In no event shall the appointment of
a special master extend beyond the termination of the relief.

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(6) Limitations on powers and duties.--A special master appointed under this subsection-(A) may be authorized by a court to conduct hearings and prepare proposed findings of
fact, which shall be made on the record;
(B) shall not make any findings or communications ex parte;
(C) may be authorized by a court to assist in the development of remedial plans; and
(D) may be removed at any time, but shall be relieved of the appointment upon the
termination of relief.
(g) Definitions.--As used in this section-(1) the term “consent decree” means any relief entered by the court that is based in whole
or in part upon the consent or acquiescence of the parties but does not include private
settlements;
(2) the term “civil action with respect to prison conditions” means any civil proceeding
arising under Federal law with respect to the conditions of confinement or the effects of actions
by government officials on the lives of persons confined in prison, but does not include habeas
corpus proceedings challenging the fact or duration of confinement in prison;
(3) the term “prisoner” means any person subject to incarceration, detention, or admission
to any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program;
(4) the term “prisoner release order” includes any order, including a temporary
restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or
limiting the prison population, or that directs the release from or nonadmission of prisoners to a
prison;
(5) the term “prison” means any Federal, State, or local facility that incarcerates or
detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law;
(6) the term “private settlement agreement” means an agreement entered into among the
parties that is not subject to judicial enforcement other than the reinstatement of the civil
proceeding that the agreement settled;
(7) the term “prospective relief” means all relief other than compensatory monetary
damages;
(8) the term “special master” means any person appointed by a Federal court pursuant to
Rule 53 of the Federal Rules of Civil Procedure or pursuant to any inherent power of the court to
exercise the powers of a master, regardless of the title or description given by the court; and

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(9) the term “relief” means all relief in any form that may be granted or approved by the
court, and includes consent decrees but does not include private settlement agreements.

Amendment: Special Masters Appointed Prior to Apr. 26, 1996; Prohibition on Use
of Funds
Pub.L. 104-208, Div. A, Title I, § 101(a) [Title III, § 306], Sept. 30, 1996, 110 Stat.
3009-45, provided that: “None of the funds available to the Judiciary in fiscal years 1996 and
1997 and hereafter shall be available for expenses authorized pursuant to section 802(a) of title
VIII of section 101(a) of title I of the Omnibus Consolidated Rescissions and Appropriations Act
of 1996, Public Law 104-134 [enacting this section], for costs related to the appointment of
Special Masters prior to April 26, 1996.”

III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
42 U.S.C. § 1997e(a). Applicability of administrative remedies.
No action shall be brought with respect to prison 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.
(b) Failure of State to adopt or adhere to administrative grievance procedure
The failure of a State to adopt or adhere to an administrative grievance procedure shall
not constitute the basis for an action under section 1997a or 1997c of this title.

IV. MENTAL OR EMOTIONAL INJURY
42 U.S.C. § 1997e(e). Limitation on recovery.
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 (as defined in section 2246 of Title
18).
28 U.S.C. § 1346 (b). [from Federal Tort Claims Act]
* * *

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(2) No person convicted of a felony who is incarcerated while awaiting sentencing or
while serving a sentence may bring a civil action against the United States or an agency, officer,
or employee of the Government, for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission of a sexual act (as defined in
section 2246 of Title 18).

18 U.S.C. § 2246. Definitions for chapter.
As used in this chapter--:
* * *
(2) the term “sexual act” means-(A) contact between the penis and the vulva or the penis and the anus, and for purposes of
this subparagraph contact involving the penis occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and
the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or
finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person
who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person; . . .

V. ATTORNEYS’ FEES
42 U.S.C. § 1997e(d). Attorney’s fees.
(1) In any action brought by a prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such
fees shall not be awarded, except to the extent that-(A) the fee was directly and reasonably incurred in proving an actual violation of the
plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section
1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the
violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the
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violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a
portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of
attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than
150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney’s fees in an action described in paragraph (1) shall be based on
an hourly rate greater than 150 percent of the hourly rate established under section 3006A of
Title 18, for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to
pay an attorney’s fee in an amount greater than the amount authorized under this subsection, if
the fee is paid by the individual rather than by the defendant pursuant to section 1988 of this title.

VI. FILING FEES AND COSTS/SCREENING AND DISMISSAL
28 U.S.C. § 1915. Proceedings in forma pauperis
(a)(1) Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is unable
to pay such fees or give security therefor. Such affidavit shall state the nature of the action,
defense or appeal and affiant’s belief that the person is entitled to redress.
(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or
proceeding without prepayment of fees or security therefor, in addition to filing the affidavit
filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing
of the complaint or notice of appeal, obtained from the appropriate official of each prison at
which the prisoner is or was confined.
(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing that
it is not taken in good faith.
(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal
in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court
shall assess and, when 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

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(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.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make
monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account exceeds $10 until the filing
fees are paid.
(3) In no event shall the filing fee collected exceed the amount of fees permitted by
statute for the commencement of a civil action or an appeal of a civil action or criminal
judgment.
(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a
civil or criminal judgment for the reason that the prisoner has no assets and no means by which
to pay the initial partial filing fee.
(c) Upon the filing of an affidavit in accordance with subsections (a) and (b) and the
prepayment of any partial filing fee as may be required under subsection (b), the court may direct
payment by the United States of the expenses of (1) printing the record on appeal in any civil or
criminal case, if such printing is required by the appellate court; (2) preparing a transcript of
proceedings before a United States magistrate in any civil or criminal case, if such transcript is
required by the district court, in the case of proceedings conducted under section 636(b) of this
title or under section 3401(b) of title 18, United States Code; and (3) printing the record on
appeal if such printing is required by the appellate court, in the case of proceedings conducted
pursuant to section 636(c) of this title. Such expenses shall be paid when authorized by the
Director of the Administrative Office of the United States Courts.
(d) The officers of the court shall issue and serve all process, and perform all duties in
such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as
are provided for by law in other cases.
(e)(1) The court may request an attorney to represent any person unable to afford counsel.
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
(f)(1) Judgment may be rendered for costs at the conclusion of the suit or action as in

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other proceedings, but the United States shall not be liable for any of the costs thus incurred. If
the United States has paid the cost of a stenographic transcript or printed record for the
prevailing party, the same shall be taxed in favor of the United States.
(2)(A) If the judgment against a prisoner includes the payment of costs under this
subsection, the prisoner shall be required to pay the full amount of the costs ordered.
(B) The prisoner shall be required to make payments for costs under this subsection in the
same manner as is provided for filing fees under subsection (a)(2).
(C) In no event shall the costs collected exceed the amount of the costs ordered by the
court.
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section 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.
(h) As used in this section, the term ‘prisoner’ means any person incarcerated or detained
in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.
28 U.S.C. § 1915A. Screening
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
(c) Definition.--As used in this section, the term “prisoner” means any person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.
42 U.S.C. § 1997e(c). Dismissal.
(1) The court shall on its own motion or on the motion of a party dismiss any action
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility if the court is

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satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief.
(2) In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such
relief, the court may dismiss the underlying claim without first requiring the exhaustion of
administrative remedies.

VII. THREE STRIKES PROVISION

28 U.S.C. § 1915(g).
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or
proceeding under this section 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.
18 U.S.C. § 983(h)(3) (from the Civil Asset Forfeiture Reform Act of 2000)
(3) In addition to the limitations of section 1915 of title 28, United States Code, in no
event shall a prisoner file a claim under a civil forfeiture statute or appeal a judgment in a civil
action or proceeding based on a civil forfeiture statute if the prisoner has, on three 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 or malicious, unless the
prisoner shows extraordinary and exceptional circumstances.

IX. WAIVER OF REPLY
42 U.S.C. § 1997e(g).
(1) Any defendant may waive the right to reply to any action brought by a prisoner
confined in any jail, prison, or other correctional facility under section 1983 of this title or any
other Federal law. Notwithstanding any other law or rule of procedure, such waiver shall not
constitute an admission of the allegations contained in the complaint. No relief shall be granted
to the plaintiff unless a reply has been filed.
(2) The court may require any defendant to reply to a complaint brought under this
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section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.

X. HEARINGS BY TELECOMMUNICATION AND AT PRISONS
42 U.S.C. §1997e(f). Hearings.
(1) To the extent practicable, in any action brought with respect to prison conditions in
Federal court pursuant to section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility, pretrial proceedings in which the
prisoner’s participation is required or permitted shall be conducted by telephone, video
conference, or other telecommunications technology without removing the prisoner from the
facility in which the prisoner is confined.
(2) Subject to the agreement of the official of the Federal, State, or local unit of
government with custody over the prisoner, hearings may be conducted at the facility in which
the prisoner is confined. To the extent practicable, the court shall allow counsel to participate by
telephone, video conference, or other communications technology in any hearing held at the
facility.

XI. REVOCATION OF EARNED RELEASE CREDIT
28 U.S.C. § 1932.
In any civil action brought by an adult convicted of a crime and confined in a Federal
correctional facility, the court may order the revocation of such earned good time credit under
section 3624(b) of title 18, United States Code, that has not yet vested, if, on its own motion or
the motion of any party, the court finds that-(1) the claim was filed for a malicious purpose;
(2) the claim was filed solely to harass the party against which it was filed; or
(3) the claimant testifies falsely or otherwise knowingly presents false evidence or
information to the court.
Note: There are two statutes numbered 28 U.S.C. § 1932. The other has nothing to
do with prisoners or prison litigation.

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XII. DIVERSION OF DAMAGE AWARDS (not codified)
A. Notice to Crime Victims of Pending Damage Award

Pub.L. 104-134, Title I, § 101[(a)][Title VIII, § 808], Apr. 26, 1996, 110 Stat. 1321-76;
renumbered Title I Pub.L. 104-140, § 1(a), May 2, 1996, 110 Stat. 1327
Prior to payment of any compensatory damages awarded to a prisoner in connection with
a civil action brought against any Federal, State, or local jail, prison, or correctional facility or
against any official or agent of such jail, prison, or correctional facility, reasonable efforts shall
be made to notify the victims of the crime for which the prisoner was convicted and incarcerated
concerning the pending amount of any such compensatory damages.

B. Payment of Damage Award in Satisfaction of Pending Restitution Orders

Pub.L. 104-134, § 101[(a)][Title VIII, § 807], Apr. 26, 1996, 110 Stat. 1321-75;
renumbered Title I Pub.L. 104-140, § 1(a), May 2, 1996, 110 Stat. 1327
Any compensatory damages awarded to a prisoner in connection with a civil action
brought against any Federal, State, or local jail, prison, or correctional facility or against any
official or agent of such jail, prison, or correctional facility, shall be paid directly to satisfy any
outstanding restitution orders pending against the prisoner. The remainder of any such award
after full payment of all pending restitution orders shall be forwarded to the prisoner.

XIII. BANKRUPTCY
11 U.S.C. § 523. Exceptions to discharge
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does
not discharge an individual debtor from any debt—
* * *
(17) for a fee imposed by a court for the filing of a case, motion, complaint, or appeal, or
for other costs and expenses assessed with respect to such filing, regardless of an assertion of
poverty by the debtor under section 1915(b) or (f) of of title 28 (or a similar non-Federal law), or
the debtor's status as a prisoner, as defined in section 1915(h) of title 28 (or a similar non-Federal
law); . . .

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