*1 720 victim, The order the district court to the State or at least his intent to kill the victim, before he can him Michigan retry harm the Hill or release
physically and abetted the have aided custody days be found to penal from within of the intent can be in (November well. Such murder as of the district court order date and abettor’s knowl from the aider ferred 1, 2001), plus stayed pending time possesses weapon. that his cohort edge AFFIRMED. appeal, hereby is Feldmann, See, Mich. v. e.g., People 692, (1989); 523, see App. 449 N.W.2d Turner, Mich.App. v. People
also (1995), 728, 733 overruled in
540 N.W.2d Mass, v. grounds, People
part on other (2001). N.W.2d
Mich.
However, fundamentally unfair and “[i]t principles individual
in violation basic one felon liable culpability to hold criminal Douglas THOMAS, Plaintiff-Appellant, death did result for an unforeseen by the agreed upon partici actions from Turner, N.W.2d at 738.
pants.” WOOLUM, Defendant, Shawn Therefore, a determination whether KEPLER; Starcher; Richard Charlotte carrying Hill that Matthews was knew Waddell, Sr., Billie Defendants- jury’s to the determination gun is relevant Appellees. second-degree guilty of whether Hill is presents Hill’s statement little murder. No. 01-3227. possessed the question originally that he Appeals, Court of United States Johnson, intent to rob but leaves requisite Sixth Circuit. he knew Matthews had a open whether Hill possessed and therefore whether gun, Argued Aug. 2002. necessary requisite malice for second- Bulls’ degree murder. statement removes July Decided and Filed 2003. by implying that Hill knew of doubt gun acquiesced the existence of the robbery. Accordingly,
its role Bulls’ damaging is more to Hill than
statement find, therefore,
his own. We error “a
Sixth Amendment had substantial injurious effector influence deter- Brecht, jury’s
mining verdict.” See Hill entitled to a new charges.8
trial on both
V. reasons, foregoing uphold
For the grant of the writ the district court. elements, charged abetting aiding theory, 8. As one of its the armed assault under charge requires finding with intent to rob whether Hill knew Matthews was armed is perpetrator analysis charge that the was armed with a dan- relevant to the of this as well. Therefore, gerous weapon. Comp. because Hill was See Mich. Laws 750.89. *3 A.
Alphonse (argued Gerhardstein briefed), Branch, Jennifer L. Paul M. (briefed), Laufman Laufman & Gerhard- stein, Cincinnati, OH, Plaintiff-Appel- lant. briefed), R. (argued
Todd Marti Of- General, Attorney fice Corrections Section, Columbus, OH, for De- Litigation fendants-Appellees. GILMAN,
Before: MOORE and Circuit ROSEN, Judges; Judge.* District OPINION MOORE, Judge. Circuit Congress’s passage Litiga- of the Prison (“PLRA”) Act attempt tion Reform was an rampant prison litigation to curb courts, but federal its enactment did not the role of erode the federal courts as rights. vindicators of PLRA explicitly requires seeking an inmate challenge prison conditions federal court to exhaust available administrative remedies, but the text does statute’s condition access the federal courts on satisfying procedures and timelines of Thus, prison administrators. this case turns not on whether exhaustion is re- settled, quired, the answer to which is well requires. but on what exhaustion We an- question light Congress’s swer purpose passing the PLRA and Su- precedent regarding the ex- preme Court * Rosen, sitting by Michigan, designation. The Honorable E. United States Gerald Judge District the Eastern District clavicle, ribs, purpose: haustion doctrine’s oft-stated to fered a broken broken a bro- give prison foot, officials the first lacerations, ken facial and massive complaints according address inmate to swelling. alleges Thomas that Officers procedures letting their rules and without Starcher, Richard Kepler, Charlotte those timetables dictate the outcomes of Waddell, Billie Sr. observed the beating, Accordingly, 1983 actions. we hold but they failed to intervene. That was on long presents so as an inmate his or her November officials and appeals investigations Various followed. Offi- procedures, the available in- Woolum, Waddell, Kepler, cers along mate has exhausted her administra- supervising with the sug- officer who had *4 remedies, tive prison’s and a decision not gested Thomas go segregation and the grievance to address the because it was nurse who injuries, treated Thomas’s filed untimely under rules shall not bar reports,” “incident prison regulations hold, however, the federal suit. We also require an employee when struggles with that give prison when a does not an inmate or observes such a struggle. officials notice of the nature of the in- 5120-9-02(A)(B) Ohio Admin. Code complaint,
mate’s the inmate has not met (1997). Thomas also filed a voluntary requirements. the PLRA’s AF- We thus incident, statement day after the FIRM judgment of the district court.
which he described what happened had noted, I. BACKGROUND point and “At some when I was being beaten while wearing handcuffs I Douglas When inmate Thomas told a looking seen officers but I on[e] supervising officer at the North Central knew was Waddell.” Bill[ie] J.A. at 153. (“NCCI”) Correctional Institution that he felt stressed out lay and needed “to regulations, accord with prison offi- days,” down fora few the officer instructed cials then formed a Use of Force Commit- Corrections Officer Shawn Woolum to investigate tee to Having incident. take Thomas down to segregation statements, heard additional including an- unit. (Springer J.A. at 84 Rep.). Incident other statement describing from Thomas Woolum, with whom Thomas had ex- actions, Woolum’s Use Force Com- changed angry day, words earlier that report concluding mittee issued a that took the to retaliate. While inappropriate Woolum had used an amount walking segregation, Thomas down to force; disciplinary proceedings after Woolum instructed another inmate who later, some time Woolum was fired. Un- present began pum- was to leave and code, however, der the administrative mel the handcuffed Thomas. Woolum right inmate has no to view the report or behind, struck Thomas from slammed him the evidence used to create it. door, into a banged steel and his face In addition to the internal ad- against the steel door and cement walls. ministrative cell, inquiry, Thomas invoked the Upon their arrival at the holding grievance procedure. being Woolum formal After slammed Thomas into a steel frame, door transferred to the Allen Correctional picked up, him and Insti- slammed (“ACI”), 1,May his face and tution on again head into a cement Thomas wall. stomped requested Woolum then form in order Thomas’s report foot. Thomas was in during handcuffs November 5 incident. On or relevant time and did May not resist. As a about Thomas filed a Notifi- actions, result of Woolum’s Thomas suf- cation of Grievance with NCCI’s institu- filed a in state court complaint The Notification Thomas inspector. tional 5, 1998, against and on November Woolum requires form Grievance Does, and alleging Does Jane John nature of Grievance” state “[t]he stated, applied excessive force as Woolum part, Thomas terms. specific Does Does failed to the John and Jane follows: Thomas protect prevent beating. I I at NOCI 5th while was Nov. [O]n during discovery claims Thomas Officer] [Corrections assaulted action, the state-court he learned Ke- I in handcuffs and while was Woolum Starcher, present pler, Waddell were and have bones broken -had several during beating protect failed to to A.C.I. admin been transferred since Indeed, him. statements that officers had istratively. you Also know the state reports with their incident and the filed in the FBI have conducted troopers & investigation of Force Use Litiga —statements vestigations- ] Prisonf Thomas had access—indi- right Act 42 of the Reform & Title tion might that other officers cated ob- that a require[ ] Code United States Woolum’s actions and not inter- served remedies must exhaust state vened. Thomas learned these *5 litigation. I ask Therefore prior documents, for example, that Officer Ke- Officer] Woolum that[Corrections coming a loud from pler “heard noise the employ and from his removed released and the R.I.B. office sally port” “exited ment the of Correc Department 88; investigate,” J.A. at that Officer Wad- that I 5 million tions and am awarded into dell “walked the hall[when] Thomas dollars. cell,” 89, in being put holding was J.A. 33. The de- inspector J.A. at institutional that, according which meant to the Use of relief, griev- apparently nied because conclusions, Force Committee’s Waddell thirty-day not filed ance was within might being pushed have watched Thomas required by of Rehabil- period Department way in a that head to strike caused his poli- and Correction(“Department”) itation wall; and that Officer Starcher admitted cy- having holding seen in the cell. Thomas pursued grievance. Thomas Follow- his newly statements, these available From denial, ing appealed the initial Thomas appears have concluded Thomas Inspector. argued the Chief Thomas may three these officers witnessed law library provided the ACI had been assault. Woolum’s copies Department policy manuals thirty forty-five days, against in the last The state court Woolum action thirty-day time limit was recent and the John Does and Jane Does was change policy, had prisoners prejudice and that then dismissed without Octo- 20, 1999, original not been notified of change policy. ber Thomas filed 30,1998, Inspector On October Court on Octo- complaint Chief District 22, time, relief, This determining denied Thomas ber Thomas sued not Does, was filed grievance too late and that infor- Does and Jane but armed with John regarding court Department’s mation new information obtained in state dis- Woolum, policy law instead covery, Kepler, time-limit was available sued Starcher, library. briefing,, of the Accordingly, the decision and Waddell. After stated, had Inspector Chief Office will district court ruled that Thomas not “This your respect further his regard take no action exhausted remedies with Starcher, complaint Kepler, at this at 35. and Waddell. Thomas’s time.” J.A. form, grievance reasoned, District have exhausted their available admin Woolum,” “against 1997e(a). defendant istrative remedies. 42 U.S.C. defendants, although J.A. so the There is no PLRA, doubt that under the $70,000 eventually by prisoners court awarded Thomas is mandatory. Woolum, Churner, against on his claim See Booth v. dismissed Starcher, 1819, 149 against Kepler, his claims (2001); L.Ed.2d 958 see Page Waddell for failure to exhaust. also Torrey, 1136,1139 (9th Cir.1999) (recognizing that exhaustion appealed Thomas the dismissal of requirement applies only to those who are against his claims the other defendants. detained,” “currently not former prisoners, The defendants now ways offer two noting agreement Second, of the Sev which Thomas failed to exhaust his reme enth, Circuits). and Eighth The exhaus Starcher, against Kepler, dies and Wad- tion requirement ensures that state prison (1) may dell: that we not look at Thomas’s systems will have an opportunity to handle (2) all, prison grievance prison grievances internally before re grievance was insufficient to exhaust course to the federal courts becomes avail First, his claims. argue defendants able. But exhaustion is not the same as that Thomas failed to exhaust his adminis default, and in similar state trative remedies because he did not file his contexts, administrative the Supreme regarding the November Court has held that state timelines cannot beating May until thirty- after the foreclose access to the federal courts when day period in Department which the will petitioner has exhausted his or her state Second, accept grievances expired. had remedies bringing a they argue that his was not *6 grievance to the state pursuing them, “against” against alone, but Woolum grievance through to the administrative and that he bring against could not a suit agency’s is, final ruling. That the exhaus them. any We review de novo legal deter tion requirement is a “termination” re minations made in dismissing complaint quirement, requiring petitioner to pursue for lack subject jurisdiction, matter in remedies as far as ex cluding a plaintiff determination that the long prisoner ist. So require meets this did not remedies, exhaust administrative ment, a federal claim will not be barred and we review findings factual plaintiffs failure comply with a state clear error. See Cathedral Rock North internal requirements. Hill, Shalala, College 354, Inc. v. 223 F.3d (6th Cir.2000). begin We with the A. Exhaustion and the PLRA argument, defendants’ first for before we may determine whether griev Thomas’s By requiring prisoners who challenge sufficient, ance was it is necessary for us the conditions of their confinement to ex to determine whether may we look at his haust first their state administrative reme grievance at all. dies, the PLRA grants prison sys state opportunity tems the initial to address
II. COMPLIANCE WITH STATE problems. their internal parts Whereas REQUIRE- PROCEDURAL the PLRA aim to ease the burden that MENTS prisoner impose meritless lawsuits Litigation The Prison Reform state law-enforcement officials and the prohibits docket, see, Act challenging inmates from e.g., federal 42 U.S.C. prison 1997e(c)(1) conditions federal courts until (permitting court to dismiss not contain Accordingly, the PLRA does are obvious suits that prisoner sponte
sua
1997e(f)
timeliness of
regarding the
frivolous);
(authorizing
any language
id.
ly
filings
application
pro-
video
or the
telephone
grievance
via
or
hearings
pretrial
default;
forgoes
if
in-person appear
than
the state
cedural
rather
conference
1997e(g)(1)
internally
id.
to decide matters
prisoner);
opportunity
ance of
right
to waive
for internal
time constraints or
defendant
whether
(permitting
actions), nothing sug
reason,
nonethe-
reply
prisoner
the PLRA has
any other
act,
specifical
of the
gests
goal
that a
and the
purpose,
less served its
requirement, was to
ly, of the
may proceed to federal court.
Rather,
claims.
defeat valid constitutional
purpose
of the exhaustion
Because
simply recog
requirement
the exhaustion
provide states the first
requirement
is to
presents
first
nizes that unless
problems
resolve
them
opportunity to
to the state
or her
selves,
pursued
inmate who has not
often be the most effi
system, what will
may
remedies
not
available administrative
remedy
a violation of
cient mechanism
Thus,
in federal court.
yet proceed
lost. See Porter v.
law will be
inmate
clearly
held that an
does
516,
983,
Nussle,
525, 122
534 U.S.
S.Ct.
remedies
available administrative
exhaust
(2002) (“Congress
afforded
152 L.Ed.2d
entirely
the inmate
fails to invoke
when
time and
corrections officials
procedure,
see
prison’s grievance
al
internally before
complaints
to address
Vidor,
199 F.3d
308-09
Hartsfield
case.”).
initiation of a federal
lowing the
(6th Cir.1999);
Toombs,
Brown v.
139 F.3d
is therefore a
The exhaustion
(6th
denied,
Cir.),
1102, 1104
cert.
525 U.S.
prisons,
an op
benefit accorded
state
69(1998),
88, 142 L.Ed.2d
119 S.Ct.
satisfy
griev
those inmate
portunity to
but
when the inmate filed such
internal
the state wishes
handle
ances
the denial of that com
appeal
“did not
Rodriguez, 411
ly.
Preiser v.
See
highest possible
to the
administra
plaint
475, 492,
L.Ed.2d 439
Morris,
level,” Wright v.
tive
(1973) (“Since
problems
internal
these
denied,
Cir.),
417 n. 3
cert.
issues so
prisons
peculiarly
involve
(1997);
263,
within state
*7
Francis,
v.
196 F.3d
see also Freeman
important
interest
not
States have
(6th Cir.1999). However,
have not
645
in the correction of those
being bypassed
opinion1
previously
published
ruled
“an accommodation of
problems.”).
It is
or her
that an inmate fails to exhaust his
system designed
give
our
to
the
federal
when the
available administrative remedies
opportunity
pass upon
an initial
to
State
sys
prison’s grievance
invokes the
inmate
alleged
prison
and correct
violations
its
initially
appeals the denial of that
tem
Connor,
rights.” Picard v.
ers’ federal
pris
but
time barred
the
grievance,
270, 275,
509, L.Ed.2d
404
30
procedures.
administrative
on’s
(1971).
not, however, designed
438
It is
to
precedent demonstrates
to
Our
permit state administrative timelines
that,
keeping
plain language
with the
adjudicating
handcuff the federal
courts
1997e(a),
does not exhaust his
involving important
rights.
prisoner
cases
panel.
unpublished
dential value and do not bind this
1. We have rendered two
orders
Wilkinson,
(6th
Fed.Appx. 273
require-
Jacobs v.
21
in which we held
the exhaustion
Qawi
Cir.2001)
Stegall,
(Unpub.Order);
v.
No.
ment was not met
a failure to meet
because of
98-1402,
(6th
However,
May
WL
Cir.
state’s
deadlines.
2000)
prece-
(Unpub.Order).
unpublished
these
orders have no
he fails to
barred
thus not
remedies when
then available.”
administrative
Wright,
or to run
728 Congress’s intent that state time of the Civil indicated Act and Title VII Employment not bar the federal plaintiffs requirements could require of 1964 Act Rights cases, the Court insisted relevant claims. both grievances present their be may imposed initi- that such a could plaintiff system before state 638(b) May Oscar only by explicit mention. See suit. See 29 U.S.C. a federal ate (Title (“In 2000e-5(c) er, 759, at 2066 (ADEA); 441 U.S. 99 S.Ct. 42 U.S.C. Evans, VII). Mayer requirement [in v. 441 there particular, & Co. In Oscar that, 2066, commence 750, L.Ed.2d 609 state ADEA] S.Ct. order U.S. thereby preserve held that an federal (1979), Supreme proceedings Court grievant must file with the presented rights, who had ADEA plaintiff agency spec limits are governing state within whatever time grievance to the State law.”); by of limitations had ified state Commercial the state’s statute after Office 1666(“Ti- Prods., 124, 108 satisfied the had nonetheless 486 U.S. at S.Ct. expired ADEA, proceed VTI, could requirements and like the contains no ex ADEA’s tle Mayer, federal suit. See Oscar timeliness under state press with his reference to 2066(“[T]he 753, griev- law.”). Second, 99 S.Ct. emphasized 441 U.S. the Court 633(b)] by to com- required [§ ant is not not statutes of limitations should state “ proceedings within time the state mence a bar court ‘in a serve as to federal law.”). Similarly, specified state limits statutory laymen, unas scheme which Products v. Commercial EEOC initiate lawyers, pro sisted trained Office ” 1666, Co., 108 S.Ct. 486 U.S. Mayer, cess.’ Oscar U.S. (1988), Court held L.Ed.2d 96 Co., 2066(quoting Love Pullman comply plaintiffs Title VII failure that a 522, 527, 92 S.Ct. L.Ed.2d in pre- of limitations with a state statute (1972)); accord Commercial Office agency her to the state senting Prods., 124, 108 S.Ct. 486 U.S. at determining whether she was irrelevant Third, pro the Court that state reasoned See id. at proceed could federal court. prevent rules not be able cedural should 1666(“[S]tate limits time 108 S.Ct. remedying court a harm a federal from claims do not deter- filing discrimination prevent. The re sought limit.”). time applicable mine the federal plaintiffs first initiate state quirement proceedings gave oppor states “a limited frameworks, those the Su- For both of tunity” to resolve discrimination com argu- preme primary relied three should plaints, “[i]ndividuals not comply to conclude that failure to ments decline, penalized if for whatever States prevent time limits not with state could reason, advantage oppor to take of these coming All plaintiff from to federal court. Mayer, tunities.” Oscar arguments applicable three are 2066; First, see also Commercial present found in case. the Court Office Prods., 123-24, 108 any 486 U.S. at S.Ct. 1666 both instances the absence (recognizing filing provisions in the statutes’ text of re- mention nearly quirement under law the ADEA and Title VII are identi- of timeliness key precisely admin- same resonance and are between the There distinctions grievance process intensity analyzing istrative and the habeas when courts are *9 process disparate applications that warrant of of state adminis- the outcome a non-criminal requirement. default The no- process interposes § 1983 trative and when comity prevent tions of federal courts of the federal courts as a vindicator federal unduly interfering the state crimi- from with rights. judicial process in habeas context do nal da, 496, 505, policy cal and that the same considerations 102 S.Ct. each). (1982)
apply in L.Ed.2d 172 (refusing, ex absent plicit instruction, congressional to create arguments The latter two unquestion- an exhaustion requirement § for ably apply equal with force in the context suits). If we were to create a rule that First, prison grievant of the PLRA. permitted § states to defeat 1983 suits generally epitome lay person, of the limits, with their administrative time how by unassisted lawyer, seeking trained ever, thereby let “unable or unwilling” Further, legal process. invoke the if state authorities prevail over “the constitu may states not use administrative time individuals,” id., tional rights of we would an ADEA limits defeat or a Title VII have Congress undone what wrought. claim, they should not be able to defeat a rationales, These which Supreme claim Rights under the of Civil Act Court relied on to hold compliance Congress’s preeminent declaration that with state statutes of limitations irrele state may officials not undermine federal vant plaintiffs ability to a bring a feder “A major law. factor motivating the ex- claim, apply al with equal stronger force pansion jurisdiction of federal through [the § to claims under 1983.3 § predecessor to 42 U.S.C. was the 1983] belief of the Congress that the Thus the question is whether the 1997e, authorities had been unable or unwilling language § of prevents which pris- protect the rights constitutional of individ- oners from challenging prison conditions punish uals or to who those violated these “until such administrative remedies as are rights.” Patsy v. Bd. Regents exhausted,” Flori- available are 42 U.S.C. Another, argument reference,” 3. subsidiary corporate by relied on in Mayer, Oscar 762-63, supports the ADEA context our conclusion. U.S. at 99 S.Ct. state adminis- Mayer trative reasoned Oscar deadlines. that, provision because another ADEA Congress That has instructed us to borrow identified a statute of limitations for claims a state’s personal statute of limitations on Act, brought under that the Court could not injury way implies actions in no that we Congress "attribute to an intent [29 prison's should borrow a state 633(b) § explicit U.S.C. to] add to these re very deadlines. The two deadlines serve dif quirements by implication incorporate and to purposes; legislature’s ferent whereas a state by reference into the ADEA the various state setting personal injury incentives its statute age-discrimination statutes of limitations.” balanced, will be well limitations a state 762-63, Mayer, Oscar 441 U.S. at prison’s setting incentives in a time limit on argument applies This structural with grievances especially inmate if the limit — § similar force in the 1983 context. Because § would insulate officials from 1983 1988(a) § 42 U.S.C. indicates that the statute likely suits—would lead to shorter and short for limitations an action under 1983 is to periods. Compare, e.g., er limitations Ken law, provided be that for "the common 14.6(VI)(J) tucky Policy (requir Corrections modified the constitution and statutes of aggrieved ing inmate to file within jurisdiction, the State” 42 U.S.C. days, appeal days), five within three 1988(a), provides which under Ohio law for Kentucky Nursing, Collard v. Bd. Pendleton, years, Browning two see (6th 1990) (recognizing Cir. statute 1989) (en banc), F.2d Cir. for us year of limitations for 1983 actions one different, thirty-day to borrow a statute of Kentucky's general population). for those in suggested by limitations an administrative Although may legitimate state officials agency process its own internal imposing reasons for deadlines on inmate would attribute to an intent grievances, there is no reason that a appears in, nowhere in the PLRA legitimate and is inconsis example, conserving interest reasoning Mayer. tent with the of Oscar investigative prohibit Con resources must gress suggested jurisdiction. nowhere an intention "to in- court
730 1997e(a), § 1997e(a), question from the is what PLRA U.S.C. distinguishes the
§
way
requires.
exhaustion
a
as
ADEA
Title VII
such
the
federal
agencies to defeat
state
permit
cases,
to
In a number of
the
af-
filing requirement,
claims. Title VII’s
that exhaustion is the
suggested
patterned,
ADEA’s was
which the
ter
antonym of commencement. Whereas
reads as follows:
the
to be
requires
plaintiff
commencement
requires
plaintiff
exhaustion
the
gin,
alleged unlawful em-
In the
of an
case
the
Mayer,
example,
finish.
Oscar
State,
in a
occurring
ployment practice
require
the
distinction between
ADEA’s
State,
of
which
political
or
subdivision
a
and an
fo
requirement
ment
local law
the
prohibiting
has a State or
not on
purported
cused
difference
practice alleged
employment
unlawful
requirements’ power
two
to defeat fed
the
authorizing a
establishing
or
State
claims,
29
simple
fact that
eral
but on
authority
grant
or seek relief
or local
633(b)
“requires only that
U.S.C.
crimi-
practice
such
or
institute
from
grievant
proceedings.”
commence state
thereto
proceedings
respect
nal
759,
Mayer,
441 U.S.
99 S.Ct.
Oscar
thereof,
charge
notice
upon receiving
Exhaustion,
(emphasis in original).
(b)]
may be filed under
of
[
subsection
coin,
then, provides
flip
side of that
person
be-
by
aggrieved
this section
“requir[ing]
delay
court to
action until
days
after
expiration
sixty
fore
phase
pro
state
the administrative
un-
have been
proceedings
commenced
ceedings
v.Berry
is terminated.” Gibson
law,
der the
or local
unless such
State
hill,
564, 574,
U.S.
have been earlier terminat-
proceedings
added).
(1973) (emphasis
L.Ed.2d 488
Un
ed, provided
sixty-day period
that such
requirement,
like
commencement
hundred and
shall
extended
one
is
give
agencies
which
crafted to
state
twenty days during
year
first
after
opportunity to resolve a
while
problem
local
the effective date
such
or
State
track,
action
proceeds
parallel
a
any requirement
If
the com-
law.
Mayer,
see Oscar
written and
statement of
is
de
requirement,
haustion
a termination
upon
facts
which the
is
proceeding
long
signed
keep
federal courts out as
based,
proceeding
shall be deemed
machinery
the state administrative
pur-
to have been commenced for the
working
problem.
Even the
resolve
the time such
poses
this subsection at
Patsy
Regents
dissenters in
v. Board
registered
statement
is sent
mail
Florida,
included
argued
who
authority.
State
local
appropriate
judicially
require
created exhaustion
2000e-5(c).
sure,
as the
U.S.C.
To be
agreed
for all
an ex
plaintiffs,
ment
indicated,
Mayer
require-
court
Oscar
haustion “does not defeat federal-court
ment that
ex-
plaintiff
a would-be federal
Patsy,
jurisdiction, merely
it
defers it.”
J.,
state
from
(Powell,
haust
remedies
different
457 U.S.
731
495,
921,
L.Ed.2d 107
in
reasons,
117 S.Ct.
137
the Court
Coleman
“A habeas
(1997)(“[W]e presume
Congress
petitioner
ex-
who has defaulted his federal
claims
state
pects
conformity
court meets
its statutes
be read
the technical
exhaustion;
requirements for
there are no
precedents.”).
with this Court’s
state
any longer
remedies
‘available’ to
PLRA,
Congress
With the
could
732,
is,
him.” Id. at
they prefer only
complaints
to address
find that
failed
he
to exhaust his adminis
brought
days,
before
within thirty
them
trative
respect
remedies with
to the claims
for our purposes.
gave
irrelevant
Thomas
against
Starcher,
Kepler,
and Waddell.
opportunity,
state officers an
which is
required.
may
penalize
grievance
all
Thomas’s
form
offer
that is
We
not
does not
simply
Thomas
the kind of information that our
prison
precedent
because
does
requires
not
grievances
wish to hear
than
his
exhausting
against
more
claims
Starcher,
thirty days
Kepler,
after
incident.
See Oscar
Waddell. Thomas’s
Mayer, 441 U.S. at
grievance
S.Ct. 2066. We
mentions
neither
defendants
PLRA,
mutually
requirement
pris-
concerns
maintains
advan-
onto the
serves both
tageous
grievance system.
prisons
internal
oners and
here because it maintains
result,
prison
prisoners
potential
Both
administrators
for federal recourse. As a
gain
prisoners
right
jumping
grievance
little from
officials will not make
dead-
short,
opposed
pris-
utilizing
unduly
court as
lines
will establish time-
first,
system
enough
lengthy
permit
because
internal
lines that
ad-
are
disputes gives prisoners
grievances
internally
resolution
more of
ministrators
to evaluate
quick
trip
of their
so as
resolution
to avoid
to the federal courthouse.
restraint,
problems.
Judicial
exercised
Prisoners
in turn will have more time to meet
majority
grafting
prepare
grievances.
default
deadlines and
their
investigations, as was sufficient
suggesting
facts
nor
themselves
compliance”
pre-PLRA
such
“substantial
anything
knew
than Woolum
officers other
Moore,
v.
F.3d
cases
indisputably
Thomas
of the incident.
Wolff
Cir.1999).
post-PLRA
our
presence at the
officers’
of the other
aware
emphasized
we have
that “the ex-
cases
them in the incident
time, as he mentioned
§in
is di-
haustion
day
beating,
after the
he filed
report
ad-
exhausting
prisoner’s
rected
v.
Curry
under
rule of
this case falls
so
remedies,” and that
ministrative
Use
(6th Cir.2001),
Scott,
which
F.3d
investigations
or other
do not sat-
Force
“a
file
requires that
Freeman,
isfy
PLRA’s dictates.
ultimately
he
seeks
person
against the
In determining
whether
F.3d
644.
Similarly, in
sue,”
id.
Hartsfield
his or her
the inmate
exhausted
Vidor,
who named
we ruled that
remedies,
to the inmate’s
we thus look
and who
grievance,
three officers
*14
grievance, not to other
com-
information
did
name two additional
could have but
not
piled
investigations.
Although
other
officers,
administra-
had not exhausted his
might conceivably
grievance
an inmate
two
respect
pre-
remedies with
to
tive
incorporate or otherwise re-
specifically
Hartsfield,
officers.
199
viously unnamed
obtained, it
previously
fer to information
did not “adminis-
at
He thus
F.3d
308-09.
points
do
manner
must
so
a
that
... claim as to each
tratively exhaust his
prison officials to
relevant
materials.
with the claim.”
defendant associated
is
happened
That
not what
here.
569,
Jones,
F.3d
574
Burton v.
321
Finally, Thomas
that our re-
suggests
Cir.2003). Although an inmate need not
prison grievances be
quirement that
filed
identify
by name when the
each officer
defendants, Curry,
“against” potential
un-
particular officers are
identities of the
505,
prison grievance
at
F.3d
mistakes
known,
on-looking
knew
Thomas here
one
process
type
civil
as a
of
action. Griev-
identity
that
had
officer’s
and knew
others
“against”
are not
ances
filed
individual
Accordingly,
well.
beating
watched the
persons,
are
argues,
Thomas
but
rather
ei-
form
have noted
grievance
should
regarding
problems;
filed
certain
accord-
fact
the other officers’ names or the
ther
grievance
a
be
to
ingly,
should
understood
beating.
seen the
that other officers had
long
exhaust remedies
as it alerts pris-
so
that his defi
suggests
Thomas
problem
to
investigated,
on officials to
he
grievance notwithstanding,
cient
satis
specific
whether or not
identifies
individ-
by
requirement
par
fied
exhaustion
103,
v.Apfel,
uals. Sims
S.Ct.
fully
internal
ticipating
(2000),
supports
L.Ed.2d 80
Indeed,
investigation.
day
after the
Sims,
position.
Thomas’s
a Social Se-
attack,
prison
Thomas told
officials that
case, the
curity
Supreme Court ruled that
had
Officer Waddell and other officers
party
required
even when a
is
to exhaust
actions, a
Woolum’s
remedies,
witnessed Officer
plaintiff
administrative
is
notification that —when combined with necessarily required
spe-
to exhaust each
an official
subsequent
Thomas’s
of
bring
issue
he
to
cific
or she intends
grievance
the incident—would
regarding
to federal court. See id.
S.Ct.
accomplish many
purposes
(plurality);
seem
IV. CONCLUSION tions that we have issued an to “invitation grievance pointed Had Thomas’s prison delay” 738), (Dissenting chaos and atOp. officials the alleged presence of other judicial all “abandonfed] notions re beating officers when Officer Woolum was (id. 738), provided straint” at “a classic him, given it would have officials (id. 738), judicial example meddling” at investigate sufficient engaged “thinly-veiled in policymak- prison may officers’ actions. The (id. 739). end, however, ing” In the I that opportunity, declined it pre- find sweeping generalizations these grievances fers to only address those filed generate light, more heat than and that his particular within a time limit. But the position is actually the more “activist” would have been given opportu- nity, expansive interpretation of the PLRA which is all that requires, beyond so we in- Congress’s language hold the timeliness of an and the Su mate’s preme is irrelevant under the precedents. Court’s Boerckel, Carpenter, problem that Coleman— of the
The heart
on—
not, my
support
analysis.
concept
procedural
opinion,
do
his
apply
failure
dead-
administrative
to a
default
Rosen,
example, quotes
Judge
will,
before
such as the one
in cases
lines
Supreme Court’s
statement
O’Sullivan
us,
the federal courts
deal
obligate
Boerckel,
without
benefit
1983 issues
(1999),
only
legislators. As a
court of
system
legal
requires
result. Our
tous
attempt
that I
appeals, I do
feel
should
Congress
interpreted
heed the words of
as
PLRA
it presently
to alter the
stands.
by applicable Supreme
precedent.
obviously
Judge
changes
Rosen
subscribes to a Until
law
his
analysis.
opinion,
interpretation
the con-
Court corrects our
different
procedural
language,
unwilling
of
default is built into the
of its
am
to read the
cept
into the
concept
concept
of exhaustion
remedies. But
default
Supreme Court
that he relies PLRA.
cases
ROSEN,
Judge, dissenting
limits,
satisfy
District
time
in order to
the manda
1997e(a).
judgment.
tory
in the
part
concurring
§
already
This issue
has been settled in this
stroke,
opinion
With one bold
the lead
held,
Circuit. We have
for
example,
existing pre-
much of
stands
this Circuit’s
inmate
an
does not exhaust his administra
cedent on administrative exhaustion on its
tive remedies
until
pursues
unless and
he
head, holding
administratively
estab-
all
appeal
avenues
that are available
filing
nothing
lished
mean
in a
deadlines
See,
within
prison grievance system.
prisoner’s effort to
remedies
exhaust his
e.g.,
Francis,
641,
Freeman v.
196 F.3d
commencing
By
before
1988 suit.
(6th Cir.1999);
McGinnis,
White v.
permitting
to thumb
noses
inmates
their
(6th
593,
Cir.1997);
F.3d
Wright limits,
at such
opinion
time
the lead
thor-
Morris,
Cir.),
417 n. 3
oughly
prison grievance systems
disables
denied,
cert.
522 U.S.
118 S.Ct.
meaningful
dispute
resolu-
tools
(1997).
L.Ed.2d
Such a failure to
tion—a result
unacceptable by
deemed
appeal
species
is a
procedural,
see
every other Circuit
that has addressed
Boerckel,
O’Sullivan v.
impor-
the timeliness issue
date.
More
1728, 1734,
(1999),
The issue
part company
which
After
such
is
dismissal
cases
Toombs,
my colleagues
with
is easily
prejudice,
stated—
see Brown v.
without
1102, 1104 (6th Cir.),
denied,
whether an
presumptively
inmate
must
cert.
88,
comply
of
procedural aspects
with the
a 525
U.S.
S.Ct.
L.Ed.2d
(1998),
grievance system,
including
and,
today,
its
after
inmates are no
resolved,
justice
effec-
and that
will not be
administrative deadlines
by
longer bound
delay.
tively
if a
denied
interminable
Consequently,
prisoner’s
any
of
sort.
particularly compelling
This interest
is
proceed
for failure to
ease is dismissed
here,
of
purpose
where
core
pro-
of
administrative
steps
through all
1997e(a)’s
is to
respond by com-
cess,
now can
inmate
grievances are re-
prisoner
that
ensure
eventhough
rele-
process,
pleting
administratively
ex-
greatest
to the
solved
might
long since have
vant deadlines
Nussle, 534
possible.
Porter v.
tent
See
short,
existing
much of our
In
passed.
been
exhaustion has
on
precedent
(2002).
ques-
I do not
L.Ed.2d
While
meaningless, and
courts
rendered
sincerity
tion
of the lead’s view
relegated to the role
been
this
have
Circuit
disregarding fil-
purpose
by
this
served
prisoners
advice to
providing legal
deadlines,
judgment
this
ing
I believe that
grievances.
proper
misapprehension
upon
rests
fundamental
Indeed,
and de-
this invitation to chaos
to the
importance
of the
time limits
must,
necessity,
two-way
street.
lay
be
any
orderly functioning
effective
bound
dead-
longer
If
are
prisoners no
dispute
system.
resolution
lines,
surely must be true for
the same
result, today’s
is a classic
As a
decision
Although prison
prison administrators.
example
judicial meddling,
with
call for decisions
regulations often
panel substituting
policy judgment
its own
frame,
time
ad-
specified
reached within
place
of the far
one made
different
with-
may now
presumably
ministrators
present
in its
form.
indefinitely, and then
rulings
hold their
must
requires
prisoners
The statute
§ 1983
argue
any
premature
suit
administrative remedies as
exhaust such
forthcoming.
eventually is
until a decision
1997e(a).
As
are
available.
U.S.C.
might
a court
conclude
the event that
concedes,
prison
lead opinion
even the
prison administrators
could
differently,
case,
Thomas,
Douglas
er
exhausted
regulations
their
to remove
simply rewrite
these remedies
the most technical
upon
making
their decision
time limits
rejected
sense—once his
complain, given
process.
hardly
We could
nearly
past
five months
having been filed
significance
opin-
that the lead
lack of
deadline,
all
he had exhausted
relevant
deadlines,
upon
ion
places
of the
then “available”
remedies
were
motives it ascribes
given
nefarious
Yet,
recog
to him.
sensibly
we have
administrators
en-
who seek to
all
nized—and
other Circuits that
force such deadlines.
agreed
the matter have
considered
—that
my
disagreement
Here lies
root
contrary Congress’s
“it
intent”
would be
seemingly
lead
views
permit
de
procedurally
—it
unwary,
time
traps
limits mere
for the
fault
then claim
*18
acknowledge
pro-
utterly
fails to
longer
no
are
administrative remedies
in-
legitimate
3;
cedural deadlines serve
In my precisely explicit it is sort of this eral statute and an thinly-veiled policymaking that leads Con what definition of constitutes “commence- gress judicial to evermore curtail our proceedings dis ment” of state —that Indeed, Congress just cretion. did that in counterpart in the statute at here. issue PLRA, Thus, § 1997e(a)through it amending I find more useful start mandatory provision 1997e(a)itself, enacting §of language which the our own prior eliminated courts’ pronouncements meaning “discretion direct on the dispense with provision, administrative exhaustion” this and the views of Cir- imposed obviously “an subject. broader ex cuits on In the this event Churner, requirement.” issue, survey haustion Booth v. does settle I find instructive to the Supreme review 1824, 1825, (2001). Upon statutory L.Ed.2d 958 similar Court’s treatment of a reviewing legislation, imposed upon *19 (or officials) (Lead 4.) prison Op. say 1. doubt at n. it straint.” 732-733 To by opinion’s will be much consoled the lead does not make it so. "Ijludicial assurance that it has exercised re- 740 Hollings v. systems.” Wright the prisoners namely, — Cir.2001). worth, 358 avail- “exhaust[ ] the remedies State,” of U.S.C. the 28 in the courts 1997e(a)
able § the clear command of Given 2254(b)(1)(A), seeking cor- habeas § before form, opinion prop- the present in its lead All of these in federal court. pus relief “the what erly question is observes view, unmistakably sources, point in my (Lead 730.) Op. requires.” at exhaustion un- that exhaustion the conclusion toward re- precise the contours of this Whatever 1997e(a) compliance with a entails § der na- plainly quirement, procedural includ- procedures, prison’s administrative ture:
ing filing deadlines. requires While modifier “available” 1997e(a) relief possibility of some § necessarily analysis of
Any ..., “ex- complained action word stat language with the begin must procedural em- noted, decidedly hausted” to its 1996 prior ute As itself. referring It PLRA, phasis. makes sense the stat amendment means, to not partic- largely discre call exhaustion was ute’s would, ular It for exam- relief ordered. stay authorized to tionary were —courts very that a ple, strange usage say to days up § suit for to inmate’s an administra- prisoner must “exhaust” such avail prisoner exhausted while reassigning guard tive order abusive remedies as were able administrative to prisoner go could court effective,” before only if “plain, speedy, and but (in else; something say or to ask for “appropriate and in the court deemed ad- money damages States that award justice.” 42 U.S.C. the interests ed.). ministratively) prisoner 1997e(a)(1) (1994 must “ex- pro § The current damages going contrast, haust” award before vision, entirely eliminates this to for more. How would he “ex- discretion, court mandates judicial instead personnel? a transfer Would haust” every case: strict exhaustion spend money he to “exhaust” re- brought action shall be No It relief him? monetary given spect prison section conditions under makes no sense demand someone title, or other Federal any of this [redress]” exhaust “such administrative jail, law, confined available; one “exhausts” process- prison, facility or correctional until es, relief, forms of and the statute not as are such administrative remedies provides that must. one available are exhausted. Booth, 738-39, 121 at at S.Ct. 1997e(a). Through enact- U.S.C. 1824.
ment, Congress “invigorated the exhaus- This reflect a simi- thereby seeking precedents tion “to re- Circuit’s prescription,” 1997e quantity quality understanding lar nature improve duce the outset, Porter, As noted at the suits.” 534 U.S. at exhaustion. pris- have held several occasions that pre-PLRA 988. While fully judges pursue assess oner must all administrative version of 1997e invited including all avail- efficacy prison’s dispute processes completion, of a resolution decidedly able of internal order processes, appeal, the current statute avenues satisfy § §a “prescribe! griev- and commence appropriate ] does Vidor, See, e.g., procedures judges, ] ance suit. enable! Hartsfield Freeman, (6th Cir.1999); 305, 309 creative of the F.3d interpretation White, 645; doctrine, F.3d prescribe or oversee 196F.3d *20 In consistently so we have ruling, taken him to so. grievance do because his for govern note of the that deadlines now regulations. time-barred under the processes, Morris, these administrative Wright have 417 n. 3 inmates to to payheed Cir.), denied, cautioned these cert.
time
limits.
(1997).
Under contended he had argued Hartsfield exhausted all “available” within attempts meaning remedies administrative exhaus- 1997e(a), tion satisfy any should deemed because the deadline for be the stan- 1997e(a) or, appeals further had long expired. dards of since alternatively, that found unnecessary further We it efforts exhaustion should address this argument, light of our excused as futile. conclusion that disagreed: This Court apply amended did not Even if plaintiff did file initial prisoner’s pre-PLRA suit. Nonethe- ..., he required to con- less, wetemphasized: step tinue to the next in the process clear, however, within time set It is in the usual frame forth in the if regulations future, no response is re- case in the alleged where the ceived from or if officials violations occurred after the PLRA’s en- actment, is not satisfied with the re- and inmates have both notice sponse. held previously We required rea- simply inmate cannot fail to file a complaints, sonable to file grievance or abandon process contrary before would be Congress’s intent completion and claim that he enacting has ex- PLRA to allow inmates hausted his remedies or that it is to bypass requirement by the exhaustion futile *21 1997e(a). §of with the dictates comply com- administrative
declining to file an un- question leads to the whether claiming that adminis- This then plaints and different timely filing should be accorded are time-barred and remedies trative 1997e(a) filing § than treatment under available. then thus not at all. (emphasis at 417 n. 3 Wright, 111 F.3d Mitchell, 21 Hrynczyn v.
added); also fact, see a matter of brute Thomas’s As Cir2001) (6th (rejecting Fed.Appx. in this abso- untimely filing produced case argument that no administra- prisoner’s outright over failure to lutely no benefit any were available because tive remedies rejected grievance His as sub- file. was would dismissed as he filed be grievance limit, day the’s 30 and there mitted outside untimely). his com- no administrative review of was result, plaints on merits. As a none
Indeed,
has
that in-
this Court
insisted
1997e(a)
been achieved
aims of
has
in their efforts to
mates
resourceful
be
spur
grievance did not
here —Thomas’s
procedures.
prison grievance
comply with
might
action that
have obviated
corrective
Smith,
F.3d
In Jones
litigation,
for
there has been no
the need
instance,
Cir.2001),
plaintiff pris-
for
claims,
filtering
any
frivolous
and no
that he
for
oner claimed
had asked
developed
record was
administrative
form,
by
a prison
but
told
in understanding
assist the courts
might
office.”
“get
out
his
We
counselor
Porter,
controversy.”
contours of the
“the
fail-
the case for
affirmed the dismissal
at
None-
remedies,
988.
ure to exhaust
theless,
holds that “Thom-
lead
“not
plaintiff
allege
that the
did
reasoning
gave
opportunity”
state officers
other source for
that there was no
obtain-
grievance,
“which is all that
to address
any
form or that he made
ing grievance
statutory ex-
required”
satisfy
form or to file a
attempt
obtain
(Lead
733.)
Op. at
Jones,
requirement.
haustion
a form.”
grievance without
generally, we have
F.3d at 400. More
ex-
“opportunity-based” theory
This
prisoners
upon
burden
to “al-
placed the
haustion, however, improperly
shifts
have
lege and show
exhausted
officials,
prison
from
burden
inmates
all available state administrative reme-
upon any
seize
requiring that
latter
dies,”
that “[district
have instructed
any complaint
to address
that a
chance
re-
courts
enforce
should
time and
prisoner might
raise
if
raised
quirement
sponte
sua
not
such,
through any means. As
the lead’s
Brown, supra,
defendant.”
reasoning
precedents,
runs
to our
counter
consistently
which
construed
1997e(a)
then,
demanding
inmates
these
once a
precedents,
Under
fully
exhaust
adminis-
passed,
deadline
an in- must invoke
a’s
prison’s
Freeman,
grievance processes.
simply dispense
mate
with the fil-
trative
cannot
example,
prisoner alleged
plaintiff
on the
ing of an administrative
by a corrections
prison
surely
that he was assaulted
ground that
officials
would
officer,
case,
argued
investiga-
that “an
reject
In the
he
present
example,
it.
Force
if
Use of
Committee
altogether
Thomas had
failed
tion
Highway Patrol
into
file a
and the Ohio State
grievance,
submitting
rather than
be-
alleged
nearly
day
assault satisfies
five months after the’s 30
dead-
line,
specify
con-
cause
statute does
we would have been bound to
exhaustion must
clude that
this course
action did not
however,
grievance procedure.”
Perhaps,
selves initiated an Thom- WL 571919 Cir. May 2000). beating, case, as’s and a use-of-force committee plaintiff prisoner’s that grievance concluded Defendant Shawn Woolum rejected administrative was as contrary prison regulations untimely, argued had acted delay but he Following his on Thomas. assault should be as good excused a result prison investigation, authorities ad- faith efforts to resolve the matter infor- perceived the problem they dressed as it mally. plaintiff We held had by discharging If Woolum. Thomas de- failed to exhaust his administrative reme- relief, dies, sired inquiry a broader or additional un- observing grievance that his others, whether from or timely prison govern- Woolum be- even under the rules him hooved griev- ing dispute Similarly, file administrative informal resolution. Wilkinson, bringing ance to the Fed.Appx. these matters atten- Jacobs v. Yet, Cir.2001), tion prison officials. under the complained lead the inmate opinion’s holding, grievance broadest statement of its two incidents —his as to the first Thomas need not have filed a untimely, had been dismissed as and he all, long so officials had the had complaint submitted informal “opportunity” to discern what his com- as to the plain- second. We found might plaints be and them. address Such tiff failed exhaust had his administrative simply rule is irreconcilable with this remedies as to either of his two com- decisions, prior require plaints, Court’s which making distinction between his good untimely deal more from the inmate outright himself and his failure may before he grievance. commence a 1983 suit. to file a gaining istrative remedies and access to noted, of our sister Circuits three As First, exhausting conclusion. a federal forum without ad- the same have reached Thus, Marsh, upheld Circuit supra, the Fifth ministrative we hold remedies. suit for prisoner’s of a district court has to dismiss the dismissal remedies administrative failure to exhaust section 1983 suit under sec- prisoner’s 1997e(a), §of version pre-PLRA under the when re- tion 1997e even administrative griev- preclud- the inmate’s where lief is time-barred otherwise untimely filed dismissed ance had been ed. *23 after the incident of days more than Marsh, (citations and foot- 53 F.3d at Although the ver- complained.
which she
omitted).2
note
1997e(a)
§
then
effect authorized
of
sion
The Eleventh Circuit also has held that
a continuance so that
to grant
the courts
untimely grievance generally
an
does not
any
exhaust
available
plaintiff could
1997e(a)’s
require-
satisfy §
remedies,
rea-
Court
administrative
Harper, supra,
plaintiff
In
in-
ment.
was not warrant-
that a continuance
soned
grievance
untimely,
mate’s
was denied as
of
case:
ed under
circumstances
prison
the inmate failed to
a
invoke
rejected
already
prison
had
Because
that authorized waiver of the
procedure
grievance
administrative
plaintiffs]
[the
“good
filing deadline for
cause” shown.
untimely,
as
her administrative remedies
circumstances, the
Under these
Court held
foreclosed,
a
continuance
were
plaintiff
that the
“cannot be considered to
a
purpose.
no
When
would
served
have exhausted his administrative reme-
continuance
serve
section 1997e
would
Harper, 179
at
dies.”
F.3d
1312. The
district court
purpose,
a
still has
contrary
reasoned that
conclusion
dismiss prisoner’s
suit under
power to
permit
“ignore
would
inmates
for failure to
ad-
1997e
exhaust
section
requirement
PLRA’s exhaustion
still
ministrative remedies.... Without
merely
gain
access to federal court
prejudice,
of a dismissal
prospect
an
at
filing
untimely grievance.” 179 F.3d
evade the exhaustion re-
prisoner could
1312.
filing no
quirement by
administrative
recently, the
by intentionally
an
Most
Seventh Circuit has
grievance
filing
consensus,
one,
joined
construing
untimely
thereby foreclosing admin-
this
1997e(a)
predates
requirement.
holding
§
Although
in its
haustion
Such a
2.
Marsh
form,
recently
present
the Fifth Circuit
con
would allow inmates to file suit in federal
vitality
evading
despite
intentionally
this decision
firmed the continued
court
Johnson,
(5th
Days
But
even
to the point,
more
purposes
able. Those
would
nobe
less
home,
closer to
Court recent-
frustrated were we to
allow
ly rejected this Circuit’s continued recogni-
present-
to a
review
who had
tion of a distinction between exhaustion
court,
claim
ed his
to the
but in such a
and procedural default in the habeas con-
not,
manner that
court
state
could
Mohr,
In Carpenter
text.
procedural
consistent with
own
its
(6th Cir.1998),
we had held that the
rules, have entertained
In such
it.
“erroneously
District Court had
conflated
circumstances,
though
requirement
the exhaustion
pro-
“concededly
would have
exhausted his
rule,”
cedural
thereby
default
waiver
remedies,”
it could hardly be said
merging
inquiries
“analyt-
two
which were
that,
comity
require,
and federalism
ically
In language
distinct.”
which
bears
given
‘oppor-
the State had been
striking similarity
reasoning
to the lead’s
“fair
”
pass
tunity
upon [his claims].’
case,
stated that “the exhaustion
if
is satisfied
a claim
even
(em-
452-53,
The
Court
it
reversed. See Ed
cal
While
is true that
the
Carpenter,
446, 120
wards v.
Supreme
Court had to make a choice
(2000).
doctrines,
Likewise, sister Circuits —as our to a suit Circuit, deci- additional obstacles unpublished albeit erect this § necessary to construe it would all the more found under sions —have 1997e(a) § en- of as restrict their problematic exhaustion rule the courts to the for through untimely procedural compassing and constitution- eongressionally-conferred filing. pris- entertain ally-mandated authority to But not petitions. habeas this is oner insist opinion and concurrence The lead done, the or what our what Court 1997e(a) improper, § is reading that this of done, in that insisting Circuits have sister however, it would add a timeliness because with deadlines prisoners comply applicable Congress that requirement the statute the requirements and other To impose. purportedly has declined —to contrary, that the con- they ensured contention, only respond I can that this pre- gressional mandate of exhaustion is not view Supreme presumably Court did subverted, by rather than constru- served adopted when it a simi- legislating itself as way in the that makes ing exhaustion lar of the habeas exhaustion construction 2254(b)(1)(A). statute, § In- sense.8 28 U.S.C. (id.), entirely they for to conclude make it easier me Judge Gilman’s concurrence rests Congress a defi- that could not have intended my approach proposition on that would routinely permits of that nition exhaustion Congress’s statutory effectively man- amend the federal courts without claims reach by incorporating require- date of exhaustion any prior of consideration on the mer- benefit charge timely filing. Certainly, this ment of circumstances, Under I find it un- its. such "judicial apply as well to of activism” would necessary legislative await a declaration adopted the three other Circuits which have actual, 1997e(a) meaningful, § that mandates and, 1997e(a) reading § I of that favor— merely and not "technical” exhaustion. noted, apply well to the Su- it would as Yet, possible it is to define exhaus- because Judge But preme Court’s habeas decisions. sense, purely my charges in a "technical” tion question, analysis merely begs Gilman’s meddling” upon any “judicial not rest do my freely acknowledge, as view. I did the colleagues my that notion have "rewritten” Coleman, Supreme Court Rather, 1997e(a). my quarrel § with the is sense exhausts his remedies in “technical” analytical by route which arrive at their are more administrative ave- once there reading Judge statute. Gilman’s con- this pursue, proce- of a nues to whether because example, argument, currence makes default The dural or for other reason. Supreme decisions do Court's habeas question con- we confront here is whether the here, compel any particular result be- gressional mandate is such satisfied "inseparability cause the exhaustion, "technical” whether procedural-default doctrine” in rule 1997e(a) something § more from demands context, Edwards, 529 U.S. at the habeas prisoners. require that we S.Ct. at does not semantics, I do not As a matter of brute procedural-default gloss upon place a similar deny the "technical” exhaus- definition well, 1997e(a). deny Very but this does not colleagues permissible my is a tion favored address) (or my argument even the force of herein, one. For all of the reasons outlined grounds upon that all of same relied however, simply do not believe Coleman, O’Sullivan, meaning enacting intended here, Carpenter fully applicable are succinctly Judge the PLRA. Gilman has stated exhaus- therefore should lead us to construe that, my one such in cases way reasons— tion under in the same one, "technical” ex- of mere interpreted been in habeas exhaustion has having activism, courts haustion results in judicial It evidence of cases. view, "to without the writing deal 1983 issues though my an issue as resolve slate, of the state’s administrative consider- deny import benefit a blank clear (Concurring Op. analogous closely ation on the merits.” decisions. 735.) remaining my Judge states that such concerns While Gilman bases *29 him, throughout judicial policymaking are set forth cases the issue difficult” for “make[ ]
Next, assuming that mean- opinion’s analysis even some untimely prisoner ingful might remain grievances distinction between superficial substitutes straw- exhaustion, it procedural and is far too late men for careful scrutiny, upon and rests day in the that to contend the former misunderstanding fundamental of the sig- apply doctrine should the context of not filing nificance administrative deadlines. 1997e(a), § purely and that the “technical” Throughout its entire discussion of the definition of exhaustion instead should con- issue, opinion timeliness the lead acknowl- again trol. At the I redundancy, risk of edges only a single argument in support of already point out that this Circuit has held that the rule presumptively inmates must types that certain defaults— comply with administrative time limits. In all e.g., pursue failure to available ave- particular, the opinion proclaims lead nues of appeal administrative —constitute ground “the only barring a federal 1997e(a). § lack of under To § untimely 1983 suit due to an prison Court, least, filing at a late grievance is that we would otherwise ren- an outright failure to file all are at der prison procedures irrele- analyzed way in precisely both the same —(cid:127) (Lead 732.) Op. vant.” at The lead opin- namely, as procedural defaults. See ion confidently assures us that this will not O’Sullivan, at 119 S.Ct. at occur, however—inmates “will still have 1734; Coleman, 750-52, 501 U.S. at every incentive to grievances raise their Thus, at might 2565-66. while one timelines, within the because it is to distinguish seek between two these process in- although, forms of as discussed default — will, mates for most practical purposes, below, I wholly unpersuaded am by the their receive swiftest and most effective opinion’s at attempts such a distinction (Id. 732.) remedies.” suggest pro- here —it untenable to policy-based The various considerations generally cedural defaults do not run afoul 1997e(a)’s that lurk beneath analy- § the surface of this Rather, exhaustion. it is judgment sis thwart the considered now the law of this Circuit that some expressed will of Congress when it enacted procedural defaults, others, but not bar 1997e(a) § present its form. First prisoner suit under foremost, Congress legislate sys- did not III. pursue tem of “incentives” for prisoners view, my In the above-cited authorities their administrative remedies —it com- point uniformly and unmistakably toward in the most explicit language manded timely filing the conclusion that is a neces- that inmates must exhaust these remedies sary component case, one, of exhaustion under all cases. this 1997e(a) in all but the most simply unusual did occur—because of Thomas’s if writing filing, circumstances. Even we untimely were there was administra- slate, however, on a blank I could not tive consideration whatsoever of the merits judgments subscribe to the policy grievance, made of his let alone exhaustion of the Rather, opinion. the lead I prison’s dispute believe process. resolution More- case, repeated not be any and need here. whether under or in context, emphasize point, do wish to statutory one however— that, (or other) many my no matter how times col- Court has held which that leagues “Supreme appeal prece- an exhaustion satisfied dent,” (Lead 722-723; Op. Concurring Op. beyond appli- unexcused 736), single simply identify cannot cable deadline. *30 752 Thomas, “Stopping Abusive Pris- ruling, PLRA was
over, today’s before even any Lawsuits”). one, perceive to apparently failed oner for timely to file incentive —he (6th 422, Mayer, v. F.3d 426 Cir. Cox 332 30-day past months it submitted five Leonard, 2003); Wyatt also v. see any of limit, admitted absence despite the Cir.1999) (“The 876, 1996 Act meeting this deadline. impediment to ”). designed to deter lawsuits.... frivolous comfort, then, opin- in the lead find little Likewise, the ex Eleventh Circuit has rule will not thor- its prediction ion’s plained: com- congressional undermine the oughly mandatory ex- Congress enacted this enough, in exhaustion. It is bad mand of 1997e(a) haustion section view, undoubtedly prisoners my that some part of to curtail the’s effort frivolous advantage pass of our free take will prisoner Con- litigation.... abusive requirement. circumvent this the PLRA a vacu- gress did enact Further, no secret of its Congress made find- hearings um. It held and rendered making principal concern prisoners more ings, concluding file Court and others have mandatory. This any than other class of frivolous lawsuits history legislative recounted amply num- persons. Congress found that the up the 1996 amendment of leading grown as- ber of lawsuits 1997e(a). recently observed: We tronomically .... sec- intended primarily concerned “Congress ability tion to curtail filed rising number of lawsuits about and mali- prisoners bring frivolous perception and the prisoners by forcing prisoners lawsuits cious suits were frivolous.” most of these exhaust all remedies be- Jordan, 109, F.Supp.2d v. Cruz bringing fore in Federal court. suit (S.D.N.Y.1999). See, e.g., Cong. S14408-01, (daily Sept. *S14414 ed. Rec. Hawk, 1321, Alexander F.3d 1995) Dole) (statement 27, of Senator (11th Cir.1998) (internal ci- quotations and suits increased (noting that omitted). tations 6,600 39,000 in 1994 in 1975 over from recognition notably lacking This in the included claims “insufficient opinion’s thinking lead wishful incen- space, storage locker a defective haircut likely least tives. The inmates adhere barber, prison failure by prison prison’s proce- to a time limits and other pizza a prisoner to invite to a officials prisoners are precisely dural rules those party departing prison employee, for a pursuing who or abusive are frivolous being chunky peanut ... served all, prisoners, claims. Such after would creamy variety.”); butter instead nothing flouting to lose S7498-01, (daily Cong. Rec. *S7526 they procedures, because would have 1995) (statement May Sena ed. legitimate expectation obtaining (stating Kyi) prisoners tor remedy than one-fourth of all civil brought more process. prisoners, For such matters the United District
suits filed in States line the finish of this reach Reams, Courts); D. & Wil Bernard Jr their ticket to federal process and secure Manz, A Legislative History H. liam court, today’s ruling provides handy Litigation Act the Prison Reform Thus, by presuming 104-134, doing shortcut so. No. Pub.L. 110Stat. pursue that inmates will their administra- Doc. that the title (noting short faith, given if this containing good House measure tive remedies in even *31 so, insist that do the prison routinely Court does not officials impose deadlines disregards finding upon opinion lead the Con- themselves as well as inmates. On all gress prisoners assumption that too often were not that the 30-day time limit faith, judgment in in acting good and the this case was by motivated these and problem legitimate this could best be ad- other considerations of efficient dressed of manda- and effective institutional functioning— and, tory again, exhaustion. record sugges- contains no contrary tion to whatsoever would —I Yet, opinion as much as the lead is hold that this deadline presumptively is prepared to act in prisoners assume respect, entitled to our exceptions with faith, good quite it to unwilling is make the made in those cases where inmate prison same about officials. assumption inability comply establishes his with a Tellingly, assessing in the potential costs prison’s filing limit.12 ruling of its and identifying “one it, ground” might lost, All against however, militate of these benefits are opinion utterly lead fails to even allow for when are deadlines mere sug- reduced to possibility prison sure, might gestions. may officials To be there be some have good establishing reasons for dead- in cases which both sides in enlight- act faith, filing grievances. lines for good voluntarily Even a ened and agree to however, thought, moment’s promptly through stages would reveal move of the (i) reasons, including: several such process. judges As we well know, inherent of prompt investigation, however, benefit litigation more often while memories are still and all in- collegial, any process fresh adversarial than and prison employees volved and inmates re- which results winners and losers is like- (ii) facility;9 ly main at the desire strategic invite behavior. Procedural matter, rules, bring including me, the entire all avail- designed seems to are to avoid appeals, behavior, able internal to a conclusion with- worst and strategic cases limit (in) period;10 time and special reasonable the while no imposing hardship upon greater that a prisoner might good likelihood those who would proceed faith by satisfied action against any swift trans- in their even absence. As noted at the gressors.11 outset, Significantly, most of these see indication that inmates prisoners prison benefits accrue to generally have found it difficult to meet deadlines, presumably officials alike—and this is why prison filing particularly light case, contrast, by 9. In prisoners prison Thomas inmate deadlines to both offi- already had transferred to (Lead 4.) another institution Op. quickly cials. at 732 It n. grievance. the time he filed his however, form, reverts speculating without purportedly basis as discernable to a process prolonged, 10. To the that the extent "prison "real concern” administrators course, this leaves the courts deal impose will shorter and shorter deadlines stale claims and outdated record. days” measured in hours and order to shut Indeed, in its discussion of incen- (Id.) prisoners out court. Since tives, opinion capacity the lead cites the of the adopted proce- several other Circuits have prison grievance process provide dural default doctrine that concerns so "swiftest and most effective remedies.” opinion, expect lead would see one (Lead 732.) Op. capacity This rests in no busily within administrators those Circuits part upon proper functioning small shortening filing setting their deadlines enforcement of deadlines. my traps. sorts of To sure, knowledge, opinion pays lip 12. To be the lead has not ser- occurred. "mutually vice to the beneficial” value of the lead hausted” as construes effort involved modest Alternatively, in cases which do term. grievance.13 even this lenient notion of “exhaus- meet contrast, cases invited the worst *32 tion,” a without prejudice court’s dismissal very promise rule to be opinion’s the lead only be under often will who A wishes bad indeed. rather than the beginning process, of the has requirement now avoid the “blueprint” end. Armed with the court’s long possible to wait as every incentive steps in to en for the administrative that should grievance, order filing before not, his submission but an inmate hance the likelihood have been taken were untimely. outer rejected as will be fix prior and may go back his administra- delay is the presumably this bound for filings, unimpeded by expiration tive suits14— limitations for statute of pro- any administrative deadlines. This earlier, limi day this one because and not may necessary, limited repeated cess be immediately upon tolled period tation by running of stat- underlying pro of administrative the commencement which, of limitations for ute suits— Morgan, F.3d ceedings. Brown v. See pro- again, during is tolled Cir.2000). It is disin highly judicial ceedings, likely during pro- view, my in to insist that genuous, outset, ceedings as well. As noted meaningful have a “opportuni officials still many prior this eviscerates of our failure- of such an inten ty” to address merits who, decisions—an inmate for to-exhaust Rather, tionally delayed grievance. as the pursue example, did not all administrative if it explained, even pick process where appeals up can now could that the had techni be said off, filing he left undeterred missed remedies, cally “exhausted” his it could deadlines. had contended that “the seriously be State given pass case, been very Or consider which fair Edwards, claims. upon” prisoner’s grievance setting hold Thomas’s forth (internal 453, 120 at 1592 U.S. at against his claims Defendant Shawn Woo- omitted).15 and citation quotations lum did not serve to exhaust his claims I see against remaining Defendants. Then, this prolonged after but essential- going nothing prevent Thomas from fi- ly process has worthless administrative grievances against these back and conclusion, nally edits the courts reach parties, failure-to-pro- advancing would left to address claims which have theory that he did not in his stale, tect assert gone and which inmost cases have sure, merits, grievance. initial these new never on the but To be been addressed fully grievances years which nonetheless have been “ex- would come almost six case, example, request- puzzling opinion's 13. In 15.Even more is the lead Thomas may assertion that "avoid federal 1, 1998, grievance May ed a form on was "waiving guide- court” [its] later, given days May two the form on (Lead 727.) Op. Just lines.” how state grievance day, was able to file the next might accomplish this ex- officials is not 4, 1998. May This a handwrit- fact, plained. a state that elects to address document, one-page setting ten the fac- forth untimely grievance might very well still complaints tual basis Thomas’s court, find in federal unless it resolves itself seeking. various remedies he was totally way in a satisfies highly unlikely inmate. This is in the frivo- opinion, As two noted in the lead this is Congress specifi- lous and abusive cases that years cally enacting targeted Ohio. the PLRA. question after the incident in this no In the alleged case of an unlawful —but matters, longer long underlying so as the practice occurring which State has a two-year run statute of limitations has not law prohibiting discrimination em- light pendency of the various adminis- ployment age because of and establish- judicial proceedings.16 trative Prison ing authorizing or authority State “opportunity” officials still would grant seek relief such from discrimi- grievances, to address these new and this natory practice, may no suit be brought all today’s ruling requires from under section of this title before the inmate in order exhaust his remedies. expiration sixty after days proceed- Although me height this strikes as the ings have been commenced under the *33 un- absurdity, my colleagues panel on the law, State unless such proceedings nor, fortunately do not share this view— been earlier If any terminated.... re- indeed, acknowledge do even con- the quirement for the commencement of cern. proceedings such imposed by is a State authority other than a
IV.
filing
the
of a
signed
written and
state-
Against
weight
the foregoing
of authori-
the
upon
ment of
facts
which
pro-
the
and
ty
judiciary’s
reason in favor of the
based,
ceeding is
proceeding
the
shall be
for
presumptive respect
fil-
deemed
have been commenced for the
ing deadlines,
opinion
up
the lead
offers
purposes
this
at
subsection
the time
Supreme
the
Oscar
deci-
Mayer
Court’s
such
by
statement
is
registered
sent
as single-handedly
op-
sion
compelling the
mail
the appropriate
authority.
State
Indeed, it
posite
appears
result.
that the
633(b).
Upon reviewing
U.S.C.
the
opinion
lead
must cast its lot with Oscar
statute,
language
this
Supreme
Mayer, because no other
I
case of which
held, among
things,
Court
that a
supports
am aware
its view of exhaustion
grievant
not required
is
to commence state
Yet,
by any
as mere termination
means.
within
proceedings
speci-
the time limits
cursory
even
most
review
reveals
by
preserve
fied
state law order to
Mayer
nothing
Oscar
whatsoever
right
federal
of action.
Mayer,
See Oscar
say about administrative exhaustion
753,
at 2070.17
U.S.
S.Ct.
1997e(a). Thus,
§of
proper construction
the lead
left adrift
without
Although the lead opinion recites various
anchor.
policy
by
considerations
noted
Court in
decision,
reaching
ruling
this
Mayer,
Oscar
Oscar
Court
detailed,
Mayer
rests first and foremost on
lengthy,
highly
addressed a
idiosyncratic provision
language
Initially,
of the
the statute itself.
Age Discrim-
(“ADEA”),
in Employmént
ination
Act
re-
Court observed that
the use of the
quiring that a person
necessarily
“commence[ ]”
must
word “commenced” does not
proceedings
sixty
state
at least
days
compliance
filing
before
demand
with state
dead-
bringing
lines, “since,
a
age
federal
suit:
by way
analogy,
discrimination
under the
(1988),
express
16.
proper
involving
nearly
no view on the
outcome
case
identically
a
inquiry
of this
case.
VII,
this
provision
worded
in Title
42 U.S.C.
2000e-5(c).
ruling
Because
and Oscar
this
opinion,
As noted
lead
in the
Court
Mayer
upon virtually
statutory
same
rest
essentially the
reached
same
conclusion
language
reasoning,
my
I have confined
Co.,
EEOC v. Commercial
Products
Office
only to the
discussion
latter decision.
108 S.Ct.
Memphis Museum Brooks dispense with dead- (6th Cir.2000).19 F.3d 560-61 lines counter runs to the strict exhaustion § 1997e(a),
I why fail to see we the intent of should favor the imposing rights mandatory pre- civil prisoners claims over those fact, requisite under law-abiding In lead suits citizens. opinion’s and the decisions rule dilem- of this other precisely creates Appeals uniformly holding ma the Courts of sought to avoid Circuit, comply inmates must with a pro- Coleman—in fed- respect eral cedural rules as their procedural rules exhaust ad- employment dis- cases, Accordingly, ministrative remedies. crimination but not while judgment concur in the affirm- rules in Court’s 1983 suits. Neither Court, District Mayer ing Oscar I dissent from sup- nor authority ruling untimely lead opinion’s griev- such ports a result. satisfy ances the administrative exhaus- 1997e(a). tion requirement of V. end,
In the opinion’s ruling the lead
the issue of timeliness smat- upon rests
tering policy-based observations Os- cases, light precedents, of these I am at a loss such brute fact indi- remains to see how the lead can claim that no who viduals miss administrative deadlines “procedural way hurdles” default stand in the generally right upon forfeit their to call (Lead litigant. Op. of a Title VII or ADEA courts "federal a vindicator 2.) employ 727 n. Whether or not the courts (Id.) rights.” terminology "procedural default”