MICHAEL RINALDI, Appellant v. UNITED STATES OF AMERICA; HARRELL WATTS, Central Office; J.L. Norwood, Reginal Director, B.A. BLEDSOE, Warden, J. E. THOMAS, Warden; J. GRONDOLSKY, Acting Warden; MR. YOUNG, Associate Warden; MRS. REAR, Associate Warden; JOHN DOE, Captain; MR. TAGGART; DR. MINK, Psychology; MR. KISSELL, Case Manager; D. BAYSORE, Counselor; GEE, Officer; MR. BINGAMAN, Officer; MR. PACKARD, Officer; MRS. SHIVERY, Officer; B. TAUNER, Officer
No. 16-1080
United States Court of Appeals for the Third Circuit
September 12, 2018
PRECEDENTIAL. On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil Action No. 1:13-cv-00450), Honorable Sylvia H. Rambo, U.S. District Judge. Argued: January 25, 2018.
Before: KRAUSE, SCIRICA, and FUENTES, Circuit Judges
(Opinion Filed: September 12, 2018)
Tarah E. Ackerman, Esq. [Argued]
Allegheny Technologies, Inc.
1000 Six PPG Place
Pittsburgh, PA 15222
Matthew R. Divelbiss, Esq.
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Attorney for Plaintiff-Appellant Michael Rinaldi
Timothy S. Judge, Esq. [Argued]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Attorney for Defendants-Appellees
KRAUSE, Circuit Judge.
Appellant Michael Rinaldi, who at all relevant times was an inmate in custody at United States Penitentiary, Lewisburg (“Lewisburg” or the “Institution“), appeals the District Court‘s dismissal of his complaint1 alleging that the conduct of various
I. Factual Background
Between November 2011 and 2012, while housed at Lewisburg, Rinaldi filed a number of administrative requests, including one related to an alleged assault and one related to alleged retaliation. He initiated his assault claim with an “informal resolution,”2 dated January 29, 2012, alleging that he had been assaulted by a previous cellmate (Cellmate #1), and “requesting the institution discontinue its practice of forcing inmates to cell together [] regardless of their compatibility.” JA 160. On February 1, after that informal request was denied, Rinaldi filed a formal request (the “Assault Request“), which the Institution eventually denied on the ground that there was “no basis for [Rinaldi‘s] accusations.” JA 165.
The following day, February 2, Rinaldi was transferred to another unit. According to Rinaldi‘s complaint, Appellee Counselor Baysore had previously warned Rinaldi that unless he stopped filing requests, “she would have him moved to a different unit and placed in a cell with an inmate who was known for assaulting his cellmates,” and Appellee Officer Gee, who conducted the transfer, told Rinaldi that the reason he was being moved was because he “didn‘t listen” to those warnings. JA 61. Despite his protests, Rinaldi was transferred and placed in a cell with a new cellmate (Cellmate #2), who, Rinaldi alleges, threatened him by informing Lewisburg personnel, including Officer Gee and Counselor Baysore, “that if Rinaldi were placed in the cell he would kill [him].” JA 61. Over the course of the next three weeks, Rinaldi asserts he “suffered cuts and bruises and emotional distress” from several physical altercations with Cellmate #2. JA 61.
Rinaldi sought administrative relief for the alleged retaliatory transfer on February 2, but because he allegedly was concerned
Separately, Rinaldi also sought to obtain administrative relief for the assault by Cellmate #2. Although Rinaldi was required to file an informal resolution and formal request with the Institution,4 he did not do so. Rather, as he was then poised to appeal the denial of his original Assault Request (concerning Cellmate #1) to the Regional Director, he simply incorporated allegations as to both Cellmate #1 and Cellmate #2 into his appeal. As a result, the Regional Director could have rejected that appeal, at least as to Cellmate #2, on procedural grounds for failure to exhaust because his claim as to Cellmate #2 was never presented to the Institution in the first instance. Instead, however, he issued a decision that acknowledged that the appeal raised claims concerning the assaults by Cellmates #1 and #2 and rejected both claims on the merits. As the Regional Director put it:
You appeal the response from the Warden at USP Lewisburg and claim you were forced into a cell with another inmate who you allege threatened to kill you prior to being placed in the same cell. You also state you were once assaulted by a previous cellmate and received injuries. . . [T]here is no record of you being assaulted by your previous or current cellmate. . . Accordingly, your appeal is denied.
JA 168.5
II. Procedural History
Unable to obtain redress through the BOP grievance process, Rinaldi, initially proceeding pro se, filed a complaint in the Middle District of Pennsylvania raising three claims relevant to this appeal: (1) a First Amendment claim based on the retaliatory conduct alleged in the Retaliation Request; (2) an Eighth Amendment claim based on the cell placement and resulting attack by Cellmate #2 alleged in his appeal of the Assault Request; and (3) a claim pursuant to the Federal Tort Claims Act (“FTCA“),
After appointing pro bono counsel on appeal, we directed the parties to address, among other things, whether Rinaldi failed to exhaust his administrative remedies regarding his First and Eighth Amendment claims and the applicability of the discretionary function exception to Rinaldi‘s FTCA claim.
III. Jurisdiction and Standard of Review
The District Court had jurisdiction under
IV. Discussion
Below we consider whether Rinaldi exhausted his First Amendment and Eighth Amendment claims before turning to Rinaldi‘s FTCA claim.
A. Exhaustion under the PLRA
Congress enacted the PLRA to reduce the “disruptive tide of frivolous prisoner litigation.” Woodford v. Ngo, 548 U.S. 81, 97 (2006). In contrast to its precursor, the Civil Rights of Institutionalized Persons
[n]o 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 . . . until such administrative remedies as are available are exhausted.
While Small made clear that factual disputes relevant to exhaustion may be resolved by a district judge without the participation of a jury, id. at 271, we recently clarified that, before engaging in such fact-finding, the judge must provide the parties with “some form of notice . . . and an opportunity to respond,” although we left the exact form of this notice to “the discretion of the district court [] on a case-by-case basis.” Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018). At a minimum, however, the court must “notify the parties that it will consider exhaustion in its role as a fact finder under Small,” and, although live testimony is not necessarily required, it also “must at least provide the parties with an opportunity to submit materials relevant to exhaustion that are not already before it.” Id; see Small, 728 F.3d at 269.
1. Rinaldi‘s First Amendment Retaliation Claim
Rinaldi argues that his First Amendment claim should not have been dismissed on exhaustion grounds because the safety risks of filing directly with the Institution rendered that administrative remedy unavailable. Because we must measure whether Rinaldi exhausted his administrative remedies against the yardstick of the grievance procedures set forth in the relevant BOP regulations, see
(a) Exhaustion of BOP Administrative Remedies
As a general matter, inmates must (1) attempt an informal resolution with staff at the institution,
Here, Rinaldi considered his Retaliation Request a “Sensitive” request and therefore filed it with the Regional Director in the first instance. As discussed above, however, the Regional Director rejected it on the procedural ground that Rinaldi should have filed first with Lewisburg.8 That tees up the first exhaustion issue we confront today: whether Rinaldi was required to submit his Retaliation Request to the Institution to satisfy the PLRA‘s exhaustion requirement before filing his First Amendment claim in federal court or whether he was relieved of that requirement because the opportunity to file with the Institution was not “available.”
(b) Unavailability of Administrative Remedies
The PLRA requires only “proper exhaustion,” meaning exhaustion of those administrative remedies that are “available.” Woodford, 548 U.S. at 93. In its recent decision in Ross v. Blake, the Supreme Court identified “three kinds of circumstances in which an administrative remedy, although officially on the books,” is not “available” because it is “not capable of use to obtain relief“: (1) when “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates“; (2) when it is “so opaque that it becomes, practically speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination,
We too have encountered circumstances in which a grievance process, though “officially on the books,” Ross, 136 S. Ct. at 1859, is in reality incapable of use such that the PLRA‘s exhaustion requirement must be deemed satisfied. In Brown v. Croak, 312 F.3d 109 (3d Cir. 2002), for example, we rejected the prison‘s affirmative defense of failure to exhaust where the plaintiff alleged he was given misleading filing instructions, resulting in a procedural default, and argued “essentially that officials in the security department of the prison thwarted his efforts to exhaust his administrative remedies.” Id. at 113. And more recently, in Robinson v. Superintendent Rockview SCI, we held that the prison “rendered its administrative remedies unavailable to [the plaintiff] when it failed to timely (by its own procedural rules) respond to his grievance and then repeatedly ignored his follow-up requests for a decision on his claim.” 831 F.3d 148, 154 (3d Cir. 2016). In such circumstances, “filing suit [was the plaintiff‘s] only method to advance his claim.” Id.
Rinaldi now asks us to recognize another circumstance in which the grievance process is unavailable, i.e., where an inmate is deterred from pursuing an administrative grievance by a prison official‘s serious threats of substantial retaliation— a circumstance that Rinaldi contends falls squarely within Ross‘s third category because a prisoner‘s ability to take advantage of the grievance process has then been “thwarted” by prison administrators “through . . . intimidation.” Ross, 136 S. Ct. at 1860.
We agree that serious threats of substantial retaliation can trigger this third category of unavailability, and thus join our Sister Circuits who have held, even before Ross, that administrative remedies are not “available” under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm.9 See McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015); Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011); Turner v. Burnside, 541 F.3d 1077, 1084-86 (11th Cir. 2008); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Hemphill v. New York, 380 F.3d 680, 686-87 (2d Cir. 2006), abrogated on other grounds as recognized in Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
As the Tenth Circuit eloquently explained in Tuckel v. Grover, it is “difficult to accept the proposition that an administrative remedy is available in any meaningful sense if its use will result in serious retaliation and bodily harm.” 660 F.3d at 1252. To the contrary, threats made by prison officials that inhibit an inmate from utilizing an administrative process “disrupt the operation and frustrate the purposes of the administrative remedies process enough that the PLRA‘s exhaustion requirement does not allow them” and thus lift the exhaustion requirement as to that part of the process. Id. at 1253 (quoting Turner v. Burnside, 541 F.3d at 1085). This approach not only is consistent with the plain language of the PLRA, which requires only exhaustion of administrative remedies “as are available,”
With Ross, the Supreme Court too has recognized that “intimidation” by prison officials can “thwart inmates from taking advantage of a grievance process” and thus render that process “unavailable.” 136 S. Ct. at 1860. But the question remains what showing an inmate must make to establish such “intimidation” and defeat a failure-to-exhaust defense: Must he show (1) that, objectively, an inmate of reasonable fortitude would be deterred from filing a grievance; (2) that, subjectively, he himself was deterred from filing a grievance; or (3) that both an objective and subjective test have been satisfied? To that question we now turn.
(c) The Showing Required to Prove Unavailability
The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him. Tuckel, 660 F.3d at 1253-54.
To determine what showing is required to establish unavailability based on “intimidation,” we find helpful guidance in the reasoning of other Courts of Appeals. In Turner v. Burnside, the Eleventh Circuit held that an inmate must show both that “the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process“; and that “the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” 541 F.3d at 1085. The Tenth Circuit has also embraced the “two-prong analysis in Turner . . . as the best model” for the “showing necessary to defeat a failure-to-exhaust defense,” Tuckel, 660 F.3d at 1253-54, explaining that the subjective element ensures that the grievance process was perceived as unavailable by this plaintiff, i.e., “that he was actually deterred,” while the objective element “ensures that inmates cannot easily circumvent the exhaustion requirement” and thus “only threats that are sufficiently serious and retaliatory acts that are severe enough to deter a reasonable inmate will result in an administrative remedy becoming unavailable for PLRA purposes,” id. at 1254. The Ninth Circuit, too, has embraced Turner as “straightforward and conceptually simple to apply.” See McBride, 807 F.3d at 987-88.
We also find the Turner test a sensible one.10 The objective component is of chief importance because it maintains the exhaustion requirement for the vast majority of claims and allows otherwise unexhausted claims to proceed only in the exceptional circumstance where the facts alleged would reasonably give rise to a substantial fear of serious harm. As the Tuckel Court explained, the objective requirement allows courts to easily weed out suits that attempt to circumvent the PLRA, such as where “a threat . . . was allegedly made
But the subjective component also has a role to play. For even though a showing that an inmate of reasonable fortitude would be deterred offers relevant circumstantial evidence of subjective deterrence, see Hope v. Pelzer, 536 U.S. 730, 738 (2002); Kedra v. Schroeter, 876 F.3d 424, 441 (3d Cir. 2017), a district court may conclude—based on documents, affidavits, or live testimony if deemed warranted, see Paladino, 885 F.3d at 211—that the subjective showing has not been satisfied. Evidence that an inmate continued to file substantially similar claims through the same grievance process, for example, may be sufficiently compelling to defeat an inmate‘s assertion of subjective deterrence.
In sum, we perceive a valuable role for both the objective and subjective components of the Turner test and today adopt it as our own. To defeat a failure-to-exhaust defense, an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the threat actually did deter this particular inmate.
(d) Application to Rinaldi
As applied here, Rinaldi‘s Retaliation Request unquestionably satisfies the objective test for unavailability. Accepting the allegation that Rinaldi‘s continued resistance to the grievance process is what led prison authorities to house him with a cellmate they knew threatened to kill him, we have little trouble concluding that “a reasonable inmate of ordinary firmness and fortitude” would be “deter[red] . . . from lodging”
a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Turner, 541 F.3d at 1084-85. And the Government conceded as much at oral argument. The Government disputes, however, whether Rinaldi was subjectively deterred.
Because the District Court did not have the benefit of the test we announce today and because we had not yet clarified in Paladino what procedures are required when a district court must resolve factual disputes relevant to exhaustion, the District Court did not have occasion to determine whether Rinaldi made the requisite showing of subjective deterrence. Nonetheless, the Government urges that we should affirm, rather than remand, because the record reflects that Rinaldi filed a number of grievances after the allegedly retaliatory transfer—a circumstance that the Government contends, in effect, negates subjective deterrence as a matter of law. We are not persuaded.
As the Seventh Circuit has observed, the “ability to take advantage of administrative grievances is not an “either-or” proposition. Sometimes grievances are clearly available; sometimes they are not; and
Accordingly, we will vacate the District Court‘s dismissal of Rinaldi‘s First Amendment claim, and will remand for the District Court to consider subjective deterrence in the first instance.
2. Rinaldi‘s Eighth Amendment Assault Claim
Rinaldi also challenges the District Court‘s dismissal of his Eighth Amendment claim for failure to exhaust. As explained below, even though he did not initiate a new grievance for the assault by Cellmate #2 and raised that claim for the first time in the appeal of his original Assault Request, exhaustion was satisfied under our case law because the Regional Director denied it on the merits.11
In Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000), despite the fact that the inmate had not completed a necessary step in the Department of Corrections’ grievance process, we concluded that the prison had waived any exhaustion defense and “judicial consideration [wa]s open to [the inmate]” because the inmate‘s “allegations [had] been fully examined on the merits by the ultimate administrative authority,” and therefore a “substantive determination [had been] made at the highest level.” Id. at 281. Likewise, in Spruill, drawing on principles from habeas and administrative law, we reasoned that whether a prisoner had “properly exhausted” a claim must be determined by evaluating not only “the prisoner‘s compliance with the prison‘s administrative regulations governing inmate grievances,” but also “the waiver, if any, of such regulations by prison officials.” 372 F.3d at 222. Thus, even though Spruill had failed to include the name of the relevant prison official, we held that the grievance office‘s acknowledgment of which prison official was involved had “excused any procedural defects in Spruill‘s initial grievances.” Id. at 234.
The Government contends in its briefing that our precedent was abrogated by the Supreme Court‘s decision in Woodford v. Ngo, 548 U.S. 81 (2006).12 Quite the opposite. In Woodford, the Supreme Court resolved a split between those Circuits that had adopted a broader interpretation of the
Although Woodford did not specifically address whether review on the merits of an otherwise procedurally defaulted claim constitutes “proper exhaustion,” the Court‘s reference to Spruill and its reliance on principles of habeas and administrative law in evaluating
To be clear, and with sensitivity to the thoughtful concerns raise by our dissenting colleague, we do not today create any “broad . . . exception” to the exhaustion requirement. See Dissent at 8. We simply reaffirm, as we held in Camp, that when an inmate‘s allegations “have been fully examined on the merits” and “at the highest level,” they are, in fact, exhausted. 219 F.3d at 281. This holding also satisfies the “three interrelated objectives” of exhaustion: “(1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the
In reaching this conclusion, we are in good company. Other Courts of Appeals too have held that merits review satisfies exhaustion under the
In sum, because Rinaldi‘s Assault Request was denied at the highest level on the merits and therefore was properly exhausted under the
B. Rinaldi‘s FTCA Claim
The District Court construed Rinaldi‘s claim that the Government “forc[ed] him to reside with an inmate that [the BOP] knew, or should have known, had expressed an intention to kill [him],” Rinaldi, 2015 WL 2131208, at *5, as “essentially a negligence” claim under the
Although we have not previously addressed in a precedential opinion whether BOP housing and cellmate assignments meet this test, other Courts of Appeals have held uniformly that they do. See Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 396–98 (6th Cir. 2004); Santana-Rosa v. United States, 335 F.3d 39, 43–44 (1st Cir. 2003); Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir. 1998); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 795–96 (8th Cir. 1998); Calderon v. United States, 123 F.3d 947, 948–50 (7th Cir. 1997).16 We now join them.
Here, both prongs of the discretionary function test are satisfied. At the first prong, housing and cellmate assignments unquestionably involve an “element of judgment or choice,” Gaubert, 499 U.S. at 322 (citation omitted), for while BOP officials must “provide suitable quarters” and “provide for the protection, instruction, and discipline of all” of its inmates,
V. Conclusion
For the foregoing reasons, we will vacate and remand for further proceedings concerning Rinaldi‘s First and Eighth Amendment claims and will affirm the District Court‘s judgment in all other respects.
SCIRICA, Circuit Judge, concurring in part and dissenting in part
I join the Majority‘s thoughtful analysis of Rinaldi‘s Federal Tort Claims Act claim and exhaustion of his First Amendment claim under the Prison Litigation Reform Act (PLRA). I write separately on the PLRA‘s exhaustion requirement,
Rinaldi—a federal inmate—alleges that prison officials unconstitutionally retaliated against him by forcing him to cell with an inmate who had threatened to kill him. See
The Supreme Court has strictly interpreted
I.
As the Majority Opinion explains, the United States Bureau of Prisons (BOP) has a multi-tiered administrative remedy program. To exhaust administrative remedies, an inmate must first file an informal remedy request through an appropriate institution staff member via a BP-8 form. See
Here, Rinaldi filed an informal remedy request on January 29, 2012, claiming to have been assaulted by a previous cellmate. Rinaldi requested that the institution discontinue its practice of forcing inmates to cell together regardless of compatibility because “[f]orced double celling creates a hostile environment and increases the incidence of assaults.” JA 164. The informal request was denied and Rinaldi filed Request for Administrative Remedy #675165 (BP-9). This request was denied by the Warden on the grounds that “[a]ll inmates are screened for compatibility prior to placement.” JA 165.
Rinaldi appealed to the Northeast Regional Office. At this stage in the institutional review process (BP-10), Rinaldi introduced a new claim that, on February 2, 2012, he was celled with an inmate who had threatened to kill him. Rinaldi framed this as evidence that the Warden‘s reason for denying his remedy request—that inmates are screened for compatibility—was untrue, noting he had provided his case manager with the names of other inmates he “would like to cell with.” JA 167. The Regional Office denied his appeal, reasoning that inmate compatibility is considered and there was “no record of [Rinaldi] being assaulted by [his] previous or current cellmate.” JA 168. Rinaldi then appealed to the General Counsel, who denied the appeal and closed the case with the code “DNY.”
Thereafter, Rinaldi filed suit in federal court, proceeding pro se. As relevant here, Rinaldi alleged that being forced to cell with an inmate who had threatened to kill him violated his Eighth Amendment rights. The District Court dismissed the claim for Rinaldi‘s failure to exhaust because the BOP‘s regulations prohibit an inmate from raising issues for the first time on appeal. See
II.
My colleagues conclude Rinaldi‘s Eighth Amendment claim was exhausted because, even though he raised its factual predicate for the first time midway through the grievance process, his grievance was denied on the merits at the highest level. I disagree. The Supreme Court‘s most recent analysis of the PLRA‘s mandatory exhaustion requirement, in Ross, did not decide the question we face today. But Ross did signal the Court‘s continued reluctance to tolerate broad exceptions to the PLRA‘s statutory exhaustion requirement.
Moreover, the Supreme Court explained in Ross that, under the PLRA, the question of exhaustion “in all cases is one of statutory construction.” 136 S. Ct. at 1858 n.2. The statute‘s origins counsel that the substance of a grievance must be addressed at every available level of the administrative review process. So too does the Supreme Court‘s construction of
A.
Central to the PLRA‘s effort to “reduce the quantity and improve the quality of prisoner suits” was its exhaustion requirement. Porter v. Nussle, 534 U.S. 516, 524 (2002). Applicable “irrespective of the forms of relief sought and offered through administrative avenues,” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001), the PLRA‘s exhaustion requirement was designed to strengthen the “weak” exhaustion provision of its predecessor—the Civil Rights of Institutionalized Persons Act (CRIPA), see Porter, 534 U.S. at 523; see also Ross, 136 S. Ct. at 1857–58 (discussing how “the history of the PLRA underscores the mandatory nature of its exhaustion regime“). The Supreme Court has “reject[ed] every attempt to deviate . . . from [
Most recently, in Ross, the Court considered a “special circumstances” exception
In rejecting the special circumstances test, the Court clarified that “mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 1857. Thus, while “an exhaustion provision with a different text and history from
B.
Requiring a decision on the merits at each available stage of the administrative process is, moreover, consistent with how the Supreme Court has construed
In Woodford, the Court interpreted
This construction would appear to be inconsistent with a broad merits exception. This is not a case where the grievance bears some procedural defect, but the substance of the grievance is nevertheless considered at all administrative steps (for example, the initial filing was untimely or an appeal deadline was missed but these errors were overlooked). In such a case, the prisoner has used all steps the agency holds out, complying with the agency‘s “critical rules,” and the administrative remedy system functions effectively as if no defect were present. But here, Rinaldi raised the factual basis for his current Eighth Amendment claim only midway through the grievance process.
As for the PLRA, we have described the “three interrelated objectives” of exhaustion as follows: “(1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits.” Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004). The Supreme Court has reasoned, in Woodford, that exhaustion gives the agency “an opportunity
Take, for example, the goal of developing an administrative record. If the procedural defect is that an inmate interjects a claim at the final stage of the BOP‘s remedy process, then a denial with the code “DNY” would suffice to have exhausted that claim on the merits.5 In this scenario there is no creation of an administrative record. The administrative record is also not fully developed where, as here, a claim is interjected midway through the BOP‘s review process. As for compliance with critical procedural rules, there is less incentive for a prisoner to pursue separate grievances through all stages of review if a claim (or, as here, facts supporting a different claim) can instead potentially be added at the final hurdle. Finally, requiring a grievance to have been considered on the merits at all available stages of review makes it more likely a particular institution will have the full opportunity to address and correct a grievance because the institution itself will be put on notice first. The first step of the BOP‘s remedy program is designed to allow staff an opportunity to “informally resolve the issue before an inmate submits a Request for Administrative Remedy.”
C.
Analogies to well-established exceptions in habeas and administrative law are useful. But the Supreme Court has not imported all of these principles into the PLRA‘s exhaustion regime.7 Further still, these exceptions are judge-made.8 To the
III.
Notably, most of our sister circuits to consider the issue prior to Ross addressed grievances the substance of which had proceeded through each step of the administrative process. See, e.g., Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011) (concerning a late initial filing accepted and decided on the merits); Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (“Maddox‘s grievance was rejected on the merits at every stage of review without any indication from prison officials that it was procedurally deficient.“); Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (addressing an inmate‘s failure to name a single individual in his initial grievance); Ross v. Cty. of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (“If a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper.“).9 This is also true of our decision in Spruill. See 372 F.3d at 232 (focusing on the fact that the prison‘s initial grievance review cured the inmate‘s procedural defect).
In fact, the Ninth Circuit in Reyes v. Smith expressly qualified its holding on this point: “we hold that a prisoner exhausts “such administrative remedies as are available,” under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” 810 F.3d 654, 658 (9th Cir. 2016) (internal citation omitted) (emphasis added). The Eighth Circuit also based its holding in Hammett v. Cofield on the fact that the inmate had “pursued the[] grievances through all three steps of the process” and his grievance appeals were denied on the merits. 681 F.3d 945, 948 (8th Cir. 2012). The court noted that when a grievance has proceeded through all steps, notwithstanding an initial procedural error, “[a] complete administrative record exists, and a reviewing court will have the benefit of the agency‘s institutional perspective.” Id. at 947–48. This reasoning does not hold true where a claim has been added midway through the remedy process.
IV.
Exhaustion provisions, like