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PLN US Supreme Court Amicus Brief in support of certiorari in Jones v. Bock. Michigan PLRA administrative exhaustion case, 2005

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No. 05-7058
IN THE

Supreme Court of the United States
LORENZO L. JONES,
Petitioner,
v.

BARBARA BOCK ET AL.,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
BRIEF OF D.C. PRISONERS’ LEGAL SERVICES
PROJECT INC., LEGAL AID SOCIETY OF THE CITY
OF NEW YORK, OHIO JUSTICE AND POLICY
CENTER, PRISON LEGAL NEWS, AND UPTOWN
PEOPLE’S LAW CENTER AS AMICI CURIAE
IN SUPPORT OF PETITIONER

GAIL E. LEES
Counsel of Record
GARETH T. EVANS
ERIC R. MAIER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
Counsel for Amici Curiae

ii

QUESTIONS PRESENTED
1. Whether the Prison Litigation Reform Act of
1995 (“PLRA”) mandates the dismissal of a prisoner’s federal civil rights lawsuit, without leave to amend, in the event
that the prisoner’s complaint does not describe with particularity how the prisoner exhausted his or her administrative
remedies; or instead, whether non-exhaustion is an affirmative defense.
2. Whether the PLRA provides a “total exhaustion”
rule, which requires the dismissal, without leave to amend, of
a prisoner’s entire federal civil rights complaint—including
causes of action that have been administratively exhausted—
for failure to plead exhaustion with respect to any one or
more causes of action.

iii

TABLE OF CONTENTS
Page

INTEREST OF AMICI........................................................ 1
STATEMENT ..................................................................... 3
REASONS FOR GRANTING THE WRIT ........................ 7
I.

The Court Of Appeals’ JudiciallyCreated Pleading Standard Conflicts
With This Court’s Prior Decisions
And With The Purpose Underlying
The PLRA.................................................... 9

II.

Importing The “Total Exhaustion”
Requirement From Habeas Corpus
Jurisprudence Undermines The
Purpose Of The PLRA And Prevents
Meritorious Suits From Going
Forward ..................................................... 14

CONCLUSION ................................................................. 20

iv

TABLE OF AUTHORITIES
Page(s)

Cases
Baxter v. Rose,
305 F.3d 486 (6th Cir. 2002)......................................11, 12
Bey v. Johnson,
407 F.3d 801 (6th Cir. 2005) ............................................6, 15

Booth v. Churner,
No. 99-1964....................................................................2, 4
Bounds v. Smith,
430 U.S. 817 (1977) ...........................................................3
Brown v. Toombs,
139 F.3d 1102 (6th Cir. 1998)....................................11, 13
Castro v. United States,
540 U.S. 375 (2003) ...........................................................8
City of Rancho Palos Verdes, California v. Abrams,
125 S. Ct. 1453 (2005) .....................................................17
Cleavinger v. Saxner,
474 U.S. 193 (1985) .....................................................8, 17
Crawford-El v. Britton,
523 U.S. 574 (1998) .........................................................13
Edwards v. Balisok,
520 U.S. 641 (1997) .........................................................15
Estelle v. Gamble,
429 U.S. 97 (1976) .............................................................8

v
Table of Authorities
(Continued)
Page(s)

Haines v. Kerner,
404 U.S. 519 (1972) ...........................................................8
Johnson v. Testman,
380 F.3d 691 (2d Cir. 2004) ...............................................1
Knuckles El v. Toombs,
215 F.3d 640 6th Cir. 2000) .......................................11, 13
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163 (1993) ...........passim
Lira v. Herrera,
---F.3d---, 2005 WL 285015 (9th Cir.
Nov. 1, 2005)........................................................14, 15, 18
McCarthy v. Madigan,
503 U.S. 140 (1992) ...........................................................4
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) .........................................................10
Mojias v. Johnson,
351 F.3d 606 (2d Cir. 2003) ...............................................2
Muhammad v. Close,
540 U.S. 749 (2004) .....................................................3, 15
Nelson v. Campbell,
541 U.S. 637 (2004) .........................................................15
Ortiz v. McBride,
380 F.3d 649 (2d Cir. 2004) .........................................1, 15

vi
Table of Authorities
(Continued)
Page(s)

Porter v. Nussle,
534 U.S. 516 (2002) .......................................................4, 5
Ray v. Kertes,
285 F.3d 287 (3d Cir. 2002) .............................................12
Rhines v. Weber,
125 S.Ct. 1528 (2005) ..............................................8, 9, 18
Rivera v. Allin,
144 F.3d 719 (11th Cir. 1998)..........................................11
Rose v. Lundy,
455 U.S. 509 (1982) ...............................................8, 15, 16
Ross v. County of Bernalillo,
365 F.3d 1181 (10th Cir. 2004) ..................................6, 15, 19

Snider v. Melindez,
199 F.3d 108 (2d Cir. 1999) .............................................19
Steele v. Federal Bureau of Prisons,
355 F.3d 1204 (10th Cir. 2003) .....................................passim

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) ...........................................7, 9, 10, 13
United States v. Wells,
519 U.S. 482 (1997) ...........................................................4
Vazquez v. Ragonese,
No. 05-1203, 2005 WL 1842273 (3d Cir. Aug. 4, 2005) ..........6

Westefer v. Snyder,
422 F.3d 570 (7th Cir. 2005)..............................................3

vii
Table of Authorities
(Continued)
Page(s)

Wilkinson v. Dotson,
125 S. Ct. 1242 (2005) ...........................................8, 15, 16
Wyatt v. Terhune,
315 F.3d 1108 (9th Cir. 2003)....................................12, 13
Statutes
28 U.S.C. § 1915(b)..............................................................19
28 U.S.C. § 1915(g)..............................................................19
42 U.S.C. § 1983 ....................................................................3
Other Authorities
141 Cong. Rec. S14611 (1995) ........................................4, 13
Rules
Fed. R. Civ. P. 8(c)...............................................................12

1

INTEREST OF AMICI 1
Amici are five non-profit public interest and legal services organizations that focus on protecting the constitutional
and fundamental rights of individuals incarcerated in American prisons, including protecting prisoners’ right of access to
the federal courts to redress civil rights violations.
D.C. Prisoners’ Legal Services Project, Inc. (the “Project”)
is a non-profit law firm dedicated to ensuring the humane
treatment and protecting the dignity of all persons convicted
of or charged with a criminal offense under the laws of the
District of Columbia and housed in prisons, jails, or community corrections programs. The Project files both individual
and class action suits to protect the rights of clients, and
seeks to assure that prisoners are afforded access to petition
for redress of violations of their constitutional rights.
The Legal Aid Society of the City of New York (the “Legal
Aid Society”) is a private organization that provides free legal assistance to indigent persons in New York City. Its
Prisoners’ Rights Project represents prisoners in the New
York City jails and the New York State prisons in litigation
protecting their constitutional and other legal rights, and has
litigated a number of cases involving the Prison Litigation
Reform Act’s administrative exhaustion requirement, which
is at issue in this case. See Ortiz v. McBride, 380 F.3d 649
(2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.
1 The parties have consented to the submission of this brief, and

their letters of consent have been filed with the Clerk. Pursuant to this Court’s Rule 37.6, amici represent that this brief
was not written in whole or in part by counsel for any party,
and no person or entity other than amici or their counsel contributed money or services to the preparation or submission of
this brief.

2
2004); Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003). The
Legal Aid Society’s Prisoners’ Rights Project also has appeared as amicus in several prior cases in this Court. See,
e.g., Booth v. Churner, No. 99-1964, Brief of Amici Curiae
in Support of Petitioner, 2000 WL 1868111 (Dec. 14, 2000).
The Legal Aid Society has an interest in protecting prisoners’
individual rights and remedies, as well as its ability to litigate
on behalf of its clients, by advocating for appropriate judicial
construction of statutes that affect its clients’ access to courts.
The Ohio Justice & Policy Center (formerly the Prison Reform Advocacy Center) is a public interest, nonprofit law
firm dedicated to improving prison conditions and empowering former offenders to become productive members of the
community. Established in 1997 and based in Cincinnati,
Ohio, the Ohio Justice & Policy Center litigates to enforce
constitutional standards regarding medical care, safety and
other conditions of confinement, and advises prisoners on
how to exhaust their administrative remedies. The Ohio Justice & Policy Center also has worked to educate the Sixth
Circuit Court of Appeals about the prison grievance systems
that exist in the states comprising the Sixth Circuit. Through
its work, the Ohio Justice & Policy Center has emerged as a
regional and national expert on various criminal justice issues, prison issues, and prisoners’ rights.
Prison Legal News is a non-profit organization that advocates nationally on behalf of those imprisoned in American
detention facilities. Prison Legal News publishes a magazine
by the same name to educate its readers and the general public about the use of the civil justice system for the vindication
of fundamental human and civil rights.
The Uptown People’s Law Center (“UPLC”) is a non-profit
legal service center serving the poor and indigent of Chicago.
Among other things, the UPLC represents prisoners challenging prison conditions, parole procedures, and “good time
policies” in the Illinois prison system. UPLC frequently
faces the issue of administrative exhaustion, both in its for-

3
mal litigation (see, e.g., Westefer v. Snyder, 422 F.3d 570
(7th Cir. 2005)), and in addressing the hundreds of letters it
receives from unrepresented prisoners seeking advice on how
to properly exhaust claims.
STATEMENT
The Prison Litigation Reform Act of 1995, Pub. L. 104134, 110 Stat. 1321 (1996) (“PLRA”), provides that a prisoner who brings a claim under 42 U.S.C. § 1983 must first
exhaust the administrative remedies available in the prison
system. This case presents the question whether courts are
permitted to impose additional, judicially-created procedural
rules governing the manner of pleading administrative exhaustion, where such rules interfere with a prisoner’s constitutional right of access to the courts and are not a reasonable
means of advancing the congressional policies underlying the
PLRA. In this case, the Sixth Circuit joined three other circuits in effectively answering this question in the affirmative,
resulting in the dismissal of Petitioner’s civil rights claims.
Had the alleged deprivation of Petitioner’s civil rights occurred in one of the several circuits that have declined to impose these additional procedural rules, Petitioner would have
been permitted to present his claims to a federal court. This
Court’s review is necessary to resolve this deepening split
among the circuit courts and to eliminate a lack of uniformity
that breeds significant and arbitrary differences nationwide in
the vindication of prisoners’ rights of access to the courts.
1. “[P]risoners have a constitutional right of access
to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977).
One of the two principal means for a prisoner to pursue this
constitutional right is to file a complaint under the Civil
Rights Act of 1871 (as amended, 42 U.S.C. § 1983). See
Muhammad v. Close, 540 U.S. 749, 750 (2004).

4
Congress has historically prescribed limits on the ability of a prisoner to pursue a civil rights claim in federal court.
Before the passage of the PLRA, a prisoner’s right to initiate
a civil rights lawsuit in federal court was subject to the provisions of the Civil Rights of Institutionalized Persons Act, 42
U.S.C. § 1997 (“CRIPA”). In weighing a prisoner’s constitutional right of access to the courts against the provisions of
the CRIPA, this Court in 1992 explained: “[t]he first of the
principles that necessarily frame our analysis of prisoner’s
constitutional claims is that federal courts must take cognizance of the valid constitutional claims of prison inmates.”
McCarthy v. Madigan, 503 U.S. 140, 153 (1992).
2. In 1996, Congress passed the PLRA, which included a revised administrative exhaustion provision stating
that no action shall be brought by a prisoner under 42 U.S.C.
§ 1983 with respect to prison conditions “until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The PLRA did not change the principle that federal courts must take cognizance of the valid constitutional
claims of prison inmates. See United States v. Wells, 519
U.S. 482, 495 (1997) (stating that the Court “presume[s] that
Congress expects its statutes to be read in conformity with
th[e] Court’s precedents”). Rather, as the legislative history
reveals, the purpose of the PLRA was to “prevent[] inmates
from abusing the judicial system,” 141 Cong. Rec. S14611
(1995) (statement of Sen. Hatch), while still “allow[ing]
meritorious claims to be filed.” 141 Cong. Rec. S14611
(1995) (statement of Sen. Thurmond).
In Booth v. Churner, 532 U.S. 731 (2001), this Court
held that the language of 42 U.S.C. § 1997e(a) made it clear
that Congress mandated administrative exhaustion regardless
of whether the relief sought was injunctive or monetary. Id.
at 741. The Court later explained in Porter v. Nussle, 534
U.S. 516 (2002) that, consistent with the overall purpose of
the PLRA, the purpose of the PLRA’s administrative exhaus-

5
tion requirement was “to reduce the quantity and improve the
quality of prisoner suits.” Id. at 524.
3. Since Booth and Porter, the federal circuits have
split over the proper interpretation of the PLRA’s exhaustion
requirement. The Sixth Circuit and three other circuits have
added procedural hurdles that are inconsistent with the manner in which this Court in Booth and Porter reconciled the
PLRA’s exhaustion requirement with prisoners’ right of access to the courts.
The two judicially-created rules at issue in the Petition
are: (i) the requirement that a prisoner’s lawsuit be dismissed
(without leave to amend) for failure to specifically allege exhaustion of administrative remedies; and (ii) the “total exhaustion” rule, which requires the dismissal (without leave to
amend) of a prisoner’s entire complaint—including claims
that have been administratively exhausted—for failure to
plead exhaustion with respect to any one or more claims.
4. Petitioner filed a lawsuit under 42 U.S.C. § 1983.
He alleged that he was in a motor vehicle accident while in
the custody of the Michigan Department of Corrections
(“MDOC”). Pet. App. 1a. Petitioner suffered serious injuries, including spinal cord injuries requiring fusion surgery.
Id. at 8a. Petitioner alleged that after suffering these injuries,
the MDOC was deliberately indifferent to his medical needs;
assigned him to work as a “Big Yard Equipment Handler,”
which further aggravated his injuries; and retaliated against
him for complaining about his injuries. Id. at 8a-9a.
The district court dismissed Petitioner’s entire complaint, and the Sixth Circuit affirmed. Even though Respondents conceded that Petitioner did, in fact, exhaust his administrative remedies with respect to at least one of his claims,
the Sixth Circuit held that Petitioner’s failure to allege exhaustion in his complaint with sufficient particularity man-

6
dated dismissal of that claim. Id. at 2a. The Sixth Circuit
then applied a “total exhaustion” rule and held that “even if
[Petitioner] had shown he had exhausted some of his claims,
the district court properly dismissed the complaint because
[petitioner] did not show that he exhausted all of his claims.”
Id. at 3a.
5. As the Petition demonstrates, the Tenth, Eleventh,
and Sixth Circuits impose an additional, judicially-created
pleading requirement for a prisoner plaintiff, requiring the
dismissal of claims, without leave to amend, for failure to
specifically allege exhaustion, 2 while seven circuits—the
First, Second, Third, Fourth, Seventh, Eighth, and Ninth Circuits—have declined to impose this requirement. See Pet. at
11-15. Three circuits—the Third, Sixth and Tenth—apply a
“total exhaustion” rule, requiring the dismissal, without leave
to amend, of an entire complaint in the event that one or
more of the claims have not been administratively exhausted. 3 See id. at 18-20. The Second, Fifth, Seventh and

2 See Pet. at 11-12 citing, inter alia, Steele v. Federal Bureau of

Prisons, 355 F.3d 1204 (10th Cir. 2003), cert. denied, 125 S.
Ct. 344 (2004); Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002);
Rivera v. Allin, 144 F.3d 719 (11th Cir.), cert. dismissed, 524
U.S. 978 (1998).
3 See Pet. at 18-19, citing, inter alia, Vazquez v. Ragonese, No.

05-1203, 2005 WL 1842273 (3d Cir. Aug. 4, 2005); Bey v.
Johnson, 407 F.3d 801 (6th Cir. 2005); Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004).

7
Ninth Circuits have rejected the “total exhaustion” rule. See
id. at 20-22. 4
REASONS FOR GRANTING THE WRIT
The Sixth Circuit’s decision, like the two rulings upon
which it is based, cannot be reconciled with this Court’s decisions prohibiting judicially created pleading requirements.
The Sixth Circuit’s decision unnecessarily deprives prisoners
of the right to present meritorious civil rights claims in federal court and undermines Congress’ purpose in enacting the
PLRA. The judicially-created procedural requirements in the
Third, Sixth, Tenth and Eleventh Circuits have blocked the
constitutional right of access to the courts with a complicated
maze of traps for prisoners who seek to vindicate their civil
rights.
In requiring a plaintiff prisoner to plead exhaustion of
administrative remedies and offer proof of exhaustion in a
complaint, or face dismissal without leave to amend, the
Sixth Circuit imposed a pleading standard that has no basis in
the Federal Rules of Civil Procedure (“Federal Rules”) or in
the PLRA. The Sixth Circuit’s imposition of an affirmative
pleading requirement directly conflicts with this Court’s rule
against judicially-created pleading standards. Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507
U.S. 163 (1993). This conflict is even more pronounced here
because many PLRA litigants are pro se, and this Court has
repeatedly recognized that the pleading standards for pro se

4 The Ninth Circuit rejected the total exhaustion rule in an opin-

ion issued after the Petition was filed. Lira v. Herrera, --F.3d---, 2005 WL 285015 (9th Cir. Nov. 1, 2005).

8
litigants are more lenient than the pleading standards for represented parties. See Castro v. United States, 540 U.S. 375,
381 (2003); Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Not only
does this additional pleading requirement contradict established law, but it also undermines the PLRA’s purpose and
unnecessarily prevents prisoners from presenting meritorious
civil rights claims in federal courts. The Sixth Circuit’s
heightened pleading standard is a blunt tool where sharpness
is needed: although it may curb frivolous lawsuits, its effect
falls equally on meritorious cases as on frivolous ones.
The Sixth Circuit’s “total exhaustion” rule is borrowed
inappropriately from Rose v. Lundy, 455 U.S. 509 (1982), in
which this Court adopted such a rule for habeas corpus petitions. The total exhaustion rule in the habeas corpus context
furthered the purposes underlying the exhaustion requirement—federal-state comity, and the development of a complete factual record to aid the federal courts. Id. at 515, 51819. Neither rationale supports the adoption of a total exhaustion rule for PLRA cases. See Wilkinson v. Dotson, 125 S.
Ct. 1242, 1249 (2005) (rejecting argument that permitting
prisoner’s § 1983 lawsuit without prior exhaustion of statecourt remedies would compromise principles of federal-state
comity); Cleavinger v. Saxner, 474 U.S. 193, 206 (1985)
(noting non-judicial nature of prison administrative proceedings).
Further, the total exhaustion rule adopted by the Sixth
Circuit is significantly harsher than the habeas rule that is
purportedly its model. In Lundy, the Court acknowledged
that a habeas petitioner should generally be allowed to withdraw unexhausted claims and continue with the exhausted
claims, rather than mandating dismissal of the entire petition.
Lundy, 455 U.S. at 520-21. The Court reaffirmed that view
in Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005). The
Rhines Court further noted that Congress had added a statute

9
of limitations to habeas petitions since Lundy, and, in order
to avoid forfeiture of meritorious habeas claims, the Court
modified the Lundy rule to allow courts to stay petitions containing unexhausted claims to permit those claims to be exhausted. Id. at 1533-35. Section 1983 actions, too, are governed by statutes of limitations, and the concerns of the
Rhines Court are equally applicable to such actions.
I.

The Court Of Appeals’ Judicially-Created
Pleading Standard Conflicts With This
Court’s Prior Decisions And With The Purpose Underlying The PLRA

The circuits are split as to whether prisoner plaintiffs
must allege exhaustion of administrative remedies or whether
it is an affirmative defense, and further, whether prisoners
must plead exhaustion with particularity and with documentary support. See Pet. at 11-15. The Sixth Circuit rule is
consistent with the rule applied in two other circuits—the
Tenth and Eleventh—but inconsistent with the rule applied in
seven other circuits—the First, Second, Third, Fourth, Seventh, Eighth, and Ninth. See Pet. at 11-15. Not only does the
decision below underscore a circuit split, but it contradicts
prior decisions of this Court.
1.
The decision below is irreconcilable with this
Court’s decisions that prohibit judicially-created pleading
requirements. The Court has held that Rule 8(a)’s liberal notice pleading standard applies to all civil cases, unless the
Federal Rules or an Act of Congress expressly provide otherwise. In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), and
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Court
prohibited federal courts from imposing pleading standards
that are not explicitly authorized by the Federal Rules. With
respect to actions governed by the PLRA, neither the Federal
Rules nor the PLRA impose any pleading requirement, much

10
less the heightened pleading standard of the court below.
Thus, seven circuits have appropriately held that exhaustion
under the PLRA is an affirmative defense to be raised by the
defendants, not a pleading requirement. By requiring plaintiff prisoners to satisfy a heightened pleading standard in
PLRA actions notwithstanding the lack of statutory authority,
the Sixth Circuit disregarded this Court’s clear precedent.
In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, the Court reversed the Fifth
Circuit’s imposition of a more demanding pleading standard
in actions alleging municipal liability under 42 U.S.C.
§ 1983. Id. at 167. The Court explained that while “the Federal Rules do address in Rule 9(b) the question of the need
for greater particularity in pleading certain actions, [they] do
not include among the enumerated actions any reference to
complaints alleging municipal liability under § 1983.” Id. at
168. As a result, this Court unanimously held that Rule
8(a)’s notice pleading standard alone governs such complaints, and vacated the Fifth Circuit’s decision. Ibid.
The Court reiterated this rule in Swierkiewicz v. Sorema
N.A., in which it also rejected a heightened pleading requirement for employment discrimination complaints brought under Title VII. 534 U.S. at 508. The Second Circuit held that
those complaints must contain specific facts establishing a
prima facie case of discrimination under the framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Swierkiewicz v. Sorema, N.A., 5 Fed. Appx. 63,
65 (2d Cir. 2001). This Court reversed the Second Circuit’s
decision, in part because the judicially-created heightened
pleading standard conflicted with Rule 8(a). Id. at 512. Referring to Leatherman, Justice Thomas wrote for a unanimous Court:
Rule 8(a)’s simplified pleading standard applies to
all civil actions, with limited exceptions. Rule

11
9(b), for example, provides for greater particularity in all averments of fraud or mistake. This
Court, however, has declined to extend such exceptions to other contexts. . . . Just as Rule 9(b)
makes no mention of municipal liability under . . . 42 U.S.C. § 1983, neither does it refer to
employment discrimination. Thus, complaints in
these cases, as in most others, must satisfy only
the simple requirements of Rule 8(a).
Id. at 513 (footnotes omitted). The Court concluded that a
requirement of greater specificity for pleading a particular
claim could not be judicially created, but would require an
amendment to the Federal Rules of Civil Procedure. Id. at
515 (citing Leatherman, 507 U.S. at 168).
Just as Rule 9(b) makes no mention of municipal liability actions under 42 U.S.C. § 1983 (Leatherman) or of employment discrimination actions (Swierkiewicz), it makes no
mention of actions brought under the PLRA. But despite this
Court’s clear holdings, the Sixth, Tenth and Eleventh Circuits have imposed a heightened pleading standard in PLRA
actions that directly conflicts with this Court’s decisions in
Leatherman and Swierkiewicz. In these circuits, plaintiff
prisoners bringing PLRA actions must specifically allege that
they have exhausted all available state administrative remedies. See Baxter v. Rose, 305 F.3d 486, 489-90 (6th Cir.
2002); Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.
2000); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.
1998); Steele v. Bureau of Prisons, 355 F.3d 1204, 1209-10
(10th Cir. 2003); Rivera v. Allin, 144 F.3d 719, 731 (11th
Cir. 1998). Following Sixth Circuit precedent, the court below affirmed the district court’s dismissal of Petitioner’s
complaint without leave to amend for failure “to comply with
the exhaustion requirement.” Pet. App. 3a.

12
The Sixth and Tenth Circuits’ attempts at distinguishing this Court’s decision in Swierkiewicz are unpersuasive.
Both courts have asserted that their adopted pleading standard “do[es] not amount to a judicially-created heightened
pleading requirement” (Steele, 355 F.3d at 1210; see Baxter,
305 F.3d at 490), but rather that it is “Congress, not [the]
court, [that] has required a prisoner to plead specific exhaustion information.” Steele, 355 F.3d at 1211.
Congress, however, has not imposed any such pleading
requirement. Rather, what Congress has imposed is simply
an exhaustion requirement. Section 1997e(a) of the PLRA
simply provides that “[n]o action shall be brought . . . until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). Similar mandatory language is used in
statutes of limitations, for example, but a plaintiff is not required affirmatively to allege that his or her filing falls within
the period of an applicable statute of limitations. Rather, a
statute of limitations defense is indisputably an affirmative
defense under Rule 8(c). See Fed. R. Civ. P. 8(c). Thus, imposition of a pleading requirement on the prisoner plaintiff
does not necessarily follow from the mandatory language.
Absent express congressional instruction, imposition of such
a pleading standard contradicts this Court’s decision in
Swierkiewicz. Both the Third and Ninth Circuits have recognized as much. See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir.
2002); Wyatt v. Terhune, 315 F.3d 1108, 1118 (9th Cir.
2003). In Wyatt, for example, the Ninth Circuit opined:
[A]s the Supreme Court recently affirmed, we will
not impose heightened pleading requirements
where Congress has not expressly instructed us to
do so. See Swierkiewicz v. Sorema, 534 U.S. 506
(2002) . . . . We do not discern in § 1997e(a) the
kind of express congressional command referred
to in Swierkiewicz and exemplified by Rule 9(b).
Legislatures know how to indicate that exhaustion

13
is a pleading requirement when they want to. [Citation.] The PLRA, of course, contains no such
command. [Citation.]
315 F.3d at 1118 (citations omitted).
The Sixth, Tenth and Eleventh Circuits’ departure from
established law is heightened by the additional requirement,
imposed by at least two of these circuits, that plaintiff prisoners “attach[] a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding
and its outcome.” Knuckles El, 215 F.3d at 642 (citing
Brown, 139 F.3d at 1104); see Steele, 305 F.3d at 1210 (quoting ibid.). Here, following Knuckles El, the court below affirmed the district court’s dismissal of petitioner’s complaint
because petitioner “neither attached the grievance forms to
his complaint nor described the remedies he pursued and the
outcome.” Pet. App. 2a-3a. Yet nowhere in the Federal
Rules or in the PLRA is it contemplated that prisoners be required to attach evidence to their complaints. The requirement, too, amounts to a judicially created pleading hurdle, in
contradiction of previous decisions of this Court. See
Leatherman, 507 U.S. 163; Swierkiewicz, 534 U.S. 506; see
also Crawford-El v. Britton, 523 U.S. 574, 596 (1998) (criticizing “the creation of new rules by federal judges” in the
PLRA context).
A heightened pleading standard, when combined with
refusal to grant a prisoner leave to amend a complaint, is antithetical to the policy underlying the PLRA. The legislative
history of the PLRA vividly illustrates the point that the
PLRA was intended to “prevent[]inmates from abusing the
judicial system,” but was not intended “to prevent inmates
from raising legitimate claims.” 141 Cong. Rec. S14611
(1995) (statements of Sen. Hatch). While the heightened
pleading standard may reduce the total number of prisoner

14
lawsuits that are adjudicated in federal court, it is no more
likely to eliminate frivolous suits than to eliminate meritorious ones.
Because the decision below is based on a heightened
pleading standard that contradicts this Court’s decisions, will
cause the dismissal of meritorious lawsuits, and conflicts
with decisions of other circuits, this Court should grant the
petition.
II.

Importing The “Total Exhaustion” Requirement From Habeas Corpus Jurisprudence
Undermines The Purpose Of The PLRA And
Prevents Meritorious Suits From Going Forward

The “total exhaustion” rule applied by the court below
is based on the inappropriate importation of habeas corpus
principles into civil rights litigation. In contrast to the application of the rule in the habeas corpus context, a total exhaustion rule will not advance the purposes underlying the PLRA
or its exhaustion requirement. Further, in light of the statute
of limitations that applies to § 1983 actions, a total exhaustion rule will operate to bar meritorious claims—even those
that have been administratively exhausted.
The circuits are split on the issue of whether the PLRA
prescribes a “total exhaustion” rule, requiring a district court
to dismiss a prisoner’s federal civil rights complaint in its
entirety when the complaint contains one or more claims that
have not been administratively exhausted—despite the presence of other exhausted claims. The Third, Tenth and Sixth
Circuits have adopted a “total exhaustion requirement,” and
the Second, Fifth, Seventh, and now the Ninth Circuits have
rejected this requirement. See Pet. at 18-23; Lira v. Herrera,
---F.3d---, 2005 WL 285015, *9-10 (9th Cir. Nov. 1, 2005).

15
Circuits adopting a total exhaustion rule have expressly
reasoned that this Court’s adoption of a total exhaustion rule
in the habeas corpus context, see Rose v. Lundy, 455 U.S.
509 (1982), justifies the adoption of the same rule in the
PLRA context. See Bey v. Johnson, 407 F.3d 801, 808 (6th
Cir. 2005) (“Because we recognize the correlation between
habeas petitions and § 1983 actions, we find it appropriate to
interpret the PLRA exhaustion requirement in light of habeas
corpus rules.”); Ross v. County of Bernalillo, 365 F.3d 1181,
1189-90 (10th Cir. 2004) (discussing Lundy and adopting the
total exhaustion rule in the PLRA context). Both the Second
and Ninth Circuits have expressly rejected the importation of
the habeas corpus total exhaustion rule into PLRA litigation.
See Lira v. Herrera, ---F.3d---, 2005 WL 285015, *9-10 (9th
Cir. Nov. 1, 2005); Ortiz v. McBride, 380 F.3d 649, 660-62
(2d Cir. 2004).
1. The importation of habeas corpus principles into
the PLRA based on “the correlation between habeas petitions
and § 1983 actions,” see Bey, 407 F.3d at 808, belies the fact
that the distinctions between the two areas of law are important and complex enough to have merited this Court’s attention in no less than four opinions over the preceding seven
years. See Wilkinson v. Dotson, 125 S. Ct. 1242 (2005); Nelson v. Campbell, 541 U.S. 637 (2004); Muhammad v. Close,
540 U.S. 749 (2004); Edwards v. Balisok, 520 U.S. 641
(1997). While the Court has not specifically addressed the
exhaustion requirements in these cases, the Court has suggested that the exhaustion requirements for habeas petitions
are more stringent than the exhaustion requirements for
PLRA actions. See Muhammad, 540 U.S. at 751 (“Federal
petitions for habeas corpus may be granted only after other
avenues of relief have been exhausted. Prisoners suing under
§ 1983, in contrast, generally face a substantially lower gate,
even with the requirement of the Prison Litigation Reform

16
Act of 1995 that administrative opportunities be exhausted
first.”) (citations omitted).
The rationales underlying this Court’s adoption of the
total exhaustion rule for habeas corpus petitions do not apply
to § 1983 actions. In Lundy, the Court explained that the policy underlying the exhaustion requirement in habeas corpus
law is federal-state comity. Lundy, 455 U.S. at 515 (“[A]s a
matter of comity, federal courts should not consider a claim
in a habeas corpus petition until after the state courts have
had an opportunity to act.”). The Court reasoned that “a total
exhaustion rule promotes comity and does not necessarily
impair the prisoner’s right to relief.” Id. at 521. In contrast,
the Court has recognized that challenges to the conditions of
confinement do not raise the same comity concerns as challenges to the fact or duration of confinement raise. See Wilkinson v. Dotson, 125 S. Ct. 1242, 1249 (2005) (rejecting argument that permitting prisoner’s § 1983 lawsuit without
prior exhaustion of state-court remedies would compromise
principles of federal-state comity).
The other rationale for the adoption of the total exhaustion rule in the habeas context was that “federal claims that
have been fully exhausted in state courts will more often be
accompanied by a complete factual record to aid the federal
courts in their review.” Lundy, 455 U.S. at 518-19. In civil
rights cases, there is no analogous requirement that federal
courts defer to the findings or legal conclusions of prison
grievance administrators. Moreover, this Court has previously noted that prison administrative hearings often will not
yield a useful factual record:
The prisoner was to be afforded neither a lawyer
nor an independent nonstaff representative. There
was no right to compel the attendance of witnesses or to cross-examine. There was no right to
discovery. There was no cognizable burden of

17
proof. No verbatim transcript was afforded. Information presented often was hearsay or selfserving. The committee members were not truly
independent. In sum, the members had no identification with the judicial process of the kind and
depth that has occasioned absolute immunity.
Cleavinger v. Saxner, 474 U.S. 193, 206 (1985). Neither of
the rationales underlying a total exhaustion rule in the habeas
context applies in the PLRA context.
2.
In relying on this Court’s reasoning in Lundy, and
adopting a similar total exhaustion rule for PLRA cases, the
Sixth and Tenth Circuits have disregarded another key distinction. Because there was no statute of limitations for the
filing of habeas corpus petitions when Lundy was decided in
1983, the total exhaustion rule did not threaten to extinguish
a prisoner’s right to bring a habeas corpus petition. At most,
it would delay a federal court’s adjudication of a prisoner’s
exhausted claims while the prisoner litigated the unexhausted
claims through the state court system (or, alternatively, filed
a new federal petition containing only the exhausted claims).
In contrast, § 1983 claims are subject to statutes of limitations. See City of Rancho Palos Verdes, California v.
Abrams, 125 S. Ct. 1453, 1460 n. 5 (2005) (“The statute of
limitations for a § 1983 claim is generally the applicable
state-law period for personal-injury torts.”). Thus, the dismissal of an exhausted § 1983 claim, simply because it is
presented along with an unexhausted claim, could effectively
bar a meritorious civil rights claim forever.
The significance of a statute of limitations to the analysis of the total exhaustion rule, though lost on the Sixth and
Tenth Circuits, has not been lost on this Court. In 1996, thirteen years after Lundy was decided, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which
imposed a one-year statute of limitations for federal habeas

18
petitions (which is tolled during the pendency of a state habeas petition). In Rhines v. Weber, 125 S. Ct. 1528 (2005),
the Court examined the habeas “total exhaustion” requirement for the first time since the passage of the AEDPA. The
Court expressly noted the effect of a statute of limitations on
the total exhaustion rule:
As a result of the interplay between AEDPA’s 1year statute of limitations and Lundy’s dismissal
requirement, petitioners who come to federal
court with ‘mixed’ petitions run the risk of forever
losing their opportunity for any federal review of
their unexhausted claims.
Id. at 1533. The Court held that if a prisoner had good cause
for failure to exhaust a potentially meritorious claim, the petitioner’s interest in obtaining federal review of his claims
outweighs the competing interests and it would be an abuse
of discretion to apply the total exhaustion rule and dismiss a
mixed petition. Id. at 1535.
The interplay between the total exhaustion rule applied
in the Sixth and Tenth Circuits and the statute of limitations
applicable to § 1983 claims would have the same results recognized by the Court in Rhines—it would force prisoners to
“run the risk of forever losing their opportunity for any federal review” of their civil rights claims. Rhines, 125 S. Ct. at
1533; see also Herrera, 2005 WL 285015, at *10
(“[D]ismissal of the action for lack of total exhaustion could
result in an inability to pursue the exhausted claim, because
of a statute of limitations barrier or inability to pay a second
filing fee.”).
Even where a dismissal under the total exhaustion rule
would not operate to bar a claim on statute-of-limitations
grounds, it may still jeopardize a prisoner’s ability to pursue
a valid claim because it would require the payment of a sec-

19
ond filing fee. See 28 U.S.C. § 1915(b) (requiring that prisoners proceeding in forma pauperis pay filing fees in installments). Moreover, the dismissal may constitute a
“strike” for purposes of the PLRA’s “three strikes rule,”
which prevents prisoners who have had three actions or appeals dismissed for failure to state a claim, among other reasons, from filing in forma pauperis. 28 U.S.C. § 1915(g)).5
Indeed, the Tenth Circuit, which has adopted a total exhaustion rule, see Ross, 365 F.3d at 1189, has also held that dismissal for failure to exhaust administrative remedies constitutes a “strike” for purposes of § 1915(g)). See Steele, 355
F.3d at 1213; but see Snider v. Melindez, 199 F.3d 108, 111
(2d Cir. 1999) (stating that dismissal for non-exhaustion is
not the kind of dismissal contemplated by § 1915(g)).
Because the decision below is based upon a total exhaustion rule that is not mandated by the language of the
PLRA, does not advance the policies underlying the PLRA,
unduly interferes with a prisoner’s right of access to the federal courts, and conflicts with decisions of other circuits, this
Court should grant the petition.

5 Prisoners who are already subject to the prohibition of

§ 1915(g) will, if indigent, be barred from court entirely if
their properly exhausted claims are dismissed under a total exhaustion rule.

20
CONCLUSION
For the foregoing reasons, and for the reasons stated
in the petition, the Court should grant the petition for a writ
of certiorari.
Respectfully submitted.
GAIL E. LEES
Counsel of Record
GARETH T. EVANS
ERIC R. MAIER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
Counsel for Amici Curiae

November 17, 2005
10907280_6 (3).DOC



 

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