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

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Nos. 05-7058 and 05-7142
IN THE

•••
LORENZO L. JONES,

Petitioner,
-Y.-

BARBARA BOCK,

et al.,
Respondents.

(caption continued on inside front cover)
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES
UNION, ACLU OF MICHIGAN, THE LEGAL AID SOCIETY,
JEROME N. FRANK LEGAL SERVICES ORGANIZATION,
PRISON LEGAL NEWS, PRISON LEGAL SERVICES, PRISON
AND CORRECTIONS SECTION OF THE MICHIGAN STATE
BAR, OHIO JUSTICE & POLICY CENTER AND THE UPTOWN
PEOPLE'S LAW CENTER IN SUPPORT OF PETITIONERS
STEVEN

R. SHAPIRO

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

125 Broad Street
New York, New York 10004

JEFFREY MONKS
MARGARET WINTER

Counsel of Record
ELIZABETH ALEXANDER
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

915 15th Street, NW
Washington, DC 20005

Attorneys for the American Civil Liberties Union
(Counsel continued on inside front cover)

TIMOTHY WILLIAMS,

Petitioner,
-v.WILLIAM OVERTON, et al.,

Respondents.

MICHAEL J. STEINBERG
KARYL. Moss
AMERICAN CIVIL LIBERTIES
UNION FUND OF MICHIGAN
60 West Hancock Street
Detroit, Michigan 48201

(313) 578-6814
JOHN BOSTON
LEGAL AID SOCIETY
199 Water Street
New York, New York 10038
GIOVANNA SHAY
JEROME N. FRANK
LEGAL SERVICES ORGANIZATION
P.O. Box 209090
New Haven, Connecticut 06520

(203) 432-4800
PAUL D. REINGOLD
UNIVERSITY OF MICHIGAN
LAW SCHOOL
363 Legal Research Building
801 Monroe Street
Ann Arbor, Michigan 48109

(734) 763-4319

ALAN MILLS
UPTOWN PEOPLE'S LAW CENTER
4413 North Sheridan
Chicago, Illinois 60640

(773) 769-1411
STEPHEN HANLON
HOLLAND & KNIGHT, LLP
2099 Pennsylvania Avenue, N.W.
Suite 100
Washington, DC 20006

(202) 955-3000
ANTHONY POGORZELSKI
HOLLAND & KNIGHT, LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131

(305) 374-8500
SANDRA GIRARD
PRISON LEGAL SERVICES
OF MICHIGAN
209 East Washington Street
Suite 201
Jackson, Michigan 49201
DAVID A. SINGLETON
OHIO JUSTICE & POLICY CENTER
617 Vine Street, Suite 1309
Cincinnati, Ohio 45202

(513) 421-1108
Attorneys for Amici

TABLE OF CONTENTS

Table of Authorities

iv

INTERESTS OF AMICI CURIAE

1

Summary of the Argument

1

Argument

3

I.

THE SIXTH CIRCUIT'S RULES ARE
SUPPORTED BY NEITHER THE LANGUAGE
OR THE PLRA NOR ITS PURPOSES
A.

B.

The Sixth Circuit Has Invented New
Exhaustion Requirements Without Any
Textual Basis

3

3

The Sixth Circuit's Rules Are Contrary To
The Purposes of the PLRA and Exhaustion in
General.
7
1.

Affording prison officials an
opportunity to resolve problems
internally

7

a.

8

Naming all defendants
1.

Neither Michigan's
nor most states'
grievance procedures
require prisoners to
name potential
defendants in their
grievances

8

11

b.

2.

II.

ii.

Naming potential
defendants is not
necessary to give
prison authorities a fair
and full opportunity to
consider the grievance. 9

111.

Prison grievance
systems are informal
problem-solving
systems and are not
designed to serve as
complete rehearsals for
litigation
14

Pleading with particularity and
total exhaustion
16

Reducing the quantity and improving
the quality of prisoner lawsuits
17
a.

Naming all defendants

18

b.

Total exhaustion

19

c.

Pleading with particularity....... 20

THE SIXTH CIRCUIT'S RULES HAVE CLOSED
THE COURTHOUSE DOORS FOR PRISONERS .... 22
A.

The Sixth Circuit's "Pleading With
Particularity" Requirement Is Unjustifiably
Burdensome And For Many Prisoners An
Insurmountable Obstacle

22

111

B.

A Total Exhaustion Rules Imposes An
Unduly Harsh Penalty For Prisoners'
Ignorance Of Complex Legal Issues
1.

2.

C.

D.

III.

Prisoners cannot reliably predict
whether courts will find their claims
to be exhausted

26

27

Other harsh consequences of the total
exhaustion rule
28

Prisoners Are Unable To Identify All
Potential Defendants Within The Short
Grievance Deadlines

31

The Insidious Interaction Of The Sixth
Circuit's Rules

35

THE COUT MUST EVALUATE ANY
EXHAUSTION REQUIREMENTS FOR
CONSISTENCY WITH 42 U.S.C. § 1983 AND
THE RIGHT OF ACCESS TO THE COURTS

37

A.

The Court Must Interpret The PLRA So As
To Not Conflict With § 1983 And The Right
Of Access To Courts
37

B.

The Right Of Access To Courts And § 1983
Limit Prison Authorities' Discretion In
Imposing Grievance Requirements
39

CONCLUSION

45

APPENDIX
INTERESTS OF AMICI CURIAE

la

iv

TABLE OF AUTHORITIES
Cases

Baldwin v. Reese, 541 U.S. 27 (2004)
Bauer v. Dunn, No. Civ.A.1 :05-CV -P22-R,
2005 WL 2077339 (W.D. Ky. Aug. 29, 2005)
Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002)

9

24
6,20,23

Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002)

24

Beltran v. Q'Mara, 405 F. Supp. 2d 140
(D.N.H. 2005)

30

Bivens v. Six Unknown Agents
ofthe Federal Bureau ofNarcotics,
403 U.S. 388 (1971)

15

Blackmon v. Crawford, 305 F. Supp. 2d 1174
(D. Nev. 2004)

20

Blount v. Fleming, No. 7:04cv00429,
2006 WL 1805853 (W.D. Va. 2006)

44

Booth v. Churner, 532 U.S. 731 (2001)

7,43

Bounds v. Smith, 430 U.S. 817 (1977)
Bowden v. United States, 106 F.3d 433
(D.C. Cir. 1997)

38

5

Braham v. Clancy, 425 F.3d 177 (2d Cir. 2005)

27

Broder v. Correctional Medical Services, Inc.,
No. 03-CV-75106 (E.D. Mich. Sep. 22, 2004)

33

v
Broom v. Engler, No. 4:05-CV-123, 2005
WL 3454657 (W.D. Mich. Dec 16,2005)

28

Brown v. Johnson, 387 F.3d 1344 (lIth Cir. 2004)

25

Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985)
Brown v. Sikes, 212 F.3d 1205
(lIth Cir. 2000)
Brownv. Toombs, 139F.3d 1102 (6thCir. 1998)
Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005)

5

11, 12, 13
5
27

Caico v. McTernan, 156 F. App'x 990 (9th Cir. 2005) ...... 24
Campbell v. Chaves, 402 F. Supp. 2d 1101
(D. Ariz. 2005)

41

Chappell v. McCargar, 152 F. App'x 571
(9th Cir. 2005)

24

Cleavinger v. Saxner, 474 U.S. 193 (1985)
Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995)
Conley v. Gibson, 355 U.S. 41 (1957)

14, 15
34
7,29

Crawford El v. Britton, 523 U.S. 574 (l998)

20,21

Curry v. Scott, 249 F.3d 493 (6th Cir. 2001)

4, 15

Daily v. First Correctional Medical,
No. Civ.A. 03-923-JJF, 2006 WL 1517767
(D. Del. May 30, 2006)
Days v. Johnson, 322 F.3d 863 (5th Cir. 2003)

27
28,30

VI

Dep 't ofCommerce v. us. House ofRepresentatives,
525 U.S. 316 (1999)

5

Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006)

27

Donald v. Cook County Sheriffs Dept., 95 F.3d 548
(7th Cir. 1996)

15

Downey v. Runyon, 160 F.3d 139 (2d Cir. 1998)

5

Edmonds v. Payne, No.3 :04 CV P589 C,
2005 WL 2287006 (W.D. Ky. 2005)

25,26

Ex parte Hull, 312 U.S. 546 (1941)

38, 43

Exxon Mobil Corp v. Allapattah Services, Inc.,
125 S.Ct. 2611 (2005)
Felder v. Casey, 487 U.S. 131 (1988)
Freeman v Berge, No. 03-C-21-C, 2004
WL 1774737 (W.D. Wis. July 28,2004)

4
40

10, 11,45

Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999)

30

Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)

27

Givan v. Greyhound Lines, Inc.,
616 F. Supp. 1223 (S.D. Ohio 1985)

13

Gomez v. USAA Fed Sav. Bank,
171 F.3d 794 (2d Cir. 1999)

25

Gonzalez v. Lantz, No. 303CV2264SRUWIG,
2005 WL 1711968 (D. Conn. July 20,2005)

28

vii
Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978)
Granberry v Greer, 481 U.S. 129 (1987)

39
5

Grayson v. Mayview State Hosp.,
293 F.3d 103 (3d Cir. 2002)

25

Hahn v. Tarnow, No. 5:06CV74, 2006
WL 1705128 (W.D. Mich. June 16,2006)

36

Haines v. Kerner, 404 U.S. 519 (1972)

23

Harris v. Moore, No. 2:04CV00073 AGF,
2005 WL 1876126 (E.D. Mo., Aug. 8,2005)

11

Hattie v. Hallock, 8 F. Supp. 2d 685
(N.D. Ohio 1998)

27

Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004)

27

Hooks v. Rich, No. CV 605-065, 2006 WL 565909
(S.D. Ga. Mar. 7,2006)

passim

Hughes v. Rowe, 449 U.S. 5 (1980)

39

Hunter v. Welborn, 52 F. App'x 277
(7th Cir. 2002)

24

INS v. St. Cyr, 533 U.S. 289 (2001)

38

Jacobs v. Beard, 172 F. App'x 452 (3d Cir. 2006)

24

Jacobs v. City ofChicago, 215 F.3d 758
(7th Cir. 2000)

.25

James v. Kentucky, 466 U.S. 341 (1984)

40

Vlll

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)

10, 27

Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004)

10

Jones Bey v. Johnson,
407 F.3d 801 (6th Cir. 2005)
Kane v. Winn, 319 F. Supp.2d 162 (D. Mass. 2004)
Knuckles El v. Toombs,
215 F.3d 640 (6th Cir. 2000)
Kozohorsky v. Harmon,
332 F.3d 1141 (8th Cir. 2003)
Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit,
507 U.S. 163 (1993)

passim
27

5, 20, 22

33

6

Lewis v. Casey, 518 U.S. 343 (1996)

38

Lira v. Dir. ofCorr. ofState ofCalifornia,
No. COO-905 SI (PR), 2002 WL 1034043
(N.D. Cal. May 17,2002)

32

Lira v. Herrera, 427 F.3d 1164 (9th Cir. 2005)

30

Long v. State ofFlorida,
805 F.2d 1542 (1Ith Cir. 1986)

13

Love v. Pullman, 404 U.S. 522 (1972)

1

Madyun v. Thompson, 657 F.2d 868 (7th Cir. 1981)

39

Martin v. Sizemore, No. Civ.A. 05-CV-1050KKC,
2005 WL 1491210 (E.D. Ky. June 22, 2005)

36

IX

McCarthy v. Madigan, 503 U.S. 140 (1992)

38

McCoy v. Goord, 255 F. Supp. 2d 233 (S.D.N.Y.2003) .... 26
McGore v. Wrigglesworth,
114 F.3d 601 (6thCir.1997)

6,25

Mendez v. Herring, No. 05-1690 PHX/JAT,
2005 WL 3273555 (D. Ariz. Nov. 29, 2005)

28

Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003)

27

Mitchum v. Foster, 407 U.S. 225 (1972)

38

Monell v. Dep't ofSocial Servs. of
City ofNew York, 436 U.S. 658 (1978)

39

Monroe v. Pape, 365 U.S. 167 (1961)

40

Nwozuzu v. Runnels, No. ClV S-05-1938 MCE DAD P,
2006 WL 1897120 (E.D. Cal. July 11,2006)

29

Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000)

28

Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998)
Ortiz v. McBride, 380 F.3d 649
(2d Cir. 2004)

5

4, 25, 28, 30

Osborne v. Coleman, No. 2:00CV801,
2002 WL 32818913 (E.D. Va. Sept. 9,2002)

28

Penrod v. Zavaras, 94 F.3d 1399 (10th Cir. 1996)

24

Perez v. Wisconsin, Dep't ofCorr.,
182 F.3d 532 (7th Cir.1999)

5

x

Pittsburgh & Lake Erie R.R. Co. v.
Railway Labor Executives' Assoc.,
491 U.S. 490 (1989)

37

Planned Parenthood ofSoutheastern Pennsylvania
v.Casey, 505 U.S. 833, 874 (1992)

21

Porter v. Nussle, 534 U.S. 516 (2002)

7,9

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) ......... 3
Randv. Antonini, No. Civ.A 05-CV-70969,
2005 WL 3163390 (E.D. Mich. Nov. 28, 2005) ......... .23
Rayburn v. Sizemore, No. Civ. A 605322DCR,
2005 WL 1593947 (E.D. Ky. July 6, 2005)

36

Rhines v. Weber, 544 U.S. 269 (2005)

30,37

Riccardo v. Rausch,
375 F.3d 521 (7th Cir. 2004)

14,31

Robinson v. Page, 170 F.3d 747 (7th Cir. 1999)

4

Romer v. Evans, 517 U.S. 620 (1996)

21

Rose v. Lundy, 455 U.S. 508 (1982)

30

Ross v. County ofBernalillo,
365 F.3d 1181 (lOthCir. 2004)

3, 14, 16

Rutherford v. Cabiling, No. Civ. OO-CV-2444REBPAC,
2005 WL 2240355 (D. Colo. Sept. 14,2005)
27
Sedima, SP.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985) .... 5

Xl

Shane v. Fauver, 213 F.3d 113 (3d Cir. 2000)

25

Shaw v. Chater, 221 F.3d 126 (2d Cir. 2000)

16

Sims v. Apfel, 530 U.S. 103 (2000)

16, 34

Slack v. McDaniel, 529 U.S. 473 (2000)

17, 36

Smeltzer v. Hook, 235 F. Supp. 2d 736
(W.D. Mich. 2002)

17, 19

Spruill v. Gillis, 372 F.3d 218 (3rd Cir. 2004) ....... 11, 14,40
Stackhouse v. Maricopa County, No. CV 05-0028-PHXDGC(MEA), 2006 WL 2037939
(D. Ariz. July 19,2006)
31
Steele v. Federal Bureau ofPrisons,
355 F.3d 1204 (10th Cir. 2003)

3,23,25,26

Strong v. David, 297 F.3d 646 (7th Cir. 2002) ....... 10,40,41
Sulton v. Wright, 265 F. Supp. 2d 292 (S.D.N.Y. 2003) .... 32
Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002) ....... 6,21
Terrell v. Us. Pipe & Foundry Co.,
644 F.2d 1112 (5th Cir. 1981),
vacated on other grounds,
456 U.S. 955 (1982)

13

Thorton v. Snyder, 428 F.3d 690 (7th Cir. 2005)

27

Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983)

39

XlI

Traini v. Michigan Dep't ofCorr.,
No. S:04-CV-79, 2005 WL 2291214
(W.D. Mich. Sept. 20, 2005)

10, 34

Vandiver v. Martin, 304 F. Supp. 2d 934
(E.D. Mich 2004)

33

Walker v. Bain, 257 F.3d 660 (6th Cir. 2001)

24

Walker v. Page, 66 F. App'x 52 (7th Cir. 2003)

24

Williams v. Kennedy, No. C.A. C-05-411,
2006 WL 18314 (S.D. Tex. Jan. 4, 2006)
Williams v. Runyon, 130 F.3d 568 (3d Cir. 1997)

.28
5

Williamson v. Wexford Health Sources, Inc.,
131 F. Appx. 888 (3d Cir. 2005)

27

Willis v. Smith, No. C04-4012-MWB,
2005 WL 550528 (N.D. Iowa Feb. 28, 2005)

28

Woodford v. Ngo, 126 S. Ct. 2378 (2006)

passim

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

38

Statutes
28 U.S.C. § 1915(b)
28 U.S.c. § 1915(e)(2)
28 U.S.C. § 1915A
42 U.S.C. § 1983

29
6
2, 6

passim

Xlll

42 U.S.C. § 1997e(a)

passim

42 U.S.C. § I997e(c)

4

42 U.S.C. § 2000e et seq. (Title VII)

13

Rules
Fed. R. Civ. P. 8

6

Fed. R. Civ. P. 8(c)

5

Fed. R. Civ. P. I2(b)(6)

25

Fed. R. Civ. P. 15

15

Fed. R. Civ. P. I5(a)
Fed. R. Civ. P. I5(c)(3)
Supreme Court Rule 37.3

6,25
32
1

Grievance Policies and Procedures
* The materials below may be found at
www.law.yale.edu/academics/williamswaltonjones.asp
Ark. Dep't of CoIT. Admin. Dir. 04-01
(Feb. 1, 2004)

13

Cal. Code of Regs., tit. 15, §3084.5(e)(l)
(Dec. 31, 2004)

16

Conn. Dep't of CoIT. Admin. Dir. 9.6.l0.C
(March 5, 2003)

9

XIV

Del. Bureau of Prisons Procedure No. 4.4
(May 15, 1998)

13

Federal Bureau of Prisons Program Statement 1330.13,
(August 6, 2002)

12

Hawaii Dep't of Public Safety Policy No. 493.12.03 (1.0)
(Apri13,1992)
13
20 Ill. Adm. Code 504.810 (1998)

41

20 Ill. Adm. Code 504.8IO(b)(2005)

41

Ind. Dep't ofCorr. Policy No. 00-02-301
(Dec. 1,2005)
Michigan Dep't of COIT. Policy Directive 03.02.130
(Nov. 1,2000)
Michigan Dep't of COIT. Policy Dir. No. 03.02.130
(Dec. 19,2003)
Mississippi Dep't of COIT., Inmate Handbook
(Dec. 8,2005)

9

12

8,43

.41,42

Mississippi Dep't of COIT., Standard Operating Procedure
20-08-01 (July 1, 2003)
41, 42
N.Y. Compo Codes R & Regs., tit. 7, § 701.16 (2005) ...... 9

RI. Code R 06 070 002 (B)(2) (2005)
Rules of the Fla. Dep't ofCorr. 33-103.006(6)
(Feb. 9, 2005)
S. D. Dep't of CoIT. Admin. Remedy for Inmates,
I.3.E (August 22,2005)

9

12

9

xv
Virginia Dep't of Corr., Procedure No. DOP 866,
§ 866-7.15(l)(November 20,1998)

12

Wis. Admin. Code DOC §310.11 (Oct. 2005)

12

Grievances
*The materials below may be found at
www.law.yale.edu/academics/williamswaltonjones.asp
Certificate for Mississippi Grievance No. MSP-04-163 ... .43
Connecticut Grievance No. M1403102

44

Connecticut Grievance No. M141 0378

17

Delaware Grievance No. 11116

.44

Louisiana Grievance No. LSP-2005-1676

.44

Mississippi Grievance No. MSP-03-474

42

Mississippi Grievance No. MSP-03-1313

42

Mississippi Grievance No. MSP-04-163

.42

New York Response from Central Office Review
Committee to Grievance EL-26035-04

13

State of New York Department of Correctional Services,
Inmate Grievance Program Central Office Review
Committee, Grievance No. SHG-21161-04 (January 19,
2005)
12
Texas Grievance No. 200113072

18

Utah Grievance No. 990859363

40

xvi
Other Grievance Materials
*The materials below may be found at
www.law.yale.edu/academics/williamswaltonjones.asp
Letter from Legal Claim Adjudicator (Sept. 9, 2003) ........ 42
Letter from Warden of Dorchester County Detention Center
to ACLU Cooperating Counsel (April 30, 2004)
44
Letter from Wyoming Assistant Attorney General to ACLU
of Wyoming (January 26, 2006)
.23
Memo from Legal Claims Adjudicator
(March 31, 2003)

.42

Other Authorities
Brief for the ACLU as Amicus Curiae Supporting
Respondent in Booth v. Churner,532 U.S. 731
(2001)

44

John Boston, The Prison Litigation Reform Act
(February 27, 2006)

27

Commonwealth of Massachusetts, Governor's Commission
on Corrections Reform, Strengthening Public Safety,
Increasing Accountability, and Instituting Fiscal
Responsibility in the Department of Correction
(June 30, 2004)
15,16, 43
141 Congo Rec. H1472

.21

141 Congo Rec. SI4611.

21

James Gilligan, Violence (Gnosset/Putnam 1996)

37

XVll

Vincent M. Nathan, Evaluation ofthe Inmate
Grievance System, Ohio Department of
Rehabilitation and Correction (Feb. 13 2001)
Texas Dept. of Criminal Justice Offender Grievance
Program pamphlet

14,43

13

U.S. Dept. of Education Office of Education and Research,
Literacy Behind Prison Walls: Profiles of the Adult
Prison Population From the National Adult Literacy
Survey (1994)
38
Lee Williams & Esteban Parra, Delaware's Deadly Prisons:
Odds Against Inmates in Grievances, Delaware News
Journal (Sept. 24 2005)
.44
5B Wright & Miller, Federal Practice & Procedure, §1357
(3d ed. 2004)
29
6 Wright et al., Federal Practice and Procedure,
§ 1474 (2d ed. 1990)

6

1

INTERESTS OF AMICI CURIAE)
The statements of interest of the amici curiae are set
forth in the Appendix.
SUMMARY OF THE ARGUMENT
In these cases, three prisoners presented their claims
at each level of their prison grievance systems, received
final decisions on the merits, and still their claims were
dismissed for failure to exhaust administrative remedies.
The dismissals were based on three Sixth Circuit rulestotal exhaustion, pleading with specificity and naming each
potential defendant in the grievance-that are judicially
imposed, not drafted by state policymakers or prison
officials to make the grievance process more effective or
efficient. Thus, this case is not about deference to the
judgment of prison officials.
Nor is it about deference to Congress. None of the
Sixth Circuit's rules has any textual support in the PLRA
and they do not further any of the purposes of the PLRA or
of exhaustion generally. They neither weed out frivolous
claims nor assist prison administrators in resolving
complaints. Rather, they "serve no purpose other than the
creation of an additional procedural technicality." Love v.
Pullman, 404 U.S. 522, 526 (1972). Further, contrary to the
policy of 42 U.S.C. § 1983 and the right of access to courts,
each of the Sixth Circuit's rules imposes substantial,
arbitrary barriers to meritorious lawsuits.
In Woodford v. Ngo, 126 S.Ct. 2378 (2005), the
Court suggested a standard for evaluating exhaustion
requirements that is appropriate here. First, are they
1 No counsel for any party authored any part of this brief. No persons or
entities other than the amici curiae made any monetary contribution to
the preparation or submission of this brief. Pursuant to Supreme Court
Rule 37.3, copies of letters of consent to the filing of this brief were
lodged with the Court by the parties on March 21 and 23, 2006.

2

necessary to provide prison officials a "fair opportunity" to
resolve problems in their facilities? Id. at 2388. Second, do
they provide prisoners "a meaningful opportunity" to
exhaust their grievances and exercise their right of access to
the courts? Id. at 2392.
Because the Sixth Circuit's rules neither help prison
officials resolve problems nor allow prisoners adequate
opportunity to obtain a ruling on the merits of their federal
claims, the Court should reject each of them and adopt
alternatives that are consistent with both the PLRA and §
1983. With respect to total exhaustion, the Court should
either reject the total exhaustion rule outright or allow
plaintiffs to amend their complaints to delete unexhausted
claims so that district courts may consider the merits of
those claims-and only those claims-that are fully
exhausted. As an alternative to the "name all defendants"
rule, the Court should require prisoners to give
administrators notice of their problems so that the grievance
can be fairly resolved. Finally, the Court should recognize,
as most circuit courts have, that exhaustion of administrative
remedies is an affirmative defense and not part of the
plaintiff s claim. At a minimum, the Court must reject the
Sixth Circuit's unique and unduly punitive ban on
permitting amendment to cure defects in pleading.
If the Court allows these rules to stand, a prisoner's
right to access the courts will be effectively eliminated.
Since the Sixth Circuit's rules were imposed, amici's
research shows that only a tiny handful of prisoners have
survived screening under 28 U.S.C. § 1915A. Congress
could not have intended such a draconian result. "The
exhaustion requirement is a gatekeeper, not a 'gotcha' meant
to trap unsophisticated prisoners who must navigate the
administrative process pro se." Hooks v. Rich, No. CV 605065,2006 WL 565909, *6 (S.D. Ga. Mar. 7,2006).

3

ARGUMENT
I. THE SIXTH CIRCUIT'S RULES ARE SUPPORTED

BY NEITHER THE LANGUAGE OF THE PLRA
NOR ITS PURPOSES.
The Prison Litigation Reform Act provides that
prisoners who wish to bring suit about prison conditions
may do so only after "such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a). This Court
has held that when Congress required exhaustion, it meant
"proper exhaustion ... which 'means using all steps that the
agency holds out, and doing so properly (so that the agency
addresses the issues on the merits)." Woodford v. Ngo, 126
S.Ct. 2378, 2385 (2006) (quoting Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002)).
Each of the three
petitioners did exactly what Woodford requires and obtained
a final decision from the agency that addressed the merits
and did not reject the grievance on any procedural ground.
The PLRA requires no more, and the courts are not
authorized to throw up new obstacles to prisoners' access to
courts as the Sixth Circuit has done in these cases.

A. The Sixth Circuit Has
Exhaustion Requirements
Textual Basis

Invented
Without

New
Any

Even courts espousing the rules requmng total
exhaustion, pleading exhaustion with particularity and
naming potential defendants recognize that nothing in the
language of the PLRA mandates them. E.g., Ross v. County
of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004) (stating
that language of PLRA only "suggests" a total exhaustion
requirement); Steele v. Federal Bureau ofPrisons, 355 F.3d
1204, 1207 (10th Cir. 2003) (noting that pleading burden is
not "directly addressed" in PLRA). With respect to the
"name all defendants" rule, the PLRA places no content or

4

specificity requirements on grievances, much less requires
that all potential defendants be named in a grievance. The
Sixth Circuit has not even attempted to rely on statutory text
to support its holding on this issue, instead citing the general
purposes of the PLRA. See Curry v. Scott, 249 F.3d 493,
505 (6th Cir. 2001).
As to the rules requiring pleading with particularity
and total exhaustion, the relationship between the language
of the statute and the Sixth Circuit's conclusions is simply
too tenuous and requires too many dubious inferences about
Congressional intent to be considered a reasonable exercise
in statutory interpretation.
With respect to the total
exhaustion rule, the Sixth Circuit relied heavily on 42
U.S.C. § 1997e(a), which states that no "action" relating to
prison conditions may be "brought" before the prisoner
exhausts her available administrative remedies. Jones Bey
v. Johnson, 407 F.3d 801, 807 (6th Cir. 2005). But the
reliance on this provision is misplaced. No one disputes that
a partially exhausted "action" does not comply with the
statute. The question is what to do about it. The command
"to kill it rather than to cure it," Ortiz v. McBride, 380 F.3d
649, 657 (2d Cir. 2004), reflects an inferential non sequitur
that is without support in the statutory language. If
Congress had intended a total exhaustion rule, one would
expect to find it in the provision governing dismissals, 42
U.S.C. § 1997e(c), but that section is silent on this issue.
Ortiz, 380 F.3d at 657. Without an express command from
Congress, courts should adhere to the "fundamental
procedural norm," Robinson v. Page, 170 F.3d 747, 748-49
(7th Cir. 1999), that bad claims are dismissed but others are
not. Cf Exxon Mobil Corp. v. Allapattah Services, Inc., 125
S.Ct. 2611, 2621 (2005) (rejecting "indivisibility" and
"contamination" theories, under which jurisdictional defect
for one claim or defendant would require entire action to be
dismissed).
With respect to its heightened pleading burdens, the
Sixth Circuit has merely stated that requiring prisoners to

5

plead exhaustion with particularity will help "effectuate" the
exhaustion requirement of 42 U.S.C. § 1997e(a). Knuckles
El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000).2 But
courts are not empowered to impose any extra-statutory
requirement they believe somehow advances a statutory
purpose; otherwise there would be no limit to the judicial
gloss that they could place on a statute. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998)
("[I]t is ultimately the provisions of our laws rather than the
principal concerns of our legislators by which we are
governed."); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S.
479, 495 n.B (1985) ("[C]ongressional silence, no matter
how 'clanging,' cannot override the words of the statute.").
Because the statute is silent on pleading issues, courts
should presume that Congress intended that exhaustion
under the PLRA would be pled in the same way as
exhaustion in other contexts-as an affirmative defense.
See Dep 't of Commerce v. us. House of Representatives,
525 U.S. 316,343 (1999) (stating that where Congress is
silent, courts should not infer "significant change[s]" in
law)."
2 The Sixth Circuit has also cited Congress' decision to make exhaustion
mandatory rather than discretionary, Brown v. Toombs, 139 F.3d 1102,
1104 (6th Cir. 1998), but has failed to explain how this fact sheds any
light on the proper allocation of pleading burdens. All affirmative
defenses are "mandatory" in that the plaintiff cannot prevail if the
defendant establishes them. Exhaustion is no different from a statute of
limitations, which also requires plaintiffs to meet a condition before
filing. Yet the burden to plead and prove the failure to satisfy a
limitation period is generally placed on the defendant. Fed. R. Civ. P.
8(c). See also Perez v. Wisconsin, Dep't of Corr., 182 F.3d 532, 536
(7th Cir. 1999) (likening exhaustion under PLRA to statute of
limitations).
3 For other contexts in which exhaustion of administrative remedies is a
defense, see, e.g., Granberry v. Greer, 481 U.S. 129, 132 n.5 (1987);
Downey v. Runyon, 160 F.3d 139, 146 (2d Cir, 1998); Williams v.
Runyon, 130 F.3d 568, 573 (3d Cir. 1997); Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997); Brown v. Marsh, 777 F.2d 8, 13 (D.C.
Cir. 1985).

6

However, even if exhaustion is a pleading
requirement for the plaintiff, there is no textual justification
in the PLRA for overriding Fed. R. Civ. P. 8, which requires
only notice of the claim, not the detailed allegations or
document attachments required by the Sixth Circuit.
Swierkiewicz v. Sorema NA., 534 U.S. 506, 511-12 (2002);
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163,168 (1993). In Baxter v.
Rose, 305 F.3d 486, 489-90 (6th Cir. 2002), the Sixth
Circuit belatedly insisted that its heightened pleading
standards did not violate Rule 8 because the court's
authority came from the PLRA's screening provision, 28
U.S.c. § 1915A. In essence, the Sixth Circuit has said that
Congress repealed Rule 8 as it applies to prisoners in the
context of exhaustion. But the PLRA does not say that.
Rather, § 1915A changes only the timing for evaluating a
complaint; nothing in those sections purports to change the
pleading requirements for surviving that evaluation.
The Sixth Circuit's rules violate the federal rules in
another way as well, by prohibiting prisoners from curing a
pleading defect related to the court's heightened
requirements for pleading exhaustion. See Fed. R. Civ. P.
15(a); 6 Charles Alan Wright, et aI., Federal Practice and
Procedure § 1474 (2d ed. 1990) ("Perhaps the most
common use of Rule 15(a) is by a party seeking to amend in
order to cure a defective pleading.")." Thus, the Sixth
4 The only authority relied upon by the court of appeals in enforcing the
"no amendment" rule in Baxter was McGore v. Wrigglesworth, 114
F.3d 601,612 (6th Cir. 1997), which held without explanation that 28
U.S.C. § 1915(e)(2) prohibited district courts from allowing prisoner
plaintiffs to amend their complaints to cure substantive deficiencies in
the complaint. It appears that the court has assumed that the authority to
dismiss a complaint sua sponte carries with it a prohibition on allowing a
plaintiff to fix defects. But the court provides no authority for this
assumption and it is inconsistent with basic fairness and common sense.
Where a plaintiff is provided no notice or opportunity to be heard before
his complaint is subject to dismissal, it becomes more not less
imperative to provide the plaintiff with a second chance. And again,

7

Circuit has forgotten what this Court made clear nearly 50
years ago: "The Federal Rules reject the approach that
pleading is a game of skill in which one misstep ... may be
decisive to the outcome and accept the principle that the
purpose of pleading is to facilitate a proper decision on the
merits." Conley v. Gibson, 355 U.S. 41, 48 (1957).
Generally, the Sixth Circuit's rules reflect not what
the PLRA says, but what the court believes the statute
should say. But courts may not invent requirements or
limitations not included in the text of the statute, even if
they believe that doing so is consistent with legislative
intent. Congress enacts statutes, not purposes, and the Sixth
Circuit's rules far outrun the statute it purports to apply.
B. The Sixth Circuit's Rules Are Contrary to the
Purposes of the PLRA and Exhaustion in
General

The purposes of the PLRA's exhaustion requirement
can be essentially reduced to two: (l) reducing frivolous
litigation; and (2) providing prison authorities with the
opportunity to resolve problems prior to court intervention.
Porter v. Nussle, 534 U.S. 516, 524-25 (2002); Booth v.
Churner, 532 U.S. 731, 737 (2001). The Sixth Circuit's
rules do not further either of these goals and, in some
respects, are likely to frustrate them.
1. Affording
opportunity
internally

prison
officials
an
to resolve problems

In Woodford, 126 S.Ct. at 2385, the Court
emphasized that a primary goal of the PLRA is to give
because this is such a fundamental change in the normal rules of
procedure, one would expect that Congress would have made such a
change explicit. Not surprisingly, no other circuit has adopted this view.

8
prison administrators "a fair and full opportunity" to
consider the grievance. None of the Sixth Circuit's rules
implicates this concern because they are all judicial
creations, not "critical procedural rules" of the prison. Id. at
2386.

a. Naming all defendants
i. Neither Michigan's nor most
states'
grievance
procedures
require prisoners to name potential
defendants in their grievances.
The most obvious reason why a "name all defendants"
rule is inappropriate in this case is that the Michigan
grievance procedures at issue did not require or even ask
that the prisoners provide this information in their grievance.
A command to exhaust administrative remedies cannot be
read to require more than the remedy itself requires. Neither
the Michigan policy nor the form provided anticipates that a
prisoner will file a grievance "against" a particular
individual. Rather, the policy instructs prisoners to limit the
information provided "to the issue being grieved." lA.,
Vol. I, at 148 (emphasis added). See also lA., Vol. I, at 1,
9, 20 ("be brief and concise in describing your grievance
issue,,).5 This is consistent with the vast majority of other
state policies, including Sixth Circuit states Ohio, Kentucky
and Tennessee, as well as the Federal Bureau of Prisons,

After the events relevant to this case, Michigan amended its policy to
state, "[d]ates, times, places and names of all those involved in the issue
being grieved are to be included" in the grievance. Michigan Dep't of
Corr. Policy Dir. No. 03.02.130 (December 19,2003). That revised
policy is not at issue in this case. Even ifit were, however, amici argue
that it could not be enforced in these cases. See discussion infra at 4445.
5

9
which also lack any requirement to identify potential
defendants in a grievance. 6
ii, Naming potential defendants is

not necessary to give prison
authorities
a fair and full
consider
opportunity
to
the
grievance.
The "name all defendants" rule fundamentally
misses the point of PLRA exhaustion, which is to "afford[]
corrections officials time and opportunity to address
complaints internally before allowing the initiation of a
federal case," Porter, 534 U.S. at 524-25 (emphasis added),
or as the Court stated more recently, to "provide[] prisons
with a fair opportunity to correct their own errors."
Woodford 126 S.Ct. at 2387-88 (emphasis added). Cf
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (holding that
federal habeas claims are exhausted if they were "fairly
present[ed]" to state courts).
For this purpose, "it is not notice to individual actors
that is important [in a grievance] but notice to the prison
Amici reviewed and collected grievance policies for nearly all states as
well as the BOP. A complete list of all policies reviewed and links to
the
policies
themselves
are
available
at
http://www.law.yale.edulacademics/williamswaltonjones.asp. Because
prison and jail grievance policies sometimes are not published in a
readily available form, and because in some jurisdictions they may be
revised frequently, amici do not represent that these policies are the most
current.
Generally, prison grievance procedures require only a short and
plain statement of a prisoner's complaint. See, e.g., Conn. Dep't of
Corr. Admin. Dir. 9.6.1O.C (March 5, 2003); Ind. Dep't of Corr. Policy
No. 00-02-301 at 16 (December I, 2005); R.I. Code R. 06 070 002
(B)(2) (2005); S.D. Dep't of Corr. Admin. Remedy for Inmates, 1.3.E.2
at 4 (August 22, 2005). Some policies explicitly instruct inmates to state
their complaints briefly and avoid surplusage. See, e.g., N.Y. Compo
Codes R. & Regs. tit. 7, § 701.16 (2005).
6

10
administration. The purpose of administrative exhaustion is
not to protect the rights of officers, but to give prison
officials a chance to resolve the complaint without judicial
intervention." Freeman v Berge, No. 03-C-21-C, 2004 WL
1774737, at *3 (W.D. Wis. July 28,2004); see also Johnson
v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004). Thus, so
long as prisoners sufficiently identify the problem they are
experiencing in their grievance, prison authorities will have
a fair and full opportunity to act on the grievance.i
This view is supported by the fact, noted above, that
most grievance procedures do not require prisoners to name
staff members. If this information were as necessary as the
Sixth Circuit suggests, prison policies would so prescribe.
There are several good reasons why they do not.
First, the prisoner's identification of staff members is
often beside the point, as when a grievance challenges a
prison policy. For example, if a prisoner complains that
letters from his family are being censored because they are
written in a foreign language, and the basis for the
censorship is a state-wide policy, see Traini v. Michigan
Dep't ofCorr., No. S:04-CV-179, 2005 WL 2291214 (W.D.
Mich. Sept. 20, 2005), whether or not the prisoner identifies
the right policymakers will have no effect on the course of
the investigation or consideration of the complaint. The
same is true of many grievances challenging specific actions
by prison staff.

E.g., Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004) ("a
grievance should be considered sufficient to the extent that the grievance
gives officials a fair opportunity to address the problem that will later
form the basis of the lawsuit") (emphasis added); Johnson v. Testman,
380 F.3d 691, 697 (2d Cir. 2004) ("inmates must provide enough
information about the conduct of which they complain to allow prison
officials to take appropriate responsive measures") (emphasis added);
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) ("All the grievance
need do is object intelligibly to some asserted shortcoming.") (emphasis
added).
7

11
Thus, Petitioner Williams did not name in his
grievance the officials he later sued, but he did clearly
identify the relevant problem, as was conceded by the
defendants in the district court. l.A., Vol. I, at 83. Williams
grieved that he was not receiving adequate medical care for
his pain. Not surprisingly, the grievance examiners never
stated that they needed Williams to identify the health unit
manager or warden, who were later named as defendants, in
order to evaluate whether they believed Williams was
receiving sufficient care. l.A., Vol. II, at 9, 15, 17.8
Second, prison officials will rarely rely on the
prisoner's identification of responsible staff members even
when it might be relevant. Prison officials are in a much
better position than prisoners to identify correctly the staff
members responsible for a particular act or omission. Thus,
in Petitioner Walton's case, the Level 1 grievance examiner
explained that Walton had named the wrong person in his
grievance. l.A., Vol. II, at 66. Even if the Michigan
procedures did require prisoners to name potential
defendants in their grievances, where these defendants are
identified during the grievance process, there is no sensible
rationale for a district court to reject a complaint on the
ground that the identities of those defendants were omitted
from the grievance itself. Spruill v. Gillis, 372 F.3d 218,
234 (3d Cir. 2004) ("the prison can excuse an inmate's
failure to [name someone in his grievance] by identifying
the unidentified persons and acknowledging that they were
fairly within the compass of the prisoner's grievance")."
8 For cases in which the court concluded that policy makers did not have
to be named in the grievance, see Brown v. Sikes, 212 F.3d 1205, 1209
(lIth Cir. 2000); Hooks, 2006 WL 565909, *6; Harris v. Moore, No.
2:04CV00073 AGF, 2005 WL 1876126, at *2 (E.D. Mo. Aug. 8,2005);
Freeman, 2004 WL 1774737, at *3.
9 The court of appeals faulted Walton for failing to file a new grievance
once he learned that other prison officials were involved. lA., Vol. I, at
173. However, the court failed to point to any provision in the Michigan
grievance procedures that would have directed Walton to take this

12
For obvious reasons, prison officials do not decide
grievances based solely on the prisoner's characterization of
who is responsible for the problem. Grievance policies
overwhelmingly provide for investigation of prisoners'
complaints.l" In fact, the Virginia policy that amici
reviewed states that the Level I Warden or Superintendant
response should include "the facts (who, what, when, where,
why)," emphasizing the role of corrections officials in
factual investigations. 11 In responding to one grievance, the
highest reviewing authority for the New York Department
of Correctional Services stated that "the names of staff are
irrelevant. Staff were easily identifiable at the time of
incident." State of New York Department of Correctional
Services, Inmate Grievance Program Central Office Review
Committee, Grievance No. SHG-21161-04 (January 19,
2005) (emphasis added) ("New York Sample Grievance 2"),
available
at
http://www.law.yale.edu/academics/williamswaltonjones.as
p. The nearly universal provision for investigation reflects
the reality that it is generally much easier for prison
authorities to investigate than prisoners, as well as more
appropriate for security reasons. See Brown v. Sikes, 212
course of action. In fact, it is quite possible that a new grievance raising
the same issue would have been rejected as duplicative, Michigan Dept
of Corrections Policy Directive 03.02.130, at G.1 (Nov. 1, 2000), or
untimely, id. at G.3. In any event, filing an entirely new grievance
simply to name a new individual who had already been identified by the
prison would be completely wasteful, accomplishing nothing but to slow
down the process and create more paper. Hooks, 2006 WL 565909, at
*5 ("requiring an inmate to file additional grievances concerning
essentially the same facts whenever he discovers additional information
would harm the efficiency and the finality of the grievance process").
10
See, e.g., Federal Bureau of Prisons Program Statement
1330.13(5)(a)(3) (Aug. 6, 2002); Rules of the Fla. Dep't of Corr. 33103.006(6) (Feb. 9, 2005); Wis. Admin. Code DOC § 310.11 (Oct.
2005).
11 Virginia Dep't of Corr., Procedure No. DOP 866, § 866-7.15(1)
(November 20, 1998).

13

F.3d 1205, 1209 (lith Cir. 2000)Y Further, a "name all
potential defendants" rule could have significant adverse
consequences for prison grievance systems. Encouraging
prisoners to list on their grievances every corrections official
and staff member whom they might ultimately wish to sue
would result in grievances that were more complex and
difficult to understand, reducing the efficiency of the
system, and also reducing the actual notice function of the
grievance system by burying the key information in a mass
of speculative allegations included only from a perceived
need to protect litigation options.
Worse, requiring prisoners to name names in all
cases will serve to make grievance systems more
adversarial. Many grievance policies expressly state that
their purpose is to resolve problems, foster communication
between prisoners and staff and reduce prisoner tension. 13
But a "name all defendants" rule threatens to tum a
problem-solving process into a blame-fixing process, which
12 In the context of Title VII, which does require plaintiffs to name all
potential defendants in the EEOC charge, courts similarly allow
plaintiffs to sue defendants not named in the charge so long as they were
identified during the EEOC investigation. Terrell v. u.s. Pipe &
Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981), vacated on other
grounds, 456 U.S. 955 (1982); see also Long v. State of Florida, 805
F.2d 1542, 1547 (lIth Cir. 1986); Givan v. Greyhound Lines, Inc., 616
F. Supp. 1223, 1227 (S.D. Ohio 1985).
13 See, e.g., Federal Bureau of Prisons Program Statement 1330.13,
II.b.3 (Aug. 6, 2002) (stating that purpose of grievance system is to
"solve problems"); Ark. Dep't of Corr. Admin. Dir. 04-01 (III.F) (Feb.
1,2004) (referring to grievance examiners as "problem-solv[ers]"); Del.
Bureau of Prisons Procedure No. 4.4 (II) (May 15,1998); Haw. Dep't of
Public Safety Policy No. 493.12.03 (1.0) (April 3, 1992); Texas Dep't of
Criminal Justice Offender Grievance Program pamphlet, available at
www.tdcj.state.tx.us/publications/admin-rvw/publications-admin-rvwoffender-grievance.htm. Prison authorities affirmatively deny that the
grievance system is adversarial in nature. See, e.g., N.Y. Response from
Central Office Review Committee to Grievance EL-26035-04 ("New
York Sample Grievance 1") ("the grievance program is not intended to
support an adversary process").

14
will likely encourage hostility between prisoners and staff
and reduce the likelihood of fair consideration of prisoners'
complaints. Cf Cleavinger v. Saxner, 474 U.S. 193, 204
(1985) (noting that prison disciplinary hearing officers "are
under obvious pressure to resolve a disciplinary dispute in
favor of the institution and their fellow employee"). 14
The needlessness of requiring prisoners to name
potential defendants in grievances is shown especially when,
as in the present cases, prison authorities accept the
grievance and resolve it on the merits. If it is the judgment
of prison officials that the grievance provided sufficient
notice, "the federal judiciary will not second-guess that
action, for the grievance has served its function of alerting
the state and inviting corrective action." Riccardo v. Rausch,
375 F.3d 521, 524 (7th Cir. 2004). See also Spruill, 372
F.3d at 234; Ross, 365 F.3d at 1186. Neither Williams' nor
Walton's grievance was rejected at any level for failing to
provide adequate notice or identify the individuals involved
in the complaint.l" Both were denied on the merits. Thus,
any argument that Petitioners' claims should be rejected
because they were not specific enough has been waived.
iii. Prison grievance systems are
informal problem-solving systems
and are not designed to serve as
complete rehearsals for litigation.

14 As experts on prison management have recognized, "[O]ne of the
relevant gauges of the effectiveness of a grievance system is the extent
to which the participants in the system regard and treat it as
'adversarial.' ... [T]he more 'adversarial' the system is or is perceived
to be, the less likely it is to be or to be perceived as effective." Vincent
M. Nathan, Evaluation of the Inmate Grievance System, Ohio
Department of Rehabilitation and Correction (Feb. 13,2001), available
at http://www .Iaw.yale. edulacademics/wi lIiamswaltonjones. asp.
15 The rule requiring prisoners to name all potential defendants in their
grievances is not at issue in Jones' case.

15
The Sixth Circuit's requirement that prisoners name all
potential defendants in the first step of the grievance process
incorrectly assumes that the grievance process is akin to
litigation and accordingly should be subjected to all of its
formal requirements. E.g., Curry, 249 F.3d at 505 (faulting
prisoner for failing to recognize that claim against different
defendant was based on separate legal theoryj.i" Prison
grievance procedures uniformly omit requirements to
include legal theories in the grievance, and those reviewing
the grievance are unlikely to be trained to assess legal issues
anyway. 17 Most procedurals are informal and include few
of the protections found in litigation. Cf Cleavinger, 474
U.S. at 206 (noting that prison hearings often lack
"procedural safeguards" of more formal proceedings).
They also lack most other features normally associated with
litigation, such as discovery, a hearing and presentation of
16 Even if it were appropriate to impose litigation-style requirements on
grievances, the Sixth Circuit's rules go beyond even those. Although
plaintiffs are generally required to name defendants in their complaints,
"when the substance of a pro se civil rights complaint indicates the
existence of claims against individual officials not specifically named in
the caption of the complaint, the district court must provide the plaintiff
with an opportunity to amend the complaint" and assist the plaintiff in
identifying the proper parties if necessary. Donald v. Cook County
Sheriffs Dep't, 95 F.3d 548, 555 n.3 (7th Cir. 1996) (citing cases from
Fourth, Fifth, Sixth, Seventh, Eighth and Eleventh Circuits); see also
Bivens v. Six Unknown Agents of the Federal Bureau ofNarcotics, 403
U.S. 388, 390 n.2 (1971) (noting district court's order to have complaint
served upon agents described in complaint because plaintiff failed to
name them). Even more generally, under Fed. R. Civ. P. 15, defendants
may be added and dismissed from a complaint as discovery reveals more
about the facts of the case.
17 Commonwealth of Massachusetts,
Governor's Commission on
Corrections Reform, Strengthening Public Safety, Increasing
Accountability, and Instituting Fiscal Responsibility in the Department
of Correction,
at
58
(June
30,
2004),
available
at
http://www.mass.gov/Eeops/docs/eops/GovCommission_Corrections_R
eform.pdf at 58 ("grievance coordinators have little or no training in
due process, mediation or conflict resolution") [hereinafter
Massachusetts Report].

16
evidence. In some cases, there is not even a guarantee that
the grievance will be reviewed by someone other than the
person about whom the prisoner is complaining. 18
In the context of administrative law, content
requirements for exhaustion in part "depen[d] on the degree
to which the analogy to normal adversarial litigation applies
in a particular administrative proceeding." Sims v. Apfel,
530 U.S. 103, 109 (2000) (plurality). Other courts have
recognized that where a proceeding is non-adversarial, the
decision maker has an obligation to flesh out the facts. Shaw
v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (stating that
ALJ must "affirmatively develop the record in light of the
essentially non-adversarial nature of' proceeding) (internal
quotations and brackets omitted).
b. Pleading with particularity
total exhaustion

and

Making prisoners plead exhaustion with particularity
in court does not enhance the prison grievance process,
which is over by the time suit is filed. Rather, the sole
justification for this rule has been as a judicial management
tool.
In Jones Bey, the court stated, "In the PLRA context,
a total exhaustion rule would encourage prisoners to make
full use of inmate grievance procedures and thus give prison
officials the opportunity to resolve prisoner complaints."
407 F.3d at 807 (quoting Ross, 365 F.3d at 1190); see also
id. at 808 ("[S]tate prison systems have a[n] ... interest in
resolving cases involving their own institutions.") The
Sixth Circuit has conflated the rationales of exhaustion
18 See Massachusetts Report at 58 ("grievance coordinators regularly
investigate complaints against their peers, superiors and themselves");
Cal. Code of Regs., tit. 15, §3084.5(e)(l) (December 31, 2004)
("institution heads and regional parole administrators" may "reevaluat]e]
their own decisions" and "shall respond to appeals filed against them
personally").

17
generally and a total exhaustion rule. The question is not
whether prisons have an interest in resolving problems on
their own-no one disputes this-but whether a total
exhaustion rule furthers this interest in any significant way.
Whatever interest the prison has in encouraging prisoners to
use the grievance process is already protected by a rule
requiring courts to dismiss those claims that the prison was
not given the opportunity to review.

2. Reducing the quantity and improving
the quality of prisoner lawsuits
None of the Sixth Circuit's rules is targeted at
frivolous litigation and amici are aware of no court that has
argued seriously to the contrary. Rather, each of them is
more likely to present a "trap [for] the unwary pro se
prisoner," Slack v. McDaniel, 529 U.S. 473, 487 (2000)
(internal quotations omitted), without regard to potential
merit.
Although some courts have suggested that the total
exhaustion requirement deters frivolous suits and improves
the quality of litigation by creating an administrative record,
none has actually explained how the requirement furthers
these goals. See, e.g., Jones Bey, 407 F.3d at 807; Smeltzer
v. Hook, 235 F. Supp. 2d 736, 744-45 (W.D. Mich. 2002).
Even if one assumes that exhaustion documents do provide
helpful information generally, or that exhaustion helps to
weed out claims without merit, these interests are already
served if courts consider only claims that have been fully
exhausted and have generated whatever records the
.
gnevance
process provi'des. 19
19 As a more general matter, the Court should be wary of any
unsupported claims that documents generated during the grievance
process provide any significant benefit during litigation. See Jones Bey,
407 F.3d at 813 (Clay, J., concurring in part and dissenting in part).
Even a cursory glance at the grievance records and forms collected by
amici demonstrates that there is little in them that would aid a court.

18
The Court in Woodford expressed concern that
prisoners, especially those with frivolous or bad faith
claims, may try to deliberately flout procedural
requirements, perhaps so that they can avoid substantive
review of their grievance and conceal its deficiencies.
Woodford, 126 S.Ct. at 2385 & n.l . This concern, however,
has no application to any of the three rules at issue in this
case. Regardless whether a prisoner is required to name
defendants in his grievances, plead exhaustion with
specificity or be subject to a total exhaustion rule, he will
still have to fully exhaust each of his claims before a court
will consider them on the merits.
a. Naming all defendants

There is no benefit for prisoners to gain in purposely
omitting information about staff who might later be subjects
of a lawsuit. In fact, a prisoner who is acting simply out of
malice against a particular officer, see Woodford, 126 S.Ct
at 2385 n.1, is more likely to specifically identify that
officer, if only to request that he or she be disciplined. In
contrast, a prisoner with a legitimate concern that he simply
wants resolved will be more likely to complain about the
problem itself rather than apportion blame to staff members.
Even if a prisoner were purposely trying to suppress
the identity of an officer he intended to sue later, this would
The average grievance "record" consists of no more than a few pages,
and responses to even very serious grievances may be no more than a
few words. See, e.g., Connecticut Grievance No. MI410378
("Connecticut Sample Grievance 3") (prisoner complained that he had
not received adequate mental health treatment; one sentence Level 2
response states: "Adequate mental health care is provided to all inmates
at NCI."); Texas Grievance No. 200113072 (prisoner complained that he
was being continually sexual assaulted by other prisoners; responses at
Levelland Level 2 were each 2 sentences, stating that prisoner had
"insufficient evidence"). For several other sample grievances and
see
responses,
http://www.law.yale.edu/academics/williamswaltonjones.asp.

19
get him nowhere. If he provided enough information in his
grievance to identify the problem, investigation conducted
by the prison administration would reveal who was
involved. See supra at 12-13. If he failed to provide
sufficient notice of the problem, the grievance would either
be rejected by the prison authorities or else later by the
court, because all courts at a minimum require prisoners to
provide fair notice of the problem before presenting the
claim in court.

b. Total exhaustion
The magistrate judge in Walton stated that without a
total exhaustion requirement, "there would be nothing to
deter prisoners from raising unexhausted claims
indiscriminately." l.A., Vol. I, at 161-62, (quoting Smeltzer,
235 F. Supp. 2d at 745). This statement is simply incorrect.
Prisoners have full incentive to exhaust all claims, even
without a total exhaustion rule, because in either case a
prisoner will be barred from having his unexhausted claims
heard on the merits. Prisoners gain nothing by filing
unexhausted claims that will inevitably be dismissed.
Further, any disincentive created by a total
exhaustion requirement is theoretical. As will be discussed
further infra at 26-28, the logic adopted by the magistrate
judge assumes that a pro se prisoner will generally have the
ability to determine on his own which claims are exhausted
and which are not when he is considering whether to include
a particular claim in his lawsuit. Such an assumption is
highly implausible when one considers that even trained
lawyers are often stymied by the enormous body of case law
that has developed around the question of what does and
does not constitute adequate exhaustion. See Blackmon v.
Crawford, 305 F. Supp. 2d 1174, 1180 (D. Nev. 2004)
("such incentives will have little effect because many
prisoners do not understand the exhaustion rule in the first
place.").

20

c. Pleading with particularity
The Sixth Circuit has suggested that putting the
burden on prisoners and requiring them to plead exhaustion
with specificity will prevent them from manipulating liberal
pleading standards to avoid early dismissal of their
unexhausted claims. Baxter, 305 F.3d at 490 ("Courts
would be unable to screen cases effectively if plaintiffs were
able, through ambiguous pleading, to avoid dismissal of
claims on which relief could not be granted."); see also
Knuckles El, 215 F.3d at 642 (stating that pleading
requirement is necessary so that district courts do "not have
to hold time-consuming evidentiary hearings" on
exhaustion).
There are several responses to this. First, the
majority of circuits have not adopted the Sixth Circuit's
pleading requirements and there is no indication that they
are unable to screen cases effectively.
Second, if the justification for imposing heightened
pleading requirements is simply that it makes screening
easier for courts, then there is no principled reason for
limiting these requirements to exhaustion. Of course, courts
in the Sixth Circuit screen prisoner complaints not just for
evaluating compliance with the exhaustion requirement, but
also to determine whether they have stated a violation of
federal law. Under the Sixth Circuit's logic, prisoners
should have the burden to anticipate all possible affirmative
defenses in their complaint and be required to plead all
allegations with particularity, so as to better enable district
courts to weed out meritless claims. However, no court has
suggested that the PLRA imposes such a burden.
Third, courts have no authority to impose heightened
pleading standards simply because they believe it will help
to weed out frivolous claims, Swierkiewicz, 534 U.S. at 51415, even in the context of prisoner litigation. Crawford El v.
Britton, 523 U.S. 574, 585 (1998). In Crawford El, the

21
Court acknowledged arguments in favor of heightened
pleading and proof requirements where public officials'
intent was at issue. Nevertheless, the Court concluded that
it "would stray far from the traditional limits on judicial
authority" to change standards of pleading and proof on the
basis of courts' policy concerns alone. Id at 594. Instead,
"the authority to propose those far-reaching solutions lies
with the Legislative Branch, not with" the Court. Id at 601
(Kennedy, J., concurring).
It might cynically be argued that one of Congress'
purposes was to reduce the amount of prison litigation
generally, without regard to whether or not claims have
merit. Such a claim is belied by the PLRA's legislative
history.i" and is inconsistent with the holdings of this Court.
Woodford, 126 S.Ct. at 2388 (recognizing that PLRA
reduces non-frivolous prisoner filings only "because some
prisoners are successful in the administrative process, and
others are persuaded by the proceedings not to file an action
in federal court"). Further, as argued in Part III, if the
PLRA were simply an expression of ill-will against
prisoners or an attempt to deny prisoners' right to access the
courts, it would not survive even the least demanding
See id. at 2404 (Stevens, J.,
constitutional scrutiny.
dissenting); Romer v. Evans, 517 U.S. 620, 634 (1996);
Planned Parenthood ofSoutheastern Pennsylvania v. Casey,
505 U.S. 833, 874 (1992) (joint opinion) (stating that
purpose of law is valid only if it is "one not designed to
strike at the [constitutional] right itself').
Yet the
devastating effects of the Sixth Circuit rules on prisoner
For example, Representative Canady stated: "These reasonable
requirements will not impede meritorious claims by inmates but will
greatly discourage claims that are without merit." 141 Congo Rec.
H1472, *1480 (discussing exhaustion, screening, and filing fee
provisions of PLRA). Senator Hatch stated: "Indeed, 1 do not want to
prevent inmates from raising legitimate claims." 141 Congo Rec.
S14611, *14626 (introducing an amendment "virtually identical" to the
PLRA).
20

22
claims, completely unrelated to any assessment of their
merits, see infra at 35-37, are indistinguishable from those
of a statute purposefully crafted to keep a disfavored group's
meritorious claims of violation of Federal rights out of
court. Such rules cannot be tolerated in our constitutional
order and should be overturned.

II. THE SIXTH CIRCUIT'S RULES HAVE CLOSED
THE COURTHOUSE DOORS FOR PRISONERS
Each of the Sixth Circuit's three rules guarantees
that many prisoners will never receive a ruling on the merits
of their claims. When these rules are combined, the effect is
devastating, leading to dismissal of nearly all prisoner
complaints at screening.

A. The
Sixth
Circuit's
"Pleading with
Particularity" Requirement Is Unjustifiably
Burdensome and for Many Prisoners an
Insurmountable Obstacle
The Sixth Circuit's rule assessing exhaustion solely
on the basis of the complaint is unrealistic and unfair,
leading to many dismissals of potentially meritorious
claims, as in the present cases. In Jones, for example, where
the plaintiff alleged that he was assigned work that
aggravated his medical condition, he made a good faith
attempt to demonstrate in his complaint that he had
exhausted his administrative remedies by alleging he had
filed Step I, II and III grievances with respect to "each
instant in which Plaintiff is alleging in this Complaint."
lA., Vol. I, at 8-9. He later provided his grievances to the
court and the defendants conceded that that he had
exhausted some of his claims. l.A. Vol. I, at 28-29.
Nevertheless, both the district court and the court of appeals
concluded that it was irrelevant whether the plaintiff
actually had exhausted; all that mattered under Knuckles El

23
and Baxter was that he had failed to sufficiently allege it in
his initial complaint, which, under Sixth Circuit rules, he
was forbidden to amend to cure the defect. This reasoning
is so remote from the language and purpose of § 1997e(a) as
to lack any rational basis.
The Sixth Circuit rule is unfair not only because it
fails to respect the leniency prescribed by this Court for pro
se litigants, see Haines v. Kerner, 404 U.S. 519, 520-21
(1972), but also because it imposes a pleading requirement
much more demanding than is imposed on any other
Indeed, the Sixth Circuit's
category of litigant.
requirements are so far out of line with what is required by
ordinary pleading rules that even prisoners who diligently
study the Rules will not know that they were required to
satisfy the particularity requirement until their complaint has
already been dismissed.
Even for prisoners who know the Sixth Circuit rules,
it is often not as easy as it might appear to comply with this
requirement. The slightest misstep can lead to dismissal.
See Rand v. Antonini, No. Civ.A 05-CV-70969, 2005 WL
3163390 (E.D. Mich. Nov. 28, 2005) (dismissing entire
action because plaintiff had failed to attach one Step 1
response to his complaint, even though he attached appeal
responses and defendants admitted he had "grieved through
Step III"). Further, courts imposing this rule have assumed
without explanation that prisoners will have better access to
exhaustion records than prison officials. Steele, 355 F.3d at
1210. But this assumption is unjustified. Some facilities do
not provide prisoners with copies of their grievances, see
Letter from Wyoming Assistant Attorney General to ACLU
of Wyoming (Jan. 26, 2006) ("AG Letter"), available at
http://www.law.yale.edu/academics/williamswaltonjones.as
p, while prison officials generally maintain these records in
their own files. Even if a prisoner is provided with a copy
initially, this does not mean that she will get to keep it. By
the time the prisoners are ready to file complaints, they may
have lost possession of the grievances as a result of

24
limitations on property, a unit transfer or a cell search durin
which grievances may have been confiscated or destroyed?ff
The Sixth Circuit's pleading and documentation rule
encourages policies and practices that make it difficult for
prisoners to retain their grievances.
Finally, in many cases, the question whether
exhaustion is complete or even required is not one that can
be resolved easily on the basis of the complaint aloneespecially a pro se complaint that the court will not allow to
be amended. As Justice Breyer recognized in Woodford,
126 S.Ct. at 2393, there are many circumstances where a
prisoner does not complete all the steps of a grievance
process but courts nevertheless find that she had exhausted
all available remedies. Thus, whether a prisoner adequately
exhausted will be contingent on the particular facts of each
case, which may be quite complicated. Prisoners will often
have neither the knowledge nor the ability to adequately
explain details in a complaint with sufficient particularity to
show definitively that the circumstances in their case justify
an exception to the rule. See Bauer v. Dunn, No.
Civ.A.l :05-CV-P22-R, 2005 WL 2077339 (W.D. Ky. Aug.
29, 2005) (dismissing for non-exhaustion complaint by
prisoner alleging sexual assault even though documents
attached to complaint suggested that she may not have
grieved out of legitimate fear for her safety). Because of
these complexities, it is generally more appropriate to decide
the issue of exhaustion after the facts have been more fully
Case law and amici's own experience demonstrate that one of the
most common complaints among prisoners is that officers confiscated
necessary legal materials during a cell search, including grievances
needed to show exhaustion. See, e.g., Jacobs v. Beard, 172 F. App'x
452, 455 (3d Cir. 2006); Caico v. McTernan, 156 F. App'x 990, 990
(9th Cir. 2005); Chappell v. McCargar, 152 F. App'x 571, 572 (9th Cir.
2005); Walker v. Page, 66 F. App'x 52, 53-54 (7th Cir. 2003); Hunter v.
Welborn, 52 F. App'x 277, 278 (7th Cir. 2002); Bell v. Johnson, 308
F.3d 594, 597-98 (6th Cir. 2002); Walker v. Bain, 257 F.3d 660, 663-64
(6th Cir. 2001); Penrodv. Zavaras, 94 F.3d 1399,1404 (lOth Cir. 1996).
21

25
developed. See Ortiz, 380 F.3d at 659; Steele, 355 F.3d at
1211. Cf Jacobs v. City ofChicago, 215 F.3d 758, 775 (7th
Cir. 2000) (Easterbrook, J., concurring) ("Rule 12(b)(6) is a
mismatch for immunity and almost always a bad ground for
dismissal ... and when defendants do assert immunity it is
essential to consider facts in addition to those in the
complaint.")
The unfairness of the Sixth Circuit's pleading rule is
compounded by its "no amendment" rule, which is to
amici's knowledge unique in denying any litigant, much less
litigants who are almost all pro se, the benefits of Rule
15(a)'s policy of liberal amendment. Ever~ other court to
consider the question has rejected that view. 2

B. A Total Exhaustion Rule Imposes an Unduly
Harsh Penalty for Prisoners' Ignorance of
Complex Legal Issues
It is the total exhaustion rule that has had the most
pernicious effect on prisoners' ability to seek relief in
federal court, for it means that one small mistake can cost a
prisoner his entire lawsuit. For example, in Edmonds v.
Payne, No. 3:04 CV P589 C, 2005 WL 2287006, *4 (W.D.
Ky. Sep. 16, 2005), a prisoner sued several correctional
officials, mostly for claims relating to failure to treat his
Hepatitis C. The court found that the "plaintiffha[d] availed

See Brown v. Johnson, 387 F.3d 1344, 1348-49 (11th Cir. 2004);
Grayson v. Mayview State Hasp., 293 F.3d 103, 109-14 (3d Cir. 2002);
Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000); Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999). These cases do
not directly address exhaustion; they address the ability of plaintiffs to
amend their complaints when they are found deficient at initial
screening. The Sixth Circuit's contrary holding about the screening
process is the basis for its "no amendment" policy concerning
exhaustion defects as well as other deficiencies in prisoner complaints.
See McGore, 114 F.3d at 612, cited in Baxter, 305 F.3d at 488-89.

22

26
himself of the grievance process on many of his claims," but
noted that he had failed to specifically grieve one of the
defendants' alleged interference with his treatment. Id. at
*5. Although the plaintiff explained that he was unable to
grieve this claim because he was transferred to another
facility, the court faulted him for failing to grieve once he
returned to the previous facility, even if the grievance would
have been untimely at that point. Id. Thus, Edmonds was
denied a decision on the merits for his entire case because he
failed to realize that a court would expect him to file a
grievance that would most likely be rejected as untimely.
1. Prisoners cannot reliably predict
whether courts will find their claims to
be exhausted.

As noted supra at 19, the total exhaustion rule is
claimed to deter prisoners from including unexhausted
claims in their lawsuits. But as the above example shows,
this logic assumes incorrectly that even the most
conscientious prisoner can reliably determine in advance
which of his claims a court will find to be exhausted.
Since its enactment, the PLRA has generated vast
amounts of case law, particularly regarding the exhaustion
requirement, much of it contradictory, ambiguous or turning
on idiosyncratic factual distinctions. See John Boston, The
Prison Litigation Reform Act, 15-137 (Feb. 27, 2006),
available
at
http://www.law.yale.edu/academics/williamswaltonjones.as
p. "Indeed, the law on the narrow subject of the PLRA's
exhaustion requirements continues to evolve month by
month." McCoy v. Goord, 255 F. Supp. 2d 233, 240
(S.D.N.Y. 2003) (footnotes, quotations and brackets
omitted), cited in Steele, 355 F.3d at 1207 n.l .
A Sixth Circuit prisoner considering litigation may
face numerous questions that he must answer without the
assistance of counsel, on penalty of dismissal for the

27
slightest mistake. For example, will he satisfy § 1997e(a) if
he:
(a) filed suit after failing to receive a response to one of his
grievances because the grievance procedures did not inform
him what to do in such a case?23
(b) reasonably believed that the grievance policy did not
allow or require the issue to be exhausted'r'"
(c) failed to complete the grievance process but
circumstances justifying estoppel against the defendants are
present?25
(d) did not appeal the ~rievance because it was resolved
completely in his favor 2 or he was promised some relief,
but not necessarily everything that the prison could have
provided?27
(e) completed the exhaustion process for one grievance
arising out of an ongoing problem (such as medical
treatment for a particular condition or repeated sexual
assaults), but he did not file new grievances after new but
related instances occurred?28
(f) had complained about the same conduct in a disciplinary
appeal but did not file a separate grievance on the issue?29
23 Compare Dole v. Chandler, 438 F.3d 804, 809-10 (7th Cir. 2006)
(yes), with Daily v. First Correctional Medical, No. Civ.A. 03-923-JJF,
2006 WL 1517767, at *2 (D. Del. May 30, 2006) (no).
24 Compare Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004) (yes),
with Steele, 355 F.3d at 1214 (no).
25 Compare Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)
(yes), with Rutherfordv. Cabiling, No. Civ. 00-CV-2444REBPAC, 2005
WL 2240355, at *3 (D. Colo. Sept. 14,2005) (no).
26 Compare Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (yes),
with Williamson v. Wexford Health Sources, Inc., 131 F. App'x. 888,
890 (3d Cir. 2005) (no).
27 Compare Thornton v. Snyder, 428 F.3d 690, 696-97 (7th Cir. 2005)
(yes), with Braham v. Clancy, 425 F.3d 177, 182-83 (2d Cir. 2005) (no).
28 Compare Johnson, 385 F.3d at 521 (yes), with Kane v. Winn, 319 F.
Supp. 2d 162,223 (D. Mass. 2004) (no).
29 Compare Mitchell v. Horn, 318 F.3d 523,531 (3d Cir. 2003) (yes),
with Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998) (no).

28
(g) did not comply with all technical requirements of the
grievance system but comRlied substantially or made
reasonable efforts to comply? 0
(h) failed to exhaust because his ability to do so was
impaired by mental illness, illiteracy, age or disability'/'"
(i) failed to file a grievance because he was threatened with
retaliation?32
G) failed to file a grievance or aPEeal based on information
he relied on from prison officials? 3
Even the courts do not agree on these matters, a
decade after the statute's enactment. If questions regarding
exhaustion are even "challenging for the courts to decide,"
Ortiz, 380 F.3d at 659, how can pro se prisoners reasonably
be expected to predict how a particular judge might rule?
Thus, if a total exhaustion rule has any effect on
prisoners' filing behavior, it will not be to deter filing claims
they know are unexhausted. Rather, more likely it will chill
prisoners from filing claims that are arguably but not clearly
exhausted. Similarly, it will provide an enormous incentive
to prison authorities to make the exhaustion process as
confusing and difficult as possible, because they will know
that any slight misstep could lead to dismissal of all a
prisoner's potential claims.
2. Other harsh consequences of the total
exhaustion rule
Compare Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000) (yes),
with Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (no).
31 Compare Gonzalez v. Lantz, No. 303CV2264SRUWIG, 2005 WL
1711968, at *3 (D. Conn. July 20, 2005) (yes), with Williams v.
Kennedy, No. C.A. C-05-411, 2006 WL 18314, at *2 (S.D. Tex. Jan. 4,
2006)(no).
32 Compare Osborne v. Coleman, No. 2:00CV801, 2002 WL 32818913,
at *4 (E.D. Va. Sept. 9, 2002) (yes), with Broom v. Engler, No. 4:05CV-123, 2005 WL 3454657, at *3 (W.D. Mich. Dec 16,2005) (no).
33 Willis v. Smith, No. C04-4012-MWB, 2005 WL 550528 at *13 (N.D.
Iowa Feb. 28,2005) (yes), Mendez v. Herring, No. 05-1690 PHXlJAT,
2005 WL 3273555, at *2 (D. Ariz. Nov. 29, 2005) (no).

30

29

The Sixth Circuit's total exhaustion rule undermines
this Court's command to construe complaints liberally,
which requires district courts to determine whether any facts
alleged in a complaint state a claim under any legal theory.
See Conley, 355 U.S. at 45-46; 5B Charles Alan Wright &
Arthur Miller, Federal Practice and Procedure, § 1357, at
676 (3d ed. 2004). Of course, the intention of this rule is to
better insure that complaints are not dismissed simply for
technical deficiencies or a plaintiff s unfamiliarity with the
law. The Sixth Circuit, however, has turned the rule on its
head. For if a court construes a complaint liberally and
mistakenly construes as a claim allegations that are present
merely for background or context, it will inevitably lead to
dismissal of the entire lawsuit for failure to adequately
allege exhaustion-a prisoner will not allege he filed
grievances for a "claim" he did not intend to assert."
A prisoner affected by the total exhaustion rule will
also have to pay an additional filing fee, which is currently
$350, to pursue claims that were properly exhausted in the
first place. 35 It scarcely needs to be noted that the vast
majority of prisoners have great difficulty paying one filing
fee, let alone multiple fees for each suit that is dismissed for
a procedural error. If a prisoner tries to complete the
grievance process for any unexhausted claim, she may be

Thus, in Nwozuzu v. Runnels, No. CIV S-05-1938 MCE DAD P, 2006
WL 1897120 (E.D. Cal. July II, 2006), the plaintiff complained of
numerous events and conditions, many of which he had not exhausted,
but he explained in response to a motion to dismiss that they were not
separate claims but constituted factual support for the claims that were
exhausted. Under Sixth Circuit rules, he would not have had an
opportunity to provide this explanation, and his complaint would likely
have been dismissed with no opportunity to amend and clarify it.
35 Even prisoners who are granted leave to proceed in forma pauperis
must still pay the entire filing fee in increments. 28 U.S.C. § 1915(b).

34

30
unable to return to court until after the statute of limitations
has expired."
Of course, after Woodford, there will generally be
little point for prisoners to attempt to complete the grievance
process, since by then any new grievance will be untimely
and the claims will be barred from federal court. Although
prison authorities may consider an untimely grievance on
the merits, common sense and amici's own collective
experience suggest that this is the rare exception rather than
the rule. Prison officials often deny extensions even under
very extenuating circumstances. See, e.g., Days v. Johnson,
322 F.3d 863, 865 (5th Cir. 2003) (describing prison
officials' refusal to grant good cause extension where
prisoner was unable to fill out grievance form because he
broke his writing hand). 37
36 Thus, in practice, the Sixth Circuit's total exhaustion rule is much
harsher than the one this Court has applied in the context of habeas
corpus. A number of courts have explained why habeas provides an
inappropriate analogy for determining whether a total exhaustion rule
should apply to civil rights claims. See, e.g., Lira v. Herrera, 427 F.3d
1164, 1174-75 (9th Cir. 2005); Ortiz, 380 F.3d at 660-62. Even if
habeas did provide an appropriate model, however, there are a number
of factors in the context of habeas cases that significantly soften the
impact of a total exhaustion rule. Most importantly, habeas petitioners
have the option of deleting any unexhausted claims from their petition in
lieu of filing a new one. Rose v. Lundy, 455 U.S. 508, 520 (1982). As
one court has recognized, there is little practical difference between
rejecting a total exhaustion rule outright and allowing the plaintiff to file
an amended complaint. Beltran v. O'Mara, 405 F. Supp. 2d 140, 158
(D.N.H. 2005). Additionally, district courts are now empowered, even
required in some circumstances, to stay a partially exhausted case rather
than dismiss it, and hold the case in abeyance while the prisoner finishes
exhausting. Rhines v. Weber, 544 U.S. 269 (2005). The Sixth Circuit
has not recognized either one of these alternatives to complete dismissal
in cases challenging prison conditions. Freeman v. Francis, 196 F.3d
641 (6th Cir. 1999) (holding that prisoners "may not exhaust
administrative remedies during the pendency of a federal suit").
37 Moreover, when a prisoner is returning to the grievance process after
his claim is dismissed under the total exhaustion rule, officials will have
an additional incentive to reject the grievance as untimely, because they

31
C. Prisoners are unable to identify all potential
defendants within the short grievance
deadlines.

In many cases, prisoners simply cannot comply with a
requirement to name all potential defendants in the initial
grievance. Prisoners often do not know the identities or
even titles of staff involved in an alleged deprivation. A
prisoner could be personally mistreated by a staff member
who was hiding his identity, or whom the prisoner had never
seen before. See, e.g., Stackhouse v. Maricopa County, No.
CV 05-0028-PHX-DGC(MEA), 2006 WL 2037939, at *2
(D. Ariz. July 19, 2006). More often, because prisoners are
so limited in their freedom of movement and ability to
obtain information, they may experience a deprivation
without knowing its source. Importantly, grievance systems
generally lack a mechanism for enabling prisoners to
reliably to identify potential defendants, even if one wanted
to do so. They do not contain provisions for discovery, and
amici did not find any policies that permitted prisoners to
"amend" a grievance so that they could add a name."
When prisoners attempt to identify the responsible person,
they simply have to guess, as in Walton's case, where he
was told by the grievance examiner that he was mistaken

will know that the prisoner intends to take this claim to court and they
now have the authority to prevent him from doing so. Reports to amici
from prisoners in Illinois suggest that has become standard operating
procedure since the Seventh Circuit decided Riccardo, 375 F.3d 521, in
which the court held that prison officials waive the untimeliness of a
grievance if they consider it on the merits. According to prisoners held
in Illinois, since that decision, the department of corrections no longer
makes exceptions for late grievances.
38 Of course, prisoners in many states would likely be permitted to
withdraw their grievance and file a new one with additional information.
However, because grievance deadlines can be as short as a few days, a
prisoner risks having the new grievance rejected as untimely.

32
about the identity of the person who made the decision
about which he was complaining"
A requirement that prisoners learn identities of unknown
potential defendants is particularly unrealistic in view of the
short deadlines of many grievance systems.
After
Woodford, prisoner plaintiffs in the Sixth Circuit face a
classic Catch-22. On the one hand, they must file their
grievance within the time prescribed or face procedural
default. But they must also be able to identify every person
whom they may want to sue later. Few prisoners will be
able to do this in such a short time, so they will have to
choose between losing the right to sue potential defendants
and continuing to investigate while taking the chance that
their grievance will be rejected as untimely.
Most lawyers could not, on a few days' or weeks' notice
and without discovery, identify all the defendants who might
eventually turn out to be liable for the harm caused to a
plaintiff as the result of a constitutional violation. But of
course, lawyers may add new defendants as discovery
reveals new facts, even after the statute of limitations has
run if the plaintiff can satisfy Fed. R. Civ. P. 15(c)(3). In
contrast, in the Sixth Circuit, the universe of potential
defendants is frozen the day a prisoner files a Step I
gnevance.
Second, and closely related, a prisoner may simply be
unaware that a particular official had any involvement in a
constitutional violation. This will often be the case when
the violation is a result of a widespread policy or practice.
39 See also Brown, 212 F.3d at 1208 (concluding that PLRA did not
require prisoner to "provide information he does not have and cannot
reasonably obtain"); Sulton v. Wright, 265 F. Supp. 2d 292, 298
(S.D.N.Y. 2003) (noting pro se prisoners' difficulty in identifying
defendants); Lira v. Dir. a/Carr. a/State a/California, No. COO-90S SI
(PR), 2002 WL 1034043, at *4 (N.D. Cal. May 17,2002) ("[A]n inmate
may not know all the names of the defendants until after he files a civil
action and conducts discovery, in which case, he would have to dismiss
his action and file anew under defendants' reasoning.").

33
In that circumstance, the prisoner may name the lower level
official who was required to enforce the policy or practice,
but he may have no basis for knowing who was ultimately
responsible for the decision. The same is true when the
misconduct of line staff has its roots in the defaults or tacit
authorization of supervisors; a prisoner may not know the
facts or appreciate the complexities of supervisory liability
under 42 U.S.C § 1983 within the short time limit for filing
a grievance. Cf Kozohorsky v. Harmon, 332 F.3d 1141,
1143 (8th Cir. 2003) (holding that a prisoner who grieved
about the officers who abused him, but did not raise in his
grievance claims that their supervisor refused to take action
against the officers, failed to train them and retaliated
against him for his complaints, had not exhausted his claim
against the supervisor).
The injustice of a rule that requires prisoners to name all
potential defendants in their grievances is shown in Broder
v. Corr. Med. Servs., Inc., No. 03-CV-75106 (E.D. Mich.
Sept. 22, 2004), in which the plaintiff filed a § 1983 action
alleging that the defendants failed to timely diagnose and
treat his throat cancer." In his grievances, the plaintiff had
identified at least 37 individual medical providers and
officials, but when he filed his lawsuit, he also named the
corporate entity responsible for providing medical care,
Correctional Medical Services. Although there was no
dispute that Broder had fully identified all of the problems
he was experiencing in his grievances, the district court
nevertheless dismissed CMS because it was not named
separately in the grievances."
This case is not available on Westlaw. However, amici have posted
the
decision
at
http://www.law.yale.edu/academics/williamswaltonjones.asp.
41 See also VanDiver v. Martin, 304 F. Supp. 2d 934, 943-44 (E.D.
Mich. 2004) (finding non-exhaustion on medical claims; although
plaintiff had named individuals in complaint, court found that plaintiff
had not sufficiently named corporate provider where his grievance said
only that provider would be liable ifhis foot was amputated).

40

34
If this Court concludes that all defendants must be
named in a grievance, it will severely impair prisoners'
ability to pursue meritorious challenges to prison policies,
since the decision makers are so often unseen by and
unknown to affected prisoners. It is unrealistic to expect
prisoners to be able to contemplate and investigate the
decision-making hierarchy within a prison, much less figure
it out, within the time prescribed by the rules, when they are
simply trying to use the grievance system to get some relief.
Also, prisoners cannot be expected to have mastered all the
potential theories of personal involvement under § 1983
before filing their level one grievance. See Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (discussing five
theories of personal involvement under § 1983).
As noted supra at 8, there is clearly no basis to impose a
"name all defendants" rule where the prison grievance
system has addressed the merits of the complaint. There is
particularly no basis for a court to impose such a
requirement where the grievance system gave no notice to
prisoners of any such requirement, as is the case here. See
Sims, 530 U.S. at 113 (O'Connor, J., concurring in part and
concurring in the judgment) (concluding that "agency's
failure to notify claimants of an issue exhaustion
requirement" was sufficient basis to reject such
requirement). Further, if prison administrators accept the
grievance and resolve it on the merits, the prisoner will have
no way of knowing she did anything wrong until after her
case is dismissed, when it is too late to cure the defect and
most likely too late to file a new grievance. If the
authorities believe they do not have enough information to
adequately investigate the grievance, it is well within their
authority to either ask the prisoner for more information or
to explicitly reject the grievance and invite the prisoner to
re-file. They should not be permitted to decide a grievance
on the merits and then later assert in court that they actually
needed more information. This would only invite prison
officials to insert highly technical and confusing

35

requirements in their procedures to be invoked in case of
litigation.
D. The Insidious
Circuit's Rules

Interaction

of

the

Sixth

In his dissenting opinion in Jones Bey, 407 F.3d at
814, Judge Clay made a dire prediction: "In practice, the
total exhaustion rule is not only likely to amount to a
monetary penalty, it is also likely to be a convenient means
for district courts to expediently close the courthouse door to
pro se prisoner litigants, without proper regard for the merits
of their claims or consideration of their status." Judge
Clay's prediction has come true. The total exhaustion rule,
in combination with the Sixth Circuit's requirements to
plead exhaustion with specificity and name all potential
defendants in the grievance, has all but eliminated prisoners'
ability to obtain rulings on the merits of their claims.
Of the nearly 500 prisoner screening orders available
on Westlaw from the Sixth Circuit since Jones Bey was
decided, only eighteen allowed the prisoner to proceed.Y Of
these eighteen, eight involved cases in which Jones Bey
required complete dismissal but the district court (Judge
Richard Alan Enslen) refused to follow that case. In five
more cases, the district court either ignored the total
Amici chose the date of the Jones Bey decision to begin tracking
screening orders because, as of that date, all of the Sixth Circuit's rules
at issue in this case were in effect. To generate this result, amici
conducted the following Westlaw search on July 5, 2006, in the database
FED6-ALL, which encompasses all district and appellate cases in the
Sixth Circuit: PLRA "PRISON LITIGATION REFORM ACT" (28 /4
19151) 1997E! & DA(AFTER 4/27/2005). (Amici included appellate
cases for the purpose of evaluating whether any district court decisions
were reversed on appeal.) Amici reviewed all results from this search,
pulling from it all orders screening prisoner complaints under the PLRA.
Excluded from the total were cases in which the court concluded that the
prisoner had improperly filed the lawsuit under § 1983 instead of one of
the habeas corpus statutes.

42

36

exhaustion rule or ignored the question of exhaustion
altogether. Thus, in screening orders where the district court
applied Jones Bey, only five did not result in dismissal ofthe
entire case.43 Of the cases dismissed, more than half were
dismissed for the prisoner's failure to comply with one or
more of the three rules at issue in this case. By comparison,
in the Seventh Circuit, of 25 screening orders available on
Westlaw for June 2006, 12 of them allowed the prisoner to
proceed.
Thus, as Judge Clay feared, the courthouse door is
now effectively closed for all but the savviest prisoners
incarcerated in Ohio, Michigan, Tennessee and Kentucky.
The Sixth Circuit has not adopted reasonable rules that
improve the quality of litigation and help prison authorities
solve problems.
Instead it has imposed a series of
"gotchas," to which nearly all prisoners have fallen victim.
Hooks, 2006 WL 565909, at *5 ("The exhaustion
requirement is a gatekeeper, not a 'gotcha' meant to trap
unsophisticated prisoners who must navigate the
administrative process pro se."). See also Slack, 529 U.S. at
487 (stating that exhaustion should not present a "trap" for
"the unwary pro se prisoner").
This result should trouble anyone who believes that
prisoners should retain an actual as opposed to theoretical
ability to enforce their rights in federal court. It should also
raise alarm for anyone who is concerned about prison
In three of those five cases, the court found that the plaintiff had not
alleged completion of each step of the grievance process, but
nevertheless allowed the case to proceed. See Hahn v. Tarnow, No.
5:06CV74, 2006 WL 1705128, at *2 n.4 (W.O. Mich. June 16, 2006)
(finding that plaintiff failed to complete grievance process, but
concluding that he had no available remedies because plaintiff alleged
he was on "modified grievance access"); Rayburn v. Sizemore, No. Civ.
A 6053220CR, 2005 WL 1593947 (E.O. Ky. July 6, 2005) (finding
failure to exhaust but allowing case to proceed because complaint
contained allegations suggesting estoppel); Martin v. Sizemore, No.
Civ.A. 05-CV-1050KKC, 2005 WL 1491210 (E.O. Ky. June 22, 2005)
(same).

43

37

security. It is hardly surprising that social scientists have
found that a primary cause of violence is a feeling that
peaceful methods of resolving disputes are not available.
James Gilligan, Violence 112 (1996). If prisoners believe
that they will not receive a hearing on their claims in court,
this can increase a sense of injustice and frustration, creating
a heightened risk for violent confrontations with both staff
and other prisoners.
III. THE
COURT
MUST
EVALUATE
ANY
EXHAUSTION
REQUIREMENTS
FOR
CONSISTENCY WITH 42 U.S.C. § 1983 AND THE
RIGHT OF ACCESS TO THE COURTS
A. The Court Must Interpret the PLRA So As Not to
Conflict with § 1983 and the Right of Access to
Courts
Although interests in reducing frivolous litigation
and protecting agency autonomy are undoubtedly important,
they are not the only interests to be considered in
determining the validity of exhaustion reauirements that are
not found in the text of the PLRA itself." The PLRA does
not repeal 42 U.S.c. § 1983 as it applies to prisoners. As a
result, where possible, the two statutes should be construed
so as not to conflict. Pittsburgh & Lake Erie R.R. Co. v. Ry.
Labor Executives' Assoc., 491 U.S. 490, 510 (1989).
Particularly where, as here, the PLRA is silent or at best
ambiguous, courts must be mindful not to undermine the
policies underlying § 1983 when considering burdens on
prisoners' ability to bring and maintain lawsuits. See
Even in habeas cases, in which the exhaustion requirement implicates
more strongly interests in comity and federalism, this Court has
acknowledged that a prisoner's "interest in obtaining federal review of
his claims" can outweigh "competing interests in finality and speedy
resolution of federal petitions." Rhines, 544 U.S. at 278.
44

38

Monell v. Dep 't ofSoc. Servs. of City ofNew York, 436 U.S.
658, 685 (1978) (stating that Congress intended § 1983 to
provide "broad remedy" for violations of federal rights);
Mitchum v. Foster, 407 U.S. 225, 242 (1972) (stating that
purpose of § 1983 was "to interpose the federal courts
between the States and the people").
The Court must also consider the right of access to
the courts. "[T]he right to file a court action might be said
to be [a prisoner's] remaining most 'fundamental political
right, because preservative of all rights. '" McCarthy v.
Madigan, 503 U.S. 140, 153 (1992) (quoting Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886)). That right guarantees
prisoners that they will not be arbitrarily prevented from
litigating a federal action, see Ex parte Hull, 312 U.S. 546,
549 (1941), and, further, that they will have "a reasonably
adequate opportunity to present claimed violations of
fundamental constitutional rights to the courts." Bounds v.
Smith, 430 U.S. 817, 825 (1977); see also Lewis v. Casey,
518 U.S. 343, 351 (1996). Courts have a duty to construe
statutes narrowly so as to avoid potential conflicts with
constitutional rights. INS v. St. Cyr, 533 U.S. 289, 299-300
(2001). The Court should interpret the PLRA in a manner
that is consistent with prisoners' constitutional right to court
access.
Finally, when evaluating burdens on prisoners' court
access, courts must also consider prisoners' status. Many
are uneducated, illiterate and indigent. See U.S. Department
of Education Office of Education and Research, Literacy
Behind Prison Walls: Profiles of the Adult Prison
Population from the National Adult Literacy Survey (1994).
All but a lucky few are pro se, particularly during the
grievance process.
This Court and others have
acknowledged various ways in which courts should
accommodate pro se parties." At a minimum, this means
See Hughes v. Rowe, 449 U.S. 5,9 (1980) (pleading); Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (re-opening case after default); Madyun

45

39
that courts should not impose procedural rules that are
harsher than those required in cases that are usually handled
by counsel, such as refusal to allow amendment to cure
deficiencies, a requirement to plead exhaustion with
specificity and an expectation that the prisoner will have
fully developed theories of liability by the level one
grievance deadline.
These principles suggest a standard already noted in
Woodford, 126 S.Ct at 2392: prisoners are entitled to a
"meaningful opportunity" to "raise meritorious grievances"
and present their claims to a federal court. As demonstrated
supra at 35-37, the Sixth Circuit's rules deprive prisoners of
this opportunity. They are essentially arbitrary barriers to
prisoners' exercising their right to access the courts and
cannot be allowed to stand.

B. The Right of Access to Courts and § 1983 Limit
Prison Authorities' Discretion in Imposing
Grievance Requirements
The right of access to the courts and the policies
underlying § 1983 are also relevant in considering the
validity of procedural requirements imposed by prison
officials. To reject the Sixth Circuit's rules, the Court need
only recognize the principle implicit in Woodford, that if a
prisoner follows all of the prison's procedures, she cannot
later be denied access to the courthouse for failure to
exhaust. However, to the extent the Court believes that
Petitioners somehow failed to comply with any grievance
procedures, it is important that the Court recognize that
prison officials may not impose requirements that are
v. Thompson, 657 F.2d 868, 876 (7th CiT. 1981) (instructions on
summary judgment); Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir.
1978) (amending complaint). In other words, courts should take into
account whether a particular requirement is one "which an uncounseled
inmate can be fairly required to satisfy." Hooks, 2006 WL 565909, at
*5.

40
inconsistent with the right of access to courts or the policy
underlying § 1983. Johnson, 385 F.3d at 517 n.8 ("a state
could not make grievance rules that prevented the
vindication of substantive rights"); Spruill, 372 F.3d at 235
("Such measures, we reiterate, must be consistent with the
Federal Constitution and the federal policy embodied in §
1997e(a) to be enforced as grounds for procedural default in
a subsequent federal lawsuit."); Strong, 297 F.3d at 649
("[N]o prison system may establish a requirement
inconsistent with the federal policy underlying § 1983 and §
1997e(a)."). Again, at a minimum this means that prisoners
must have "a meaningful opportunity" to exhaust their
administrative remedies. Woodford, 126 S.Ct. at 2392. Cf
James v. Kentucky, 466 U.S. 341, 348 (1984) (holding that
state procedural rules will not be enforced in habeas corpus
if they do not rest on adequate grounds)."
One of the purposes of § 1983 was to protect the
people from potential "prejudice, passion, neglect, [and]
intolerance" of state actors. Monroe v. Pape, 365 U.S. 167,
180 (1961). Undoubtedly, there is always potential for
abuse when a party must first seek relief from the same
entity that she may later sue in court. See Felder v. Casey,
487 U.S. 131, 142 (1988). In the prison context, a future
plaintiff may be required to submit her grievance to the
same person that she believes violated her constitutional
rights. See, e.g., Utah Grievance No. 990859363 ("Utah
Sample Grievance 2") (prisoner complained that officer
refused to move him away from cell mate before he was
assaulted; same officer that refused to move him decided his
grievance). Under these circumstances, it becomes critically
important to guard the right of access to the courts and
In Woodford, 126 S.Ct. at 2386 (emphasis added), the Court suggested
that it was appropriate to evaluate the necessity and importance of prison
exhaustion requirements when it noted that compliance with "critical
procedural rules" was needed to ensure that prison officials have an
adequate opportunity to consider the grievance.
46

41
ensure that prison officials are not using their complete
control to immunize themselves from scrutiny.
See
Campbell v. Chaves, 402 F. Supp. 2d 1101, 1106 n.3 (D.
Ariz. 2005) (noting danger that grievance systems might
become "a series of stalling tactics, and dead-ends without
resolution").
It is far from speculative to believe that prison
authorities may try to manipulate exhaustion requirements to
deprive a prisoner of his right of access to courts. With
respect to "name the defendant" requirements, at least one
state has already amended its grievance procedures to
require this, but only after the Seventh Circuit allowed a
prisoner's lawsuit to go forward because the then-current
version of the Illinois procedures were silent on this issue.
Compare Ill. Adm. Code tit. 20 § 504.810(b) (2005) with Ill.
Adm. Code tit. 20 § 504.810 (1998), available at
h~~:llwww.law.yale.eduiacademics/williamswa1tonjones.as

p.

More generally, there are any number of policies
that appear calculated to keep prisoners' claims, however,
legitimate, out of court.
For example, Mississippi's
grievance system provides many illustrations of the ways in
which prison authorities may set "traps" preventing
prisoners from suing:
(1) the handbook provided to
Mississippi prisoners explaining the grievance process omits
information about the requirement to appeal and the
applicable appeal deadlines;" (2) prisoners face denial of
In Strong, 297 F.3d 646, the court held that the required level of
specificity in a grievance was controlled by the facility's grievance
procedures.
48 Compare Mississippi Dep't of COIT., Standard Operating Procedure
20-08-0 I, at 3 (July I, 2003) (setting forth appeal process and deadlines
for appeal including five-day limit for appeals from the step one
response), with Mississippi Dep't of COIT., Inmate Handbook, 54-59
(Dec. 8,2005) (omitting this information). All grievance materials cited
in
notes
50-55
and
58-60
are
available
at
http://www.law.yale.edu/academics/williamswaltonjones.asp.
47

42

their grievance if they fail to use the magic words, "this is a
request for [an] administrative remedy" on their grievance.l"
(3) Mississippi prisoners who submit even serious
grievances may have to wait years before they receive even
a boilerplate responser'" (4) no matter how long they have
been waiting for a response, prisoners may not have a
second grievance considered unless they withdraw the first
grievance, allowing officials to coerce prisoners into
abandoning claims by simply refusing to decide themr" (5)
if a prisoner seeks assistance from a lawyer during the
grievance process, officials may simply reject the
grievance.Y (6) finally, and most egregiously, when
prisoners complete the grievance process they receive a
"certificate" from the administrator, informing them that
they must "seek judicial review within 30 days of receipt of
the Third Step Response," a blatant misrepresentation of the
law, which has no doubt resulted in many Mississippi
prisoners being misled into abandoning their claims. 53
Mississippi Dep't ofCorr., Inmate Handbook, at 55-56 (Dec. 8,2005).
One prisoner filed a grievance complaining of excessive cold in
November 2000; he did not receive a First Step Response until March
2003.
See Mississippi Grievance No. MSP-03-474 ("Mississippi
Sample Grievance 4"). Another grievance filed in November 2000
complained of inadequate medical care; the first step response came in
May 2003. Mississippi Grievance No. MSP-03-1313 ("Mississippi
Sample Grievance 2"). See also Mississippi Grievance MSP-04-163
("Mississippi Sample Grievance 3") (in May 2003 prisoner filed
grievance complaining that housing conditions threatened his health and
safety; first step response came in February 2004, stating only, "Your
charges are unfounded").
51 Mississippi Dep't ofCorr., Standard Operating Procedure 20-08-01, at
2 (July I, 2003); Letter from Legal Claim Adjudicator (Sept. 9, 2003)
("Mississippi Sample Grievance 5").
52 See Memo from Legal Claims Adjudicator (Mar. 31, 2003)
("Mississippi Sample Grievance 6"). (refusing to process grievance
when prisoner requested that response be forwarded to lawyer even
though grievance rules did not list this as basis for rejection).
53
See Certificate for Mississippi Grievance No. MSP-04-163
("Mississippi Sample Grievance 3").
49

50

43
Within the Sixth Circuit, an expert appointed by the
Ohio Department of Rehabilitation and Correction
concluded that the grievance system there was "unduly
complicated," that the handbook provided to the prisoners
was not helpful, that many prisoners did not understand how
to grieve properly and that there was an "unacceptably high"
level of staff retaliation against prisoners for using the
grievance process. 54 In Michigan there is a restriction called
"modified access," under which some prisoners are
prohibited from filing grievances for at least 90 days unless
they first obtain permission from prison officials, a policy
bearing an eerie resemblance to the one this Court struck
down in Ex Parte Hull, 312 U.S. 546 (1941). See Michigan
Dep't of Corrections Policy Directive 03.02.130, JJ-NN
(December 19,2003).
Other prisons, too, have adopted confusing or overly
cumbersome procedures.f severely restrict permission to

Vincent M. Nathan, Evaluation of the Inmate Grievance System, Ohio
Department of Rehabilitation and Correction, at 24, 28 (Feb. 13,2001),

54

available

at

http://www.law.yale.edu/academics/williamswaltonjones.asp.
For
example, the report notes:
"[A]n inmate who is attempting to
understand the time frames within which the grievant and others must
operate under the grievance system must consult two departmental
policies and at least two administrative rules on the subject. Even then,
he is left with significant unanswered questions on the issue of time
limits." [d. at 15-16. Also, in 1999 the Missouri Department of
Corrections found that the Ohio State Penitentiary Inmate Handbook, in
its section titled "Grievance Procedures," did not advise the prisoner that
there is a time limit for filing grievances or that there was an appeal
process. See Brief for the ACLU as Amicus Curiae Supporting
Respondent, at 19, in Booth v. Churner, 532 U.S. 731 (2001), available
at 2000 WL 1868111.
55 See Massachusetts Report at 58 (concluding that procedures are
"vague, ambiguous and discretionary"); Brieffor the ACLU as Amicus
Curiae in Booth at 19 (citing 1999 survey from Missouri Department of
Corrections, which found that Washington state procedure was "very
lengthy and very detailed. Certain issues are not always in one area in

44
file grievances, 56 failed to respond to grievances for long
periods of time, 57 refused to process more than one
grievance at a time, 58 and falsely represented in court that
prisoners had failed to file grievances on certain claims. 59
Even policies not purposely directed at limiting court
access may impose burdens inconsistent with the
Constitution and the policy of § 1983. For example,
Michigan's new grievance policy, which asks (though does
not necessarily require) prisoners to include names of
potential defendants, could not be enforced in this case, even
if it had been in effect when Petitioners grieved and even if
the reviewing authorities had declined to consider the merits
of the grievances. Because neither Williams nor Walton
knew or could have reasonably known who the defendants
were at the time they filed their grievances, a requirement to
include this information would be an arbitrary denial of their
right of access to the courts. See Freeman, 2004 WL
the procedure, making it difficult to find" and that the Hawaii procedure
was "difficult to follow").
56
Letter from Warden of Dorchester County Detention Center to
ACLU Cooperating Counsel (April 30, 2004) ("Dorchester County
Policy"); The warden defended his practice on the ground that "[i]t
makes no sense to fill my grievance form file with frivolous complaints
just to make a few unhappy inmates happy." Id.
57 See, e.g., Connecticut Grievance No. M 1403102 ("Connecticut
Sample Grievance I") (complains "No answer given [to] many prior
requests"); Delaware Grievance No. 11116 ("Delaware Sample
Grievance") (prisoner with Hepatitis C filed grievance in January 2005
that he was not receiving any treatment; grievance was not decided until
April 2006; although grievance was decided in favor of prisoner, no
treatment was ordered); Lee Williams & Esteban Parra, Delaware's
Deadly Prisons: Odds Against Inmates in Grievances, Delaware News
Journal (Sept. 25, 2005) (noting complaints that "it can take months - in
some cases years - for complaints to be resolved").
58 See, e.g., Louisiana Grievance No. LSP-2005-1676, First Step
Response Form ("Louisiana Sample Grievance 2") (stating that
f:ievance had been "set aside" because another request was pending).
9 Blount v. Fleming, No. 7:04cv00429, 2006 WL 1805853, at *3 (W.O.
Va. June 29, 2006).

45
1774737, at *3-4 (noting that a "name all defendants" rule
would require discovery in grievance systems to comport
with the policies of § 1983).
There is a real danger that grievance procedures may
be used to block prisoners' access to the courts. Amici
respectfully request that the Court take the opportunity
presented by this case to make clear that any grievance
policy that denies prisoners an adequate opportunity to
exhaust their claims and present them in court is invalid.
CONCLUSION

The decisions of the court of appeals should be
reversed.

Respectfully submitted,
Jeffrey Monks
Margaret Winter
Counsel ofRecord
Elizabeth Alexander
American Civil Liberties
Union Foundation
915 15th Street, NW
7th Floor
Washington, DC 20005
(202) 393-4930
Steven R. Shapiro
American Civil Liberties
Union Foundation
125 Broad Street
New York, New York 10004
(212) 549-2500
Michael J. Steinberg

46
Kary L. Moss
American Civil Liberties
Union Fund of Michigan
60 West Hancock Street
Detroit, MI 48201
(313) 578-6814
John Boston
Legal Aid Society
199 Water Street
New York, N.Y. 10038
Giovanna Shay
Jerome N. Frank
Legal Services Organization
P.O. Box 209090
New Haven, CT 06520-9090
(203) 432-4800
Paul D. Reingold
University of Michigan Law
School
363 Legal Research Building
801 Monroe Street
Ann Arbor, MI 48109-1215
(734) 763-4319
Alan Mills
Uptown People's Law Center
4413 North Sheridan
Chicago, Illinois 60640
(773) 769-1411
Stephen Hanlon
Holland & Knight, LLP
2099 Pennsylvania Avenue,
N.W.

47
Suite 100
Washington, DC, 20006
(202) 955-3000
Anthony Pogorzelski
Holland & Knight, LLP
701 Brickell Avenue
Suite 3000
Miami, FL, 33131
(305) 374-8500
Sandra Girard
Prison Legal Services of
Michigan
209 East Washington Street
Suite 201
Jackson, MI 49201
David A. Singleton
Ohio Justice & Policy Center
617 Vine Street, Suite 1309
Cincinnati, Ohio 45202
(513) 421-1108

APPENDIX

la
INTERESTS OF AMICI CURIAE
The American Civil Liberties Union (ACLU) is a
nationwide, non-profit, nonpartisan organization of more
than 500,000 members dedicated to the principles of liberty
and equality embodied in the Constitution and this nation's
civil rights laws. Consistent with that mission, the National
Prison Project of the ACLU Foundation was established in
1972 to protect and promote the civil and constitutional
rights of prisoners. The American Civil Liberties Union
of Michigan is a state affiliate of the ACLU.
The Jerome N. Frank Legal Services Organization of the
Yale Law School (LSO) provides free representation to
indigent people in need of legal aid. Since 1970, LSO
students have provided legal assistance to incarcerated
people, first through a Prison Clinic, and now through both
the Prison Clinic and the Complex Federal Litigation Clinic
(CFL). Yale students have represented inmates in federal
and state courts and before administrative agencies, in a
range of proceedings including habeas and civil rights
actions, and involving a wide variety of issues. In recent
years, LSO has litigated a number of cases involving Prison
Litigation Reform Act (PLRA) exhaustion.
The Legal Aid Society of the City of New York is a
private organization that has provided free legal assistance
to indigent persons in New York City for nearly 125 years.
Through its Prisoners' Rights Project, the Society seeks to
ensure that prisoners are afforded full protection of the
constitutional and statutory rights. The Society advocates
on behalf of prisoners in New York City jails and New York
state prisons, and conducts litigation on prison conditions.
The Ohio Justice & Policy Center ("OJPC") is a nonprofit, public interest law firm that litigates civil rights cases
on behalf of prisoners and formerly incarcerated individuals.

2a

Through its Grievance Project, OJPC educated the Sixth
Circuit Court of Appeals about the administrative grievance
systems that exist within the states comprising the Sixth
Circuit. OJPC was formerly known as the Prison Reform
Advocacy Center.

Prison Legal News ("PLN") is non-profit organization that
advocates nationally on behalf of those imprisoned in
American detention facilities. PLN 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.
Prison Legal Services of Michigan ("PLSM") is a
Michigan non-profit, tax-exempt corporation that was
founded in 1976. It assists Michigan prisoners in obtaining
access to courts through individual advice and self-help
packets which it provides free of charge to indigent
prisoners. PLSM has served as counsel for all male
Michigan prisoners in a state class action. The requirements
for exhaustion of administrative remedies is of critical
importance to PLSM and its clients.
The Prisons and Corrections Section of the State Bar of
Michigan provides education, information, and analysis on
correctional issues in the state. Through meetings, seminars,
a web-site, public service programs, and publication of a
newsletter, the Section seeks to serve both its members and
the public. Membership in the Section is open to all
members of the State Bar of Michigan. Statements made on
behalf of the Section do not necessarily reflect the views of
the State Bar of Michigan.
The Uptown People's Law Center ("UPLC") is a nonprofit legal service center serving the poor and indigent of
Chicago.
Among other things, the UPLC represents
prisoners challenging prison conditions, parole procedures,

3a
and "good time policies" in the Illinois prison system.
UPLC frequently faces the issue of administrative
exhaustion, both in its formal litigation, and in addressing
the hundreds of letters it receives from unrepresented
prisoners seeking advice on how to properly exhaust claims.



 

Disciplinary Self-Help Litigation Manual

 

Federal Prison Handbook

 

Disciplinary Self-Help Litigation Manual

 

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Prisoner Education Guide