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Case Western Reserve Law Review·Volume 72·Issue 3·2021

Pandemic Rules: COVID-19 and the Prison
Litigation Reform Act’s Exhaustion
Requirement
Margo Schlanger † & Betsy Ginsberg ††
Near-final Draft (5/25/2022). For published version (8/29/2022), see
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4972
&context=caselrev

Contents
Introduction .................................................................................................................... 2
I.

The Prison Litigation Reform Act and the COVID Pandemic .................................. 6

II.

Solutions .............................................................................................................. 14
A. Solution 1: Judicial Interpretations of Unavailability ..................................... 14
B. Solution 2: State and Local Grievance Systems, and Statutory Waiver ......... 21
C. Solution 3: Federal Amendment .................................................................... 28

Conclusion .................................................................................................................... 29

Copyright © 2022 Margo Schlanger & Betsy Ginsberg. This Article may be copied
and distributed for free or at cost, with the authors’ names and original
publication citation remaining.
We wish to thank John Boston, whose work tracking the tide of PLRA caselaw he
has generously shared with us and many others. More specifically, we worked
with John on some legislative reform materials several pages of which are
cannibalized here. All errors are our responsibility.
†

Wade H. and Dores M. McCree Collegiate Professor of Law, University of
Michigan. I wish to acknowledge the generous support of the William W. Cook
Endowment of the University of Michigan.

††

Clinical Professor of Law, Director of the Cardozo Civil Rights Clinic, and Director
of Clinical Legal Education, Benjamin N. Cardozo School of Law.

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

Introduction
For over twenty-five years, the Prison Litigation Reform Act (PLRA), 1
one of the few parts of the 1990s Republican Contract with America 2
actually enacted, has undermined the constitutional rights of incarcerated
people. For people behind bars and their allies, the PLRA makes civil rights
cases harder to bring and harder to win—regardless of merit. 3
We have seen the result in the wave of litigation relating to the COVID19 pandemic. When the pandemic began in early 2020, jails and prisons
were hard hit. Incarcerated people tend to be quite medically vulnerable;
the prevalence of chronic disease and disability is exceptionally high behind
bars. 4 (A countervailing statistic is that incarcerated adults average much
younger than non-incarcerated, notwithstanding the long-term aging of the
American prison population. 5) Equally important, imprisoned people lack
1.

Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801–10, 110 Stat. 1321,
1321-66 to -77 (1996) (codified as amended at 11 U.S.C. § 523; 18 U.S.C. §§ 3624,
3626; 28 U.S.C. §§ 1346, 1915, 1915A, 1932; 42 U.S.C. §§ 1997a–1997c, 1997e–
1997f, 1997h). The PLRA was part of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321.

2.

Contract with America: The Bold Plan by Rep. Newt Gingrich, Rep. Dick Armey and
the House Republicans to Change the Nation 53 (Ed Gillespie & Bob Schellhas eds.,
1994) (referring to the PLRA’s predecessor bill, the Taking Back Our Streets Act of
1995, H.R. 3, 104th Cong. (1995)).

3.

For in-depth examination of the PLRA’s impact on damage actions, see Margo
Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003) [hereinafter Schlanger,
Inmate Litigation]. For in-depth examination of the PLRA’s impact on injunctive
litigation, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of
Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550 (2006) [hereinafter Schlanger,
Civil Rights Injunctions]. For statistics, see Margo Schlanger, Trends in Prisoner
Litigation, as the PLRA Enters Adulthood, 5 UC Irvine L. Rev. 153 (2015)
[hereinafter Schlanger, Trends in Prisoner Litigation]; and Andrea Fenster & Margo
Schlanger, Slamming the Courthouse Door: 25 Years of Evidence for Repealing the
Prison Litigation Reform Act, Prison Pol’y Initiative (Apr. 26, 2021),
https://www.prisonpolicy.org/reports/PLRA_25.html
[https://perma.cc/53LLCXR7].

4.

Margo Schlanger, Prisoners with Disabilities, in 4 Reforming Criminal Justice:
Punishment, Incarceration, and Release 295, 295 (Erik Luna ed., 2017); Laura M.
Maruschak, Marcus Berzofsky, & Jennifer Unangst, U.S. Dep’t of Just., No. 248491,
Medical Problems of State and Federal Prisoners and Jail Inmates, 2011–12, at 1
(2015),
https://bjs.ojp.gov/content/pub/pdf/mpsfpji1112.pdf
[https://perma.cc/V6ST-9AKA].

5.

In 2019, the last year for which prison data are available, 13.1% of sentenced state
or federal prisoners were 55 or over; the corresponding number in the U.S. as a
whole was 29.7%. Compare E. Ann Carson, U.S. Dep’t Just., Prisoners in 2019, No.
255115,
tbl.9
(2020),
https://bjs.ojp.gov/content/pub/pdf/p19.pdf
[https://perma.cc/J3J3-SCPT], with Population Distribution by Age, Kaiser Fam.
Found.,
https://www.kff.org/other/state-indicator/distribution-by-age
[https://perma.cc/U8P2-2JTK] (last visited Nov. 2, 2021). On the long-term aging

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

most of the methods non-imprisoned people can exercise to minimize their
risk. They cannot avoid communal spaces, whether for eating, living,
bathing, or anything else. The availability of personal protective
equipment—masks, preeminently—is controlled by institutional
authorities, as is the level of hygiene in most spaces. In prison and jail, one
cannot choose with whom to associate and whether to limit their
association with the unprotected or the uninfected; staff contact, in
particular, is mandatory. In short, while neither infection rates nor mortality
approached the devastation in nursing homes, 6 both were far higher than
in the community: infections among incarcerated people have been over
five times and mortality triple the non-imprisoned rate. 7
So beginning March 2020, incarcerated people facing a high risk of
infection because of their incarceration, and a high risk of harm because of
their medical status, began to bring lawsuits seeking changes to the policies
and practices augmenting the danger to them. Among the requests: better
sanitation, social distancing, mask use by facility staff, vaccination, and

trends of the prison population, see, for example, E. Ann Carson & William J. Sabol,
U.S. Dep’t of Just., No. 248777, Aging of the State Prison Population, 1993–2013
(2016),
https://bjs.ojp.gov/content/pub/pdf/aspp9313.pdf
[https://perma.cc/L4SK-XBVW].
6.

In the United States, nursing home residents have been nearly fifty times more
likely to die of COVID-19 than the general population. See COVID-19 Nursing Home
Data, Ctrs. for Medicare & Medicaid Servs., https://data.cms.gov/covid-19/covid19-nursing-home-data (Feb. 12, 2022) [https://perma.cc/MSL2-TJKF] (reporting
149,107 total COVID-19 deaths among nursing home residents); Total Number of
Residents in Certified Nursing Facilities, Kaiser
Fam. Found.,
https://www.kff.org/other/state-indicator/number-of-nursing-facility-residents/
[https://perma.cc/TLW6-NMKB] (last visited Feb. 19, 2022) (1,290,177 residents
in certified nursing facilities in the U.S. in 2020); COVID Data Tracker Weekly
Review, Ctrs. for Disease Control & Prevention (Feb. 18, 2022),
https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/index.html#more-info [https://perma.cc/J4MP-HT4W] (926,497
total COVID-19 deaths in the United States); and QuickFacts, U.S. Census Bureau,
https://www.census.gov/quickfacts/fact/table/US#
[https://perma.cc/SKH8ZAET] (last visited Feb. 19, 2022) (estimating U.S. population at 331,893,745 as of
July 1, 2021). As of November 25, 2020, “deaths in long-term care facilities
account[ed] for 40% of all COVID-19 deaths” nationwide. Priya Chidambaram,
Rachel Garfield, & Tricia Neuman, COVID-19 Has Claimed the Lives of 100,000
Long-Term Care Residents and Staff, Kaiser Fam. Found. (Nov. 25, 2020),
https://www.kff.org/policy-watch/covid-19-has-claimed-the-lives-of-100000long-term-care-residents-and-staff/ [https://perma.cc/N4TL-SU9R].

7.

See Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura & Sharon
Dolovich, COVID-19 Cases and Deaths in Federal and State Prisons, 324 J. Am.
Med. Ass’n 602, 602–03 (2020) (making both findings and noting that mortality
figures are after adjusting for age and sex distributions).

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

release. Incarcerated Individuals have won some of these cases, 8 and some
of their losses have been due not to the PLRA but to the high bar to
8.

Releases granted in, e.g.: Torres v. Milusnic, 472 F. Supp. 3d 713, 718, 746 (C.D.
Cal. 2020), enforcement granted in part, denied in part, No. 20-cv-4450-CBMPVCx, 2021 WL 3829699, at *1 (C.D. Cal. Aug. 27, 2021) (issuing a preliminary
injunction ordering defendants to expedite the process for determining prisoners’
eligibility for home confinement or compassionate release, taking into account
their’ age and medical condition in light of COVID-19); Martinez-Brooks v. Easter,
459 F. Supp. 3d 411, 453–54 (D. Conn. 2020) (issuing a temporary restraining order
“aimed at accelerating the process for evaluating inmates for home confinement
and compassionate release,” but declining to direct the warden to implement
safety measures); Amaya-Cruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123, at
*1–2 (N.D. Ohio Apr. 18, 2020) (concluding that keeping a medically vulnerable
ICE detainee in a county jail during the COVID-19 pandemic would violate the Fifth
Amendment); United States v. Kennedy, 449 F. Supp. 3d 713, 719 (E.D. Mich.
2020), reconsideration denied, No. 18-20315, 2020 WL 1547878, at *1, 3, 4 (E.D.
Mich. Apr. 1, 2020) (ordering the defendant immediately released from jail
because he was “particularly susceptible to COVID-19”).
Mitigation granted: Chatman v. Otani, No. 21-cv-00268-JAO-KJM, 2021 WL
2941990, at *24 (D. Haw. July 13, 2021) (ordering the defendant to immediately
implement its COVID-19 Response Plan, including its social distancing, personal
protective equipment (PPE), and quarantine measures, and to provide regular
access to a working toilet, sink, and drinking water to all incarcerated persons);
Carranza v. Reams, No. 20-cv-00977-PAB, 2020 WL 2320174, at *15 (D. Colo. May
11, 2020) (ordering the defendant to institute social distancing policies, enhanced
sanitation procedures, and increased monitoring of medically vulnerable
individuals detained at a county jail and to obtain a sufficient number of masks);
Mays v. Dart, 453 F. Supp. 3d 1074, 1099–100 (N.D. Ill. 2020) (requiring the
defendant sheriff to provide soap and/or hand sanitizer to all detainees, improve
sanitation, and to provide facemasks to all detainees who are quarantined, but
declining to order further testing or quarantining of new detainees or to provide
facemasks to all detainees), aff’d, 974 F.3d 810, 824 (7th Cir. 2020), cert. denied,
142 S. Ct. 69, 69 (2021); Criswell v. Boudreaux, No. 120-cv-01048-DAD-SAB, 2020
WL 5235675, at *25 (E.D. Cal. Sept. 2, 2020) (ordering the defendant “to develop
written policies on key COVID-19 related issues,” but declining to require
immediate testing of staff and people in jail); Banks v. Booth, 468 F. Supp. 3d 101,
125–26 (D.D.C. 2020) (ordering the defendant to implement a medical care
system, comply with social distancing regulations, and continue their sanitation
efforts and increased testing), appeal dismissed, cause remanded, 3 F.4th 445, 449
(D.C. Cir. 2021); Smith v. Barr, 512 F. Supp. 3d 887, 900–01 (S.D. Ind. 2021)
(requiring defendants to enforce mask requirements, maintain contact logs,
implement rapid testing and conduct contact tracing among prison staff); Ahlman
v. Barnes, 445 F. Supp. 3d 671, 694 (C.D. Cal. 2020) (ordering defendants to
implement social distancing measures, provide plaintiffs with soap and hand
sanitizer, provide daily access to showers and clean laundry, require staff to wear
PPE and wash their hands, regularly screen and test incarcerated people, and
provide adequate medical care to any with COVID-19), stay denied, No. 20-55568,
2020 WL 3547960, at *5 (9th Cir. June 17, 2020), stay granted, 140 S.Ct. 2620,
2620 (2020); Seth v. McDonough, 461 F. Supp. 3d 242, 264 (D. Md. 2020)
(requiring defendant to “develop a comprehensive written plan to address
systematic testing and identification of COVID-19 positive detainees; long term

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

constitutional liability. 9 But time and again, courts have thrown cases out
based on the PLRA 10—especially, on the PLRA’s instruction to dismiss civil
rights cases unless “such administrative remedies as are available are
exhausted” 11 (that is, unless the incarcerated plaintiff worked the complaint
all the way through the prison’s or jail’s grievance system).
The pandemic is far from the first situation in which the PLRA
exhaustion requirement has thwarted constitutional oversight of prison
and jail conditions. But it has exposed a particularly egregious problem: the
mismatch between a mandate to use internal grievance systems and those
provision of PPE; increased training, education, and supervision of medical staff
so that COVID-19 symptomatic and positive detainees receive timely and
appropriate care; and prophylactic protections for high-risk detainees”); Maney v.
Brown, 516 F. Supp. 3d 1161, 1184–85 (D. Or. 2021) (ordering defendants to offer
all adults in custody a COVID-19 vaccine); Weikert v. Elder, No. 1:20-cv-03646-RBJ,
2021 WL 27787, at *1 (D. Colo. Jan. 4, 2021) (ordering defendant to require all
staff, contractors, and incarcerated individuals to wear masks; continue COVID-19
testing protocols; screen and identify individuals at increased risk of severe illness
from COVID-19; provide clean drinking water; monitor incarcerated individuals’
temperatures; isolate and monitor those who test positive; and ensure that
isolation occurs in a non-punitive environment).
9.

See, e.g., Cameron v. Bouchard, 815 F. App’x 978, 985 (6th Cir. 2020) (finding that
respondents had responded reasonably to address the risks posed by COVID-19
and petitioners had, therefore, failed to demonstrate that respondents had been
deliberately indifferent to their health concerns under the Eighth and Fourteenth
Amendments); Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (“Here, while
the harm imposed by COVID-19 on inmates . . . ‘ultimately [is] not averted,’ the
BOP has ‘responded reasonably to the risk’ and therefore has not been
deliberately indifferent to the inmates’ Eighth Amendment rights.” (alteration in
original) (quoting Farmer v. Brennan, 511 U.S. 825, 826 (1994))); Belton v.
Gautreaux, No. 20-cv-00278-BAJ-SDJ, 2021 WL 400474, at *3 (M.D. La. Feb. 4,
2021) (dismissing action with prejudice because the defendants’ COVID-19
response did not “satisfy the requisite state of mind indicative of subjective
deliberate indifference” (quoting Ruling and Ord. on Plaintiff’s Emergency Motion
for Temp. Restraining Ord. at 11, Belton, No. 20-cv-00278-BAJ-SDJ)); Maney v.
Brown, 464 F. Supp. 3d 1191, 1196 (D. Or. 2020) (declining to release incarcerated
individuals) (“[T]he question currently before this Court is not whether ODOC has
responded perfectly to the COVID-19 pandemic, nor even whether it could do
more to keep AICs safe. The question before the Court is whether ODOC has acted
with deliberate indifference toward the health risks that COVID-19 poses to those
currently in custody. As the Court learned, quite the contrary is true.”); Busby v.
Bonner, 477 F. Supp. 3d 691, 704–05 (W.D. Tenn. 2020) (finding that conditions at
a jail “may be legally insufficient” but declining to issue a preliminary injunction
because “this is an issue that can be remedied if addressed by the Jail, and thus is
an inappropriate basis for habeas relief”); Money v. Pritzker, 453 F. Supp. 3d 1103,
1132 (N.D. Ill. 2020) (“[O]bjections about the speed or scope of action and
suggestions for altering it through a ‘prod’ do not support either half of the phrase
‘deliberate indifference.’”).

10.

See infra notes 74–75 and accompanying text.

11.

42 U.S.C. § 1997e(a).

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

grievance systems’ systemic inability to address emergency situations.
Here, we propose three solutions. To be clear, implementation of these
steps would constitute only a limited improvement; the result would
merely be to increase the possibility of federal court adjudication of
incarcerated plaintiffs’ claims on the merits, reducing the collateral
litigation of exhaustion efforts. But even these partial fixes seem
worthwhile.
The proposals are these: First, incarcerated plaintiffs should be allowed
to proceed with their federal lawsuits if the press of an emergency renders
a prison’s or jail’s grievance system “unavailable” because it is unable to
process their complaint quickly enough to offer any relief. As we describe
below, this is already the right answer under existing case law—but so far,
many district courts have declined to follow this path. The second proposal
focuses on possible actions at the state and local levels, because it is
corrections agencies, not the PLRA, that determine what procedures must
be exhausted or whether the defense is raised in litigation. Any prison or
jail unhappy with allowing incarcerated plaintiffs to proceed in federal court
or amenable to allowing them to access court quickly in emergency
circumstances could implement working emergency grievance systems. We
provide some parameters to guide any such system. In addition, state
legislatures could enact legislation forfeiting or waiving the exhaustion
defense in cases seeking emergency relief. The third solution addresses the
reluctance of district judges to excuse non-exhaustion when they should;
we propose that the PLRA be amended to pretermit the “availability”
inquiry by eliminating the statutory exhaustion requirement in emergency
situations. We offer suggested legislative text to accomplish this end.

I.

The Prison Litigation Reform Act and the COVID Pandemic

In four periods that together span the past fifty years, federal civil rights
filings by incarcerated plaintiffs have followed four very different patterns.
After the federal courts opened to such lawsuits in the late 1960s and early
1970s, 12 the volume of the litigation grew steeply for a decade—juiced by
slowly increasing prison population and steeply increasing filing rates. From
the 1980s to 1990, however, the overall increasing number of cases was
driven entirely by increases in both jail and prison population; filing rates
actually declined substantially over the period. In the early 1990s, the two
factors converged, both increasing: from 1991 to 1995, the filing rate grew
by 22.5% from 20 to 24.5 lawsuits per 1000 incarcerated persons, and the

12.

See Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as
Litigation, 97 Mich. L. Rev. 1994, 2000–05 (1999).

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

incarcerated population increased by about 31% (over 375,000 people). 13
All this is illustrated in Figure A.
Figure A: Prison and Jail Population and Federal Civil Rights Filings by
Incarcerated Plaintiffs
l liling•

Prison Population
i:=i J ail Popuhtrion

4,,:).IJ(I( )

l( :1~:o/t.{t,.;:,11
- 40

35,IXll' -

§

1,2(10,00()

"3!,-

l ,\ !1)11,(ll ilJ

]_,

@0.000

,,:::

3~

JOJn)O -.JO

15,(n)O - J 5

l{).IJ(I( )

-

10

-

I]

2l)f_l,(l(jf_l

It was in this environment that Congress in 1996 passed the PLRA. Its
supporters at least stated that their target was abusive lawsuits. As Senator
Hatch phrased it in one version of this point made repeatedly in floor
speeches in support of the various PLRA versions, “I do not want to prevent
inmates from raising legitimate claims. This legislation will not prevent
those claims from being raised. The legislation will, however, go far in
preventing inmates from abusing the Federal judicial system.” 14 In fact, the
13.

Litigation figures are calculated using data released periodically by the
Administrative Office of the U.S. Courts, available at Integrated Database (IDB),
Fed. Jud. Ctr., https://www.fjc.gov/research/idb (last visited Feb. 15, 2022). Prison
and jail population figures come from a variety of publications by the Bureau of
Justice Statistics, a component of the U.S. Department of Justice. Sources are set
out comprehensively in Schlanger, Trends in Prisoner Litigation, supra note 3, at
57, updated by Margo Schlanger, Prison and Jail Civil Rights/Conditions Cases:
Longitudinal
Statistics
2–3
tbl.A,
https://ssrn.com/abstract=3834658
[https://perma.cc/XHF5-SD3U], updated appendix to Fenster & Schlanger, supra
note 3, app. at tbl.A. Data and replication code are available at Data Update,
Incarceration
and
the
Law:
Cases
and
Materials,
https://incarcerationlaw.com/resources/data-update/ [[https://perma.cc/284NYTBX] (last visited February 20, 2022) (reproducing Schlanger, supra, tbl.A).

14.

141 Cong. Rec. 27042 (1995) (statement of Sen. Hatch); see also, 141 Cong. Rec.
37797 (1995) (statement of Sen. Hatch); 141 Cong. Rec. 4275 (1995) (statement

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement

PLRA narrowed the possibility of relief for all cases brought by incarcerated
plaintiffs. 15 The second half of Figure A shows the result—a dramatic and
(so far) permanent decrease in filing rates and filing numbers.
One of us (Schlanger) has written at length about the particular PLRA
provisions that produced the decline in filing rates and filing numbers. 16
High on the list of contributors is the statute’s “administrative exhaustion”
requirement, which provides: “No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 17
The provision abrogated part of the 1980 Civil Rights of Institutionalized
Persons Act, which required incarcerated plaintiffs to first have recourse to
administrative grievance systems only if those systems were “plain, speedy,
and effective.” 18
PLRA exhaustion is the subject of thousands and thousands of district
court and court of appeals decisions, 19 and a startling six merits opinions in
the Supreme Court. 20 The crucial takeaways from the Supreme Court
opinions are these:
1) Incarcerated plaintiffs need not plead exhaustion; failure to
exhaust is an affirmative defense, with the burden of assertion and
proof on the defendants. 21
2) There are no federally prescribed standards requiring that
grievance systems be fair; states and localities can set their own rules
for how their grievance systems work.
3) The PLRA requires “proper exhaustion”—it imposes a procedural
bar on claims whose plaintiffs failed to follow applicable grievance
of Rep. Canady) (“These reasonable requirements will not impede meritorious
claims by inmates but will greatly discourage claims that are without merit.”).
15.

See supra note 3 and accompanying text.

16.

See supra note 3.

17.

42 U.S.C. § 1997e(a).

18.

See Civil Rights of Institutionalized Persons Act, Pub. L. No. 96-247, § 7(a), 94 Stat.
349, 352 (1980) (codified as amended at 42 U.S.C. § 1997e(a)), quoted in Ross v.
Blake, 578 U.S. 632, 640–41 (2016).

19.

A basic search—adv: “42 USC 1997e(a)”—yields more cases than Westlaw will
display; it tops out at 10,000.

20.

Ross, 578 U.S. at 648–49; Jones v. Bock, 549 U.S. 199, 202–03 (2007); Woodford
v. Ngo, 548 U.S. 81, 83–84 (2006); Porter v. Nussle, 534 U.S. 516, 520 (2002); Booth
v. Churner, 532 U.S. 731, 733–34 (2001); Ramirez v. Collier, 142 S. Ct. 1264, 127577 (2022).

21.

Jones, 549 U.S. at 216.

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Case Western Reserve Law Review·Volume 72·Issue 3·2021
Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion
Requirement
rules 22 (though the courts of appeals hold consistently that if the
prison or jail chose, notwithstanding such a failure, to address the
grievance on the merits, the claim is exhausted 23).
4) The PLRA does not implement “traditional doctrines of
administrative exhaustion, under which a litigant need not apply to
an agency that has ‘no power to decree . . . relief,’ or need not
exhaust where doing so would otherwise be futile.” 24 In particular,
even a litigant who seeks only damages must exhaust a system that
has no authority to provide damages. 25
5) Judges lack discretion to excuse exhaustion based on good cause,
special circumstances, or the like. However—and this is the crucial
point explored below—the statute requires exhaustion only of “such
administrative remedies as are available.” 26

Accordingly, under the current case law, if the defendants come
forward with appropriate evidence, the courthouse doors are closed to
incarcerated plaintiffs who did not manage to fully work their precomplaint grievance through a jail or prison’s grievance system—whether
they didn’t file a grievance at all, or filed but had a grievance bounced for
some technical error, 27 or didn’t timely pursue every appeal opportunity. 28
22.

Woodford, 548 U.S. at 90–91, 93.

23.

See, e.g., Reyes v. Smith, 810 F.3d 654, 657–58 (9th Cir. 2016).

24.

Booth, 532 U.S. at 741 n.6 (alteration in original) (citation omitted).

25.

Id. at 740.

26.

42 U.S.C. § 1997e(a).

27.

See, e.g., Bracero v. Sec’y, Fla. Dep’t of Corr., 748 F. App’x. 200, 203 (11th Cir.
2018) (dismissing for non-exhaustion where plaintiff wrote a small amount below
the line that said “Do not write below this line”; noting “that the grievances were
still legible and just a few lines were outside the boundaries of the space
provided,” and that “the PLRA demands that prisoners complete the
administrative process in accordance with the applicable grievance procedure set
by the prison”); Elliott v. Jones, No. 4:06-cv-00089-MP-AK, 2008 WL 420051, at *4
(N.D. Fla. Feb. 12, 2008) (noting grievance rejected for “writing outside the
boundaries of the form”); Freeland v. Ballard, No. 2:14-cv-29445, 2017 WL
337997, at *6–7 (S.D. W. Va. Jan. 23, 2017) (finding failure to exhaust when
plaintiff mailed multiple grievances in a single envelope rather than in separate
envelopes); Thomas v. Parker, No. 07-cv-599-W, 2008 WL 2894842, at *12 (W.D.
Okla. July 25, 2008), aff’d, 318 F. App’x 626 (10th Cir. 2009) (same, when grievance
included a “Statement Under Penalty of Perjury” pursuant to state law rather than
the notarized affidavit required by grievance policy).

28.

See McCoy v. Goord, 255 F.Supp.2d 233, 246 (S.D.N.Y. 2003) (“It is well established
that to exhaust—literally, to draw out, to use up completely, see Oxford English
Dictionary (2d ed.1989)—‘[an inmate is required to] grieve his complaint about
prison conditions up through the highest level of administrative review’ before
filing suit.” (quoting Porter v. Goord, No. 01 Civ. 8996(NRB), 2002 WL 1402000, at

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The impact is frequently to foreclose redress for violation of constitutional
rights.
Moreover, the PLRA sets up awful incentives. The less effective and
more cumbersome a grievance system is, the more likely incarcerated
people are to either seek to bypass it or mess up its technical requirements.
Either path then immunizes staff and systems from subsequent federal
court oversight. In other words, the PLRA encourages prison and jail officials
to impose burdensome rules that make it easier to reject grievances for
technical errors. Courts have commented on this tendency many times. 29
The problem is particularly acute when an incarcerated person seeks to
fend off an urgently looming injury. Federal injunctive practice includes
mechanisms to speed up litigation in emergency situations. But these
cannot solve imminent problems if the gatekeeping grievance systems are
too slow—which most are. Without special emergency speed-ups,
grievance systems can take months to complete even when officials comply
with their own deadlines. The systems typically require multiple steps, each
of which may take weeks or even months to complete. A 2014 survey found
a 90–120 day overall maximum time limit among those systems that specify
such an aggregate limit. 30 In systems that instead set time limits for each
step, just one step can take as long as 100 days in some states. 31 In either
event, prison systems often do not follow their own time limits, frequently
taking even longer. 32 It’s true that most state prisons’ grievance systems
provide expedited emergency procedures, which in theory would allow
*1 (S.D.N.Y. June 18, 2002))); accord, e.g., Wright v. Hollingsworth, 260 F.3d 357,
358 (5th Cir. 2001); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997).
29.

See, e.g., Padilla v. Hasley, No. 15–cv–02693–MWF (KES), 2017 WL 1927874, at *9
(C.D. Cal. Mar. 9, 2017) (noting grievance body’s actions “reflect using procedural
rules to avoid addressing the merits of Plaintiff’s claims, rather than imposing an
orderly structure on proceedings”), report and recommendation adopted, 2017
WL 1905963 (May 9, 2017); Barker v. Belleque, No. 10–cv–0093–AA, 2011 WL
285228, at *4 (D. Or. Jan. 26, 2011) (“[T]he record reflects that plaintiff’s good
faith effort to [exhaust] . . . was stymied by defendants’ unreasonable
interpretation and hyper-technical application of the grievance rules.”).

30.

Priyah Kaul, Greer Donley, Ben Cavataro, Anelisa Benavides, Jessica Kincaid &
Joseph Chatham, Prison and Jail Grievance Policies: Lessons from a Fifty-State
Survey 23 (2015), https://clearinghouse.net/resource/2016/. In full disclosure,
this survey was done by Schlanger’s students with her advice and supervision.

31.

Id.

32.

See, e.g., Gilbert v. Byars, No. 2:13-cv-2163-MGL-WWD, 2014 WL 4063020, at *6–
7 (D.S.C. Aug. 14, 2014) (holding delays in final decisions from five to nine months
past the official deadline do not “represent[] a period of inordinate delay excusing
the PLRA’s pre-filing requirement” although delays of fifteen months or more
would do so), aff’d, 590 F. App’x 279 (4th Cir. 2015); Sweat v. Reynolds, No. 9:11cv-1706-MGL, 2013 WL 593660, at *4–5 (D.S.C. Feb. 15, 2013) (noting delay of 150
days for a response although the deadline was 70 days).

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Incarcerated people to exhaust quickly and get into court with minimal
delay. 33 While procedures and guidelines on processing time vary widely, 34
“[m]ost policies that specify time frames for emergency grievances require
responses within 24 to 72 hours . . . .” 35 Unfortunately, the reality is often
different. Recent decisions have documented waits ranging from sixteen
days to over two months without a response from the “emergency”
grievance procedure. 36
33.

Many states’ grievance policies specify a time frame within which they will initiate
action and respond to emergency grievances. For example, Washington D.C.’s
promises a response “within seventy-two (72) hours of [the grievance’s] receipt.”
D.C. Dep’t of Corr., Inmate Grievance Procedure 19 (2020),
https://doc.dc.gov/sites/default/files/dc/sites/doc/publication/attachments/PP
%204030.1L%20Inmate%20Grievance%20Procedure%20%28IGP%29%2001-092020.pdf [https://perma.cc/E8KJ-UQWH]. Arizona’s states that prisons shall
provide “an initial response . . . within 48 hours, and . . . a final decision within five
calendar days.” Ariz. Dep’t of Corr. Rehab. & Reentry, Inmate Grievance Procedure
10 (2016) https://corrections.az.gov/sites/default/files/policies/800/0802.pdf
[https://perma.cc/P59D-JTXL]. Alaska’s requires prison staff to “investigate and
resolve the emergency grievance the same day or before the end of the shift.”
State of Alaska Dep’t of Corr., Policies and Procedures: Prisoner Grievances 11
(2006), https://doc.alaska.gov/pnp/pdf/808.03.pdf [https://perma.cc/UP7H8YMX].
Other states have vaguer standards. Kansas, for instance, simply states that:
“Emergency grievances shall be forwarded immediately. . . [and] shall be
expedited at every level.” Kansas Administrative Regulation § 44-15-106, Kan.
Sec’y of State, https://sos.ks.gov/publications/pubs_kar_Regs.aspx?KAR=44-15106&Srch=Y [https://perma.cc/Z583-Q3WJ] (last visited Apr. 6, 2022).
There can also be a significant lag between when prisons are supposed to take
action in response to such grievances and when they must actually respond to the
inmate. For example, in Florida, the reviewing authority must review the
complaint and initiate action “no later than two calendar days following receipt,”
but has up to “15 calendar days” to provide the inmate with a formal response, if
an emergency is found to exist. Fla. Admin. Code Ann. r. 33-103.006 (LEXIS through
Apr. 14, 2022). See also Prison and Jail Policies: Handbooks, Grievances, Visiting,
Mail,
Publications,
Michigan
Law
Prison
Information
Project,
https://clearinghouse.justiapro.com/policy/2/1
(collecting
administrative
documents, including versions of those referenced in this footnote)

34.

See Kaul et al., supra note 30, at 23.

35.

Id. (citing examples of the Federal Bureau of Prisons, Arizona, Hawaii, and
Massachusetts). The grievance policies themselves can be downloaded at Policy
Clearinghouse, supra note 33.

36.

See Hampton v. Baldwin, No. 3:18-cv-550-NJR-RJD, 2018 WL 5830730, at *9 (S.D.
Ill. Nov. 7, 2018) (twenty-nine days in a case in which a transgender plaintiff
alleged danger from being held in a men’s prison and denial of essential mental
health treatment); Morris v. Lee, No. 3:17-cv-857-NJR-DGW, 2018 WL 6204975, at
*3 (S.D. Ill. July 18, 2018) (two months and nine days between warden’s receipt of
emergency grievance and determination that it was an emergency), report and
recommendation adopted, 2018 WL 4771017 (S.D. Ill. Oct. 3, 2018); Godfrey v.

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Broadly applicable emergencies—the COVID-19 pandemic, floods or
hurricanes, and the like—stress grievance systems in three separate ways.
First, emergencies create new risks to safety, and those risks are often
administratively assigned to grievance systems to address. 37 Second, the
risks are particularly time-sensitive, requiring speedy resolution if they are
to be averted. Third, emergencies interfere with ordinary staffing and the
normal functioning of the prison system itself—which not only augments
risk but undermines timely and appropriate grievance processing. The
COVID pandemic has had all of these effects. COVID has stressed prison and
jail capabilities and, particularly in the pandemic’s early months, many
entirely shut down functions like grievance processing. Some systems put
everyone in lock-down—so that they couldn’t obtain grievance forms. 38
For all these reasons, time after time, prison grievance systems have
proven unable to cope with COVID-related complaints. 39 Consider as a case
in point the situation of John Dailey, a podiatrist sentenced to serve 2.25
years in federal prison for Medicare fraud. 40 He entered federal custody in
2019 with a congenital heart defect and a terminal form of non-Hodgkins
lymphoma; he was immunocompromised due to chemotherapy. 41 He was
housed at a special medical prison in North Carolina. Dr. Dailey was 62 in
May 2020, when he was one of the named petitioners in a major civil rights
lawsuit alleging grievous failures by the federal Bureau of Prisons leading to
catastrophic spread of COVID-19 and resulting illness and deaths at his
prison. 42 After the district court denied emergency relief for a variety of

Harrington, No. 13-cv-280-NJR-DGW, 2015 WL 1228829, at *3, 7 (S.D. Ill. Mar. 16,
2015) (sixteen days where the plaintiff claimed imminent danger from a cellmate
noting that the former three-day deadline for responses had been removed from
the grievance policy) (“Simply put, Defendants cannot expect to kick Godfrey out
of court because he failed to follow an unwritten, nebulous rule, especially when
they cannot even articulate the boundaries of the rule. The grievance process is
not intended to be a game of ‘gotcha’ or ‘a test of the prisoner’s fortitude or ability
to outsmart the system.’” (quoting Shaw v. Jahnke, 607 F. Supp. 2d 1005, 1010
(W.D. Wis. 2009)).
37.

See Kaul et al., supra note 30, at 7–8.

38.

See infra note 56.

39.

On this point, see also Brandon L. Garrett & Lee Kovarsky, Viral Injustice, 110 CAL.
L. REV. 117, 169 (2022).

40.

Hallinan v. Scarantino, 466 F. Supp. 3d 587, 593 (E.D.N.C. June 11, 2020).

41.

Id. at 592–93; Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 and Class
Action Complaint for Injunctive and Declaratory Relief at 8, Hallinan v. Scarantino,
466 F. Supp. 3d 587 (E.D.N.C. June 11, 2020) (No. 5:20-hc-02088).

42.

Hallinan, 466 F. Supp. at 590–92, 596.

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technical reasons, 43 his lawyers withdrew the case; 44 the plaintiffs quickly
attempted to complete prison grievance processes (which some, including
Dr. Dailey, had initiated months earlier). 45 For the other plaintiffs, this took
over two additional months. 46 Dr. Dailey, however, did not have time; he
died of COVID days after the first case ended. He left a daughter and his life
partner, Cathy. 47
PLRA workarounds, too, often fail. That’s what happened to Ira
Goldberg, 72, incarcerated in New York to serve an aggregate seven-to
fourteen-year sentence for three third-degree burglary convictions, after
several incidents in which he stole camera equipment and other
merchandise from stores. 48 He suffered from serious, chronic medical
issues: chronic obstructive pulmonary disease, emphysema, asthma,
chronic renal failure, gastroesophageal reflux disease, high blood pressure,
high cholesterol, and Parkinsonism. His respiratory problems were so
severe that the mere act of speaking left him short of breath. 49 He faced
obvious and severe risk from COVID, which he alleged his prison did little to
mitigate. 50 His lawyers decided there was no point in filing a civil rights
action because of the PLRA’s restrictions on both exhaustion and release. 51
Instead, in April 2020, they filed a state court habeas petition; it was
dismissed at the trial level on the theory that habeas does not allow release
based on unconstitutional conditions of confinement (instead, a civil rights
action is the appropriate type of lawsuit). 52 Mr. Goldberg died on a
ventilator in January 2021 while his appeal of that decision was pending. 53
43.

Id. at 609.

44.

Joint Stipulation of Dismissal at 1, Hallinan v. Scarantino, 466 F. Supp. 3d 587
(E.D.N.C. June 11, 2020) (No. 5:20-hc-02088).

45.

Resp. in Opp. to Mot. to Dismiss, at 9–14, Hallinan v. Scarantino, No. 5:20-ct-03333
(E.D.N.C. filed Jan. 29, 2021).

46.

See id.

47.

Press Release, Fed. Bureau of Prisons, Inmate Death at FCI Butner (Low) (July 3,
2020),
https://www.bop.gov/resources/news/pdfs/20200703_press_release_but.pdf
[https://perma.cc/K3UH-TXMZ]; Obituary for Dr. John Dailey, The Bradford Era,
https://www.legacy.com/us/obituaries/bradfordera/name/john-daileyobituary?id=7822834 [https://perma.cc/U8PZ-9558] (last visited Mar. 24, 2022).

48.

Brief for Petitioner–Appellant, People ex rel. Dean v. Reardon, 138 N.Y.S.3d 442
(N.Y. App. Div. 2021) (No. KAH 20-00549).

49.

Id. at 3.

50.

Id. at 5–9.

51.

Id. at 12–13.

52.

Id. at 3, 12.

53.

Petitioner’s Death Moots Appeal of Dismissed Habeas, Pro Se, July 4, 2021, at 11,
https://plsny.org/wp-content/uploads/ProSe/

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II.

Solutions

The remainder of this Article canvasses three possible solutions: First,
plaintiffs should be allowed to proceed with their federal lawsuits if the
press of the emergency renders a prison or jail grievance system
“unavailable” because it is unable to process their complaint quickly enough
to offer any preventive relief. As we describe below, this is the right answer
under existing case law—but so far, one Court of Appeals and many district
courts have declined to follow this path. Second, prisons and jails could
implement working emergency grievance systems and state legislatures
could enact statutes forfeiting the defense in emergency situations. And
third, the PLRA could be amended to eliminate the exhaustion requirement
in emergency situations. We propose legislative text to accomplish this end.
A.

Solution 1: Judicial Interpretations of Unavailability

The PLRA’s exhaustion requirement includes its own limit: it requires
exhaustion of “such administrative remedies as are available.” 54 In 2016, in
Ross v. Blake, 55 the Supreme Court explained: “an inmate is required to
exhaust those, but only those, grievance procedures that are ‘capable of
use’ to obtain ‘some relief for the action complained of.’” 56 The Ross Court
elaborated three (non-comprehensive 57) categories of unavailability:
failure to exhaust does not bar a federal civil rights action by an
Incarcerated plaintiffwhere the grievance system in question offered only a
“dead end,” where it was opaque to the point of being unnavigable, or
where officials thwarted its use. 58
The language the Court used to describe the first type of unavailability
is worth setting out more fully:

Pro%20Se%202021%20Vol%2031%20No%2004.pdf
8BJH]; People ex rel. Dean, 138 N.Y.S.3d at 442.

[https://perma.cc/DMV7-

54.

42 U.S.C. § 1997e(a).

55.

578 U.S. 632 (2016).

56.

Id. at 642 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).

57.

See, e.g., Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016)
(“We note that the three circumstances discussed in Ross do not appear
exhaustive, given the Court’s focus on three kinds of circumstances that were
‘relevant’ to the facts of that case.”); Andres v. Marshall, 867 F.3d 1076, 1078 (9th
Cir. 2017) (describing the three circumstances listed in Ross as “a non-exhaustive
list”); West v. Emig, 787 F. App’x 812, 815 (3d Cir. 2019) (“[N]either the Supreme
Court nor this Circuit has held that those three circumstances [listed in Ross] are
comprehensive, as opposed to exemplary.”); Ramirez v. Young, 906 F.3d 530, 538
(7th Cir. 2018) (explaining that the three types of unavailability listed in Ross
“were only examples, not a closed list”).

58.

Ross, 578 U.S. at 643–44.

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First, as Booth [v. Churner] made clear, an administrative
procedure is unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to
aggrieved inmates. Suppose, for example, that a prison handbook
directs inmates to submit their grievances to a particular
administrative office—but in practice that office disclaims the
capacity to consider those petitions. The procedure is not then
“capable of use” for the pertinent purpose. In Booth’s words: “[S]ome
redress for a wrong is presupposed by the statute’s requirement” of
an “available” remedy; “where the relevant administrative procedure
lacks authority to provide any relief,” the inmate has “nothing to
exhaust.” So too if administrative officials have apparent authority,
but decline ever to exercise it. Once again: “[T]he modifier ‘available’
requires the possibility of some relief.” When the facts on the ground
demonstrate that no such potential exists, the inmate has no
obligation to exhaust the remedy. 59

So under Ross v. Blake, if a prison system has, say, stopped processing
grievances because of a COVID-related staff shortage (or for any other
reason), or has locked people in their cells without making provision for
collecting grievances, the administrators have rendered the grievance
system unambiguously unavailable. Plaintiffs incarcerated in affected jails
and prisons should therefore be able to file their lawsuits without first
running the gauntlet of the unavailable system. Incarcerated plaintiffs have
for this reason prevailed on exhaustion arguments in COVID-19 litigation
when administration or staff closed off grievance systems by policy or

59.

Id. at 643 (citations omitted) (quoting Booth, 532 U.S. at 736 & n.4, 738).

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proclamation 60 or by malfeasance. 61 Thus, where officers refused to provide
grievance forms to some individuals, threatened to transfer those who
complained to COVID-19-infested areas, and made such a transfer in at
least one case, the court held that exhaustion had been “thwarted by
machination and intimidation.” 62 Other decisions take a similar approach. 63
60.

See Maney v. Brown, 464 F. Supp. 3d 1191, 1207 (D. Or. 2020) (holding remedy
unavailable where officials admittedly were “not accepting grievances relating to
COVID-19 emergency operations, nor ‘general grievances regarding social
distancing, isolation, and quarantine of other AICs, or modified operations such as
the visiting shutdown’ because doing so is ‘inconsistent with ODOC’s rules’”; they
had accepted only fourteen of 216 COVID-19-related grievances (quoting Decl. of
Jacob Humphreys in Supp. of Defs.’ Resp. to Pls.’ Mot. for TRO and Prelim. Inj. at
5, Maney, 464 F. Supp. 3d 1191 (No. 20-cv-00570))); Gumns v. Edwards, No. 20cv-231, 2020 WL 2510248, at *3 (M.D. La. May 15, 2020) (holding remedy
unavailable where defendants had declared their grievance program “nonessential and suspended”); Torres v. Milusnic, 472 F. Supp. 3d 713, 742–43 (C.D.
Cal. 2020) (applying § 1997e(a) even though the case was a habeas corpus
proceeding, but excusing non-exhaustion and finding unavailability because
Incarcerated Individuals were “instructed by prison officials not to submit
grievances and requests for compassionate release because such grievances and
requests were not being accepted due to understaffing”).

61.

Cameron v. Bouchard, 462 F. Supp. 3d 746, 769–70 (E.D. Mich. 2020), on
reconsideration, No. 20-cv-10949, 2020 WL 2615740 (E.D. Mich. May 22, 2020),
vacated on other grounds, 815 F. App’x 978 (6th Cir. 2020).

62.

Id.

63.

See Bonnett v. Comm’r of Corr., No. 20-cv-3529, 2021 WL 1516052, at *7 (D. Md.
Apr. 15, 2021) (declining to find remedy available in light of evidence that “forms
for seeking an appeal of the Warden’s decision are not available to inmates
because officers will not hand them out and because the inmate library is closed”);
Wilson v. Ponce, No. 20-cv-4451, 2020 WL 5118066, at *6 (C.D. Cal. July 14, 2020)
(holding remedy unavailable based on evidence that staff were not accepting
grievance forms, were failing to process grievances that were filed, and were
telling incarcerated people they were “too busy with COVID-19 to deal with
complaints”); Ahlman v. Barnes, 445 F. Supp. 3d 671, 687 (C.D. Cal. 2020) (holding
remedies exhausted where defendants “refused to adjudicate some of the
grievances and denied others but failed to adjudicate the appeal”), stay denied,
No. 20-55568, 2020 WL 3547960 (9th Cir. June 17, 2020), stay granted, 140 S. Ct.
2620 (2020); Criswell v. Boudreaux, No. 20-cv-01048, 2020 WL 5235675, at *17
(E.D. Cal. Sept. 2, 2020) (finding probability of success on unavailability of the
remedy and citing evidence of intimidation and retaliation against individuals who
spoke to the ACLU, including repeated questioning about the interviews, transfer
to less desirable work assignments with higher risk of COVID-19 exposure, and
reclassification and transfer to higher-security units; finding of unavailability
concerned access to counsel in COVID-19 case); J.H. ex rel. N.H. v. Edwards, No.
20-cv-293, 2020 WL 3448087, at *42–44 (M.D. La. June 24, 2020) (finding
likelihood of success by plaintiffs on exhaustion question where third-party
grievants, permitted in this system, sent grievances to the wrong place, but did so
per official instructions, and where a named plaintiff completed the emergency
grievance process, and the policy did not say he had to then start over with the
general grievance process (and in fact suggested the opposite)). But see Sanchez

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A more general conclusion of unavailability is equally correct: When a
grievance seeks time-sensitive prevention of harm, but the grievance
system is unable to respond promptly, that deficit renders the grievance
system “a simple dead end,” in Ross v. Blake terms 64—such that its use is
not a prerequisite to a federal lawsuit. It would be prudent for a would-be
plaintiff to try to use the grievance system, but if the process is proceeding
too slowly to award “some relief for the action complained of,” 65 the
courthouse doors should not be closed. The leading Court of Appeals
decision on the interaction of the PLRA with this kind of urgency is Fletcher
v. Menard Correctional Center, 66 a Seventh Circuit opinion by then-Judge
Richard Posner. In Fletcher, the Court of Appeals held that a grievance
system that cannot grant relief quickly enough to avert serious physical
injury to the plaintiff is not an “available” remedy within the meaning of the
statute, though it added that if the grievance system provides for
emergency relief, the grievant must attempt to use that system before
coming to court. 67 Judge Posner wrote (anticipating the Ross v. Blake
approach):
[A] case in which the prisoner might be killed if forced to exhaust
remedies that do not include any remedy against an imminent danger
is not a circumvention case and is not controlled by Booth [v.
Churner], which in any event distinguished between a case in which
there are remedies but none to the prisoner’s liking (which was the
Booth case) and a case in which there is no remedy; for the Court said
that “without the possibility of some relief, the administrative
officers would presumably have no authority to act on the subject of
the complaint, leaving the inmate with nothing to exhaust.” If it takes
two weeks to exhaust a complaint that the complainant is in danger
of being killed tomorrow, there is no “possibility of some relief” and
so nothing for the prisoner to exhaust. 68

By contrast, in Valentine v. Collier, 69 the Fifth Circuit reached more-orless the opposite conclusion. Asked by the plaintiffs to excuse nonexhaustion on the theory that the slow process on offer was for that reason
“unavailable” under Ross v. Blake, the court found for the defendants:
v. Brown, No. 20-cv-832, 2020 WL 2615931, at *17 (N.D. Tex. May 22, 2020)
(dismissing complaints about functioning of grievance system as “special
circumstances” without discussing availability under Ross).
64.

Ross, 578 U.S. at 643.

65.

Booth v. Churner, 532 U.S. 731, 738 (2001).

66.

623 F.3d 1171 (7th Cir. 2010).

67.

Id. at 1173–75.

68.

Id. at 1174 (citations omitted) (quoting Booth, 532 U.S. at 736 n.4).

69.

Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020).

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The district court impermissibly applied a “special circumstances”
exception, like the one the Supreme Court rejected in Ross, under the
guise of an availability analysis. Its main rationale was that [the Texas
Department of Criminal Justice’s (“TDCJ”)] grievance process is
incapable of responding to the rapid spread of COVID-19. In other
words, the grievance process is not amenable to current
circumstances. But under Ross, special circumstances—even threats
posed by global pandemics—do not matter. . . .
....
Here, the district court heard evidence that Plaintiffs obtained
soap and cleaning supplies, COVID-19 testing, and the halt of
transfers into the Pack Unit, which they requested through the
grievance process at various points after commencing this litigation.
The court discounted that evidence because those changes were not
a direct response to Plaintiffs’ grievances. Indeed, the court noted
“[i]n some of these instances, TDCJ changed its policies prior to a
grievance being filed.” . . . From there, the court concluded that the
grievance process was unresponsive and thus unavailable. We do not
follow the district court’s logic. To the contrary, TDCJ’s conduct shows
that it was capable of providing “some relief for the action
complained of,” which is enough to render the grievance process
“available” under the PLRA. 70

An earlier motions panel in the case took the same approach when it
stayed a district court injunction, 71 provoking Justice Sotomayor’s warning,
issued in an opinion (joined by Justice Ginsburg) respecting the Supreme
Court’s denial of plaintiffs’ motion to vacate the Court of Appeals’ stay:
The Fifth Circuit seemed to reject the possibility that grievance
procedures could ever be a “dead end” even if they could not provide
relief before an inmate faced a serious risk of death. But if a plaintiff
has established that the prison grievance procedures at issue are
utterly incapable of responding to a rapidly spreading pandemic like
Covid–19, the procedures may be “unavailable” to meet the
plaintiff’s purposes, much in the way they would be if prison officials
ignored the grievances entirely. Here, of course, it is difficult to tell
whether the prison’s system fits in that narrow category, as
applicants did not attempt to avail themselves of the grievance
70.

Id. at 161–62 (citations omitted) (first quoting Valentine v. Collier, 490 F. Supp. 3d
1121, 1162 (S.D. Texas 2020), stay granted, 978 F.3d 154 (5th Cir. 2020); and then
quoting Ross v. Blake, 578 U.S. 632, 642 (2016)).

71.

Valentine v. Collier, 956 F.3d 797, 805–06 (5th Cir. 2020) (staying preliminary
injunction mitigating COVID-19 risks where plaintiffs had not exhausted
administratively before seeking it).

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process before filing suit. But I caution that in these unprecedented
circumstances, where an inmate faces an imminent risk of harm that
the grievance process cannot or does not answer, the PLRA’s textual
exception could open the courthouse doors where they would
otherwise stay closed. 72

In this debate, the Seventh Circuit is clearly correct and the Fifth Circuit
clearly incorrect. The problem is that, in Valentine, the Fifth Circuit mistook
the possibility of a non-litigated solution of the plaintiffs’ problems for the
possibility of a grievance-related remedy. Whether the Texas prison system
was “capable of providing ‘some relief’” 73 is not the relevant statutory
question; that question is, rather, whether the grievance system was so
capable. It was not; that’s why the district court found the timing so telling.
District courts have written decisions all over the map. In case after
case, federal courts have rejected claims by incarcerated people reporting
grave preexisting conditions that put them at risk for more serious COVID19 illness, combined with officials’ utter failure to mitigate pandemic risks,
because the incarcerated plaintiffs had not followed months-long grievance
procedures prior to seeking emergency relief in federal court. When prisons
failed to test, did not provide hygienic supplies like soap and sanitizer, failed
to provide or require staff and Incarcerated people to wear face masks,
made social distancing impossible, or failed to treat COVID illness, the
PLRA’s exhaustion requirement immunized all these failures from civil
rights enforcement, regardless of the merits or equities. 74 Courts have

72.

Valentine v. Collier, 140 S. Ct. 1598, 1600–01 (2020) (statement of Sotomayor, J.,
joined by Ginsburg, J.) (citing Ross, 578 U.S. at 642–43).

73.

Valentine, 978 F.3d at 162 (quoting Ross, 578 U.S. at 642).

74.

See, e.g., Coleman v. Jeffries, No. 20-4218, 2020 WL 6329469 at *1–2 (C.D. Ill. Oct.
28, 2020) (denying the plaintiffs’ motion for a preliminary injunction and
dismissing their complaint because they admitted they had not exhausted their
administrative remedies); Askew v. White, No. 5:20-cv-264, 2020 WL 4194994 at
*2–4 (M.D. Ga. July 21, 2020) (holding that plaintiff’s action must be dismissed
because, “[o]n its face, Plaintiff’s complaint clearly shows that he did not exhaust
administrative remedies prior to filing this lawsuit,” and “[c]ontrary to Plaintiff’s
assertions, the Court has ‘no discretion to waive this exhaustion requirement’”
(quoting Bryant v. Rich, 530 F.3d 1368, 1372 (11th Cir. 2008))); Ball v. Ohio, No.
20-cv-1759, 2020 WL 1956836 at *2–4 (S.D. Ohio Apr. 23, 2020) (“[I]t is
RECOMMENDED that Plaintiff’s Complaint be DISMISSED WITHOUT PREJUDICE in
its entirety for failure to comply with the PLRA’s exhaustion requirements.”),
report and recommendation adopted, 2020 WL 2468742 at *1 (S.D. Ohio May 13,
2020); Abdulaziz/Askew v. Payne, No. 20-cv-529, 2021 WL 1745514 at *2 (E.D. Ark.
Apr. 20, 2021) (holding the plaintiff’s claims “should be DISMISSED, without
prejudice, based on his failure to exhaust his administrative remedies prior to
filing suit”), report and recommendation adopted, 2021 WL 1740081 * at 1 (E.D.
Ark. May 3, 2021); Nellson v. Barnhart, 454 F. Supp. 3d 1087, 1093–94 (D. Colo.
2020) (holding that the ninety-day regular grievance process is not a “dead end”

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routinely denied requests for temporary restraining orders and preliminary
injunctions where the incarcerated plaintiffs appear not to have exhausted
or do not show at the outset that they have exhausted. 75
But other courts (though no appellate courts at this point) have
accepted arguments by plaintiffs that a prolonged administrative process is
unavailable, for PLRA purposes, when lawsuits complain of a highly
contagious, fast-spreading epidemic and seek preventive steps. As one
district judge put it:
The Court appreciates that the Connecticut [Department of
Correction] grievance procedure is available and capable of offering
relief in ordinary times. However, these are not ordinary times. The
Connecticut DOC grievance procedure, which lacks an emergency
review process, was not set up with a pandemic in mind. Although
Defendants’ point that not every grievance will require 105 business
days to resolve is well taken, the imminent health threat that COVID19 creates has rendered DOC’s administrative process inadequate to
the task of handling Plaintiffs’ urgent complaints regarding their
health. . . . Because COVID-19 spreads “easily and sustainably,”
Plaintiffs risk contracting the disease while foregoing these hygienic
precautions and attempting to exhaust the DOC’s administrative
grievance procedure, which occurs in four stages and involves an
informal resolution process, the filing of an initial formal complaint,
and two rounds of appeals. In this context, the DOC’s administrative
grievance process is thus, “practically speaking, incapable of use” for
resolving COVID-19 grievances. As such, the Court concludes that
administrative remedies for the relief that Plaintiffs seek are
unavailable, and thus exhaustion is not required for Plaintiffs to
proceed on their § 1983 claims. 76

since “some relief” is available, as defendants had taken some protective actions)
(quoting Ross, 578 U.S. at 642–43)).
75.

E.g., Pelino v. Sec’y Pa. Dep’t of Corr., 791 F. App’x 371, 373 (3d Cir. 2020) (per
curiam) (stating “exhaustion is a preliminary requirement before addressing the
merits of a litigant’s claim for relief” in injunctive case alleging constitutional
violations); Coleman v. Jeffries, No. 20-4218 2020 WL 6329469, at *2 (holding
plaintiffs cannot show likelihood of success if they have not exhausted); Victory v.
Berks Cnty., No. 18-cv-5170, 2019 WL 653788, at *7 (E.D. Pa. Feb. 15, 2019) (“If
[Plaintiff] does not carry her burden of showing exhaustion, she cannot
demonstrate a likelihood of success on the merits of her claim . . . .”).

76.

McPherson v. Lamont, 457 F. Supp. 3d 67, 81 (D. Conn. 2020) (citations omitted)
(quoting Ross, 578 U.S. at 643) (citing Fletcher v. Menard Corr. Ctr., 623 F.3d 1171,
1173 (7th Cir. 2010)); accord Smith v. DeWine, 476 F. Supp. 3d 635, 657 (S.D. Ohio
2020) (denying dismissal for non-exhaustion because court “does not believe the
Director has upheld her burden of showing that Plaintiffs failed to exhaust their

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Another decision, rejecting Valentine’s analysis that administrative
remedies are available as long as some solution may be implemented
sometime (regardless of the connection to the grievance), held that a
grievance system was unavailable, in part because it “contain[ed] no
deadlines and therefore fail[ed] to assure that an inmate’s grievance
w[ould] be reviewed by [Maryland’s Division of Pretrial Detention and
Services] before the inmate [was] affected by COVID-19.” 77 And another
court held that an incarcerated person who filed an emergency grievance
about his COVID-19 complaints, with a seventy-two-hour deadline for
response, had exhausted for the class he sought to represent where he had
not received a response after six days had passed. 78
That the PLRA is generally unfavorable to incarcerated Individuals does
not justify still more plaintiff-unfriendly applications. The PLRA simply does
not require that incarcerated people be stuck with a grievance system
incapable of responding timely to them, whatever danger they face and
whatever the urgency of relief. Ross v. Blake’s approach requires that courts
consider “real-world workings of prison grievance systems” in assessing
whether a prison’s administrative remedy is in fact available to provide
relief in emergency situations. 79 This interpretive solution to the PLRA’s
emergency problem requires lower courts to carefully consider grievance
systems’ ability to address emergencies in a meaningful timeframe in order
to give meaning to the one exception to the PRLA’s exhaustion mandate—
availability.
B.

Solution 2: State and Local Grievance Systems, and Statutory Waiver

Although the PLRA is a federal statute, and although it limits the ability
of incarcerated people to access the federal courts, there is nonetheless a
significant role state and local agencies and legislatures can play in
developing solutions to the problem we identify. The rules and
requirements of exhaustion under the PLRA are defined by prisons and jails’
grievance processes, not by the PLRA itself. That is, the PLRA requires
incarcerated plaintiffs to exhaust the available remedies, but leaves the
defendant agencies to determine what remedies and related procedures

administrative remedies and that doing so would not be a dead end in light of the
pandemic”).
77.

Duvall v. Hogan, No. 94-2541, 2020 WL 3402301, at *8 (D. Md. June 19, 2020).

78.

Banks v. Booth, 468 F. Supp. 3d 101, 120–21 (D.D.C. 2020), appeal dismissed,
cause remanded, 3 F.4th 445, 449 (D.C. Cir. 2021); accord, e.g., Frazier v. Kelley,
460 F. Supp. 3d 799, 831–34 (E.D. Ark. 2020) (declining to find for defendants on
exhaustion claims given open issues, including whether remedy was sufficiently
timely available).

79.

Ross, 578 U.S. at 643.

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will be offered. 80 Prisons and jails are free to implement working emergency
grievance systems that could address emergencies in an expedited time
frame and, where the systems fail to provide adequate relief, allow
incarcerated people who have used them expedient access to the federal
courts. 81 Additionally (or alternatively), state legislatures could waive PLRA
exhaustion by enacting statutes forfeiting or waiving the affirmative
defense of exhaustion in cases in which emergency relief is sought. We
discuss each of these in turn.
Grievance systems that allow for the serious consideration of
emergency relief must include three key features: (1) appropriate inclusion
of urgent matters; (2) speedy processing, with timing able to both prevent
looming harm and allow for prompt court access; and (3) procedures
simple enough that an incarcerated person facing an emergency can
reasonably be expected to follow them.
On the first point—coverage—Delaware, for example, has a formula
that makes sense. Its emergency process covers “[a]n issue that concerns
matters which under regular policy time limits would subject the inmate to
a substantial risk of personal, physical or psychological harm.” 82 What’s
good about this text is that its criteria are functional, rather than hinging on
an arbitrary time limit. Several other jurisdictions use similarly broad
definitions of emergency that focus on the potential harm to the individual
or institution. 83 These policies allow prison officials to consider a broad
80.

Jones v. Bock, 549 U.S. 199, 218 (2007).

81.

For a recent proposal that, like our Solution 2, emphasizes state responses to the
PLRA, see Melissa Benerofe, Note: Collaterally Attacking the Prison Litigation
Reform Act's Application to Meritorious Prisoner Civil Litigation, 90 Fordham L.
Rev. 141 (2021) (recommending that states process prison grievances
electronically, and give access to the resulting electronic records to legal aid
organizations litigating prisoner civil rights cases).

82.

State of Del. Dep’t of Corr., Policy No. 4.4, Inmate Grievance Policy 1 (2011),
https://bidcondocs.delaware.gov/DOC/DOC_1205Commiss_INFO2.pdf
[https://perma.cc/2TNX-EKW2].

83.

See, e.g., State of Alaska Dep’t of Corr., Index No. 808.03, Prisoner Grievances 1
(2006)
https://www.law.umich.edu/special/policyclearinghouse/Documents/Alaska%20
-%20808.03.pdf [https://perma.cc/FV7C-BYK6]; Fla. Admin. Code r. 33-103.001
(LEXIS
through
Apr.
14,
2022)
https://www.flrules.org/gateway/RuleNo.asp?title=INMATE%20GRIEVANCE%20
PROCEDURE&ID=33-103.002 [https://perma.cc/RA5J-UL2Z]; Ill. Dep’t of Corr., DR
504,
Grievance
Procedures
12
(2003),
https://www.law.umich.edu/special/policyclearinghouse/Documents/Illinois%20
Grievance%20Procedures.pdf [https://perma.cc/UT8N-L7M5]; Miss. Dep’t of
Corr., S.O.P. 20-08-01, Grievance Procedures - Offender 4 (2012)
https://www.law.umich.edu/special/policyclearinghouse/Documents/Mississippi
_SOP.pdf [https://perma.cc/SH7F-BYJT]; State of Vt. Dep’t of Corr., Directive:
320.01,
Offender
Grievance
System
2
(2006),

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range of circumstances that constitute an emergency. Note, however, that
they simultaneously give significant discretion to prison officials to
determine whether the individual’s complaint is truly of an emergency
nature. Typically, where the issue is found non-emergent, these policies
require the grievance to be refiled or routed back into the standard,
lengthier process. 84 In our view, if a prison grievance officer inappropriately
fails to treat a grievance as an emergency, that renders the (slower,
ordinary) grievance process unavailable under Ross v. Blake. This approach
finds some support in the case law, 85 but some courts instead—and we
think erroneously—simply dismiss those claims for non-exhaustion. 86

https://doc.vermont.gov/sites/correct/files/documents/policy/correctional/320Grievance-System-Rule.pdf [https://perma.cc/X7BM-2HLX].
84.

See, e.g., Colo. Dep’t of Corr., Regul. No. 850-04, Grievance Procedure 8 (2022),
https://cdoc.colorado.gov/about/department-policies [https://perma.cc/9P9TCH7K]; Kan. Admin. Regs. § 44-15-101 (Westlaw through Apr. 7, 2022); Nev. Dep’t
of Corr., Admin. Regul. 740, Inmate Grievance Procedure 8–9 (2018),
https://doc.nv.gov/uploadedFiles/docnvgov/content/About/Administrative_Reg
ulations/AR%20740%20-%20Inmate%20Grievance%20Procedure%20%20Temporary%20-%2011.20.2018.pdf [https://perma.cc/5J8N-F63V]; Okla.
Dep’t of Corr., OP-090124, Inmate/Offender Grievance Process 17–18 (2022),
https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section09/op090124.pdf [https://perma.cc/G99E-6HWQ]; Tenn. Dep’t of Corr., Index No.
501.01,
Inmate
Grievance
Procedures
5
(2021),
https://www.tn.gov/content/dam/tn/correction/documents/501-01.pdf
[https://perma.cc/3PAE-XZS7]; Admin. Rev. & Risk Mgmt. Div., Tex. Dep’t of Crim.
Just.,
Offender
Grievance
Operations
Manual
16–17
(2012),
https://www.law.umich.edu/special/policyclearinghouse/Documents/TX%20Off
ender%20Grievance%20Manual.pdf [https://perma.cc/7A5M-BN6Z] [hereinafter
Tex. Dep’t of Crim. Just.]; Wash. State Dep’t of Corr., Offender Grievance Program
7
(2013),
https://www.law.umich.edu/special/policyclearinghouse/Documents/Washingto
n%20Grievance%20Manual%202013.pdf [https://perma.cc/SF3P-PBBG]; see also
Policy Clearinghouse, supra note 33 (archiving state policy documents, including
offender grievance policies).

85.

See, e.g., Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 832–34 (7th Cir.
2020) (allowing a case to proceed after a prison declared emergency grievance
petition non-emergent, but state law failed to tell the individual what his next
steps should be).

86.

See, e.g., Thornsberry v. Kerstein, No. 20-cv-00182, 2021 WL 4784817, at *4 (E.D.
Ark. Aug. 31, 2021), report and recommendation adopted, No. 20-cv-00182, 2021
WL 4785791 (E.D. Ark. Oct. 13); Williams v. Buchanan, No. 19-cv-1192, 2021 WL
488099, at *5 (S.D. Ill. Feb. 10, 2021) (dismissing for non-exhaustion where the
plaintiff did not resubmit a grievance that had been rejected as an emergency
grievance); Rachel v. Troutt, No. CIV-15-141-R, 2017 WL 9802855, at *5–6 (W.D.
Okla. Oct. 31, 2017) (dismissing for non-exhaustion where prison officials disputed
grievance’s emergency designation, finding that the determination of whether a
plaintiff has raised an “emergency” is within the discretion of prison officials),

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As to the second point—speedy processing—a functional emergency
grievance process is one that can be exhausted expeditiously. Some
jurisdictions appropriately require emergency grievances to be answered
within a few days or even hours. For example, Colorado and Wyoming
require grievances deemed emergencies to be answered within three
business days. 87 Virginia and Washington require a response within eight
hours. 88 By contrast, some jurisdictions have an emergency grievance
process only in name, without any specific timeframes or with timeframes
almost as lengthy as for regular grievances. 89
In addition, an expedited response time is not all that is needed to
guarantee that incarcerated plaintiffs will be able to access courts quickly.
The standard appeal process in most grievance systems is a multi-level,
time-consuming process, and unless otherwise specified, is available to
those seeking relief under emergency procedures. This means that, before
bringing a claim for emergency relief to federal court, a prospective plaintiff
would need to exhaust the entire appeal process. So expedited second level
review is just as important as expedited first level response. Moreover, the
need for speed demands that emergency grievance processes allow for no
more than a two-step process (e.g., an initial grievance and an expedited
appeal). Washington’s emergency grievance system provides a helpful
model, at least with regard to its timeline. Its policy is unique in that it
requires an appeal of an emergency grievance to be answered within
twenty-four hours and clearly specifies that a third level appeal, which
would be available for standard grievances, is not available for
report and recommendation adopted, 2018 WL 1173000 (Mar. 6, 2018), aff’d, 764
F. App’x 778 (10th Cir. 2019).
87.

Colo. Dep’t of Corr., supra note 84, at 8; Wyo. Dep’t of Corr., Pol’y & Proc. No.
3.100, Inmate Communication and Grievance Procedure 18 (2019),
https://docs.google.com/a/wyo.gov/viewer?a=v&pid=sites&srcid=d3lvLmdvdnxk
b2N8Z3g6NjZmYzgyNDY2OGFhODc1YQ [https://perma.cc/Z2N2-P3XV].

88.

Va. Dep’t of Corr., Operating Proc. 866.1, Offender Grievance Procedure 14
(2021),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op866-1.pdf [https://perma.cc/69D3-GYH2]; Wash. State Dep’t of Corr., supra note
84, at 8.

89.

New York and Illinois, for example, include no specific timeframe for response to
emergency grievances. N.Y. State Dep’t Corr. & Cmty. Supervision, No. 4040,
Inmate
Grievance
Program
14
(2016),
https://doccs.ny.gov/system/files/documents/2020/11/4040.pdf
[https://perma.cc/5UZN-LF59]; Ill. Dep’t of Corr., supra note 83, at 12 (2003),
https://www.law.umich.edu/special/policyclearinghouse/Documents/Illinois%20
Grievance%20Procedures.pdf [https://perma.cc/C44A-FQW9]. Although Texas
exempts emergency grievances from the informal resolution process, it subjects
them to the same forty-day deadline for regular grievances. Step II appeals in
Texas are available for emergency grievances and include a forty-five-day
response time (thirty-five days for medical emergency grievances). Tex. Dep’t of
Crim. Just., supra note 84, at 17–18, 59, 78.

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emergencies. 90 Other states, by contrast, do not specify a similarly
expedited timeline for an appeal of an emergency grievance. 91
Finally, if an emergency grievance process is going to provide the
possibility of relief or meaningful access to courts for incarcerated people
facing emergencies, the procedures must be straightforward. Prison
grievance procedures are notoriously cumbersome and complex—difficult
to follow under the easiest of circumstances, let alone during a crisis. 92
Emergency grievance procedures should be written in simple language, and
should be available in multiple languages and accessible formats for nonEnglish speakers and people with disabilities. The emergency grievance
procedures, including appeals, should be entirely contained in one section
of the grievance policy—rather than scattered throughout, as seen in
several policies that do not provide for emergency-specific appeal
processes. 93 Prisons and jails should allow third parties to submit grievances
in the event that the emergency itself, or other factors such as mental
disability or fear of reprisal, present barriers to filing. 94
Given that prisons and jails may lack incentives to improve emergency
grievance procedures, 95 state legislatures, which have in recent times been
more active in efforts to reform civil rights litigation, 96 can step in where the
agencies themselves do not provide working solutions. It is well within the
authority of state legislatures that wish to avoid the negative consequences
90.

Wash. State Dep’t of Corr., supra note 84, at 7, 8.

91.

See, e.g., Colo. Dep’t of Corr., supra note 84; Miss. Dep’t of Corr., supra note 83,
at 7–8; N.Y. State Dep’t Corr. & Cmty. Supervision, supra note 89; N.C. Dep’t of
Pub.
Safety,
Administrative
Remedy
Procedure
8–9
(2013),
https://files.nc.gov/ncdps/div/Prisons/Policy_Procedure_Manual/G.0300_08_01
_13.pdf [https://perma.cc/S3SQ-VDBG].

92.

See Margo Schlanger, Civil Rights Injunctions over Time: A Case Study of Jail and
Prison Court Orders, 81 N.Y.U. L. Rev. 550, 592–93 (2006).

93.

See supra note 91.

94.

In the context of claims involving sexual assault in prisons, the Department of
Justice recognized the importance of allowing third parties to submit grievances
on behalf of incarcerated people. The regulations implementing the Prison Rape
Elimination Act require prisons and jails to allow grievances filed by third parties.
28 C.F.R. § 115.52 (2020).

95.

See Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s
Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U.
Pa. J. Const. L. 139, 149 (2008).

96.

Alexander A. Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and
Civil Rights Enforcement, 116 Nw. U. L. Rev. 737, 769–75 (2021). For recent
examples of state statutes enacted to facilitate civil rights litigation, see Act of
June 19, 2020, ch. 110, § 3, 2020 Colo. Sess. Laws 445 (codified as amended at
Colo. Rev. Stat. § 13-21-131 (2021)), amended by Act of July 6, 2021, ch. 458, § 6,
2021 Colo. Sess. Laws 3054; New Mexico Civil Rights Act, ch. 119, 2 N.M. Laws
1849 (2021) (codified at N.M. Stat. Ann. §§ 41-4A-1 to 41-4A-13).

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of the PLRA’s exhaustion rule to overrule it by state legislation. 97 After all,
even the jurisdictional bar of sovereign immunity can be waived by state
statute. 98 And the Supreme Court has been clear: the PLRA exhaustion
requirement is not jurisdictional. 99 In fact, it’s not even a pleading
requirement, but rather an affirmative defense. 100 Accordingly, it may be
intentionally waived, or forfeited by defendants’ failure to raise it (or failure
to timely raise it). 101
Statutory waiver certainly suffices for cases against government
entities, 102 but we think it would also be dispositive in damages actions
against state or local employees. After all, the PLRA’s caselaw holds that
waiver of administrative exhaustion need not be by the particular individual
defendant. 103 Rather, courts have consistently held that if prison officials
decide the merits of a grievance rather than rejecting it for procedural
noncompliance, an individual defendant cannot rely on that noncompliance
to seek dismissal of subsequent litigation for non-exhaustion. 104 As the
Ninth Circuit put it:
97.

Reinert et al., supra note 96.

98.

See Sossamon v. Texas, 563 U.S. 277, 284–85 (2011) (first citing Coll. Savings Bank
v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 680 (1999); and then
Hoffman v. Conn. Dep’t of Income Maint., 492 U.S. 96, 101–102 (1989)).

99.

Woodford v. Ngo, 548 U.S. 81, 101 (2006).

100. Jones v. Bock, 549 U.S. 199, 214 (2007); Handberry v. Thompson, 446 F.3d 335,
342 (2d Cir. 2006).
101. See, e.g., Handberry, 446 F.3d at 342–43 and cases cited therein, finding the
defense waived or conceded. See also Anderson v. XYZ Corr. Health Servs., Inc.,
407 F.3d 674, 679–80 (4th Cir. 2005) (rejecting the argument that exhaustion
defense is “not forfeitable” (quoting Brickwood Contractors, Inc. v. Datanet Eng’g,
Inc., 369 F.3d 385, 395 (4th Cir. 2004))); Johnson v. Testman, 380 F.3d 691, 695–
96 (2d Cir. 2004) (holding the defense was waived by failure to assert it in the
district court); Smith v. Mensinger, 293 F.3d 641, 647 n.3 (3d Cir. 2002) (holding
defense can be, and was, waived); Randolph v. Rodgers, 253 F.3d 342, 347 n.11
(8th Cir. 2001) (citing Randolph v. Rodgers, 170 F.3d 850, 857 n.8 (8th Cir. 1999));
Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999).
102. Some such cases proceed formally against government entities; others, seeking
injunctive relief, are nominally against government officers but are for all intents
and purposes (except sovereign immunity) against the government. See Ex Parte
Young, 209 U.S. 123, 138 (1908); Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(citing Brandon v. Holt, 469 U.S. 464, 471–72 (1985) (noting that the real party in
interest in an injunctive case against government officers is the state)).
103. Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (‘‘We are mindful that the
primary purpose of a grievance is to alert prison officials to a problem, not to
provide personal notice to a particular official that he may be sued; the grievance
is not a summons and complaint that initiates adversarial litigation.’’).
104. Does 8–10 v. Snyder, 945 F.3d 951, 962 (6th Cir. 2019) (citing Reed-Bey v.
Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010)); Rinaldi v. United States, 904 F.3d
257, 271 (3d Cir. 2018) (“We simply reaffirm . . . that when an inmate’s allegations

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When prison officials opt not to enforce a procedural rule but instead
decide an inmate’s grievance on the merits, the purposes of the PLRA
exhaustion requirement have been fully served: prison officials have
had a fair opportunity to correct any claimed deprivation and an
administrative record supporting the prison’s decision has been
developed. Dismissing the inmate’s claim for failure to exhaust under
these circumstances does not advance the statutory goal of avoiding
unnecessary interference in prison administration. Rather, it
prevents the courts from considering a claim that has already been
fully vetted within the prison system. 105

This rule, said the Court of Appeals, serves the government’s additional
interest in:
“deciding when to waive or enforce its own rules” . . . “tak[ing] into
account the likelihood that prison officials will benefit if given
discretion to decide, for reasons such as fairness or inmate morale or
the need to resolve a recurring issue, that ruling on the merits is
better for the institution and an inmate who has attempted to
exhaust available prison remedies. 106

And specifically, courts have consistently rejected the argument that
government agencies cannot waive the non-exhaustion defense that
‘have been fully examined on the merits’ and ‘at the highest level,’ they are, in
fact, exhausted.”) (quoting Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)));
Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018) (“[A] prisoner has
exhausted his administrative remedies when prison officials decide a procedurally
flawed grievance on the merits. . . . [D]istrict courts may not enforce a prison’s
procedural rule to find a lack of exhaustion after the prison itself declined to
enforce the rule.”) (quoting Whatley v. Warden, Ware State Prison, 802 F.3d 1205,
1215 (11th Cir. 2015))); Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); Whatley,
802 F.3d at 1213–14 (“We join our sister Circuits in holding that district courts may
not find a lack of exhaustion by enforcing procedural bars that the prison declined
to enforce.”); Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per curiam)
(stating “all circuits that have addressed it have concluded that the PLRA’s
exhaustion requirement is satisfied if prison officials decide a procedurally flawed
grievance on the merits” and citing cases); Hill v. Curcione, 657 F.3d 116, 125 (2d
Cir. 2011) (holding “the exhaustion requirement of the PLRA is satisfied by an
untimely filing of a grievance if it is accepted and decided on the merits by the
appropriate prison authority.”); Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011)
(“Where prison officials address an inmate’s grievance on the merits without
rejecting it on procedural grounds, the grievance has served its function of alerting
the state and inviting corrective action, and defendants cannot rely on the failure
to exhaust defense.”) (citing Conyers v. Abitz, 416 F.3d 580, 585 (7th Cir. 2005))).
105. Reyes, 810 F.3d at 658 (citations omitted) (first citing Porter v. Nussle, 534 U.S.
516, 525 (2002); and then citing Woodford v. Ngo, 548 U.S. 81, 93 (2006)).
106. Reyes, 810 F.3d at 658 (first quoting Reed-Bey, 603 F.3d at 325; and then quoting
Hammett, 681 F.3d at 948).

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otherwise would be available to individual litigation defendants since the
exhaustion requirement is intended to serve institutional purposes, and
since the grievance system at issue did not give individual employees a role
in controlling the resolution of grievances. 107
The impact of the PLRA’s exhaustion requirement is heavily dependent
on states and municipalities—on the grievance procedures they design and
on their choice of whether to assert the defense. Whether by creating
functioning grievance systems that remedy emergency situations or
provide a swift process that allows potential plaintiffs timely access to
federal courts, or by enacting a statutory waiver of the exhaustion defense,
state and local governments can solve the problem we identify.
C.

Solution 3: Federal Amendment

As already discussed, courts can solve the emergency relief issue by
implementing the PLRA by its terms—as Ross v. Blake insists. Or the
emergency relief issue can be solved at the state or local level—prison and
jail systems can enact a simple and timely emergency grievance system or
state and local legislatures can statutorily waive exhaustion for
emergencies. A third solution is within the power of the Congress. It is to
provide that, in an emergency, as defined by responsible agencies of
government or found by the court, a federal district court may order relief
without waiting for the prison administrative process. That relief must be
limited in time and scope to prevent or remedy significant risk of harm
arising from the emergency. Proposed legislative language follows 108:
Section 7 of the Civil Rights of Institutionalized Persons Act (42 U.S.C.
1997e) is amended by adding at the end the following:
(1) RELIEF WITHOUT EXHAUSTING ADMINISTRATIVE REMEDIES.—
Notwithstanding the other provisions of this section, during an
emergency circumstance, a prisoner need not exhaust administrative
remedies with respect to prison conditions that pose a significant risk
107. See Alexander v. Fillion, No. 16-cv-64, 2017 WL 1347998, at *4 (W.D. Mich. Mar.
14, 2017) (rejecting contention that “even if the MDOC waived the procedural rule
during the grievance process, the individual Defendants never expressly waived
their right to enforce it. . . . Defendants’ argument has no merit because they do
not have any individual right in enforcing a procedural rule within the MDOC
grievance procedure.”), report and recommendation adopted, 2017 WL 1330307,
at *1 (W.D. Mich., Apr. 11, 2017); Benyamini v. Swett, No. 13-cv-735, 2015 WL
4879599, at *5–6 (E.D. Cal., Aug. 14, 2015), report and recommendation adopted,
No. 13-cv-735, 2015 WL 5611096, at *1 (E.D. Cal., Sept. 23, 2015); Jewkes v.
Shackleton, No. 11-cv-00112, 2012 WL 5332197, *4–5 (D. Colo., Oct. 29, 2012),
appeal dismissed, No. 12-1479 (10th Cir., June 11, 2013).
108. This proposed bill text addresses only administrative exhaustion because that’s
the subject of this article. Other PLRA amendments responsive to emergencies—
for example, relaxing the constraints on emergency releases from dangerous
confinement—would also be appropriate.

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of harm, including access to counsel, to the prisoner before bringing
an action related to the emergency circumstance under section 1979
of the Revised Statutes of the United States (42 U.S.C. 1983) or any
other Federal law.
(2) DEFINITIONS.—For purposes of this subsection, the term
‘emergency circumstance’ means—
(A) an instance in the geographic area in which the prisoner is located,
with respect to which—
(i) the President has declared a national emergency under the
National Emergencies Act (50 U.S.C. 1601 et seq.);
(ii) the Secretary of Health and Human Services has declared an
emergency pursuant to the Public Health Service Act (42 U.S.C. §§ 201
et seq.);
(iii) there has been an emergency or disaster declaration or resolution
by a tribe; or
(iv) there has been a State, county, or local emergency or disaster
declaration pursuant to State law; or
(B) a situation at a particular jail, prison, or correctional facility
presents an immediate and significant risk to health or safety of the
prisoner or prisoners.

As can be seen, this proposed exception to the exhaustion requirement
is closely tailored to the emergency circumstances, both in substance and
in duration, so as not to undermine the present exhaustion requirement,
which will continue to govern in non-emergency circumstances. A
complaint that is not exhausted and that claims an emergency not declared
by the relevant government actor, and not otherwise deemed an
emergency by the court, would be dismissed for non-exhaustion. The
current Congress probably lacks the necessary appetite for such reform, but
perhaps a future Congress could implement this legislative solution. It is a
modest and narrow amendment that largely leaves intact the exhaustion
requirement.

Conclusion
The PLRA’s exhaustion requirement has, for the last twenty-five years,
repeatedly closed the courthouse doors to incarcerated plaintiffs seeking
to vindicate the constitutional rights meant to protect their health and
safety behind bars. This is by no means a revelation. 109 The COVID-19
109. Schlanger, Inmate Litigation, supra note 3, at 1667–68.

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pandemic, however, has placed in stark relief just how difficult it is for those
in prison to get a hearing on the merits of their claims for emergency relief.
The three types of solutions proposed in this article—the interpretative
solution, the state or local solution, and the federal legislative solution—
either alone or in combination, would alleviate some of the difficulties faced
by incarcerated plaintiffs seeking emergency relief, increasing the
possibility that courts would hear prisoner rights cases on the merits. To be
sure, even with all of these solutions implemented, incarcerated plaintiffs
seeking relief from pandemic-related constitutional violations face an uphill
battle to surmount many obstacles, among them: the stringent
constitutional standards that govern these claims; 110 other provisions of the
PLRA, most notably, the constraints on federal courts’ ability to grant
release as a remedy; 111 and inadequate access to counsel. Nonetheless,
prison litigation in and about the current pandemic has shown that justice
requires easing the burden of exhaustion in these limited emergency
circumstances.

110. See sources cited supra note 3.
111. 18 U.S.C. § 3626(a)(3).

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