The Usual Practice: Raising and Deciding Failure to Exhaust Available Administrative Remedies as an Affirmative Defense Under the Prison Litigation Reform Act

47 Pages Posted: 9 Mar 2010 Last revised: 19 May 2010

Date Written: March 7, 2010


With troubling frequency, the Federal Rules of Civil Procedure, which govern procedures of all civil actions in federal district courts, are manipulated or avoided when their prescriptions prove inconvenient. The Supreme Court has, on several occasions, admonished lower courts for disregarding or misconstruing these binding procedural rules. Ad hoc procedures are obnoxious to our legal system because they upset traditional notions of fairness and predictability - the very purpose of uniform rules of civil practice. Federal civil rights claims brought by prisoners are a recurrent setting for procedural abnormalities and the misapplication, or avoidance, of clear precedent; these procedural challenges compound the myriad difficulties already faced by prisoner litigants in federal court. While pleading standards for all litigants are modest and pro se plaintiffs enjoy liberal construction of their pleadings, the Prison Litigation Reform Act of 1995 (PLRA) established several unique hurdles for prisoner plaintiffs.

Relief in federal court for the most common civil rights suits does not require the exhaustion of state or administrative remedies. However, among the PLRA’s most effective barriers is the requirement that prisoners exhaust all “available” administrative remedies before bringing an action in federal court “with respect to prison conditions.” Exhaustion of administrative remedies is said to serve the dual purposes of protecting an agency’s authority to maintain procedures and correct its own errors, and promoting efficiency by avoiding unnecessary litigation and facilitating litigation that does result by developing an administrative record. In the prison context, administrative exhaustion means pursuing grievances through internal prison procedures and completing all levels of administrative appeals. Complying with every procedural nuance is vital because the Supreme Court has held that the PLRA’s exhaustion requirement includes a procedural default rule. In other words, while certain exceptions apply, when a prisoner fails to follow any grievance procedure related to a complaint, he is barred from pursuing that claim in federal court.

Frequently, prison grievance procedures include several steps: they often involve speaking with and/or providing a written grievance to prison officials - not infrequently, the officials who work in the area of the prison where the prisoner lives and, may be the very same officials whom the prisoner alleges have violated his constitutional rights; and pursuing one or more levels of administrative appeals. In several states, the time limit for pursuing a grievance is as little as two business days and, in at least one state, is as short as twenty-four hours. Because of the nature of prison grievances, disputes often arise over whether administrative remedies are “available,” whether those remedies were properly exhausted, and if not, whether an exception applies.

Federal courts have grappled with how to properly decide claims by the defendants prison officials that the plaintiff prisoner failed to properly exhaust available administrative remedies. In particular, courts have divided sharply over the overlapping questions of what is the appropriate procedural vehicle for raising a defense of failure to exhaust - e.g., by a motion to dismiss, a motion for summary judgment, or affirmatively pleading in the answer - and whether disputed factual issues raised by the exhaustion defense should be decided by the judge or a jury.

In weighing this issue, courts must contend with the Supreme Court’s recent decision in Jones v. Bock, which held that exhaustion is not a pleading requirement, but an affirmative defense. Therefore, federal courts are faced with two competing principles: in order to reduce the impact of prisoner litigation on federal courts, the PLRA mandates proper administrative exhaustion prior to filing suit; however, failure to exhaust is an affirmative defense, which defendants maintain the burden to plead and prove in an inquiry that is frequently fact intensive. How can courts avoid the burden of cases with unexhausted claims where properly adjudicating the exhaustion issue is dependent on disputed facts and credibility determinations? To reconcile these interests, some courts have fashioned sui generis procedures for resolving an exhaustion defense.

This Note contends that courts are bound by the usual procedural rules for raising and deciding claims of prisoner non-exhaustion as with any affirmative defense, and argues that the unusual procedures employed by some courts violate the usual practice. Part I outlines the background of the PLRA, and its administrative exhaustion requirement and important case law. Part II surveys the unique procedures employed by federal courts for deciding exhaustion issues, and Part III addresses the doctrinal weaknesses of these procedures. In particular, Part III addresses the Supreme Court’s staid enforcement of the usual practice prescribed by the rules of civil practice, the historical development of the relevant Federal Rules of Civil Procedure, conflicting federal statutory provisions, well-established Seventh Amendment jurisprudence on the province of the jury in determining genuine factual disputes, and the overarching policy implications of employing these ad hoc procedures. Finally, this Note concludes with a recommendation for the appropriate procedure to govern this particular area of civil procedure.

Keywords: exhaustion, prison litigation reform act, matter in abatement, affirmative defense, Jones v. Bock

Suggested Citation

Moskovitz, Joshua S., The Usual Practice: Raising and Deciding Failure to Exhaust Available Administrative Remedies as an Affirmative Defense Under the Prison Litigation Reform Act (March 7, 2010). Cardozo Law Review, Vol. 31, p. 1859, 2010, Available at SSRN:

Joshua S. Moskovitz (Contact Author)

Independent ( email )

No Address Available
United States

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