Conflicts Among Circuits in Applying
the Prison Litigation Reform Act

John Boston
Legal Aid Society Prisoners’ Rights Project
jboston@legal-aid.org
Prepared for Lambda Legal Defense and Education Fund training
October 17, 2005

There are several sharp and significant differences among circuits in the judicial application
of the Prison Litigation Reform Act. The most important involve its administrative exhaustion
requirement. This summary is intended to be used in conjunction with The Prison Litigation Reform
Act, which addresses the statute in more detail.

I.

Exhaustion of Administrative Remedies, 42 U.S.C. § 1997e(a): “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.”
A.

Burden of pleading and proving exhaustion

Most circuits have held that PLRA exhaustion is an affirmative defense that must be raised and
established by the defendants.
First: Casanova v. Dubois, 304 F.3d 75, 78 n.3 (1st Cir. 2002).
Second: Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); Jenkins v. Haubert, 179
F.3d 19, 28-29 (2d Cir. 1999).
Third: Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
Fourth: Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th
Cir.2005).
Seventh: Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999).
Eighth: Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam).
Ninth: Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th Cir.), cert. denied, 540 U.S. 810
(2003).
D.C.: Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C.Cir.2001).

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A few circuits have held that the prisoner plaintiff has the burden of pleading exhaustion.
Sixth: Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.) (per curiam), cert. denied, 525
U.S. 833 (1998).
Tenth: Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003), cert.
denied, 125 S.Ct. 344 (2004).
Eleventh: Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.1998) (“A
claim that fails to allege the requisite exhaustion of
remedies is tantamount to one that fails to state a
claim upon which relief may be granted.”).
One circuit has not made up its mind.
Fifth: Compare Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir.
1998) (“As long as the plaintiff has alleged exhaustion
with sufficient specificity, lack of admissible evidence
in the record does not form the basis for dismissal.”)
with Johnson v. Johnson, 385 F.3d 503, 516 n.7 (5th Cir.
2004) (noting that some prior decisions imply or assume
exhaustion is part of the plaintiff’s claim, but
questioning whether the matter has been decided) and
with Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)
(holding that PLRA exhaustion “imposes a requirement,
rather like a statute of limitations”).
Two circuits have imposed an extremely demanding pleading
requirement:
Sixth: Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.
2000) (“[A] prisoner must plead his claims with
specificity and show that they have been exhausted by
attaching a copy of the applicable administrative
dispositions to the complaint or, in the absence of
written documentation, describe with specificity the
administrative proceeding and its outcome. . . . In the
absence
of
particularized
averments
concerning
exhaustion showing the nature of the administrative
proceeding and its outcome, the action must be
dismissed. . . .”)
Tenth: Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003),
cert. denied, 125 S.Ct. 344 (2004) (adopting Sixth Circuit requirement).
One circuit has compounded the difficulty of its pleading standard by holding that prisoners may not
amend their complaints to cure deficiencies in exhaustion pleading identified by the district court at
the initial screening required by other sections of the PLRA.
Sixth: Baxter v. Rose, 305 F.3d 486, 488 (6th Cir. 2002).

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B.

Effect of noncompliance with prison procedural requirements

Several circuits have adopted a procedural default rule, by analogy to habeas corpus, under which
prisoners whose grievances are rejected for noncompliance with grievance procedures do not satisfy
the exhaustion requirement.
Seventh: Pozo v. McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir.),
cert. denied, 537 U.S. 949 (2002)
Tenth: Ross v. County of Bernalillo, 365 F.3d 1181, 1185-86
(10th Cir. 2004).
Eleventh: Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir.
2005).
One circuit has held there should be a “procedural default component,” but one that “must . .
. not be imposed in a way that offends the Federal Constitution or
the federal policy embodied in § 1997e(a),” which it said means the same
thing as its prior observation that compliance with grievance rules need only
be “substantial.”
Third: Spruill v. Gillis, 372 F.3d 218, 228-30, 232 (3d Cir. 2004).
One circuit has asserted a “strict approach” to compliance with
grievance rules without analogizing to habeas corpus.
Fifth: Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003); accord,
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001) (“Nothing in the Prison
Litigation Reform Act . . . prescribes appropriate grievance procedures or enables judges, by creative
interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems.”)
One circuit has held that “special circumstances” may justify prisoners in failing to exhaust, or to
exhaust correctly, and that similar circumstances may render administrative remedies unavailable or
may estop prison officials from asserting the non-exhaustion defense.
Second: Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004)
(special circumstances were reasonable understanding of
difference between grievances and disciplinary appeals);
Hemphill v. New York, 380 F.3d 680, 689-90 (2d Cir. 2004)
(lack of clarity in grievance regulations); Rodriguez v.
Westchester County Jail Correctional Dept., 372 F.3d 485, 487
(2d Cir. 2004) (reasonable misunderstanding of grievance
requirement).
Two circuits have held that violation of state procedural rules cannot bar a prisoner’s
federal claim as long as the prisoner exhausts by taking all available appeals, by analogy to Title VII
and related statutory schemes requiring resort to state administrative forums.
Sixth: Thomas v. Woolum 337 F.3d 720 (6th Cir. 2003).
Ninth: Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005).

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C.

Naming defendants in the administrative proceeding

One circuit has held that prisoners must have named all defendants
in their administrative grievances.
Sixth: Curry v. Scott, 249 F.3d 493, 504 (6th Cir. 2001).
One circuit has ruled consistently with an “exhaust each defendant”
rule without stating a general rule.
Eighth: Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir.
2003).
One circuit has held that prisoners must provide as much information as they “reasonably can” in
their grievances, including identities of persons involved.
Eleventh: Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir.
2000).
One circuit has held that the necessity of naming defendants depends on what information is
necessary to give fair notice of the problem to prison officials.
Fifth: Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004).
One circuit has held that where the grievance system requires naming the staff members involved,
failure to do so is a procedural default.
Third: Spruill v. Gillis, 372 F.3d 218, 234 (3rd Cir. 2004) (holding the default excused
because the grievance process itself identified the staff member).
Two circuits have held that where the grievance system does not require naming involved staff
members, failure to do so is not a failure to exhaust.
Seventh: Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004), cert. denied, 125 S.Ct.
1589 (2005) (holding sufficient a statement that “the administration” didn’t do its
job); accord, Barnes v. Briley, 420 F.3d 673, 678-79 (7th Cir. 2005); Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005) (rejecting plaintiffs' argument that
confiscating his legal papers with the defendants' names kept him from grieving
timely, since he didn't need their names for his grievance).
Ninth: Butler v. Adams, 397 F.3d 1181 (9th Cir. 2005).
D.

“Total exhaustion”

Three circuits have adopted the rule that if a complaint contains both exhausted and unexhausted
claims, the entire complaint must be dismissed for non-exhaustion.
Sixth: Jones Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005). But see Garner v. Unknown
Napel, 374 F.Supp.2d 582, 584-85 (W.D.Mich. 2005) (declining to apply Jones Bey
on the ground that it is contrary to earlier circuit precedent, Hartfield v. Vidor, 199
F.3d 305 (6th Cir.1999)).
Eighth: Kozohorsky v. Harmon, 332 F.3d 1141, 1142 (8th Cir. 2003) (but stating prisoner
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may be allowed to amend complaint to omit unexhausted claims).
Tenth: Ross v. County of Bernalillo, 365 F.3d 1181, 1188-90 (10th Cir. 2004). But see West
v. Kolar, 108 Fed.Appx. 568, 570, 2004 WL 1834634 at *2 (10th Cir., Aug. 17, 2004)
(holding district courts may allow plaintiffs to dismiss unexhausted claims and
proceed).
One circuit has rejected the total exhaustion rule.
Second: Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), cert. denied, 125 S.Ct. 1398 (2005).
E.

The Sixth Circuit’s exhaustion rules: cumulatively, uniquely disadvantageous to
prisoners.

Under the above cited Sixth Circuit decisions, prisoners must document exhaustion or plead it with
specificity; if their pleading or documentation is inadequate, they may not amend their complaints to
avoid dismissal; each defendant must have been named in the administrative grievance; the court
adheres to a total exhaustion rule, so the inclusion of an unexhausted claim or a single defendant not
named in the grievance requires dismissal of the entire complaint. Thus any error in exhaustion, or
even in describing it in the complaint, is irrevocable and penalized with dismissal of the entire case
without prejudice.

II.

The “three strikes” provision, 28 U.S.C. § 1915(g) (excluding from in forma pauperis
status prisoners who have had three complaints or appeals dismissed as frivolous,
malicious, or not stating a claim)

One circuit has held that dismissal for failure to exhaust cannot be counted as a “strike” under 42
U.S.C. § 1915(g) for purposes of disqualifying the prisoner from in forma pauperis status.
Second: Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999).
One circuit has held, and others have stated in dictum or unpublished opinion, that dismissal for nonexhaustion is or can be a “strike.”
Eighth: Millsap v. Jefferson County, 85 Fed.Appx. 539, 2003 WL 23021406 at *1 (8th Cir.
2003) (unreported) (holding that a failure to allege exhaustion should count as a
strike because it is a failure to state a claim, while actual failure to exhaust contrary
to the complaint’s allegations should not).
Tenth: Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003) (stating in
dictum that a dismissal for non-exhaustion may constitute a strike, without
explaining why or when), cert. denied, 125 S.Ct. 344 (2004).
Eleventh: Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (stating in dictum that
dismissal for non-exhaustion is “tantamount to” dismissal for failure to state a claim),
cert. dismissed, 524 U.S. 978 (1998).

III.

Prospective relief restrictions, 18 U.S.C. § 3626
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A.

Scope of injunctions in non-class actions

One circuit has held that under the PLRA’s requirement that prospective relief be the “least
intrusive” needed to remedy the violation, 18 U.S.C. § 3626(a), the court may generally enjoin an
unconstitutional policy in a non-class action.
Ninth: Clement v. California Dept. of Corrections, 364 F.3d 1148, 1152 (9th Cir. 2004)
(affirming statewide injunction against prohibition on receipt of materials
downloaded from the Interent); Ashker v. California Dep’t of Corrections, 350 F.3d
917, 924 (9th Cir. 2003) (citations omitted) (affirming injunction against a
requirement that “approved vendor labels” be affixed to all books sent to prisoners”).
One circuit has held that injunctive relief should be restricted to the specific plaintiff(s) in the
litigation.
Seventh: Lindell v. Frank, 377 F.3d 655, 660 (7th Cir. 2004) (holding injunction against
restrictions on receipt of clippings overbroad insofar as it applied to other prisoners
besides the plaintiff).
B.

Burden of proof on a motion to terminate prospective relief.

One circuit has held that defendants seeking to terminate an injunctive order have the burden of
proof
Ninth: Gilmore v. California, 220 F.3d 987, 1008 (9th Cir. 2000).
Two circuits have held that plaintiffs bear the burden of proof.
First: Laaman v. Warden, 238 F.3d 14, 20 (1st Cir. 2001).
Fifth: Guajardo v. Texas Dep’t of Criminal Justice, 363 F.3d 392, 395-96 (5th Cir. 2004)
(per curiam).

IV.

Limit on recovery for mental or emotional injury, 42 U.S.C. § 1997e(a): “No
Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.”
A.

Availability of punitive
damages are barred

damages

where

compensatory

Most circuits have held that punitive as well as nominal damages
may be recovered in cases of mental or emotional injury without
physical injury.
Second: Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002).
Third: Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir.2000);
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Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003)
Seventh: Calhoun v. DeTella, 319 F.3d 936, 943 (7th Cir. 2003) (noting that nominal
damages “are awarded to vindicate rights, not to compensate for resulting injuries,”
and that punitive damages “are designed to punish and deter wrongdoers for
deprivations of constitutional rights, they are not compensation ‘for’ emotional and
mental injury”); Cassidy v. Indiana Dep't of Corr., 199 F.3d
374, 376 (7th Cir. 2000).
Eighth: Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004), cert. denied, 125 S.Ct.
2528 (2005).
Tenth: Searles v. Van Bebber, 251 F.3d 869, 878-80 (10th Cir.
2001).
Others have held that punitive as well as compensatory damages are
barred for claims to which the statute applies.
Eleventh: Harris v. Garner, 190 F.3d 1279, 1286-87 (11th
Cir.1999), vacated in part and reinstated in pertinent
part, 216 F.3d 970, 984-85 (11th Cir.2000) (en banc),
cert. denied, 532 U.S. 1065 (2001).
D.C.: Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998).
One circuit appears to have held that no form of damages, even
nominal, is available for claims to which the statute applies.
Fifth: Alexander v. Tippah County, Miss., 351 F.3d 626, 629,
631 (5th Cir. 2003).
B.

Applicability of mental or emotional injury provision to First Amendment
claims.

Two circuits have held that First Amendment claims are not subject to the statute.
Seventh: Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999)
(“A prisoner is entitled to judicial relief for a
violation of his First Amendment rights aside from any
physical, mental, or emotional injury he may have
sustained.”).
Ninth: Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998) (“[T]he deprivation of First
Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical
injury he can show, or any mental or emotional injury he may have incurred.
Therefore, § 1997e(e) does not apply to First Amendment [c]laims regardless of the
form of relief sought.”).
Other circuits have held that the statute is applicable to First Amendment claims, or to constitutional
claims without exception.
Second: Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002).
Third: Allah v. al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000).
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Fifth: Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (per curiam).
Note: In my view the above conflict is part of a larger failure to think through the meaning of the
statute and the appropriate categorization of constitutional injury, as set forth in § V.B of the
separate materials, The Prison Litigation Reform Act.
C.

Applicability of mental or emotional injury provision to claims arising in a prior
period of incarceration unrelated to the current custody.

One circuit has held that the statute applies to a claim arising in an earlier, unrelated period of
custody.
Eleventh: Napier v. Preslicka, 314 F.3d 528, 532-34 (11th Cir.
2002), rehearing denied, 331 F.3d 1189 (11th Cir. 2003),
cert. denied, 540 U.S. 1112 (2004).
One circuit has held that such a rule would be absurd.
Eighth: Robbins v. Chronister, 402 F.3d 1047, 1050-51 (10th Cir. 2005).

V.

Assessment of filing fees and costs in in forma pauperis cases
A.

Consecutive or concurrent collection

One circuit has held that only one filing fee and one award of costs may be collected at one time
(i.e., no more than 40% of a prisoner’s funds may be taken).
Second: Whitfield v. Scully, 241 F.3d 264, 275-78 (2d Cir. 2001).
One circuit has held that all awards may be collected simultaneously even if the result is to take
100% of a prisoner’s funds.
Fifth: Atchison v. Collins, 288 F.3d 177, 180-81 (5th Cir. 2002).

B.

Treatment of filing fees in multi-plaintiff prisoner suits

One circuit has held that in multiple-plaintiff cases, fees and costs are to be equally divided among
the prisoners.
Sixth: In re Prison Litigation Reform Act, 105 F.3d 1131, 1137-38 (6th Cir.1997). But see
Jones v. Fletcher, 2005 WL 1175960 at *6 (E.D.Ky., May 5, 2005) (declining to
follow In re PLRA, holding that each plaintiff must pay a separate filing fee).
Two circuits have held that each plaintiff must pay an entire filing fee.
Seventh: Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004).
Eleventh: Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001), cert. denied, 534 U.S.
1136 (2002).
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One of these circuits has held that prisoners may not join in the same complaint, but must file
separate complaints.
Eleventh: Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001), cert. denied, 534 U.S.
1136 (2002).
The other such circuit has rejected the view that the PLRA amends the federal joinder rules.
Seventh: Boriboune v. Berge, 391 F.3d 852, 854-55 (7th Cir. 2004).

VI.

Attorneys’ fees, limited to 150% of the rate “established under” the Criminal Justice
Act.

Two circuits have held that the “established” rate is the rate set by the Judicial Conference based on
a statutorily authorized procedure for inflation adjustments. See Johnson v. Daley, 339 F.3d 582,
584 and n.‡ (7th Cir. 2003) (en banc) (describing procedure), cert. denied, 541 U.S. 935 (2004).
Sixth: Hadix v. Johnson, 398 F.3d 863 (6th Cir. 2005).
Ninth: Webb v. Ada County, 285 F.3d 829, 838-39 (9th Cir.),
cert. denied, 537 U.S. 948 (2002).
One circuit has held in dicta that the established rate is the lower rate actually paid based on
Congress’s failure to fund the Judicial Conference’s authorized rate.
Third: Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir.
1998).

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