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THE USUAL PRACTICE: RAISING AND DECIDING
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES AS AN AFFIRMATIVE DEFENSE UNDER
THE PRISON LITIGATION REFORM ACT
Joshua S. Moskovitz∗

INTRODUCTION
With troubling frequency, federal courts manipulate or avoid the
Federal Rules of Civil Procedure when their prescriptions prove
inconvenient. The Supreme Court has, on several occasions,
admonished lower courts for disregarding or misconstruing these
binding rules,1 which govern the procedure of all civil actions in federal
district courts.2 Ad hoc procedures are disturbing in our legal system
because they upset traditional notions of fairness and predictability in
litigation. Federal civil rights claims3 brought by prisoners4 are a
recurrent setting for procedural abnormalities5 and the misapplication,
or avoidance, of clear precedent;6 these procedural challenges
∗ Articles Editor, Cardozo Law Review. J.D. Candidate (June 2010), Benjamin N. Cardozo
School of Law; B.A., New York University, 2005. My sincere thanks to Professors Max Minzner
and Alex Reinert for their support, guidance, and interest—particularly in the obscurities of civil
procedure. I am grateful to John Boston for suggesting this topic, and to Jaya Vasandani for
opening my eyes to the struggles of the currently and formerly incarcerated. To Mom, Dad, and
Sara, I owe a debt of boundless support. More than anyone, Veronica deserves my fondest
gratitude for always listening to me, especially when I droned on about this Note.
1 See infra notes 135-144 and accompanying text.
2 FED. R. CIV. P. 1.
3 As discussed infra note 34, prisoner civil filings encompass suits based on civil rights,
prison conditions, and habeas petitions and similar actions. A large proportion of suits filed by
prisoners involve collateral attacks on their criminal convictions. Accordingly, when analyzing
the import of prisoner filings on the civil docket of federal district courts, the most appropriate
filings to consider are those raising only civil rights and prison condition claims. See Margo
Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1558 n.4 (2003); see also infra note 34.
4 Throughout this Note, the term “prisoner” is used to describe “any person incarcerated or
detained in any [federal or state] facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” See 28 U.S.C. § 1915(h) (2006).
5 See, e.g., Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam) (reversing dismissal of a
prisoner’s Eighth Amendment claims and admonishing the lower court for ignoring the Federal
Rules’ liberal pleading standards).
6 See infra notes 92-93 and accompanying text.

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compound the myriad difficulties already faced by prisoner litigants in
federal court. While pleading standards for all litigants are modest7 and
pro se plaintiffs8 enjoy liberal construction of their pleadings,9 the
Prison Litigation Reform Act of 1995 (PLRA) established several
unique hurdles for prisoner plaintiffs.10
Relief in federal court for the most common civil rights suits11 does
not require the exhaustion of state12 or administrative remedies.13
7 To state a claim for relief, all civil litigants, including those that are pro se, need only plead
“a short and plain statement of the claim showing that the pleader is entitled to relief.” See FED.
R. CIV. P. 8(a)(2). However, the exact quantum and quality of facts needed to satisfy Rule 8 has
received renewed attention from the Supreme Court recently. See Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009) (announcing that the “plausibility” standard for interpreting Rule 8 of Bell Atlantic v.
Twombly, 550 U.S. 544 (2007), applies universally to all civil actions). The Iqbal development
may increase the pleading burden on plaintiffs asserting discrimination claims, see, e.g., Atherton
v. D.C. Office of the Mayor, 567 F.3d 672, (D.C. Cir. 2009) (affirming dismissal of plaintiff’s
equal protection claim for removal from a grand jury); however, it may not upset the established
pleading expectations in typical civil rights suits. See, e.g., Tyree v. Zenk, No. 05-CV-2998,
2009 U.S. Dist. LEXIS 43872, at *21 (E.D.N.Y. May 22, 2009) (applying Iqbal and finding the
complaint contained sufficient “factual detail” about the incidents leading to the defendants’
alleged assault on the plaintiff to state a claim of conspiracy to violate the plaintiff’s due process
rights). This Note does not consider the effect Iqbal may have on prisoner litigants seeking to
vindicate their federal constitutional claims in court. However, it is worth considering whether a
heightened pleading standard counsels in favor of extending greater solicitude in other areas of
litigation, such as the procedural issues of deciding the defense of exhaustion of administrative
remedies discussed herein.
8 Unlike non-prisoner civil suits, the vast majority of prisoner civil filings come from pro se
litigants. For the twelve-month period ending September 30, 2008, only 9.5% of non-prisoner
civil filings were pro se cases, whereas more than 92% of prisoner filings were pro se.
STATISTICS DIV., ADMIN. OFFICE OF THE U.S. COURTS, 2008 ANNUAL REPORT OF THE
DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS 78 (2009), available at
http://www.uscourts.gov/judbus2008/JudicialBusinespdfversion.pdf [hereinafter 2008 JUDICIAL
BUSINESS].
9 See, e.g., Erickson, 551 U.S. at 94 (“‘[A] pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers . . . .’” (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976))).
10 Pub. L. No. 104-134, 110 Stat. 1321-66 (codified as amended in scattered sections of 18,
28, and 42 U.S.C. (2006)); see infra notes 38-44 and accompanying text. See generally Giovanna
Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power: Interpreting
the Prison Litigation Reform Act (PLRA), 29 CARDOZO L. REV. 291, 301 & nn.74-78 (2007)
(describing these PLRA provisions).
11 The predominant method for bringing a civil rights claim or challenging conditions in a
state prison is pursuant to 42 U.S.C. § 1983 (2006), which creates a private cause of action for
violations of federal constitutional or statutory rights by a state governmental actor. Similarly,
federal prisoners may raise some of the same claims pursuant to the authority of Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing in the
Fourth Amendment a cause of action for money damages against federal officials). The contours
and distinctions of these two types of claims are beyond the scope of this Note.
12 See Monroe v. Pape, 365 U.S. 167 (1961).
13 See Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982) (“Based on the legislative histories
of both [42 U.S.C.] § 1983 and § 1997e, we conclude that exhaustion of state administrative
remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.”),
superseded in part by statute, 42 U.S.C. § 1997e(a) (2006) (barring any action “with respect to
prison conditions” brought under § 1983 “or any other Federal law . . . until such administrative
remedies as are available are exhausted”); see also Porter v. Nussle, 534 U.S. 516, 523 (2002)

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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.”14
Exhaustion of administrative remedies is said to serve the dual purposes
of (1) protecting an agency’s authority to maintain procedures and
correct its own errors;15 and (2) promoting efficiency by avoiding
unnecessary litigation, and facilitating litigation that does result by
developing an administrative record.16 In the prison context,
administrative exhaustion means pursuing grievances through internal
prison procedures17 and completing all levels of administrative
appeals.18 Complying with every procedural nuance is vital because the
Supreme Court has held that the PLRA’s exhaustion requirement
includes a procedural default rule.19 In other words, while certain
exceptions apply,20 when a prisoner fails to follow any grievance

(“Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust
administrative remedies before filing suit in court. Prisoner suits alleging constitutional
deprivations while incarcerated once fell within this general rule.” (citations omitted)).
14 42 U.S.C. § 1997e(a) (2006); see also Schlanger, supra note 3, at 1649 (“The PLRA’s
exhaustion requirement has emerged as the highest hurdle the statute presents to individual
inmate plaintiffs.”). The PLRA’s exhaustion of administrative remedies requirement is separate
and distinct from the exhaustion provision of the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254 (2006), which requires state prisoners seeking to challenge
their convictions to exhaust their remedies in state court before bringing a habeas petition in
federal court. The AEDPA’s exhaustion requirement poses its own unique hurdles. See, e.g.,
Jonah Wexler, Note, Fair Presentation and Exhaustion: The Search for Identical Standards, 31
CARDOZO L. REV. 581 (2009).
15 See Woodford v. Ngo, 548 U.S. 81, 89 (2006) (“Exhaustion gives an agency an opportunity
to correct its own mistakes with respect to the programs it administers before it is haled into
federal court, and it discourages disregard of [the agency’s] procedures.” (internal quotation
marks omitted)).
16 See id. (“Claims generally can be resolved much more quickly and economically in
proceedings before an agency than in litigation in federal court. In some cases, claims are settled
at the administrative level, and in others, the proceedings before the agency convince the losing
party not to pursue the matter in federal court. And even where a controversy survives
administrative review, exhaustion of the administrative procedure may produce a useful record
for subsequent judicial consideration.” (internal quotation marks and citations omitted)).
17 See, e.g., McClain v. Alveriaz, No. 07-5551, 2009 U.S. Dist. LEXIS 100655, at *23 (E.D.
Pa. Oct. 26, 2009) (“[T]he Court is compelled to find that Plaintiff has failed to exhaust his
administrative remedies . . . [because, inter alia,] Plaintiff initially filed his grievance on the
wrong form—using DC-ADM 804, as opposed [to] DC-ADM 801.”); Harrison v. Goord, No. 07
Civ. 1806, 2009 U.S. Dist. LEXIS 48478, at *27 (S.D.N.Y. June 9, 2009) (“[A]lthough the
undisputed evidence shows that [the plaintiff] did verbally convey his grievances to several of the
Defendants, and that he sent numerous letters to various individuals and organizations relating to
his complaints, including to the Superintendent of [the prison] and the Commissioner of [the New
York State Department of Corrections Services], these efforts, for better or worse, just don’t cut
the mustard so as to satisfy the strict exhaustion requirement.”).
18 See Woodford, 548 U.S. at 84, 90-91 (“Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules . . . .”).
19 Id. at 83-84.
20 For a detailed discussion of the most common exceptions, see infra notes 71-82 and
accompanying text.

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procedure related to a complaint, he is barred from pursuing that claim
in federal court.21
Frequently, prison grievance procedures include several steps.22
They often involve speaking with and/or providing a written grievance
to prison officials23—not infrequently, those officials who work in the
area of the prison where the prisoner lives and who may be the very
same officials the prisoner alleges to have violated his constitutional
rights24—and pursuing one or more levels of administrative appeals.25
In several states, the time limit for pursuing a grievance is as little as
two business days;26 in at least one state, it is as short as twenty-four
21
22

Woodford, 548 U.S. 81.
See, e.g., N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5 (2009) (designating a three-tier
grievance procedure for New York prisons); see also Hemphill v. New York, 380 F.3d 680, 68283 (2d Cir. 2004) (summarizing New York’s prison grievance procedures). In Woodford, the
Court described California’s prison grievance procedure, which is fairly representative, as
follows: First, there is an “informal review,” where a prisoner fills out two parts of a provided
form, which includes describing the problem, requesting action, and “informally seek[ing] relief
through discussion with the appropriate staff member.” The staff member is to return the form
with a written response. If the prisoner is dissatisfied with the response, the prisoner must
undertake a three-step “formal” review process. First, the prisoner explains his dissatisfaction on
the form, which he has fifteen working days to submit along with “a few other documents” to a
prison administrator. Following an adverse response, the prisoner has another fifteen working
days to appeal to the prison warden. Finally, if the prisoner is dissatisfied with the warden’s
decision, the prisoner must mail a written explanation of his displeasure to the Director of the
California Department of Corrections and Rehabilitation within fifteen working days of the
warden’s response. 548 U.S. at 85-86 (internal quotation marks and citations omitted).
23 See Brief for the Jerome N. Frank Legal Services Organization of the Yale Law School as
Amicus Curiae Supporting Respondent at 7 & n.6, Woodford, 548 U.S. 81 (No. 05-416), 2006
WL 304573. Under the New York grievance procedure, complaints by general population
prisoners must be filed with the Inmate Grievance Program clerk. N.Y. COMP. CODES R. &
REGS. tit. 7, § 701.5(a)(1) (2009). Prisoners in the Special Housing Unit (SHU) must have the
“area supervisor” collect their grievance forms and forward them to the Inmate Grievance
Program office when locked deposit boxes for the forms are unavailable or broken. See id. §
701.7(a)(3), (b). Prisoners in the SHU are segregated from the general population and are
severely restrained from movement in order to “maximize . . . security.” See id. §§ 300.1, 300.2;
see also id. § 305.3 (requiring inmates in SHU be handcuffed whenever outside of their cells).
Even where the locked grievance form boxes are available and working, a staff representative of
the Inmate Grievance Program has a key to the box. Id. § 701.7(b).
24 See, e.g., id. § 701.7(a)(3) (“Area supervisors [are responsible for] ensur[ing] that the
completed grievance forms are placed in sealed envelopes, collected and forwarded to the [Inmate
Grievance Program] office.”); id. § 701.7(b) (providing that Inmate Grievance Program
supervisors and “staff representatives” have keys to the locked grievance deposit boxes); id. §
701.4(d) (providing that the superintendent has discretion to appoint staff representatives); see
also LA. ADMIN. CODE tit. 22, pt. I, § 325 (2009) (requiring prisoner requests for administrative
remedies to be screened by the Administrative Remedy Procedure Screening Officer, who is “a
staff member, designated by the warden”).
25 See, e.g., N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(c), (d) (2009) (two levels of
appeals).
26 See Woodford, 548 U.S. at 118 (Stevens, J., dissenting) (noting that preliminary, but often
necessary, informal grievance procedures have “strict time requirements that are generally no
more than 15 days, and that, in nine States, are between 2 and 5 days”). As of the Woodford
litigation in early 2006, the deadline for initiating the mandatory grievance procedure was
between two and five days in at least eleven corrections departments. Brief for the Jerome N.

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hours.27 Because of the nature of prison grievances,28 disputes often
arise over whether administrative remedies are “available,” whether
those remedies were properly exhausted, and if not, whether an
exception applies.29
Federal courts have grappled with how to treat claims by the prison
official defendants that the plaintiff prisoner failed properly to exhaust
available administrative remedies.30 In particular, courts have divided
sharply on 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.31
Frank Legal Services Organization, supra note 23, app. at 1-5.
27 The North Carolina Department of Juvenile Justice and Delinquency Prevention
“Nondisciplinary Grievance Report Form” indicates that it must be completed and delivered to
“the human services coordinator within 24-hours of the incident.” Brief for the Jerome N. Frank
Legal Services Organization, supra note 23, app. at 7 n.31.
28 See supra note 22 and accompanying text (discussing California’s grievance procedure,
which is typical and requires prisoners to begin the grievance process by speaking directly with
the prison official whom the prisoner claims has violated his rights). Other common grievancerelated issues include claims by prisoners that, upon request, they were denied the proper
grievance forms; they feared retaliation if they requested or filed a grievance; and they were
unaware of the proper grievance procedures and deadline, particularly for filing all of the required
administrative appeals. Courts have developed exceptions from proper exhaustion requirements
to deal with these issues. See infra notes 71-82 and accompanying text.
29 See Woodford, 548 U.S. at 101 n.5 (“Questions regarding the timeliness of prisoner filings
occur frequently.” (citing cases)); see also infra notes 71-82 and accompanying text.
30 See, e.g., Singleton v. Johnson, No. CV406-75, 2008 WL 3887633, at *1 (S.D. Ga. Aug.
18, 2008) (noting that “[c]ourts across the country are divided” on procedural questions of
exhaustion issues); Gilmore v. Stalder, 2008 WL 4155332, at *2-5 (W.D. La. Sept. 8, 2008)
(noting that “circuit jurisprudence is relatively undeveloped, leaving substantial ground for
reasonable minds to disagree” and requesting “guidance from the Fifth Circuit as to whether or
not it will join the Seventh, Ninth and Eleventh Circuits in its treatment of dispositive motions
raising this particular affirmative defense” by certifying questions of “what procedural device . . .
is required for the raising of the affirmative defense of exhaustion prior to trial . . . [and] whether
or not plaintiffs are entitled to trial by jury on the issue of exhaustion”).
31 Compare cases that have addressed exhaustion on summary judgment, such as Hinojosa v.
Johnson, 277 F. App’x 370, 379-80 (5th Cir. 2008); Williams v. Beard, 482 F.3d 637, 639 (3d
Cir. 2007); Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007); Brownell v.
Krom, 446 F.3d 305, 310 (2d Cir. 2006); Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir. 2001);
Maraglia v. Maloney, 499 F. Supp. 2d 93, 97-98 (D. Mass. 2007) (“[D]isputed issues of fact must
be resolved by the jury and not the Court.”); and Lunney v. Brureton, No. 04 Civ. 2438, 2007 WL
1544629, at *10 n.4 (S.D.N.Y. May 29, 2007), with cases resolving factual disputes and
disposing of the issue on a preliminary motion, such as Wyatt v. Terhune, 315 F.3d 1108, 1119
(9th Cir. 2003) (characterizing exhaustion as a “matter in abatement” that must be raised in an
“unenumerated Rule 12(b) motion” to dismiss); Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008),
and Pavey v. Conley, 544 F.3d 739, 740-42 (7th Cir. 2008) (declining to follow the Ninth
Circuit’s “matter in abatement” and “unenumerated Rule 12(b) motion” approach, but prescribing
a process whereby the district court judge first makes a finding of fact about whether the plaintiff
exhausted remedies; then, if the judge finds the plaintiff has properly exhausted, the case
proceeds to trial where the jury is not bound by any fact-finding made previously by the judge),
amended by No. 07-1426, 2008 U.S. App. LEXIS 19985 (7th Cir. Sept. 12, 2008), cert. denied,
129 S. Ct. 1620 (2009).

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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 rather an affirmative defense.32
Therefore, federal courts are faced with two competing principles: In
order to reduce the impact of prisoner litigation on federal courts,33 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, its administrative exhaustion requirement,
and important case law. Part II surveys the unique procedures
employed by federal courts for deciding exhaustion issues. Part III
addresses the doctrinal weaknesses of these procedures in light of (a)
the Supreme Court’s staid enforcement of the usual practice prescribed
by the rules of civil practice, (b) the historical development of the
relevant rules of procedure, (c) conflicting federal statutory provisions,
(d) well-established Seventh Amendment jurisprudence on the province
of the jury in determining genuine factual disputes, and (e) 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.
I. THE PRISON LITIGATION REFORM ACT
A.

Background

In response to the growing number of federal civil rights lawsuits
filed by state and federal prisoners,34 Congress passed the PLRA in
32
33

549 U.S. 199, 212 (2007).
See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Congress enacted § 1997e(a) to reduce
the quantity and improve the quality of prisoner suits . . . .”).
34 During fiscal year 1990, five years before the PLRA was passed, civil suits—which include
civil rights and prison conditions claims, as well as habeas petitions and mandamus actions
challenging underlying criminal convictions—filed by prisoners in the federal district courts
totaled 43,209. ADMIN. OFFICE OF THE U.S. COURTS, 2007 JUDICIAL FACTS & FIGURES tbl. 4.6,
available at http://www.uscourts.gov/judicialfactsfigures/2007/Table406.pdf. For fiscal year

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1995.35 Congressional sponsors of the Act expressed concern that many
prisoner lawsuits were frivolous and imposed overwhelming burdens on
the limited judicial and financial resources of the federal courts.36 In an
effort to reduce the number and improve the quality of prisoner suits,
and to limit federal court intervention in prison reform, the PLRA
imposed a patchwork of hurdles for prisoner litigants.37 Among other

1995, the year Congress passed the PLRA, prisoner suits totaled 63,550—a 47% increase from
1990. Id. It is worth noting that, between 1990 and 1995, the total number of new civil filings
increased more than 14%, and several other areas of civil claims recorded notable increases in
new filings, including product liability and non-prisoner civil rights claims. Id. tbl. 4.4, available
at http://www.uscourts.gov/judicialfactsfigures /2007/Table404.pdf. For the twelve-month period
ending September 30, 2008, the federal district courts received 54,786 civil filings from federal
and state prisoners, combined, which accounted for approximately 20% of all new civil filings in
the federal district courts. 2008 JUDICIAL BUSINESS, supra note 8, at 143-44. The number of new
prisoner filings for that period marked a decrease of approximately 14% from the 1995 fiscal year
filings. Compare id., with 2007 JUDICIAL FACTS & FIGURES, supra, tbl. 4.4.
However, a leading empirical analysis of the effect of the PLRA on prisoner court filings
argues that, when accounting for prisoner filings in the federal courts, habeas petitions and other
similar actions raising collateral challenges to the prisoners’ underlying criminal convictions are
more appropriately “conceptualized as part of the criminal, rather than civil, justice system.”
Schlanger, supra note 3, at 1558 n.4. Prisoner filings consisting only of civil rights and prison
conditions complaints account for only 47% of prisoner filings for the twelve-month period
ending September 30, 2008; the federal courts received 25,679 new such filings—less than half of
the total number of civil cases commenced by prisoner litigants. 2008 JUDICIAL BUSINESS, supra
note 8, at 144. Habeas petitions and motions to vacate sentence comprise the majority of the
remainder of prisoner litigant suits. Id. Therefore, prisoner civil rights claims and prison
condition cases represent only 9.6% of the total civil filings in the federal district courts. Id. at
143-44.
In addition to the number of new filings, it is instructive to consider the proportion of cases
filed by prisoner litigants that actually go to trial. Of the 4723 civil trials held in federal district
courts during the twelve-month period ending September 30, 2008, 309 were cases brought by
prisoners raising civil rights or prison condition claims. Id. at 167-70. In other words, prisoner
civil rights and prison condition cases accounted for 6.5% of federal district court trials during
that period. Of the federal court civil cases on which there was some court action during that
period, approximately 2.6% terminated during or after trial, whereas only 1.5% of prisoner civil
rights and prison conditions cases went to trial. Id.
35 Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (codified as
amended in scattered sections of 18, 28, and 42 U.S.C. (2006)); see 141 CONG. REC. S7524 (daily
ed. May 25, 1995) (statement of Sen. Dole) (“Over the past two decades, we have witnessed an
alarming explosion in the number of lawsuits filed by State and Federal prisoners.”); 141 CONG.
REC. S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) (“Statistics complied by the
Administrative Office of the U.S. Courts show that inmate suits are clogging the courts and
draining precious judicial resources. Nationally, in 1994, a total of 238,590 civil cases were
brought in U.S. district court. More than one-fourth of these cases—60,086—were brought by
prisoners.”).
36 141 CONG. REC. S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) (“This bill will
deter frivolous inmate lawsuits.”); 141 CONG. REC. S7524 (daily ed. May 25, 1995) (statement of
Sen. Dole) (“Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and
legal resources, and affect the quality of justice enjoyed by the law-abiding population.”).
37 See Porter, 534 U.S. at 524-25 (“Beyond doubt, Congress enacted § 1997e(a) to reduce the
quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections
officials time and opportunity to address complaints internally before allowing the initiation of a
federal case.”). See generally Shay & Kalb, supra note 10, at 300-01.

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provisions, the PLRA imposed early screening,38 financial hurdles,39
repercussions for meritless claims,40 a physical injury requirement to
recover for mental or emotional injuries,41 and restrictions on attorney’s
fees42 and relief that a federal court may grant.43 Also, as noted
previously, prisoners must exhaust administrative remedies before filing
suit.44
B.

Litigation over the PLRA’s Administrative
Exhaustion Requirement
1.

Supreme Court Decisions

As of 2009, the Supreme Court had granted certiorari four times to
clarify the contours of the PLRA’s administrative exhaustion
requirement.45 First, in Booth v. Churner,46 the Court rejected a futility
exception for exhaustion.47 In other words, a prisoner must exhaust
prison grievance procedures regardless of the remedy he seeks and the
remedies actually available through the administrative system. For
example, a prisoner seeking monetary relief must proceed through all
levels of the prison grievance system even if it does not provide for
monetary relief.48 The following year, in Porter v. Nussle,49 the Court
38 28 U.S.C. § 1915(e)(2) (2006) (“Proceedings in forma pauperis”); id. § 1915A (2006)
(“Screening”); 42 U.S.C. § 1997e(c)(1) (2006) (giving a court the power to pre-screen and
dismiss an action that is “frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief”).
39 28 U.S.C. § 1915(b)(1), (g) (limiting the availability of in forma pauperis status).
40 Id. § 1932 (revoking earned release credit for inmates who have filed an action “for a
malicious purpose; . . . solely to harass the party against which it was filed; or [where the plaintiff
inmate] testifies falsely or otherwise knowingly presents false evidence or information to the
court”).
41 42 U.S.C. § 1997e(e) (2006).
42 Id. § 1997e(d) (restricting attorney’s fees, inter alia, by requiring the prisoner plaintiff to
pay such fees in part from a favorable money judgment).
43 18 U.S.C. § 3626 (2006) (restricting prison release orders, injunctions, and consent
decrees, and providing for termination of prospective relief).
44 42 U.S.C. § 1997e(a).
45 These four cases (discussed infra) are: Booth v. Churner, 532 U.S. 731 (2001); Porter v.
Nussle, 534 U.S. 516 (2002); Woodford v. Ngo, 548 U.S. 81 (2006); and Jones v. Bock, 549 U.S.
199 (2007). See generally Shay & Kalb, supra note 10, at 301-02.
46 532 U.S. 731 (2001).
47 Id. at 741 (“Thus, we think that Congress has mandated exhaustion clearly enough,
regardless of the relief offered through administrative procedures.”). The Court held that the
“availability” of administrative remedies under the PLRA refers to the availability of the
administrative process itself, not whether the administrative remedial scheme provided for the
requested remedy. See Eugene Novikov, Comment, Stacking the Deck: Futility and the
Exhaustion Provision of the Prison Litigation Reform Act, 156 U. PA. L. REV. 817, 823-24
(2008).
48 See Booth, 532 U.S. at 734-35; see also Shay & Kalb, supra note 10, at 302 (noting that

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read the PLRA’s exhaustion provision, which applies to actions “with
respect to prison conditions,” to encompass individual claims of
excessive force.50 Then, in Woodford v. Ngo,51 the Court adopted a
procedural default rule—often referred to as “proper exhaustion.”52
This means that if a prisoner fails to comply with any procedural
requirement of the prison grievance system, the prisoner is barred from
asserting that claim in federal court.53 As discussed below, lower courts
have filled in some of the contours of the proper exhaustion
requirement—including identifying exceptions to the requirement.54
The Woodford Court, however, also acknowledged that the PLRA’s
exhaustion requirement is not a jurisdictional prerequisite.55
Finally, in Jones v. Bock,56 the Court stepped in to curb a growing
trend in the federal courts of generously reading the PLRA to support a
host of procedural oddities that allowed the courts to dismiss many
prisoner complaints.57 While the majority of the circuit courts of
appeals did not believe that the PLRA required the plaintiff to plead
exhaustion in the complaint,58 several circuits disagreed. These
exhaustion under the PLRA is mandatory).
49 534 U.S. 516 (2002).
50 Id. at 532 (“[W]e hold that the PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.”); see also Shay & Kalb, supra note 10, at 30203.
51 548 U.S. 81 (2006).
52 Id. at 84; see also Shay & Kalb, supra note 10, at 303-06 (“Woodford is the most important
of the cases interpreting the exhaustion requirement.”).
53 548 U.S. at 118 (Stevens, J., dissenting) (“[T]he Court’s engraftment of a procedural
default sanction into the PLRA’s exhaustion requirement risks barring . . . claims when a prisoner
fails, inter alia, to file her grievance . . . within strict time requirements . . . .”); see also Shay &
Kalb, supra note 10, at 312 (“The extra judicial imposition of procedural default, however, goes
further, [beyond a simple exhaustion rule that would require a prisoner at least to have presented
his grievance to corrections officials before pursuing his claim in federal court] by allowing
corrections officials, based on their determination that a grievance is technically or procedurally
deficient, to ensure that claims never see the light of day.”).
54 See infra Part I.B.2.
55 548 U.S. at 101 (“[E]ven if dismissals under § 1997e(c)(2) typically occur when the
opportunity to pursue administrative remedies has passed, § 1997e(c)(2) still serves a useful
function by making it clear that the PLRA exhaustion requirement is not jurisdictional, and thus
allowing a district court to dismiss plainly meritless claims without first addressing what may be
a much more complex question, namely, whether the prisoner did in fact properly exhaust
available administrative remedies.”).
56 549 U.S. 199 (2007).
57 Id. at 202-03 (“The Sixth Circuit, along with some other lower courts, adopted several
procedural rules designed to implement this exhaustion requirement and facilitate early judicial
screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint,
permit suit only against defendants who were identified by the prisoner in his grievance, and
require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion
requirement as to any single claim in his complaint. . . . [We] conclude that these rules are not
required by the PLRA, and that crafting and imposing them exceeds the proper limits on the
judicial role.”).
58 Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 681 (4th Cir. 2005) (holding that

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dissenting circuits prescribed dismissing prisoner suits for failure to
state a claim where the plaintiff had not affirmatively pleaded facts to
support proper exhaustion.59 Two of the circuits went a step further,
requiring that exhaustion be pled with specificity and supported with
sufficient documentation.60
The Jones Court held, inter alia, that administrative exhaustion
under the PLRA is an affirmative defense, explicitly comparing it to the
statute of limitations.61 The Court found the PLRA’s silence on whether
exhaustion was a pleading requirement to be “strong evidence that the
usual practice should be followed.”62 The Court found that the “usual
practice” is to treat exhaustion as an affirmative defense;63 and, as with
other affirmative defenses, the Court held that exhaustion is not a
pleading requirement.64 The lower courts’ treatment of exhaustion
created an improperly heightened pleading standard, which the Court
held conflicted with its recent pleading standard precedent.65 The Court

failure to exhaust under the PLRA must be raised by defendants as an affirmative defense); Wyatt
v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (same); Casanova v. Dubois, 304 F.3d 75, 77 &
n.3 (1st Cir. 2002) (same); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (same); Foulk v.
Charrier, 262 F.3d 687, 697 (8th Cir. 2001) (same); Massey v. Helman, 196 F.3d 727, 735 (7th
Cir. 2000) (same); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) (same); cf. Jackson v.
District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001) (treating exhaustion as an affirmative
defense); see also Jones, 549 U.S. at 204-05 & n.2.
59 See, e.g., Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003); Knuckles
El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.
1998); see also Jones, 549 U.S. at 204 & n.2.
60 See Steele, 355 F.3d at 1210 (“[Because] it is the prisoner who can best assert the
relationship between his administrative grievance and court filing[,] . . . [a] prisoner must: (1)
plead his claims with ‘a short and plain statement . . . showing that [he] is entitled to relief,’ in
compliance with Fed. R. Civ. P. 8(a)(2), and (2) ‘attach[] a copy of the applicable administrative
dispositions to the complaint, or, in the absence of written documentation, describe with
specificity the administrative proceeding and its outcome[.]’” (quoting Knuckles El, 215 F.3d at
642)); Knuckles El, 215 F.3d at 642 (“[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.”).
61 Jones, 549 U.S. at 215, 220.
62 Id. at 212.
63 Id.
64 The Court also rejected the judicially imposed requirement that prisoners name all
defendants in their administrative grievance in order to adequately exhaust available
administrative remedies. Id. at 217-19. However, the Court was deciding only the “sufficiency”
of the grievance under the PLRA, not whether the administrative grievances had been “properly
exhausted” under Woodford. See id. at 219. Accordingly, the Court explicitly left open the
question of whether a prison grievance policy that mandated all potential defendants be named in
the original complaint would have barred the claims as presented for failure to “properly
exhaust.” Id. Finally, the Court extinguished the “total exhaustion” requirement that the minority
circuits had invoked to dismiss complaints in their entirety where any claim was unexhausted. Id.
at 219-24.
65 Id. at 212-13, 224 (citing Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993); Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);
Hill v. McDonough, 547 U.S. 573 (2006)).

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admonished lower courts that they “should generally not depart from
the usual practice under the Federal Rules on the basis of perceived
policy concerns,”66 and that “crafting and imposing [rules not required
by the PLRA] exceeds the proper limits on the judicial role.”67
2.

Unavailability of Remedies, Exceptions to Exhaustion, and
Other Interstices

Despite the extensive Supreme Court litigation over the PLRA’s
exhaustion requirement, several issues have been left to the lower courts
to hash out. These issues illustrate the expansive breadth of factuallyspecific circumstances in which failure to exhaust properly will be
excused or justified.
a.

Unavailability and Exceptions

Although Woodford held that the PLRA implied a procedural
default component, the Court side-stepped the question of whether some
procedural requirements or actions (or inactions) by prison officials may
render administrative remedies effectively unavailable.68 Circuit cases
preceding Woodford—presumably left unaffected by the Court’s silence
on the issue69—established various exceptions to the PLRA exhaustion
requirement. The Second Circuit has developed a “three-part inquiry,”
which provides a descriptive framework for these exceptions.70 First,
the actions of the institutional defendants may effectively render
administrative remedies exhausted or make them unavailable.71 Second,
66
67

Id. at 212.
Id. at 203; see also id. at 224 (“We once again reiterate, however—as we did unanimously
in Leatherman, Swierkiewicz, and Hill—that adopting different and more onerous pleading rules
to deal with particular categories of cases should be done through established rulemaking
procedures, and not on a case-by-case basis by the courts.”).
68 See Woodford v. Ngo, 548 U.S. 81, 102-03 (2006); see also id. at 120-22 (Stevens, J.,
dissenting) (“The majority leaves open the question whether a prisoner’s failure to comply
properly with procedural requirements that do not provide a ‘meaningful opportunity for
prisoners to raise meritorious grievances’ would bar the later filing of a suit in federal court. . . .
More generally, are remedies meaningful when prison officials refuse to hear a claim simply
because a prisoner makes some hypertechnical procedural error?”). In dissent, Justice Stevens
posited that “failure to comply with procedural requirements in grievance proceedings may be
excused based on special circumstances, such as a prisoner’s reasonable, but mistaken,
understanding of prison regulations.” Id. at 122.
69 See Vogelfang v. Riverhead County Jail Officers, 07-1268-CV, 2009 U.S. App. LEXIS
1914, at *4-6 (2d Cir. Feb. 2, 2009) (vacating the district court’s dismissal and remanding for the
district court to determine whether plaintiff’s failure to exhaust was excused under the line of
cases discussed in the following notes and the accompanying text).
70 Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).
71 See id. at 686 (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)); see also Mitchell

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even if administrative remedies were available, equitable estoppel may
preclude the defendants from raising the defense because of the
defendants’ own actions.72 Third, even if remedies were available but
were not pursued, and the defendants are not estopped from raising the
affirmative defense, “special circumstances” may justify a failure to
exhaust properly.73
However, these categories are not clearly demarcated,74 and the
reasons supporting an exception or excuse in a particular case rely in
large part on equitable principles according to the facts of the case. The
often knotty factual disputes presented in these claims complicate the
proper application of one of these exceptions. To better appreciate the
import of resolving these factual disputes, which will be further
elaborated below, a brief synopsis of the some of the circumstances that
trigger these exceptions is useful.75 Situations include those in which:
•

•

A prisoner receives a favorable response to a grievance, but
does not discover that prison officials have not carried out the
prescribed remedy until after the deadline to file an appeal.
Under these circumstances, all available administrative remedies
are deemed to have been exhausted even though no
administrative appeal was pursued.76
Prison officials threaten a prisoner with violence or criminal
prosecution to dissuade the prisoner from filing a grievance. In
such cases, ordinary procedures will be considered unavailable
if “a similarly situated individual of ordinary firmness [would]
have deemed them [un]available,”77 and prison officials may be
estopped from asserting the defense of failure to exhaust.78

v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (finding remedies rendered unavailable where prison
officials refused to provide inmate with necessary grievance forms); see also Brown v. Croak,
312 F.3d 109, 112-13 (3d Cir. 2002) (finding that “instructions by prison officials that are at odds
with the wording of [prison regulations render] the formal grievance procedure unavailable” to
the plaintiff, under circumstances in which prison officials allegedly told a prisoner—contrary to
prison regulations—that he could not file a grievance prior to the completion of a security
investigation); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[A] remedy that prison
officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under §
1997e(a) . . . .”).
72 See Hemphill, 380 F.3d at 688-89 (citing Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004)).
Also, the defendants may have effectively waived the defense by failing to raise it. See id. at 686
(citing Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004)).
73 See id. at 686, 689-90 (citing Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)); see also Berry
v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004)).
74 See Giano, 380 F.3d at 677 n.6.
75 See JOHN BOSTON, THE LEGAL AID SOCIETY, THE PRISON LITIGATION REFORM ACT 16283 & nn.625-79 (2009) (collecting cases).
76 See Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“Where, as here, prison
regulations do not provide a viable mechanism for appealing implementation failures, prisoners in
Abney’s situation have fully exhausted their available remedies.”).
77 See Hemphill, 380 F.3d at 688. Several corrections officers severely beat the plaintiff,

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•

A prisoner reasonably interprets grievance procedures to bar
complaints about matters affecting a disciplinary hearing
determination, and the prisoner pursues his complaint through
administrative appeals of the disciplinary charge. Here, a
“special circumstance[]” justifies the failure to comply with the
strict letter of administrative grievance procedures.79

•

Prison officials refused to provide necessary grievance forms.80

•

The untimely filing of a grievance was due to a temporary
physical injury—the prisoner’s broken hand prevented him from
writing—and the prison rejected as untimely the inmate’s
subsequent grievance filed once he could write again.81

•

A prisoner is incapable of clear written communication.82

John Hemphill, and threatened him with further violence and criminal prosecution if Hemphill
complained. Id. at 684. Hemphill wrote a letter about the situation to the prison’s superintendent,
but he did not pursue formal grievance procedures. Id. When failure to exhaust was raised in the
subsequent suit, the Second Circuit accepted Hemphill’s argument that the officers’ threats
effectively rendered unavailable to him the otherwise available administrative remedies, and the
court remanded for consideration in light of its objective, “ordinary firmness” test. Id. at 688.
The court also noted that “threats or other intimidation by prison officials may well deter a
prisoner of ‘ordinary firmness’ from filing an internal grievance, but not from appealing directly
to individuals in positions of greater authority within the prison system, or to external structures
of authority such as state or federal courts.” Id.
78 See Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004). In order to prevent the plaintiff,
Duane Ziemba, from reporting that he was attacked by his cellmate, prison officials placed
Ziemba in a segregation cell, directed him to not make a formal record of the attack, threatened
him, and later brutally assaulted him. Id. at 162. When officials outside the prison learned of
Ziemba’s condition, officials inside the prison retaliated against him by continuing to segregate
him and brutally assaulted him. Id. Ziemba apparently did not pursue any administrative
grievance procedures before filing a lawsuit; but the Second Circuit held that the state could be
estopped from interposing this defense and remanded for this inquiry. Id. The court instructed
“such consideration will require the court to look beyond the pleadings and the documents
attached to the pleadings,” and therefore, “the district court must allow factual development and
address the estoppel claim at the summary judgment stage.” Id. at 163-64.
79 See Giano, 380 F.3d 670. The plaintiff, Julio Giano, administratively appealed a
disciplinary infraction for drug use, claiming that several corrections officers deliberately
contaminated his urine sample so that it would test positive for drugs and presented false
evidence against him at the disciplinary hearings. Id. at 672-74. When failure to exhaust
administrative remedies was raised in Giano’s subsequent lawsuit, Giano argued that the prison
regulations said disciplinary decisions were not grievable, and, insofar as he had pursued his
grievance by appealing the disciplinary hearing determination, he had adequately exhausted the
available administrative procedures. Id. at 674. The court accepted Giano’s argument, holding
that “certain special circumstances” may provide “justification” for failing to comply with the
strict letter of administrative grievance procedures. Id. at 676, 678.
80 See, e.g., Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).
81 See, e.g., Days v. Johnson, 322 F.3d 863, 864-65, 868 (5th Cir. 2003) (“[A]dministrative
remedies are deemed unavailable when (1) an inmate’s untimely filing of a grievance is because
of a physical injury and (2) the grievance system rejects the inmate’s subsequent attempt to
exhaust his remedies based on the untimely filing of the grievance.”), overruled in part on other
grounds by Jones v. Bock, 549 U.S. 199, 213-14 (2007).
82 See, e.g., Williams v. Hayman, 657 F. Supp. 2d 488, 496 (D.N.J. 2008) (“[T]here are
unresolved factual questions in this case regarding whether the administrative remedies proffered

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Other Interstices

Lower courts have addressed several other discreet issues that raise
further factual inquiries. For instance, courts have found that the
affirmative defense of failure to exhaust administrative remedies can be
waived by a defendant’s failure to timely raise it.83 Waiver claims may
present questions of prejudice to the party asserting them.84 Another
issue is whether or not the PLRA’s exhaustion requirement applies to
ex-prisoners, either those who initially filed their lawsuits while
incarcerated (but are free by the time of a motion to dismiss or amend),
or who initially filed their complaints after they were released.85 A final
issue is whether a dismissal for failure to exhaust is “with prejudice” or
not—and the direct and collateral effects of one type of dismissal or the
other.86
The Second Circuit has expressly recognized the difficulty of
identifying the appropriate circumstances for applying any of these
exceptions: “It must be determined by looking at the circumstances
which might understandably lead usually uncounseled prisoners to fail
to grieve in the normally required way”87—an exceptionally amorphous
and fact-specific standard. Keeping in mind this legal morass of the
defense of failure to exhaust and the opposing justifications or
excuses—and the thorny underlying factual determinations upon which
the defense and excuses necessarily depend—this Note will turn to the
procedural methods that courts have employed for confronting this
problem.

by Defendants were ‘available’ to [the plaintiff] . . . . Whether [the plaintiff’s] disability inhibited
his capacity to express his grievances comprehensibly in writing in accordance with the [prison’s]
Grievance Program’s requirements is a triable issue of fact in this case.”).
83 See generally BOSTON, supra note 75, at 44-47 & nn.204-11 (citing, inter alia, Handberry
v. Thompson, 446 F.3d 335, 342-43 (2d Cir. 2006); Johnson v. Testman, 380 F.3d 691, 695-96
(2d Cir. 2004); Ray v. Kertes, 285 F.3d 287, 293, 295 (3d Cir. 2002); Perez v. Wis. Dep’t of
Corr., 182 F.3d 532, 536 (7th Cir. 1999)).
84 See generally id.
85 See generally id. at 4-7 & nn.19-29 (collecting cases).
86 See generally id. at 34-35 & nn.161-71 (collecting cases).
87 Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004).

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II. PROCEDURES EMPLOYED BY COURTS FOR RAISING AND DECIDING
THE AFFIRMATIVE DEFENSE OF FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
Prior to Jones, several circuit courts had already concluded that
exhaustion was an affirmative defense, and routinely disposed of
exhaustion issues according to the usual procedures.88 However, Jones
accomplished little in creating uniformity among the lower courts as to
the proper procedural mechanism for raising and deciding exhaustion
issues.89 Inconsistent decisions about which procedural vehicle to
employ pervade the lower courts—even among the decisions within a
single circuit.90 More disconcerting, while courts have questioned the
propriety after Jones of relying on procedural mechanisms used before
Jones,91 there is a dearth of appellate opinions considering the impact of
Jones on the proper disposition of exhaustion disputes. Indeed, despite
the Supreme Court’s clear holding that exhaustion is not a pleading
requirement, district courts continue to ignore Jones altogether and
dismiss prisoner complaints for failure to plead exhaustion
affirmatively.92 What stands is a quilt of procedural irregularities
varying from circuit to circuit, and district to district. The most unusual
example of a pre-Jones mechanism that courts continue to follow after
Jones is found in cases in the Ninth Circuit. This mechanism was
recently adopted by the Eleventh Circuit and is beginning to crop up in
the district courts of other circuits.
88 See, e.g., Ray v. Kertes, 130 F. App’x. 541, 543-44 (3d Cir. 2005) (vacating summary
judgment for defendants because genuine issues of material fact remained regarding the
availability of administrative remedies and plaintiff’s allegation that he had exhausted through
alternative procedures than those specified in the prison’s administrative rules).
89 See Bryant v. Rich, 530 F.3d 1368, 1374 n.9 (11th Cir. 2008) (“Although the Supreme
Court recently announced in Jones . . . that failure to exhaust under the PLRA was an affirmative
defense, it did so in resolving the question whether the PLRA required plaintiffs, instead of
defendants, to plead specifically that all administrative remedies had been exhausted. Jones
decided nothing about the independent question of whether a judge, as opposed to the jury, may
resolve disputed facts about exhaustion.” (citation omitted)).
90 Compare the cases cited infra note 125 with the cases cited infra note 127. For another
example of a split within courts of the same circuit, compare Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008) (holding that a court should decide the exhaustion issue based on limited discovery,
preliminary to any further proceedings even where genuine issues of material fact arise), amended
by No. 07-1426, 2008 U.S. App. LEXIS 19985 (7th Cir. Sept. 12, 2008), cert. denied, 129 S. Ct.
1620 (2009), with Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (per curiam) (vacating
summary judgment and remanding because “whether [the prisoner plaintiff] submitted a
grievance ‘in the place’ required by ‘administrative rules’ is a disputed issue of fact”) and Dale v.
Lappin, 376 F.3d 652 (7th Cir. 2004) (per curiam) (vacating summary judgment where inmate
had submitted evidence that prison officials failed to respond to his requests for required
grievance forms, raising an issue of fact about the availability of administrative grievance
procedures). Although Pavey was decided after Jones and directly addressed the impact of Jones
on this issue, and Curtis and Dale pre-date Jones, the court in Pavey did not address these prior

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The Ninth Circuit Approach: Unenumerated Rule 12(b)
Motion for a Matter in Abatement

Several years before the Court decided Jones, the Ninth Circuit
adopted the position that exhaustion is “a matter in abatement, which is
subject to an unenumerated Rule 12(b) motion rather than a motion for
summary judgment.”93 (For ease of reference, this Note will refer to
this as “the Ninth Circuit approach.”) While the Ninth Circuit has never
explicitly addressed the impact, if any, that Jones may have on this
procedure, the court has continued to endorse the application of this
procedure well after Jones was announced.94 The court described this
as “a procedure closely analogous to summary judgment,” insofar as
both parties must be given an opportunity to develop a record for
determination of the issue;95 however, it made clear that when deciding
such a motion, a district court “may look beyond the pleadings and
decide disputed issues of fact.”96
The Ninth Circuit justifies its approach by asserting that summary
judgment is on the merits of the claim whereas failure to exhaust results
in a dismissal without prejudice, i.e., a judgment that is not on the
merits.97 The court’s principle doctrinal support for its unenumerated
Rule 12(b) motion for matter in abatement is its own, long-standing
precedent, which developed this procedure in the context of claims
against unions where a collective bargaining agreement provided for

decisions of its circuit, which apparently remain good law.
91 Bryant v. Sacramento County Jail, No. CIV S-06-0688, 2008 U.S. Dist. LEXIS 10273, at
*6-8 (E.D. Ca. Feb. 12, 2008) (questioning the continuing validity of the Ninth Circuit approach
to deciding failure to exhaust claims).
92 See, e.g., Snoussi v. Bivona, No. 05-CV-3133, 2008 U.S. Dist. LEXIS 70682, at *16-17
(E.D.N.Y. Aug. 21, 2008) (dismissing plaintiff’s negligent denial of medical care claim
“[b]ecause plaintiff has not demonstrated that he has pursued, much less exhausted, his
administrative remedies pursuant to the PLRA and Bureau of Prisons policy,” without once citing
Jones v. Bock); see also Myers v. Goord, No. 06-CV-850A, 2009 U.S. Dist. LEXIS 36178, at *45 (W.D.N.Y. Apr. 29, 2009) (same). Courts also routinely fail to follow other Supreme Court
pronouncements on the limitations of the PLRA’s exhaustion requirement. For example, despite
the express holding in Woodford v. Ngo, 548 U.S. 81 (2006) that exhaustion of administrative
remedies is not a jurisdictional prerequisite, in Cohran v. Boykin, No. 4:09-CV-16, 2009 U.S.
Dist. LEXIS 70866, at *1-2 (M.D. Ga. Aug. 12, 2009), the court dismissed the plaintiff’s
complaint because the “Magistrate Judge found that [the] Plaintiff had failed to exhaust his
administrative remedies, and thus this Court lacks subject matter jurisdiction over his claims.”
Ironically, the Magistrate Judge in Cohran cited Woodford in his Report and Recommendation.
2009 U.S. Dist. LEXIS 70983, at *8 (M.D. Ga. May 13, 2009).
93 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
94 See Seneca v. Arizona, 345 F. App’x 226, 229 (9th Cir. 2009).
95 Wyatt, 315 F.3d at 1120 n.14.
96 Id. at 1120.
97 Id. at 1119.

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mandatory internal grievance procedures or arbitration.98 Those
precedents, in turn, derived twin supporting rationales for this approach
from two prominent civil procedure treatises. First, Charles Alan
Wright and Arthur R. Miller’s Federal Practice and Procedure
provides that courts maintain an inherent power to regulate actions
before them and, as a result, can entertain motions not specifically
provided for in the Federal Rules that relate to judicial administration.99
Second, Moore’s Federal Practice points out that “a jurisdictional or
related type of motion raising matter in abatement” is distinguishable
from a motion for summary judgment because the court can resolve
factual disputes on the former but not the latter.100
Well over a year after Jones was decided, the Eleventh Circuit
adopted the Ninth Circuit’s approach,101 swiftly casting aside Jones in a
footnote as addressing only the relative pleading burden and not the
proper manner for resolving the issue of exhaustion.102 However,
whereas the Ninth Circuit at least relied on its longstanding precedent
for applying the matter in abatement approach, the Eleventh Circuit had
no such supporting precedent. Instead, the court reasoned that
exhaustion is “a matter of judicial administration” and the PLRA’s
exhaustion requirement was intended to manage prisoner litigation;
therefore, exhaustion should be decided on a motion to dismiss under
Rule 12(b) with the judge resolving factual disputes.103 Finally, the
98 See Inlandboatmens Union of the Pac. v. Dutra Group, 279 F.3d 1075, 1078 n.1, 1083-84
(9th Cir. 2002) (dealing with arbitration clause in union’s collective bargaining agreement); Ritza
v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988) (per
curiam) (finding that union members failed to exhaust contractual remedies before suing union);
cf. Studio Elec. Technicians Local 728 v. Int’l Photographers of the Motion Picture Indus., Local
659, 598 F.2d 551, 552 n.2 (9th Cir. 1979) (finding the court lacked jurisdiction to hear the claim,
but still addressing in dictum the appropriate procedure for the defendant international union to
raise its alternative defense that the plaintiff local union had failed to exhaust intra-union
remedies). The Ninth Circuit has also applied this principal to government agency cases, where
the agency moved the district court to remand to the agency for exhaustion of its administrative
remedies even though exhaustion was not statutorily required. See, e.g., Stauffer Chem. Co. v.
FDA, 670 F.2d 106 (9th Cir. 1982). In support of its sui generis approach, the court in Wyatt
cited all of the aforementioned cases and Heath v. Cleary, 708 F.2d 1376, 1380 n.4 (9th Cir.
1983). See 315 F.3d at 1119-20.
99 Ritza, 837 F.2d at 369 (citing 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1360, at 633-34 (1969)).
100 See id. (citing 6 JAMES WM. MOORE, W. TAGGERT & J. WICKER, MOORE’S FEDERAL
PRACTICE ¶ 56.03, at 56-61 (2d ed. 1987)); see also Studio Elec. Technicians Local 728, 598 F.2d
at 552 n.2 (citing 6 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE ¶ 56.03 (2d ed. 1976)).
101 Bryant v. Rich, 530 F.3d 1368, 1374 n.7 (11th Cir. 2008) (affirming a district court
decision that “exhaustion constitutes a preliminary issue for which no jury trial right exists, and
therefore judges can and should make credibility determinations on exhaustion-excusal issues”
(internal quotation marks omitted)); see also Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
102 Bryant, 530 F.3d at 1374 n.9 (“Jones decided nothing about the independent question of
whether a judge, as opposed to the jury, may resolve disputed facts about exhaustion.”).
103 Id. at 1376 (“Where exhaustion . . . is treated as a matter in abatement . . . it is proper for a
judge to consider facts outside of the pleadings and to resolve factual disputes . . . .”).

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court drew comparisons between exhaustion and issues preliminary to a
decision on the merits such as jurisdiction, venue, and service of
process, and buttressed its decision with citations to the same legal
treatises supporting the Ninth Circuit’s precedent.104 Recently, district
courts in several other circuits have found this approach persuasive and
have adopted it.105
B.

The Seventh Circuit’s Approach

Following Jones, the Seventh Circuit squarely confronted the
question of whether or not a district court should settle a genuine issue
of material fact on matters of exhaustion.106 The Seventh Circuit
reached the same result as the Ninth Circuit—a judge and not a jury

104 Id. at 1374-76 (citing 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1360, at 78 n.15 (3d ed. 2004); 19 JAMES WM. MOORE, MOORE’S
FEDERAL PRACTICE § 131.30(3)(b), at 104 (3d ed. 2008)).
105 See, e.g., McClain v. Alveriaz, No. 07-5551, 2009 U.S. Dist. LEXIS 100655, at *8-9 (E.D.
Pa. Oct. 26, 2009); Gora v. Gelabert, No. 1:08-cv-992, 2009 U.S. Dist. LEXIS 91506, at *4-5
(W.D. Mich. July 23, 2009) (Report and Recommendation of magistrate judge), adopted in part
by 2009 U.S. Dist. LEXIS 92243 (W.D. Mich. Sept. 30, 2009); cf. Gilmore v. Stalder, No. 061509, 2008 U.S. Dist. LEXIS 68619, at *21 (W.D. La. Sept. 8, 2008) (certifying questions for
interlocutory appeal, inter alia, as to “whether or not [the Fifth Circuit] will follow Wyatt and its
progeny in its treatment of dispositive motions asserting the defense of non-exhaustion”),
dismissed as moot, 2009 U.S. Dist. LEXIS 39734 (W.D. La. May 11, 2009).
106 Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), amended by No. 07-1426, 2008 U.S. App.
LEXIS 19985 (7th Cir. Sept. 12, 2008), cert. denied, 129 S. Ct. 1620 (2009). The procedural
posture on which the case reached the Court of Appeals was somewhat unusual: In an earlier
decision, the Seventh Circuit reversed the trial court’s grant of summary judgment because it
found a genuine issue of material fact regarding the exhaustion issue persisted. Pavey v. Conley,
170 F. App’x 4, 8-9 (7th Cir. 2006). On remand, Pavey filed an untimely jury demand, and the
district court denied the defendants’ motion to strike Pavey’s demand as out of time. Pavey v.
Conley, No. 3:03-CV-0662, 2006 U.S. Dist. LEXIS 88828, at *1, *5 (N.D. Ind. Nov. 21, 2006).
In contesting the jury demand, the defendants argued that the judge, rather than a jury,
should decide disputed issues of fact related to their exhaustion defense. Id. at *2. The court
rejected the defendants’ argument and ordered discovery proceed because “federal policy favor[s]
jury decisions of disputed fact questions”:
[For the defendants to] prevail on their exhaustion defense . . . they must convince the
fact finder, in this case a jury, to resolve those disputed issues of fact in their favor.
The time for presenting affirmative defenses to the jury is no different in this case than
it is in any other: after the plaintiff has rested his case in chief.
Id. at *2-6 (internal quotation marks and citation omitted). Later, the court granted the
defendants’ motion to take an interlocutory appeal on the jury issue and certified the following
questions for appeal: whether the PLRA’s exhaustion requirement (1) “precludes discovery
addressing the merits of a prisoner plaintiff’s claims until after the resolution of the affirmative
defense of failure to exhaust administrative remedies”; (2) “requires that genuine issues of fact
related to the affirmative defense of exhaustion of administrative remedies must be resolved
before the presentation of any other evidence at trial”; and (3) “requires that genuine issues of fact
related to the affirmative defense of exhaustion of administrative remedies must always be
resolved by a judge and not by a jury.” Pavey v. Conley, No. 3:03-CV-0662, 2006 U.S. Dist.
LEXIS 90523, at *4-5 (N.D. Ind. Dec. 14, 2006).

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should decide factual disputes relating to an exhaustion defense—while
specifically rejecting the Ninth Circuit’s approach.107 In reaching this
conclusion, Judge Posner, writing for the panel, began by looking at
other areas such as subject-matter jurisdiction, where a factual dispute
can be decided by a judge—even in suits at law.108 From this analysis,
the court distilled the following “generalization”: “[J]uries do not decide
what forum a dispute is to be resolved in. Juries decide cases, not issues
of judicial traffic control.”109 The court found that exhaustion presented
an issue manifestly different from defenses based on filing deadlines,
such as the statute of limitations, because, the court believed, a
determination of non-exhaustion would not bar the suit but only send
the matter back to prison administrators to decide the issue in the first
instance.110 Finally, the court rejected as “unsatisfactory” the process of
having a jury try factual disputes on the exhaustion issue alongside the
merits, invoking “Congress’s effort to bar trials of prisoner cases in
which the prisoner has failed to exhaust his administrative remedies.”111
However, the court did acknowledge the problematic scenario in
which the merits of a case overlap with the exhaustion question—in
fact, the case before it presented such a scenario: The plaintiff claimed
that he was unable to file written grievances, as required by the prison
administrative procedures, because his writing arm was broken by
guards when they allegedly used excessive force to remove him from
his cell.112 Judge Posner offered a compromise: “[A]ny finding that the
judge makes, relating to exhaustion, that might affect the merits may be
reexamined by the jury if—and only after—the prisoner overcomes the
exhaustion defense and the case proceeds to the merits.”113 In
conclusion, Judge Posner prescribed a sui generis procedure for courts
in the Seventh Circuit to decide exhaustion issues. Initially, the parties
are allowed limited discovery on the exhaustion issue (as deemed
necessary by the judge). Then, after a hearing, the judge makes a
determination either that the plaintiff properly exhausted—in which
case the lawsuit proceeds normally and the judge’s resolution of factual
disputes is kept from the jury—or that the plaintiff did not properly
107
108

Pavey, 544 F.3d at 741-42.
Id. at 741 (listing other areas, such as subject-matter jurisdiction, personal jurisdiction,
venue, abstaining in favor of another court or agency, and relinquishing supplemental jurisdiction
to the state courts).
109 Id.
110 Id. (“That distinguishes the issue of exhaustion from deadline issues that juries decide. A
statute of limitations defense if successfully interposed ends the litigation rather than shunting it
to another forum. If the defense is rejected, the case proceeds in the court in which it is filed.”).
111 Id. at 742.
112 Id. at 741-42.
113 Id. at 742. The court prescribed a unique process for deciding non-exhaustion claims—one
which parallels procedures for deciding the enumerated defenses in Federal Rule of Civil
Procedure 12(b). See id.; see also FED. R. CIV. P. 12(i) (“Hearing Before Trial”).

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exhaust—in which case the judge must determine whether the failure to
exhaust was the fault of prison officials.114 In the case of a plaintiff’s
innocent failure to exhaust properly, the plaintiff is allowed a new
opportunity to exhaust his grievance.115 However, these procedures
nowhere instruct the district courts to make a determination about the
availability of administrative procedures.116
C.

Approaches of Other Circuit and District Courts

Without clear guidance in this area, district courts in other circuits
have turned to their own devices to reconcile the clearly established
procedures of the Federal Rules and the PLRA’s often competing goal
of promoting efficient resolution of prisoner claims. A recent case in
federal district court in Brooklyn, Snoussi v. Bivona,117 provides one
such example.
In Snoussi, the plaintiff, initially proceeding pro se, filed a civil
rights complaint against federal officials alleging, inter alia, that some
of the defendants failed to provide him with adequate medical care
while he was detained in a federal prison.118 The district court
dismissed this claim “without prejudice” because the plaintiff had failed
to plead that he had exhausted available administrative remedies—but
the court did not acknowledge or even mention Jones v. Bock.119
Subsequently, pro bono counsel moved for leave to file an amended
complaint, which reasserted claims arising from the failure to provide
necessary medical care.120 In his moving papers—filed after he was
released—the plaintiff, citing Jones, argued that he was not required to
plead or demonstrate exhaustion at the pleading stage and, therefore, it
would not be futile to allow him to amend his complaint to reassert the

114 Pavey, 544 F.3d at 742. Subsequently, the court amended its opinion to reflect the real
world possibility that the actions of prison officials could be responsible for the failure to exhaust
properly, and the prisoner plaintiff might find himself without an available administrative remedy
on remand where the deadline to file a grievance has passed and so be barred procedurally from
filing again in federal court. The court also amended the opinion to allow for flexibility in the
allowable discovery on the issue of exhaustion in the “exceptional case[]” where the facts of the
exhaustion issue overlap with facts on the underlying substantive legal claim—exactly the
situation in the case considered. Pavey v. Conley, No. 07-1426, 2008 U.S. App. LEXIS 19985, at
*1-3 (7th Cir. Sept. 12, 2008).
115 2008 U.S. App. LEXIS 19985, at *1-3.
116 Id.
117 No. 05 CV 3133, 2008 U.S. Dist. LEXIS 70682 (E.D.N.Y. Aug. 22, 2008).
118 See id. at *2, 4-5.
119 Id. at *17 (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).
120 Snoussi v. Bivona, No. 05 CV 3133, slip op. at 1-2 (E.D.N.Y. Feb. 17, 2010) (Report and
Recommendation of magistrate judge).

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denial of medical care claim without showing that he properly
exhausted.121
Nonetheless, the magistrate judge recommended not allowing the
plaintiff to reassert a denial of medical care claim because the court had
earlier dismissed this claim—for failing to plead exhaustion—and the
plaintiff had not presented evidence to overcome the defendant’s claim
that he had failed to exhaust.122 However, the plaintiff had argued that
his amended complaint, which pled the following facts, showed that the
defendants were estopped from raising failure to exhaust as a defense,
or at least demonstrated special circumstances excusing his failure to
exhaust: The plaintiff spoke limited English, prison officials ignored his
repeated requests for medical attention while he was held in solitary
confinement, and the plaintiff’s “only contact with prison officials who
could help him file an administrative grievance occurred during
extended and intense interrogation sessions.”123 But the magistrate
judge rejected these allegations absent discovery and without allowing
the plaintiff an opportunity to supplement the record, which was formed
solely on the plaintiff’s bare allegations in his proposed amended
complaint and the defendants’ evidence on their earlier motion to
dismiss.124
121 Memorandum of Law in Support of Plaintiff’s Motion to Amend His Complaint at 13, 1516, Snoussi v. Bivona, No. 05 CV 3133, slip op. (E.D.N.Y. Feb. 17, 2010).
122 Snoussi, slip op. at 16-17, 19.
Whereas plaintiff is correct that he is not required to plead exhaustion in his complaint,
defendants are correct that they previously raised the affirmative defense of exhaustion
as a basis for their motion to dismiss plaintiff’s claims . . . . The Court ruled
[previously] that “plaintiff has not demonstrated that he has pursued, much less
exhausted, his administrative remedies pursuant to the PLRA.” Indeed, plaintiff’s
second amended complaint is silent on the matter of exhaustion, and generally the
Court does not consider matters outside the pleadings on a motion to amend. . . .
Defendants presented evidence in their prior motion to dismiss or in the alternative for
summary judgment, that plaintiff did not file any administrative grievances with the
MCC related to the incidents alleged in the complaint. Therefore, this evidence is
already in the record, and dismissal for failure to exhaust is appropriate,
notwithstanding plaintiff’s silence on the matter.
Id. (footnote and citations omitted) (quoting the court’s earlier decision). The author of this Note
was previously employed as a summer associate by the law firm that submitted the motion to
amend plaintiff Snoussi’s complaint and participated in the preparation of the memorandum of
law in support of that motion. Mr. Snoussi’s current pro bono counsel did not object to the
magistrate judge’s recommendation to dismiss the denial of medical care claim.
123 Memorandum of Law in Support of Plaintiff’s Motion to Amend His Complaint, supra
note 121, at 16.
124 Snoussi, slip op. at 18-19. Of particular note is the magistrate judge’s rejection of the
plaintiff’s allegations that his limited English at the time of his initial detention presented a
special circumstance. See id. The magistrate judge said that such an allegation fails where the
prisoner litigant has filed other grievances in English, which the defendants’ evidence indicated.
Id. at 19. However, the magistrate judge acknowledged that the defendants’ records
demonstrated that the plaintiff had not filed his first administrative grievance in English until
more than a year and a half after the events underlying the allegations in the complaint, id. at 19
n.12, raising the very real possibility that the plaintiff’s proficiency in English improved

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Other district courts in the First and Second Circuits have
expressly held that because failure to exhaust is an affirmative defense
under the PLRA, disputed factual issues about PLRA exhaustion must
be tried to a jury, in the usual course.125 These courts have rejected
decisions directing factfinding by judges on the ground that they “predate” Jones, do not conform to the standard procedure of the Federal
Rules, and rest instead on “perceived policy concerns.”126 However,
some district courts in the Second Circuit have held that the exhaustion
defense should be decided by the court.127
Finally, some courts purport to follow the usual practice, but do so
by stretching the limits of the procedures prescribed by the Federal
Rules. For instance, a number of courts128 have decided exhaustion on a
motion to dismiss while relying on documentary evidence outside the
pleadings—without converting to a motion for summary judgment as
would be the usual practice.129 A number of these courts have justified
this approach by relying on judicial notice of public or “indisputably
authentic” documents.130 Other courts have granted summary judgment
even where there are factual disputes on the issue of exhaustion based
on the courts’ finding that the disputes do not concern a genuine issue of
material fact.131
III. PROBLEMS WITH THE APPROACH OF SOME OF THE LOWER COURTS
The current approach of some of the lower courts to the issue of
deciding an exhaustion defense presents myriad difficulties. This Part
first addresses the overarching Supreme Court precedent on the primacy
substantially in the intervening eighteen months. The magistrate judge’s Report and
Recommendation also did not consider the significance of the fact that the plaintiff was no longer
incarcerated at the time he moved to amend his complaint. See supra note 85 and accompanying
text.
125 See Maraglia v. Maloney, 499 F. Supp. 2d 93, 97-98 (D. Mass. 2007) (“[D]isputed issues
of fact must be resolved by the jury and not the Court.”); Lunney v. Brureton, No. 04 Civ. 2438,
2007 WL 1544629, at *10 n.4 (S.D.N.Y. May 29, 2007).
126 See Maraglia, 499 F. Supp. 2d at 94; see also Lunney, 2007 WL 1544629, at *10 n.4
(doubting, in light of Jones, the validity of previous cases directing trial courts to resolve disputed
factual issues).
127 See Sease v. Phillips, No. 06 Civ. 3663, 2009 U.S. Dist. LEXIS 45125, at *2 n.1 (S.D.N.Y.
May 29, 2009); Amador v. Superintendent of Dep’t of Corr. Servs., 2007 WL 4326747, at *5
(S.D.N.Y. Dec. 4, 2007).
128 See BOSTON, supra note 75, at 48 n.220 (collecting cases).
129 See infra note 160.
130 See, e.g., Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (“indisputably authentic”
documents); see also BOSTON, supra note 75, at 48 n.220 (collecting cases).
131 See, e.g., Jones v. Carroll, 628 F. Supp. 2d 551, 557 & n.4 (D. Del. 2009) (finding that the
plaintiff’s assertion that he addressed his concern to prison security, rather than through the
grievance system, because of misinformation from a corrections officer did not raise a genuine
issue of material fact); see also BOSTON, supra note 75, at 49 n.221 (collecting cases).

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and rigidity of the Federal Rules of Civil Procedure. Then, to best
understand the irregularity of the procedures deployed in some of these
courts, this Part will explore Rule 12 of the Federal Rules of Civil
Procedure, by examining its historic genesis and the significant debates
surrounding adoption of its relevant sections and amendments. Next,
this Part will address statutory and constitutional problems that are
presented by the unusual procedures of these lower courts. Finally, this
Part will look at the policy concerns and related arguments against
deviating from the usual rules of civil practice.
A.

The Supreme Court Demands that Lower Courts Follow the Usual
Federal Rules of Civil Procedure

As discussed earlier, the Court in Jones strongly reprimanded the
lower courts for adopting sui generis procedures.132 Among other
things, the Court admonished lower courts that crafting and imposing
rules not required by the PLRA “exceeds the proper limits on the
judicial role.”133 The Court warned lower courts that they “should
generally not depart from the usual practice under the Federal Rules on
the basis of perceived policy concerns.”134 Then, less than six months
after its decision in Jones, the Court unexpectedly issued an opinion in
Erickson v. Pardus.135 In the per curiam opinion,136 the Court
summarily rebuked the lower court, which had dismissed a prisoner
plaintiff’s Eighth Amendment claims, for its “departure from the liberal
pleading standards” prescribed in the Federal Rules of Civil
Procedure.137 Scholars have commented on this uncommon
admonishment, particularly following so closely on the heels of Jones,
as an indication of the Court’s outright rejection of applying sui generis
procedures in prisoner litigation.138
132 See, e.g., Jones v. Bock, 549 U.S. 199, 203, 212 (2007); see also supra notes 61-67 and
accompanying text.
133 549 U.S. at 203.
134 Id. at 212.
135 551 U.S. 89 (2007) (per curiam).
136 Justice Thomas dissented on substantive Eighth Amendment grounds unrelated to the core
of the Court’s holding. Id. at 95 (Thomas, J., dissenting).
137 Id. at 94 (majority opinion). Interestingly, the Court cited twice to its recent controversial
decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to support the familiar
propositions that a plaintiff need not plead specific facts, and the factual allegations in the
complaint are to be accepted as true on a motion to dismiss; the Court did not invoke the widely
discussed “plausibility” standard enunciated in Bell Atlantic. Erickson, 551 U.S. at 93-94.
138 Professor Giovanna Shay, a noted scholar on prison litigation and counsel for amicus
curiae Jerome N. Frank Legal Services Organization of the Yale Law School in both Jones v.
Bock and Woodford v. Ngo, has said that the “Court’s message to lower courts in both Jones and
[Erickson] could not be more clear—prisoner cases may be a pain, but you can’t make up more
onerous rules to get rid of them. . . . The [PLRA] is not carte blanche to erect additional barriers

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However, Erickson is not the first or only time the Court has
addressed ad hoc procedures in the lower courts. Among other notable
examples, in Crawford-El v. Britton, the Court rejected the lower
court’s application of a heightened burden of proof for civil rights
plaintiffs who press retaliation claims.139 Likewise, in Gomez v. Toledo,
the Court refused to require plaintiffs in claims brought under 28 U.S.C.
§ 1983 to plead that the defendant acted in bad faith to state a claim
where the defendant would otherwise be entitled to qualified
immunity.140 The Court recognized that since qualified immunity is an
affirmative defense, the defendant bears the burden of pleading and
proving good faith entitling the official to qualified immunity.141
Finally, in Swierkiewicz v. Sorema N.A.,142 the Court rejected the
Second Circuit’s application of heightened pleading requirements for
certain employment discrimination claims.143 The Court found that the
lower court’s approach conflicted with the “short and plain statement”
standard of Rule 8.144
These opinions demonstrate that the Supreme Court generally
disapproves of departures from the usual practice under the Federal
Rules of Civil Procedure. Such condemnation of ad hoc procedures
suggests that the unusual exhaustion procedures fare no better. More
importantly, these decisions demonstrate the Court’s firm stance on
lower courts’ adopting unusual procedural devices based on (perhaps
reasonable and beneficial) policy concerns. Simply put, these decisions
send the message that lower courts are bound by the rules of procedure,
which can be modified only by the Supreme Court with congressional
sanction.

to court access to prisoners’ cases.”
Posting of Giovanna Shay to ACSBlog,
http://www.americanconstitutionsociety.org/node/11543 (June 7, 2007, 13:30 EDT).
139 523 U.S. 574 (1998).
140 446 U.S. 635 (1980).
141 Id. at 635-42.
142 534 U.S. 506 (2002).
143 The plaintiff in Swierkiewicz raised claims under Title VII of the Civil Rights Act of 1964
(codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2006)) and under the Age
Discrimination in Employment Act of 1967 (codified as amended at 29 U.S.C. §§ 621-634
(2006)). 534 U.S. at 509.
144 534 U.S. at 512-15.

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B.

1.

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Conflicts with the Federal Rules of Civil Procedure

The Current Federal Rules of Civil Procedure for Raising
Affirmative Defenses

Under the Federal Rules of Civil Procedure,145 Rule 12 governs the
timing and manner for raising defenses and objections.146 This rule
requires that every defense be asserted in “a responsive pleading.”147
Similarly, Rule 8 provides that a responsive pleading must state any
affirmative defense, and lists common affirmative defenses, such as the
statute of limitations.148 The only responsive pleading provided under
the simplified pleading rules149 is an answer.150 However, Rule 12(b)
identifies an alternative procedure for asserting seven151 specified
defenses, which a party may raise by motion.152 Additionally, Rule
12(c) provides for “judgment on the pleadings,” which a party may
request by motion after the parties have presented their pleadings, and is
essentially the same as a Rule 12(b) motion to dismiss for failure to
state a claim.153 Under Rule 12(i), when requested by a party, the court
will hold a pretrial hearing to resolve defenses raised under Rule 12(b)
or by motion under Rule 12(c), unless the court decides to defer the
issue for trial.154 Finally, Rule 56 provides for a motion for summary
judgment where there is “no genuine issue as to any material fact” and
the moving party is entitled to judgment as a matter of law.155
Interpreting these circumscribed procedures for raising defenses,
courts have struggled with the question of whether an affirmative
145 At the time of writing this Note, the Federal Rules had been modestly amended in 2007 and
2009. See Order of the Supreme Court, March 26, 2009, available at
http://www.supremecourtus.gov/orders/courtorders/frcv09.pdf; Order of the Supreme Court,
April 30, 2007, available at http://www.supremecourtus.gov/orders/courtorders/frcv07p.pdf.
This Note refers to the Rules as of their 2009 amendments.
146 FED. R. CIV. P. 12.
147 Id. 12(b).
148 FED. R. CIV. P. 8(c).
149 See generally Charles E. Clark, Simplified Pleading, 27 IOWA L. REV. 272 (1942).
150 See FED. R. CIV. P. 7(a).
151 When adopted, Rule 12(b) contained six enumerated defenses that could be raised by
motion. See FED. R. CIV. P. 12(b) advisory committee’s notes (1946). In 1946, the seventh
defense, “failure to join an indispensable party,” was added. See id.; see also infra notes 205-208
and accompanying text.
152 FED. R. CIV. P. 12(b). These seven enumerated defenses are: (1) lack of subject-matter
jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficient process, (5)
insufficient service of process, (6) “failure to state a claim upon which relief can be granted,” and
(7) failure to join an indispensable party. Id.
153 Id. 12(c); see also 2 MILTON I. SHADURUPDATES & MARY P. SQUIERS, MOORE’S FEDERAL
PRACTICE § 12.38 (3d ed. 2009).
154 FED. R. CIV. P. 12(i).
155 FED. R. CIV. P. 56(c).

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defense may only be pleaded in the answer, or if the rules allow for
affirmative defenses to be raised by motion.156 Courts are largely in
agreement on two procedural bases for raising an affirmative defense by
motion.157 First, when facts that establish an affirmative defense appear
on the face of the complaint, the defendant may make a motion pursuant
to Rule 12(b)(6) for failure to state a legally cognizable claim.158 The
rationale is simply that since the plaintiff has, through his own pleading,
demonstrated that his cause of action is untenable, he has therefore
failed to state a claim.159 Second, if the defense can be resolved by the
pleadings alone, the issue will be decided by the court as a matter of
law, but where the parties bring in matters outside of the pleadings, the
motion must be converted into one for summary judgment.160 The most
commonly accepted procedure for raising an affirmative defense is by a
motion for summary judgment pursuant to Rule 56, through which the
court will resolve the legal issue only insofar as there are no genuine
issues of material fact—otherwise, the jury (on appropriate legal claims)
will be asked to resolve the factual disputes.161
This is the usual practice. As addressed below, the genesis and
development of the Federal Rules support the argument that these finely
wrought rules do not, and were not intended to, prescribe
“unenumerated” and obsolete procedures.162

156 See generally 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1277 (3d ed. 2009).
157 See id.
158 Id.
159 Id.
160 See FED. R. CIV. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.”).
[O]n motion under Rule 12(b)(6) to dismiss . . . the trial court should have authority to
permit the introduction of extraneous matter, such as may be offered on a motion for
summary judgment, and if it does not exclude such matter the motion should then be
treated as a motion for summary judgment and disposed of in the manner and on the
conditions stated in Rule 56 relating to summary judgments . . . . The Committee
believes that such practice, however, should be tied to the summary judgment rule.
The term “speaking motion” is not mentioned in the rules, and if there is such a thing
its limitations are undefined. Where extraneous matter is received, by tying further
proceedings to the summary judgment rule the courts have a definite basis in the rules
for disposing of the motion.
FED. R. CIV. P. 12(d) advisory committee’s notes (1946).
161 See FED. R. CIV. P. 56(c).
162 It is important to point out that this Note does not address the corresponding and important
question of whether these rules should be the usual practice. Certainly there is plenty of case law
in which courts have departed from this practice. See, e.g., Lambert v. Conrad, 536 F.2d 1183
(7th Cir. 1976) (holding that res judicata can be asserted by a pre-answer motion even though not
specifically provided for in Rule 12(b)). However, this Note argues that those cases, as much as
the cases in the exhaustion context, are a departure from the usual practice—at least the usual
practice as envisioned and understood by the drafters of the rules.

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Civil Practice Governing Affirmative Defenses at Common Law

Common law pleadings involved an intricate process of pleas and
responses. Technical correctness in the nomenclature as well as the
language of the pleas was highly important. In response to the
plaintiff’s writ (the claim to legal relief) and declaration (the factual
allegations), the defendant had essentially two modes for disputing or
defeating the plaintiff’s claim. The first, and most recognizable, was
the demurrer, which generally admitted the facts alleged, but challenged
the legal basis for the plaintiff’s claim.163 The other avenue available
for the defendant was a “plea,” which included “dilatory” pleas that
delayed the claim instead of denying it, and “peremptory” pleas (“in bar
of the action” or “to the action”) that defeated the claim.164 Pleas in bar
included defenses such as the statute of limitations.165 Dilatory pleas
included challenges to the jurisdiction of the court, effectively asking
that the case be dismissed; to the plaintiff’s capacity to bring the suit,
insisting that the case be suspended until the disability was removed; or
to an issue that should abate the action.166 This latter category of
dilatory pleas was known as pleas in abatement.167
A plea in abatement challenged the plaintiff’s ability to prosecute
the claim because of a legal defense as opposed to attacking the legal
sufficiency or factual basis of the plaintiff’s claim.168 Generally,
matters in abatement related to the identity of the plaintiff, the identity
of the defendant, the declaration of facts, or a defect in the plaintiff’s
writ.169 Examples of a defect in the writ included: wrong venue; a
personal disability of one of the parties, i.e., the party was deceased; the
action was brought prematurely; another action for the same claim was
pending in another court; the parties were misnamed; or a necessary
party was not joined or a party was misjoined.170
The problem with the Ninth Circuit’s conceptualizing exhaustion
as a “matter in abatement” is that it is a flawed analogy. First, courts
and commentators that have resurrected the term have tied it specifically

163
164

2 GILES JACOB & T. E. TOMLINS, THE LAW-DICTIONARY 240 (1st Am. ed. 1811).
5 JACOB & TOMLINS, supra note 163, at 165; J.J.S. WHARTON, THE LAW LEXICON, OR
DICTIONARY OF JURISPRUDENCE 523 (1848). See generally JOHN JAY MCKELVEY, PRINCIPLES
OF COMMON-LAW PLEADING §§ 127-28, at 91 (1894).
165 See 5 JACOB & TOMLINS, supra note 163, at 165.
166 Id. at 165-66.
167 See MCKELVEY, supra note 164, § 128, at 91.
168 See generally GEORGE L. CLARK, COMMON LAW PLEADING § 61, at 136 (1931);
BENJAMIN J. SHIPMAN, HANDBOOK OF COMMON-LAW PLEADING § 225, at 388-92 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
169 See SHIPMAN, supra note 168, at 389.
170 Id. at 388.

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to a claim of lack of jurisdiction,171 which misreads the common law
doctrine. As discussed above, at common law, dilatory pleas were
divided separately into pleas challenging the court’s jurisdiction, and
those asserting a matter—often based on new facts not found in the
declaration—that abated the action.172 Therefore, whatever procedure at
common law that attached to jurisdictional pleas is inapposite to pleas
presenting matters in abatement of the action.
Furthermore, at common law, matters in abatement could only go
so far as to defeat the present action, and not to demonstrate that the
plaintiff was permanently disabled from bringing the claim.173
However, a defense of failure properly to exhaust available
administrative remedies may defeat the claim entirely—just look at the
Snoussi litigation discussed above, or consider the cases in which the
court has dismissed the claim with prejudice where the prisoner has
been released and can therefore no longer pursue any administrative
remedies.174 Additionally, the Supreme Court has held that exhaustion
is an affirmative defense, analogizing it to the statute of limitations.175
At common law, the statute of limitations was a matter asserted by a
plea in bar—in other words, a defense on the merits of the claim.176
Whatever syllogism properly classifies some contemporary defenses as
asserting “matters in abatement,” it does not properly include
exhaustion.
The second, and more important, problem with the Ninth Circuit’s
matter in abatement approach to the defense of failure to exhaust is that
it is dependent on common law pleading rules that have long been
superseded by modern pleading practice. As discussed below, the scope
and language of the current Federal Rules of Civil Procedure
completely supplant common law pleas,177 and abatement was a
quintessential common law plea. By simply reframing abatement as a
171 See Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir.
1988); Studio Elec. Technicians Local 728 v. Int’l Photographers of the Motion Picture Indus.,
Local 659, 598 F.2d 551, 552 n.2 (9th Cir. 1979); see also 6 JAMES WM. MOORE, W. TAGGERT &
J. WICKER, MOORE’S FEDERAL PRACTICE ¶ 56.03, at 56-55 (2d ed. 1996) (cited in both Ritza
and Studio Electric).
172 See supra notes 164-170 and accompanying text.
173 See SHIPMAN, supra note 168, at 388.
174 See Collins v. Goord, 438 F. Supp. 2d 399, 408-10 (S.D.N.Y. 2006) (finding the exhaustion
requirement applied to a plaintiff who filed a complaint while incarcerated, and dismissing with
prejudice the unexhausted claims); see also Berry v. Kerik, 366 F.3d 85, 86 (2d Cir. 2003)
(“[Where] remedies are no longer available, dismissal with prejudice [is] proper.”); supra notes
118-124 and accompanying text.
175 See Jones v. Bock, 549 U.S. 199, 211-17 (2007).
176 See, e.g., 1 JOSEPH CHITTY, A TREATISE ON PLEADING AND PARTIES TO ACTIONS 471 (H.
Greening ed., 14th Am. ed. 1872); WHARTON, supra note 164, at 523.
177 See FED. R. CIV. P. 7; id. advisory committee’s note (“Former Equity Rules . . . abolished
technical forms of pleading, demurrers, and pleas, and exceptions for insufficiency of an
answer.”).

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cognizable ground for a dispositive pretrial motion, courts are
effectively ignoring the Federal Rules’ proscription of common law
pleas, and the door is thrown wide open for a motion raising any and all
matters that would have been raised—either explicitly or by analogy—
in a common law plea.178 The complex and complicated common law
system of pleas—in particular, dilatory pleas—was highly disfavored by
the drafters of the Federal Rules of Civil Procedure.179 The system was
seen as perpetuating the unnecessary cost and delay of litigation, which
rewarded the technical skill of lawyers, rather than reaching equitable
resolution of the legal claims. The drafters specifically sought to oust
dilatory pleas and implement a simplified system that would help isolate
the real issues in the case and facilitate an efficient and just resolution of
the claims. Furthermore, even under the early common law pleading
practice in the United States, pleas in abatement were severely restricted
from their traditional English practice,180 and they should not be
judicially resurrected outside of the accepted rule-making process.
3.

Affirmative Defenses Under the Federal Rules

Even shoehorning its sui generis procedures into the framework of
the contemporary Federal Rules, the Ninth Circuit’s approach fails to
comport with the plain language of the interlocking components of
Rule 12. First, it ignores one of the most basic canons of construction:
expressio unius est exclusio alterius—the expression of one thing is the
exclusion of another. Rule 12(b) was clearly drafted to provide a
general rule—that all defenses should be raised in the answer—with a
narrow exception that allows only for certain enumerated defenses to be
asserted by motion: “Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading . . . . But a party may assert
the following defenses by motion . . . .”181 The plain language of the
rule forecloses the notion of “unenumerated” motions. Furthermore, the
178 Inconsistent use of procedural terminology that lacks clear and consistent grounding in
statutory text or procedural rules has been criticized for producing uncertain outcomes with
unexpected collateral consequences. See generally Bradley Scott Shannon, Action Is an Action Is
an Action Is an Action, 77 WASH. L. REV. 65 (2002). Scholars have argued the fact that judicial
precedent supports an irregular use of procedural terminology does not justify the improper
application of procedure. Id. at 84 (“Perhaps the least excusable reason for failing to use proper
procedural terminology is prior practice. . . . Though such a course of conduct is somewhat
understandable (and in many situations makes eminent sense), it can lead to the perpetuation of
error.” (footnotes omitted)).
179 See Charles E. Clark, Simplified Pleading, 2 F.R.D. 456, 458 (1943).
180 SHIPMAN, supra note 168, at 390 (“[T]he modern grounds for abatement of an action are
much more limited than they were formerly. They have been, also, still further limited in most
states by statute.”).
181 FED. R. CIV. P. 12(b) (emphases added).

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specific defenses that may be raised by motion correspond to defenses
that, at common law, would have been raised by a dilatory plea, such as
jurisdictional defects and failure to implead a necessary party.182 That
Rule 12(b) includes particular defenses and not other similar common
law defenses suggests that any unenumerated defense in the rule was
purposefully excluded.183 Second, an “unenumerated” Rule 12(b)
motion runs up against several other provisions of Rule 12 that apply
specifically to certain of the enumerated defenses in the rule: Rule
12(h)(1) provides that some of the Rule 12(b) defenses are waived in
certain circumstances, and Rule 12(i) provides for a pretrial hearing on
a “defense listed in Rule 12(b)(1)-(7).”184 How could these provisions
apply to an unenumerated defense? Such a gap in rules drafted with this
level of specificity at least suggests that Rule 12(b) is circumscribed to
the bases provided for therein. This conclusion is further supported by
the genesis and development of the rule.
The original draft of the rule governing presentment of defenses,
which became Rule 12, relied on the language of its predecessor in the
Equity Rules,185 and followed the English model: It provided that all
defenses—“whether in abatement or bar”—other than sufficiency of
service of process, venue, and jurisdiction, were to be pleaded in the
defendant’s answer.186 Drawing on its predecessor—Equity Rule
182 See Armistead M. Dobie, The Federal Rules of Civil Procedure, 25 VA. L. REV. 261, 266
(1939) (“Rule 12(b) enumerates six defenses which may be set up either in the answer or by a
motion to dismiss . . . . The first five of these are matters in abatement.”); see also 5B CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1349 (3d ed.
2009).
183 This view is consistent with the overarching approach to the new federal pleading system
advanced by leading scholars Charles E. Clark and James Wm. Moore. See Charles E. Clark &
James Wm. Moore, A New Federal Civil Procedure: II. Pleadings and Parties, 44 YALE L.J.
1291, 1303-05 (1935) (explaining that Equity Rule 29 is “the better practice on the law side of the
federal courts today” because “issue-forming is speeded up by compelling matter in abatement
and bar to be set forth at one time”). In their analysis, the better procedure would be to
consolidate all issues for one trial and to “limit[] the wasteful preliminary hearing.” Id. at 1308.
In order to provide efficient resolutions, they advocated for a robust summary disposition
procedure that could resolve cases on the papers. Id. 1308-09 & n.77. This paradigm comports
with the contemporary usual practice in the federal courts and the approach advocated in this
Note for application to the exhaustion issue. See supra Part III.B.1.
184 FED. R. CIV. P. 12(h), (i).
185 See FED. R. CIV. P. 12 advisory committee’s note (referring to, inter alia, Equity Rule 29).
Under Equity Rule 29, a motion to dismiss was allowed for “[e]very defense in point of law
arising upon the face of the bill,” and “every such point of law going to the whole or a material
part of the cause . . . of action” could be heard and decided on a preliminary hearing. Equity Rule
29, quoted in James A. Pike, Objections to Pleading Under the New Federal Rules of Civil
Procedure, 47 YALE L.J. 50, 54 n.24 (1937). The rule also provided: “Every defense heretofore
presentable by plea in bar or abatement shall be made in the answer and may be separately heard
and disposed of before the trial of the principal case in the discretion of the court.” Id.
186 See ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, PRELIMINARY DRAFT OF RULES
OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES AND THE SUPREME
COURT OF THE DISTRICT OF COLUMBIA 28-29 (May 1936) [hereinafter PRELIMINARY DRAFT OF
RULES OF CIVIL PROCEDURE] (“Rule 16”).

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29187—the proposed rule would permit a “hearing or trial” of any
defense that “may finally dispose of the whole or a material part of the
issues.”188 Charles E. Clark—“perhaps the single most important figure
in the drafting of the 1938 Federal Rules of Civil Procedure” as
Reporter to the Advisory Committee189—supported this procedure for
raising defenses.190 However, following extensive debate, this course
was rejected. Instead, the rules methodically enumerated a limited
number of defenses that may be raised in a motion pursuant to Rule
12(b) and decided on a preliminary hearing pursuant to Rule 12(i).191
Although the rule as enacted was disfavored by some commentators,192
it is clear that it foreclosed the approach taken by the Ninth and Seventh
Circuits to the exhaustion issue. The drafting committee considered
leaving courts free to hear any “unenumerated” basis for dismissal but
ultimately rejected such course.
In fact, Rule 12(b)’s procedures for raising defenses were
specifically crafted with the goal of preventing a dilatory series of
pretrial inquiries and hearings.193 According to Clark, the final version
of the rule reflected a compromise of interests: Generally requiring
defenses to be pleaded in the answer reflected the English system that
he preferred, while allowing for some limited defenses to be asserted by
motion appeased the contingent preferring the old systems that allowed
defendants to assert targeted defenses before responding to the
complaint with an affirmative pleading.194 Clark saw the trend of
pleading reform leading up to the development of the Federal Rules as
moving in the direction of the English system, noting that “most of the

187
188
189

See infra note 185.
PRELIMINARY DRAFT OF RULES OF CIVIL PROCEDURE, supra note 186, at 29.
See Robert G. Bone, Mapping the Boundaries of the Dispute: Conceptions of Ideal Lawsuit
Structure from the Field Code to the Federal Rules, 89 COLUM. L. REV. 1, 80 & n.259 (1989)
(noting that Clark served as Reporter while Dean of Yale Law School, and he later became a
judge on the Court of Appeals for the Second Circuit).
190 See Clark, supra note 179, at 465-66 (referring to original Rule 12(d), which was then the
subsection providing for a preliminary hearing on the defenses provided for in 12(b); now, the
preliminary hearing is found in Rule 12(i)); see also INST. ON FEDERAL RULES OF CIVIL
PROCEDURE, RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES
WITH NOTES AS PREPARED UNDER THE DIRECTION OF THE ADVISORY COMMITTEE AND
PROCEEDINGS OF THE INSTITUTE ON FEDERAL RULES, CLEVELAND, OHIO, JULY 21, 22, 23, 1938,
at 239 (William W. Dawson ed., 1938) [hereinafter 1938 RULES OF CIVIL PROCEDURE]
(comments of Charles E. Clark); John A. Bauman, The Amendments to Rule 12 of the Federal
Rules of Civil Procedure, 26 N.D. B. BRIEFS 235, 238 (1950); Claude H. Brown, Some Problems
Concerning Motions Under Federal Rule 12(b), 27 MINN. L. REV. 415, 428 (1943).
191 See FED. R. CIV. P. 12(b), (i); see also Bauman, supra note 190, at 238 (discussing original
Rule 12(d), which is now contained in Rule 12(i)).
192 See Pike, supra note 185, at 54-57.
193 INST. ON FEDERAL RULES OF CIVIL PROCEDURE, PROCEEDINGS OF THE INSTITUTE AT
WASHINGTON, D.C. OCTOBER 6, 7, 8, 1938 AND OF THE SYMPOSIUM AT NEW YORK CITY
OCTOBER 17, 18, 19, 1938, at 54-57 (Edward H. Hammond ed., 1939).
194 Id.; see also Clark, supra note 179, at 465.

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codes” immediately preceding the Federal Rules already “provide[d]
that the plea in abatement for matters outside the complaint must be a
part of the answer.”195 As Clark understood Rule 12(b), it prescribed
the English system generally—“all objections in the answer, and you
may have all your defenses in the answer, whether in abatement or in
bar, whether merely to stop this present case or to meet the merits of the
issue”—“except” for the “several defenses” listed in the rule.196 At one
of the several conferences to explain the newly minted rules, Clark’s
example of defenses that were to be presented in the answer referred to
one of the rule’s forms that included “an affirmative pleading of the
statute of limitations.”197 Later, when specifically asked if Rule 12(b)
supported a motion “to present the dilatory defenses . . . mentioned in
Rule 12(b) when the defense . . . depends on facts outside the record (as
where a plea in abatement was formerly used),” Clark responded that
“[c]learly a motion may be used for this purpose under Rule 56,” but
would also be acceptable for “the six defenses . . . specially listed” in
Rule 12(b).198
The view that a Rule 12(b) motion is limited to the enumerated
bases is also supported by the early judicial construction and scholarly
assessment of the rule. Shortly after the Federal Rules took effect,
courts were confronted with inevitable gaps. One common issue was
exactly the one presented by the exhaustion defense: How should
affirmative defenses be raised? The earliest reported cases applying the
new Federal Rules either rejected motions to dismiss raising affirmative
defenses where the defenses did not appear on the face of the
complaint,199 or construed the motions as answers.200 In at least one
195
196
197
198

Clark, supra note 179 at 465.
1938 RULES OF CIVIL PROCEDURE, supra note 190, at 55-56.
Id. at 56.
Id. at 74. This answer also reflected Dean Clark’s disputed argument that a motion under
Rule 12(b)(6), like any other motion under Rule 12(b), could be supported by affidavits. See
James A. Pike, Some Current Trends in the Construction of the Federal Rules, 9 GEO. WASH. L.
REV. 26, 35-36 (1940).
199 See Barnhart v. W. Md. Ry. Co., 41 F. Supp. 898, 904-05 (D. Md. 1941) (“It is my
understanding of the new Federal Rules of Civil Procedure that ordinarily the defense of
limitations must be interposed by an answer, unless the legal effect of the bar of limitations
conclusively appears from the complaint.”); Eberle v. Sinclair Prairie Oil Co., 35 F. Supp. 296,
300 (E.D. Okla. 1940) (“[Defendant’s motion pursuant to Rule 12(b)(6) presenting a defense of
res judicata will be treated as a motion for summary judgment under Rule 56 because,] [i]n
construing Rule 12(b)(6), due consideration should be given to all other rules, particularly Rule
8(c) and Rule 56(b). The construction contended for by the defendant would permit affirmative
defenses, required under Rule 8(c), to be pleaded, to be presented by motion prior to the filing of
a responsive pleading, and further would practically eliminate the necessity of Rule 56(b). Such a
broad construction should not be given to Rule 12(b)(6).”); Holmberg v. Hannaford, 28 F. Supp.
216, 219 (S.D. Ohio 1939) (“[W]hether the question is one of laches or statute of limitations,
these questions should be raised under Rule 8(c) of the Rules of Civil Procedure by affirmatively
setting forth the claims in these respects in an answer rather than by way of motion to dismiss.”
(citation omitted)); Piest v. Tide Water Oil Co., 27 F. Supp. 1020, 1021 (S.D.N.Y. 1939) (stating

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case, the defendant tried to raise a defense of pendency of another
action.201 There, the court said that the “defense of multiplicity of suits
should be raised by answer.”202 One scholarly commentator concluded
that “[u]nder the Federal Rules, of course, the defense of lack of
capacity to sue must be raised in the answer or by motion for summary
judgment.”203 And note, neither pendency of another lawsuit nor lack
of capacity to sue—both of which were traditionally issues for a
common law plea in abatement204—is included in Rule 8(c)’s list of
affirmative defenses to be pleaded in an answer; but early students of
the Federal Rules, who were familiar with the preceding practice and
with pleas in abatement, still considered these appropriate defenses to
be raised in the answer and not in a motion pursuant to Rule 12(b).
Another recurrent question was: How should defendants respond
when the action lacked an indispensable party, which was then not an
enumerated ground for a motion under Rule 12(b)? District courts
heard various motions raising such a defense, including a motion to
dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1),
and for failure to state a legally cognizable claim pursuant to Rule
12(b)(6).205 Contemporary commentators addressing this issue failed to
perceive in Rule 12(b) tacit authority for raising by motion the issue of
failure to join an indispensable party. Instead, these commentators
proposed various interpretations of the enumerated grounds in Rule
12(b) that would permit raising the defense by a pre-answer motion.206
that a statute of frauds bar “should be presented by affirmative defense under Rule 8(c)”).
200 Baker v. Sisk, 1 F.R.D. 232 (E.D. Okla. 1938). There, the court said:
The defendants apparently were proceeding under Rule 12(b)(6) . . . . In so doing the
defendants disregard Rule 8(c) which provides that the statute of limitations is an
affirmative defense to be set forth in a pleading rather than a motion. The defendants
may not in a motion to dismiss raise the issue of the statute of limitations. . . . The
motion to dismiss provided for under the rules is not designed to reach a case in which
the plaintiff would not be entitled to any relief after the matters of defense have been
presented. In other words it may not be substituted for an answer. . . . And, although
the defendants have designated the pleading a motion to dismiss, it is, we think, in fact
an answer and will be treated as such.
Id. at 236.
201 Sproul v. Gambone, 34 F. Supp. 441 (W.D. Pa. 1940).
202 Id. at 442.
203 Raising Issue as to Capacity to Sue, 5 Fed. R. Serv. (Callaghan) 805 (1942).
204 See supra note 170 and accompanying text.
205 See FED. R. CIV. P. 12(b) advisory committee’s notes (1946); see also Bauman, supra note
191, at 236 & n.9.
206 Manner of Raising Objection of Nonjoinder of Indispensable Party, 2 Fed. R. Serv.
(Callaghan) 658 (1940) (“[I]t will often be desirable to have the matter disposed of at an early
stage. It will be noted however, that Rule 12 is more restrictive than the old Equity Rule: a
defense may be asserted by motion, or if made by answer a preliminary hearing under Rule 12d
may be had, only if the defense is one of the six listed in Rule 12b.”). This commentator went on
to say that lack of subject matter jurisdiction—one of the enumerated bases for a motion under
Rule 12(b)(1)—was the only possible enumerated ground—unless the defense appeared on the
face of the complaint, in which case a Rule 12(b)(6) motion was appropriate. Manner of Raising

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Then, in 1946, the Advisory Committee adopted several amendments to
the Federal Rules, among which was a seventh enumerated defense in
Rule 12(b) for failure to join an indispensable party.207 The Committee
explained that the purpose of the amendment was to “cure[] an omission
in the rules, which [were] silent as to the mode of raising such
failure.”208 This provides strong evidence that the Advisory Committee
did not consider Rule 12(b) to authorize an unspoken reservoir of
defenses that could be raised by motion instead of being affirmatively
pleaded.
C.

Appellate Review of a Matter in Abatement Would Be
Foreclosed by Statute

Another problem with considering a defense of failure to exhaust
as a “matter in abatement” is the specter of 28 U.S.C. § 2105. This
obscure statute209 provides: “There shall be no reversal in the Supreme
Court or a court of appeals for error in ruling upon matters in abatement
which do not involve jurisdiction.”210 The statute is most notable for
the inattention it has received.211 Some judges have assumed that
Objection of Nonjoinder of Indispensable Party, Supplementary, 5 Fed. R. Serv. (Callaghan) 820,
821 (1942). Because the commentator found that lack of an indispensable party presented a
jurisdictional bar, the commentator concluded that it was properly the subject for a motion under
Rule 12(b)(1) for lack of subject matter jurisdiction. Id. What the commentator never suggested
was that Rule 12(b) generally authorized raising by motion such a defense, although
unenumerated in Rule 12(b).
207 See FED. R. CIV. P. 12(b) advisory committee’s notes (1946).
208 Id.
209 This provision of the U.S. Code has been referred to as “‘[o]ne of the most commonly
ignored provisions of the Judicial Code.’” Andrews v. King, 398 F.3d 1113, 1117 n.4 (9th Cir.
2005) (quoting 15A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3903, at 139 (1992)).
210 28 U.S.C. § 2105 (2006). This section of the U.S. Code dates back to the Judiciary Act of
1789, where it was first found at section 22. An Act to Establish the Judicial Courts of the United
States, § 22, 1 Stat. 73, 84-85 (1789). Later, it was reworded when re-enacted in Revised Statute
§ 1011, then codified at 28 U.S.C. § 879, and later moved to 28 U.S.C. § 2105. See 28 U.S.C.
§ 2105 notes; see also Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 27 n. 3 (1943). When the
Federal Rules of Civil Procedure were adopted and Rule 7(c) substituted motions for pleas, the
original words of the statute “plea in abatement” and “plea to the jurisdiction” were replaced with
the words “matters in abatement.” See 28 U.S.C. § 2105 notes; see also FED. R. CIV. P. 7(c)
(1995) (repealed 2007) (“Demurrers, pleas, and exceptions for insufficiency of a pleading shall
not be used.”). Rule 7(c) was deleted in 2007 “because it has done its work.” FED. R. CIV. P. 7
advisory committee’s note (2007). Of course, the Advisory Committee’s comment appears
premature in light of the advent and recent expansion of an unenumerated motion for raising a
matter in abatement, which seems to be little more than a plea in abatement dressed in
contemporary procedural syntax.
211 See Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 212 (3d Cir. 1983)
(Rosenn, J., concurring) (“[Section 2105’s] ‘most important feature . . . is certainly its disuse.’”
(quoting 15 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3903, at 412, 413 (1976))), overruled in part on other grounds by

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§ 2105 is limited to appeals following fully completed trials because it
“was intended to protect the interest of the parties and the federal courts
in fully completed trials,”212 while others have questioned this
conclusion.213 The contemporary understanding of the scope of § 2105
is that it covers “the modern equivalent of a common law plea in
abatement.”214 In other words, it includes a defense “‘which merely
defeats the present proceeding,’ and therefore does not address the
merits of the action or prevent the plaintiff from suing in the future.”215
Although infrequently asserted—and even more rarely applied—
§ 2105 lurks in the wings. Its obscurity allows courts to apply it to
avoid a difficult issue, or avoid it to decide an issue that might
otherwise be insulated from appellate reversal. Judges have expressed
concern about the impact on appellate review of the whimsical
application of the black letter of § 2105. At least one concerned judge
of the federal courts of appeals has warned that a strict reading of
§ 2105 may prevent appellate review of “a wide range of issues, such as
whether the district court should have abstained or deferred to either
state, administrative, or private proceedings”216—precisely the issue at
stake in an exhaustion defense. Indeed, if exhaustion is properly a
matter in abatement, § 2105 seems at least to foreclose any appellate
reversal of a determination about whether administrative remedies are
available and, if so, whether a prisoner plaintiff has exhausted them;
also, it may present a jurisdictional bar to appellate review altogether.217
Although the case law on § 2105 is limited, there is no strong
evidence that it should not be applied to a ruling on an issue of
exhaustion (were it properly considered a matter in abatement). But if
§ 2105 does appropriately cover exhaustion as a matter in abatement,
then circuit court and Supreme Court decisions on the issue—or at least
those that resulted in a reversal on the issue218—are jurisdictionally
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989), and Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271 (1988). Section 2105 has been interpreted to apply only to civil
cases, Roche, 319 U.S. at 27 n.3, and does not apply to appeals from state courts, Buck Stove &
Range Co. v. Vickers, 226 U.S. 205, 213 (1912) (interpreting Revised Statute § 1011, the
predecessor to 28 U.S.C. § 2105).
212 See Coastal Steel, 709 F.2d at 197.
213 Id. at 213 n.6 (Rosenn, J., concurring).
214 Snyder v. Buck, 340 U.S. 15, 32 (1950) (Frankfurter, J., dissenting).
215 Hyman v. City of Gastonia, 466 F.3d 284, 288 (4th Cir. 2006) (quoting Stephens v.
Monongahela Bank, 111 U.S. 197, 197 (1884)).
216 Coastal Steel, 709 F.2d at 212 (Rosenn, J., concurring).
217 Compare Merchs. Ins. Co. v. Lilgeomont, Inc., 84 F.2d 685, 687 (5th Cir. 1936) (finding
that § 2105, then still codified as 28 U.S.C. § 879, bars only reversal, not authority to review a
decision on a matter in abatement), with Hyman, 466 F.3d at 290 (noting that an interpretation of
§ 2105 that bars only reversal may result in an unconstitutional advisory opinion, and holding that
“the statute completely deprives this court of authority to review the district court’s abatement
ruling”).
218 See, e.g., Jones v. Bock, 549 U.S. 199 (2007) (reversing dismissal on, inter alia, exhaustion

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infirm. Clearly, this result is absurd. The fact that no court has
addressed the application of this statute in cases finding exhaustion to
be a matter in abatement at least suggests that the label is being
erroneously applied.
Despite the infrequent contemporary application of § 2105, prison
officials have raised the statute to challenge appellate jurisdiction in at
least one recent case. In Andrews v. King,219 the district court granted
summary judgment for the prison official defendants and dismissed the
prisoner plaintiff’s complaint without prejudice because he had failed to
demonstrate that he was entitled to proceed in forma pauperis.220 On
appeal, the defendants asserted that the circuit court lacked jurisdiction
to review the district court’s decision because of § 2105.221 The
defendants contended that the decision regarding the plaintiff’s in forma
pauperis status was a matter in abatement because it did not address the
merits of his civil rights claim.222 While the court rejected this
argument, the court’s reasoning would not necessarily apply to the issue
of exhaustion, which the court has already held to be a matter in
abatement.223 Therefore, it is not clear what an appellate court will do if
a defendant raises § 2105 in an appeal from a dismissal for failure to
exhaust.
D.

Judicially Deciding Factual Disputes on Claims of Failure to
Exhaust Properly Upsets Longstanding
Seventh Amendment Jurisprudence

The circuit courts of appeals that have faced the issue of whether
plaintiffs maintain a jury right on disputed issues concerning a defense
of failure to exhaust administrative remedies have not addressed
Seventh Amendment implications. Instead, as discussed above, those
courts that have held that the judge should decide such factual disputes
have based their conclusion largely on the policy justifications of the
PLRA to ferret out frivolous prisoner litigation. However, the Seventh

grounds); Davis v. Talisman, No. 08-15664, 2009 U.S. App. LEXIS 23457, at *2 (9th Cir. Oct.
23, 2009) (reversing dismissal for failure to exhaust because “[t]he face of the complaint does not
clearly concede nonexhaustion”).
219 398 F.3d 1113 (9th Cir. 2005).
220 Id. at 1115-16. Under another PLRA provision, codified at 28 U.S.C. § 1915(g), when a
prisoner plaintiff has thrice had prior cases or appeals, brought while the plaintiff was a prisoner,
“dismissed on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim,” the
plaintiff cannot proceed in forma pauperis, except where “the prisoner is under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g) (2006).
221 398 F.3d at 1117.
222 Id. at 1117-18.
223 See supra Part II.A.

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Amendment clearly entitles plaintiffs to have a jury try factual disputes
on an affirmative defense such as exhaustion.
The Supreme Court has developed a two-part test to determine
whether the Seventh Amendment confers a right to a jury trial in a
particular case.224 First, the Court looks to whether the cause of action
or an analogous cause of action was tried at law (as opposed to equity)
at the time of the adoption of the Seventh Amendment.225 Where
history does not provide a clear answer, the Court looks to precedent
and functional considerations for guidance.226 Applying this analysis,
the question of judge or jury is quite clear. The Court has answered the
first question—whether the cause of action is one at law—for the most
prevalent civil rights claims, based on 28 U.S.C. § 1983, on more than
one occasion with a resounding yes.227
If the Court finds that the claim falls within the scope of the
Seventh Amendment, the second part of the inquiry asks whether the
particular issue or an analogous one was decided by a judge or jury in
suits at common law at the time the Seventh Amendment was
adopted.228 Although there was no formulation for the issue of
exhaustion of administrative remedies when the Seventh Amendment
was adopted, the Supreme Court has provided us with a sufficient
analogue: the statute of limitations.229 The statute of limitations defense
is an issue that was historically decided at common law by a jury.230
Furthermore, under the usual practice of the Federal Rules of Civil
Procedure, defenses based on the statute of limitations are still left to the

224 Markman v. Westview Instruments Inc., 517 U.S. 370 (1996); see also City of Monterey v.
Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).
225 City of Monterey, 526 U.S. at 708.
226 Id. at 718-19.
227 See Wilson v. Garcia, 471 U.S. 261, 271-76 (1985) (considering which common law action
§ 1983 most closely resembles for purposes of grafting the corresponding state statute of
limitations and reasoning that because “[a]lmost every § 1983 claim can be favorably analogized
to more than one of the ancient common-law forms of action,” for judicial efficiency and
continuity, all § 1983 actions should be characterized as “tort action[s] for the recovery of
damages for personal injuries”); see also City of Monterey, 526 U.S. at 725-26 (Scalia, J.
concurring) (agreeing with and elaborating on the majority’s conclusion that the Seventh
Amendment guarantees a jury trial for all § 1983 claims because “all § 1983 claims should be
characterized in the same way”); Owens v. Okure, 488 U.S. 235 (1989).
228 City of Monterey, 526 U.S. at 718.
229 See Jones v. Bock, 549 U.S. 199, 215-20 (2007).
230 See 35 C.J. Juries § 57, at 176 (1924) (“In an action at law a plea of the statute of
limitations raises an issue triable by jury, unless the admissions of the pleadings show that the
statute has not run . . . .” (footnotes omitted)); CHITTY, supra note 176, at 588 (“When the statute
of limitations has been pleaded, either that the defendant did not undertake, or that the cause of
action did not accrue, within the six years ‘before the exhibiting of the plaintiff’s bill,’ and the
plaintiff could prove a promise or acknowledgment within that time, the replication might deny
the plea generally, and conclude to the country . . . .”).

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jury where genuine issues of material fact pertinent to the defense
exist.231
Even if exhaustion is analyzed as a matter in abatement, the same
conclusion is reached. As discussed above,232 at common law, the plea
in abatement would be presented in lieu of, or before, a general
demurrer.233 The plaintiff would have the option to respond to the plea
by replication to dispute the facts alleged in the plea. There is extensive
historical support that a factual dispute on a matter in abatement was
decided by the jury in the same manner as a plea in bar—as documented
in civil cases,234 in criminal cases,235 and in numerous treatises.236 This
231 See Pretus v. Diamond Offshore Drilling, Inc., 571 F.3d 478, 479, 486 (5th Cir. 2009); see
also Gomez v. City of Torrance, 311 F. App’x 967, 969 (9th Cir. 2009); Morton’s Mkt., Inc. v.
Gustafson’s Dairy, Inc., 198 F.3d 823, 833 (11th Cir. 1999); Tiberi v. CIGNA Corp., 89 F.3d
1423, 1428-31 (10th Cir. 1996) (reversing a grant of summary judgment on a defense of statute of
limitations where genuine issues of material facts existed as to whether to toll the statute of
limitations and whether the continuing wrong doctrine applied); Reid v. United States, 224 F.2d
102, 105 (5th Cir. 1955).
232 See supra Part III.B.2.
233 See CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 499-502 (2d ed.
1947).
234 See, e.g., Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 23-24 (1943) (“In September,
1941, respondents filed pleas in abatement, asking that the indictment be quashed for [several
reasons] . . . . The Government filed replications denying generally all the allegations of the
pleas, and the issues thus raised were set for trial before a jury.”); Brenham v. German-American
Bank, 144 U.S. 173, 178 (1892) (“The plea in abatement, or to the jurisdiction of the court, was
tried by a jury, which found for the plaintiff; and afterwards the issues of fact on the pleadings
were tried by a jury, which found a verdict for the plaintiff . . . .”); Lessee of Walden v. Craig’s
Heirs, 39 U.S. 147, 153 (1840) (“On this plea [in abatement] the plaintiff could take issue on the
fact of the decease, and have it ascertained by the verdict of a jury.”); Fischer v. Munsey Trust
Co., 44 App. D.C. 212, 216 (D.C. Cir. 1915) (“[U]nder that plea [in abatement] he would be
entitled to a trial by jury.”); Dorrough v. Mackenson, 157 So. 257, 259 (Ala. 1934) (“[W]e
observe that defendant duly demanded a trial by jury. Such demand applied to the plea in
abatement . . . as well as to other issues of fact.”); Am. Ins. Co. v. Waycaster, 3 S.E.2d 922, 922
(Ga. Ct. App. 1939) (“It is well settled that issues of fact raised by a plea in abatement should be
submitted to a jury.”).
235 See, e.g., Daniel v. State, 43 So. 22, 23 (Ala. 1907) (“The defendant filed a plea of
misnomer to the indictment. Issue was joined on this plea. The evidence was in conflict. The
court properly submitted the question to the jury.”); Livingston v. State, 145 So. 761, 764 (Fla.
1933) (“[P]leas in abatement raising an issue of fact shall be tried by a jury.”); Woodward v.
State, 15 So. 252, 255 (Fla. 1894) (“This issue was one of fact resting in pais, and according to
the long established rule requiring such issues to be tried by a jury, it should have been submitted
to such body for trial. The court tries questions of law, and the jury passes upon questions of fact,
and this rule applies to issues on pleas in abatement as well as to other issues.” (emphasis
added)); People v. Corbishly, 158 N.E. 732, 739 (Ill. 1927) (“It is a general rule according to the
English and American authorities, that . . . where an issue on a plea in abatement is joined, . . .
such issue of fact is tried by a jury.”). But cf. Miller v. Stout, 706 S.W.2d 785, 787-88 (Tx. Ct.
App. 1986) (declaring no right to a jury in hearings “on pleas in abatement or a Rule 12 motion”
under the Texas Rules of Civil Procedure where the issue is “preliminary and incidental . . . [and]
do[es] not involve the question of liability,” but not addressing preliminary hearings raising “a
fact issue which [may be] decisive on the ultimate question of liability”).
236 See, e.g., 35 C.J. Juries § 60, at 178 (1924) (“Issues of fact arising upon . . . pleas in
abatement, should be submitted to the jury when a jury has been impaneled in the case, unless the
issue is one which must be determined by an inspection of the record.” (footnotes omitted)); id. §

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understanding is clearly reflected in the meetings of the Advisory
Committee that drafted the original Federal Rules: Committee members
explicitly recognized that factual disputes on many matters in abatement
were for the jury to decide, and as a result, they doubted that such
matters in abatement could be asserted in a preliminary motion.237
A likely source of confusion about when factual disputes were
decided by the jury at common law is the tangled and complex common
law pleading mechanisms and antiquated terminology. In common law
pleadings, to request a jury trial once issue was joined—i.e., once the
parties recognized a factual dispute238—the party opposing the plea
simply had to conclude his or her response by using the talismanic
phrase, “to the country.”239 (At common law, “the country” meant “the
57, at 176 (“In an action at law a plea of the statute of limitations raises an issue triable by jury,
unless the admissions of the pleadings show that the statute has not run . . . .” (footnotes
omitted)); CLARK, supra note 168 (“[I]f the plaintiff puts in a replication to the plea in abatement
and the verdict of the jury is in favor of the plaintiff on the issue of fact, the plaintiff is entitled to
judgment just as if the defendant had defaulted . . . .”); SHIPMAN, supra note 168, at 388 n.14
(“[W]here the objection [of the defect of the writ] is founded upon extrinsic facts . . . the matter
must be pleaded in abatement [as opposed to being raised by demurrer or by a motion to quash],
so that an issue may be made thereon, and tried, if desired, by a jury, like any other issue of
fact.”); 1 CHARLES VINER, ABRIDGMENT OF THE MODERN DETERMINATIONS IN THE COURTS OF
LAW AND EQUITY: BEING A SUPPLEMENT TO VINERS ABRIDGMENT 5 (1799) (“To an action on a
joint bond, defendant pleaded non est factum, and the jury founded it to be the deed of both.”); id.
at 16 (“[Plaintiff objected to defendant’s plea in abatement for misnomer by alleging that
defendant was known by two names;] thereupon issue was joined, and [jury] verdict for
plaintiff . . . . [T]here is no difference whether the issue be joined upon a fact in the plea in
abatement, or in a plea in bar . . . .”).
237 PROCEEDINGS OF CONFERENCE OF ADVISORY COMMITTEE DESIGNATED BY THE UNITED
STATES SUPREME COURT TO DRAFT UNIFORM RULES OF CIVIL PROCEDURE FOR THE DISTRICT
COURTS OF THE UNITED STATES AND THE SUPREME COURT OF THE DISTRICT COURT OF
COLUMBIA UNDER THE ACT OF CONGRESS PROVIDING FOR SUCH UNIFORM OR UNIFIED RULES
351 (Nov. 14, 1935), available at http://www.uscourts.gov/rules/minutes.htm (“[Robert G.]
Dodge. Most [matters in abatement] cannot be raised on motion, because they involve questions
of fact . . . it involves a jury trial, if it is a jury case.”); id. at 352-53 (“Mr. Dodge. Suppose he
pleads in abatement, that he is not sued in the right district, and I think he is entitled to a jury on
that. . . . In Massachusetts, a plea in abatement would be the regular method of proceeding, and it
would be tried by jury. Prof. [Edson R.] Sunderland. That is true in Illinois . . . .”). But see id. at
352 (“Mr. [William D.] Mitchell. I never considered the matter as to a jury trial, as to whether it
is a suit in the right district.”).
238 When a defendant asserted a plea in abatement, the plaintiff had essentially four choices:
(1) acknowledge the factual and legal validity of the defendant’s plea and acquiesce in
terminating the suit; (2) demur to the plea—deny the legal foundation for the plea—which, if the
defendant persisted in the plea, would create a legal issue to be decided by the judge; (3) dispute a
factual premise of the plea through a “replication,” which would create a factual issue to be
decided by the jury (assuming the plaintiff used a talismanic phrase discussed below); or (4)
present new facts that, if true, defeated the plea, and would lead to another round of pleadings.
See 18 THE PENNY CYCLOPÆDIA OF THE SOCIETY FOR THE DIFFUSION OF USEFUL KNOWLEDGE
246 (1840).
239 BLACK’S LAW DICTIONARY 308, 712 (8th ed. 2004) describes the historical terminology of
“going to the country” or “conclusion to the country” as where a pleading concludes with the
phrase “to the country,” “by the country,” or “upon the country,” which signifies “[t]he act of
requesting a jury trial.” See also 18 THE PENNY CYCLOPÆDIA OF THE SOCIETY FOR THE
DIFFUSION OF USEFUL KNOWLEDGE, supra note 238, at 246 (“A plea denying either one or all of

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jury.”)240 Influential common law treatises describing the intricate
pleading terminology for disputing the factual basis for a plea in
abatement conclude with such a demand and similar variations of the
phrase.241 Therefore, when properly understood, the winding common
law path for asserting defenses in abatement leads to a familiar glade:
Disputes of facts are decided by the jury; issues of law are left to the
judge.
Even without this common law history, there is another compelling
reason for recognizing factual disputes about exhaustion to be an issue
properly left to a jury to decide: The Supreme Court has repeatedly
affirmed a significant federal interest in ensuring the Seventh
Amendment right to a jury trial.242 The right is not amenable to
limitation based on purely procedural modifications or changes. This
limitation on the ability of the Federal Rules of Civil Procedure to
modify the Seventh Amendment right was of paramount concern to
Congress when it first gave the Supreme Court the power to adopt a
uniform system of federal rules.243 Because Congress allowed the
the allegations in the declaration must ‘conclude to the country,’ that is, the defendant must state
his readiness to submit to the decision of a jury (who are called ‘the country,’ as
contradistinguished from the ‘court’) the truth of the matter of fact asserted in the declaration and
denied in the plea.”).
240 See BLACK’S LAW DICTIONARY, supra note 239, at 308, 712, 1544. Instead of “country,”
some common law decisions and pleadings used the term “pais,” which is “[a] French word,
signifying country. In law, matter in pais is matter of fact, in opposition to matter of record: a
trial per pais, is a trial by the country—that is, by a jury.” 2 JOHN BOUVIER, A LAW DICTIONARY
345 (15th ed. 1883); see also BLACK’S LAW DICTIONARY, supra, at 1544 (indicating that “trial
per pais” is the French legal term for “trial by the country” and means “[t]rial by jury”).
241 A leading treatise on common law pleadings provides an example of the “[c]ommon”
response to a plea in abatement—made in a “replication” to the plea—which would “conclud[e]
to the country.” 3 HENRY GREENING, CHITTY’S TREATISE ON PLEADING AND PARTIES TO
ACTIONS 417 (7th ed. 1844). The wording of the conclusion of the replication would be: “And
this the plaintiff prays may be inquired of by the country.” Id.; see also CHITTY, supra note 176,
at 656 (“[W]hen a replication denies the whole of the defendant’s plea, containing matter of fact,
it should conclude to the country . . . . And it is an established rule applicable to every part of
pleading, subsequent to the declaration that when there is an affirmative on one side and a
negative on the other . . . the conclusion should be to the country . . . .” (emphases added)); 5
JACOB & TOMLINS, supra note 163, at 171 (“And when he that denies or traverses the fact,
pleaded by his antagonist, has tendered the issue, thus, ‘and this he prays may be inquired of by
the country;’ . . . the issue is said to be joined; both parties having agreed to rest the fate of the
cause upon the truth of the fact in question. And this issue of fact must, generally speaking, be
determined not by the judges of the Court, but by some other method; the principal of which
methods is that by the Country, per pais . . . that is, by Jury.”).
242 See Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 537 (1958) (“The federal system
is an independent system for administering justice to litigants who properly invoke its
jurisdiction. An essential characteristic of that system is the manner in which, in civil commonlaw actions, it distributes trial functions between judge and jury and, under the influence—if not
the command—of the Seventh Amendment, assigns the decisions of disputed questions of fact to
the jury.”); see also Ross v. Bernhard, 396 U.S. 531 (1970); Beacon Theaters v. Westover, 359
U.S. 500 (1959).
243 See Act of June 19, 1934, 73 Pub. L. No. 415, 48 Stat. 1064 (commonly referred to as the
Rules Enabling Act); see also FED. R. CIV. P. 38(a).

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Supreme Court to propose rules that would merge law and equity—a
movement that had been growing for some time244—and the Seventh
Amendment did not govern suits in equity, Congress made sure that the
Federal Rules of Civil Procedure could not affect any jury right
previously within the Seventh Amendment’s guarantee.245 Therefore,
without persuasive common law history indicating that juries never
decided factual disputes of preliminary matters, the presumption should
be in favor of respecting this significant constitutional right.246
Finally, even in the context of legal defenses that are undoubtedly
within the province of the court to decide as a preliminary matter—such
as jurisdiction247—where disputed jurisdictional facts intertwine with
facts going to the merits, the proper division between jury and judge
insists that a jury be allowed to decide the disputed facts.248 This
244 See generally Charles E. Clark & James Wm. Moore, A New Federal Civil Procedure: I.
The Background, 44 YALE L.J. 387 (1935).
245 See 48 Stat. at 1064 (“The Court may at any time unite the general rules prescribed by it for
cases in equity with those in actions at law so as to secure one form of civil action and procedure
for both: Provided however, That in such union of rules the right of trial by jury as at common
law and declared by the seventh amendment to the Constitution shall be preserved to the parties
inviolate.”).
246 See Beacon Theaters, 359 U.S. at 501 (“Maintenance of the jury as a fact-finding body is
of such importance and occupies so firm a place in our history and jurisprudence that any
seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.”
(internal quotation marks and citation omitted)).
247 See, e.g., Thornhill Publ’g Co. v. Gen. Tel. & Elecs Corp., 594 F.2d 730, 733 (9th Cir.
1979) (“Where the jurisdictional issue is separable from the merits of the case, the judge may
consider the evidence presented with respect to the jurisdictional issue and rule on that issue,
resolving factual disputes if necessary.”); SHADURUPDATES & SQUIERS, supra note 153
§ 12.30(4) (“[W]hen a court reviews a complaint under a factual attack, the allegations have no
presumptive truthfulness, and the court that must weigh the evidence has discretion to allow
affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional
facts.”).
248 See Land v. Dollar, 330 U.S. 731, 735 (1947) (“[A]lthough as a general rule the District
Court would have authority to consider questions of jurisdiction on the basis of affidavits as well
as the pleadings, this is the type of case where the question of jurisdiction is dependent on
decision of the merits.” (footnote omitted)); 8 JAMES WM. MOORE, MOORE’S FEDERAL
PRACTICE § 38.34 n.6 (3d ed. 2009) (“Trial on the merits required when jurisdiction turns on
merits.” (citing Land, 330 U.S. at 735-39)); see also Gulf Oil Corp. v. Copp Paving Co., 419 U.S.
186, 213 n.10 (1974) (Douglas, J., dissenting) (“[I]f the jurisdictional issue is closely intertwined
with or dependent on the merits of the case, the preferred procedure is to proceed to a
determination of the case on the merits.” (citing McBeath v. Inter-American Citizens for Decency
Comm., 374 F.2d 359, 362-63 (5th Cir. 1967))); McBeath, 374 F.2d at 363 (“The question of
jurisdiction here[] . . . is so inextricably connected with the merits of the case itself that it was
error for the court to determine that it lacked jurisdiction, thereby dismissing the suit, without
according [Plaintiff] a full opportunity to prove his case on the merits, particularly considering
the incomplete record and the paucity of evidence before the court.”); Schramm v. Oakes, 352
F.2d 143, 149 (10th Cir. 1965) (“[W]here the issue of jurisdiction is dependent upon a decision
on the merits[,] . . . the trial court should determine jurisdiction by proceeding to a decision on the
merits. The purpose of postponing a determination upon a jurisdictional question when it is tied
to the actual merits of the case is to prevent a summary decision on the merits without the
ordinary incidents of a trial including the right to jury.”); Marks Food Corp. v. Barbara Ann
Baking Co., 274 F.2d 934, 936 (9th Cir. 1960) (noting that in deciding that defendants’ business

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statement produces two logical conclusions relevant in the exhaustion
context. First, a defense of failure to exhaust administrative remedies is
distinct from a defense of lack of jurisdiction because the former is an
affirmative defense akin to the statute of limitations and is waivable,249
unlike jurisdiction, which is a necessary prerequisite to a valid final
judgment. As such, there is less urgency in deciding a matter of
exhaustion preliminarily than there is with deciding a jurisdictional
defense. Therefore, where facts relevant to the defense of exhaustion
are dependent250 on facts relevant to the merits of the case, there is no
logical basis for extending any more authority to the court to decide the
dispute than with disputes over jurisdictional facts that overlap with the
merits. Second, this limitation on the court’s power to settle factual
disputes at a preliminary stage demonstrates that an interest in
efficiency—which may be advanced by sidestepping a jury trial and
allowing the judge to decide the matter—does not trump the basic
premise that juries decide issues of fact.
E.

Policy Arguments for Deciding Exhaustion on Summary Judgment
and Leaving Genuine Issues of Material Fact to the Jury

One cannot understate the importance of which procedure is
employed to raise and decide exhaustion defenses. First, depending on
the procedural mechanism, the court may or may not be required to take
the plaintiff’s allegations in the complaint as true.251 Second, the scope
of the court’s inquiry is vastly different depending on whether the
was not shown to affect interstate commerce, “the [trial] court took from the jury the
determination of the basic issue in the case” and so “the judgment must be reversed because of
the court’s assumption of the jury’s prerogative”).
249 See supra note 83 and accompanying text.
250 In the cases cited supra note 248, various standards are applied to determine the necessary
nexus and significance of the jurisdictional facts to the merits of the case to decide when the
dispute of those facts should be left to the jury. It is well beyond the scope of this Note to
consider or suggest the appropriate threshold, and therefore, this Note relies on the simple
“dependent on” standard of Land v. Dollar. See 330 U.S. at 735.
251 Compare Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002) (“[On a motion to
dismiss,] we must accept as true all of the factual allegations contained in the complaint.” (citing
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993))), with FED. R. CIV. P. 56(e)(2) (“[W]hen a motion for summary judgment is properly
made and supported, an opposing party may not rely merely on allegations or denials in its own
pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out
specific facts showing a genuine issue for trial.”), and Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986) (“[T]he issue of material fact required by Rule 56(c) to be present to entitle a
party to proceed to trial is not required to be resolved conclusively in favor of the party asserting
its existence . . . .” (internal quotation marks omitted)). The Advisory Committee Notes to the
1963 amendments to Rule 56 make this clear: “The very mission of the summary judgment
procedure is to pierce the pleadings and to assess the proof in order to see whether this is a
genuine need for trial.” FED. R. CIV. P. 56 advisory committee’s notes (1963).

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defense is raised on a motion under an enumerated Rule 12(b)
defense—e.g., for lack of jurisdiction or improper venue or for failure to
state a claim—or on a Rule 12(c) motion for judgment on the pleadings,
as opposed to on a motion for summary judgment.252 This distinction
will affect whether the parties will first have the benefit of discovery to
support or oppose the motion and will affect what materials the court
may properly rely upon in reaching its determination. For example, if
the issue is raised on a Rule 12(b) motion for reasons other than failure
to state a claim, matters outside of the pleadings may be considered; but
if the motion is one for failure to state a claim, once matters outside the
pleadings are considered, the court is required to convert the motion to
one for summary judgment.253 These two considerations are uniquely
important in prisoner litigation, and particularly for the issue of
exhaustion of administrative remedies.
Exhaustion procedures are not always limited to written procedures
and are not always readily identifiable through documentary evidence.
Although written or codified procedural rules may be prima facie
evidence of an official policy or procedure,254 courts have routinely
acknowledged that alternative grievance procedures may arise through
the acts or assurances of prison officials.255 When inmates cannot
comply with grievance procedures without essential help from prison
officials and that assistance is withheld, the failure of the officials to
facilitate the grievance process effectively renders administrative
remedies unavailable.256 These types of grievance procedures are
252 See FED. R. CIV. P. 12(d) (“If, on a motion [to dismiss for failure to state a claim] or [for
judgment on the pleadings], matter outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56. All parties must
be given a reasonable opportunity to present all the material that is pertinent to the motion.”);
FED. R. CIV. P. 56(c)(2) (“The judgment sought should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact . . . .”); see also Land, 330 U.S. at 739 (noting that where the jurisdictional facts
overlap with the facts establishing the merits of the claim, the district court “has jurisdiction to
determine its jurisdiction by proceeding to a decision on the merits”).
253 See FED. R. CIV. P. 12(d).
254 See Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691 (1978).
255 See, e.g., Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2006) (holding that inmates
may rely on the assurances of prison officials when they are led to believe that satisfactory steps
have been taken to exhaust administrative remedies); Brown v. Valoff, 422 F.3d 926, 936 (9th
Cir. 2005) (stating that information provided to a prisoner concerning the operation of grievance
procedures was relevant in deciding whether available remedies had been exhausted); Brown v.
Croak, 312 F.3d 109, 112 (3d Cir. 2002) (holding that when prison officials told a prisoner that
grievance procedures were different than official procedures, the prisoner was not required to
follow written procedures).
256 See, e.g., Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (vacating a grant of summary
judgment for the defendant on a failure-to-exhaust defense where the inmate submitted evidence
that prison officials failed to respond to his requests for required grievance forms); Abney v.
McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (“Defendants may . . . be estopped from raising nonexhaustion as an affirmative defense when prison officials inhibit an inmate’s ability to utilize
grievance procedures.”); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding that

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problematic for determination at the pleading stage because, without
discovery, the plaintiff cannot present the court with facts to
substantiate a claim that unwritten procedures exist or that the written
procedures were not followed.257
Even at the summary judgment stage, courts are not well-situated
to make a factually rich determination about whether unwritten
grievance procedures exist. Discovery costs are high and overwhelming
difficulties are likely to arise. For instance, factual disputes about
exhaustion often involve the same prison officials who are the
defendants in the prisoner’s underlying civil suit. Pro se prisoner
plaintiffs are forced to challenge contrary assertions of the prison
through depositions of the very people who have inflicted harm on them
and who may still be guarding them in prison—monitoring every aspect
of their daily activities.
Without the benefit of live testimony and cross-examination, pro se
prisoners will face an incredible hurdle to prove that unwritten
grievance procedures exist. In spite of Judge Posner’s and other jurists’
faith in the discovery process,258 prisoners—pro se prisoners
especially—are at a severe disadvantage when it comes to effective
discovery. Discovery is extremely difficult for a prisoner to pursue
vigorously when the plaintiff’s freedom is severely curtailed.259 For
example, a prisoner’s access to a law library or legal assistance may be
severely limited.260 Furthermore, overriding concerns for institutional
administrative remedies are unavailable if prison officials fail to respond to prisoners’
grievances); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“[T]he failure to respond
to a grievance within the time limits contained in the grievance policy renders an administrative
remedy unavailable.”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (explaining that a
grievance process “is not an ‘available’ remedy under § 1997e(a)” if prison officials prevent its
use); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“We believe that a remedy that prison
officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under
§ 1997e(a) . . . .”).
257 See, e.g., Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (remanding for the district
court to address the inmate’s allegation that prison officials failed to provide necessary grievance
forms).
258 See, e.g., Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), amended by No. 07-1426, 2008
U.S. App. LEXIS 19985 (7th Cir. Sept. 12, 2008), cert. denied, 129 S. Ct. 1620 (2009).
259 Cf. Beard v. Banks, 548 U.S. 521, 526 (2006) (noting that prisoners in level 2 of
Pennsylvania’s Long Term Segregation Unit are kept in solitary confinement for twenty-three
hours per day, are not allowed any phone calls, may have only one visitor per month, and have no
access to newspapers); Turner v. Safely, 482 U.S. 78 (1987) (upholding a regulation by the
Missouri Division of Corrections banning correspondence between prisoners).
260 See Lewis v. Casey, 518 U.S. 343, 350-51 (1996) (“[There is no] abstract, freestanding
right to a law library or legal assistance . . . .”); see also Shaw v. Murphy, 532 U.S. 223 (2001)
(holding that the First Amendment does not give inmates a right to provide legal assistance to
other inmates). Under the Supreme Court’s jurisprudence, a prisoner may not be entitled to
receive legal advice from other inmates in order to challenge a prison’s allegation that he has
failed properly to exhaust his administrative remedies. Although the question of whether an
inmate is entitled to legal assistance from a fellow inmate at the grievance step is beyond the
scope of this Note, it certainly suggests significant due process concerns that are amplified by a

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safety may prevent a pro se prisoner from gathering important
discovery. For instance, a prison would have good reason to bar a pro
se prisoner from deposing a correction officer who works in the facility
where the prisoner lives. Also, prisoners are substantially less likely to
possess documentary evidence to refute the prison’s assertion of failure
to exhaust properly261 and may be forced to rely exclusively on their
own assertions that they attempted to comply with prison grievance
procedures.262
Furthermore, prisoners face serious collateral consequences from
the dismissal of their claims. One example is the three-strikes provision
of the PLRA.263 Under this rule, once a prisoner has amassed three
strikes—i.e., once the prisoner has had multiple claims dismissed as
“frivolous, malicious, or fail[ing] to state a claim upon which relief can
be granted”—the plaintiff is no longer entitled to in forma pauperis
status for future filings (unless he or she is facing imminent and serious
physical injury).264 Most courts have found that “a routine dismissal for
failure to exhaust administrative remedies does not count as a strike.”265
However, a dismissal for failure to state a claim because of a failure to
exhaust administrative remedies has been counted as a strike.266 It is
not clear whether a dismissal on an unenumerated Rule 12(b) motion on
a matter in abatement would count as a strike or not. These collateral
consequences can produce additional rounds of litigation, which defeats
the PLRA’s purpose of reducing the burden of prisoner filings on
federal courts.267

process of summary dismissal for failure to exhaust.
261 For example, prisoners may be transferred between facilities, are limited in the property
they can possess, and are subject to searches and confiscation. See Substantive Rights Retained
by Prisoners, 38 GEO. L.J. ANN. REV. CRIM. PROC. 967, 976-77 & n.2918 (2009) (“[A] prisoner
has no liberty interest in remaining with inmates at a particular facility . . . .”); id. at 979-81 &
nn.2927-29 (“[P]rison officials may search prisoners’ cells randomly without violating the Fourth
Amendment” and a “seizure of an inmate’s property by prison officials does not constitute a
Fourth Amendment violation if the seizure serves legitimate institutional interests.”). Therefore,
the risk that they will lose documentation or have it confiscated is substantially more likely.
262 Cf. Colby v. Sarpy County, No. 8:04CV52, 2006 WL 519396, at *5 (D. Neb. Mar. 1, 2006)
(“[T]he plaintiff points out discrepancies and omissions in his inmate file produced by Douglas
County, and he contends that he did exhaust his administrative remedies to the extent permitted
by corrections officers at [Douglas County Correctional Center].”).
263 See 28 U.S.C. § 1915(g) (2006).
264 Id.
265 See, e.g., Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006).
266 See, e.g., Johnson v. Corr. Officer, 342 F. App’x 933, 934 (5th Cir. 2009).
267 See Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (“Congress enacted § 1997e(a) to reduce
the quantity and improve the quality of prisoner suits.”).

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CONCLUSION
The finely wrought rules of federal civil procedure ensure
predictability and fairness in federal court litigation. These rules reflect
highly specialized considerations of centuries of experience with
intricate pleading systems. Problems encountered in those systems—
particularly with raising and deciding defenses—led the drafters of the
Federal Rules of Civil Procedure to limit attacks on the pleadings,
consolidate certain enumerated defenses into one pretrial motion, and
relegate the remaining issues for responsive pleadings and, if necessary,
decision after trial. This approach reflects a reasoned compromise in
which the drafters specifically set aside some of the old common law
pleas and demurrer as deserving a distinct pretrial motion. There is
little reason to believe that by enumerating certain defenses to be raised
by motion the Advisory Committee intended to permit “unenumerated”
motions that raise other defenses. The debates of the original Advisory
Committee, the subsequent history of amendments to the Federal Rules,
basic canons of construction, and historic understanding of the jury’s
role in deciding factual disputes of affirmative defenses all suggest that
exhaustion of administrative remedies should be construed in the usual
manner, like any affirmative defense:
•

•

•
•

Where failure to exhaust appears on the face of the complaint,
defendants are allowed to challenge the legal sufficiency of the
cause of action through a motion pursuant to Rule 12(b)(6) (or
Rule 12(c) if the defendants have already filed their answer).
If defendants make a motion to dismiss—ostensibly pursuant to
Rule 12—and submit additional materials to plead and prove
their affirmative defense, the motion should be treated as one for
summary judgment under Rule 56.
Otherwise, defendants should affirmatively plead failure to
exhaust as a defense in their answer.
Where the defendants move for summary judgment on this
affirmative defense, the plaintiff must be allowed to respond
with his or her own factual averments, and
ƒ if the court finds that a genuine issue of material fact exists,
the jury must resolve any such factual disputes;
ƒ otherwise, the court should decide the legal adequacy of the
defense (and any applicable exceptions).

While civil filings by prisoners make up a significant portion of the
federal courts’ docket, this does not justify courts in deploying more
stringent and self-styled procedures specifically for prisoner-initiated

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lawsuits. The existing, usual practice under the Federal Rules of Civil
Procedure—rules promulgated by the Supreme Court with Congress’s
authorization—already empowers federal courts with tremendous
authority to weed out meritless suits and inhibit the filing of frivolous
ones. In fact, despite the rhetoric about prisoner-filed lawsuits
overwhelming the federal judiciary, the existing procedures have
reduced the number of prisoner suits that go to trial to a tiny fraction of
the total number of civil trials in the federal district courts. More
importantly, the low number of prisoner civil suits actually tried
suggests that additional, and more stringent, procedures are not needed
to handle these cases. Although prisoners are an easy and seemingly
sensible target for more stringent civil procedures, these policy concerns
are for the Supreme Court (in its rulemaking function) and Congress to
hash out. Until they decide to amend the Federal Rules to provide for
an abbreviated or summary procedure for deciding the exhaustion
defense—or similar affirmative defenses in general—courts should
follow the usual practice.