THE PRISON LITIGATION REFORM ACT’S
ADMINISTRATIVE EXHAUSTION
REQUIREMENT: CLOSING THE MONEY
DAMAGES LOOPHOLE
A California prison inmate filed suit against prison officials claiming
they had implanted electronic devices in his brain to control his thoughts
and broadcast them over the prison’s public address system. 1 Another
inmate claimed that prison officials violated his Constitutional rights when
they refused to let him practice martial arts in prison. 2 A Utah inmate filed
suit after a flood in his cell ruined his pinochle cards.3
Congress enacted the Prison Litigation Reform Act (“PLRA”) in 19964
to “curtail the ability of prisoners to bring frivolous and malicious
lawsuits” such as these.5 The number of prisoner civil rights lawsuits filed
annually rose from 8,235 in 1977 to more than 40,000 in 1996. 6 The

1. See Examples of Prisoner Lawsuits, TACOMA NEWS TRIB., Oct. 26, 1995, at D10, available at
1995 WL 5377971.
2. Id.
3. See Kristen Moulten, Utah, U.S. Laws Limit Complaints of Inmates, but Prison Lawyer Says
They Punish All for Gripes of a Few, SALT LAKE T RIB., July 1, 1996, at D3, available at 1996 WL
3038420.
4. Congress considered drafts of the PLRA in 1995; thus, the PLRA is sometimes referred to as
the “Prison Litigation Reform Act of 1995.” In actuality, it was passed and signed as Title VIII of The
Omnibus Public Services Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996).
5. Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998), reh’g en banc denied, 172 F.3d
884 (11th Cir. 1999). While introducing the PLRA, Senate sponsor Robert Dole summed up the
problem Congress perceived by reciting examples of seemingly petty prisoner gripes that prompted
civil rights suits. The most famous of the examples Dole used was that of an inmate who filed suit
after being served creamy peanut butter instead of the chunky peanut butter he had ordered. 141 CONG.
REC. 14,547 (1995) (statement of Sen. Dole).
However, some commentators dispute the accuracy of the underlying facts Dole and others cited
in support of the PLRA. For example, one commentator points out that the famous “chunky peanut
butter” example arose when prison officials incorrectly debited the inmate’s account for $2.50 for
chunky peanut butter. The inmate did not receive the product he paid for, but received creamy peanut
butter instead. Although he sent the jar of creamy peanut butter back to the prison canteen, prison
officials never restored the debited amount to his account. Hon. Jon O. Newman, Pro Se Prisoner
Litigation: Looking for Needles in Haystacks, 62 BROOK . L. REV. 519, 521 (1996). See also Susan N.
Herman, Slashing and Burning Prisoners’ Rights: Congress and the Supreme Court in Dialogue, 77
OR. L. REV. 1229, 1297-99 (1998) (maintaining that the state attorneys general exaggerated their
reports of “frivolous” inmate suits to the media). But see Eugene J. Kuzinski, The End of the Prison
Law Firm?: Frivolous Inmate Litigation, Judicial Oversight, and the Prison Litigation Reform Act of
1995, 29 RUTGERS L.J. 361, 366-68 (1998) (recounting that certain “frequent filer” inmates created
hundreds of frivolous claims and providing specific examples of such “frequent filers”).
6. BUREAU OF JUSTICE STATISTICS, U.S. DEP ’ T OF JUSTICE , SOURCEBOOK OF CRIMINAL
JUSTICE STATISTICS 442 (Kathleen Maguire & Ann L. Pestore eds., 1997) [hereinafter
“ SOURCEBOOK ”]. The Associated Press reported that although the number of per capita complaints
declined between 1980 and 1996, a fourfold increase in the number of inmates resulted in a tripling of
inmate petitions. Inmates Slackened Pace of Lawsuits Before Restrictions, ASSOCIATED P RESS

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PLRA’s diverse reforms all share the common aim of curbing this rising
tide of prisoner suits.7 These reforms include limiting inmates’ abilities to
bring suit in federal court8 and to appear in forma pauperis,9 and further
limiting the federal judiciary’s ability to impose consent decrees on state
prison systems.10
The PLRA revised 42 U.S.C. § 1997e, the prisoner’s administrative
exhaustion requirement.11 Administrative exhaustion requirements
generally prevent a party from seeking judicial review of administrative
agency actions until the party has first appealed his case to the highest
possible level in the agency. 12 Courts do not require administrative
exhaustion simply because an administrative process exists; a statute must
instruct the court and the party to use the administrative procedures in
certain situations before filing for federal court review.13 The revised §
1997e(a) now requires inmates asserting civil rights or constitutional
claims 14 to exhaust “such administrative remedies as are available” before

P OLITICA L SERVICE , Oct. 29, 1997, available at 1997 WL 2558664.
7. See 141 CONG . REC. 26,548 (1995) (statement of Sen. Dole introducing the PLRA).
8. The PLRA amended 42 U.S.C. § 1997e(e) (Supp. IV 1998) to instruct federal district courts
to dismiss all actions alleging mental suffering without any showing of prior physical injury. See
Daniel J. Sharfstein, Note, No Cure for a Broken Heart, 108 YALE L.J. 2451 (1999) (arguing that the
physical injury requirement has unduly harsh effects on inmates).
9. See, e.g., 28 U.S.C. §§ 1915(b)(1)-(2) (1994) (establishing a new procedure for courts to use
to assess filing fees for prisoner complaints brought in forma pauperis). The PLRA also made it more
difficult for prisoners to retain an attorney by setting stringent lim its on fees attorneys may recover for
representing inmates. See 42 U.S.C. § 1997e(d) (Supp. IV 1998).
10. See, e.g., 18 U.S.C. § 3626(a)(1)(A) (Supp. IV 1998) (prohibiting courts from awarding
prospective relief to remedy prison conditions if the relief extends “further than necessary to correct
the violation of the Federal right of a particular plaintiff”); 18 U.S.C. § 3626(b)(2) (Supp. IV 1998)
(allowing states to gain immediate termination of prospective relief unless the original award included
a finding that the relief extends “no further than necessary” to remedy a specific Constitutional
violation and is “the least intrusive means necessary” to remedy the violation).
11. Congress enacted the original version of the administrative exhaustion requirement as part of
The Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”), P UB. L. NO. 96-247, 94 Stat.
352 (1980).
12. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) (“[T]he long settled
rule of judicial administration [is] that no one is entitled to general relief for a supposed or threatened
injury until the prescribed administrative remedy has been exhausted.”). Cf. KENNETH CULP DAVIS,
ADMINISTRATIVE LAW T REATISE Vol. 4 § 26:1 (2d ed. 1983) (arguing that exhaustion law is complex
because courts determine whether administrative exhaustion applies on a case-by-case basis after
weighing numerous competing factors).
13. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992). See also 2 AM. JUR. 2D Administrative
Law § 510 (1994).
14. Claims may differ depending on whether the prisoner is incarcerated in a state or federal
prison. Both state and federal prisoners rely on the Eighth Amendment, which forbids “cruel and
unusual punishment.” U.S. CONST. amend. VIII. State prisoners also rely on 42 U.S.C. § 1983, which
allows plaintiffs to recover damages for violation of their civil rights by a person acting under color of
state law.
In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, the United States Supreme

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bringing suit in federal court.15
Just what constitutes an “available” administrative remedy? 16 Although
the actual language of § 1997e(a) seems straightforward, the circuits are
split on this question.17 Specifically, the circuits disagree regarding
whether a prisoner who brings an action for money damages is subject to
the administrative exhaustion requirement when the damages remedy is
not one the administrative system, such as a prison grievance system,18 can
award. 19 Although the Fifth, Ninth, and Tenth Circuits have determined
that a prisoner requesting only money damages should not be required to
exhaust administrative remedies prior to bringing suit,20 the Third, Sixth,
Seventh, and Eleventh Circuits strictly require administrative exhaustion
prior to initiating suit in federal court.21
This Note explores the PLRA’s administrative exhaustion requirement
and the circuit split on the money damages issue.22 Part I of this Note

Court relied on § 1983 to create a similar cause of action for federal prisoners who claim their civil
rights were violated by a person acting under color of federal law. 403 U.S. 388 (1971). For a more
complete discussion of inmate suits brought under § 1983 and Bivens, see infra, notes 96 and 98.
15. 42 U.S.C. § 1997e(a) (Supp. IV 1998) now provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison or other correctional facility until such administrative remedies as are
available are exhausted.”
16. Id.
17. See Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000); Hartsfield v. Vidor, 199 F.3d 305, 308 (6th
Cir. 1999) (holding that administrative exhaustion should be applied so long as the prison grievance
system attempts to fashion some remedy for legitimate complaints); Massey v. Helman, 196 F.3d 727,
733 (7th Cir. 1999), petition for cert. filed, 69 U.S.L.W. 3045 (U.S. May 30, 2000) (No. 99-1918)
(strictly requiring administrative exhaustion); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999)
(discussing the emerging circuit split); Rumbles v. Hill, 182 F.3d 1064, 1066 (9th Cir. 1999), cert.
denied, 120 S.Ct. 787 (U.S. 2000) (holding that administrative exhaustion is not required when the
prisoner seeks damages only); Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999)
(holding that administrative exhaustion is required despite the fact that an inmate requests money
damages only); Alexander, 159 F.3d at 1324 (holding that Congress intended that courts strictly
require administrative exhaustion); Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998) (holding that
the plain language of the statute indicates that Congress did not intend to require administrative
exhaustion in cases involving money damages); Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997).
18. The terms “prison grievance system” and “administrative system” are sometimes used
interchangeably during the course of this Note. This is not to confuse the reader, but to reflect the fact
that prison grievance systems are specific species of administrative systems. The term “administrative
system” may also take in statutory processes such as a tort claims act. For a discussion of the impact of
tort claims acts on the administrative exhaustion debate, see infra note 109 and accompanying text.
19. See Nyhuis, 204 F.3d at 68-69.
20. See Rumbles, 182 F.3d at 1069; Whitley, 158 F.3d at 887; Lunsford v. Jamao-As, 155 F.3d
1178, 1179 (9th Cir. 1998); Garrett, 127 F.3d at 1267.
21. See Nyhuis, 204 F.3d 65; Hartsfield, 199 F.3d at 305; Wyatt v. Leonard, 193 F.3d 876 (6th
Cir. 1999); Massey, 196 F.3d at 727; Perez, 182 F.3d at 538; Alexander, 159 F.3d at 1321.
22. This Note is confined to the administrative exhaustion requirement and does not discuss other
provisions of the PLRA that Congress enacted for similar purposes. This Note also does not address
the related issue of whether suits alleging that prison guards have physically abused an inmate are suits

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describes the law that existed prior to the PLRA’s enactment and explores
the Congressional purpose behind the PLRA. Part II addresses the circuit
split regarding money damages claims and the underlying issues and
philosophies driving the split. Part III proposes that courts use the Seventh
Circuit’s mid-level approach to the dilemma,23 and that Congress revise
the statutory language to close the money damages loophole. This Note
concludes that prisoners should be required to exhaust administrative
remedies in all but the most unusual cases before filing suit in court and
requesting money damages.
P ART I
A. McCarthy v. Madigan and the Supreme Court’s Interpretation of the
Original Version of § 1997e.
Prior to the PLRA’s enactment, § 1997e 24 gave federal courts broad
discretion to determine whether a particular inmate must exhaust
administrative remedies.25 The statute allowed courts to grant one hundred
and eighty day stays so that inmates could pursue “such plain, speedy and
effective administrative remedies as are available” if the court believed
such a requirement would be “in the interests of justice.”26 The statute also
required the United States Attorney General to certify those prison
grievance systems that offered “effective” remedies.27

“regarding prison conditions” and therefore subject to the administrative exhaustion requirement. See
Liner, 196 F.3d at 135; Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 887-96 (S.D.N.Y. 1998).
23. This “mid-level” approach is articulated in Perez, 182 F.3d at 532 (Easterbrook, J.). For a
detailed discussion of this approach, see infra, notes 120-31 and accompanying text.
24. Prior to 1996, 42 U.S.C. § 1997e(a)(1) read as follows:
. . . in any action brought pursuant to section 1983 of this title . . . the court shall, if the court
believes such a requirement would be appropriate and in the interests of justice, continue such
cases for a period of not to exceed 180 days in order to require exhaustion of such plain,
speedy and effective remedies as are available.
42 U.S.C. § 1997e(a)(1)(1994).
25. Some commentators have indicated that CRIPA represents the high water mark of
Congressional concern for ensuring humane prison conditions. See Herman, supra note 5, at 1275
(arguing that Congress enacted CRIPA at the end of the heyday of prisoners’ rights, while Congress
enacted the PLRA to reflect a national mood disfavoring priso ners as a class); Note, Resolving
Prisoners’ Grievances Out of Court: 42 U.S.C. § 1997e, 104 HARV. L. REV. 1309, 1311 (1991)
[hereinafter “ Resolving Grievances”] (claiming that Congress enacted CRIPA out of concern about
both inmates’ civil rights and providing state officials some freedom from federal interference in state
correctional systems).
26. 42 U.S.C. § 1997e(a)(1) (1994).
27. See 42 U.S.C. § 1997e(b) (1994). For a thorough discussion of this provision’s success (or
lack thereof), see Resolving Grievances, supra note 25, at 1311 (arguing that burdensome certification
requirements prevented many states from obtaining program certification).

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The United States Supreme Court interpreted this pre-PLRA version of
the statute in McCarthy v. Madigan.28 McCarthy, a federal prisoner, filed
suit in federal district court under 42 U.S.C. § 1983. 29 McCarthy requested
money damages as the sole remedy for his alleged injuries.30 The district
court dismissed his claim for failure to file a prison grievance requesting
injunctive-type relief prior to bringing suit.31
The Supreme Court agreed that § 1997e gave lower courts some
discretion to determine whether a particular inmate should be required to
exhaust administrative remedies, but disagreed with the manner in which
the district court applied the statute to McCarthy’s situation. 32 The Court
found that the language of § 1997e did not require exhaustion in all cases;
instead, Congress provided federal courts with considerable discretion in
this area.33 In exercising this discretion, the lower court should balance the
inmate’s interest in “prompt access” to the court system against the
administrative system’s “institutional interests.”34
The Court focused on three factors that should prompt lower courts to
use their discretion to allow inmates to forego administrative exhaustion.
First, courts should not require exhaustion when the administrative process
might cause “undue prejudice to a subsequent assertion of a court
action.”35 Second, an exhaustion requirement may be inappropriate where
the agency cannot grant effective relief.36 Even when the prison grievance

28. 503 U.S. 140 (1992).
29. Id. at 142. McCarthy claimed that prison officials violated his Eighth Amendment rights by
showing “deliberate indifference” to his medical and psychiatric problems following a back operation.
Id.
30. Id. at 142. The plaintiff went so far as to write, “This Complaint seeks Money Damages
Only,” on the first page of his complaint. Id.
31. Id. The Tenth Circuit affirmed, holding that the true purpose of the administrative exhaustion
statute is to allow agencies to narrow the issues and create an administrative record that will aid the
court. Id. at 144. According to the Tenth Circuit, the exhaustion rule “is not keyed to the type of relief
sought, but to the need for preliminary factfinding.” McCarthy v. Maddigan, 914 F.2d 1411, 1412
(10th Cir. 1990) (The Tenth Circuit, unlike the Supreme Court, spells “Maddigan” with two “d”s).
32. See 503 U.S. at 149. Cf. DAVIS, supra note 12, at 414 (commenting that judicial discretion
often overshadows statutory law when courts determine administrative exhaustion questions).
33. 503 U.S. at 150. The Court claimed that Congressional intent was of “paramoun t
importance” to exhaustion inquiries. Id. at 144 (citing Patsy v. Board of Regents of Florida, 457 U.S.
496, 501 (1982)). “Where Congress specifically mandates, exhaustion is required . . . But where
Congress has not clearly required exhaustion, sound judicial discretion governs.” McCarthy, 503 U.S.
at 144 (citations omitted).
34. 503 U.S. at 146. According to the Court, exhaustion serves the institutional interests of
“protecting administrative agency authority” and “promoting judicial efficiency.” Id. at 145. The Court
recognized that it should not usurp agency authority over programs Congress mandates, and that
agencies should be allowed to “correct [their] own mistakes” before a federal court gets involved. Id.
See also DAVIS, supra note 12, at 415.
35. 503 U.S. at 146-47.
36. Id. at 147.

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system is competent to adjudicate the issue, the Court claimed that relief
may not be “effective” when the prison is incapable of granting the type of
relief the inmate requests.37 Finally, evidence of agency bias should sway
the court to use its discretion and allow the inmate to forego administrative
exhaustion. 38
In holding that McCarthy should not be forced to exhaust
administrative remedies, the Court also cited three problems with § 1997e
as applied to McCarthy’s individual circumstances. First, the Court
pointed out that the statute did not authorize the district court to dismiss
cases, but instead merely authorized a ninety day stay; thus, the dismissal
of McCarthy’s case was improper under the existing statute.39 Second, the
Court recognized that the statutory language made the provision applicable
to state inmates only; the statute, as written, did not affect federal inmates
like McCarthy. 40 Finally, the Court noted that the statute conditioned
exhaustion on the existence of an “effective” administrative remedy. 41 The
Court claimed that an administrative remedy was clearly not “effective”
when the agency lacked authority to award the specific remedy the inmate
requested. 42
The Court also denounced the futility of McCarthy’s situation. 43
According to the Court, McCarthy had “everything to lose and nothing to
gain” by following the administrative procedures the prison grievance
system required. 44 After following these procedures, McCarthy still could
not obtain the remedy he desired: money damages.45 The Court first
pointed out this apparent flaw in the statute, and then invited Congress to
amend the statute and design an “appropriate” procedure for prisoners to
bring administrative claims for money damages.46

37. Id.
38. See 503 U.S. at 148.
39. Id. at 150. For the statutory language that existed at the time McCarthy was decided, see
supra, note 24.
40. Id. at 150.
41. Id. See also DAVIS, supra note 12, at 464-65 (discussing the basic administrative law premise
that one need not exhaust “inadequate” administrative remedies).
42. See 503 U.S. at 147-48.
43. Id. at 152.
44. Id.
45. Id.
46. Id. at 156. According to the Court:
Congress, of course, is free to design or require an appropriate administrative procedure for a
prisoner to exhaust his claim for money damages. Even without further action by Congress,
we do not foreclose the possibility that the Bureau [of Prisons] itself may adopt an
appropriate administrative procedure consistent with Congressional intent.
McCarthy, 503 U.S. at 1565.

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B. Congress’s Response To McCarthy: the PLRA.
Congress responded to the Supreme Court’s challenge by enacting the
PLRA.47 During floor debate,48 one of the PLRA’s sponsors discussed
McCarthy at some length:
The real problem with [prison condition] cases came with the
Court’s decision in [McCarthy v. Madigan] that an inmate need not
exhaust the administrative remedies available prior to proceeding
with a Bivens action for money damages only . . . [a decision which]
was made without the benefit of any legislative guidance, and the
Court made that very clear in its opinion, almost to the point of
asking that Congress do something. 49
However, Congress enacted the PLRA to achieve two major goals that
transcend administrative exhaustion problems. First, Congress hoped to
decrease the number of inmate suits by deterring inmates from filing
frivolous claims.50 Second, Congress hoped to ease the federal judiciary’s
stranglehold on state prison systems.51
Congress was extremely concerned with the explosion in the number of
inmate suits filed annually since 1975. 52 During debate on the PLRA,53
several members of Congress expressed the belief that the vast majority of

47. See Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir. 1998); Garrett v. Hawk, 127 F.3d
1263, 1265 (10th Cir. 1997) (“Congress specifically amended the statute to overrule McCarthy by
requiring federal prisoners to exhaust all administrative remedies.”). But cf. Herman, supra note 5, at
1231 (suggesting that Congress may have passed the PLRA out of animus against prisoners as a class).
48. The bill at issue in the paragraph quoted was a precursor to the PLRA, H.R. 2468, which
Rep. Lobiondo, the bill’s sponsor, dubbed the Prisoner Lawsuit Efficiency Act (“P.L.E.A.”). Congress
later included the P.L.E.A. statutory language in the PLRA by amendment. See Jackson v. District of
Columbia, 89 F. Supp. 2d 48, 62-63 (D. D.C. 2000), aff’d, 2000 U.S. App. Lexis 19497 (D.C. Cir. July
19, 2000)(recounting some of the administrative exhaustion requirement’s legislative history).
49. 141 CONG . REC. 35,623 (1995) (quoted in Jackson, 89 F. Supp. 2d at 62-63).
50. See 141 CONG . REC. 26,548 (1995) (statement of Sen. Dole introducing the PLRA). See also
Alexander, 159 F.3d at 1324; Morgan v. Arizona Dept. of Corr., 976 F. Supp. 892, 894 (D. Ariz.
1997).
51. See 141 CONG . REC. 26,554 (1995) (statement of Sen. Abraham). See also Kuzinski, supra
note 5, at 361 (arguing “that the PLRA is a necessary measure . . . designed to rectify serious problems
surrounding the federal courts’ involvement with state prisons.”).
52. See 141 CONG . REC. 14,570 (1995) (statement of Sen. Dole). For exact statistics, see
SOURCEBOOK , supra note 6 and accompanying text.
53. Critics claim that Congress included the PLRA within a large, hastily passed, and poorly
written Omnibus Act. These critics further point out that the PLRA passed without a committee report
or mark-up. See Herman, supra note 5, at 1277 (attacking the manner in which Congress enacted the
PLRA). However, these criticisms reflect a myopic view of the PLRA’s history. Legislators introduced
and discussed several drafts of the PLRA during 1995. Arguably, the voting legislators knew the
PLRA’s purposes and its potential effects because the sponsors had introduced several similar bills to
Congress over the course of the previous year.

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inmate suits were “frivolous,” “malicious,” and “meritless.”54 Even so,
these suits cost states thousands of dollars to litigate and tied up precious
judicial resources.55
Further, some members of Congress believed that prisoner suits
allowed the federal judiciary to micro-manage state prisons through
consent decrees that often imposed considerable burdens on state
governments.56 The PLRA’s sponsors cited occasions when federal judges
ordered states to either build new prisons or release violent offenders to
ease overcrowding in state prisons.57 Several members expressed their
intent to give prison administrators, rather than courts, primary
responsibility for running America’s prisons.58

54. See 141 CONG . REC. 14,572-73 (1995) (statement of Sen. Kyl); 141 CONG. REC. 26,448-51
(1995) (statement of Sen. Abraham); 141 CONG . REC. 26,553 (1995) (statement of Sen. Hatch).
55. 141 CONG . REC. 26,548 (1995) (statement of Sen. Dole) (“The National Association of
Attorneys General estimates that inmate civil rights litigation costs the states more than $81 million
each year.”).
An Associated Press article described several shocking prisoner suits filed in California federal
district courts and the total cost of each suit to taxpayers. Sandra Ann Harris, Prisoners’ Lawsuits
Swamp Federal Courts, T ACOMA NEWS T RIB., Oct. 26, 1995, at D10, available at1995 WL 5377971.
An inmate’s claim that he had a right to practice martial arts in prison cost taxpayers $28,000. See
Examples of Prisoners Lawsuits, supra notes 1-2 and accompanying text. The claim alleging that
prison officials implanted electronic devices in the inmate’s brain, mentioned supra note 1 and
accompanying text, cost the state over $18,500. The state spent an astonishing $151,000 defending
itself from an allega tion that it violated an inmate’s constitutional rights when the inmate did not
receive five free stamped envelopes from prison officials. Examples of Prisoner Lawsuits, supra note
1, at D10.
According to Sen. Hatch, “The huge costs imposed on State governments to defend against these
meritless suits is another kind of crime committed against the law-abiding citizens.” 141 CONG. REC.
26,553 (1995). Sen. Kyl echoed this sentiment: “[P]risoners are victimizing so ciety twice–first when
they commit the crime that put them in prison, and second when they waste our hard-earned tax dollars
while cases based on serious grievances languish on the court calendar.” 141 CONG . REC. 26,553
(1995).
56. See 141 Cong. Rec. 26,554 (1995) (statement of Sen. Abraham). Sentor Abraham provided a
detailed description of the dangers he perceived in judicial imposition and management of consent
decrees. Id. His description was based on the various ways that judicial consent decrees had interfered
with prison management in his home state of Michigan. According to the Senator, federal courts
monitored the warmth of food, the brightness of the lights, whether the state prisons supplied electrical
outlets in each cell, and whether the prisons employed licensed barbers. Id.
Kuzinski claims that some “activist” federal judges experienced a love-hate relationship with
prison inmates prior to the PLRA: “Federal judges have thrust the federal court system into the
administration of state prison sy stems, while at the same time decrying the burden of state inmates’
lawsuits upon their dockets.” Kuzinski, supra note 5, at 362.
57. See 141 Cong. Rec. 26,448 (1995) (statement of Sen. Abraham). Sen. Abraham recounted for
the Senate the story of a federal judge in Philadelphia who ordered the state of Pennsylvania to release
prisoners to ease overcrowding of jails. Because the state did not have the funds to build new prisons,
the state did not detain many offenders for long. The city experienced a sharp rise in crime; repeat
offenders released under this order were thought to be responsible for a substantial portion of the
increase. Id.
58. Sen. Abraham claimed that enacting the PLRA would return “sanity and State control” to the

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C. The Administrative Exhaustion Requirement’s Role in the Overarching
Scheme of the PLRA
The PLRA amended § 1997e to state more clearly Congress’s intent to
require administrative exhaustion in all prisoner civil rights cases.59
Senator Kyl, one of the PLRA’s sponsors, claimed that Congress added
the mandatory administrative exhaustion requirement because most
inmates seek relief for relatively minor matters that prison grievance
systems could readily handle.60 Kyl further stated that such an
administrative exhaustion requirement was appropriate because of the
burden prisoner cases place on federal court dockets, the availability of
redress through prison grievance systems, and the “lack of merit of many
of the claims.”61
The administrative exhaustion requirement bears a rational relationship
to the PLRA’s two main goals of deterring frivolous lawsuits and
preventing judicial interference in prison systems.62 First, the requirement
laces obstacles in inmates’ paths to court;63 inmates may not be as eager to

prison systems. 141 CONG . REC. 26,554 (1995). When introducing the PLRA, Sen. Dole claimed that
it would “work to restrain liberal Federal judges who see violations of constitutional rights in every
prisoner complaint and have used these complaints to micromanage state and local prison systems.”
141 CONG . REC. 25,549 (1995).
59. See Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998); Morgan v. Arizona Dept. of
Corr., 976 F. Supp. 892, 894 (D. Ariz. 1997).
60. 141 CONG . REC. 14,573 (1995) (statement of Sen. Kyl).
61. Id. at 14,572-73. The facts surrounding Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga.
1996), provide an apt, yet humorous example of the ways in which prisoner litigants clogged courts
with frivolous claims and burdened them with ludicrous motions prior to the PLRA’s enactment. In
Washington, a Georgia inmate brought several frivolous suits alleging violations of 42 U.S.C. § 1983,
leading the court to conclude that the plaintiff had become a “frequent litigant within the federal
courts.” Id. at 1396. The court then described some of the more than seventy-five motions and
pleadings that Washington filed in his frivolous civil rights cases. Washington’s motions included
“Motion to Behoove an Inquisition,” “Motion for Restoration of Sanity,” “Motion for Publicity,”
“Motion for Nunc pro Tunc,” “Motion to Renounce Citizenship,” “Motion to Exhume Body of Alex
Hodgson,” “Motion for Skin Change Operation” (in which Washington requested a sex change),
“Motion for Catered Food Se rvices,” and a puzzling “Motion to Invoke and Execute Rule 15Retroactive Note: The Court’s School Days are Over.” Id. at 1397-99. Washington also filed numerous
motions to amend his pleadings, adding notable figures such as Ted Turner, Senator Sam Nunn, and
President Clinton as defendants in his civil rights suits. Id. at 1398-99. Despite the fact that all these
ludicrous motions and pleadings required the time and attention of various federal district court judges,
the court hesitated to impose Rule 11 sanctions on Washington until he submitted a “Motion to Kiss
My Ass” in which he requested that a federal magistrate judge engage in the action suggested in the
motion’s title. Id. at 1396. The Court then imposed various limits on Washington’s ability to
commence suit or file motions with the court in the future. Id. at 1400. However, the court noted that
similar limitations would soon be imposed on all inmate litigants under the recently enacted PLRA. Id.
at n.5.
62. See Morgan, 976 F. Supp. at 894.
63. In McCarthy, the Supreme Court noted the existence of obstacles such as the need to appeal

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file frivolous lawsuits if they must first run a long gauntlet of prison
grievance systems appeals.64 Second, the administrative exhaustion
requirement delays judicial inquiry into a complaint until after prison
administrators have an opportunity to correct the inmate’s problem on
their own. 65 If the prison grievance system resolves the problem
completely, then courts never have an opportunity to pass on the issue 66 or
to order the state to take action, such as building new prisons or giving
inmates more privileges.67
P ART II
A. The PLRA Does Not Deprive Federal Courts of Juridiction
Relying on Congress’s expressed intent to limit or prevent judicial
interference in internal prison matters, one of the first district courts to
pass on the new administrative exhaustion requirement held that the PLRA
deprived federal courts of jurisdiction over non-exhausted claims.68 In
Morgan v. Arizona Department of Corrections,69 a federal district court
determined that the revised language of § 1997e(a) made administrative
exhaustion “mandatory” rather than “directory.”70 According to the
Morgan court, “When the exhaustion of administrative remedies is

grievances and short filing deadlines for appeals. 503 U.S. at 152. The Court noted that the deadlines
would not pose much difficulty for a “knowledgeable inmate accustomed to grievances and court
actions.” Id. at 153. However, the deadlines and procedures created a “likely trap for the inexperienced
and unwary inmate, ordinarily indigent and unrepresented by counsel, with a substantial claim.” Id.
See also Resolving Grievances, supra note 25, at 1326 (citing statistics showing that 94.6% of inmates
in Virginia knew how to file a grievance under the pre-PLRA procedures).
64. In Resolving Grievances, supra note 25, at 1326-27, the author cites several prison inmate
surveys showing that inmates generally place greater trust in the outcomes of prison grievance
procedures at higher levels of the administrative system. Id. If this is true, then the inmates have every
incentive to keep pursuing appeals in the prison grievance sy stem.
65. See 141 CONG . REC. 14,573 (1995) (statement of Sen. Kyl). See also Alexander, 159 F.3d at
1327. According to the Eleventh Circuit, one of the major advantages of administrative exhaustion is
“to give the agency a chance to discover and correct its own errors.” 159 F.3d at 1327 (quoting
Kobleur v. Group Hosp. and Med. Servs. Inc., 954 F.2d 705, 712 (11th Cir. 1992)).
66. See Alexander, 159 F.3d at 1327. According to the Eleventh Circuit, one major policy
favoring administrative exhaustion is “to conserve scarce judicial resources, since the complaining
party may be successful in vindicating rights in the administrative process and the courts may never
have to intervene.” Id. (quoting Kobleur, 954 F.2d at 712).
67. See 141 CONG . REC. 26,449 (statement of Sen. Abraham). For a more detailed description of
some of Congress’s specific complaints regarding judicial activism and intervention, see supra notes
56 to 58 and accompanying text. For a general overview of the federal judiciary’s role in monitoring
prison systems prior to the PLRA, see Kuzinski, supra note 5.
68. Morgan v. Arizona Dept. of Corr., 976 F. Supp. 892 (D. Ariz. 1997).
69. Id.
70. Id. at 894.

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required by federal statute, the failure to exhaust is a jurisdictional defect
that prevents the district court from hearing the claim.”71
All federal circuits have overruled the Morgan decision, claiming that
the new statutory language is still not sufficiently “sweeping” and “direct”
to deny jurisdiction. 72 Instead, the circuits liken § 1997e(a) to a statute of
limitations: courts must adhere to the statute to determine whether a cause
of action even exists when the defending party asserts the requirement as a
defense.73 This conclusion is further supported by the fact that 42 U.S.C. §
1997e(c)(2) specifically allows courts to dismiss an inmate’s suit as
frivolous, malicious, or failing to state a claim, even when the inmate does
not exhaust administrative remedies.74 As the Fifth Circuit concluded from
this statutory requirement, “The Court would not be empowered to
[dismiss an inmate’s suit as frivolous] if the exhaustion provision deprived
the court of jurisdiction over the action.”75
Despite their unanimity on the question of jurisdiction, the circuits are
split on the issue of whether an inmate’s suit claiming money damages
alone should be subject to administrative exhaustion. 76 Framed another
way, should inmates be required to utilize prison grievance procedures
when those administrative systems are not authorized to award the

71. Id. at 895. State courts, more often than fede ral courts, subscribe to the idea that failure to
exhaust administrative remedies is usually a jurisdictional defect. See, e.g., South Dakota Bd. of
Regents v. Heege, 428 N.W.2d 535, 539 (S.D. 1988) (“Failure to exhaust administrative remedies
where required is a jurisdictional defect.”).
72. See Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999); Perez v. Wisconsin Dept. or
Corr., 182 F.3d 532, 535 (7th Cir. 1999); Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998);
Wright v. Morris, 111 F.3d 414, 420-21 (6th Cir. 1997), cert. denied, 522 U.S. 906 (1997).
The source of the “sweeping and direct” language is Weinberger v. Salfi, 422 U.S. 749 (1975). In
Weinberger, the United States Supreme Court held that 42 U.S.C. § 405(h) precluded federal courts
from hearing social security cases until the claimant appealed his or her claim to the highest possible
agency level. 422 U.S. at 757. The Court relied on the statute’s “sweeping and direct” language to
reach its conclusion. Id.
73. See Perez, 182 F.3d at 536; Jackson v. District of Columbia, 89 F. Supp. 2d 48, 55-56 (D.
D.C. 2000). Like a statute of limitations, the defendant may waive the protections of § 1997e(a). Once
the defendant invokes the statute, the judge must address the issue of whether administrative
exhaustion should be required before proceeding to the merits or dismissing on other, alternate
grounds. See Perez, 182 F.3d at 536.
The Sixth Circuit takes a slightly different approach. It requires inmates to attach to the prison’s
administrativ e decision their Complaints to demonstrate that the inmate has exhausted administrative
remedies. Thus, the Sixth Circuit treats the administrative exhaustion requirement as a pleading
requirement rather than an affirmative defense. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.
1998), cert. denied, 525 U.S. 833 (1998).
74. 42 U.S.C. § 1997e(c)(2) (1998). See also Rumbles, 182 F.3d at 1068; Underwood, 151 F.3d
at 295.
75. Underwood, 151 F.3d at 295.
76. Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999). For a list of cases, see supra notes 20 and
21.

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inmate’s desired money damages remedy?
B. The Argument Against Requiring Exhaustion in Claims for Money
Damages.
The Fifth, Ninth, and Tenth Circuits hold that administrative
exhaustion is unnecessary where money damages are the sole requested
remedy. 77 Generally, these circuits argue that the plain language of §
1997e(a), as revised, compels the conclusion that Congress did not intend
to require exhaustion in all inmate cases78 and that the PLRA did not
completely answer the Supreme Court’s concerns in McCarthy.79
The Fifth Circuit promulgated the plain language argument in Whitley
v. Hunt,80 using definitions it had set out in a prior case.81 The Fifth Circuit
defines “available” as “that which is accessible or may be obtained:
personally obtainable.”82 The court defines “exhaust” as “to take complete
advantage.”83 Using these definitions to interpret the statute, the Whitley
court determined that damages are not “available” when not “accessible”
or obtainable through the prison grievance system. 84 Because money
damages are not “available” under the dictionary definition of the term,
inmates are not required to utilize administrative procedures before filing
claims for money damages.85
These circuits also argue that Congress did not fully respond to the
Supreme Court’s criticisms in McCarthy when Congress fashioned the
PLRA.86 Although the PLRA eliminated the requirement that a remedy be
“effective” and expanded the statute’s coverage to include federal inmates
as well as state prisoners, these circuits point out that Congress still has
not fashioned an administrative procedure that would allow inmates to

77. See Rumbles, 182 F.3d at 1069; Whitley, 158 F.3d at 887; Lunsford, 155 F.3d at 1179; Garrett
v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997).
78. See Whitley v. Hunt, 158 F.3d 882, 886 (5th Cir. 1998); Underwood, 151 F.3d at 295.
79. See Whitley, 158 F.3d at 887; Garrett, 127 F.3d at 1267.
80. 158 F.3d 882 (5th Cir. 1998). For a brief overview of the facts in Whitley, see infra, notes
132 to 141 and accompanying text. As will be discussed later in this Note, prisoners like Whitley make
it impossible to permit a money damages loophole without destroying the PLRA entirely.
81. In the prior case, Underwood v. Wilson, the Fifth Circuit held that an inmate must exhaust
administrative remedies before bringing suit for both money damages and injunctive relief. 151 F.3d at
296.
82. Id. at 295.
83. Id.
84. Whitley, 158 F.3d at 886-87.
85. Id. See also Rumbles, 182 F.3d at 1069.
86. See Whitley, 158 F.3d at 887; Garrett, 127 F.3d at 1267.

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claim money damages.87 In effect, these circuits have replaced the old
statutory language concerning “effectiveness” with new language
concerning “availability” to argue that the statute still does not strictly
require exhaustion. Because the PLRA failed to establish a new system
through which prisoners may obtain money damages, McCarthy still has
force.88
Finally, these courts distinguish the PLRA’s language requiring
exhaustion of administrative remedies from language requiring the
exhaustion of administrative procedures.89 These courts further emphasize
that forcing an inmate to exhaust all the grievance system procedures
would result in the inmate’s observance of futile formalities that cannot
offer the desired relief.90
The position adopted by the Fifth, Ninth, and Tenth Circuits has
several benefits. Allowing inmates to take money damages claims straight
to court minimizes burdens on prison grievance systems.91 This practice
also allows prisoners with meritorious damages claims to avoid suffering
the procedural pitfalls and confusion of a futile administrative process.92

87. Garrett, 127 F.3d at 1267. According to the Tenth Circuit, “Congress could have set up
administrative remedies as a prerequisite to a Bivens claim for monetary damages, but to date has not
done so.” Id. See also Whitley, 158 F.3d at 887 (holding that McCarthy’s warning against unavailable
remedies is still valid).
88. See Whitley, 158 F.3d at 887. This concern, however, causes even greater problems when the
state does not allow prison grievance systems to award damages, but utilizes a procedure similar to
that set out in the Federal Tort Claims Act, which allows inmates to recover damages under separate
procedures if they meet certain criteria. There is a split among the circuits regarding whether damages
obtained through tort claims procedures are among the administrative remedies Congress intended
inmates to exhaust. See Rumbles, 182 F.3d at 1069-70 (holding that Congress did not intend that
inmates must exhaust state tort claims procedures). Cf. Whitley, 158 F.3d at 888 (requiring the inmate
to exhaust Federal Tort Claims Act procedures before continuing to seek damages for his denial of
medical care claim).
89. See White v. Fauver, 19 F. Supp. 2d 305, 317 (D. N.J. 1998).
90. Id. See also McCarthy v. Madigan, 503 U.S. 140, 152 (1992).
91. See Garrett, 127 F.3d at 1266. As the Tenth Circuit emphasized in Garrett, the government
usually concedes that the prison grievance system may reject the claim if the system cannot address
the problem. Id.
92. See McCarthy, 503 U.S. at 152. One of the greatest criticisms of the PLRA raised during
floor debate was the fact that the statute makes all prison lawsuits suspect. Opponents claimed that the
PLRA placed too many roadblocks in the way of meritorious suits. See 141 CONG. REC. 27,044 (1995)
(statement of Sen. Biden).
Several commentators argue that the PLRA’s various reforms, taken together, actually go far
beyond preventing frivolous claims and keep meritorious claims out of court as well. See Herman,
supra note 5, at 1291 (arguing that the PLRA is so poorly tailored to its goal of deterring only
frivolous lawsuits and so overinclusive in its reach that it should fail even rational basis scrutiny under
equal protection analysis); Julie M. Riewe, Note, The Least Among Us: Unconstitutional Changes In
Prisoner Litigation Under the Prison Litigation Reform Act of 1995, 47 DUKE L.J. 117 (1997) (arguing
that several PLRA provisions unconstitutionally burden inmates with meritorious claims). See also
Kuzinski, supra note 5, at 363-64 (describing the benefits inmates derive from meritorious prison

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Further, other prohibitions contained in the PLRA adequately protect
against abuse of the court system. For example, another section of the
PLRA allows a judge to dismiss a case sua sponte if the judge, in his or
her discretion, determines that the claim is frivolous, malicious, or fails to
state a claim. 93 Yet another section requires dismissal of all claims for
mental or emotional injury unless the inmate can also prove prior physical
injury.94 These provisions give judges several means for removing
frivolous complaints from their dockets.95
Finally, prison grievance systems have little value when the inmate
wishes to sue a prison guard as an individual. 96 This problem arises when
inmates file a § 198397 or Bivens98 action against both the prison and
several individual prison guards or administrators.99 Prison grievance
systems and state tort claims acts are usually designed to address the
inmate’s complaints about the state, not to address problems with
individuals.100 Often, the only way to recover compensation from the

litigation).
93. 42 U.S.C. § 1997e(c)(2) (Supp. IV 1998).
94. 42 U.S.C. § 1997e(e) (Supp. IV 1998). Several commentators have focused on what they
perceive to be the harsh effect of this provision. For a discussion of the physical injury requirement
and accompanying issues, see Stacey Heather O’Bryan, Note, Closing the Courthouse Door: The
Impact of the Prison Litigation Refo rm Act’s Physical Injury Requirement on the Constitutional Rights
of Prisoners, 83 VA . L. REV. 1189 (1997); Sharfstein, supra note 8 (examining Davis v. District of
Columbia, 158 F.3d 1342 (D.C. Cir. 1998)).
95. See 141 CONG . REC. 26,548 (1995) (statement of Sen. Dole).
96. See Whitley, 158 F.3d at 887 (noting the Congress or the Bureau of Prisons remain free to
craft rules to permit recovery of monetary relief from individual prison officials). Both § 1983 and
Bivens claims allow inmates to bring suit against individual prison officials. See e.g., Hartsfeld, 1999
U.S. App. LEXIS 31544, at *1 (reciting fact that plaintiff brought his § 1983 action against defendants
as individuals); Rumbles, 182 F.3d at 1066 (setting forward the fact that Rumbles brought his § 1983
action against the defendants individually); Massey, 196 F.3d at 729 (reciting the fact that plaintiff
brought a Bivens action against several defendants as individuals).
97. 42 U.S.C. § 1983, often referred to as the “Ku Klux Klan Act of 1871,” prohibits any person
from depriving another of his constitutional rights “under color of state law.”
98. In Bivens v. Six Unknown Federal Narcotics Agents, the United States Supreme Court
judicially created a cause of action modeled after § 1983 and intended to prohibit federal actors from
depriving others of their constitutional rights. 403 U.S. 388 (1971). When the Tenth Circuit addressed
the McCarthy case, it claimed that courts could impose reasonable conditions upon the filing of Bivens
actions because those actions are a creation of the judiciary. 503 U.S. at 143 (citing McCarthy, 914
F.2d at 1412).
99. See, e.g., Massey, 196 F.3d at 729; Rumbles, 182 F.3d at 1066.
100. See Whitley, 158 F.3d at 888 (holding that Whitley need not exhaust his claim against
individual prison officials, but should utilize the Federal Tort Claims Act to exhaust his claim against
the Bureau of Prisons); Garrett, 127 F.3d at 1266 (explaining that had Garrett submitted his claims for
money damages to the prison grievance system, t he institution would have rejected the claim as
improper subject matter for administrative action and informed him of the existence of a remedy under
the Federal Tort Claims Act, which does not allow a prisoner to assert personal liability against a
prison official).

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person who caused the injury is to file suit in court.101
C. The Argument in Favor of Strictly Requiring Exhaustion
The Third, Sixth, Seventh, and Eleventh Circuits hold that Congress’s
purposes in enacting the PLRA compel courts to strictly require
administrative exhaustion. 102 Further, these circuits rely on several strong
public policy arguments to support their views.103 Finally, the Seventh
Circuit has construed the PLRA using a novel approach based on that
circuit’s prior case law.104
As even the opponents of strict exhaustion recognize, Congress clearly
intended the PLRA to overrule McCarthy and to insulate courts from
prisoner lawsuits that prison grievance systems have not addressed first.105
The Eleventh Circuit, responding to arguments advanced by the Ninth and
Tenth Circuits, claims that the PLRA clearly removed the McCarthy
considerations of futility and inadequacy from administrative exhaustion
analysis in inmate cases.106 As the Eleventh Circuit notes, determining
whether a given remedy is “available” requires courts to embark on a caseby-case evaluation of the prison grievance system involved. 107 Congress
specifically intended the PLRA to eliminate such consumption of judicial
resources.108
The case in favor of strictly requiring exhaustion is even more

101. See Garrett, 127 F.3d at 1266.
102. See Nyhuis, 204 F.3d at 67; Hartsfield, 199 F.3d at 309; Massey, 196 F.3d at 733; Alexander,
159 F.3d at 1327.
103. See Perez, 182 F.3d at 537-38; Alexander, 159 F.3d at 1326.
104. See Perez, 182 F.3d at 538. For a detailed analysis of the Seventh Circuit’s approach in
Perez, see infra notes 121 to 131 and accompanying text.
105. See Whitley, 158 F.3d at 886 (“[T]hat part of McCarthy which relied upon Congress’ failure
to expressly require exhaustion . . . no longer provides a viable justification for excusing . . . failure to
pursue administrative remedies.”); Garrett, 127 F.3d at 1265 (“Congress specifically amended the
statute to overrule McCarthy by requiring federal prisoners to exhaust all administrative remedies . . .
.”). Cf. Alexander, 159 F.3d at 1324-25 (noting that Congress sought specifically to overrule McCarthy
when it enacted the PLRA); Perez, 182 F.3d at 537 (noting the removal of the “plain, speedy and
effective” language in the earlier statut e and that courts treating suits for money damages as unaffected
by the change do so in reliance on McCarthy).
106. Alexander, 159 F.3d at 1325. According to the Eleventh Circuit, “No doubt denial [of the
claim] is the likeliest outcome but that is not sufficient reason for waiving the requirement of
exhaustion.” Id.
107. Alexander, 159 F.3d at 1326. The court went on to argue that the term “available” reflects
Congress’s acknowledgement that some states do not have prison grievance systems and allows
inmates in those states to petition federal courts directly. Id. at 1326-27.
108. See Nyhuis, 204 F.3d at 74 (“Congress intended to save courts from spending countless
hours, educating themselves in every case, as to the vagaries of prison administrative processes, state
or federal.”). See generally, Kuzinski, supra note 5.

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compelling when a state inmate asserts a claim under § 1983. Not only is
the federal district court confronted with the difficulty of surveying state
administrative law to determine whether the inmate’s requested remedy is
“available,” 109 but federalism concerns muddy the waters when federal
courts attempt to decipher or predict the manner in which state courts
would administer state administrative regulations.110 A strict rule holding
that every prisoner must exhaust all administrative grievances procedures
helps federal courts avoid such dilemmas.
A strict exhaustion requirement also prevents inmates from “pleading
around” the administrative exhaustion requirement. The Seventh Circuit
wrote in Perez v. Wisconsin Department of Corrections that Congress’s
intent would be frustrated if prisoners could evade the administrative
exhaustion requirement simply by claiming money damages.111 If the
Ninth Circuit approach prevails, prisoners could avoid the effects of §
1997e(a) entirely by carefully crafting petitions to request types of relief
that the prison grievance system does not award. 112
In addition to comporting with Congress’s clear intent, strictly
requiring administrative exhaustion also serves a number of public
policies.113 Prison officials should have an opportunity to explain prison
policies and rectify problems before courts intervene.114 In this way,
strictly enforcing administrative exhaustion furthers Congress’s intent to
postpone or eliminate the federal judiciary’s ability to direct prison
management.115 The approach also decreases the court system’s burdens

109. See Booth v. Churner, 206 F.3d 289, 300 (3d Cir. 2000), petition for cert. filed, 69 U.S.L.W.
3046 (U.S. Jun. 5, 2000)(No.99-1964); Castillo v. Buday, 85 F. Supp. 2d 309, 313 (S.D.N.Y. 2000);
Nyhuis, 204 F.3d 65, 76 n.11.
110. See Booth , 206 F.3d at 300 (noting that federalism concerns surrounding § 1983 actions
make it difficult for federal courts to know whether a state can or would provide a certain remedy).
111. Perez, 182 F.3d at 538 (“This is not the first time we have been asked to hold that by seeking
only damages a plaintiff may avoid a statutory exhaustion requirement.”)
112. See Nyhuis, 204 F.3d at 74 (“Exempting claims for monetary relief from the exhaustion
requirement . . . would enable prisoners, as they become aware of such an exemption, to evade the
exhaustion requirement, merely by limiting their complaints to requests for money damages.”).
Federal Rule of Civil Procedure 8(a)(3) requires a pleader to include “. . . a demand for judgment
for the relief the pleader seeks.” FED . R. CIV. P. 8(a)(3). To illustrate the problems this presents: in
Whitley, the inmate originally brought action for both injunctive-type relief and money damages. 153
F.3d at 884. He revised his petition to request money damages alone only after a magistrate judge
informed him of the judge’s intent to dismiss for failure to exhaust administrative remedies. Id.
Arguably, the Sixth Circuit allowed Whitley to intentionally “plead around” the administrative
exhaustion requirement.
113. See Alexander, 159 F.3d at 1326-27. See also DAVIS, supra note 12 at 415 (illustrating
several advantages of requiring administrative exhaustion in general).
114. See Alexander, 159 F.3d at 1327.
115. See Perez, 182 F.3d at 537; Alexander, 159 F.3d at 1327. See also 141 Cong. Rec. 14,572-73
(statement of Sen. Kyl).

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by allowing prison grievance systems to handle minor matters and
establish a record to narrow issues for the court.116 Finally, the prison
grievance system can provide remedies that will end ongoing harm and
freeze damages while the case wends its way through the court system. 117
These circuits require administrative exhaustion even when the inmate
is pressing a Bivens or § 1983 claim against individual prison officials.118
Courts are quick to point out that, at the very least, the prison grievance
systems can compel the prison official to “halt the infringing practice.”119
D. The Moderate Exhaustion Approach Articulated in Perez
In Perez v. Wisconsin Department of Corrections, the Seventh Circuit
used Rule 54 of the Federal Rules of Civil Procedure120 to fashion an
argument in favor of requiring administrative exhaustion in most inmate
cases.121 Because Rule 54 requires courts to award plaintiffs “all relief to
which they are entitled,” 122 an “available” remedy could include any
remedy that might help the plaintiff’s situation. 123 The court premised this

116. See generally Jimmy Swaggert Ministries v. Board of Equalization, 493 U.S. 378 (1990).
According to the Supreme Court, exhaustion rules serve “a legitimate state interest in requiring parties
to exhaust administrative remedies before proceeding to court,” because they “prevent having an
overworked court consider issues and remedies available through administrative channels.” Id. at 397
(citing Atari, Inc. v. State Board of Equalization, 170 Cal. App.3d 665, 673 (Cal. 1985)).
117. See Perez, 182 F.3d at 537-38.
118. See, e.g., Massey, 196 F.3d 727 (requiring the plaintiff to exhaust administrative remedies
despite that fact that he was asserting claims for money damages against several defendants as
individuals); Alexander, 159 F.3d 1321 (requiring the plaintiff to exhaust administrative remedies
despite the fact that he brought his claim against individual prison officials).
119. Alexander, 159 F.3d at 1327. Additionally, the general purpose of creating a good
administrative record for the court is still served when the inmate is bringing claims against
individuals. Id.
120. Federal Rule of Civil Procedure 54(c) provides, “Every final judgment shall grant the relief
to which the party . . . is entitled, even if the party has not demanded such relief in the party’s
pleadings.” FED . R. CIV. P. 54(c).
121. Perez, 182 F.3d at 537-38. Perez slipped and fell in the shower, injuring his back. Id. at 533.
He brought action to compel the state to approve surgery for his condition. Id. at 533-34. Perez also
included a claim for damages, alleging that the state’s negligence in providing him with medical
treatment constituted “cruel and unusual punishment.” Id. at 534.
122. FED . R. CIV. P. 54(c).
123. See Charlie F. v. Bd. of Educ. of Skokie School Dist. 68, 98 F.3d 989, 992 (7th Cir. 1996). In
Charlie F., the Seventh Circuit defined “available” relief as “relief for the events, conditions, or
consequences of which the person complains, not necessarily relief of the kind the person prefers.” Id.
at 992. The Seventh Circuit subsequently incorporated this definition into its PLRA analysis in Perez,
182 F.3d at 537-38.
Compare the Charlie F. position with the Supreme Court’s position in McCarthy:
[T]he grievance procedure does not include any mention of the award of monetary relief.
Respondents argue that this should not matter, because “in most cases there are other things
that the inmate wants.” [citatio n omitted] This may be true in some instances. But we cannot

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argument on the idea that prisoners do not petition courts simply because
they want money, but instead to change their situations or to receive
redress for an injury. 124 Applying this logic, it should not matter to the
prisoner whether a court awards money or other “in-kind” assistance.125 If
a prison grievance system is capable of awarding “in-kind” assistance or
injunctive-type relief to remedy the inmate’s situation, then a viable
remedy is “available” and the inmate must pursue that remedy first, even if
the inmate would prefer to receive money damages.126 Thus, the Seventh
Circuit suggested looking beyond the face of an inmate’s petition to
envision all the possible remedies that would rectify the inmate’s
situation. 127 If a court can envision any remedy that the prison grievance
system could award, then the inmate will be held to administrative
exhaustion. 128
In Perez, the Seventh Circuit admitted that there may be rare instances
in which the inmate’s injury cannot be recompensed in any way other than
with money damages.129 However, the court assumed that this would be
the exception rather than the rule.130 Although later Seventh Circuit panels
have moved away from the middle -of-the-road approach articulated in

presume, as a general matter, that when a litigant has deliberately foregone any claim for
injunctive relief and has singled out discrete past wrongs, specifically requesting monetary
compensatio n only, that he is likely interested in “other things.”
503 U.S. at 154.
124. See Charlie F., 98 F.3d at 992; Perez, 182 F.3d at 537-38. The Seventh Circuit holds that the
agency’s ability to provide “in -kind” services that provide their “money’s worth” makes it impossible
to draw a bright line between damages and other relief. Perez, 182 F.3d at 538.
125. See Charlie F., 98 F.3d at 992.
126. Perez, 182 F.3d at 538.
127. Id.
128. Id. The Sixth Circuit articulated a similar theory in Hartsfield, 199 F.3d 305. According to
the Sixth Circuit:
[A]lthough it may make sense to excuse exhaustion of the prisoner’s complaint where the
prison system has a flat rule declining jurisdiction over such cases, it does not make sense to
excuse the failure to exhaust when the prison system will hear the case and attempt to correct
legitimate complaints, even though it will not pay damages.
Hartsfield, 199 F.3d. at 308.
129. See Perez, 182 F.3d at 538. According to the court, “It is possible to imagine cases in which
the harm is done and no further administrative action could supply any ‘remedy.’” Id. In such cases, a
court would be justified in waiving administrative exhaustion. The Perez court posited the following
example: “Suppose [a] prisoner breaks his leg and claims delay in setting the bone . . . If the injury has
healed by the time the suit begins, nothing other than damages could be a ‘remedy,’ and if the
administrative process cannot provide compensation then there is no administrative remedy to
exhaust.” Id.
130. Perez, 182 F.3d at 538. Specifically, the Perez court opined that the Ninth Circuit case
Lunsford v. Jamao-As, 155 F.3d 1178 (9th Cir. 1998), may have been correctly decided. Id. For the
specific facts of Jamao-As, see infra, notes 144 to 146 and accompanying text.

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Perez,131 the Perez court reached a middle -ground that accommodates the
concerns driving both sides of the circuit split.
E. A Study in the Application of the Three Different Positions: Whitley
and Jamao-As
An application of each of the three administrative exhaustion
approaches to two recent cases illuminates the differences between these
approaches.
The facts surrounding the Fifth Circuit’s Whitley decision would
engender some sharp contrasts between the three approaches. Whitley
brought action requesting $1,000,000 from the Bureau of Prisons and
$100,000 from each of three individual defendants.132 He alleged that the
defendants “endangered his health” by making him sleep in a smoking
dorm for thirteen weeks.133 Further, Whitley claimed that the guards
discriminated against him because of his race and “because he [was] from
St. Louis.”134 Finally, he claimed that prison officials willfully increased
his security status from minimum to low security on the basis of
inaccurate information and retaliated against him for filing administrative
grievances.135
Interestingly, Whitley’s original complaint sought money damages,
future medical care, and termination of each of the individual named
defendants from their positions.136 However, Whitley amended his
complaint to seek money damages only after the magistrate judge prepared
a memorandum order recommending that Whitley’s claim be dismissed
for failure to exhaust administrative remedies.137 After amending the
complaint, Whitley argued that because he claimed money damages only,
he should not be forced to submit to administrative procedures.138
The Fifth Circuit, which does not require exhaustion of claims for
money damages, held that Whitley did not have to exhaust administrative

131. See, e.g., Massey v. Wheeler, No. 99-2663, 2000 WL 994940, at *2 (7th Cir. July 20, 2000)
(“Massey II”) (holding that the Seventh Circuit requires strict exhaustion); Massey, 196 F.3d at 733-34
(“Massey I”) (distinguishing the Perez opinion from the facts in Massey and moving the circuit more
firmly in the direction of strict exhaustion).
132. 158 F.3d at 883-84.
133. Id. at 884.
134. Id.
135. Id.
136. Id.
137. Id.
138. Id. Further, Whitley attempted to bring his $1,000,000 claim against the government as a
Bivens action so that he could bypass the Federal Tort Claims Act processes. Id. at 885.

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remedies after amending his complaint to seek money damages only. 139
However, if the Eleventh Circuit or another court that strictly requires
exhaustion was deciding Whitley’s case, it is likely that Whitley would
have been required to submit all of his claims to the prison grievance
system and exhaust his administrative remedies before bringing his claim
in federal court.140
Under the Perez analysis, the result would be much the same as if the
case had come before the Eleventh Circuit: Whitley would not be
permitted to litigate in federal court because he failed to submit his
complaints to the prison grievance system. The Perez court would reach
this decision for different reasons. The Perez court would claim that the
prison grievance system could help resolve several of Whitley’s
complaints.141 The system could provide medical screening and care
related to the time Whitley spent in the smoking dorm. 142 The prison could
easily change his security status from low security back to minimum
security. Further, the prison could hear his complaints of racial and
regional discrimination, determine if any guards acted inappropriately, and
take any necessary disciplinary measures against the guards.143
The facts in Jamao-As provide a crisp contrast to the Whitley case. In
Jamao-As, the plaintiff’s only complaint was that the prison had waited a
long time before providing him with needed surgery. 144 However, the
plaintiff had received the corrective surgery prior to the time he filed
suit.145 The Ninth Circuit permitted Jamao-As to bring his money damages
claim to federal court without first exhausting administrative remedies.146
Had this case been decided in the Eleventh Circuit, it is likely that the
court would make the plaintiff submit his claims to the prison grievance
system and dismiss his case for failure to exhaust administrative
remedies.147
Under the Perez analysis, the final decision would be much the same as

139. 158 F.3d at 887.
140. See Alexander, 159 F.3d at 1326-28 (strictly requiring administrative exhaustion).
141. See Perez, 182 F.3d at 537-38 (discussing Perez’s similar medical complaints and
concluding, “At a minimum surgical intervention now would terminate the accrual of further damages
. . .”).
142. Id. In the Perez case, the Seventh Circuit suggested that the prison system could change
Perez’s medical regimen. Id.
143. As the Alexander court noted, at the very least the prison grievance system could “halt the
infringing practice” of which the inmate complained. 159 F.3d at 1327.
144. 155 F.3d at 1179.
145. Id.
146. Id.
147. See Alexander, 159 F.3d at 1326-28 (requiring exhaustion in all cases).

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the one the Ninth Circuit reached: the plaintiff would be permitted to bring
his money damages claim to court.148 Once again, however, the Perez
court would further analyze the case. The plaintiff brought action for pain
and suffering that occurred during a discrete period of time.149 No
administrative action or injunctive-type relief could take the plaintiff back
in time and ease his pain. 150 Because no administrative action could
remedy the plaintiff’s complaint,151 he would be permitted to seek money
damages in federal court.
III. P ROPOSAL
A. Until Congress Can Study the Administrative Exhaustion Requirement
Again, Courts Should Follow the Seventh Circuit’s Approach in Perez
The Seventh Circuit’s analysis in Perez is a moderate, middle -of-theroad approach to the money damages problem. The Perez approach asks
whether there is anything at all to gain from the prison grievance
system,152 thereby allaying the Supreme Court’s futility concerns in
McCarthy.153
Courts should engage in a two-step process to determine whether an
inmate should be forced to exhaust administrative remedies. First, the
court should ask whether the prison grievance system could award any
type of relief that will help the inmate’s situation. 154 If meaningful relief is

148. Indeed, the Perez court expressly stated that Jamao-As may have been correctly decided on
its facts. See Perez, 182 F.3d at 538.
149. See Jamao-As, 155 F.3d at 1179.
150. See Perez, 182 F.3d at 538 (providing the broken bone example and noting that, once the
bone is set, nothing other than compensation will make the plaintiff any more whole).
151. See Charlie F., 98 F.3d at 992 (defining “relief available” as “relief for the events,
conditions, or the consequences of which the person complains . . .”).
152. See Perez, 182 F.3d at 538. See also Charlie F., 98 F.3d at 992.
153. The Supreme Court claimed that McCarthy had “everything to lose and nothing to gain” by
submitting his claim for money damages to the prison grievance system. 503 U.S. at 152. In contrast,
the Seventh Circuit urged, “No one can know whether administrative requests will be futile; the only
way to find out is to try.” Perez, 182 F.3d at 536.
154. This first inquiry would require courts to engage in the sort of “creativ e” remedy brainstorming that the Seventh and Eleventh Circuits have already performed. See Perez, 182 F.3d at 53738 (discussing hypothetical remedies the plaintiff in that case could have requested from the prison
system); Alexander, 159 F.3d at 1327 (“[E]ven if the complaining prisoner seeks only money damages,
the prisoner may be successful in having the [Bureau of Prisons] halt the infringing practice, which at
least freezes the time frame for the prisoner’s damages.”).
Admittedly, this step’s single greatest drawback is the consumption of judicial time and resources
this fact -specific approach requires. Surely, however, this type of common sense analysis will not take
the same time and energy as learning an entire prison grievance system to determine whether the
system awards any type of money damages. See Nyhuis, 204 F.3d at 74.

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available, the second step is for the court to ensure that the inmate has
exhausted administrative procedures in an effort to obtain such relief.155
However, if the court determines that no relief is available under the first
step, it need not complete the second step; instead, the inmate should be
permitted to bring his suit in federal court. Using this approach, only the
complaints for which the administrative system provides no meaningful
relief will be allowed into court without first wending their way through
the administrative process.156
This approach is fair to prisoners, prison grievance systems, and the
courts, while serving several of Congress’s underlying goals.157 Prisoners
are not forced to subject themselves to a prison grievance system that
cannot offer them any relief as the Supreme Court feared in McCarthy.158
As long as the inmate can gain something from the process, however
small, the process should not be deemed futile.159 The approach is also fair
to prison grievance systems. This procedure gives prison grievance
systems an opportunity to handle most problems before being subjected to
invasive judicial review.160 However, the prison does not have to expend
administrative resources processing completely futile complaints.161
B. Congress Should Revise § 1997e(a) to Close the Money Damages
Loophole While Creating Statutory Exceptions for the Most Futile
Cases.
In order to effectuate fully its intent that courts should not look into
prisoner complaints until prison grievance systems have an opportunity to
resolve them, Congress should revise the administrative exhaustion statute
to define more carefully the term “available remedies.” An “available

155. In other words, the administrative exhaustion requirement should apply if the court can think
of a single remedy other than money damages that could improve the inmate’s situation.
156. In order to go straight to court, an inmate would have to complain of an injury or condition
not of a continuing nature and bring action for damages for the small window of time during which the
injury existed. Ideally the court would require the inmate to exhaust Tort Claims Act procedures where
applicable; thus, in most jurisdictions, only claims for money damages against individuals could be
filed directly in federal court.
157. As already discussed, supra, notes 56 to 58 and accompanying text, this approach may
further Congress’s goal of preventing or putting off federal court interference in prison systems. This
approach would still deter inmates from filing frivolous claims, but would allow meritorious claims to
be brought, particularly where the inmate is alleging a discrete incident of physical violence or sexual
abuse.
158. 503 U.S. at 152.
159. See Perez, 182 F.3d at 538.
160. The Eleventh Circuit considers this to be a major advantage of administrative exhaustion
requirements generally. See Alexander, 159 F.3d at 1327.
161. See McCarthy, 503 U.S. at 152.

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remedy” should be defined as any possible award or restitution, whether
injunctive, in-kind, or monetary, that will help rectify the situation or
injury of which the petitioner complains.162
To anticipate those cases in which an inmate’s participation in the
prison grievance systems would be truly futile, Congress should create a
process that allows prison grievance systems to grant permission for
inmates to circumvent the administrative process when the subject matter
of the claim is not a proper subject for administrative action. 163 Prison
officials would have the first opportunity to determine if their system can
offer any remedy. If the prison simply cannot award any sort of useful
remedy, the inmate should be able to apply to the prison administration for
permission to file suit without first exhausting a futile administrative
process that may prejudice later court proceedings. This administrative
exhaustion “waiver” would be most helpful where, for example, a prisoner
wished to sue an individual prison guard for alleged physical abuse. Such
a system would further Congress’s goal of allowing prison administrators
to run America’s prisons autonomously and would close the loophole in
the current statute permitted by the Fifth, Ninth, and Tenth Circuits.164
IV. CONCLUSION
The Prison Litigation Reform Act’s changes to the inmate’s
administrative exhaustion requirement represent a step in the right
direction. However, Congress must revisit the issue in the future to close
the money damages loophole created by court decisions in the Fifth,
Ninth, and Tenth Circuits. In the meantime, federal courts should carefully
follow the model established by the Seventh Circuit in Perez v. Wisconsin
Department of Corrections165 by looking beyond the inmate’s petition and

162. This definition is loosely based on the definition of “relief available” in Charlie F., 98 F.3d at
992.
163. This procedure would solve one of the problems mentioned in Garrett, 127 F.3d 1263. In
Garrett, the government conceded that the institutional staff would reject a pure money damages claim
as constituting improper subject matter for administrative review and would notify the inmate of the
availability of a remedy under the Federal Tort Claims Act. 127 F.3d at 1266. The proposed procedure
would allow prison grievance systems to make this judgment call. If the grievance system does not
want to waste its time and the inmate’s with formalities, then it should have the power to permit the
inmate to take his case to court. After all, Congress enacted the PLRA, in part, to allow states to run
their prison systems without judicial interference. See 141 CONG . REC. 26,548 (1995) (statement of
Sen. Dole).
164. The loophole exists because, as the Third Circuit recognized in Nyhuis, inmates will
inevitably figure out that they need only craft their petitions to request money damages in order to
circumvent the administrative exhaustion requirement. 204 F.3d at 74.
165. 182 F.3d 532.

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envisioning all possible types of relief that would help the inmate’s
situation or, at a minimum, freeze his damages.166
Kathryn F. Taylor*

166. Id. at 537-38.
* B.A. (1995), Westminster College; J.D. Candidate (2001), Washington University School of
Law.