The Prison Litigation Reform Act:
Threshold Considerations in
Individual Litigation

John Boston
Prisoners’ Rights Project
New York City Legal Aid Society
jboston@legal-aid.org
Updated June 13, 2016

The Prison Litigation Reform Act:
Threshold Considerations in Individual Litigation
John Boston

This outline is intended to highlight PLRA issues of particular importance in representing individual
prisoners, focusing on those that should be considered in initially determining whether a case is viable
legally and economically, and in deciding how and when to file and frame the complaint to enhance the
likelihood of success. More extensive discussions of all aspects of the PLRA can be found in Boston &
Manville, Prisoners’ Self-Help Litigation Manual, ch. 9 (Oceana [Oxford University Press], 4th ed.
2010), and in Boston, The Prison Litigation Reform Act (CLE materials, updated regularly, available from
the author).

Contents
I.

Cases “brought by a prisoner”—by someone locked up at time of filing— .......................... 1
A. Are subject to certain PLRA provisions ............................................................................. 1
B. So you don’t want your case to be “brought by a prisoner” ............................................... 1
C. Know what a “prisoner” is and what your client’s status is ............................................... 2

II.

Do state law or state court get you away from the PLRA? It depends. ................................. 4
A. State PLRA analogues: ....................................................................................................... 4
B. Exhaustion requirement, 42 U.S.C. § 1997e(a) .................................................................. 5
C. Physical injury requirement ................................................................................................ 5
D. Attorneys’ fees limits .......................................................................................................... 6

III.
A.
B.
C.
D.
E.
F.
G.
H.

Administrative exhaustion, 42 U.S.C. § 1997e(a) .............................................................. 6
Must be completed before suit is filed ................................................................................ 6
Applies to challenges to “prison conditions” ...................................................................... 6
You’re probably doing post hoc damage control ................................................................ 7
Exhaustion is an affirmative defense, need not be pled. ..................................................... 8
“Available” remedies .......................................................................................................... 9
“Proper” exhaustion .......................................................................................................... 14
Curing non-exhaustion ...................................................................................................... 17
When all else fails: excusing non-exhaustion ................................................................... 17

IV.
A.
B.

The physical injury requirement ....................................................................................... 19
Limit on damages, not “actions” ....................................................................................... 20
Intangible constitutional rights ......................................................................................... 20
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C.
D.
E.

Conditions of confinement ................................................................................................ 21
Plead it .............................................................................................................................. 21
Physical injury .................................................................................................................. 23

A.
B.
C.
D.
F.

Attorneys’ fees restrictions ................................................................................................... 24
Rates .................................................................................................................................. 24
Applicability ..................................................................................................................... 25
Fees’ relation to merits and results ................................................................................... 25
Fees’ relation to damages.................................................................................................. 26
Fee agreements.................................................................................................................. 27

VI.
A.
B.

Filing fees.......................................................................................................................... 27
Prisoners must pay even under the in forma pauperis provisions .................................... 27
Fees and joinder in multi-plaintiff cases ........................................................................... 27

V.

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I.

Cases “brought by a prisoner”—by someone locked up at time of filing—

A.

Are subject to certain PLRA provisions
1.
Administrative exhaustion requirement, 42 U.S.C. § 1997e(a); see Norton v. The City Of
Marietta, OK, 432 F.3d 1145, 1150 (10th Cir. 2005); Greig v. Goord, 169 F.3d 165, 167 (2d Cir.
1999).
2.
Physical injury requirement, 42 U.S.C. § 1997e(e); see Kerr v. Puckett, 138 F.3d 321,
th
322 (7 Cir. 1998)
3.
Attorneys’ fees limits, 42 U.S.C. § 1997e(d); see Janes v. Hernandez, 215 F.3d 541, 543
(5th Cir. 2000).
4.
Filing fees and “three strikes” provisions, 28 U.S.C. § 1915(b), (g); see Harris v. City of
New York, 607 F.3d 18 (2d Cir. 2010) (§ 1915(g)); McGann v. Commissioner, 96 F.3d 28 (2d
Cir. 1996) (holding § 1915(b) cannot apply to non-prisoners because the payment provisions are
keyed to plaintiffs’ institutional accounts).

B.

So you don’t want your case to be “brought by a prisoner”
1.
If your client is in, and you can wait for release and have time to file and take discovery
and identify defendants within the limitations period, do so.
2.
If your client is out, FILE NOW! Former prisoners have a regrettable habit of becoming
current prisoners again, which may be as damaging to their litigation positions as to their personal
circumstances.
3.
If your client is out but the case was filed while he or she was in, consider taking a
voluntary dismissal and refiling the case while the client is out—or refiling after dismissal if
necessary. See Cox v. Mayer, 332 F.3d 422, 425-26 (6th Cir. 2003); Dixon v. Page, 291 F.3d
485, 488 n.1 (7th Cir. 2002); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); Younker v.
Ohio State University Medical Center, 2013 WL 3222902, *5 (S.D.Ohio, June 25, 2013), report
and recommendation adopted, 2013 WL 3761130 (S.D.Ohio, July 16, 2013); Dilworth v.
Goldberg, 2011 WL 3501869, *15 (S.D.N.Y., July 28, 2011) (declining to dismiss case refiled
after release for non-exhaustion, notwithstanding that plaintiff previously filed some of the same
claims while incarcerated), report and recommendation adopted, 2011 WL 4526555 (S.D.N.Y.,
Sept. 30, 2011); Reddic v. Evans, 2011 WL 2181311, *3 n.1 (N.D.Cal., June 3, 2011);
Bloothoofd v. Danberg, 2011 WL 1230268, *3 (D.Del. Mar 31, 2011) (approving plaintiff’s
filing of new action after release to avoid the exhaustion requirement); Bloothoofd v. Danberg,
2011 WL 1287973, *2-3 (D.Del., Mar. 17, 2011) (same); Ladd v. Dietz, 2007 WL 160762 at *1
(D.Neb., Jan. 17, 2007) (holding or stating in dictum that doing so is permissible); see Harris v.
City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (holding prisoner with three strikes
disqualified from in forma pauperis status can refile after release and reapply for IFP status after
dismissal like any other litigant).

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C.

Know what a “prisoner” is and what your client’s status is
1.
A prisoner is anybody presently subject to any form of criminal confinement in “any
facility.” 42 U.S.C. § 1997e(h); see Blank v. Eavenson, 2012 WL 685460, *4 (N.D.Tex., Feb. 14,
2012) (person in home detention is not a prisoner for PLRA exhaustion purposes).
2.
So far, dead people, their families and estates seem not to be prisoners. Not to be
ghoulish, but if your client is on death’s door and an injunction won’t help . . . wait.


As to dead persons, see Anderson v. County of Salem, 2010 WL 3081070, *2 (D.N.J.,
Aug. 5, 2010); Torres Rios v. Pereira Castillo, 545 F.Supp.2d 204, 206 (D.P.R., Aug. 28,
2007); Rivera Quinones v. Rivera Gonzalez, 397 F.Supp.2d 334, 340 (D.P.R., Oct. 28,
2005); Simmons ex rel. Estate of Simmons v. Johnson, 2005 WL 2671537 at *2
(W.D.Va., Oct. 20, 2005); Greer v. Tran, 2003 WL 21467558 at *2 (E.D.La., June 23,
2003); Treesh v. Taft, 122 F.Supp.2d 887, 890 (S.D.Ohio. 2000); see also Burke v.
Thompson, 2016 WL 2587996, *10-11 (W.D.Ky., May 4, 2016) (construing state PLRA
analogue consistently with federal PLRA on this point).



As to families and estates, see Tretter v. Pennsylvania Dept. of Corrections, 558
Fed.Appx. 155, 157 (3d Cir. 2014) (“The exhaustion of administrative remedies
requirement is of no moment to plaintiffs who file actions on behalf of a deceased
inmate.”); Arms-Adair v. Black Hawk County, Iowa, 2013 WL 2149614, *3-4
(N.D.Iowa, May 16, 2013) (holding suit filed by mother of deceased prisoner was not
brought by a prisoner); Anderson v. County of Salem, 2010 WL 3081070, *2 (D.N.J.,
Aug. 5, 2010); Torres Rios v. Pereira Castillo, 545 F.Supp.2d 204, 206 (D.P.R., Aug. 28,
2007) (noting that an estate cannot be imprisoned or accused, convicted, or sentenced for
a criminal violation, and it therefore not a prisoner); Netters v. Tennessee Dept. of
Correction, 2005 WL 2113587 at *3 n.3 (W.D.Tenn., Aug. 30, 2005); Rivera Rodriguez
v. Pereira Castillo, 2005 WL 290160 at *5-6 (D.P.R., Jan. 31, 2005) (holding that a
prisoner’s guardian is not a prisoner); Greer v. Tran, 2003 WL 21467558 at *2 (E.D.La.,
June 23, 2003); see also Lister v. Prison Health Services, Inc., 2006 WL 1733999 at *1-2
(M.D.Fla., June 22, 2006) (holding that a female prisoner suing over the death of her
child was barred for non-exhaustion, but the estate of the child might have a claim if it
was born alive).



But suits brought by prisoners’ conservators or guardians, who do not have separate legal
claims, may be considered suits brought by a prisoner. Braswell v. Corrections Corp. of
America, 2009 WL 2447614, *4 (M.D.Tenn., Aug. 10, 2009), rev’d on other grounds,
Braswell v. Corrections Corp. of America, 419 Fed.Appx. 622 (6th Cir. 2011)
(unpublished).

3.
Parolees are generally not prisoners, Kerr v. Puckett, 138 F.3d 321, 322 (7th Cir. 1998)
(“The statutory language does not leave wriggle room; a convict out on parole is not a ‘person
incarcerated or detained in any facility who is . . . adjudicated delinquent for, violations of . . . the
terms and conditions of parole.”); Robinson v. Sheppard, 2012 WL 2358252, *1 n.2 (S.D.Tex.,
June 20, 2012) (holding parolee was unaffected by three strikes provision); Murray v. Raney,

2

2012 WL 5985543, *4 (D.Idaho, Nov. 29, 2012) (holding parolee is not a prisoner required to
exhaust); Bisgeier v. Michael [sic] Dept. of Corrections, 2008 WL 227858 at *4 (E.D.Mich., Jan.
25, 2008) (“While there may be certain conditions imposed upon Plaintiff as a parolee, there can
be no doubt that he is neither ‘confined,’ ‘incarcerated,’ nor ‘detained in’ any jail, prison, or other
correctional facility.”)
—that is, unless they are paroled to an institution in which they are “confined.” Jackson v.
Johnson, 475 F.3d 261, 265-67 (5th Cir. 2007).
4.

People civilly committed are generally not prisoners, including


immigration detainees, Agyeman v. I.N.S., 296 F.3d 871, 885-86 (9th Cir. 2002);
LaFontant v. INS, 135 F.3d 158 (D.C.Cir. 1998);



sex offenders committed after their prison sentences, Merryfield v. Jordan, 584 F.3d
923, 927 (8th Cir. 2009); Michau v. Charleston County, S.C., 434 F.3d 725, 727-28 (4th
Cir. 2006); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002); Page v. Torrey, 201
F.3d 1136, 1139-40 (9th Cir. 2000);



persons committed psychiatrically, Perkins v. Hedricks, 340 F.3d 582, 583 (8th Cir.
2003), including those found not guilty by reason of insanity. See Koloctronis v.
Morgan, 247 F.3d 726, 728 (8th Cir. 2001); Mullen v. Surtshin, 590 F.Supp.2d 1233,
1240 (N.D.Cal. 2008), leave to file for reconsideration denied, 2009 WL 734673
(N.D.Cal., Mar. 18, 2009); Phelps v. Winn, 2007 WL 2872465 at *1 (D.Mass., Sept. 27,
2007) (so holding, notwithstanding that the plaintiff is held by the Bureau of Prisons).

—but be careful and be sure you understand the legal nature of the confinement. If their criminal charges
or sentences remain in the picture they may still be prisoners, e.g.


sex offenders in programs that divert them from the criminal process while leaving their
charges pending. See Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (holding
that persons held under the Illinois Sexually Dangerous Persons Act are prisoners for
PLRA purposes);



persons found incompetent to stand trial. See Gibson v. City Municipality of New York,
692 F.3d 198, 201-02 (2d Cir. 2012) (per curiam); Holbach v. North Dakota, 2014 WL
295153, *1 (D.N.D., Jan. 24, 2014); Banks v. Thomas, 2011 WL 1750065, *2 (S.D.Ill.,
May 6, 2011); Ruston v. Church of Jesus Christ of Latter-Day Saints, 2007 WL 2332393
at *1 (D.Utah, Aug. 13, 2007); In re Rosenbalm, 2007 WL 1593207 at *2 (N.D.Cal., June
1, 2007); Gibson v. Commissioner of Mental Health, 2006 WL 1234971 at *6 (S.D.N.Y.,
May 8, 2006), relief from judgment denied, 2006 WL 2192865 (S.D.N.Y., Aug. 2, 2006).



persons found guilty but insane. Lewis v. Oklahoma Dept. of Mental Health, 2012 WL
5574174, *1 (N.D.Okla., Nov. 15, 2012); Magnuson v. Arizona State Hosp., 2010 WL
283128, *1 n.5, *2 (D.Ariz., Jan. 20, 2010);

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

persons psychiatrically committed from prison while serving their sentences. McQuilkin
v. Central New York Psychiatric Center, 2010 WL 3765847, *10 (N.D.N.Y., Aug. 27,
2010), report and recommendation adopted, 2010 WL 3765715 (N.D.N.Y., Sept. 20,
2010); Jones v. Sherman, 2010 WL 3277135, *3 n.1 (E.D.Ky., Aug. 18, 2010); Roland v.
Wenz, 2010 WL 2834828, *3 n.7 (N.D.N.Y., July 16, 2010), report and recommendation
adopted, 2010 WL 2817485 (N.D.N.Y., July 16, 2010); see Vitek v. Jones, 445 U.S. 480
(1980).

5.
Where both prisoners and non-prisoners are plaintiffs (e.g., prisoner and family member),
most decisions hold the non-prisoners’ claims are not governed by the PLRA. See Arsberry v.
Illinois, 244 F.3d 558 (7th Cir. 2001) (holding that prisoner plaintiffs were barred for nonexhaustion but non-prisoners’ claims could be decided on the merits); Miller v. Hartley, 2012 WL
1229884, *7 n.3 (D.Colo., April 12, 2012) (holding prisoner’s mother’s claim not governed by
exhaustion requirement); Carter v. Jones, 2006 WL 2320807 at *6 (W.D.Okla., Aug. 9, 2006)
(same); Apanovich v. Taft, 2006 WL 2077040 at *4 (S.D.Ohio, July 21, 2006) (dismissing
prisoner’s claim about execution procedures for non-exhaustion, allowing claims of newspaper
and non-profit organization to go forward); Turner v. Wilkinson, 92 F.Supp.2d 697, 704
(S.D.Ohio 1999) (holding that a case filed by a prisoner husband and his non-prisoner wife was
not “brought by a prisoner” and therefore PLRA fees limits did not apply). But see Johnson v.
Martin, 2006 WL 1361771 at *5 n.6 (W.D.Mich., May 15, 2006) (applying PLRA attorneys’ fees
limitations where only two plaintiffs–a religious organization and its president–were nonprisoners, where the “primary benefits” went to prisoners, and there was no “intelligent way” to
differentiate between hours spent on prisoner and non-prisoner claims). It may be prudent to
bring separate complaints for prisoner and non-prisoner plaintiffs. DO NOT file on behalf of a
prisoner and then have a non-prisoner intervene or join in an amended or supplemental complaint,
since that case is literally “brought by a prisoner” and the non-prisoner may be stuck with PLRA
rules. See Montcalm Pub. Corp. v. Com. of Va., 199 F.3d 168, 171-72 (4th Cir. 1999) (publisher
who intervened in a prisoner’s challenge to prison censorship was bound by the PLRA attorneys’
fees provisions).

II.

Do state law or state court get you away from the PLRA? It depends.

A.

State PLRA analogues:
Many states have them. E.g.:


“No inmate may maintain a civil action for monetary damages in any state court for
mental or emotional injury without a prior showing of physical injury.” Kentucky
Revised Statutes § 454.405(5).



“No prisoner suit may assert a claim under state law for mental or emotional injury
suffered while in custody without a prior showing of physical injury.” LSA-R.S.
15:1184(E) (Louisiana).

New York does not have such provisions.

4

B.

Exhaustion requirement, 42 U.S.C. § 1997e(a)
A case “brought under” §1983 or any other federal law is subject to it.
1.
State law claims in state court or federal court are not subject to PLRA exhaustion, ArtisBey v. District of Columbia, 884 A.2d 626, 631 (D.C. 2005); Davis v. Abercrombie, 2013 WL
1568425, *9 (D.Haw., Apr. 11, 2013), reconsideration denied, 2013 WL 2468356 (D.Haw., June
6, 2013);Hagopian v. Smith, 2008 WL 3539256 at *3 (E.D.Mich., Aug. 12, 2008); Shaheed
Muhammad v. Dipaolo, 393 F.Supp.2d 80, 92 n.5 (D.Mass. 2005); Torres v. Corrections Corp. of
America, 372 F.Supp.2d 1258, 1262 (N.D.Okla. 2005), though they will have to have satisfied
any applicable state law exhaustion requirements. Hendon v. Baroya, 2006 WL 1791349 at *2
(E.D.Cal., June 27, 2006), report and recommendation adopted, 2008 WL 482868 (E.D.Cal., Feb.
20, 2008), aff’d, 320 Fed.Appx. 717 (9th Cir. 2009).
2.
§ 1983 claims or other federal statutory causes of action are subject to the PLRA
exhaustion requirement even if filed in state court. Johnson v. State of La. ex rel. Dep’t of Public
Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006) (“The PLRA’s exhaustion requirement applies
to all Section 1983 claims regardless of whether the inmate files his claim in state or federal
court.”); Blakely v. Ozmint, 2006 WL 2850545 at *2 (D.S.C. Sep 29, 2006); Hodge v.
Louisville/Jefferson County Metro Jail, 2006 WL 1984723 at *4 (W.D.Ky., July 12, 2006);
Alexander v. Walker, 2003 WL 297536 at *2 (N.D.Cal., Feb. 10, 2003).
3.
Is a case asserting federal claims, but brought in state court under that court’s general
jurisdiction or other state law jurisdictional authorization, “brought under” federal law? Does
“brought under” refer to the substantive basis of the claim, or only to the law that gets it into a
particular court? Beats me; this may be worth trying if you must have a federal claim and the
PLRA exhaustion requirement clearly prevents you from litigating it under § 1983.

C.

Physical injury requirement
1.
“No Federal civil action may be brought” by a prisoner for mental or emotional injury
without physical injury, 42 U.S.C. § 1997e(e)—but “Federal civil action” is not defined.
2.
Arguably, a case brought in state court is not a “Federal civil action” even if it asserts
federal rights, especially since the exhaustion requirement, unlike the physical injury requirement,
does state its scope in terms of the rights asserted. 42 U.S.C. § 1997e(a) (referring to “action . . .
under section 1983 of this title, or any other Federal law”). So this argument may be worth
pursuing before a judge who actually pays attention to statutory terms. But see Napier v.
Preslicka, 314 F.3d 528, 532 (11th Cir.2002) (“[T]he phrase ‘Federal civil action’ means all
federal claims, including constitutional claims.”); VanValkenburg v. Oregon Dep’t of
Corrections, 2016 WL 2337892, *12-13 (D.Or., May 2, 2016) (following Napier; extensive
analysis); Jackson v. Verdini, 19 Mass.L.Rptr. 539, 2005 WL 1457748 at *6-7 (Mass.Super.
2005) (assuming without analysis that § 1997e(e) applies to federal claims in state court); Thomas
v. Ripper, 2002 WL 31627996 at *1-2 (Tex.App.-Beaumont 2002) (same); see also Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002) (hinting but not
holding explicitly that removed federal claims are subject to § 1997e(e)).

5

3.
If a case filed in state court is not a Federal civil action, then removing it to federal court
doesn’t bring the case within the scope of this provision, because “No Federal civil action [was]
brought” by a prisoner—rather, the prisoner plaintiff filed a “State civil action” and the
defendant—not a prisoner, presumably—brought it into federal court. (A removed case is
considered by be “institut[ed]” by removal, and the removing party—the defendant—must pay
the filing fee. 28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties
instituting any civil action, suit or proceeding in such court, whether by original process, removal
or otherwise, to pay a filing fee of $350. . . .”).) The physical injury requirement would not
apply.
4.
Several courts have held, either explicitly or in effect, that a state law claim filed in
federal court under the court’s supplemental jurisdiction is a “federal civil action”—that is, the
statutory term refers to the court of filing, not the law asserted. See O'Connor v. Carnahan, 2014
WL 293457, *10 (N.D.Fla., Jan. 27, 2014); Jacobs v. Pennsylvania Dept. of Correctons, 2011 WL
2295095, *23 (W.D.Pa., June 7, 2011) (holding federal civil action means “an action in which
civil claims over which the federal court has jurisdiction are brought, i.e., all claims over which
the court has original jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction under 28
U.S.C. § 1367”); Schonarth v. Robinson, 2008 WL 510193, *4-5 (D.N.H., Feb. 22, 2008); Hines
v. Oklahoma, 2007 WL 3046458 at *6 (W.D.Okla., Oct. 17, 2007). Contra, Mercado v.
McCarthy, 2009 WL 799465, *2 (D.Mass., Mar. 25, 2009) (expressing doubt as to provision’s
application to state law claims); Bromell v. Idaho Dep't of Corrections, 2006 WL 3197157, *5
(D.Idaho, Oct. 31, 2006) (holding provision inapplicable to supplemental state claim).

D.

Attorneys’ fees limits
1.

Apply to cases where fees are sought under 42 U.S.C. § 1988

2.
So a state court suit in which you must rely on § 1988 for fees will be subject to the
limits, while a claim with another basis for recovery of fees will not.

III.

Administrative exhaustion, 42 U.S.C. § 1997e(a)

A.

Must be completed before suit is filed
. . . meaning that the prisoner has appealed to the final stage of the administrative process and the
time for a response has passed before suit is filed. Gonzalez v. Seal, 702 F.3d 785, 787-88 (5th
Cir. 2012) (overruling contrary authority); Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.
2003) (citing cases); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); Powe v. Ennis, 177 F.3d
393, 394 (5th Cir. 1999) (“A prisoner’s administrative remedies are deemed exhausted when a
valid grievance has been filed and the state’s time for responding thereto has expired.”).

B.

Applies to challenges to “prison conditions”
If it happened in prison to a prisoner, it’s probably a prison condition, and arguments to the
contrary are not likely to prevail. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (§ 1997e(a)
applies “to all inmate suits about prison life, whether they involve general circumstances or

6

particular episodes, and whether they allege excessive force or some other wrong”; rejecting
distinction between conditions and single incidents). Since Porter, courts have held “prison
conditions” to encompass, inter alia:

C.



intrusions on attorney-client correspondence and telephone conversations,
notwithstanding argument that attorney-client relationship “transcends the conditions of
time and place.” Krilich v. Federal Bureau of Prisons, 346 F.3d 157, 159 (6th Cir. 2003);



statutorily required collection of DNA. U.S. v. Carmichael, 343 F.3d 756, 761 (5th Cir.
2003);



denial of in-person interviews in connection with parole release decisions (this one is a
stretch). Martin v. Iowa, 752 F.3d 725, 726 (8th Cir. 2014);



an order by prison officials that the plaintiff cease all attempts to contact his son. Pryor
v. Harper, 2006 WL 2583302 at *2 (S.D.Ohio, Sept. 7, 2006);



alleged antitrust violations affecting telephone service charges. Ray v. Evercom Systems,
Inc., 2006 WL 2475264 at *5 (D.S.C., Aug. 25, 2006);



challenge to execution procedures; it involves “the effects of actions by government
officials on the lives of persons confined in prison.” Dennis v. Taft, 2004 WL 4506891
at *4 (S.D.Ohio, Sept. 24, 2004);



inability to obtain an application for an absentee ballot in a timely manner. Johnson v.
Luttrell, 2005 WL 1972579 at *3 (W.D.Tenn., Aug. 11, 2005);



requirement that prisoners name the prison as their place of residence for the Census.
Woltz v. FCI Beckley, 2011 WL 4916102, *2-3 (S.D.W.Va., Oct. 17, 2011).

You’re probably doing post hoc damage control
1.
Grievance time limits are mostly so short it is a rare case where counsel will be retained
early enough to shape exhaustion from the first. See Woodford v. Ngo, 548 U.S. 81, 95-96
(2006) (noting that deadlines “are typically 14 to 30 days according to the United States and even
shorter according to the plaintiff”). Most grievance systems make no provision for counsel or
other representative to pursue the grievance anyway.
2.
There is one recent and important exception: the National Standards to Prevent, Detect,
and Respond to Prison Rape, recently promulgated under the Prison Rape Elimination Act
(PREA) and sometimes called the “PREA Standards,” provide that third parties, including
attorneys and other outside advocates, may help inmates file sexual abuse complaints and may
also file them on behalf of inmates, though the prison may require that the inmate complainant
agree to have a third party file the complaint and that the complainant personally pursue any any
subsequent steps (e.g. appeals). 28 C.F.R. § 115.52(e).

7

3.
If the time limit has not expired, or if your claim is a continuing violation such that the
grievance is still arguably timely, you will want to explore to what extent you can exhaust for, or
at least advise, your client. Most courts have held that a grievance about an ongoing condition
cannot be untimely. Ellis v. Vadlamudi, 568 F.Supp.2d 778, 784 (E.D.Mich. 2008); accord,
Mitchell v. Cate, 2013 WL 635964, *9-10 (E.D.Cal., Feb. 20, 2013) (noting that ongoing
condition could be grieved at any time while it persisted under state’s rules), report and
recommendation adopted, 2013 WL 1625390 (E.D.Cal., Apr. 15, 2013); Cullen v. Pennsylvania
Dept. of Corrections, 2012 WL 6015724, *8 (W.D.Pa., May 29, 2012) (holding “the leaky roof
was of the continuing event variety, and plaintiff's grievance must be deemed timely”), report
and recommendation adopted in part, rejected in part on other grounds, 2012 WL 6015721
(W.D.Pa., Dec. 3, 2012); Parisi v. Arpaio, 2009 WL 4051077, *3 (D.Ariz., Nov. 20, 2009) (“. . .
[T]he Court finds that no specific date would be required if Plaintiff is complaining about a policy
that would affect him on a daily basis; therefore, the Court rejects Defendant's argument that the
grievance was outside the time frame.”); Hudson v. Radtke, 2009 WL 1597259, *4 (W.D.Wis.,
June 5, 2009) (holding grievance about confiscated books was timely where the books were still
being withheld at the time of the grievance); Jones v. Caruso, 2008 WL 4534085 at *7
(W.D.Mich., Sept. 2, 2008) (claim of ongoing exposure to second-hand smoke was not limited by
“date of incident” on grievance; citing Ellis), report and recommendation adopted in part,
rejected in part on other grounds, 2008 WL 4534081 (W.D.Mich., Sept. 29, 2008); Rollins v.
Magnusson, 2007 WL 2302141 at *5 (D.Me., Aug. 9, 2007) (declining to credit dismissal as
untimely, since the plaintiff was “clearly grieving the continued confiscation of his legal
material”) (emphasis supplied); Holloway v. Correctional Medical Services, 2007 WL 1445701 at
*5 (E.D.Mo., May 11, 2007) (holding grievance timely since plaintiff was grieving “the continual
denial of information and treatment” that “continued to occur” when he filed his grievance and
afterward); Abuhoran v. Morrison, 2005 WL 2140537 at *6 (E.D.Pa., Sept. 1, 2005) (noting that
finding of procedural default did not prevent plaintiffs from filing a new grievance challenging
ongoing policy “at any time”); see also Richardson v. Raemisch, 2008 WL 5377872 at *4
(W.D.Wis., Dec. 23, 2008) (where prisoner’s previous grievances were procedurally inadequate,
those complaints did not necessarily bar a new grievance about an ongoing problem); Wilkerson
v. Beitzel, 2005 WL 5280675 at *3 n.4 (D.Md., Nov. 10, 2005) (holding plaintiff had exhausted,
notwithstanding dismissal under rule that any complaint concerning a prison policy must be
raised within 30 days of arrival at the prison, regardless of whether complaint is ongoing; court
says policy “borders on sophistry”), aff’d, 184 Fed.Appx. 316 (4th Cir. 2006). Contra, Andrade
v. Maloney, 2006 WL 2381429 at *6 (D.Mass., Aug. 16, 2006).

D.

Exhaustion is an affirmative defense, need not be pled.
Jones v. Bock, 549 U.S. 199, 212-16 (2007). If you can plead without elaboration that all
available administrative remedies have been exhausted, doing so may simplify the response to a
motion to dismiss. If it’s not that simple, leave it out of the complaint. The defendants have the
burden to show that a remedy was available for a particular prisoner’s complaint, and to do so by
more than “vague and conclusory” statements from their officials. Hubbs v. Suffolk County
Sheriff's Dept., 788 F.3d 54, 61 (2d Cir. 2015).

8

E.

“Available” remedies
The PLRA requires exhaustion of “available” administrative remedies. Booth v. Churner, 532
U.S. 731, 736 (2001) (emphasis supplied) (a remedy is presumptively available unless it “lacks
authority to provide any relief or to take any action whatsoever in response to a complaint”;
holding unavailability of damages did not make remedy unavailable); Snider v. Melindez, 199
F.3d 108, 133 n.2 (2d Cir. 1999) (stating “the provision clearly does not require a prisoner to
exhaust administrative remedies that do not address the subject matter of his complaint.”) That
means you must find out up front what those remedies are for your client’s claim.
The Supreme Court has just elaborated on the meaning of “availability” in Ross v. Blake, 2016
WL 3128839, ___ S.Ct. ___ (2016), generally endorsing the body of case law discussed below in
this section, though stating some issues more broadly or more narrowly than pre-existing case
law:
Building on our own and lower courts’ decisions, we note as relevant
here three kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use to obtain relief. . . .
First, . . . an administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a simple
dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates. . . . Suppose, for example, that a prison
handbook directs inmates to submit their grievances to a particular
administrative office—but in practice that office disclaims the capacity
to consider those petitions. The procedure is not then “capable of use”
for the pertinent purpose. . . . So too if administrative officials have
apparent authority, but decline ever to exercise it. . . . When the facts on
the ground demonstrate that no such potential exists, the inmate has no
obligation to exhaust the remedy.
Next, an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some mechanism
exists to provide relief, but no ordinary prisoner can discern or navigate
it. As the Solicitor General put the point: When rules are “so confusing
that ... no reasonable prisoner can use them,” then “they’re no longer
available.” . . . That is a significantly higher bar than CRIPA established
or the Fourth Circuit suggested: The procedures need not be sufficiently
“plain” as to preclude any reasonable mistake or debate with respect to
their meaning. . . . When an administrative process is susceptible of
multiple reasonable interpretations, Congress has determined that the
inmate should err on the side of exhaustion. But when a remedy is, in
Judge Carnes’s phrasing, essentially “unknowable”—so that no ordinary
prisoner can make sense of what it demands—then it is also unavailable.

9

And finally, the same is true when prison administrators thwart inmates
from taking advantage of a grievance process through machination,
misrepresentation, or intimidation. In Woodford, we recognized that
officials might devise procedural systems (including the blind alleys and
quagmires just discussed) in order to “trip[ ] up all but the most skillful
prisoners.” . . . And appellate courts have addressed a variety of instances
in which officials misled or threatened individual inmates so as to
prevent their use of otherwise proper procedures. As all those courts have
recognized, such interference with an inmate’s pursuit of relief renders
the administrative process unavailable.

INSERT PAGE CITE WHEN AVAILABLE; NOTE FOOTNOTE
OMITTED
1.
Sometimes grievance systems exclude certain issues from coverage and makes them
“non-grievable.” See, e.g., Owens v. Keeling, 461 F.3d 763, 769-70 (6th Cir. 2006) (noting
classification matters excluded from Tennessee grievance system); Mojias v. Johnson, 351 F.3d
606, 608-10 (2d Cir. 2003) (reversing dismissal of assault claim for non-exhaustion in a system
that does not hear assault claims); Figel v. Bochard, 89 Fed.Appx. 970, 971, 2004 WL 326231 at
*1 (6th Cir. 2004) (unpublished) (noting that Michigan system makes non-grievable issues that
“involve a significant number of prisoners”).
2.
Sometimes informal practices have the same effect as formal exclusion—as
acknowledged in Ross v. Blake, despite paper rules, “officers [may be] unable or consistently
unwilling to provide any relief to aggrieved inmates” or officials [may] have apparent authority,
but decline ever to exercise it. . . . When the facts on the ground demonstrate that no such
potential exists, the inmate has no obligation to exhaust the remedy.” ____ CITE Lower courts
have cited many variations on this theme. See, e.g., Smith v. Lagana, 574 Fed.Appx. 130, 132-33
(3d Cir. 2014) (holding evidence of “culture of not processing, nor responding to [grievances]
against correctional guards,” with evidence of efforts to exhaust, raises a factual question barring
summary judgment of availability of remedy); Miller v. Coning, 2014 WL 808023, *7-8 (D.Del.,
Feb. 28, 2014) (holding remedies unavailable where plaintiff was told his complaint was nongrievable contrary to written grievance policy; noting “this is not the first instance in which the
court has commented on ad hoc grievance procedures in Delaware prisons”), report and
recommendation adopted, 2014 WL 3896605 (D.Del., Aug. 7, 2014); Wigfall v. Duval, 2006 WL
2381285 at *8 (D.Mass., Aug. 15, 2006) (citing evidence that use of force claims were not treated
as grievances); Scott v. Gardner, 287 F.Supp.2d 477, 491 (S.D.N.Y.2003) (holding that
allegations that grievance staff refused to process and file grievances about occurrences at other
prisons, claiming they were not grievable, sufficiently alleged lack of an available remedy), on
reconsideration, 344 F.Supp.2d 421 (S.D.N.Y. 2004) and 2005 WL 984117 (S.D.N.Y., Apr. 28,
2005); Casanova v. Dubois, 2002 WL 1613715 at *6 (D.Mass., July 22, 2002) (finding that,
contrary to written policy, practice was “to treat complaints of alleged civil rights abuses by staff
as ‘not grievable’”), remanded on other grounds, 304 F.3d 75 (1st Cir. 2002); Livingston v.
Piskor, 215 F.R.D. 84, 86-87 (W.D.N.Y. 2003) (holding that evidence that grievance personnel
refused to process grievances where a disciplinary report had been filed covering the same events
created a factual issue precluding summary judgment); see Marr v. Fields, 2008 WL 828788 at *6

10

(W.D.Mich., Mar. 27, 2008) (evidence that hearing officers interpreted grievance policy broadly
to exclude all grievances with any relationship to a disciplinary charges could excuse failure to
exhaust).
3.
Sometimes there are multiple remedies with different coverage, and the prisoner must use
the correct one. See, e.g., Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (holding prisoner
who filed classification appeal exhausted, notwithstanding failure to complete inapplicable
grievance procedure); Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001) (holding that
filing an “administrative” appeal rather than the required “disciplinary” appeal did not exhaust).


The remedies the PLRA requires are generally prison grievance systems or other internal
complaint or appeal systems (e.g., disciplinary or classification appeal), see Alexander v.
Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998) (“available” remedies under the PLRA
refers to prison administrative remedy programs)—not state tort claim notices, see
Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999); the U.S. Department of Justice disability
complaint system, see O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062-63
(9th Cir. 2007); Veloz v. State of N.Y., 339 F.Supp.2d 505, 519 (S.D.N.Y., Sept. 30,
2004), aff’d, 178 Fed.Appx. 39 (2d Cir. 2006); contra, Brown v. Cantrell, 2012 WL
3264292, *7-8 (D.Colo., Feb. 9, 2012), report and recommendation adopted, 2012 WL
4050300, *3 (D.Colo., Sept. 14, 2012); Haley v. Haynes, 2012 WL 112946, *1 (S.D.Ga.,
Jan. 12, 2012); impartial hearing requirement of the Individuals with Disabilities in
Education Act, see Handberry v. Thompson, 2003 WL 194205 at *11 (S.D.N.Y., Jan. 28,
2003) (“In Porter [v. Nussle], the Court noted that Congress wished to afford corrections
officials the opportunity to address complaints internally. . . . This observation is
inconsistent with a rule requiring exhaustion of a remedy which is outside of the prison
and which does not involve prison authorities.”), aff’d in part, vacated in part, and
remanded on other grounds, 446 F.3d 335 (2d Cir. 2006); a state statutory procedure for
seeking a declaratory judgment from a state agency, Aiello v. Litscher, 104 F.Supp.2d
1068, 1074 (W.D.Wis. 2000); or state medical malpractice administrative procedures.
McGraw v. Hornaday, 2007 WL 2694634 at *2 (S.D.Ind., Sept. 10, 2007).



Internal law enforcement-type remedies such as internal affairs bureaus are generally not
accepted as satisfying the exhaustion requirement, see Pavey v. Conley, 663 F.3d 899,
905 (7th Cir. 2011); Panaro v. City of North Las Vegas, 423 F.3d 949, 953 (9th Cir.
2005) (holding that participation in an internal affairs investigation did not exhaust
because it did not provide a remedy for the prisoner, even though the officer was
disciplined); Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999) (holding that
investigations by prison Use of Force Committee and Ohio State Highway Patrol did not
substitute for grievance exhaustion even though criminal charges were brought against
the officer)—unless prison officials instruct prisoners to use them, see Ross v. Blake,
_______ (noting that Administrative Remedy Procedure might be unavailable in light of
evidence that complaints were dismissed where the Internal Investigation Unit was
investigating the same incident); Reynolds v. Smith, 2015 WL 1968867, *9-10
(S.D.Ohio, May 1, 2015) (denying summary judgment for failing to grieve sexual assault
where officials had proffered multiple alternative ways to complain about it), report and
recommendation adopted, 2015 WL 5212053, *2-3, 5-7 (S.D. Ohio, Sept. 8, 2015); Ray

11

v. Jones, 2007 WL 397084 at *2 (W.D.Okla., Feb. 1, 2007) (declining to dismiss for
failing to grieve where plaintiff was repeatedly advised that an internal affairs
investigation would substitute for the grievance process), and sometimes not even then.
See Doe v. Michigan Dep’t of Corrections, 2016 WL 465496, *4 (E.D.Mich., Feb. 8,
2016) (holding creation of multiple means of reporting sexual abuse did not mean they
substituted for pursuing a grievance), reconsideration denied, 2016 WL 2591871 (May 5,
2016); Amador v. Superintendents of Dep’t of Correctional Services, 2007 WL 4326747
at *7-8 (S.D.N.Y., Dec. 4, 2007) (dismissing sexual abuse claims of prisoners who
complained to Inspector General, as official instructions said they could, rather than filing
grievances), appeal dismissed in part, and vacated and remanded in part on other
grounds, 655 F.3d 89 (2d Cir. 2011).


Exhaustion by informal means, seemingly recognized in some earlier decisions, is
probably a dead letter. Compare Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001)
(holding a prisoner who succeeded in resolving his complaint informally had exhausted,
since the grievance policy says that the formal process was intended to supplement, not
replace, informal methods) with Braham v. Clancy, 425 F.3d 177 (2d Cir. 2005) (holding
prisoner who had obtained relief he sought through required informal complaint should
have gone on to file a formal grievance because that process could have effected policy
changes, staff discipline, etc.); Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir.
2006) (prisoner who obtained transfer by complaining to investigator did not exhaust;
Marvin v. Goord “does not imply that a prisoner has exhausted his administrative
remedies every time he receives his desired relief through informal channels.”); see also
Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007) (“after Woodford, notice alone is
insufficient” without compliance with “critical procedural rules”). Most decisions hold
that simply writing a letter to the warden or other free-form complaint does not exhaust,
see, e.g., Yousef v. Reno, 254 F.3d 1214, 1221-22 (10th Cir. 2001) (holding that a letter
to the Attorney General was insufficient to exhaust as to actions that had been authorized
by the Attorney General, despite the government’s lack of clarity as to what authority the
administrative remedy procedure might have over the Attorney General’s decisions);
Withrow v. Taylor, 2007 WL 3274858 at *6-7 (N.D.N.Y., Nov. 5, 2007) (letters are not
grievances and do not exhaust). Authority to the contrary, see, e.g., Camp v. Brennan,
219 F.3d 279 (3rd Cir. 2000) (holding that use of force allegation that was investigated
and rejected by Secretary of Correction’s office need not be further exhausted), is
probably not reliable after Woodford v. Ngo, discussed below. If anything survives of
informal exhaustion, it is probably outside the Second Circuit in cases where the informal
procedure is prescribed in the grievance policy. See, e.g., Barrett v. Maricopa County
Sheriff's Office, 2010 WL 46786, *4-5 (D.Ariz., Jan. 4, 2010) (prisoner who got his
medication, which was all he sought, through the pre-grievance informal process had
exhausted).



Remedies may be unavailable to a particular plaintiff because of that plaintiff’s limited
capacities, temporary or permanent, physical or mental. Beaton v. Tennis, 460
Fed.Appx. 111, 113-14 (3d Cir. 2012) (unpublished) (evidence that prison staff took
advantage of plaintiff’s confused mental state arising from a skull fracture and postconcussion syndrome to make him withdraw his grievance raised a factual issue barring

12

summary judgment for non-exhaustion); Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir.
2011) (holding remedy would be unavailable if prisoner was incapacitated by stroke
during time when he was required to file grievance, and he was not allowed to file a late
grievance), cert. denied, 132 S.Ct. 168 (2011); Braswell v. Corrections Corp. of America,
419 Fed.Appx. 622, 625 (6th Cir. 2011) (unpublished) (holding defendant must show
mentally disabled plaintiff “was actually capable of filing” a grievance seeking mental
health treatment, including whether he “even knew that he needed mental health
treatment—much less that he needed to communicate that need to CCA personnel,”
whether he “was mentally capable of filing a grievance,” and whether he “sufficiently
understood the detention facility's grievance system” and knew he had to fill out a form);
Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (noting that “one’s personal ability
to access the grievance system could render the system unavailable”; plaintiff could not
write a grievance because his hand was broken); Millner v. Biter, 2016 WL 110425, *6
(E.D. Cal., Jan. 11, 2016) (holding sworn allegations of inability to exhaust because of
mental and physical conditions required a hearing), report and recommendation adopted,
2016 WL 888126, *1 (Mar. 9, 2016); Warner v. Cate, 2015 WL 9480625, *3-5 (E.D.
Cal., Dec. 29, 2015) (holding remedy unavailable because of plaintiff’s mental condition
as documented in medical records), report and recommendation adopted, 2016 WL
696422 (E.D.Cal., Feb. 22, 2016); Hale v. Rao, 768 F.Supp.2d 367, 377 (N.D.N.Y., Mar.
8, 2011) (“Hale's illiteracy and poor understanding of the IGP rendered the grievance
procedure unavailable”; court mentions that plaintiff had a recorded IQ of 71; failure to
exhaust is “excused”); Childers v. Bates, 2010 WL 1268143, *6-7 (S.D.Tex., Jan. 14,
2010) (remedy that required identification of defendants was not “personally available”
to prisoner who could not do so because of a head injury and memory loss), report and
recommendation rejected on other grounds, 2010 WL 1268139 (S.D.Tex., Mar. 26,
2010); Williams v. Hayman, 657 F.Supp.2d 488, 495-97 (D.N.J. 2008) (evidence of the
deaf plaintiff’s inability to communicate in writing or with his counselor raised a factual
issue concerning availability to him of the grievance remedy); Johnson-Ester v. Elyea,
2009 WL 632250, *6-8 (N.D.Ill., Mar. 9, 2009) (where prisoner could not write,
ambulate, or make himself understood, and may have been irrational or delusional at
times, he was not capable of pursuing a grievance; letters from his mother and lawyer
about his condition put officials on sufficient notice they should have assisted him in
filing a grievance; grievance system made no provision for outside persons to use it);
Whitington v. Sokol, 491 F.Supp.2d 1012, 1019 (D.Colo. 2007) (refusing to dismiss for
non-exhaustion where plaintiff alleged he had no remedies because he was mentally
incapacitated and was transferred to a mental institution shortly after the incident he sued
about). Note that this category of unavailability—based on characteristics of the prisoner
rather than the grievance policy or the actions of staff and officials—was not mentioned
in Ross v. Blake. I do not think that means the Court is sub silentio disapproving it; the
facts of Ross did not make it salient.
Counsel representing a plaintiff who has not exhausted for such a reason should consider
adding a claim under the Americans with Disabilities Act and the Rehabilitation Act for
failure to accommodate the client’s disability, e.g., by refusing to allow counsel to
exhaust for the client out of time. However, if the grievance system nominally has
accommodations for the disabled, counsel will have to explain and justify the prisoner’s

13

failure to use them. See Smith v. Sharp, 2010 WL 3609527, *4 (D.S.C., July 23, 2010)
(holding injuries did not justify non-exhaustion where staff assistance was available for
disabled prisoners, and physical inability to file was a recognized basis for allowing late
filing), report and recommendation adopted, 2010 WL 3609492 (D.S.C., Sept. 13, 2010),
aff’d, 409 Fed.Appx. 673 (4th Cir. 2011) (unpublished).

F.

“Proper” exhaustion
1.
Prisoners have to follow the rules of the grievance system. If they don’t use the right
remedy, or if their grievances are rejected for procedural noncompliance, including missing time
limits, their claims are procedurally defaulted. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)
(holding the PLRA “demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.”). The extent to which there can be exceptions
to this “proper exhaustion” rule is addressed in § H, below.
2.
Conversely, if prisoners do follow the grievance rules, they have exhausted; their claims
may not be dismissed for non-exhaustion based on other considerations. Jones v. Bock, 549 U.S.
199, 218 (2007) (holding “it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.”); accord, Ross v. Blake, _______ n.1 (stating “our adherence
to the PLRA’s text runs both ways). As noted below, claims may also not be dismissed for nonexhaustion for failure to follow rules that are not made known to the prisoners. See subsection 6,
infra.
3.
If prisoners’ grievances are addressed on the merits notwithstanding procedural errors
(including missing time deadlines), then prison officials cannot rely on those the procedural errors
in subsequent litigation. Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); Whatley v. Warden,
Ware State Prison, 802 F.3d 1205, 1213-14 (11th Cir. 2015); Hammett v. Cofield, 681 F.3d 945,
947 (8th Cir. 2012); Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011); Maddox v. Love, 655
F.3d 709, 722 (7th Cir. 2011) (“Where prison officials address an inmate's grievance on the
merits without rejecting it on procedural grounds, the grievance has served its function of alerting
the state and inviting corrective action, and defendants cannot rely on the failure to exhaust
defense.”); Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010); Gates v. Cook, 376 F.3d
323, 331 n.6 (5th Cir. 2004); Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); Spruill v.
Gillis, 372 F.3d 218, 234 (3rd Cir. 2004); Ross v. County of Bernalillo, 365 F.3d 1181, 1186
(10th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
4.
YOU MUST FIND OUT ASAP what your client did to exhaust, and what the result was.
If your client did not exhaust, and do so properly, you must either cure the deficiency before
filing suit, or have an argument for why the exhaustion requirement should not be enforced.
5.
Find out what the grievance or other relevant rules were, and just as importantly, the
information the client had about the operation of the grievance system. Inmate handbooks,
orientation presentations, or instructions by prison staff may not be consistent with the formal
regulation or policy directive.

14

6.
There are several recurring situations in which prisoners have not been held to a “proper
exhaustion” standard, e.g.:


Prisoners’ claims cannot be dismissed for failure to comply with rules that are not made
available to them. See Hill v. Snyder, 817 F.3d 1037, 1040 (7th Cir. 2016) (refusing to
find non-exhaustion where officials refused to process a grievance for reasons not in the
grievance policy, and failed to indicate as the policy did require what correction the
plaintiff needed to make in order to proceed); Thomas v. Reese, 787 F.3d 845, 847 (7th
Cir. 2015) (holding remedy unavailable to a prisoner who did not have access to the
grievance policy in a segregation unit; while he had possessed it briefly upon admission,
the PLRA “imposed no duty on Thomas to memorize it during that time”); Hurst v.
Hantke, 634 F.3d 409, 411 (7th Cir. 2011) (refusing to find non-exhaustion where
prisoner violated apparent “secret supplement to the state's administrative code, requiring
that claims of good cause for an untimely filing be accompanied by evidence”), cert.
denied, 132 S.Ct. 168 (2011); Jackson v. Ivens, 2007 WL 2261552 at *4 (3d Cir. 2007)
(unpublished) (“We will not condition exhaustion on unwritten or ‘implied’
requirements.”); Goebert v. Lee County, 510 F.3d 1312 (11th Cir. 2007) (refusing to
dismiss for non-exhaustion where the prisoner had failed to use an appeal procedure not
disclosed in any document available to prisoners).



Prisoners’ claims cannot be dismissed for non-exhaustion where officials have failed to
make clear which remedy is applicable to their problem. Westefer v. Snyder, 422 F.3d
570, 580 (7th Cir. 2005) (refusing to dismiss for non-exhaustion where prison policies
did not “clearly identif[y]” the proper remedy and there was no “clear route” for prisoners
to challenge certain decisions); Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004)
(holding failure to exhaust properly was justified where distinction between grievance
and disciplinary appeal was not made clear and the plaintiff arguably guessed wrong).



Where the actual practice in grievance system diverges from written rules, a prisoner who
complies with the actual practice exhausts. Curtis v. Timberlake, 436 F.3d 709, 712 (7th
Cir. 2005); accord, Greenup v. Lee, 2014 WL 471715, *5-6 (W.D.La., Feb. 5, 2014)
(declining to hold plaintiff to time limits in state regulations where the prison warden
made up his own procedures with different time limits); Smith v. Merline, 719 F.Supp.2d
438, 445 (D.N.J. 2010) (“Courts have recognized that an inmate may satisfy the
exhaustion requirement where he follows an accepted grievance procedure, even where
that procedure contradicts a written policy.”).



Prisoners cannot be held responsible for anomalous situations in which the prison rules
give no direction how to proceed. See Hill v. Snyder, 817 F.3d 1037, 1040 (7th Cir.
2016) (“The administrative exhaustion requirement of § 1997e(a) serves important
purposes but does not invite prison and jail staff to pose guessing games for prisoners.”);
Troche v. Crabtree, 814 F.3d 795, 800-01 (6th Cir. 2016) (holding a prisoner who got no
response to his grievance was not obliged to treat the non-response as a response and
appeal it in the absence of a rule to that effect); Turner v. Burnside, 541 F.3d 1077, 108384 (11th Cir. 2008) (holding a prisoner whose grievance was torn up by the warden was
not required to file another one or grieve the warden’s action; “[n]othing in [the rules]

15

requires an inmate to grieve a breakdown in the grievance process”); Dole v. Chandler,
438 F.3d 804, 811-12 (7th Cir. 2006) (holding a prisoner had exhausted when he did
everything necessary to exhaust but his grievance simply disappeared, and he received no
instructions as to what if anything to do about it); Miller v. Berkebile, 2008 WL 635552,
*7-9 (N.D.Tex., Mar. 10, 2008) (where official refused to process grievances contrary to
policy, prisoners were not required to take steps not prescribed in the policy to get around
him). The Supreme Court may have altered the relevant standard: It noted that “an
administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use. In this situation, some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it.” However, it went on to say: “That is a
significantly higher bar than CRIPA established or the Fourth Circuit suggested: The
procedures need not be sufficiently “plain” as to preclude any reasonable mistake or
debate with respect to their meaning. . . . When an administrative process is susceptible
of multiple reasonable interpretations, Congress has determined that the inmate should err
on the side of exhaustion.” Ross v. Blake, ____ CITE Whether this means prisoners
will be held responsible for guessing wrong about unclear rules remains to be seen.


Prisoners’ claims cannot be dismissed where they have reasonably relied on officials’
representations about how to exhaust or whether an issue is grievable or appealable. See,
e.g., Ross v. Blake, ___ (citing cases where remedy was unavailable because prisoner
was misled); Swisher v. Porter County Sheriff's Dept., 769 F.3d 553, 555 (7th Cir. 2014)
(holding a prisoner told by officials that he need not exhaust may rely on their
statements); Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (where appeal was
screened out with a form stating the decision was not appealable, prisoner was not
required to appeal further); Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006) (citing
erroneous advice to abandon property loss claim and file a grievance in finding special
circumstances excusing failure to exhaust correctly); Pavey v. Conley, 170 Fed.Appx. 4,
8-9, 2006 WL 509447 at *4-5 (7th Cir., Mar. 3, 2006) (unpublished) (stating 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. . . . [P]rison
officials will be bound by their oral representations to inmates concerning compliance
with the grievance process”; plaintiff, who could not write, could reasonably rely on
assurances that his oral complaint would be investigated); Brown v. Croak, 312 F.3d 109,
112-13 (3d Cir. 2002) (holding that if security officials told the plaintiff to wait for
completion of an investigation before grieving, and then never informed him of its
completion, the grievance system was unavailable to him); Miller v. Tanner, 196 F.3d
1190 (11th Cir. 1999) (holding that grievance decision that stated it was non-appealable
need not have been appealed); Johnson v. Van Boening, 2008 WL 4162901 at *4
(W.D.Wash., Sept. 3, 2008) (plaintiff exhausted despite failure to appeal to third and final
level where decisions at first two levels said complaint was non-grievable); Smith v.
Westchester County Dept. of Corrections, 2008 WL 361130 at *3 (S.D.N.Y., Feb. 7,
2008) (plaintiff reasonably believed his claim was not grievable where a Sergeant told
him so). This rule will generally be restricted to cases of explicit staff representations
about the grievance system. See, e.g., Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir.
2002) (holding that warden’s statement that a decision about religious matters rested in
the hands of “Jewish experts” did not excuse non-exhaustion, but was at most a

16

prediction that the plaintiff would lose; courts will not consider inmates’ subjective
beliefs in determining whether procedures are “available”); Jackson v. District of
Columbia, 254 F.3d 262, 269-70 (D.C.Cir. 2001) (holding that a plaintiff who
complained to three prison officials and was told by the warden to “file it in the court”
had not exhausted).

G.

Curing non-exhaustion
1.
This is not a high-percentage move but you should try it anyway under some
circumstances. Many prison grievance systems have provisions for filing late grievances for
good cause, mitigating circumstances, etc. If your client’s grievance was dismissed for
untimeliness or for other procedural error, or if the client did not grieve at all, and if the client has
a plausible excuse, it may be advantageous to advise your client to file a new grievance, invoking
the exception for good cause or mitigating circumstances and explaining what they were.
Prisoners seem to have great difficulty in understanding this notion and you should probably help
them formulate their argument. If the rules allow a representative to file the grievance, do it for
them. The grievance will probably be rejected, but the more your client has done, the better
position you will be in to argue for some flexibility in application of the statute. In addition, it
may help avoid a Catch-22 in the law: some courts have held that a prisoner who did not file a
timely grievance, even for good reason, is obliged to file an untimely one, even if it would seem
that doing so would be a nullity. See, e.g., Bryant v. Rich, 530 F.3d 1368, 1373 (11th Cir. 2008)
(holding prisoner who said he didn’t grieve for fear of assault should have exhausted after
transfer); Mayhew v. Gardner, 2008 WL 4093130 at *4-5 (M.D.Tenn., Aug. 22, 2008); In re
Bayside Prison Litigation, 2008 WL 2387324 at *5 (D.N.J., May 19, 2008); Chavez v. Thorton,
2008 WL 2020319 at *4-5 (D.Colo., May 9, 2008).
2.
Another approach to curing non-exhaustion, on the proper facts, could be a state court
challenge to the procedural rejection of a grievance, whether it is a grievance already filed and
completed by the prisoner, or a new grievance filed and pursued at the instance and with the
assistance of counsel. Suppose a prisoner missed the grievance deadline because he was out of
the jail at a hospital with no access to the grievance process; he did not file a grievance on return
because he understood (maybe from reading Woodford v. Ngo) that it would be ineffective to
exhaust. If counsel instructs the prisoner to file a late grievance, explaining the circumstances
and the fact that his lawyer has advised him that late exhaustion is appropriate under them, and
the late grievance is denied, can counsel then seek judicial review of the grievance denial on state
administrative law grounds? If a state court orders that the grievance be heard, presumably the
exhaustion requirement will be satisfied. I am not aware of any instance in which this has been
tried.

H.

When all else fails: excusing non-exhaustion
There is a large body of law about the circumstances under which prisoners who have not
exhausted may or may not be excused. There are several ways of characterizing such excuses:
1. A nominally available remedy may not be available in fact because of such circumstances as

17



threats and intimidation, see Ross v. Blake, _____ CITE (noting intimidation and threats
can make remedy unavailable); McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015);
Tuckel v. Grover, 660 F.3d 1249, 1252-54 (10th Cir. 2011) (cited with approval in Ross);
Verbanik v. Harlow, 441 Fed.Appx. 931, 933 (3d Cir. 2011) (unpublished); Turner v.
Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (“Remedies that rational inmates cannot
be expected to use are not capable of accomplishing their purposes, and so are not
available”); Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006); Hemphill v. New York,
380 F.3d 680, 688 (2d Cir. 2004);



prison rules that obstruct using the grievance system, see Church v. Oklahoma
Correctional Industries, 2011 WL 4376222, *7 (W.D.Okla., Aug. 15, 2011) (remedy was
unavailable where grievance personnel refused to accept a grievance without a date of
incident, when the complaint was not about an incident but about an ongoing practice),
report and recommendation adopted, 2011 WL 4383225 (W.D.Okla., Sept. 20, 2011);
Iseley v. Beard, 2009 WL 1675731, *6 (M.D.Pa., June 15, 2009) (remedy was
unavailable where copies of documents were required to appeal but there was no copier
access in Restricted Housing Unit; grievance authorities said this is “not our problem”);
Marr v. Jones, 2009 WL 160787 at 5-8 (W.D.Mich., Jan. 22, 2009) (placed in “modified
grievance status” and barred from filing grievance); Cordova v. Frank, 2007 WL
2188587 at *6 (W.D.Wis., July 26, 2007) (denial of postage to indigent to mail a
grievance appeal); Daker v. Ferrero, 2004 WL 5459957 at *2-3 (N.D.Ga., Nov. 24, 2004)
(exclusion of prisoner in “sleeper” status, who remained officially assigned to another
prison, from use of grievance system);



denial of necessary forms, Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016) (where
prisoner was denied forms by persons responsible for providing them, prisoner was not
obliged to go on a “scavenger hunt”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001);
Dale v. Lappin, 376 F.3d 652, 654-56 (7th Cir. 2004) (per curiam); Mitchell v. Horn, 318
F.3d 523, 529 (3d Cir. 2003); and



prisoners’ reliance on the representations of prison officials as to the operation of the
grievance system. Ross v. Blake, ____ CITE (noting official misrepresentation can
make remedy unavailable); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“An
administrative remedy is not ‘available,’ and therefore need not be exhausted, if prison
officials erroneously inform an inmate that the remedy does not exist or inaccurately
describe the steps he needs to take to pursue it.”); Brown v. Croak, 312 F.3d 109, 112-13
(3d Cir. 2002); Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999).

2.
Decisions holding that non-exhaustion may be excused based on “special circumstances”
have been overruled by the Supreme Court’s decision in Ross v. Blake,___ CITE , which rejected
such an extra-statutory exception as contrary to the PLRA’s language and history. See, e.g.,
Brownell v. Krom, 446 F.3d 305, 311-13 (2d Cir. 2006) (reliance on misinformation received
from grievance personnel); Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004) (lack of clarity in
rules leading prisoner to select the wrong remedy). Whether the practical results of such
decisions are invalidated must be assessed case by case, since the facts upon which courts have
found special circumstances will often similar to those supporting a finding of unavailability, see

18

Giano v. Goord, 380 F.3d 670, 677 n.6 (2d Cir. 2004), and in fact some courts have treated the
two concepts as interchangeable or coextensive. See, e.g., Gibson v. Rosati, 2014 WL 3809162,
*7, *8-9 (N.D.N.Y., Aug. 1, 2014) (recommending evidentiary hearing to determine whether
threats made the remedy unavailable, estopped the non-exhaustion defense, or constituted special
circumstances excusing exhaustion); Sandin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y.2008)
(finding that the plaintiff's allegation that a prison official's “refusal to accept or forward
plaintiff's appeals ... effectively rendered the grievance process unavailable to [the plaintiff]” and
would also constitute special circumstances);
3.
Many courts have held that prison personnel may be estopped from raising the exhaustion
defense by their conduct, see Hemphill v. New York, 380 F.3d 680, 689 (2d Cir. 2004); Ziemba
v. Wezner, 366 F.3d 161, 163-64 (2d Cir. 2003); or that of grievance personnel.
In my view, estoppel, at least as most commonly understood, is unaffected by the Supreme Court
decision in Ross v. Blake, CITE Estoppel is a general rule of litigation that is applicable in many
contexts, and is therefore governed by the rule of Jones v. Bock, which holds that the PLRA
exhaustion requirement will not be read to displace the usual practices of litigation unless the
statute says so. 549 U.S. 199, 220-24 (2007) (holding there is no “total exhaustion” rule under
the PLRA, and the usual practice of dismissing only defective claims and allowing others to go
forward should apply to exhausted and unexhausted claims).
There is one qualification to this view. In some cases, courts have held an exhaustion defense
estopped based on the conduct of persons other than the named plaintiff. See, e.g., Cabrera v.
LeVierge, 2008 WL 215720 at *6 (D.N.H., Jan. 24, 2008) (“Defendants' reliance upon
undisclosed rules to reject plaintiff's grievance form necessarily estops them from relying upon
plaintiff's failure to exhaust those remedies as a defense.”); Warren v. Purcell, 2004 WL 1970642
at *6 (S.D.N.Y. Sept. 3, 2004) (holding “baffling” grievance response that left prisoner with no
clue what to do next estopped defendants from claiming the defense). Other courts have rejected
such applications of estoppel. See, e.g., Dillon v. Rogers, 596 F.3d 260, 270 (5th Cir. 2010)
(holding estoppel can only arise from misconduct of named defendants). Estoppel based on the
conduct of persons who are not parties to the litigation is arguably not a usual practice of
litigation that can defeat a defense of non-exhaustion, in which case its application would not
survive Ross v. Blake..
This question may well be academic. While a number of decisions rely on an estoppel theory, I
am not sure I have ever seen one in which the relevant facts could not have been equally well
addressed in terms of the availability of remedies.
4.
You need to find out why your client did not exhaust or did not exhaust correctly in order
to know whether this law is helpful or whether there are facts you can prove that will make it
helpful.

IV.

The physical injury requirement

19

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

A.

Limit on damages, not “actions”
Most circuits hold that this provision bars compensatory damages, leaving nominal and punitive
damages intact. Hutchins v. McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007); Royal v. Kautzky,
375 F.3d 720, 723 (8th Cir. 2004); Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002);Thompson
v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) (citing cases). Two hold that punitives are also
barred. Smith v. Allen, 502 F.3d 1255, 1271-72 (11th Cir. 2007); Davis v. District of Columbia,
158 F.3d 1342, 1348 (D.C. Cir. 1998).

B.

Intangible constitutional rights
1.
Most courts assume that violation of intangible civil liberties is a mental or emotional
injury. Fegans v. Norris, 537 F.3d 897, 908 (8th Cir. 2008) (applying § 1997e(e) to deprivation
of religious diet); Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 599, 605-06 (5th Cir.
2008) (applying § 1997e(e) to claims of restricted religious exercise); Geiger v. Jowers, 404 F.3d
371, 374 (5th Cir. 2005) (per curiam) (“To the extent Geiger seeks compensation for injuries
alleged to have resulted from a First Amendment violation [i.e., deprivation of magazines], the
district court properly determined that his claim is barred by the physical injury requirement of §
1997e(e).”); Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (assuming complaint about
deprivation of religious services must be mental or emotional). The contrary argument, that
liberty is not in one’s head, is little understood or accepted. See Rowe v. Shake, 196 F.3d 778,
781-82 (7th Cir. 1999) (“A prisoner is entitled to judicial relief for a violation of his First
Amendment rights aside from any physical, mental, or emotional injury he may have sustained.”);
Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 108 (D.Mass. 2005) (“the violation of a
constitutional right is an independent injury that is immediately cognizable and outside the
purview of § 1997e(e)”).
2.
Some courts have said (with no basis in the statute) that First Amendment claims are an
exception to the physical injury requirement. Canell v. Lightner, 143 F.3d 1210, 1213 (9th
Cir.1998); Porter v. Caruso, 2008 WL 3978972 at *9 (W.D.Mich., Aug. 22, 2008); Eng v. Blood,
2008 WL 2788894 at *4 (N.D.N.Y., July 17, 2008); see Toliver v. City of New York, 530
Fed.Appx. 90, 93 n.2 (2d Cir. 2013) (unpublished) (stating “even if Toliver is unable to establish
that any of the injuries complained of in this action stemmed from an incident in which he
suffered physical injuries, Toliver may still recover damages for injuries to his First Amendment
rights”).
3.
A few courts get it right, holding generally that claims of constitutional violations
(including First Amendment violations) “are distinct from mental and emotional injuries” and are
simply not within the terms of the statute. King v. Zamiara, 788 F.3d 207, 213-14 (6th Cir.

2015) (noting that damages in such cases must be based on the circumstances of the
violation and not the abstract importance of the right involved), cert. denied, 136 S.Ct.
20

794 (2016); Richardson v. Bauman, 2015 WL 5347557, *2 (W.D.Mich., Sept. 14, 2015)
(applying King v. Zamiara holding to Eighth Amendment claim).
3.
Claims of this nature often result in awards of nominal damages anyway—but they don’t
have to, especially if you get them to a jury. See, e.g., Sallier v. Brooks, 343 F.3d 868, 880 (6th
Cir. 2003) (affirming jury award of $750 in compensatory damages for each instance of unlawful
opening of legal mail); Goff v. Burton, 91 F.3d 1188, 1192 (8th Cir. 1996) (affirming $2250
award at $10 a day for lost privileges resulting from a retaliatory transfer to a higher security
prison); Lowrance v. Coughlin, 862 F.Supp. 1090, 1120 (S.D.N.Y. 1994) (awarding significant
damages for repeated retaliatory prison transfers, segregation, cell searches).

C.

Conditions of confinement
Most courts assume that disgusting or extremely restrictive conditions of confinement that don’t
cause physical injury amount only to mental or emotional injury. See, e.g., Williams v. Hobbs,
662 F.3d 994, 1010-11 (8th Cir. 2011) (holding 14 years’ segregation did not inflict physical
injury and plaintiff was limited to $1.00 nominal damages for each defective review hearing);
Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (barring damages for three years in
segregation); Harper v. Showers, 174 F.3d 716, 719-20 (5th Cir. 1999) (barring damage claims
for placement in filthy cells formerly occupied by psychiatric patients and exposure to deranged
behavior of those patients). The contrary argument, that the objective difference between such
conditions and constitutionally acceptable conditions is compensable independent of mental or
emotional injury, see Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir. 2003) (stating that requests for
damages for loss of “status, custody level and any chance at commutation” resulting from a
disciplinary hearing were “unrelated to mental injury” and “not affected by § 1997e(e)’s
requirements.”); Fields v. Ruiz, 2007 WL 1821469 at *7 (E.D.Cal., June 25, 2007) (holding
prisoner alleging he was confined in a cell with an overflowing toilet for 28 days was not
“seeking compensatory damages for mental or emotional injuries”; for Eighth Amendment
claims, “the issue is the nature of the deprivation, not the injury”), report and recommendation
adopted, 2007 WL 2688453 (E.D.Cal., Sept. 10, 2007), is little understood or accepted. See
Pearson v. Welborn, 471 F.3d 732, 744 45 (7th Cir. 2006) (stating plaintiff sent to segregation for
a year “fails to convincingly explain how damages to compensate him for the difference in
conditions would be anything but recovery for ‘mental or emotional injury’ now barred by the
PLRA); Royal v. Kautzky, 375 F.3d 720, 724 (8th Cir. 2004) (similar to Pearson).

D.

Liberty is not just mental or emotional: Kerman v. City of New York
1.
Litigants in the Second Circuit are better situated to avoid rulings like those cited in the
preceding sections because that court has explicitly recognized the distinction between
deprivation of liberty and mental or emotional injury. In a non-prison Fourth Amendment/false
imprisonment case, it held:
The damages recoverable for loss of liberty for the period spent in a
wrongful confinement are separable from damages recoverable for such
injuries as physical harm, embarrassment, or emotional suffering; even

21

absent such other injuries, an award of several thousand dollars may be
appropriate simply for several hours’ loss of liberty.
Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004).
2.
The Kerman holding has at last begun to be applied by district courts in prison cases. See
Rosado v. Herard, 2013 WL 6170631, *10 (S.D.N.Y., Nov. 25, 2013) (“Herard's motion
mistakenly assumes that, where no physical injury is alleged, the only injury that a plaintiff may
suffer as a result of retaliation is mental or emotional harm. The Second Circuit has held,
however, that intangible deprivations of liberty and personal rights are distinct from claims for
pain and suffering, mental anguish, and mental trauma.” (citing Kerman); claim was for violation
of privacy rights by disclosure of HIV status); Mendez v. Amato, 2013 WL 5236564, *20
(N.D.N.Y., Sept. 17, 2013) (holding claims based on confinement in Involuntary Protective
Custody “involve the loss of such intangibles as liberty through a lack of due process and equal
protection” and thus “fall outside of the physical harm requirement of the PLRA”; citing
Kerman’s distinction between loss of liberty and emotional suffering); Malik v. City of New
York, 2012 WL 3345317, *16-17 (S.D.N.Y., Aug. 15, 2012) (“The Defendants' motion
mistakenly assumes that the only injury that a plaintiff may suffer without a physical injury is
mental or emotional harm. The Second Circuit has held, however, that intangible deprivations of
liberty and personal rights are distinct from claims for pain and suffering, mental anguish, and
mental trauma. See Kerman . . . . Malik's religion and retaliation claims allege deprivations of
personal rights under the First Amendment which do not fall under the PLRA's physical injury
requirement for compensatory damages.”), report and recommendation adopted, 2012 WL
4475156 (S.D.N.Y., Sept. 28, 2012).

E.

Plead it
If your case involves only intangible rights or non-injurious conditions of confinement, you may
as well tackle the issue head-on. Do not plead mental anguish. Plead explicitly that you do not
seek compensatory damages for mental or emotional injury; you seek compensation for loss of
liberty or for the objective conditions to which the plaintiff was subjected, plus punitive and
nominal damages. The court may still ignore the distinction, but you will have given it your best.
Here is what an ad damnum clause might look like under this approach:
WHEREFORE, plaintiff requests that the court grant the following relief:
A. Award compensatory damages against Hearing Officer Smith, by reason of the
denials of procedural due process set out in ¶¶ ___, above, for:
1. The loss of privileges and quality of life attendant upon plaintiff’s confinement for
twelve months in the restrictive conditions of the Special Housing Unit, and the exclusion
from normal prison activities and privileges associated with that confinement, in that he
was confined for 23 hours a day in a cell roughly 60 feet square, and deprived of most of
his personal property as well as the ability to work, attend educational and vocational
programs, watch television, associate with other prisoners, attend outdoor recreation in a

22

congregate setting with the ability to engage in sports and other congregate recreational
activities, attend meals with other prisoners, and attend religious services.
2. The economic loss resulting from plaintiff’s exclusion from paid employment in the
prison during his Special Housing Unit confinement.
Consistently with 42 U.S.C. § 1997e(e), the plaintiff does not seek additional
compensatory damages for mental or emotional injury resulting from the above described
injuries.
B. Award punitive damages against Hearing Officer Smith for his willful and/or reckless
conduct in denying plaintiff the due process of law at his disciplinary hearing.
C. Award nominal damages against Hearing Officer Smith for his violation of the
plaintiff’s constitutional right to the due process of law.

E.

Physical injury
1.
Physical injury is not defined in the statute, and the closest the case law comes to a
definition is “not de minimis”—which does not explain what physical injury is. As a result, the
line between harm that satisfies the statute and harm that does not is quite indefinite in cases that
do not involve outright tissue damage. Compare Thompson v. Secretary, Florida Dept. of
Corrections, 551 Fed.Appx. 555, 556-57 (11th Cir. 2014) (unpublished) (holding allegations of
“headaches, weakness, cold sweats, dizziness, weight loss, numbness in his left arm, and high
blood sugar that caused fainting” represented more than de minimis physical injury since they
constituted “continuing severe physical pain and other symptoms that persisted for an extended
period of time and required medical treatment”); Hinton v. Mark, 544 Fed.Appx. 75, 76 n.2 (3d
Cir. 2013) (unpublished) (holding plaintiff who attempted suicide by overdose of pills and was
hospitalized for two days satisfied § 1997e(e)); Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir.
2006) (holding claim of headaches, cramps, nosebleeds, and dizziness resulting from deprivation
of blood pressure medication “does not fail . . . for lack of physical injury”); Bond v. Rhodes,
2006 WL 1617892 at *3 (W.D.Pa., June 8, 2006) (holding allegation of serious diarrhea resulting
from food tampering satisfied the requirement at the pleading stage); Williams v. Humphreys,
2005 WL 4905109 at *7 (S.D.Ga., Sept. 13, 2005) (holding allegation of 12 pounds weight loss,
abdominal pain, and nausea resulting from denial of pork substitute at meals sufficiently alleged
physical injury); Ziemba v. Armstrong, 2004 WL 78063 at *3 (D.Conn., Jan. 14, 2004) (holding
that allegation of withdrawal, panic attacks, pain similar to a heart attack, difficulty breathing and
profuse sweating, resulting from withdrawal of psychiatric medication, met the physical injury
requirement) with Johnson v. Rawers, 2008 WL 752586 at *5 (E.D.Cal., Mar. 19, 2008) (claim
that medications were administered in a crushed form, causing plaintiff to feel depressed,
anxious, nauseous, and paranoid, did not satisfy the statute), report and recommendation adopted,
2008 WL 2219307 (E.D.Cal., May 27, 2008); Mitchell v. Valdez, 2007 WL 1228061 at *2
(N.D.Tex., Apr. 25, 2007) (holding chronic headaches causing extreme pain do not meet physical
injury requirement); Watkins v. Trinity Service Group Inc., 2006 WL 3408176 at *4 (M.D.Fla.,
Nov. 27, 2006) (holding diarrhea, vomiting, cramps, nausea, and headaches from food poisoning
were de minimis; noting a free person would not have to visit an emergency room or go to a

23

doctor because of them); Ghashiyah v. Wisconsin Dept. of Corrections, 2006 WL 2845701 at *11
(E.D.Wis., Sept. 29, 2006) (holding 20-30 pound weight loss was not a physical injury).
2.
It is not even clear whether actions that approach or amount to torture are compensable
under § 1997e(e). As to stress positions, see Jarriett v. Wilson, 2005 WL 3839415 (6th Cir., July
7, 2005), in which a prisoner’s complaint that he was forced to stand in a two-and-a-half-foot
square cage for about 13 hours, naked for the first eight to ten hours, unable to sit for more than
30 or 40 minutes of the total time, in acute pain, with clear, visible swelling in a portion of his leg
that had previously been injured in a motorcycle accident, during which time he repeatedly asked
to see a doctor. Id. at *8 (dissenting opinion). The appeals court affirmed the dismissal of his
claim as de minimis on the ground that the plaintiff did not complain about his leg upon release or
shortly thereafter when he saw medical staff. Id. at *4. (The decision was initially published, but
Westlaw has removed the opinion from its original citation and replaced it with a note stating that
it was “erroneously published.” Jarriett v. Wilson, 414 F.3d 634 (6th Cir. 2005).) As to electric
shock, see Payne v. Parnell, 2007 WL 2537839 at *4 (5th Cir. 2007), in which the court held that
being jabbed with a cattle prod was not de minimis, despite the lack of long-term damage, in part
because it was “calculated to produce real physical harm.” As to waterboarding, I have
fortunately seen nothing analogous.
3.
There’s a statutory approach that no one seems to have noticed that resolves some of
these definitional problems. The federal criminal civil rights statute, 18 U.S.C. § 242, requires a
showing of “bodily injury” in order to support a sanction of more than one year in prison.
There’s no definition of bodily injury, but some courts have borrowed a definition from other
statutes using that term: “(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain;
(C) illness; (D) impairment of a function of a bodily member, organ, or mental faculty; or (E) any
other injury to the body, no matter how temporary.” 18 U.S.C. §§ 831(f)(5), inter alia. See U.S.
v. Gonzales, 436 F.3d 560, 575 (5th Cir. 2006); U.S. v. Bailey, 405 F.3d 102, 111 (1st Cir.2005);
U.S. v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992) (adopting quoted standard in § 242 cases).
Although ordinarily different legislative language implies a different meaning, I am not sure what
meaningful difference there could be between “bodily” and “physical” injury. If this definition
were applied to the PLRA physical injury requirement, the terms “physical pain” and “illness”
would resolve numerous borderline cases.

V.

Attorneys’ fees restrictions

A.

Rates
1.
The PLRA restricts fees to 150% of the Criminal Justice Act rate. 42 U.S.C. §
1997e(d)(3).
2.
There is a conflict among circuits about what the CJA rate is for this purpose. Compare
Hadix v. Johnson, 398 F.3d 863 (6th Cir. 2005); Webb v. Ada County, 285 F.3d 829, 838-39 (9th
Cir. 2002); Laube v. Allen, 506 F.Supp.2d 969, 987 (M.D.Ala., Aug. 31, 2007) (holding rate set
by Judicial Conference pursuant to its authority to calculate cost of living increases governs
PLRA fees) with Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1998) (holding that a rate
that was authorized but not “implemented” because of budgetary constraints was not the

24

“established” rate); Jackson v. Austin, 267 F.Supp.2d 1059, 1064-65 (D.Kan. 2003) (assuming
the lower funded rates apply).
3.
The rate set by the Judicial Conference and applicable under Hadix, Webb, etc., is not
published or documented in a publicly available source, and counsel must generally contact the
Administrative Office of the Courts to find it out. See Graves v. Arpaio, 633 F.Supp.2d 834, 854
(D.Ariz. 2009) (holding CJA rate was $118, yielding a PLRA rate of $177, during relevant time
period), aff’d on other grounds, 623 F.3d 1043 (9th Cir. 2010). The current and recent CJA rates
are $139 an hour for fiscal years 2011, 2012 and 2013, and $141 an hour commencing January
2014. E-mail, Judy Gallant, Attorney Advisory, Defender Services Office of the Administrative
Office of the Courts, Judy_Gallant@ao.uscourts.gov, to Bonnie Tenneriello of Prisoners’ Legal
Services of Massachusetts (Jan. 13, 2004). UPDATE THIS?
4.
One federal circuit has approved fee multipliers for excellent results under the PLRA.
Kelly v. Wengler, --- F.3d ----, 2016 WL 2957132, *10 (9th Cir. 2016). The court held that the
PLRA restrictions are applicable to the initial computation of the lodestar amount, but the PLRA
simply does not address the second step of the calculation, which reflects factors not subsumed in
the initial figure. Accord, Ginest v. Bd. of Cnty. Comm'rs of Carbon Cnty., WY, 423 F. Supp. 2d
1237, 1241 (D. Wyo. 2006) (25% enhancement); Skinner v. Uphoff, 324 F.Supp.2d 1278, 1287
(D.Wyo. 2004) (25% enhancement).

B.

Applicability
1.
The restrictions apply to fees sought under 42 U.S.C. § 1988, which governs fees in cases
under 42 U.S.C. §§ 1981, 1981a, 1982, 1983, 1985, 1986, or 13981, title IX of Public Law 92318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. §
2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. §
2000cc et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.].
2.
They do not apply to fees sought against federal defendants under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d)(1)(A), or under the federal disability statutes, which have their
own attorneys’ fees provisions. 42 U.S.C. § 12205 (ADA); 29 U.S.C. § 794 (Rehabilitation Act).

C.

Fees’ relation to merits and results
Fees must be “directly and reasonably incurred in proving an actual violation of the plaintiff’s
rights” to be awarded under the PLRA, 42 U.S.C. § 1997e(d)(1)(A), and must be “proportionately
related to the court ordered relief for the violation.” 42 U.S.C. § 1997e(d)(1)(B)(i)
1.
These provisions call into question the ability to recover fees in cases that are settled,
especially where the settlement is not in the form of a judgment enforceable in federal court.
They place a premium on settling fees concurrently with the merits. (The relative dearth of
PLRA attorneys’ fees litigation suggests that most practitioners have figured this out.)
2.
Some courts have held that settled injunctive cases may support fee awards where there
are findings or a record showing that there was a violation of rights, even if not adjudicated. See

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Laube v. Allen, 506 F.Supp.2d 969, 979-80 (M.D.Ala., Aug. 31, 2007) (holding that fees may be
awarded for injunctive settlements to the extent they satisfy the PLRA’s “need-narrownessintrusiveness” requirement and the fees were “directly and reasonably incurred” in obtaining it);
Watts v. Director of Corrections, 2007 WL 1100611 at *3 (E.D.Cal., Apr. 11, 2007) (awarding
fees for “proving an actual violation” notwithstanding that case was settled), amended on
reconsideration on other grounds, 2007 WL 1752519 (E.D.Cal., June 15, 2007); Lozeau v. Lake
County, Mont., 98 F.Supp.2d 1157, 1168 n.1 and 1170 (D.Mont. 2000) (“Defendants cannot
settle a case, promise reform or continued compliance, admit the previous existence of illegal
conditions, admit that Plaintiffs’ legal action actually brought the illegal conditions to the
attention of those in a position to change them and subsequently allege a failure of proof.”).
However, a recent appellate decision overrules one of these, noting it has authorized fees under
the PLRA “only to those inmates who have affirmatively established violations of protected
rights.” Kimbrough v. California, 609 F.3d 1027, 1032 & n.7 (9th Cir. 2010) (overruling Ilick v.
Miller, 68 F.Supp.2d 1169, 1173 n.1 (D.Nev. 1999)). “Affirmatively established” seems to mean
by court finding or defendants’ concession. Whether a litigant can settle a case without such a
record, but make the record in the course of a fee application and obtain fees on the ground it was
proving that violation until the point of settlement, remains to be seen, though Watts finds an
actual violation at the fees motion stage after a record was made previously. The argument for
such an award is supported by the reasoning of Laube v. Allen, which points out that the statute
refers to “proving” a violation rather than “having proved” one. 506 F.Supp.2d at 980. These
questions have not been tested in damage litigation to my knowledge.

D.

Fees’ relation to damages
1.
In cases where only damages are recovered, fees are limited to 150% of the damage
recovery, 42 U.S.C. § 1997e(d)(2), resulting in awards of $1.50 or less where the trier of fact
awards only nominal damages. Wilkins v. Gaddy, 734 F.3d 344, 347 (4th Cir. 2013) (affirming
fees of $1.40 on nominal award); Keup v. Hopkins, 596 F.3d 899, 905-06 (8th Cir. 2010);
Pearson v. Welborn, 471 F.3d 732, 742-43 (7th Cir. 2006); Boivin v. Black, 225 F.3d 36 (1st Cir.
2000).
2.
Up to 25% of money judgments must be used to satisfy attorneys’ fees claims. 42 U.S.C.
§ 1997e(d)(2). Courts have disagreed whether the statutory language “not to exceed” 25% means
that the court must apply 25%, see Keller v. County of Bucks, 2005 WL 1595748 at *1 (E.D.Pa.,
July 5, 2005); Jackson v. Austin, 267 F.Supp.2d 1059, 1071 (D.Kan. 2003), or has discretion to
apply a lesser percentage. See Parker v. Conway, 581 F.3d 198, 205 (3d Cir. 2009) (following
Boesing, affirming application of 18% of judgment to fees); Boesing v. Spiess, 540 F.3d 886, 892
(8th Cir. 2008) (affirming district court’s application of 1% of $25,000 recovery); Siggers El v.
Barlow, 433 F.Supp.2d 811, 822-23 (E.D.Mich. 2006) (applying $1.00 of the recovery to
attorneys’ fees, noting that the jury found that defendants had lied about their conduct and
awarded significant damages as punishment and deterrent); Farella v. Hockaday, 304 F.Supp.2d
1076, 1081 (C.D.Ill. 2004) (“The section’s plain language sets forth 25% as the maximum, not
the mandatory amount.”); see also Kahle v. Leonard, 563 F.3d 736, 743 (8th Cir. 2009) (in
determining percentage, court “should consider: (1) the degree of the opposing parties' culpability
or bad faith, (2) the ability of the opposing parties to satisfy an award of attorneys' fees, (3)

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whether an award of attorneys' fees against the opposing parties could deter other persons acting
under similar circumstances, and (4) the relative merits of the parties' positions,” inter alia).

F.

Fee agreements
The statute does not preclude agreements to pay higher fees than the statute provides. 42 U.S.C.
§ 1997e(d)(4).

VI.

Filing fees

A.

Prisoners must pay the fee even under the in forma pauperis provisions
1.
Ordinarily, they pay from their prison accounts by installments. 28 U.S.C. § 1915(b).
The Supreme Court has said they must pay all fees simultaneously, even though a prisoner could
end up having nearly all his funds taken under that interpretation. Bruce v. Samuels, 136 S.Ct.
627, 631-33 (2016).
2.
Why bother with in forma pauperis status? Unless it is significant to have the client pay
directly, the only reasons I can see (28 U.S.C. § 1915(c, d)) are:


The U.S. Marshals will serve process for free (often late and sometimes incorrectly)



There are savings in preparing the appellate record if necessary.

3.
Prisoners with “three strikes” (three prior dismissals as frivolous, malicious, not stating a
claim, or seeking damages from an immune defendant) cannot use the in forma pauperis
provisions unless they assert imminent danger of serious physical injury, 28 U.S.C. § 1915(g), so
if the client or family can’t pay the fee up front, counsel will have to advance it. See Coleman v.
Tollefson, 135 S.Ct. 1759, 1763-65 (2015) (holding a dismissal becomes a “strike” when it is
entered, not when it becomes final after expiration of appellate options).

B.

Fees and joinder in multi-plaintiff cases
Some courts have held that the logic of the filing fees provisions means either that multiple
plaintiffs must each pay the entire filing fee, or even that prisoners proceeding IFP cannot file
multi-plaintiff complaints notwithstanding the joinder rules. Compare Hubbard v. Haley, 262
F.3d 1194, 1197 (11th Cir. 2001) (holding multi-plaintiff complaints barred) with Hagan v.
Rogers, 570 F.3d 146, 154-56 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir.
2004) (both holding PLRA does not alter joinder rules but each plaintiff must pay a separate fee)
and with In re Prison Litigation Reform Act, 105 F.3d 1131, 1137-38 (6th Cir.1997) (single filing
fee should be divided among multiple plaintiffs); Alcala v. Woodford, 2002 WL 1034080, *1
(N.D.Cal., May 21, 2002) (filing fee can be divided among multiple plaintiffs as they see fit).
1.
This discussion takes place in pro se cases, and much of it is directly related to the
problems of managing such litigation.

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2.
If there is no definitive authority to the contrary in your jurisdiction, and counsel submits
the complaint with a check for one filing fee, it will probably be accepted and the issue may never
come up.

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