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New 10th Circuit PLRA decision

Wednesday, May 05, 2004

  • John Boston
  • Prisoners' Rights Project
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The Tenth Circuit has gone over to the dark side of a couple of Forces in a decision from last week: Ross v. County of Bernalillo, --- F.3d ----, 2004 WL 902322 (10th Cir.(N.M.) Apr 28, 2004) (NO. 02-2337).

First, the court buys into the Seventh Circuit's view (expressed in Pozo v. McCaughtry and other cases) that the PLRA exhaustion requirement incorporates the "procedural default" rule of habeas corpus. The court mostly parrots Pozo; there's little value added. Arguably it's dictum, since the court goes on to say that this plaintiff's procedural default doesn't matter, because (again per Pozo) his grievance was considered on the merits, which remits all procedural sins.

The court rejects the Sixth Circuit's reliance in Thomas v. Woolum on ADEA law, which, the Supreme Court has held, makes state time limits for administrative complaints unenforceable in subsequent federal court litigation. The court says that the ADEA (and the Supreme Court Oscar Mayer decision interpreting it) deals with a commencement requirement, not an exhaustion requirement, though it doesn't say why that should make a difference. Also, more cogently, it notes that the ADEA expressly excluded a procedural default rule by stating that state agencies can't require anything more to commence an administrative claim than filing or mailing a written and signed statement of the relevant facts to the appropriate location. (Note 7)

Second, the court buys total exhaustion, joining the Eighth Circuit in doing so. (The Eighth and Tenth are the only circuits that have so far addressed the question. It's pending in the Second Circuit and probably in others.) The court recounts the habeas total exhaustion rule of Rose v. Lundy without explaining why habeas analogies are useful, says the language of the PLRA seems to call for total exhaustion because it refers to "action" rather than "claim," and perfunctorily recites policy reasons supposedly supporting total exhaustion, some of are just general arguments supporting exhaustion and don't specifically support total exhaustion.
The court did not appoint counsel in this pro se case even though it took positions on two issues (procedural default and total exhaustion) as to which the federal courts are deeply divided.

In other significant holdings, they say (*2) that the exhaustion requirement "applies fully when the plaintiff is a federal or state inmate held in a privately operated facility." This is no surprise, but it may be the first time it's been said so squarely in a reported decision.
The court also holds that the plaintiff was not required to follow his informal complaint with a formal grievance because he was successful at the first stage, "and nothing in the record suggests that there was any further relief whatsoever available through MCDC procedures." (*4) Id.: ". . . [P]risoners need not engage in entirely fruitless exercises when no form of relief is available at all." The court quotes Booth and says: "In other words, the modifier 'available' means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief." Here, the court says, "nothing in the record indicates that money damages or any other retrospective relief was available through the prison's grievance process." (*5)

This is not as helpful as it sounds because the court is at great pains to emphasize that there was nothing else prison officials could do (the prisoner complained that there was no shower mat, so they put in a shower mat), and in most cases prison officials will be able to invent something that could have been done that the prisoner should have been seeking through further grievance proceedings.
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