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Overcoming the Exhaustion Requirement of the Prisoner Litigation Reform Act

By Josh Kurtzman – January 7, 2016

Those most in need of a lawyer are frequently the least likely to have access to one. This oft-repeated proverb is particularly true for inmates asserting their constitutional rights and seeking redress for constitutional deprivations at the hands of prison officials. Inmates and their pro bono counsel are often unnecessarily stymied by one particular hurdle when they file suit over prison conditions, the exhaustion requirement of the Prisoner Litigation Reform Act (PLRA). The PLRA requires inmates to use all available means to address their grievances before filing a lawsuit. The PLRA is necessary for judicial economy, but the exhaustion requirement is often overused to curtail the rights of prisoner. This article outlines the exhaustion requirement and defenses pro bono counsel can use to avoid dismissal of the case.

The Shadow of the PLRA
Even if inmates are fortunate enough to have pro bono counsel, very often they must surmount the PLRA and its exhaustion requirement to overcome a motion for summary judgment in state or federal court. 42 U.S.C. § 1997e(a). The PLRA states “a prisoner may not bring a federal suit about prison conditions unless he first has exhausted all available administrative remedies.” Administrative remedies are all the avenues provided to inmates by the prison to rectify a situation and include published grievance procedures, medical grievance procedures, or emergency grievance procedures. The purpose of the exhaustion requirement is to alert the state to the problem in its correctional facility and allow it to take corrective action. See Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).

Lawyers who represent prison officials use the exhaustion requirement to weed out a large portion of inmate lawsuits. This is an understandable tactic and actually fulfills the intent of the lawmakers who enacted the PLRA. However, the exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving. Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir. 2008).

How to Overcome the Exhaustion Requirement
As an inmate’s pro bono counsel, your first task is to determine whether your client exhausted all of his or her administrative remedies. This requirement is most easily satisfied if your client abided by the prison’s grievance procedures and exercised every appeal mechanism available, and if the prison staff addressed the issue unsatisfactorily. For instance, if an inmate files a grievance over poor medical care, disagrees with the response to his or her grievance, and then appeals the grievance response, the exhaustion requirement has likely been satisfied.

Unfortunately, many inmates fail to exercise their administrative remedies for numerous different reasons. If this occurred, as pro bono counsel to an inmate, you must develop a rationale that excuses your client’s failure to abide by a published grievance system. By overcoming an improperly asserted exhaustion defense, a pro bono counsel defends an inmate’s rights and ensures the prison addresses constitutional deprivations. The unavailability of administrative remedies is the one main exception to the PLRA’s exhaustion requirement. The principle of unavailability is best understood by examining (1) the general unavailability of remedies, (2) unavailability due to improper guidance from prison staff on the grievance procedure, and (3) unavailability due to intimidation or fear of reprisal by prison staff.

Unavailability of remedies. Inmates must exhaust their administrative remedies before filing a lawsuit over prison conditions, but this requirement is limited to those remedies that are actually available to the inmate. Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013). To be available, a remedy must be available in fact and not merely in form. For instance, if a prison has a published grievance system but refuses to provide inmates with grievance forms or answer them in a timely fashion, the remedy exists on paper but not in actuality. See Hurst v. Hantke, 634 F.3d 409, 411–12 (7th Cir. 2011); Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir. 2010); Bryant v. Rich, 530 F.3d 1368, 1373 n.6 (11th Cir. 2008). Stated differently, an administrative remedy is not available, and need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or if prison officials fail to provide access to the grievance procedures. Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011). If the prisoner does not file a grievance in a timely manner, the process is not unavailable; rather, it is forfeited. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). However, “when prison officials prevent inmates from using the administrative process . . . the process that exists on paper becomes unavailable in reality.” Id. Consequently, a remedy is unavailable if prison officials fail to provide inmates with the forms necessary to file an administrative grievance “or otherwise use affirmative misconduct to prevent a prisoner from exhausting” his or her administrative remedies. Id.

While medical-related grievances are subject to the exhaustion requirement, remedies often become unavailable because inmates will be unable to grieve poor medical care until after the harm done by the improper care is complete and cannot be undone. For instance, in White v. Bukowski, 2015 U.S. App. LEXIS 15439 (7th Cir. Ill. Sept. 1, 2015), the inmate plaintiff was eight-months pregnant when admitted to the jail and had previously endured pregnancy complications. Id. at *9–10. She made an oral request for additional prenatal care, and prison officials refused to provide it. The plaintiff’s child was born with severe birth defects, and she filed a section 1983 claim alleging deliberate indifference by the prison staff, which was initially dismissed by the district court as a result of her failure to exhaust all available administrative remedies.  

On appeal, the Seventh Circuit reversed and allowed the section 1983 claims to proceed on the merits because it found “if one has no remedy, one has no duty to exhaust remedies.” Id. The court reasoned that because the lack of proper prenatal care had already injured the plaintiff, “[t]here was no remedy within the power of the jail to grant for the baby’s birth defects.” Id. at *7. Moreover, the court recognized that the plaintiff had nothing to gain by filing a grievance after the defendant’s refusal to provide care harmed her and her newborn child. The Seventh Circuit articulated this idea by asking,

what good would it have done her to file a grievance? She wasn’t about to become pregnant again, and in fact had just a few more days in the jail. What could she have gained from filing a grievance? We can’t find an answer.


The inability of prison staff to remedy the plaintiff’s injury led the court to conclude that the exhaustion of remedies affirmative defense failed.

Improper guidance from prison staff. When prison officials erroneously inform an inmate that a remedy does not exist or when prison officials inaccurately describe the steps the prisoner needs to take to pursue it, an administrative remedy is unavailable. Swisher v. Porter Cnty. Sheriff’s Dep’t, 769 F.3d 553 (7th Cir. 2014). In Swisher, jail personnel repeatedly directed an inmate not to file a formal grievance because they were working to address his medical needs. Id. at 554–55. The inmate testified that he made numerous oral complaints to different jail personnel, but they never addressed his concerns over the lack of medical treatment. Id. at 555. In reversing the magistrate’s grant of summary judgment to the prison, the Seventh Circuit noted that “common sense” would have led to a different conclusion. Id. The court felt the different conclusion was so apparent because the jail staff repeatedly told the inmate not to file a grievance and no one ever provided him a grievance form. The court emphasized that if a “jail official invites noncompliance with a procedure . . . or misleads inmates about how to invoke the procedure,” the grievance procedure is effectively unavailable and the inmate has met the exhaustion standard. Id.

Intimidation or fear of reprisal. Courts also deem remedies unavailable if prison officials threaten or intimidate an inmate, thus preventing the inmate “from seeking an administrative remedy by filing a grievance in the prescribed form and within the prescribed deadline.” Kaba v. Stepp, 458 F.3d 678, 685–86 (7th Cir. 2006). For example, in Kaba, the inmate alleged that prison staff denied him grievance forms, intimidated him into not pursuing formal grievances, and physically retaliated against him for attempting to use his administrative remedies. Id. at 685. The plaintiff also alleged that prison staff would provide grievance forms only if he disclosed the nature of the grievance in advance and would not allow him to file a grievance if it pertained directly to their conduct. Id. As a result, the Seventh Circuit found that summary judgment on the issue of exhaustion was inappropriate because the plaintiff’s administrative remedies were unavailable, and the court remanded the case for further proceedings. See also Smith v. Buss, 364 F. App’x 253, 256 (7th Cir. 2010) (remanding case for a Pavey hearing because prison officials imposed additional, artificial requirements on the grievance procedure and failed to provide grievance forms to an inmate in a segregation unit); but see Twitty v. McCoskey, 226 F. App’x 594, 596 (7th Cir. 2007) (affirming summary judgment on the issue of exhaustion where inmate made his complaints orally and in writing but not on a grievance form, thus placing his complaints outside the channels of the grievance procedure and failing “to avail himself of the administrative remedies that existed to redress his medical indifference claim”).

The Implications of Demonstrating the Unavailability of Administrative Remedies
These exceptions to the exhaustion requirement serve two critical purposes. First, they save legitimate civil rights claims from dismissal if an inmate has a justifiable reason for technically failing to follow a prison’s grievance procedure. Second, by raising these exceptions, pro bono counsel ensures that prison staff abide by their published grievance system because they know that if they do not, they will be held accountable by a lawsuit. Our pro bono inmate clients want only two things: the ability to file grievances over legitimate concerns about prison conditions and, if those concerns are ignored or stifled, the ability to address those concerns through a civil rights lawsuit.

Keywords: litigation, young lawyer, pro bono, Prisoner Litigation Reform Act, PLRA, exhaustion of remedies, affirmative defense

Josh Kurtzman is an associate at Schiff Hardin in Chicago, Illinois.

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