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SCOTUS rejects “special circumstances” exception to PLRA’s exhaustion requirement

Ross v. Blake, USSC No. 15-339, 2016 WL 3128839 (June 6, 2016), vacating and remanding Blake v. Ross, 787 F.3d 693 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

The Supreme Court unanimously holds there is no unwritten “special circumstances” exception to the Prisoner Litigation Reform Act’s requirement that a prisoner exhaust administrative remedies before filing a lawsuit.

The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a). The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.” The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated [in the opinion].

(Slip op. at 1).

Blake sued Ross, a prison guard, for violating his civil rights. Blake didn’t file a complaint against Ross using the inmate grievance process, but he did alert Ross’s superiors, thereby triggering an extensive internal affairs investigation. Ross moved to dismiss the suit, alleging Blake failed to exhaust his administrative remedies under § 1997e(a) by failing to file a grievance. The Fourth Circuit held Blake “reasonably believed that he had sufficiently exhausted his [administrative] remedies” because of the internal affairs investigation.

Based on the plain language and history of the statute, the Supreme Court unanimously rejects that approach, saying “[c]ourts may not engraft an unwritten ‘special circumstances’ exception” onto § 1997e(a). (Slip op. at 14-15). But it concludes the facts and submissions in the case raise a question of whether Blake had an “available” administrative remedy, in part because of some “bewildering features” of the state’s grievance process. The Court doesn’t decide that question, and remands the case for consideration of whether Blake had an available remedy to exhaust. (Slip op. at 11-14).

Justice Thomas concurs, but takes issue with the Court’s canvassing of various additional submissions outside the record. Justice Breyer also concurs, noting that administrative law itself recognizes exceptions to exhaustion, and those should also apply to prisoners.

This decision has no direct impact on our circuit or state law. The Seventh Circuit rejected the approach taken by the Fourth Circuit in Pavey v. Conley, 663 F.3d 899 (7th Cir. 2011). Wisconsin has its very own PLRA, and our supreme court has held there are no exceptions to its exhaustion requirement, § 801.02(7)(b), even when pursuing an administrative remedy would be futile, State ex rel. Hensley v. Endicott, 2001 WI 105, ¶¶9-12, 245 Wis. 2d 607, 629 N.W.2d 686. Note, however, that our statute also requires the remedy be “available,” so this opinion at least affirms that in a particular case, the availability of a remedy might be an issue.

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