Thomas v. Woolum

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 28, 2003
• Docket: 01-3227
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Thomas v. Woolum, et al. No. 01-3227 ELECTRONIC CITATION: 2003 FED App. 0252P (6th Cir.) File Name: 03a0252p.06 Before: MOORE and GILMAN, Circuit Judges; ROSEN, District Judge.* UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COUNSEL _________________ ARGUED: Alphonse A. Gerhardstein, LAUFMAN & DOUGLA S THOMAS, X GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Todd R. - Marti, OFFICE OF THE ATTORNEY GENERAL, Plaintiff-Appellant, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, - - No. 01-3227 for Appellee. ON BRIEF: Alphonse A. Gerhardstein, Paul v. - M. Laufman, LAUFMAN & GERHARDSTEIN, Cincinnati, > Ohio, for Appellant. Todd R. Marti, OFFICE OF THE , ATTORNEY GENERAL, CORRECTIONS LITIGATION SHAWN WOOLUM, - Defendant, - SECTION, Columbus, Ohio, for Appellee. - MOORE, J., delivered the opinion of the court. GILMAN, RICHARD KEPLER; - J. (pp. 25-27), delivered a separate concurring opinion. CHARLOTTE STARCHER; - ROSEN, D. J. (pp. 28-66), delivered a separate opinion - dissenting in part and concurring in the judgment. BILLIE WADDELL, SR., - Defendants-Appellees. - _________________ - - OPINION - _________________ N KAREN NELSON MOORE, Circuit Judge. Congress’s Appeal from the United States District Court passage of the Prison Litigation Reform Act (“PLRA”) was for the Southern District of Ohio at Columbus. an attempt to curb rampant prison litigation in the federal No. 99-01120—James L. Graham, District Judge. courts, but its enactment did not erode the role of the federal courts as vindicators of federal rights. The PLRA explicitly Argued: August 6, 2002 requires an inmate seeking to challenge prison conditions in federal court to exhaust any available administrative Decided and Filed: July 28, 2003 remedies, but the statute’s text does not condition access to the federal courts on satisfying the procedures and timelines

* The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation.

1 No. 01-3227 Thomas v. Woolum, et al. 3 4 Thomas v. Woolum, et al. No. 01-3227

of prison administrators. Thus, this case turns not on whether broken foot, facial lacerations, and massive swelling. Thomas exhaustion is required, the answer to which is well settled, but alleges that Officers Richard Kepler, Charlotte Starcher, and on what exhaustion requires. We answer that question in Billie Waddell, Sr. observed the beating, but they failed to light of Congress’s purpose in passing the PLRA and intervene. That was on November 5, 1997. Supreme Court precedent regarding the exhaustion doctrine’s oft-stated purpose: to give prison officials the first Various investigations followed. Officers Woolum, Kepler, opportunity to address inmate complaints according to their and Waddell, along with the supervising officer who had rules and procedures without letting those timetables dictate suggested Thomas go to segregation and the nurse who the outcomes of § 1983 actions. Accordingly, we hold that so treated Thomas’s injuries, filed “incident reports,” as prison long as an inmate presents his or her grievance to prison regulations require when an employee struggles with an officials and appeals through the available procedures, the inmate or observes such a struggle. Ohio Admin. Code inmate has exhausted his or her administrative remedies, and § 5120-9-02(A)-(B) (1997). Thomas also filed a voluntary a prison’s decision not to address the grievance because it was statement the day after the incident, in which he described untimely under prison rules shall not bar the federal suit. We what had happened and noted, “At some point when I was also hold, however, that when a grievance does not give being beaten while wearing handcuffs I seen officers looking prison officials notice of the nature of the inmate’s complaint, but the only on[e] I knew was Bill[ie] Waddell.” J.A. at 153. the inmate has not met the PLRA’s requirements. We thus AFFIRM the judgment of the district court. In accord with regulations, prison officials then formed a Use of Force Committee to investigate the incident. Having I. BACKGROUND heard additional statements, including another statement from Thomas describing Woolum’s actions, the Use of Force When inmate Douglas Thomas told a supervising officer at Committee issued a report concluding that Woolum had used the North Central Correctional Institution (“NCCI”) that he an inappropriate amount of force; after disciplinary felt stressed out and needed “to lay it down for a few days,” proceedings some time later, Woolum was fired. Under the the officer instructed Corrections Officer Shawn Woolum to administrative code, however, the inmate has no right to view take Thomas down to the segregation unit. J.A. at 84 the report or the evidence used to create it. (Springer Incident Rep.). Woolum, with whom Thomas had exchanged angry words earlier that day, took the opportunity In addition to the prison’s internal administrative inquiry, to retaliate. While walking Thomas down to segregation, Thomas invoked the formal grievance procedure. After being Woolum instructed another inmate who was present to leave transferred to the Allen Correctional Institution (“ACI”), on and began to pummel the handcuffed Thomas. Woolum May 1, 1998, Thomas requested a grievance form in order to struck Thomas from behind, slammed him into a steel door, report the November 5 incident. On or about May 4, 1998, and banged his face against the steel door and cement walls. Thomas filed a Notification of Grievance with NCCI’s Upon their arrival at the holding cell, Woolum slammed institutional inspector. The Notification of Grievance form Thomas into a steel doorframe, picked him up, and slammed requires the prisoner to state “[t]he nature of the Grievance” his face and head again into a cement wall. Woolum then in specific terms. Thomas stated, in part, as follows: stomped on Thomas’s foot. Thomas was in handcuffs during the relevant time and did not resist. As a result of Woolum’s [O]n Nov. 5th while I was at NCCI I was assaulted by actions, Thomas suffered a broken clavicle, broken ribs, a [Corrections Officer] Woolum while I was in handcuffs No. 01-3227 Thomas v. Woolum, et al. 5 6 Thomas v. Woolum, et al. No. 01-3227

and I had several bones broken and have since been statements that Thomas had no right to access — indicated transferred to A.C.I. administratively. Also as you know that other officers might have observed Woolum’s actions and the state troopers & the FBI have conducted not intervened. Thomas learned through these documents, for investigations. . . . The Prison[] Litigation Reform Act & example, that Officer Kepler “heard a loud noise coming from Title 42 of the United States Code require[] that a the sallyport” and “exited the R.I.B. office to investigate,” prisoner must exhaust state remedies prior to litigation. J.A. at 88; that Officer Waddell “walked into the hall [when] Therefore I ask that [Corrections Officer] Woolum be Thomas was being put in a holding cell,” J.A. at 89, which removed and released from his employment with the meant that, according to the Use of Force Committee’s Department of Corrections and that I am awarded 5 conclusions, Waddell might have watched Thomas being million dollars. pushed in a way that caused his head to strike the wall; and that Officer Starcher admitted having seen Thomas in the J.A. at 33. The institutional inspector denied relief, holding cell. From these newly available statements, Thomas apparently because the grievance was not filed within the appears to have concluded that these three officers may have thirty-day period required by Department of Rehabilitation witnessed Woolum’s assault. and Correction (“Department”) policy. The state court action against Woolum and the John Does Thomas pursued his grievance. Following the initial and Jane Does was then dismissed without prejudice on denial, Thomas appealed to the Chief Inspector. Thomas October 20, 1999, and Thomas filed the original complaint in argued that the ACI law library had been provided copies of U.S. District Court on October 22, 1999. This time, Thomas Department policy manuals only in the last thirty to forty-five sued not John Does and Jane Does, but armed with the days, that the thirty-day time limit was a recent change in information obtained in state court discovery, instead sued policy, and that prisoners had not been notified of the change Woolum, Kepler, Starcher, and Waddell. After briefing, the in policy. On October 30, 1998, the Chief Inspector denied district court ruled that Thomas had not exhausted his Thomas relief, determining that the grievance was filed too remedies with respect to Kepler, Starcher, and Waddell. late and that information regarding the Department’s new Thomas’s grievance form, the District Court reasoned, was time-limit policy was available in the law library. “against defendant Woolum,” not the other defendants, J.A. Accordingly, the decision of the Chief Inspector stated, “This at 114, so although the court eventually awarded Thomas Office will take no further action in regard to your complaint $70,000 on his claim against Woolum, it dismissed his claims at this time.” J.A. at 35. against Kepler, Starcher, and Waddell for failure to exhaust. Thomas filed a complaint in state court on November 5, Thomas appealed the dismissal of his claims against the 1998, against Woolum and John Does and Jane Does, other defendants. The defendants now offer two ways in alleging that Woolum applied excessive force and that the which Thomas failed to exhaust his remedies against Kepler, John Does and Jane Does failed to protect Thomas and Starcher, and Waddell: (1) that we may not look at Thomas’s prevent the beating. Thomas claims that during discovery for state prison grievance at all, and (2) that his grievance was the state-court action, he learned that Kepler, Starcher, and insufficient to exhaust his claims. First, the defendants argue Waddell were present during the beating and failed to protect that Thomas failed to exhaust his administrative remedies him. Indeed, statements that officers had filed with their because he did not file his grievance regarding the incident reports and the Use of Force investigation — November 5, 1997 beating until May of 1998, after the thirty- No. 01-3227 Thomas v. Woolum, et al. 7 8 Thomas v. Woolum, et al. No. 01-3227

day period in which the Department will accept grievances prisoner meets this requirement, a federal claim will not be had expired. Second, they argue that his grievance was not barred by the plaintiff’s failure to comply with a state prison’s “against” them, but against Woolum alone, and that he could internal procedural requirements. not bring a suit against them. We review de novo any legal determinations made in dismissing a complaint for lack of A. Exhaustion and the PLRA subject matter jurisdiction, including a determination that the plaintiff did not exhaust administrative remedies, and we By requiring prisoners who challenge the conditions of review any factual findings for clear error. See Cathedral their confinement to exhaust first their state administrative Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 358 remedies, the PLRA grants state prison systems the initial (6th Cir. 2000). We begin with the defendants’ first opportunity to address their internal problems. Whereas parts argument, for before we may determine whether Thomas’s of the PLRA aim to ease the burden that meritless prisoner grievance was sufficient, it is necessary for us to determine lawsuits impose on state law-enforcement officials and the whether we may look at his grievance at all. federal docket, see, e.g., 42 U.S.C. § 1997e(c)(1) (permitting court to dismiss sua sponte prisoner suits that are obviously II. COMPLIANCE WITH STATE PROCEDURAL frivolous); id. § 1997e(f) (authorizing pretrial hearings via REQUIREMENTS telephone or videoconference rather than in-person appearance of the prisoner); id. § 1997e(g)(1) (permitting The Prison Litigation Reform Act prohibits inmates from defendant to waive the right to reply to prisoner actions), challenging prison conditions in federal courts until they have nothing suggests that a goal of the act, and specifically, of the exhausted their available administrative remedies. 42 U.S.C. exhaustion requirement, was to defeat valid constitutional § 1997e(a). There is no doubt that under the PLRA, claims. Rather, the exhaustion requirement simply recognizes exhaustion by prisoners is mandatory. See Booth v. Churner, that unless a prisoner first presents his or her grievance to the 532 U.S. 731, 739 (2001); see also Page v. Torrey, 201 F.3d state prison system, what will often be the most efficient 1136, 1139 (9th Cir. 1999) (recognizing that exhaustion mechanism to remedy a violation of federal law will be lost. requirement applies only to those who are “currently See Porter v. Nussle, 534 U.S. 516, 525 (2002) (“Congress detained,” not former prisoners, and noting agreement of the afforded corrections officials time and opportunity to address Second, Seventh, and Eighth Circuits). The exhaustion complaints internally before allowing the initiation of a requirement ensures that state prison systems will have an federal case.”). The exhaustion requirement is therefore a opportunity to handle prison grievances internally before benefit accorded to state prisons, an opportunity to satisfy recourse to the federal courts becomes available. But those inmate grievances the state wishes to handle internally. exhaustion is not the same as procedural default, and in See Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (“Since similar state administrative contexts, the Supreme Court has these internal problems of state prisons involve issues so held that state timelines cannot foreclose access to the federal peculiarly within state authority and expertise, the States have courts when a petitioner has exhausted his or her state an important interest in not being bypassed in the correction administrative remedies by bringing a grievance to the state of those problems.”). It is “an accommodation of our federal and pursuing that grievance through to the administrative system designed to give the State an initial opportunity to agency’s final ruling. That is, the exhaustion requirement is pass upon and correct alleged violations of its prisoners’ a “termination” requirement, requiring a petitioner to pursue federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971). administrative remedies as far as they exist. So long as a It is not, however, designed to permit state administrative No. 01-3227 Thomas v. Woolum, et al. 9 10 Thomas v. Woolum, et al. No. 01-3227

timelines to handcuff the federal courts in adjudicating cases Our precedent demonstrates only that, in keeping with the involving important federal rights. Accordingly, the PLRA plain language of § 1997e(a), a prisoner does not exhaust his does not contain any language regarding the timeliness of administrative remedies when he fails to commence the grievance filings or the application of procedural default; if grievance process or to run the gamut of potential appeals. In the state forgoes an opportunity to decide matters internally Hartsfield, we dismissed a prisoner’s § 1983 suit because the whether for internal time constraints or any other reason, the disappearance of the prisoner’s grievance form, the lack of PLRA has nonetheless served its purpose, and the prisoner any evidence demonstrating that a grievance was actually may proceed to federal court. filed, and the failure of the prisoner to refile a grievance did not support the argument that the prisoner ever began the Because the purpose of the exhaustion requirement is to grievance process. 199 F.3d at 308-09; see also Jones v. provide states the first opportunity to resolve problems Smith, 266 F.3d 399, 400 (6th Cir. 2001) (affirming dismissal themselves, an inmate who has not pursued available of § 1983 suit because plaintiff prisoner was not vigilant administrative remedies may not yet proceed in federal court. enough in obtaining a grievance form after his initial request Thus, we have clearly held that an inmate does not exhaust for one was denied and because the prisoner never made “any available administrative remedies when the inmate entirely other attempt to obtain a form or to file a grievance without fails to invoke the prison’s grievance procedure, see a form”). In Freeman, the exhaustion requirement was not Hartsfield v. Vidor, 199 F.3d 305, 308-09 (6th Cir. 1999); met because the prisoner jumped the gun, and despite making Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. some attempts to follow the proper grievance procedures, denied, 525 U.S. 833 (1998), or when the inmate filed such a filed a federal complaint before completing all of the stages grievance but “did not appeal the denial of that complaint to of the internal grievance process. 196 F.3d at 645. In Wright the highest possible administrative level,” Wright v. Morris, v. Morris, one prisoner filed an initial grievance, but then 111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522 U.S. 906 failed to appeal the denial of this grievance through the entire (1997); see also Freeman v. Francis, 196 F.3d 641, 645 (6th process. 111 F.3d at 417 n.3; see also Harper v. Jenkin, 179 Cir. 1999). However, we have not previously ruled in a F.3d 1311, 1312 (11th Cir. 1999) (dismissing § 1983 claim published opinion1 that an inmate fails to exhaust his or her because the inmate did not appeal the denial of the grievance, available administrative remedies when the inmate invokes thus failing to give the state a full chance to hear the the prison’s grievance system initially and appeals the denial grievance). These cases thus address the situation in which of that grievance, but is time barred by the prison’s the prisoner is attempting to “bypass the exhaustion administrative procedures. requirement by declining to file administrative complaints and then claiming that administrative remedies are time- barred and thus not then available.” Wright, 111 F.3d at 417 n.3. 1 W e have rendered two unpublished orders in which we held that the Here, however, Thomas filed a grievance in the prison’s exhaustion requirement was no t met be cause of a failure to meet a state’s formal grievance process, and once that grievance was denied, procedural deadlines. However, these unpublished orders have no Thomas appealed as far as he could. He had quite literally precedential value and do not bind this pane l. Jacobs v. Wilkinson, No. exhausted his ability to go any further within the internal 00-3212, 2001 WL 1298979 (6th Cir. Aug. 8, 2001) (Unpub. Order); prison system. There were no more avenues to travel within Qawi v. Steg all, No. 98-2402, 2000 WL 571919 (6th Cir. May 3, 2000) (Unpub. O rder). the state prison system. If Thomas had failed to file, the state No. 01-3227 Thomas v. Woolum, et al. 11 12 Thomas v. Woolum, et al. No. 01-3227

prison system would never have had any opportunity to system before the plaintiff may initiate a federal suit. See 29 review the claim. However, by filing, Thomas gave the state U.S.C. § 633(b) (ADEA); 42 U.S.C. § 2000e-5(c) (Title VII). an opportunity to hear the claim and, by appealing, Thomas In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), the gave the state the opportunity to reconsider its decision. Supreme Court held that an ADEA plaintiff who had Thomas received the benefit of the potential that the state presented his grievance to the governing state agency after the would hear his grievance by waiving the procedural state’s statute of limitations had expired had nonetheless guidelines, which the state could have done if it wanted to satisfied the ADEA’s requirements and could proceed with avoid federal court. The state received the benefit of dealing his federal suit. See Oscar Mayer, 441 U.S. at 753 (“[T]he with the case internally if it so desired. The defendants, grievant is not required by [§ 633(b)] to commence the state however, argue that exhaustion also requires more, and proceedings within time limits specified by state law.”). specifically, that it requires compliance with state Similarly, in EEOC v. Commercial Office Products Co., 486 administrative deadlines. Yet such an outcome would extend U.S. 107 (1988), the Supreme Court held that a Title VII our established precedent beyond its present boundaries. plaintiff’s failure to comply with a state statute of limitations in presenting her grievance to the state agency was irrelevant B. Exhaustion and State Procedural Rules in determining whether she could proceed to federal court. See id. at 123 (“[S]tate time limits for filing discrimination In two similar statutory contexts requiring resort to state claims do not determine the applicable federal time limit.”). administrative procedures, the Supreme Court has specifically held that a plaintiff’s failure to comply with state statutes of For both of those frameworks, the Supreme Court relied on limitations cannot prevent the plaintiff from proceeding to three primary arguments to conclude that failure to comply federal court.2 Both the Age Discrimination in Employment with state time limits could not prevent the plaintiff from Act and Title VII of the Civil Rights Act of 1964 require coming to federal court. All three arguments are applicable plaintiffs to present their grievances in the relevant state in the present case. First, the Court found in both instances that the absence of any mention in the statutes’ text of any 2 requirement of timeliness under state law indicated Analogizing the priso n grieva nce system to other state Congress’s intent that state time requirements could not bar administrative processes is more apt than analogizing it to the process of the federal claims. In both cases, the Court insisted that such habeas relief. The Supreme Court has not placed any procedural default a requirement could be imposed only by explicit mention. hurdles upon the congressionally mandated exhaustion requirements for Title VII and the ADE A, which are chiefly concerned with administrative See Oscar Mayer, 441 U.S. at 759 (“In particular, there is no grievances. Thus, simply because the Supreme Court has crafted a requirement [in the ADEA] that, in order to commence state procedural default rule in the habeas corpus context to shore up potential proceedings and thereby preserve federal rights, the grievant end-runs around the exhaustion requirement does not justify extending must file with the State within whatever time limits are procedural default outside of the sphere of criminal law. There are key specified by state law.”); Commercial Office Prods., 486 U.S. distinctions between the administrative grievance process and the habeas process that warrant disparate ap plicatio ns of a p rocedural default at 124 (“Title VII, like the ADEA, contains no express requirement. The notions of comity that prevent federal courts from reference to timeliness under state law.”). Second, the Court undu ly interfering with the state criminal judicial process in the habeas emphasized that state statutes of limitations should not serve context do not have precisely the same resonance and intensity when as a bar to federal court “‘in a statutory scheme in which federal courts are analyzing the outcome of a non-criminal state laymen, unassisted by trained lawyers, initiate the process.’” administrative process and when § 1983 interposes the federal courts as a vindicator o f federal rights. Oscar Mayer, 441 U.S. at 761 (quoting Love v. Pullman Co., No. 01-3227 Thomas v. Woolum, et al. 13 14 Thomas v. Woolum, et al. No. 01-3227

404 U.S. 522, 527 (1972)); accord Commercial Office Prods., bring a federal claim, apply with equal or stronger force to 486 U.S. at 124. Third, the Court reasoned that state claims under § 1983.3 procedural rules should not be able to prevent a federal court from remedying a harm that Congress sought to prevent. The Thus the only question is whether the language of § 1997e, requirement that plaintiffs first initiate state proceedings gave which prevents prisoners from challenging prison conditions states “a limited opportunity” to resolve discrimination “until such administrative remedies as are available are complaints, and “[i]ndividuals should not be penalized if exhausted,” 42 U.S.C. § 1997e(a), distinguishes the PLRA States decline, for whatever reason, to take advantage of these opportunities.” Oscar Mayer, 441 U.S. at 761; see also 3 Commercial Office Prods., 486 U.S. at 123-24 (recognizing Another, subsidiary argument relied on in the ADEA context that the filing provisions of the ADEA and Title VII are supp orts our conclusion. The Supreme Court reasoned in Oscar Mayer nearly identical and that the same policy considerations apply that, because another provision of the ADEA identified a statute of limitations for claims brought under that Act, the Court could not in each). “attribute to Congress an intent through [2 9 U .S.C. § 633 (b)] to add to these explicit requirements by implication and to incorporate by reference The latter two arguments unquestionably apply with equal into the AD EA the vario us state ag e-discrimination statutes of force in the context of the PLRA. First, the prison grievant is limitations.” Oscar Mayer, 441 U.S. at 762 -63. This structural argument generally the epitome of the layperson, unassisted by a trained applies with similar force in the § 1 983 context. Because 42 U.S.C. § 1988(a) ind icates that the statute of limitations for an action under lawyer, seeking to invoke the legal process. Further, if states § 1983 is to be that provided for by “the common law, as modified by the may not use administrative time limits to defeat an ADEA or constitution and statutes of the State” of jurisdiction, 42 U.S.C. § 1988(a), a Title VII claim, they should not be able to defeat a claim which under Ohio law provides for two years, see Browning v. Pendleton, under the Civil Rights Act of 1871, Congress’s preeminent 869 F.2d 989 , 992 (6th C ir. 198 9) (en banc ), for us to borrow a different, declaration that state officials may not undermine federal law. thirty-day statute of limitations suggested by an administrative agency for its own internal grievance process would attribute to Congress an intent “A major factor motivating the expansion of federal that appears nowhere in the PLRA and is inconsistent with the reasoning jurisdiction through [the predecessor to 42 U.S.C. § 1983] of Oscar Mayer. Congress nowhere suggested an intention “to was the belief of the 1871 Congress that the state authorities incorporate by reference,” Oscar Mayer, 441 U.S. at 762-6 3, state had been unable or unwilling to protect the constitutional administrative deadlines. rights of individuals or to punish those who violated these That Congress has instructed us to borrow a state’s statute of rights.” Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 505 limitations on person al injury ac tions in no way imp lies that we should borrow a state prison’s administrative deadlines. The two deadlines serve (1982) (refusing, absent explicit congressional instruction, to very different purposes; whereas a state legislature’s incentives in setting create an exhaustion requirement for § 1983 suits). If we its perso nal injury statute of limitations will be well balanc ed, a state were to create a rule that permitted states to defeat § 1983 prison’s incentives in setting a time limit on inmate grievances — suits with their administrative time limits, however, and especially if the limit would insulate prison officials from § 1983 suits — thereby let “unable or unwilling” state authorities prevail over would likely lead to shorter and shorter limitations perio ds. Compa re, e.g., Kentucky Corrections Policy 14.6(VI)(J) (requiring aggrieved inmate “the constitutional rights of individuals,” id., we would have to file grievance within five days, and appeal within three days), with undone what Congress wrought. These rationales, which the Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990) Supreme Court relied on to hold that compliance with state (recognizing statute of limitations for § 1983 actions at one year for those statutes of limitations is irrelevant to a plaintiff’s ability to in Kentucky’s general population). Although state officials may have legitimate reasons for imposing deadlines on inm ate grievances, there is no reaso n that a prison’s legitimate interest in, for example, conserving investigative resources must prohibit federal court jurisdiction. No. 01-3227 Thomas v. Woolum, et al. 15 16 Thomas v. Woolum, et al. No. 01-3227

from the ADEA and Title VII in such a way as to permit state requires the plaintiff to finish. In Oscar Mayer, for example, agencies to defeat federal claims. Title VII’s filing the distinction between the ADEA’s requirement and an requirement, after which the ADEA’s was patterned, reads as exhaustion requirement focused not on any purported follows: difference in the two requirements’ power to defeat federal claims, but on the simple fact that 29 U.S.C. § 633(b) In the case of an alleged unlawful employment practice “requires only that the grievant commence state proceedings.” occurring in a State, or political subdivision of a State, Oscar Mayer, 441 U.S. at 759 (emphasis in original). which has a State or local law prohibiting the unlawful Exhaustion, then, provides the flip side of that coin, employment practice alleged and establishing or “requir[ing] the court to delay action until the administrative authorizing a State or local authority to grant or seek phase of the state proceedings is terminated.” Gibson v. relief from such practice or to institute criminal Berryhill, 411 U.S. 564, 574 (1973) (emphasis added). proceedings with respect thereto upon receiving notice Unlike the commencement requirement, which is crafted to thereof, no charge may be filed under subsection [(b)] of give state agencies an opportunity to resolve a problem while this section by the person aggrieved before the expiration federal action proceeds on a parallel track, see Oscar Mayer, of sixty days after proceedings have been commenced 441 U.S. at 757 (recognizing that ADEA set up “concurrent under the State or local law, unless such proceedings rather than sequential state and federal administrative have been earlier terminated, provided that such sixty- jurisdiction”), exhaustion is a termination requirement, day period shall be extended to one hundred and twenty designed to keep federal courts out as long as the state days during the first year after the effective date of such administrative machinery is working to resolve the problem. State or local law. If any requirement for the Even the dissenters in Patsy v. Board of Regents of Florida, commencement of such proceedings is imposed by a who argued that § 1983 included a judicially created State or local authority other than a requirement of the exhaustion requirement for all plaintiffs, agreed that an filing of a written and signed statement of the facts upon exhaustion requirement “does not defeat federal-court which the proceeding is based, the proceeding shall be jurisdiction, it merely defers it.” Patsy, 457 U.S. at 532 deemed to have been commenced for the purposes of this (Powell, J., dissenting). Thus when Congress imposed an subsection at the time such statement is sent by registered exhaustion requirement in the PLRA, but imposed no other mail to the appropriate State or local authority. restrictions, it imposed a termination requirement. See, e.g., United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e 42 U.S.C. § 2000e-5(c). To be sure, as the Oscar Mayer court presume that Congress expects its statutes to be read in indicated, a requirement that a would-be federal plaintiff conformity with this Court’s precedents.”). exhaust state remedies is different from a requirement that the plaintiff commence state proceedings. See Oscar Mayer, 441 With the PLRA, Congress could have required more than U.S. at 761. Accordingly, as Congress requires that an inmate an exhaustion requirement, but it chose not to. Congress exhaust available administrative remedies, 42 U.S.C. could have, for example, required in § 1997e(a) that, “In § 1997e(a), the question is what exhaustion requires. exhausting available administrative remedies, the prisoner shall comply with the prison’s reasonable time limits for In a number of cases, the Supreme Court has suggested that filing grievances. Untimely claims shall be deemed exhaustion is the antonym of commencement. Whereas procedurally defaulted.” Had Congress done so, the present commencement requires the plaintiff to begin, exhaustion case would be much easier. But Congress did not, and the No. 01-3227 Thomas v. Woolum, et al. 17 18 Thomas v. Woolum, et al. No. 01-3227

Supreme Court has instructed that we are not to impose such and they appear together when there is a procedural default requirements when Congress refuses. See Commercial Office “at trial, on appeal, or on state collateral attack,” Edwards v. Prods., 486 U.S. at 124 (“Title VII, like the ADEA, contains Carpenter, 529 U.S. 446, 451 (2000), the Supreme Court’s no express reference to timeliness under state law.”); Patsy, habeas decisions make clear that they are different doctrines 457 U.S. at 514 (reasoning that legislatures, not courts, are to that impose different requirements. The judiciary created the determine “what consequences should attach to the failure to procedural default rule to ensure that courts did not issue comply with procedural requirements of administrative advisory opinions when an independent and adequate state proceedings”); Oscar Mayer, 441 U.S. at 759 (“In particular, ground supported a state court’s judgment, and extended the there is no requirement that, in order to commence state rule into the habeas context only because “a state prisoner is proceedings and thereby preserve federal rights, the grievant in custody pursuant to a judgment” that would be rendered must file with the State within whatever time limits are ineffective by a federal court’s ruling. Coleman, 501 U.S. at specified by state law.”). 729-30 (emphasis in original). This extension of the procedural default rule into the habeas context obviously To reach the contrary conclusion, we would have to impose cannot support its extension into exhaustion of prison a judicially created procedural default rule, going well beyond administrative remedies, as we have never considered a state the exhaustion rule that Congress imposed with the PLRA warden’s decision on a grievance to be the equal of a full and contravening the Supreme Court’s explicit instructions in state-court judgment. Indeed, the Supreme Court’s habeas the Oscar Mayer line of cases. This may be a tempting and decisions instruct that, whereas the procedural default common mistake, but it is a mistake nonetheless, as Coleman doctrine requires a habeas petitioner to comply with v. Thompson, 501 U.S. 722 (1991), shows. In discussing a reasonable state procedural rules, the exhaustion requirement habeas petitioner who filed an untimely notice of appeal in requires that “state prisoners . . . give the state courts one full state court, the Court in Coleman reasons, “A habeas opportunity to resolve any constitutional issues by invoking petitioner who has defaulted his federal claims in state court one compete round of the State’s established appellate review meets the technical requirements for exhaustion; there are no process.” Boerckel, 526 U.S. at 845. This is precisely our state remedies any longer ‘available’ to him.” Id. at 732. holding here. That is, by filing the notice of appeal, even though untimely, the petitioner had exhausted his state remedies. The Thus the only ground for barring a federal § 1983 suit due petitioner failed not because he had failed to exhaust his to an untimely prison grievance is that we would otherwise remedies, but because he had procedurally defaulted them. render prison grievance procedures irrelevant. If a prisoner See id. (“In the absence of the independent and adequate knows that he or she may file a federal suit by filing an state ground doctrine in federal habeas, habeas petitioners untimely grievance, the argument goes, prisoners will have an would be able to avoid the exhaustion requirement by incentive to bypass the prison grievance process by waiting defaulting their federal claims in state court.”) (emphasis until its deadline has passed, filing an untimely grievance, and added). Procedural default is thus distinct from the then proceeding to federal court. Indeed, the Seventh Circuit exhaustion requirement, an additional requirement added on appears to have relied on this policy argument in holding that top of exhaustion. an untimely grievance will bar a § 1983 suit. See Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied, -- Although there may be an “interplay” between the two U.S. --, 123 S. Ct. 414 (2002). However, not only does this doctrines, O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999), argument sweep aside the meaning of exhaustion, it is an No. 01-3227 Thomas v. Woolum, et al. 19 20 Thomas v. Woolum, et al. No. 01-3227

argument that the Supreme Court specifically rejected in Thus the PLRA’s exhaustion requirement distinguishes the Oscar Mayer itself. There is “[n]o reason” why one would PLRA from the interpretations of Title VII and the ADEA, “wish to forgo an available state remedy,” the Court reasoned; but not in a manner meaningful for this case. Exhaustion of “[p]rior resort to the state remedy would not impair the state administrative remedies under the PLRA requires a availability of the federal remedy, for the two are plaintiff not only to bring his or her claim before the state, but supplementary, not mutually exclusive.” Oscar Mayer, 441 to see it through to completion, appealing denials as permitted U.S. at 764. That is, permitting prisoners to file in federal and participating in offered hearings. Exhaustion also court following an untimely grievance in no way creates an requires a plaintiff to bring a grievance to the state before incentive to bypass state remedies, for potential litigants will coming to federal court even when the state has made clear still have every incentive to raise their grievance within the that it will not grant the relief requested. See Booth, 532 U.S. prison’s timelines, because it is in the prison grievance at 736. But just as a state prison system’s decision not to process that inmates will, for most practical purposes, receive grant certain kinds of relief does not strip the federal courts of their swiftest and most effective remedies. Those who bypass their power to grant that relief under § 1983, so too its it will generally do so to their own disadvantage. In fact, the decision not to grant relief in particular cases — whether for policy argument works in favor of the conclusion we reach timeliness or for any other state procedural requirement — here: prison administrators, knowing that their refusal to does not strip the federal courts of their power to do so. entertain grievances filed after certain deadlines will not Thomas brought his grievance to the prison officials’ protect them from subsequent litigation, will more likely take attention, they refused to hear it, and he appealed their advantage of the opportunity to resolve the grievance that the decision through each available level. That prison officials PLRA has granted them.4 did not wish to address his complaint, as they prefer only to address complaints brought before them within thirty days, is irrelevant for our purposes. Thomas gave the state officers an 4 There is no doubt that dea dlines are mutually beneficial for b oth opportunity, which is all that is required. We may not prison administrators and prisoners. The dissenting opinion claims that penalize Thomas simply because the prison does not wish to we view “time limits as m ere trap s for the unwary, and utterly fail[] to acknowledge that procedural deadlines serve the legitimate interests of both sides to a dispute” and the dissent accuses us of ascribing “nefarious motives . . . to prison administrators who seek to enforc e . . . dead lines.” imposing a procedural default mechanism where none was legislated best Diss. Op . at 30 (emp hasis deleted). Then, while mistakenly criticizing the balances these concerns and maintains the mutually advantageous internal majo rity for an assumption it does not make, the dissenting opinion makes grievance system. the equally sweeping and erroneous presumption that absent a procedural Bo th prisoners and prison administrators gain little from prisoners default requirement, prisoners will have “carte blanche . . . to ignore any jumping right to federal court as opposed to utilizing the prison grievance and all adm inistrative time limits” and will purpo sefully default their system first, because internal resolution of disputes gives prisoners more adm inistrative remed ies to see k a trip to federal court. Id. at 32. of an op portunity for quick resolution of their p roblems. Judicial However, the perception that the absence of p rocedural default restraint, exercised by the majority by not grafting a procedural default guidelines in this area will result in prisoners purposefully not filing requirement onto the PLRA, serves both prisoners and prisons here grievances within the deadlines in order to bypass the internal prison because it maintains the potential for federal recourse. As a result, prison system is counterbalanced by the equa lly real concern that in the presence officials will not make grievanc e dea dlines unduly short, as they will of procedural de fault standards, prison administrators will impose shorter establish timelines that are lengthy enough to p ermit ad ministrato rs to and shorter deadlines m easured in ho urs and da ys, because prisoners will evalua te grievances internally so as to avoid a trip to the federal then have no recourse to the fed eral co urts if they miss even one deadline. courthouse. Priso ners in turn will have more time to meet deadlines and Following the dictates of Congress and refraining from judicially prepare their grievances. No. 01-3227 Thomas v. Woolum, et al. 21 22 Thomas v. Woolum, et al. No. 01-3227

hear grievances more than thirty days after the incident. See did not name two additional officers, had not exhausted his Oscar Mayer, 441 U.S. at 761. We therefore hold that a administrative remedies with respect to the two previously prisoner who has presented his or her grievance through one unnamed officers. Hartsfield, 199 F.3d at 308-09. He thus complete round of the prison grievance process has exhausted did not “administratively exhaust his . . . claim as to each the available administrative remedies under 42 U.S.C. defendant associated with the claim.” Burton v. Jones, 321 § 1997e(a), regardless of whether the prisoner complied with F.3d 569, 574 (6th Cir. 2003). Although an inmate need not the grievance system’s procedural requirements. identify each officer by name when the identities of the particular officers are unknown, Thomas here knew one on- III. EXHAUSTION OF CLAIMS looking officer’s identity and knew that others had watched the beating as well. Accordingly, his grievance form should Although a grievance that is untimely under prison rules have noted either the other officers’ names or the fact that still gives state prison officials an opportunity to address an other officers had seen the beating. inmate’s complaints, a grievance that does not give officials notice of the nature of the inmate’s grievance does not afford Thomas suggests that his deficient grievance the officials the opportunity the PLRA requires. Thomas notwithstanding, he satisfied the exhaustion requirement by argues that between his official grievance form and his participating fully in the prison’s internal investigation. cooperation with the prison’s Use of Force investigation, in Indeed, the day after the attack, Thomas told prison officials which he specifically mentioned the presence of other officers that Officer Waddell and other officers had witnessed Officer who failed to protect him, he gave prison officials sufficient Woolum’s actions, a notification that — when combined with notice for them to address his concerns in the grievance Thomas’s subsequent filing of an official grievance regarding process. True though that may be, our cases require more. the incident — would seem to accomplish many purposes of Because Thomas made no reference to the issues involved in the PLRA’s exhaustion requirement. However, it is no longer his failure-to-protect claim in his grievance, we must find that sufficient for an inmate simply to give prison officials notice he failed to exhaust his administrative remedies with respect of the complaint by cooperating with other investigations, as to the claims against Kepler, Starcher, and Waddell. was sufficient in such pre-PLRA “substantial compliance” cases as Wolff v. Moore, 199 F.3d 324, 329 (6th Cir. 1999). Thomas’s grievance form does not offer the kind of In our post-PLRA cases we have emphasized that “the information that our precedent requires for exhausting his exhaustion requirement in § 1997e(a) is directed at exhausting claims against Kepler, Starcher, and Waddell. Thomas’s the prisoner’s administrative remedies,” and that Use of Force grievance mentions neither the defendants themselves nor any or other investigations do not satisfy the PLRA’s dictates. facts suggesting that officers other than Woolum knew Freeman, 196 F.3d at 644. In determining whether the anything of the incident. Thomas was indisputably aware of inmate has exhausted his or her remedies, we thus look to the the other officers’ presence at the time, as he mentioned them inmate’s grievance, not to other information compiled in in the incident report he filed the day after the beating, so this other investigations. Although an inmate grievance might case falls under the rule of Curry v. Scott, 249 F.3d 493 (6th conceivably specifically incorporate or otherwise refer to Cir. 2001), which requires that “a prisoner file a grievance information previously obtained, it must do so in a manner against the person he ultimately seeks to sue,” id. at 505. that points prison officials to the relevant materials. That is Similarly, in Hartsfield v. Vidor, we ruled that a prisoner who not what happened here. named three officers in his grievance, and who could have but No. 01-3227 Thomas v. Woolum, et al. 23 24 Thomas v. Woolum, et al. No. 01-3227

Finally, Thomas suggests that our requirement that prison IV. CONCLUSION grievances be filed “against” potential defendants, Curry, 249 F.3d at 505, mistakes the prison grievance process as a type Had Thomas’s grievance pointed prison officials to the of civil action. Grievances are not filed “against” individual alleged presence of other officers when Officer Woolum was persons, Thomas argues, but are rather filed regarding certain beating him, it would have given the officials a sufficient problems; accordingly, a grievance should be understood to opportunity to investigate the other officers’ actions. The exhaust remedies so long as it alerts prison officials to a prison may have declined that opportunity, as it prefers to problem to be investigated, whether or not it identifies address only those grievances filed within a particular time specific individuals. Sims v. Apfel, 530 U.S. 103 (2000), limit. But the prison would have been given the opportunity, supports Thomas’s position. In Sims, a Social Security case, which is all that § 1997e(a) requires, so we hold that the the Supreme Court ruled that even when a party is required to timeliness of an inmate’s grievance is irrelevant under the exhaust administrative remedies, the plaintiff is not PLRA’s exhaustion requirement. Because Thomas’s necessarily required to exhaust each specific issue that he or grievance did not contain the necessary information, however, she intends to bring to federal court. See id. at 112 (plurality); it did not give prison officials the requisite opportunity. We id. at 113 (O’Connor, J., concurring). Rather, “the thus conclude that Thomas failed to exhaust his desirability of a court imposing a requirement of issue administrative remedies with respect to Officers Kepler, exhaustion depends on the degree to which the analogy to Starcher, and Waddell, and we AFFIRM the district court’s normal adversarial litigation applies in a particular judgment. administrative proceeding.” Id. at 109 (majority). Applying the reasoning of Sims to the problem-solving mechanism of an inmate grievance procedure, a court might well conclude that the process is “inquisitorial rather than adversarial,” id. at 111 (plurality), and thus that a court should not impose an issue-exhaustion requirement on top of the PLRA’s general exhaustion requirement. On that view, an inmate’s grievance informing prison officials that he had been beaten by an officer would be sufficient to notify the prison of claims arising out of that beating, including, perhaps, a claim that other officers had witnessed the event but failed to intervene. However, we are bound by our decision in Curry, which apparently found the Sims reasoning inapplicable in the prison context and which thus requires prisoners to file grievances “against” specific defendants. See Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002) (noting that one panel cannot overrule a prior panel’s published decision). Thomas is thus subject to Curry’s standards; as his grievance contained no information relevant to his claims against Kepler, Starcher, and Waddell, we conclude that he has not exhausted his claims with respect to those defendants. No. 01-3227 Thomas v. Woolum, et al. 25 26 Thomas v. Woolum, et al. No. 01-3227

_________________ concern “is counterbalanced by the equally real concern that in the presence of procedural default standards, prison CONCURRENCE administrators will impose shorter and shorter deadlines _________________ measured in hours and days, because prisoners will then have no recourse to the federal courts if they miss even one RONALD LEE GILMAN, Circuit Judge, concurring. I deadline.” (Maj. Op. at 19 n.4) These competing policy fully concur in Judge Moore’s opinion. My purpose in considerations, however, are better reserved for Congress to writing separately is to acknowledge the difficulty of the issue resolve than for us to adjudicate. before us and to explain why I believe that Judge Rosen’s opinion is less persuasive in interpreting what it means to In deciding this issue, the two factors that ultimately exhaust “available administrative remedies” under the PLRA. persuade me are that (1) Congress could have, but did not, specify that a prisoner’s failure to comply with the prison’s To begin with, I must confess that I find the question of reasonable time limitations would result in a procedural whether a prisoner must comply with the prison’s default (see Maj. Op. at 16-17), and (2) Supreme Court administrative deadlines as a precondition to filing a § 1983 precedents continue to distinguish between the concepts of action in federal court to be extremely difficult. I have indeed exhaustion of remedies and procedural default. Congress, if flip-flopped on this issue during the course of extensive it desires a different outcome, is clearly able to make an deliberations with my two erudite colleagues, no doubt to the appropriate amendment to the PLRA. Judge Rosen or I might frustration of them both. The assertiveness of Judge Rosen’s have drafted the current statute differently, but we are not opinion is more than sufficient to give anyone pause, legislators. As a judge on the court of appeals, I do not feel especially his accusations that we have issued an “invitation that I should attempt to alter the PLRA as it presently stands. to chaos and delay” (Dissenting Op. at 30), “abandon[ed] all notions of judicial restraint” (id. at 31), provided “a classic Judge Rosen obviously subscribes to a different analysis. example of judicial meddling” (id. at 31), and engaged in In his opinion, the concept of procedural default is built into “thinly-veiled policymaking” (id. at 32). In the end, however, the concept of exhaustion of remedies. But the Supreme I find that these sweeping generalizations generate more heat Court cases that he relies on—Boerckel, Carpenter, and than light, and that his position is actually the more “activist” Coleman—do not, in my opinion, support his analysis. in an expansive interpretation of the PLRA beyond Congress’s language and the Supreme Court’s precedents. Judge Rosen, for example, quotes the Supreme Court’s statement in O’Sullivan v. Boerckel, 526 U.S. 838 (1999), that The heart of the problem is that the failure to apply the “we ask not only whether a prisoner has exhausted his state concept of procedural default to a prison’s administrative remedies, but also whether he has properly exhausted those deadlines will, in cases such as the one before us, obligate the remedies.” Id. at 848 (emphasis in original). If procedural federal courts to deal with the § 1983 issues without the default were a necessary component of exhaustion in the benefit of the state’s administrative consideration on the habeas corpus context (rather than an independent, merits. This makes the issue difficult for me because, were I complementary doctrine), this sentence would make no sense. a legislator, I would think it sound policy to require prisoners The Supreme Court would instead have simply stated: “We to comply with reasonable administrative deadlines. On the ask whether a prisoner has exhausted his state remedies.” other hand, as pointed out by Judge Moore, this legitimate What the Supreme Court actually said, however, is that “we No. 01-3227 Thomas v. Woolum, et al. 27 28 Thomas v. Woolum, et al. No. 01-3227

ask not only whether a prisoner has exhausted his state ______________________________________________ remedies, but also whether he has properly exhausted those remedies.” Id. (first two emphases added; third emphasis in CONCURRING IN PART, DISSENTING IN PART original). Basic English grammar, not “adroit ______________________________________________ deconstruction” (Dissenting Op. at 47), therefore compels the conclusion that, under the Supreme Court’s precedents, ROSEN, District Judge, dissenting in part and concurring exhaustion and procedural default are two distinct concepts. in the judgment. Carpenter and Coleman make the same differentiation. Carpenter, 529 U.S. 446, 453 (2000); Coleman, 501 U.S. With one bold stroke, the lead opinion stands much of this 722, 732 (1991). Circuit’s existing precedent on administrative exhaustion on its head, holding that administratively established filing In the final analysis, my policymaker heart yearns for the deadlines mean nothing in a prisoner’s effort to exhaust his result proposed by Judge Rosen, but my judicial head tells me remedies before commencing a § 1983 suit. By permitting that Judge Moore has reached the correct result. Our legal inmates to thumb their noses at such time limits, the lead system requires us to heed the words of Congress as opinion thoroughly disables prison grievance systems as interpreted by applicable Supreme Court precedent. Until meaningful tools for dispute resolution — a result deemed Congress changes the law or the Supreme Court corrects our unacceptable by every other Circuit that has addressed the interpretation of its language, I am unwilling to read the timeliness issue to date. More importantly, this result is concept of procedural default into the PLRA. wholly at odds with Congress’s intent in enacting the Prison Litigation Reform Act (“PLRA”) and amending 42 U.S.C. § 1997e(a) to establish a strict, mandatory exhaustion requirement for prisoner § 1983 suits. Still worse, however, is that this departure from precedent and congressional intent is utterly unnecessary to our ultimate judgment in this case. The District Court plainly must be affirmed here, on the obvious ground that Plaintiff/Appellant Douglas Thomas failed to exhaust his remedies against those Defendants/Appellees who were not even mentioned in his prison grievance. The lead opinion ultimately reaches precisely this conclusion, and I fully concur on this point. But first, the lead opinion goes out of its way to rewrite the law on a different issue, notwithstanding its lack of bearing upon the outcome of this case. Rather, the mischief is wholly prospective — and, I might note, crafted in such a way as to seemingly insulate it from further review. The issue upon which I part company with my colleagues is easily stated — whether an inmate presumptively must No. 01-3227 Thomas v. Woolum, et al. 29 30 Thomas v. Woolum, et al. No. 01-3227

comply with the procedural aspects of a prison’s grievance respond by completing the process, even though the relevant system, including its time limits, in order to satisfy the deadlines might long since have passed. In short, much of mandatory exhaustion requirement of § 1997e(a). This issue our existing precedent on prisoner exhaustion has been already has been settled in this Circuit. We have held, for rendered meaningless, and the courts in this Circuit have been example, that an inmate does not exhaust his administrative relegated to the role of providing legal advice to prisoners on remedies unless and until he pursues all avenues of appeal the proper filing of grievances. that are available within the prison grievance system. See, e.g., Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Indeed, this invitation to chaos and delay must, of White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Wright necessity, be a two-way street. If prisoners no longer are v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522 bound by deadlines, the same surely must be true for prison U.S. 906 (1997). Such a failure to appeal is a species of administrators. Although prison regulations often call for procedural default, see O’Sullivan v. Boerckel, 526 U.S. 838, decisions to be reached within a specified time frame, 848, 119 S. Ct. 1728, 1734 (1999), legally indistinguishable administrators presumably may now withhold their rulings from the sort of procedural default at issue in this case — indefinitely, and then argue that any § 1983 suit is premature namely, a prisoner’s failure to meet an administrative filing until a decision eventually is forthcoming. In the event that deadline. a court might conclude differently, prison administrators could simply rewrite their regulations to remove any time Yet, the lead opinion explains that this case is different, limits upon their decisionmaking process. We could hardly because it involves a late filing at the threshold of the complain, given the lack of significance that the lead opinion administrative process, rather than a failure to proceed to the places upon administrative deadlines, and given the nefarious next level of this process. And, indeed, this is a distinction — motives it ascribes to prison administrators who seek to an inmate who fails to pursue an administrative appeal has enforce such deadlines. exhausted at least some available remedies, while a prisoner whose grievance is properly rejected as untimely (as Here lies the root of my disagreement with the lead opinion happened here) has exhausted none. Nevertheless, in the — it seemingly views time limits as mere traps for the Alice-in-Wonderland world conjured up in the lead opinion, unwary, and utterly fails to acknowledge that procedural the latter course now is favored over the former in this deadlines serve the legitimate interests of both sides to a Circuit. dispute. This undoubtedly is why such limits are a standard feature of virtually every dispute resolution process of which Or is it? In cases which formerly were controlled by our I am aware. As a quid pro quo for their strict and uniform procedural default decisions, the lead opinion now provides adherence to these deadlines, parties are assured that their an open-ended opportunity for inmates to cure any sort of dispute will be promptly resolved, and that justice will not be procedural defect that a court might identify. After all, effectively denied through interminable delay. This interest dismissal in such cases is without prejudice, see Brown v. is particularly compelling here, where the core purpose of Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 § 1997e(a)’s exhaustion requirement is to ensure that prisoner U.S. 833 (1998), and, after today, inmates are no longer grievances are resolved administratively to the greatest extent bound by administrative deadlines of any sort. Consequently, possible. See Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct. if a prisoner’s case is dismissed for failure to proceed through 983, 988 (2002). While I do not question the sincerity of the all steps of the administrative process, the inmate now can lead opinion’s view that this purpose is served by No. 01-3227 Thomas v. Woolum, et al. 31 32 Thomas v. Woolum, et al. No. 01-3227

disregarding filing deadlines, I believe that this judgment first time today. Never mind that there is nothing inherently rests upon a fundamental misapprehension of the importance unreasonable or suspicious about the 30-day filing limit of time limits to the effective and orderly functioning of any imposed by Ohio prison officials in this case. Never mind dispute resolution system. that prisoner Thomas has not identified any obstacles he confronted in meeting this deadline. Never mind that, even As a result, today’s decision is a classic example of judicial if he had, we could readily address this concern through case- meddling, with this panel substituting its own policy specific equitable tolling of the filing period, as opposed to judgment in place of the far different one made by Congress the lead opinion’s carte blanche for any and all inmates to in enacting § 1997e(a) in its present form. The statute ignore any and all administrative time limits. requires that prisoners must exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). As even In my view, it is precisely this sort of thinly-veiled the lead opinion concedes, the prisoner in this case, Douglas policymaking that leads Congress to ever more curtail our Thomas, exhausted these remedies only in the most technical judicial discretion. Indeed, Congress did just that in sense — once his grievance was rejected as having been filed amending § 1997e(a) through the PLRA, enacting a nearly five months past the relevant deadline, he had mandatory provision which eliminated the courts’ prior exhausted all of the remedies that were then “available” to “discretion to dispense with administrative exhaustion” and him. Yet, we have sensibly recognized — and all other imposed “an obviously broader exhaustion requirement.” Circuits that have considered the matter have agreed — that Booth v. Churner, 532 U.S. 731, 739, 741, 121 S. Ct. 1819, “it would be contrary to Congress’s intent” to permit a 1824, 1825 (2001). Upon reviewing this legislation, the prisoner to procedurally default his grievance and then claim Supreme Court concluded that Congress “may well have that administrative remedies no longer are “available.” thought we were shortsighted” in prior decisions which Wright, 111 F.3d at 417 n.3; see also Pozo v. McCaughtry, tended to downplay the value of administrative exhaustion. 286 F.3d 1022, 1023-24 (7th Cir.), cert. denied, 123 S. Ct. Booth, 532 U.S. at 737, 121 S. Ct. at 1823. If so, Congress 414 (2002); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. surely will be chagrined by today’s result, which opens the 1999); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995). courts to even more claims that have never been addressed on This plain, pragmatic reading of § 1997e(a) is wholly at odds the merits in a prison’s administrative grievance system.1 with the lead opinion’s effort to distinguish between an Accordingly, I dissent from the Court’s ruling on the inmate’s “mere” procedural default and a failure to exhaust timeliness issue, and concur only in its judgment affirming his remedies. the District Court. To what end does the lead opinion abandon all notions of judicial restraint and overturn this settled understanding of administrative exhaustion? Presumably, the lead opinion means to ensure that future prisoner § 1983 suits do not fall victim to the cunning device of administrative filing deadlines. Never mind that there is no record before us of any large-scale, or even occasional, difficulty in complying with 1 such deadlines — fully seven years after Congress amended I doubt that Congress (or prison officials) will be much consoled by the lead opinion’s assurance that it has exercise d “[j]udicial restraint.” § 1997e(a) in 1996, we publish a decision on this issue for the (Lead Op. at 19-20 n.4.) To say it does not make it so. No. 01-3227 Thomas v. Woolum, et al. 33 34 Thomas v. Woolum, et al. No. 01-3227

I. provision, in contrast, entirely eliminates this judicial discretion, and instead mandates strict exhaustion in every I begin with what seems to me an obvious point — that the case: decision upon which the lead opinion principally relies, the decades-old Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 No action shall be brought with respect to prison S. Ct. 2066 (1979), is not the first place one would look for conditions under section 1983 of this title, or any other guidance in construing the exhaustion requirement of Federal law, by a prisoner confined in any jail, prison, or § 1997e(a). Among myriad other grounds for distinction, to other correctional facility until such administrative which I will return later, Oscar Mayer deals with a remedies as are available are exhausted. requirement of commencement rather than exhaustion, and addresses a detailed statutory scheme with a number of 42 U.S.C. § 1997e(a). Through this enactment, Congress unique features — e.g., concurrent state and federal “invigorated the exhaustion prescription,” thereby seeking “to administrative jurisdiction, an express federal statute of reduce the quantity and improve the quality of prisoner suits.” limitations, and an explicit definition of what constitutes Porter, 534 U.S. at 524, 122 S. Ct. at 988. While the pre- “commencement” of state proceedings — that have no PLRA version of § 1997e invited judges to assess the efficacy counterpart in the statute at issue here. Thus, I find it more of a prison’s dispute resolution processes, the current statute useful to start with the language of § 1997e(a) itself, our own decidedly does not “prescribe[] appropriate grievance direct pronouncements on the meaning of this provision, and procedures or enable[] judges, by creative interpretation of the the views of other Circuits on this subject. In the event that exhaustion doctrine, to prescribe or oversee prison grievance this survey does not settle the issue, I find it instructive to systems.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th review the Supreme Court’s treatment of a similar statutory Cir. 2001). exhaustion requirement imposed upon state prisoners — namely, the requirement that they “exhaust[] the remedies Given the clear command of § 1997e(a) in its present form, available in the courts of the State,” 28 U.S.C. the lead opinion properly observes that “the question is what § 2254(b)(1)(A), before seeking habeas corpus relief in exhaustion requires.” (Lead Op. at 15.) Whatever the precise federal court. All of these sources, in my view, point contours of this requirement, it plainly is procedural in nature: unmistakably toward the conclusion that exhaustion under § 1997e(a) entails compliance with a prison’s administrative While the modifier “available” requires the possibility of procedures, including filing deadlines. some relief for the action complained of . . . , the word “exhausted” has a decidedly procedural emphasis. It Any analysis of § 1997e(a) necessarily must begin with the makes sense only in referring to the procedural means, language of the statute itself. As noted, prior to its 1996 not the particular relief ordered. It would, for example, amendment through the PLRA, the statute’s call for be very strange usage to say that a prisoner must exhaustion was largely discretionary — courts were “exhaust” an administrative order reassigning an abusive authorized to stay an inmate’s § 1983 suit for up to 180 days guard before a prisoner could go to court and ask for while the prisoner exhausted such available administrative something else; or to say (in States that award money remedies as were “plain, speedy, and effective,” but only if damages administratively) that a prisoner must “exhaust” the court deemed this “appropriate and in the interests of his damages award before going to court for more. How justice.” 42 U.S.C. § 1997e(a)(1) (1994 ed.). The current would he “exhaust” a transfer of personnel? Would he No. 01-3227 Thomas v. Woolum, et al. 35 36 Thomas v. Woolum, et al. No. 01-3227

have to spend the money to “exhaust” the monetary relief standards of § 1997e(a) or, alternatively, that any further given him? It makes no sense to demand that someone efforts at exhaustion should be excused as futile. This Court exhaust “such administrative [redress]” as is available; disagreed: one “exhausts” processes, not forms of relief, and the statute provides that one must. Even if plaintiff did file an initial grievance . . . , he was required to continue to the next step in the grievance Booth, 532 U.S. at 738-39, 121 S. Ct. at 1824. process within the time frame set forth in the regulations if no response is received from prison This Circuit’s precedents reflect a similar understanding of officials or if the prisoner is not satisfied with the the nature of § 1997e exhaustion. As noted at the outset, we response. We have previously held that an inmate cannot have held on several occasions that a prisoner must fully simply fail to file a grievance or abandon the process pursue all administrative processes to completion, including before completion and claim that he has exhausted his all available avenues of internal appeal, in order to satisfy remedies or that it is futile for him to do so because his § 1997e(a) and commence a § 1983 suit. See, e.g., Hartsfield grievance is now time-barred under the regulations. v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999); Freeman, 196 Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert. F.3d at 645; White, 131 F.3d at 595. In so ruling, we have denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 190 consistently taken note of the filing deadlines that govern (1997). Plaintiff should have either refiled his grievance these administrative processes, and have cautioned inmates to when he was informed . . . that the prison had no record pay heed to these time limits. of the grievance or provided [a] receipt[] . . . so he could have proceeded with an [administrative] appeal. We In Hartsfield, for example, the plaintiff prisoner, Napoleon find, therefore, that plaintiff did not exhaust his Hartsfield, complained that he had been unlawfully placed in administrative remedies . . . . top-of-bed restraints for eighteen hours. Hartsfield contended that he had submitted an administrative grievance a day after Hartsfield, 199 F.3d at 309 (emphasis added); see also the incident, but he produced no evidence of this filing. Freeman, 196 F.3d at 645 (recognizing that the plaintiff Instead, the record disclosed that Hartsfield had written to the prisoner “made some attempts to go through the prison’s grievance coordinator about two weeks later, stating that he grievance procedures,” but ordering dismissal because the had not been provided with a receipt for or response to his plaintiff “filed his federal complaint before allowing the grievance. The grievance coordinator responded the next day administrative process to be completed”). that no grievance had been received, and that Hartsfield would have to refile. He chose instead to bring a § 1983 suit, As noted in Hartsfield, we first endorsed this rule of and to pursue an administrative appeal only after a Magistrate complete exhaustion in Wright, 111 F.3d at 417 n.3. One of Judge had instructed the parties to brief the issue of the plaintiff prisoners in Wright had filed an administrative exhaustion. A prison official refused to allow this appeal, grievance, but had not appealed the denial of this grievance absent proof that Hartsfield had ever filed an initial through the entire administrative process. The inmate administrative grievance. contended that he had exhausted all “available” remedies within the meaning of § 1997e(a), because the deadline for Under this record, Hartsfield argued that his attempts at any further appeals had long since expired. We found it administrative exhaustion should be deemed to satisfy the unnecessary to address this argument, in light of our No. 01-3227 Thomas v. Woolum, et al. 37 38 Thomas v. Woolum, et al. No. 01-3227

conclusion that the amended § 1997e(a) did not apply to the the filing of an administrative grievance on the ground that prisoner’s pre-PLRA suit. Nonetheless, we emphasized: prison officials surely would reject it. In the present case, for example, if prisoner Thomas had altogether failed to file a It is clear, however, that in the usual case in the future, grievance, rather than submitting it nearly five months after where the alleged violations occurred after the PLRA’s the prison’s 30-day deadline, we would have been bound to enactment, and inmates have both notice that exhaustion conclude that this course of action did not comply with the is required and a reasonable opportunity to file dictates of § 1997e(a). This leads to the question whether an complaints, it would be contrary to Congress’s intent in untimely filing should be accorded different treatment under enacting the PLRA to allow inmates to bypass the § 1997e(a) than no filing at all. exhaustion requirement by declining to file administrative complaints and then claiming that As a matter of brute fact, Thomas’s untimely filing in this administrative remedies are time-barred and thus not case produced absolutely no benefit over an outright failure then available. to file. His grievance was rejected as submitted outside the prison’s 30-day limit, and there was no administrative review Wright, 111 F.3d at 417 n.3 (emphasis added); see also of his complaints on the merits. As a result, none of the aims Hrynczyn v. Mitchell, No. 00-4320, 2001 WL 1299027, at *1 of § 1997e(a) has been achieved here — Thomas’s grievance (6th Cir. Aug. 9, 2001) (rejecting a prisoner’s argument that did not spur corrective action that might have obviated the no administrative remedies were available because any need for litigation, there has been no filtering of any frivolous grievance he filed would be dismissed as untimely). claims, and no administrative record was developed that might assist the courts in understanding “the contours of the Indeed, this Court has insisted that inmates be resourceful controversy.” Porter, 534 U.S. at 525, 122 S. Ct. at 988. in their efforts to comply with prison grievance procedures. Nonetheless, the lead opinion holds that “Thomas gave the In Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001), for state officers an opportunity” to address his grievance, “which instance, the plaintiff prisoner claimed that he had asked for is all that is required” to satisfy the statutory exhaustion a grievance form, but was told by a prison counselor to “get requirement. (Lead Op. at 20.) out of his office.” We affirmed the dismissal of the case for failure to exhaust administrative remedies, reasoning that the This “opportunity-based” theory of exhaustion, however, plaintiff did “not allege that there was no other source for improperly shifts the burden from inmates to prison officials, obtaining a grievance form or that he made any other attempt requiring that the latter seize upon any chance to address any to obtain a form or to file a grievance without a form.” Jones, complaint that a prisoner might raise at any time and through 266 F.3d at 400. More generally, we have placed the burden any means. As such, the lead opinion’s reasoning runs upon prisoners to “allege and show that they have exhausted counter to our precedents, which have consistently construed all available state administrative remedies,” and have § 1997e(a) as demanding that inmates must invoke and fully instructed that “[d]istrict courts should enforce the exhaustion exhaust a prison’s administrative grievance processes. In requirement sua sponte if not raised by the defendant.” Freeman, for example, the plaintiff prisoner alleged that he Brown, supra, 139 F.3d at 1104. was assaulted by a corrections officer, and he argued that “an investigation by the prison Use of Force Committee and the Under these precedents, then, once a prison’s filing Ohio State Highway Patrol into the alleged assault satisfies deadline has passed, an inmate cannot simply dispense with § 1997e(a) because the statute does not specify that No. 01-3227 Thomas v. Woolum, et al. 39 40 Thomas v. Woolum, et al. No. 01-3227

exhaustion must be through the prison’s grievance untimely or procedurally deficient in some other way. Even procedure.” 196 F.3d at 644. This Court disagreed, noting this more limited proposition is at odds, in my view, with our that use-of-force investigations can be initiated for a variety oft-stated rule of complete exhaustion — though a timely- of reasons, and stressing “the importance of using the prison filed grievance plainly provides an “opportunity” (and, grievance process in order to alert prison officials to indeed, a duty) to address a prisoner’s complaints, we still problems.” Freeman, 196 F.3d at 644. More importantly, we insist that the inmate pursue the matter through all available held that “the exhaustion requirement in § 1997e(a) is levels of the administrative process. More specifically, the directed at exhausting the prisoner’s administrative remedies lead opinion’s disregard for administrative time limits goes in the corrections system, and investigation by another agency against the considered views of two panels in this Circuit, does not satisfy the requirement of the statute.” 196 F.3d at albeit in unpublished decisions, and places us alone among 644. We recently affirmed this rule, stating that “an the several Courts of Appeals that have addressed this precise investigation by a prison Use of Force Committee will not issue. substitute for exhaustion through the prison’s administrative grievance procedure.” Curry v. Scott, 249 F.3d 493, 504 (6th This Court first considered this question in Qawi v. Stegall, Cir. 2001). No. 98-1402, 211 F.3d 1270, 2000 WL 571919 (6th Cir. May 3, 2000). In that case, the plaintiff prisoner’s The present case perfectly illustrates the important administrative grievance was rejected as untimely, but he distinction between internal use-of-force investigations and argued that this delay should be excused as a result of his prisoner grievances. The Ohio prison officials themselves good faith efforts to resolve the matter informally. We held initiated an investigation of Thomas’s beating, and a use-of- that the plaintiff had failed to exhaust his administrative force committee concluded that Defendant Shawn Woolum remedies, observing that his grievance was untimely even had acted contrary to prison regulations in his assault on under the prison rules governing informal dispute resolution. Thomas. Following this investigation, the prison authorities Similarly, in Jacobs v. Wilkinson, No. 00-3212, 2001 WL addressed the problem as they perceived it by discharging 1298979 (6th Cir. Aug. 8, 2001), the plaintiff inmate Woolum. If Thomas desired a broader inquiry or additional complained of two incidents — his grievance as to the first relief, whether from Woolum or others, it behooved him to had been dismissed as untimely, and he had submitted only an file an administrative grievance bringing these matters to the informal complaint as to the second. We found that the attention of prison officials. Yet, under the lead opinion’s plaintiff had failed to exhaust his administrative remedies as broadest statement of its holding, Thomas need not have filed to either of his two complaints, making no distinction a grievance at all, so long as prison officials had the between his untimely grievance and his outright failure to file “opportunity” to discern what his complaints might be and a grievance. address them. Such a rule is simply irreconcilable with this Court’s prior decisions, which require a good deal more from As noted, three of our sister Circuits have reached the same the inmate himself before he may commence a § 1983 suit. conclusion. First, in Marsh, supra, the Fifth Circuit upheld the dismissal of a prisoner’s § 1983 suit for failure to exhaust Perhaps, however, the lead opinion means to endorse a administrative remedies under the pre-PLRA version of more limited rule, under which a prison official’s § 1997e(a), where the inmate’s administrative grievance had “opportunity” to address an inmate’s complaint must be been dismissed as untimely filed more than 30 days after the triggered by the inmate’s filing of a grievance, whether or not incident of which she complained. Although the version of No. 01-3227 Thomas v. Woolum, et al. 41 42 Thomas v. Woolum, et al. No. 01-3227

§ 1997e(a) then in effect authorized the courts to grant a The Eleventh Circuit also has held that an untimely continuance so that the plaintiff prisoner could exhaust any grievance generally does not satisfy § 1997e(a)’s exhaustion available administrative remedies, the Court reasoned that a requirement. In Harper, supra, the plaintiff inmate’s continuance was not warranted under the circumstances of grievance was denied as untimely, and the inmate failed to that case: invoke a prison procedure that authorized waiver of the filing deadline for “good cause” shown. Under these circumstances, Because the prison had already rejected [the plaintiff’s] the Court held that the plaintiff “cannot be considered to have administrative grievance as untimely, her administrative exhausted his administrative remedies.” Harper, 179 F.3d at remedies were foreclosed, and a continuance would have 1312. The Court reasoned that a contrary conclusion would served no purpose. When a section 1997e continuance permit inmates to “ignore the PLRA’s exhaustion requirement would serve no purpose, a district court still has the and still gain access to federal court merely by filing an power to dismiss a prisoner’s suit under section 1997e untimely grievance.” 179 F.3d at 1312. for failure to exhaust administrative remedies . . . . Without the prospect of a dismissal with prejudice, a Most recently, the Seventh Circuit has joined in this prisoner could evade the exhaustion requirement by consensus, construing § 1997e(a) as requiring that a prisoner filing no administrative grievance or by intentionally “complete[] the administrative process by following the rules filing an untimely one, thereby foreclosing administrative the state has established for that process,” including filing remedies and gaining access to a federal forum without deadlines. Pozo, supra, 286 F.3d at 1023. In Pozo, the exhausting administrative remedies. Thus, we hold that plaintiff prisoner timely filed his initial grievance, but then a district court has the power to dismiss a prisoner’s waited a year before pursuing an administrative appeal. He section 1983 suit under section 1997e even when argued that Wisconsin prison officials had the discretion to administrative relief is time-barred or otherwise waive the state’s usual 10-day filing deadline, and that this precluded. power to hear an untimely appeal satisfied the purposes of the exhaustion requirement because it afforded the opportunity to Marsh, 53 F.3d at 710 (citations and footnote omitted).2 address his complaints. The Court disagreed:

2 Although Ma rsh predates § 1 997 e(a) in its present form, the Fifth Circuit recently confirmed the continued vitality of this decision in Days v. Johnson, 322 F.3d 863 (5th Cir. 2003). The plaintiff inmate in Days PLRA’s exhaustion requirement by failing to comply with the alleged that a broken ha nd had prevented him from tim ely filing his prison grievance system. See Harper v. Jenkin, 179 F.3d 1311, administrative grievance, but that he had filed a grievance as soon as this 1312 (11th Cir. 199 9); see also Ma rsh v. Jones, 53 F.3d 707, 710 injury had healed . The Court found that these allega tions, if proven, (5th Cir. 1995) (previous version of § 1997e). We emphasize would suffice to show that the prisoner had “exhausted the administrative that our holding is limited to the narrow facts of this case. More remedies that were perso nally available to him.” 322 F.3d at 867. T he specifically, administrative remedies are deemed unavailable Fifth Circuit then emphasized the narrow reach of this ruling: when (1) an inmate’s untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the W e, of course, do not hold that an untimely grievance in and inmate’s subsequent attempt to exhaust his remedies based on of itself would render the system unavailable, thus excusing the the untimely filing of the grievance. exhaustion requirement. Such a hold ing would allow inm ates to file suit in federal court despite intentionally evading the Days, 322 F.3d at 867-68 (footnote omitted). No. 01-3227 Thomas v. Woolum, et al. 43 44 Thomas v. Woolum, et al. No. 01-3227

[T]his position would leave § 1997e(a) without any filing outside of the governing administrative time limit. oomph. Wisconsin cannot be unusual in allowing prison Instead, the lead opinion’s reasoning rests principally upon officials some authority to entertain untimely complaints the inapposite Oscar Mayer decision, with an additional and appeals. If the existence of this power means that appeal to the Supreme Court’s rulings on exhaustion in the prisoners need not file timely complaints and appeals, context of state prisoner habeas petitions. I turn first to these then the incentive that § 1997e(a) provides for prisoners latter decisions, as they weigh decidedly against the to use the state process will disappear. Prisons are conclusion reached in the lead opinion here. unlikely to entertain many appeals filed a year late, or by prisoners who otherwise thumb their noses at the II. specified procedures. Whether a state prisoner wishes to bring a § 1983 suit or a Pozo, 286 F.3d at 1025. More generally, the Seventh Circuit habeas petition under 28 U.S.C. § 2254(a) challenging the reasoned that judicial disregard for prison grievance lawfulness of his confinement, he first must exhaust the procedures relevant set of remedies. The two exhaustion requirements are similarly worded: § 1997e(a) provides that an inmate would allow a prisoner to “exhaust” state remedies by must exhaust “such administrative remedies as are available,” spurning them, which would defeat the statutory while habeas relief cannot be granted unless an inmate “has objective of requiring the prisoner to give the prison exhausted the remedies available in the courts of the State,” administration an opportunity to fix the problem — or to 28 U.S.C. § 2254(b)(1)(A). Accordingly, the Supreme Court reduce the damages and perhaps to shed light on factual precedents as to the latter statute are likely to be instructive in disputes that may arise in litigation even if the prison’s interpreting the former. The lead opinion agrees, citing solution does not fully satisfy the prisoner. several of these decisions in support of the result it reaches. I find this utterly remarkable, since the Supreme Court 286 F.3d at 1023-24 (citations omitted).3 expressly held in one of these cases that a prisoner’s untimely filing in state court barred him from seeking habeas relief in Thus, prior to the lead opinion’s ruling today, every court federal court. that has considered the matter has concluded that an untimely grievance which is rejected as such by prison officials does Specifically, in Coleman v. Thompson, 501 U.S. 722, 111 not satisfy the exhaustion requirement of § 1997e(a). Indeed, S. Ct. 2546 (1991), the Court considered the effect of a death the lead opinion is unable to identify any case in any area of row prisoner filing his state court notice of appeal a mere the law in which a court has found that an administrative three days after the 30-day deadline imposed by the exhaustion requirement was satisfied through an unexcused governing Virginia court rule. In light of this untimely submission, the Virginia Supreme Court dismissed the prisoner’s appeal without reaching the merits. The U.S. 3 Still another Circuit, like this one, has addressed the issue of Supreme Court recognized that the prisoner’s delayed filing untimely filing only in an unpublished decision. In Collins v. Federal — a defect legally tantamount to an outright “failure to appeal Bureau of Prisons, No. 02-1503, 2003 WL 21380545 (10th Cir. June 16, at all” — was “no doubt” a result of “inadvertent error.” 2003), the T enth C ircuit held that an inmate’s “failure to meet the Coleman, 501 U.S. at 749, 750, 111 S. Ct. at 2564, 2565. app ropriate filing deadlines for administrative remedies constitutes a Nonetheless, the Court held that federal habeas review was failure to e xhaust those remedies.” No. 01-3227 Thomas v. Woolum, et al. 45 46 Thomas v. Woolum, et al. No. 01-3227

unavailable as to the claims advanced in the inmate’s timely filing under Fed. R. App. P. 4(a), the Coleman Court untimely state court appeal. 501 U.S. at 757, 111 S. Ct. at observed that its ruling had the virtue of 2568. eliminat[ing] inconsistency between the respect federal The import of Coleman to the question presented here courts show for state procedural rules and the respect seems plain enough. In that case, a filing three days past a they show for their own. This Court has long understood state court deadline led the Supreme Court to hold that a the vital interest served by federal procedural rules, even death row prisoner had forfeited his opportunity to obtain when they serve to bar federal review of constitutional federal court review of the constitutionality of his continued claims . . . . No less respect should be given to state rules detention and sentence. The only relevant statutory of procedure. prerequisite to such habeas relief was that the prisoner must have exhausted the remedies available to him in the state Coleman, 501 U.S. at 751, 111 S. Ct. at 2565-66 (citations courts. It readily follows, in my view, that a filing past an omitted). More generally, the Court explained that its strict administrative deadline presumptively precludes an inmate insistence upon exhaustion in the habeas context was from establishing the nearly identical statutory prerequisite “grounded in principles of comity; in a federal system, the for commencement of a § 1983 suit. At a minimum, Coleman States should have the first opportunity to address and correct blunts the force of the lead opinion’s contention that a alleged violations of [a] state prisoner’s federal rights.” requirement of timely filing would impose too high a cost Coleman, 501 U.S. at 731, 111 S. Ct. at 2555. All of this upon the constitutional rights of prisoners — the stakes readily carries over to the present context, in light of the obviously were much higher in Coleman, implicating the Supreme Court’s admonition that “prison administrators . . . , prisoner’s asserted right to be free from confinement and an and not the courts, [are] to make the difficult judgments eventual death sentence.4 concerning institutional operations.” Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (internal quotations In addition, while the lead opinion relies heavily upon and citation omitted).5 policy arguments gleaned from the Supreme Court’s Oscar Mayer decision, it barely acknowledges (and largely misconstrues) the much more pertinent policy considerations 5 set forth in Coleman. Having previously held, for example, The lead op inion casually dismisses Coleman’s various policy considerations with the ob servation that “we have never considered a state that a state prisoner’s federal habeas suit failed for lack of ward en’s decisio n on a grievance to be the equal of a full state court judgment.” (Lead O p. at 18.) U nless we are engaged in some sort of zero-sum game, however, I see no reason to inquire whether the two are entirely equivalent or one is “better” than the other. It only matters 4 whether both are entitled to some degree of federal court deference, and Coleman also undermines the lead opinion’s appeal to the a vast array of Supreme Co urt precedent holds that prison officials are presumption that Congress legislates with full awareness of the relevant entitled to a large measure of deference in the day-to-day operations of Supreme Court precedents. (See Lead Op . at 16.) While I fully accept their institutions. this proposition, I would suggest that Congress much more likely had Coleman than Oscar Mayer in mind when it enacted § 1 997 e(a), a In any event, the lead opinion arrives at the wrong answer by asking provision which is quite similar to the statute involved in Coleman, but the wrong question. Section 1997e(a) is silent on the weight to be given which bears absolutely no resemblance to the enactment at issue in Oscar to a warden’s decision on the merits in a particular case. W hat it does Mayer. demand, however, is that an inmate present his grievance for the warden’s No. 01-3227 Thomas v. Woolum, et al. 47 48 Thomas v. Woolum, et al. No. 01-3227

Nevertheless, through adroit deconstruction, the lead “procedural default” doctrine. The lead opinion then reasons opinion endeavors to show that Coleman supports its that no such doctrine has been incorporated into our prisoner conclusion here. In particular, the lead opinion focuses on § 1983 jurisprudence, leaving us free to follow the “technical” portions (though not the entirety) of the following passage definition of exhaustion cited in Coleman. from that decision: I find this reasoning wholly unpersuasive, for two reasons. Just as in those cases in which a state prisoner fails to First, to whatever extent Coleman can be read as exhaust state remedies, a habeas petitioner who has failed distinguishing between procedural default and exhaustion,6 to meet the State’s procedural requirements for this distinction has been obliterated in subsequent Supreme presenting his federal claims has deprived the state courts Court habeas decisions. In O’Sullivan, supra, for example, of an opportunity to address those claims in the first the Court considered the question whether a state prisoner instance. A habeas petitioner who has defaulted his must petition for discretionary review by a state supreme federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer “available” to him. In the absence of the 6 independent and adequate state ground doctrine in Even this point is a dubious one. W hile the lead opinion dutifully federal habeas, habeas petitioners would be able to avoid recounts a portion of Coleman’s historical survey of the independent and adeq uate state ground doctrine and the procedural default rule, it stops the exhaustion requirement by defaulting their federal notab ly short of ackno wledging that the federa l courts’ application of the claims in state court. The independent and adequate state latter rule in the habeas context rests solely upon “concerns of comity and ground doctrine ensures that the States’ interest in federalism” — concerns which undoubtedly are present here — and not correcting their own mistakes is respected in all federal upon jurisdictional considerations or the need to avoid ad visory opinions. habeas cases. Coleman, 501 U.S . at 730, 111 S. Ct. at 2554. Thus, it would be misleading to suggest, as the lead opinion appears to do, that the Coleman Court felt itself jurisdictionally compelled to adhere to the procedural Coleman, 501 U.S. at 731-32, 111 S. Ct. at 2555 (citations default rule. omitted). From this language, the lead opinion surmises that untimely filing does not directly equate with lack of Rather, Coleman plainly evidences the Court’s recognition of the exhaustion, but that it bars habeas relief only by virtue of the complementary nature of the exhaustion requirement and the procedural distinct “independent and adequate state ground” or default rule — both are “grounded in principles of comity,” and the former would be rendered a nullity without the latter. 501 U.S. at 731-32, 111 S. Ct. at 2554-55. T hus, the Court eq uated “cases in which a state prisoner fails to exhaust state remedies” and those in which a prisoner consideration and se e the ad ministrative process through to completion “fail[s] to meet the State’s procedural req uirements for p resenting his before he ma y proceed to fede ral court. No one se riously questions the federal claims” — in either case, the inma te “has d eprived the state courts correctness of the warden’s decision in this case — no matter how much of an opportunity to address those claims in the first instance.” 501 U.S. or how little deference we give, we surely would agree that Thom as’s at 732 , 111 S. Ct. at 2 555 . Mo reover, the C ourt invoked the procedural grievance was, in fact, filed several months past the 30-day deadline, and default rule to ensure that prisoners did not “avoid the exhaustion that he has presented no valid excuse for his untimely submission. The requirement by defaulting their federal claims in state court,” 501 U.S. at relevant question is whether we must respect Ohio’s imposition and 732, 111 S. Ct. at 2555 — precisely the reasoning which the various enforcement of this 30-day deadline. So again, I ask — if we agree to Courts of App eals have em ployed in reso lving the issue now before us, respect a State’s judgment that a prisoner must proceed through one or yet which the lead opinion sum marily rejects as contrary to the purported more layers of administrative ap peal, why should we balk at the who lly views of the Supreme Court and the “meaning of exhaustion,” (Lead Op. analogous procedural rule at issue here? at 18). No. 01-3227 Thomas v. Woolum, et al. 49 50 Thomas v. Woolum, et al. No. 01-3227

court in order to satisfy the exhaustion requirement. In discretionary review by that State’s highest court, the answering in the affirmative, the Court noted the “interplay” Supreme Court reasoned that this was an “available” remedy between the doctrines of exhaustion and procedural default, which prisoner Boerckel was obliged to exhaust before once again explaining (as it had in Coleman) that “a prisoner seeking habeas relief in federal court. Boerckel fell short of could evade the exhaustion requirement — and thereby this exhaustion requirement, however, by virtue of his failure undercut the values that it serves — by letting the time run on to include three of his federal claims in his petition to the state remedies.” O’Sullivan, 526 U.S. at 848, 119 S. Ct. at Illinois Supreme Court. Moreover, because the “time for 1734 (internal quotations and citation omitted). The Court filing such a petition ha[d] long passed,” the Court held that then elaborated: “Boerckel’s failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has To avoid this result, and thus protect the integrity of the resulted in a procedural default of those claims.” O’Sullivan, federal exhaustion rule, we ask not only whether a 526 U.S. at 848, 119 S. Ct. at 1734. Under this reasoning, the prisoner has exhausted his state remedies, but also notions of exhaustion and procedural default are merged, and whether he has properly exhausted those remedies, i.e., an inmate’s failure to properly pursue a state remedy in whether he has fairly presented his claims to the state accordance with the relevant procedural requirements can just courts. Our disagreement with [the dissent] in this case as well be termed a lack of exhaustion or a procedural default. turns on our differing answers to this last question: It follows, in particular, that an outright failure to file is Whether a prisoner who fails to present his claims in a legally indistinguishable from a submission beyond the state’s petition for discretionary review to a state court of last filing deadline. resort has properly presented his claims to the state courts. Because we answer this question “no,” we But perhaps even more to the point, and closer to home, the conclude that [state prisoner] Boerckel has procedurally Supreme Court recently rejected this Circuit’s continued defaulted his claims. recognition of a distinction between exhaustion and procedural default in the habeas context. In Carpenter v. 526 U.S. at 848, 119 S. Ct. at 1734 (internal quotations and Mohr, 163 F.3d 938, 944 (6th Cir. 1998), we had held that the citations omitted). District Court had “erroneously conflated the exhaustion requirement with the procedural default or waiver rule,” Apart from this express statement that the procedural thereby merging two inquiries which were “analytically default doctrine is a necessary component of the exhaustion distinct.” In language which bears a striking similarity to the rule, the Court interchangeably referred to the prisoner’s lead opinion’s reasoning in this case, we stated that “the failure in that case as a lack of exhaustion and a procedural exhaustion requirement is satisfied even if a claim was default.7 Because Illinois authorizes petitions for procedurally defaulted in state court, because in such cases there are no longer remedies available for the petitioner to exhaust.” Carpenter, 163 F.3d at 944 (citing Coleman and 7 other cases). Indeed, the dissent’s chief complaint in O’Sullivan was that the Court’s opinion “co nfuse[d ]” the two “analytically distinct” rules of exhaustion and procedural default. 526 U.S. at 850, 119 S. Ct. at 1735 (Stevens, J., dissenting). Even the dissent recognized, however, that the procedural default doctrine was “crafted” b y the Co urt “[i]n order to protect the integrity of our exhaustion rule.” 526 U.S. at 853, 119 S. Ct. at 1736-37 (Stevens, J., dissenting). No. 01-3227 Thomas v. Woolum, et al. 51 52 Thomas v. Woolum, et al. No. 01-3227

The Supreme Court reversed. See Edwards v. Carpenter, and repeatedly recognized the practical necessity of this 529 U.S. 446, 120 S. Ct. 1587 (2000). The Court deemed it merger — absent a procedural default component, the “not a hard question” whether it suffices to merely “present” exhaustion requirement would be a nullity. Likewise, our a claim to the state courts, “even though it was not presented sister Circuits — as well as this Circuit, albeit in unpublished in the manner that state law requires.” 529 U.S. at 452, 120 decisions — have found it necessary to construe the S. Ct. at 1591-92. An affirmative answer to this question, in exhaustion rule of § 1997e(a) as encompassing procedural the Court’s view, “would render [the] exhaustion requirement default through untimely administrative filing. illusory.” 529 U.S. at 452, 120 S. Ct. at 1592 (footnote omitted). The Court then continued: The lead opinion and concurrence insist that this reading of § 1997e(a) is improper, however, because it would add a We recognized the inseparability of the exhaustion rule timeliness requirement to the statute that Congress and the procedural default doctrine in Coleman . . . . We purportedly has declined to impose. To this contention, I can again considered the interplay between exhaustion and only respond that the Supreme Court presumably did not view procedural default last Term in O’Sullivan . . . , itself as legislating when it adopted a similar construction of concluding that the latter doctrine was necessary to the habeas exhaustion statute, 28 U.S.C. § 2254(b)(1)(A). “‘protect the integrity’ of the federal exhaustion rule.” Indeed, if it would be improper for a court to erect additional The purposes of the exhaustion requirement, we said, obstacles to a prisoner suit under § 1983, it would be all the would be utterly defeated if the prisoner were able to more problematic for the courts to restrict their obtain federal habeas review simply by “‘letting the congressionally-conferred and constitutionally-mandated time run’” so that state remedies were no longer authority to entertain prisoner habeas petitions. But this is not available. Those purposes would be no less frustrated what the Supreme Court has done, or what our sister Circuits were we to allow federal review to a prisoner who had have done, in insisting that prisoners comply with applicable presented his claim to the state court, but in such a deadlines and other procedural requirements — to the manner that the state court could not, consistent with contrary, they have ensured that the congressional mandate of its own procedural rules, have entertained it. In such exhaustion is preserved rather than subverted, by construing circumstances, though the prisoner would have exhaustion in the only way that makes sense.8 “concededly exhausted his state remedies,” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon 8 Judge Gilman’s concurrence rests entirely on the proposition that [his claims].’” my approach would effectively amend Congress’s statutory mandate of exhaustion by incorporating a requirement of timely filing. Ce rtainly, this 529 U.S. at 452-53, 120 S. Ct. at 1592 (emphasis added) charge of “judicial activism” would apply as well to the three other (citations omitted). Circuits which have adopted the reading of § 1997e(a) that I favor — and, as noted, it would app ly as well to the Supreme Court’s habeas decisions. But Judge Gilman’s analysis merely begs the question, in my view. I Under federal habeas law, then, all that remains of any freely acknowledge, as did the Supreme Co urt in Coleman, that a prisoner distinction between the exhaustion and procedural default exhausts his remedies in a “technical” sense once there are no more rules is different terminology and separate historical lineages. administrative avenues to pursue, whether because of a procedural default While it is true that the Supreme Court had to make a choice or for any other reason. The question we confront here is whether the whether to merge these two doctrines, the Court has readily congressional mand ate is satisfied through such “technical” exhaustion, or whether § 1997e(a) demand s something more from prisoners. No. 01-3227 Thomas v. Woolum, et al. 53 54 Thomas v. Woolum, et al. No. 01-3227

Next, even assuming that some meaningful distinction might remain between procedural default and exhaustion, it is far too late in the day to contend that the former doctrine should not apply in the context of § 1997e(a), and that the purely “technical” definition of exhaustion instead should As a matter of brute sem antics, I do not deny that the “technica l” control. At the risk of redundancy, I again point out that this definition of exhaustion favored by my colleagues is a permissible one. Circuit already has held that certain types of procedural For all of the reasons outlined herein, however, I simply do not believe that this is the meaning Congress intended in enacting the PLRA. Judge defaults — e.g., a failure to pursue all available avenues of Gilman has succinctly stated one o f my reasons — that, in cases such as administrative appeal — constitute lack of exhaustion under this one, a requirement of mere “technical” exhaustion results in the § 1997e(a). To the Supreme Court, at least, a late filing and federal courts having “to deal with the § 198 3 issues without the benefit an outright failure to file at all are both analyzed in precisely of the state’s administrative consideration on the merits.” (Concurring the same way — namely, as procedural defaults. See Op. at 25.) While Judge Gilman states that such cases “make[] the issue O’Sullivan, 526 U.S. at 848, 119 S. Ct. at 1734; Coleman, difficult” for him, (id.), they make it easier for me to conclude that Congress could not have intended a definition of exhaustion that routinely 501 U.S. at 750-52, 111 S. Ct. at 2565-66. Thus, while one perm its claims to reach the federal courts without the benefit of any prior might seek to distinguish between these two forms of default consideration on the merits. Under such circumstances, I find it — although, as discussed below, I am wholly unpersuaded by unnecessary to await a legislative declaration that § 1997e(a) mandates the lead opinion’s attempts at such a distinction here — it is actual, meaningful, and not merely “technical” exhaustion. untenable to suggest that procedural defaults generally do not Yet, beca use it is po ssible to define exhaustion in a purely “technical” run afoul of § 1997e(a)’s exhaustion requirement. Rather, it sense, my charges of “judicial meddling” do not rest upon any notion that is now the law of this Circuit that some procedural defaults, my colleagues have “re written” § 19 97e (a). Ra ther, my q uarrel is with but not others, bar a prisoner suit under § 1983. the analytical route by which they arrive at their reading of this statute. Judge Gilman’s concurrence makes the argument, for example, that the III. Supreme Court’s habeas decisions do not compel any particular result here, because the “inseparability of the exhaustion rule and the procedural-de fault doctrine” in the habeas context, Edwards, 529 U.S. at In my view, the above-cited authorities point uniformly and 452, 120 S. Ct. at 1592, does not require that we place a similar unmistakably toward the conclusion that timely filing is a procedural-de fault gloss upon § 1997e(a). Very well, but this does not necessary component of exhaustion under § 1997e(a) in all deny the force of (or even address) my argument that all of the same but the most unusual of circumstances. Even if we were grounds relied upon by the Supreme Court in Coleman, O’Sullivan, and writing on a blank slate, however, I could not subscribe to the Carpenter are fully ap plicab le here, and therefore should lead us to construe exhaustion under § 1997e(a) in the same way that exhaustion has policy judgments made in the lead opinion. Rather, I believe been interpreted in habeas cases. It is evidence of judicial activism, in my that the lead opinion’s analysis of untimely prisoner view, to resolve an issue as though writing on a blank slate, and to deny grievances substitutes superficial straw-men for careful the clear impo rt of closely analogou s decisions. scrutiny, and rests upon a fundamental misunderstanding of the significance of administrative filing deadlines. The remaining bases for my concerns of judicial policymaking are set forth throughout this opinion and need not be repeated here. I do wish to emphasize one point, however — that, no matter how many times my Throughout its entire discussion of the timeliness issue, the colleagues appeal to “S upreme C ourt preced ent,” (Lead Op . at 2-3; lead opinion acknowledges only a single argument in support Concurring Op. at 27), they simp ly canno t identify a single case, whether of the rule that inmates presumptively must comply with under § 1997 e(a) or in any other statutory o r adm inistrative context, in administrative time limits. In particular, the lead opinion which that Co urt (or any other) has held that an exhaustion requirement proclaims that “the only ground for barring a federal § 1983 was satisfied through an unexcused filing beyo nd an applicable deadline. No. 01-3227 Thomas v. Woolum, et al. 55 56 Thomas v. Woolum, et al. No. 01-3227

suit due to an untimely prison grievance is that we would 80 F. Supp.2d 109, 113 (S.D.N.Y. 1999). See, e.g., 141 otherwise render prison grievance procedures irrelevant.” Cong. Rec. S14408-01, *S14414 (daily ed. Sept. 27, (Lead Op. at 18.) The lead opinion confidently assures us that 1995) (statement of Senator Dole) (noting that prisoner this will not occur, however — inmates “will still have every suits increased from 6,600 in 1975 to over 39,000 in incentive to raise their grievances within the prison’s 1994 and included claims for “insufficient storage locker timelines, because it is in the prison grievance process that space, a defective haircut by a prison barber, the failure inmates will, for most practical purposes, receive their of prison officials to invite a prisoner to a pizza party for swiftest and most effective remedies.” (Id. at 19.) a departing prison employee, and . . . being served chunky peanut butter instead of the creamy variety.”); The various policy-based considerations that lurk beneath 141 Cong. Rec. S7498-01, *S7526 (daily ed. May 25, the surface of this analysis thwart the considered judgment 1995) (statement of Senator Kyl) (stating that in 1994, and expressed will of Congress when it enacted § 1997e(a) in prisoners brought more than one-fourth of all civil suits its present form. First and foremost, Congress did not filed in the United States District Courts); Bernard D. legislate a system of “incentives” for prisoners to pursue their Reams, Jr & William H. Manz, A Legislative History of administrative remedies — it commanded in the most explicit the Prison Litigation Reform Act of 1996, Pub. L. No. of language that inmates must exhaust these remedies in all 104-134, 110 Stat. 1321, Doc. 33, at 61 (noting that the cases. In this case, for one, this simply did not occur — short title given to the House measure containing the because of Thomas’s untimely filing, there was no PLRA was “Stopping Abusive Prisoner Lawsuits”). administrative consideration whatsoever of the merits of his grievance, let alone exhaustion of the prison’s dispute Cox v. Mayer, ___ F.3d ___, 2003 WL 21340291, at *3 (6th resolution process. Moreover, even before today’s ruling, Cir. June 11, 2003); see also Wyatt v. Leonard, 193 F.3d 876, Thomas, for one, apparently failed to perceive any incentive 878 (6th Cir. 1999) (“The 1996 Act is designed to deter to timely file his grievance — he submitted it five months frivolous lawsuits . . . .”). Likewise, the Eleventh Circuit has past the 30-day limit, despite the admitted absence of any explained: impediment to meeting this deadline. I find little comfort, then, in the lead opinion’s prediction that its rule will not Congress enacted this mandatory exhaustion thoroughly undermine the congressional command of requirement in section 1997e(a) as part of the PLRA’s exhaustion. It is bad enough, in my view, that some prisoners effort to curtail frivolous and abusive prisoner litigation undoubtedly will take advantage of our free pass to . . . . Congress did not enact the PLRA in a vacuum. It circumvent this requirement. held hearings and rendered findings, concluding that prisoners file more frivolous lawsuits than any other Further, Congress made no secret of its principal concern class of persons. Congress found that the number of in making exhaustion mandatory. This Court and others have prisoner lawsuits has grown astronomically . . . . amply recounted the legislative history leading up to the 1996 Congress intended section 1997e(a) to curtail the ability amendment of § 1997e(a). We recently observed: of prisoners to bring frivolous and malicious lawsuits by forcing prisoners to exhaust all administrative remedies “Congress was primarily concerned about the rising before bringing suit in Federal court. number of lawsuits filed by prisoners and the perception that most of these suits were frivolous.” Cruz v. Jordan, No. 01-3227 Thomas v. Woolum, et al. 57 58 Thomas v. Woolum, et al. No. 01-3227

Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998) conclusion within a reasonable time period;10 and (iii) the (internal quotations and citations omitted). greater likelihood that a prisoner might be satisfied by swift action against any transgressors.11 Significantly, most of This recognition is notably lacking in the lead opinion’s these benefits accrue to prisoners and prison officials alike — wishful thinking on incentives. The inmates least likely to and this presumably is why prison officials routinely impose adhere to a prison’s time limits and other procedural rules are deadlines upon themselves as well as inmates. On the precisely those prisoners who are pursuing frivolous or assumption that the 30-day time limit in this case was abusive claims. Such prisoners, after all, would have nothing motivated by these and other legitimate considerations of to lose in flouting prison procedures, because they would efficient and effective institutional functioning — and, again, have no legitimate expectation of obtaining any remedy the record contains no suggestion whatsoever to the contrary through the prison’s grievance process. For such prisoners, — I would hold that this deadline is presumptively entitled to it matters only that they reach the finish line of this process our respect, with exceptions made only in those cases where and secure their ticket to federal court, and today’s ruling an inmate establishes his inability to comply with a prison’s provides a handy shortcut for doing so. Thus, by presuming filing limit.12 that inmates will pursue their administrative remedies in good faith, even if this Court does not insist that they do so, the All of these benefits are lost, however, when deadlines are lead opinion disregards the finding of Congress that prisoners reduced to mere suggestions. To be sure, there may be some all too often were not acting in good faith, and the judgment cases in which both sides act in enlightened good faith, and of Congress that this problem could best be addressed through voluntarily agree to move promptly through the stages of the a requirement of mandatory exhaustion. administrative process. As we judges well know, however, Yet, as much as the lead opinion is prepared to assume that prisoners act in good faith, it is quite unwilling to make the 10 same assumption about prison officials. Tellingly, in To the extent that the process is prolonged, of course, this leaves the courts to deal with stale claims and an outdated record. assessing the potential costs of its ruling and identifying the “one ground” that might militate against it, the lead opinion 11 Indeed, in its discussion of prisoner incentives, the lead opinion utterly fails to even allow for the possibility that prison cites the capacity of the prison grievance process to provide the “swiftest officials might have good reasons for establishing deadlines and most effective remedies.” (Lead Op. at 19.) This capa city rests in no for the filing of grievances. Even a moment’s thought, small part upo n the prop er functioning and e nforceme nt of deadlines. however, would reveal several such reasons, including: (i) 12 the inherent benefit of prompt investigation, while memories To be sure, the lead opinion pays lip service to the “mutually are still fresh and all involved inmates and prison employees beneficial” value of deadlines to both prisoners and prison officials. remain at the facility;9 (ii) the desire to bring the entire (Lead Op. at 19 n.4.) It quickly reverts to form, however, speculating without any discernable basis as to a purportedly “real concern” that matter, including all available internal appeals, to a “prison administrators will impose shorter and shorter deadlines measured in hours and days” in order to shut prisoners out o f federal court. (Id.) Since several other Circuits have adopted the procedural default doctrine that so concerns the lead opinion, one would expect to see prison 9 administrators within those Circuits busily shortening their filing In this case, by co ntrast, inmate Thomas already had transferred to deadlines and setting other sorts of procedural traps. To my knowledge, another institution by the time he filed his grievance. this has not occurred. No. 01-3227 Thomas v. Woolum, et al. 59 60 Thomas v. Woolum, et al. No. 01-3227

litigation is more often adversarial than collegial, and any Edwards, 529 U.S. at 453, 120 S. Ct. at 1592 (internal process which results in winners and losers is likely to invite quotations and citation omitted).15 strategic behavior. Procedural rules, it seems to me, are designed to avoid worst cases and limit strategic behavior, Then, after this prolonged but essentially worthless while imposing no special hardship upon those who would administrative process has finally reached its conclusion, the proceed in good faith even in their absence. As noted at the courts would be left to address claims which have gone stale, outset, I see no indication that inmates generally have found and which in most cases have never been addressed on the it difficult to meet prison filing deadlines, particularly in light merits, but which nonetheless have been fully “exhausted” as of the modest effort involved in filing a grievance.13 the lead opinion construes that term. Alternatively, in cases which do not meet even this lenient notion of “exhaustion,” In contrast, the worst cases invited by the lead opinion’s a court’s dismissal without prejudice under § 1997e(a) often rule promise to be very bad indeed. A prisoner who wishes will be only the beginning of the process, rather than the end. to avoid the exhaustion requirement now has every incentive Armed with the court’s “blueprint” for the administrative to wait as long as possible before filing a grievance, in order steps that should have been taken but were not, an inmate to enhance the likelihood that his submission will be rejected may go back and fix his prior administrative filings, as untimely. The outer bound for this delay presumably is the unimpeded by the expiration of any administrative deadlines. statute of limitations for § 1983 suits14 — and not one day This process may be repeated as necessary, limited only by earlier, because this limitation period is immediately tolled the running of the underlying statute of limitations for § 1983 upon the commencement of administrative proceedings. See suits — which, again, is tolled during administrative Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). It is proceedings, and likely during judicial proceedings as well. highly disingenuous, in my view, to insist that prison officials As noted at the outset, this eviscerates many of our prior still have a meaningful “opportunity” to address the merits of failure-to-exhaust decisions — an inmate who, for example, such an intentionally delayed grievance. Rather, as the did not pursue all available administrative appeals can now Supreme Court has explained, even if it could be said that the pick up the process where he left off, undeterred by any prisoner had technically “exhausted” his remedies, it could missed filing deadlines. not seriously be contended that “the State had been given a fair opportunity to pass upon” the prisoner’s claims. Or consider this very case, in which we hold that Thomas’s grievance setting forth his claims against Defendant Shawn Woolum did not serve to exhaust his claims against the remaining Defendants. I see nothing to prevent Thomas from

15 13 Even more puzzling is the lead opinion’s assertion that a state may In this case, for example, Thomas requested a grievance form on “avoid federal court” by “waiving [its] procedural guidelines.” (Lead Op. May 1, 19 98, was given the form two days later, o n M ay 3, and was able at 11.) Just how state officials might accomplish this is not explained. In to file his grieva nce the next day, on M ay 4, 1998 . This grievance wa s a fact, a state that elects to address an untimely grievance m ight very well handwritten one-page docume nt, setting forth the factual basis for still find itself in federal court, unless it resolves the grievance in a way Thom as’s complaints and the various remedies he was seeking. that totally satisfies the inmate. This is highly unlikely in the frivolous 14 and abusive cases that Congress specifically targeted in enacting the As noted in the lead opinion, this is two years in Ohio. PLRA. No. 01-3227 Thomas v. Woolum, et al. 61 62 Thomas v. Woolum, et al. No. 01-3227

going back and filing grievances against these other parties, In the case of an alleged unlawful practice occurring in advancing the failure-to-protect theory that he did not assert a State which has a law prohibiting discrimination in in his initial grievance. To be sure, these new grievances employment because of age and establishing or would come almost six years after the incident in question — authorizing a State authority to grant or seek relief from but this no longer matters, so long as the underlying two-year such discriminatory practice, no suit may be brought statute of limitations has not run in light of the pendency of under section 626 of this title before the expiration of various administrative and judicial proceedings.16 Prison sixty days after proceedings have been commenced under officials still would have the “opportunity” to address these the State law, unless such proceedings have been earlier new grievances, and this is all that today’s ruling requires terminated . . . . If any requirement for the from an inmate in order to exhaust his remedies. Although commencement of such proceedings is imposed by a this strikes me as the height of absurdity, my colleagues on State authority other than a requirement of the filing of a the panel unfortunately do not share in this view — nor, written and signed statement of the facts upon which the indeed, do they even acknowledge the concern. proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection IV. at the time such statement is sent by registered mail to the appropriate State authority. Against the foregoing weight of authority and reason in favor of the judiciary’s presumptive respect for administrative 29 U.S.C. § 633(b). Upon reviewing the language of this filing deadlines, the lead opinion offers up the Supreme statute, the Supreme Court held, among other things, that a Court’s Oscar Mayer decision as singlehandedly compelling grievant is not required to commence state proceedings within the opposite result. Indeed, it appears that the lead opinion the time limits specified by state law in order to preserve his must cast its lot with Oscar Mayer, because no other case of federal right of action. See Oscar Mayer, 441 U.S. at 753, 99 which I am aware supports its view of exhaustion as mere S. Ct. at 2070.17 termination by any means. Yet, even the most cursory review reveals that Oscar Mayer has nothing whatsoever to say about Although the lead opinion recites various policy administrative exhaustion or the proper construction of considerations noted by the Court in reaching this decision, § 1997e(a). Thus, the lead opinion is left adrift without an the ruling in Oscar Mayer rests first and foremost on the anchor. language of the statute itself. Initially, the Court observed that the use of the word “commenced” does not necessarily In Oscar Mayer, the Supreme Court addressed a lengthy, demand compliance with state filing deadlines, “since, by detailed, and highly idiosyncratic provision of the Age way of analogy, under the Federal Rules of Civil Procedure Discrimination in Employment Act (“ADEA”), requiring that even a time-barred action may be ‘commenced’ by the filing a person must “commence[]” state proceedings at least sixty days before bringing a federal age discrimination suit: 17 As noted in the lead opinion, the Court reached essentially the same conc lusion in EE OC v. Comm ercial Office P roducts Co., 486 U.S. 107, 108 S. Ct. 1666 (1988), a case involving a nearly identically worded 16 provision in Title VII, 42 U.S.C. § 2000e-5(c). Because this ruling and I express no view on the proper outcome of this inquiry in this Oscar Mayer rest upon virtually the same statutory language and case. reasoning, I have confined my discussion only to the latter decision. No. 01-3227 Thomas v. Woolum, et al. 63 64 Thomas v. Woolum, et al. No. 01-3227

of a complaint.” 441 U.S. at 759, 99 S. Ct. at 2073 (citations Other portions of Oscar Mayer also demonstrate its omitted). The Court then found that any ambiguity on this inapplicability here. The Court emphasized, for instance, that point was overcome by the statute’s express definition of the ADEA provision at issue “does not stipulate an what constitutes “commencement” — namely, the “filing of exhaustion requirement,” but “is intended only to give state a written and signed statement of the facts upon which the agencies a limited opportunity to settle the grievances of proceeding is based,” and nothing else. 441 U.S. at 760, 99 ADEA claimants in a voluntary and localized manner so that S. Ct. at 2073 (quoting 29 U.S.C. § 633(b)). Thus, the Court the grievants thereafter have no need or desire for explained, “even if a State were to make timeliness a independent federal relief.” 441 U.S. at 761, 99 S. Ct. at 2074 precondition for commencement . . . , a state proceeding will (emphasis added). Congress set the bar a good deal higher in be deemed commenced for purposes of [the federal statute] as § 1997e(a), of course — this provision does mandate soon as the complaint is filed,” and irrespective of any state exhaustion, and prison officials have been granted far more filing limits. 441 U.S. at 760, 99 S. Ct. at 2073. than a “limited opportunity” to address prisoner grievances. As noted earlier, Congress meant for this exhaustion The lead opinion does not address, or even acknowledge, requirement to staunch the flow of frivolous and abusive this principal basis for the decision in Oscar Mayer. The prisoner litigation, a concern which in no way animated the statute in that case defined “commencement,” and decreed enactment of the provision at issue in Oscar Mayer. that the states could not impose any requirements for “commencement” beyond the bare filing of a statement of More generally, Oscar Mayer’s express disavowal of any facts.18 Section 1997e(a), in contrast, supplies no special consideration of exhaustion principles presumably explains definition of exhaustion. It seems reasonable to assume, then, why, so far as I can tell, that decision has never been cited that Congress meant for prisoners to “exhaust” their remedies outside of its peculiar ADEA/Title VII context as any sort of under § 1997e(a) in precisely the same way that they must authority on the meaning of administrative exhaustion. “exhaust” their remedies under 28 U.S.C. § 2254(b)(1)(A). Indeed, Oscar Mayer does not state a rule of general Under the Supreme Court’s then-recent decision in Coleman, applicability to administrative exhaustion even in the narrow such exhaustion entailed compliance with a state’s procedural context of employment discrimination law. In particular, the rules, including filing deadlines. More generally, through its courts do insist that grievants comply with administrative enactment of the PLRA, Congress could hardly have meant time limits in order to pursue their employment to relax the standards for a prisoner to exhaust his discrimination claims in federal court. See Zipes v. Trans administrative remedies, or to invite creative schemes for World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, avoiding this mandatory requirement. 1132 (1982). In a decision affirming the dismissal of a case in which a pro se plaintiff missed a Title VII filing deadline, the Supreme Court emphasized that “[p]rocedural 18 requirements established by Congress for gaining access to Notably, in giving effect to this plain statutory language, the Supreme Court observed that this was the “prevailing interpretation” the federal courts are not to be disregarded by courts out of a adopted by the courts, as well as the interpretation adopted by the EEOC. vague sympathy for particular litigants.” Baldwin County Oscar Mayer, 441 U.S. at 760-61, 99 S. Ct. at 2074. This latter Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct. construction, of course, was “entitled to great deference” by the courts. 1723, 1726 (1984). Although doctrines such as equitable 441 U.S. at 761, 99 S. Ct. at 2074 (internal quotations and citation tolling might excuse an untimely filing in a particular case, omitted). Here, by contrast, no court or other authority whatsoever has previously endorsed the lead opinion’s interpretation of § 1997e(a). we have cautioned that such relief is “sparingly bestow[ed],” No. 01-3227 Thomas v. Woolum, et al. 65 66 Thomas v. Woolum, et al. No. 01-3227

and that “[a]bsent compelling equitable considerations, a As explained above, I believe that the relevant policy court should not extend limitations by even a single day.” considerations militate strongly against the rule adopted by Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., the lead opinion in this case. More importantly, the lead 209 F.3d 552, 560-61 (6th Cir. 2000).19 opinion’s willingness to dispense with administrative filing deadlines runs counter to the strict exhaustion requirement of I fail to see why we should favor the civil rights claims of § 1997e(a), the intent of Congress in imposing this mandatory prisoners over those of law-abiding citizens. In fact, the lead prerequisite to prisoner suits under § 1983, and the decisions opinion’s rule creates precisely the dilemma the Supreme of this and other Courts of Appeals uniformly holding that Court sought to avoid in Coleman — in this Circuit, we inmates must comply with a prison’s procedural rules as they respect federal procedural rules in employment discrimination exhaust their administrative remedies. Accordingly, while I cases, but not state procedural rules in prisoner § 1983 suits. concur in the Court’s judgment affirming the District Court, Neither Oscar Mayer nor any other authority supports such a I dissent from the lead opinion’s ruling that untimely result. grievances satisfy the administrative exhaustion requirement of § 1997e(a). V. In the end, the lead opinion’s ruling on the issue of timeliness rests upon a smattering of policy-based observations in Oscar Mayer, wholly unmoored from the specific statutory context in which the Supreme Court ruled in that case. This is a far cry from the lead opinion’s initial promise to resolve this question “in light of Congress’s purpose in passing the PLRA,” (Lead Op. at 3) — which purpose the lead opinion then proceeds to discount — and in light of the Supreme Court’s exhaustion precedents — which, as noted, recognize timeliness as an essential element of exhaustion. It is a strange form of “[j]udicial restraint,” (Lead Op. at 19-20 n.4), in my judgment, which reaches out to decide an unnecessary issue in a way that invites prisoners to circumvent the congressional mandate of exhaustion.

19 In light of these precedents, I am at a loss to see how the lead opinion can claim that no “procedural de fault hurdles” stand in the way of a Title VII or ADE A litigant. (Lead Op. at 11 n.2.) Whether or not the courts employ the terminology of “procedural default” in such cases, the brute fact remains that individuals who miss administrative deadlines generally forfeit their right to call upon the “federal courts as a vindicator of federal rights.” (Id.)