Failing to exhaust one’s administrative remedies is a prevalent affirmative defense in prisoner civil rights litigation. The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought [under 42 U.S.C. § 1983 or any other federal law]…until such administrative remedies as are available are exhausted”. 42 U.S.C. § 1997e(a). This requirement is strictly enforced in federal court, meaning it is an affirmative defense that is commonly raised at the dispositive motion stage of litigation, resulting primarily in dismissals without prejudice. At the summary judgment stage, all facts are construed in a light most favorable to the non-moving party, the plaintiff-prisoner. However, if a defendant is granted summary judgment without prejudice, for failure to exhaust administrative remedies, most often this ruling acts as a final order because usually the prisoner is not able to go back and pursue administrative remedies, due to untimeliness. Therefore, an appellate court will review such a district court decision de novo, with the understanding being that effectively the lower court ruled for dismissal with prejudice.

What is Exhaustion?

Under the PLRA, a prisoner must exhaust his or her administrative remedies with the correctional institution, prior to filing suit. Simply as a procedural matter, if administrative remedies are not exhausted before filing suit, a court will dismiss the case altogether. In order to exhaust administrative remedies, all prisoners, inmates, and pre-trial detainees must follow the policies and procedures of the facility, relating to complaints or grievances. They must follow these procedures or policies properly and to their conclusion. For example, this process will usually require a prisoner-plaintiff to first file a grievance or complaint. Then, the facility will usually issue a response. The prisoner-plaintiff must then appeal any adverse ruling, finding, or conclusion made by the facility. If there is a hearing process available, the inmate must go through that as well, prior to filing suit in federal court. Whatever avenues for redress are available to a prisoner-plaintiff must be explored and fully pursued. An inmate can file suit only after there are no other steps that he or she can take to seek redress.

Unavailability

In the Seventh Circuit, the court has ruled that the exhaustion requirement is eliminated if the correctional institution did not inform the inmate-plaintiff about its grievance process, which it is required to do. Hernandez v. Dart, 814 F.3d 836, 842-43 (7th Cir. 2016). Under that circumstance, this process is essentially nonexistent or “unavailable” to the prisoner-plaintiff because he or she would have no way of knowing about and pursuing it. See id. The prison official defendants carry the burden of establishing the availability of the unexhausted administrative process and must present evidence to show that it is beyond dispute that remedies were available. If availability is reasonably contested, the court will make an availability determination through an evidentiary hearing.

A correctional facility’s grievance process is considered “unavailable” when a prison official tells an inmate that he or she cannot file a grievance, refuses the prisoner access to the necessary forms, or when an inmate’s properly submitted grievance receives no response. See id. Another example of unavailability occurs when a prisoner is denied access to other inmates in an effort to help submit a grievance, where the complaining inmate has lost his physical ability to write, is illiterate, or is otherwise impaired. The intra-prison administrative remedy process is also considered unavailable when “affirmative misconduct prevents prisoners from pursuing administrative remedies” or an inmate is targeted with measures that block access to the process. Id. at 842. In the scenario where grievance processes are unavailable, the requirements of the PLRA do not apply. See id.

Hernandez: Case Illustration

The Hernandez case involved an inmate’s Section 1983 claim for the use of excessive force against a county corrections facility. The plaintiff was a prisoner who had been involved in a car collision from which he suffered severe injuries, including quadriplegia. Mr. Hernandez was left with no use of his legs and very limited use of his arms. He had been hospitalized for treatment of bedsores or pressure wounds that he incurred while in a nursing home. At the time of his arrest, he was in the hospital, being treated for these sores. The county corrections officers shackled one of Mr. Hernandez’s feet and one of his hand to the bed, per policy. The plaintiff made verbal complaints to both hospital and correctional staff about his discomfort as the result of being cuffed to the bed. He also indicated that this was harming his recovery from the pressure sores, as he was unable to properly move his body so that his sores could heal.

The county corrections facility had an Inmate Information Handbook that laid out its grievance process. This process began with an inmate filing a written grievance within 15 days of an occurrence. The facility was then to respond to the inmate’s grievance and then the inmate had 14 days to appeal the facility’s decision, if he was dissatisfied. Not only did Mr. Hernandez not receive a copy of the facility’s prisoner handbook, he was unable to write, due to his quadriplegia and the limited use of his arms. The corrections officers did not explain the grievance process to Mr. Hernandez in the hospital and he did not become aware of it until he was discharged from the hospital and learned about it by other inmates. Mr. Hernandez continued to make verbal complaints about the medical care he was receiving; again, he could not submit written complaints, per the policy, because he could not physically write. For this reason, Mr. Hernandez enlisted the help of his fellow prisoners to help him draft and file grievances.

One grievance that Mr. Hernandez filed (with help) concerned a complaint that the facility’s nursing staff refused to help him transfer from his bed to his chair. In the case of that grievance, he had learned the policy rules and made sure to submit it within 15 days of the occurrence and to appeal within 14 days of the facility’s response. The corrections facility denied the appeal and Mr. Hernandez filed suit in federal court for deliberate indifference. In his complaint, he also included a claim for excessive use of force, relating to being cuffed in his hospital bed. The defendant filed a motion for summary judgment on the excessive use of force claim, arguing that Mr. Hernandez had failed to file a timely grievance and therefore he had failed to exhaust his administrative remedies, in violation of the PLRA.

In Hernandez, the district court held that the prisoner’s oral complaints regarding his being cuffed to his hospital bed were sufficient to establish a grievance, but the court dismissed the case, finding that Mr. Hernandez had not exhausted his administrative remedies. Most likely, this was because he had not gone through any appeals process. The Seventh Circuit reversed the district court, holding that the grievance process was “unavailable” to Mr. Hernandez concerning his excessive force claim, under the circumstances. The court reasoned that he was unable to write and was shackled to a hospital bed. The grievance and appeals process was not available to him, given the facts of the situation. The court ruled that when a process of complaints, grievances and appeals are unavailable to a prisoner, the PLRA is inapplicable. Because Mr. Hernandez was not informed about the grievance process while he was cuffed in the hospital, and defendants could not show that they informed him of the process, it was unavailable and therefore, exhaustion of administrative remedies under the PLRA was not required before filing suit in federal court.

Conclusion

Prisoner-plaintiffs must exhaust all administrative remedies that are available to them, before filing suit in federal court. This requirement is waived if the prisoner is not informed about the administrative processes, if he or she is prevented by defendants’ actions from pursuing them, or the administrative processes are otherwise unavailable.