14-E-7. Dealing with Exhaustion in Your Lawsuit
Exhaustion is an "affirmative defense," so you do not have to put it in a complaint-the defendants must raise it.387 However, if a grievance is properly exhausted, it may be beneficial to put that information in the complaint anyway. Then, if the defendants make a motion to dismiss, you can simply refer to the relevant paragraph of the complaint in response, since the court must assume that the facts alleged in a complaint are true for purposes of a motion to dismiss.388 If you did not properly exhaust but you have a good argument that administrative remedies were not available, or that there are special circumstances that justify the failure to exhaust, you should not put that in the complaint.389 In that case, you should leave exhaustion out of the complaint and let the defendants raise it. If the defendants do raise the defense, you will then have the opportunity to provide a fuller explanation than you would in a complaint. Here is the rule of thumb: If you can truthfully write in your complaint, "Plaintiff has exhausted all available administrative remedies for his claims," you should do it; if it is more complicated than that, you should leave it out.
Since exhaustion is not a pleading requirement, it cannot be addressed at initial screening or by motion under Federal Rules of Civil Procedure Rule 12(b)(6) to dismiss for failure to state a claim, except in cases where non-exhaustion is clear. Motions under Federal Rules of Civil Procedure Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction are equally inappropriate, since failure to exhaust is not jurisdictional.390
In most courts, defendants who claim a prisoner did not exhaust will generally have to raise that claim in a motion for summary judgment, which requires the defendant to submit admissible factual evidence showing that a prisoner did not exhaust.391 Sometimes defendants say they are moving to dismiss the complaint under Rule 12(b)(6), but then also include factual materials like documents or affidavits. These should not be considered on such a motion to dismiss. The court may then convert the Rule 12(b)(6) motion to a summary judgment motion.392 Either way, if you are faced with a summary judgment motion, you will have to respond to the defendant's facts with your own admissible evidence. This evidence can include your declaration or sworn affidavit393 (not just a statement in a brief or a letter) establishing that you exhausted or were unable to exhaust for some legitimate reason, and/or documentary evidence, such as a final grievance decision showing exhaustion. You should also look closely at the defendant's evidence and, if it does not really show that you failed to exhaust, explain why to the court.394 If the defendant cannot show that it is undisputed (accepted) that you have failed to exhaust, and you do not have an adequate excuse or explanation, summary judgment will be denied. That usually means that the issue of exhaustion will be determined at trial.395
Courts take different approaches to determining whether a prisoner has exhausted. Some have held evidentiary hearings to determine factual disputes about exhaustion, without much discussion of why it is appropriate to do so.396 The Ninth Circuit has held that failure to exhaust is something that can be attacked by the defendant in a Rule 12(b) motion, rather than a motion for summary judgment.397 This means that courts (not juries) can decide disputed issues of fact. Courts may use documents to do this. And, courts can decide without holding a hearing.398 Recently, the Fifth and Eleventh Circuits began using this approach too.399 If you see a Rule 12(b) motion in a district court in the Ninth or Eleventh Circuit, you should respond with declarations or sworn affidavits that have the relevant facts. This is the same way you would respond to a summary judgment motion. You can also respond with documents showing relevant facts, such as the prison grievance policy, grievances you filed, and decisions or other documents you received in response.
The Seventh Circuit treats this matter differently. The Seventh Circuit has rejected the "matter in abatement" approach and has held that whenever exhaustion "is contested," the district court should have a hearing on exhaustion, and allow discovery on just the exhaustion question. If the court finds that the plaintiff has exhausted, the case can go on to discovery on the merits.400 If the plaintiff has not exhausted, the case stops there. The court's reason for doing this was to avoid giving the exhaustion question to the jury because they are not allowed to decide if they should hear a case.401
The Seventh Circuit approach may go against the Supreme Court's decision in Jones v. Bock, which held that the PLRA exhaustion requirement does not change the usual practices. Usual court practices are found in the Federal Rules of Civil Procedure or come from general practice.402 A rule that permits...
