14-E-8. Exhaustion and Statutes of Limitations
Most courts have held that the statute of limitations is tolled (that is, suspended) while you are exhausting administrative remedies.422 This means that the time does not start to run until you get a final administrative decision. However, not every court may accept this idea. If you can, you should plan on filing your complaint within the usual time limitation.
If your case is dismissed for non-exhaustion and you want to try to exhaust and re-file it,423 you may be out of time. Ordinarily, your case would be time-barred. However, some states have statutes that toll (suspend) the statute of limitations for various reasons. Some reasons may not even relate to the case merits. For example, federal courts use state tolling rules in civil rights actions.424 A New York law says that in an action that started on time but was ended for a specific set of reasons, the plaintiff has six months to file a new lawsuit about the subject matter of the dismissed lawsuit.425 New York state law also stops the time during exhaustion of administrative remedies.426 Also, some courts have used the rule of equitable tolling so that any time you spend going through an action that is later dismissed for non-exhaustion, and any time you spend in exhausting administrative remedies after the dismissal, will not count against the statute of limitations.427
Instead of dismissing a time-barred case, a court might grant a stay, or temporary pause. However, that option may be unavailable because some case law holds that stays are no longer allowed under the PLRA and that unexhausted claims must be dismissed.428
After dismissal and exhaustion, you might file a motion for relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure instead of filing a new complaint. Rule 60(b) permits relief based upon "mistake, inadvertence, surprise, or excusable neglect;" changed circumstances which establish that "applying [the judgment] prospectively is no longer equitable;" or "any other reason that justifies relief."429 Rule 60(b) has allowed litigants who timely filed and diligently pursued their cases to revive suits that had become time-barred after dismissal. Although succeeding under Rule 60(b) can be difficult, litigants have been able to use Rule 60(b) when a plaintiff was unfairly affected by a change or ambiguity in the law430 as well as when the plaintiff made an error of law.431 The relief is more readily granted...
