14-E. Exhaustion of Administrative Remedies [Details]
The PLRA exhaustion requirement says:
No action shall be brought with respect to prison conditions under [42 U.S.C. & 1983] ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.164
More prisoners lose their cases because of failure to exhaust administrative remedies than from any other part of the PLRA.
The PLRA makes exhaustion of the prison grievance system mandatory before you can file suit.165 This is true even if you are suing for damages and the grievance system does not provide damages.166 If you do not exhaust your administrative remedies, your case will be dismissed instead of stayed (held pending exhaustion).167 But you can make an argument for your case being stayed, based on a recent Supreme Court case, Jones v. Bock.168 You must exhaust before you file suit, not afterward, or your case will be dismissed.169 Dismissal for non-exhaustion is supposed to be "without prejudice."170 Dismissal without prejudice means that you can come back to court after you pursue your grievance. However, dismissal without prejudice may also mean that you do not have much time to pursue your grievance. See Part E(6) of this Chapter for more information about time limits. If the statute of limitations (time limit) has run out on your claim when it is dismissed, your case may be permanently barred for that reason too.171 So, it is very important to exhaust your administrative remedies within the prison correctly the first time, since you may not get a second chance.
The bottom line is, if something happens to you that you may want to bring suit about:
(1) Find out what remedies are available within the prison administrative system right away, because time deadlines are often very short. If you wait until you have definitely decided to sue, it may be too late to exhaust your administrative remedies.
(2) Always use the prison grievance system or any other available remedy, such as a disciplinary appeal.
(3) If you think there is a reason why you should not have to exhaust your administrative remedies, forget it. Exhaust them anyway.
(4) Take all the available appeals, even if you get what you think is a good decision.
(5) If you do not get an answer to a grievance, try to appeal anyway. Many grievance systems say that if a certain amount of time passes and there's no decision, you can treat the non-response as a denial of the grievance, and appeal.
(6) If you're not sure which remedy to use, try all available remedies.
(7) If prison employees tell you an issue is not grievable but you think it is, request that they process your grievance anyway so you will have a record. And, if there is a way to appeal or grieve a decision which says that something is not grievable, do that too!
(8) If prison employees tell you something will be taken care of and you do not need to file a grievance, exhaust your remedies anyway if you think there is any chance you might want to file suit.
(9) Follow the rules of the grievance system or other remedy as best you can.
(10) If the people running the grievance system or in charge of the remedy tell you that you filed your grievance incorrectly and you need to do something differently to fix it, follow their instructions and make a record of what you were told.
(11) If you make a mistake, like missing a time deadline, do not give up. File the grievance anyway, explain the reasons, and ask that your grievance be considered despite your mistake, and appeal as far as you can if you lose.
Always remember that once you file suit, prison officials and their lawyers will use anything they can find to get your case thrown out of court, and they will look for any...
