The following recap was written by Melanie Wachtell, a student in the Stanford Supreme Court Litigation Clinic. We previously published her preview of this case here.
On Monday, the Court heard the consolidated arguments of Jones v. Bock and Williams v. Overton, considering three procedural questions regarding the Prison Litigation Reform Act’s exhaustion provision. First, do prisoners have to plead exhaustion in their initial complaint, or does the burden lie with the state to raise non-exhaustion as an affirmative defense? Second, do prisoners have to name every official they will sue in federal court in their original underlying administrative grievance? Third, does the PLRA mandate a “total exhaustion†rule, whereby all claims brought by a prisoner must be dismissed where one or more non-exhausted claims are included in the complaint? All three issues were decided against the petitioning prisoners in the Sixth Circuit.
Jean-Claude Andre, arguing for petitioners, opened by framing the three rules in contention as “judge-made corollaries†which “contradict the federal rules.†Through an exchange with Justice Kennedy, Andre emphasized that under the Sixth Circuit’s holdings, prisoners are not allowed to amend their complaints if they do not satisfy the heightened pleading standard.
Regarding the first question presented, the Chief Justice focused on the screening requirement of the PLRA, which would be a recurring theme throughout the arguments. The screening requirement provides that where a prisoner’s complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or names a defendant who is immune, the complaint is to be dismissed before the defendants are ever required to answer. While Andre noted that exhaustion was not included in that list, the Chief Justice suggested that non-exhausted claims may be classified as frivolous and thus dismissed at the pleading stage. Andre continued to press his argument that the Sixth Circuit’s heightened pleading rule is incompatible with the plain statement standard of Rule 8, with Justice Souter asking if the proper course would be to amend the Federal Rules. Justice Ginsburg seemed to be the most sympathetic to Andre’s arguments, highlighting at various points the difficulties faced by the petitioners in the underlying cases.
On the “total exhaustion†question, several justices – most notably the Chief Justice and Justice Breyer – seemed concerned about judicial efficiency, suggesting that the Sixth Circuit’s rule may incentivize prisoners only to file exhausted claims, thus reducing the administrative burden on the courts. Justice Breyer asked what harm resulted from total exhaustion, where the claims were dismissed without prejudice; Andre noted that in some cases, the statute of limitations may run on exhausted claims before a prisoner could refile. Justice Scalia entered the discussion with a friendly question, suggesting that while the total exhaustion rule might result in little harm, it may also not be particularly helpful or efficient for the courts, where the prisoner would just be refiling the same claims again.
Andre then turned the discussion to the third question presented, arguing that because the Michigan grievance procedures did not require prisoners to name those they would ultimately sue, the “name all defendants†rule of the Sixth Circuit is an extra-statutory requirement not in the text of the PLRA. Through an exchange with Justice Scalia, it became clear that the crux of the problem was that the underlying grievance requirements didn’t ask for the names of the defendants. Justice Ginsburg then asked a line of questions emphasizing the problems which arise for prisoners when they do not know the names of the responsible officials.
Linda Olivieri, Assistant Attorney General of Michigan, argued on behalf of the respondents. She opened by emphasizing Congress’s intent in passing the PLRA – that is, “to deal with the flood of prisoner litigation.†Justice Stevens asked what the underlying administrative records typically looks like; Olivieri described the short to medium-length responses generally provided to prisoner’s grievances. Justice Stevens then inquired as to the number of cases filed in federal court in Michigan, and was told that in only 200 of the 13,000 grievances filed is Michigan asked to provide an answer to a complaint in court. Olivieri then argued in response to questions from Justices Breyer and Ginsburg that while “exhaustion†does not appear as a reason for pre-answer dismissal in the PLRA screening provision, the fact that the statute allows for waiver of reply in frivolous or meritless cases mandates the heightened pleading standard.
Justice Ginsburg pushed on the point that in other contexts, such as habeas review, non-exhaustion is an affirmative offense and that here exhaustion was not listed as a reason to screen out cases pre-answer. Olivieri, noting that the PLRA requires judges to dismiss meritless cases before a reply is requested and that exhaustion is required before a case be brought to court, argued that it would be “unimaginable†that non-exhaustion would “not be a ground for sua sponte dismissal.â€
Justices Scalia and Ginsburg then asked a line of questions regarding why the Court should require total exhaustion for PLRA cases, where they had read similar language in habeas cases to provide for piecemeal dismissal of non-exhausted claims. Olivieri offered that in habeas cases, a prisoner’s liberty is at stake, which is not the case in the typical PLRA complaint.
On the “name all defendants†rule, Olivieri returned to the recurring argument that the waiver of reply and screening provisions required a heightened pleading standard, so that a judge will have sufficient information to dismiss cases without requiring the defendant to answer. Justices Kennedy, Souter, Stevens, and Ginsburg expressed varying degrees of concern over whether a prisoner’s claim would be considered non-exhausted where he was only able to identify the defendant in the second or third stage of the administrative process. Olivieri conceded that if a prisoner named one defendant in his first stage grievance, and a second in his second stage grievance after discovering the second official’s involvement, that the Sixth Circuit would find his claim with respect to that second defendant non-exhausted. Notably, Olivieri said that she would “disagree with the Sixth Circuit on that,†but argued that such a case was not before the court. In a preview of the rebuttal discussion, the Chief Justice inquired into whether Michigan’s new policy requiring prisoners to name defendants in the underlying grievance had an effect on this case, with Olivieri responding that it would influence whether a prisoner’s claim had been exhausted. Olivieri closed with an argument that all three of the challenged rules serve the purposes of Congress, by relieving federal courts from the enormous administrative burden of handling meritless and non-exhausted prisoner cases.
The discussion on rebuttal focused on three issues: whether prisoners are more able than the state to attach records of their administrative proceedings to their complaint, whether non-exhaustion as an affirmative defense would require an answer in all cases, and whether the new Michigan policy on naming defendants renders the third question presented moot.
Judging from the tone of the questions, it seems that petitioners are likely to garner at least three votes, from Justices Ginsburg, Stevens, and Souter. The Chief Justice and Justice Alito seem to favor the state, and Justice Kennedy may well too. Justice Scalia’s questions fell on both sides of the argument and Justice Thomas was silent. If Scalia and Thomas consider the Sixth Circuit’s rules to be “judicial embellishments†to the plain language of the PLRA, then petitioners may have a shot at success. Justice Breyer also presents a question-mark, with his apparent concern about the burden of unexhuasted claims on the courts. If Scalia and Thomas vote for the state, it is likely that these limitations will be upheld, adding to the difficulties facing prisoners who attempt to file civil rights actions from behind bars while perhaps reducing the burden on the federal courts.
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