Is there a common law “special circumstances” exception to the Prison Litigation Reform Act that relieves an inmate of his mandatory obligation to exhaust administrative remedies when the inmate erroneously believes that he satisfied exhaustion by participating in an internal investigation?
Lower court opinion: Blake v. Ross, 787 F.3d 693 (4th Cir. 2015)
Blake sued Ross, a prison guard, for violation of his civil rights. He didn’t file a formal complaint against Ross using the inmate grievance process, but he did alert Ross’s superiors, triggering an extensive internal affairs investigation. Ross moved to dismiss the suit alleging Blake’s failure to file a grievance means he didn’t exhaust his administrative remedies as required by the federal Prisoner Litigation Reform Act (PLRA), specifically 42 U.S.C. § 1997e(a). A divided panel of the Fourth Circuit held Blake “reasonably believed that he had sufficiently exhausted his [administrative] remedies” because of the internal affairs investigation, but a dissenting judge concluded that the statute provides no exceptions to the exhaustion requirement; so, no matter how reasonable Blake’s belief, he still had to file a grievance, which serves a different purpose (providing a remedy to the inmate, whatever that might be) than an internal investigation (employee discipline).
Five other circuits have disagreed with the Fourth Circuit’s conclusion in this case, holding either that § 1997e(a) in general allows no exceptions, or specifically that an internal investigation doesn’t replace a grievance. (One of the circuits in the latter group is our own. Pavey v. Conley, 663 F.3d 899 (7th Cir. 2011).) The Supreme Court itself has held that § 1997e(a) imposes a “mandatory” requirement, Porter v. Nussle, 534 U.S. 516, 524 (2002), that allows for no exceptions, even when the administrative remedy is futile because the relief the inmate is seeking isn’t available through the administrative process, Booth v. Churner, 532 U.S. 731, 734, 739 (2001). The lopsided circuit split and the Court’s previous hard line doesn’t bode well for the future of Blake’s suit—despite the fact that the internal investigation gave the prison every opportunity to investigate and develop a record of the incident and correct its employees’ errors, which means the internal investigation satisfied the policy reasons for the exhaustion requirement, Woodford v. Ngo, 548 U.S. 81, 94 (2006).
While this case involves the federal PLRA, Wisconsin has its own PLRA, including an exhaustion requirement, § 801.02(7)(b), and we look to federal court interpretations of the federal PLRA for guidance in applying our law. Our supreme court has already concluded that statute contains no exceptions even when pursuing an administrative remedy would be futile, relying on Booth v. Churner in reaching its decision, State ex rel. Hensley v. Endicott, 2001 WI 105, ¶¶9-12, 245 Wis. 2d 607, 629 N.W.2d 686, and there’s no reason to doubt our supreme court would hold an inmate in Blake’s situation failed to exhaust his remedies. If the Supreme Court reverses the Fourth Circuit, the decision will have little or no impact on our PLRA; however, if the Court affirms, and finds some wriggle room in § 1997e(a), it will open an avenue for limiting § 801.02(7)(b) and Hensley.
