Opinion favorable to prisoners mounting legal challenges related to the PLRA’s administrative exhaustion requirement.
On June 18, in Perttu v. Richards, the Supreme Court concluded that prisoners are entitled to a jury trial on whether they exhausted their administrative remedies, as required by Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, when the issue of exhaustion is intertwined with the merits of a claim that requires a jury trial under the Seventh Amendment. What is the PLRA? And what effect, if any, does this decision have on prisoners’ legal rights?
What is the PLRA and what does it mean to exhaust administrative remedies?
When Congress passed the PLRA in 1996, the Act was intended to (and did) erect various procedural hurdles for prisoners who wanted to challenge issues related to their “conditions of confinement” in federal court. Perhaps the biggest hurdle is the requirement that prisoners must exhaust all state administrative remedies before bringing suit. 42 U.S.C. § 1997e(a).
Every state’s prison administrative remedy process is different, but there are similarities. Maryland, for example, requires prisoners to first file an Administrative Remedy Procedure (“ARP”) with “the managing official” (typically the warden or the prison’s ARP Coordinator) within 30 days of the date the incident at issue occurred. COMAR 12.02.28.05.D(1) & 12.02.28.08. The warden is supposed to respond to the ARP within 30 days of the date the prisoner filed the ARP, finding it meritorious, meritorious in part, or dismissing it. COMAR 12.02.28.12.H(3)(a). The prisoner then has 30 days to appeal the decision to the Commissioner of Corrections, COMAR 12.02.28.12.B(5),[1] and the Commissioner must render a decision within 30 days of the date of the appeal, COMAR 12.02.28.17.A. If the prisoner is dissatisfied with the Commissioner’s decision, they have 30 days to appeal to the Inmate Grievance Office (“IGO”),[2] COMAR 12.02.28.18 & COMAR 12.07.01.05.B. The IGO must then conduct a preliminary review of the ARP and determine if the grievance should be dismissed or proceed to a hearing before an administrative law judge (“ALJ”) in the Office of Administrative Hearings. COMAR 12.07.01.06.A(1)–(2) &.07. This does not even include the requirement that a prisoner seek judicial review of the IGO’s decision to dismiss an appeal after preliminary review or the ALJ’s decision on the merits. COMAR 12.07.01.11. Given these procedural requirements, it’s no wonder that prisoners frequently fail to exhaust and are left with no legal recourse.
This also assumes that the administrative process works. Often it does not. In a seminal 2016 decision, Ross v. Blake, 136 S. Ct. 1850, the U.S. Supreme Court held that prisoners need only exhaust “available” administrative remedies, id. at 1859; 42 U.S.C. § 1997e(a). The Court identified three circumstances under which exhaustion is unavailable: (1) when officers are consistently unable or unwilling to give inmates any sort of relief; (2) if a remedy is “so opaque” that “no ordinary prisoner can discern or navigate it”; and (3) if administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1858–60.
PLRA exhaustion is an affirmative defense, meaning that defendants must raise it in response to a lawsuit. Jones v. Bock, 549 U.S. 199, 216 (2007). In other words, prisoners do not need to prove that they have exhausted administrative remedies to bring a lawsuit in federal court. As a practical matter, this means that defendants often raise the defense at the summary judgment stage, after the parties have had an opportunity to conduct discovery. Defendants may then attach documents and other evidence to their motion to argue that a prisoner has failed to exhaust. The prisoner can, in turn, provide evidence that he has exhausted or that exhaustion was unavailable, and therefore he should be excused from the exhaustion requirement.
What happened in Perttu v. Richards?
In Perttu v. Richards, Kyle Brandon Richards, a prisoner at a Michigan state prison, and two other prisoners sued their Unit Manager, Thomas Perttu, for sexual harassment and First Amendment retaliation. 145 S. Ct. 1793, 1798 (2025). As part of his retaliation claim, Richards and the other prisoners alleged that Unit Manager Perttu had destroyed several grievances they tried to file about Perttu’s sexual abuse to exhaust their administrative remedies. Unit Manager Perttu also threatened to kill them if they continued to try to file grievances and placed them on administrative segregation (in a cell that is separate from the general population) without cause to do so.
Unit Manager Perttu moved for summary judgment, arguing that the plaintiffs’ case should be dismissed because they failed to exhaust administrative remedies. In moving for summary judgment, Unit Manager Perttu attached an affidavit from the prison grievance coordinator stating that the prison had no record of Mr. Richards and the other two plaintiffs filing grievances related to Unit Manager Perttu sexually abusing them.
The plaintiffs responded that Unit Manager Perttu had intercepted or destroyed the grievances they had attempted to file. Because there were genuine disputes of material fact regarding whether Mr. Richards and the other two plaintiffs had exhausted their administrative remedies, the magistrate judge held a hearing and took evidence on the issue. The magistrate judge ultimately concluded that Mr. Richards, who had represented himself at the hearing, failed to exhaust his administrative remedies. The magistrate judge therefore recommended that Mr. Richards’ case be dismissed, and the district court adopted this recommendation.
Mr. Richards appealed to the Court of Appeals for the Sixth Circuit, arguing that resolving the issue of exhaustion through a trial before a judge instead of before a jury violates the constitution if “it would essentially be resolving the claim itself.” Id. at 1799 (citation omitted). The Sixth Circuit agreed with Mr. Richards and reversed, holding that “the Seventh Amendment requires a jury trial when the resolution of the exhaustion issue under the PLRA would also resolve a genuine dispute of material fact regarding the merits of the plaintiff ’s substantive case.” Id. (quoting Richards v. Perttu, 96 F.4th 911, 923 (6th Cir. 2024)). The Sixth Circuit’s holding conflicted with a holding on the same issue in the Seventh Circuit, so the Supreme Court granted certiorari to resolve the split (meaning that it reviewed the case decided by the Sixth Circuit to determine whether it agreed with that court’s analysis of the exhaustion issue).
In a 5-4 decision, with Justice Roberts writing for the majority, the Supreme Court affirmed the Sixth Circuit’s opinion. The Court began with the premise that PLRA exhaustion is an affirmative defense and then observed that the PLRA is silent on whether judges or juries should resolve factual disputes surrounding exhaustion. Because the PLRA is silent on this issue, the Court looked to “the usual practice for resolving factual disputes intertwined with the merits.” Id. at 1801. This “usual practice,” the Court explained, is that when a factual dispute is “intertwined” with the merits of a claim that entitles the plaintiff to a jury trial under the Seventh Amendment, that dispute should go to a jury. Id. at 1802.
To reach this conclusion, the Court relied on cases involving both legal and equitable claims. In particular, the Court noted its holding in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959), that where a case involves both legal and equitable claims, judges can’t resolve the equitable claims first if doing so could prevent the legal claims from going to the jury.
How does Perttu v. Richards affect prisoners’ civil claims?
Perttu v. Richards does not mean that prisoners are automatically entitled to a jury trial when exhaustion is at issue. Rather, where the issue of whether a prisoner has exhausted his administrative remedies is intertwined with a claim that entitles him to a jury trial under the Seventh Amendment, the judge cannot resolve the factual disputes surrounding exhaustion. Perttu v. Richards provides a great example of when this will be the case.
Mr. Richards brought two separate claims under 42 U.S.C. § 1983—one for Unit Manager Perttu’s sexual abuse of him, and the other for First Amendment retaliation for Unit Manager Perttu’s thwarting of his attempts to file grievances about the sexual abuse to exhaust his administrative remedies and sue in court. It was Mr. Richards’ second claim—the First Amendment retaliation claim—that was intertwined with the issue of whether he exhausted his administrative remedies. A determination of whether Mr. Richards exhausted his administrative remedies necessarily implicated the same facts involved in his First Amendment retaliation claim. For example, the factfinder (whether a judge or a jury) must determine whether Unit Manager Perttu confiscated or threw away the grievances Mr. Richards contended he filed. That determination informs both whether the grievance process was unavailable to Mr. Richards, and therefore he was excused from exhausting, as well as whether Unit Manager Perttu retaliated against him.
Therefore, prisoners will likely find an argument based on Perttu v. Richards most viable when they have a claim that implicates the grievance process (or lack thereof) itself. Perttu v. Richards may even encompass an Americans with Disabilities Act claim if the ADA claim involves the prisoner’s inability to access the grievance process because a prison has not provided equal access to its grievance process for prisoners with disabilities or has not complied with the ADA’s mandate of equally effective communication.
This is a rare win for prisoners and those who advocate for them. Although Perttu v. Richards will likely apply to only a small subset of PLRA cases, it will be interesting to watch how the case law develops.
Monica Basche is here to help if your rights or the rights of someone you know have been or are being violated in a prison. She has represented blind prisoners in litigation and negotiations to receive accommodations they’re entitled to under the law and is currently litigating an excessive force case against the Maryland Department of Public Safety and Correctional Services. Contact Monica here for a consultation.
[1] Note that the prisoner’s appeal must be received by the Commissioner with 30 days of the prisoner’s receipt of the Warden’s decision, not mailed by the deadline. See COMAR 12.02.28.12.B(5).
[2] The Maryland Department of Public Safety and Correctional Services recently renamed the IGO the “Incarcerated Individual Grievance Office.” 2023 Maryland Laws Ch. 721
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