When is a Plaintiff a “Prisoner” for Purposes of Exhausting Administrative Remedies under the PLRA?

By Mitch Wrosch

The appeal arose from prison officials’ alleged indifference to inmate Charles Jackson’s medical needs. Jackson filed suit while incarcerated at San Quentin. After his release, he amended his complaint with leave of court. The district court then granted summary judgment to the defendants based on Jackson’s failure to exhaust administrative remedies as a “prisoner” under the Prison Litigation Reform Act (“PLRA”). The question on appeal was whether Jackson was subject to the PLRA’s exhaustion requirement because he initiated his lawsuit while incarcerated, or if he was exempt from the exhaustion requirement because he filed his operative (third amended) complaint after his release from custody.

Jackson entered San Quentin in 2010. In 2012, he filed a lawsuit under section 1983. He alleged Dr. Fong and other doctors denied him access to a mental health program. Jackson claimed that as a result, his mental health deteriorated significantly and that his rights were violated under the Eighth Amendment to the Constitution.

Jackson filed an administrative grievance regarding his claims in 2012. He pursued the grievance to the third and final level, but before receiving a response, he filed his action in federal court. After he was released, Jackson filed two amended complaints. The defendants then moved for summary judgment arguing that Jackson’s failure to exhaust administrative remedies before filing his initial complaint violated the exhaustion requirements of the PLRA. The district court granted the motion. Jackson appealed to the Ninth Circuit.

The PLRA requires that a prisoner challenging prison conditions exhaust administrative remedies before filing suit. Administrative exhaustion in California requires the completion of the third level of administrative review. In this case, Jackson did not exhaust administrative remedies prior to initiating his lawsuit. Exhaustion under the PLRA, however, only pertains to prisoners, and Jackson argued that he was not a prisoner when he filed the operative complaint (even though he was incarcerated when he initiated both the original lawsuit and grievance).

Thus, the Ninth Circuit indicated that the only question on appeal was whether the Court should look to the initiation of the lawsuit when Jackson was a prisoner, or to the date of Jackson’s operative complaint, when he was not a prisoner, to determine if the PLRA applied. In adopting the latter approach, the Court concluded that the filing of an amended complaint superseded the original complaint.  Meaning, it was the functional equivalent of a new lawsuit. Thus, determining whether or not a plaintiff is a “prisoner” under the PLRA requires assessing whether they were incarcerated at the time the operative complaint was filed.

In ruling as it did, the Court expressly rejected the defendants’ arguments that allowing Jackson’s case to proceed “would reward prisoners who neglect their exhaustion obligations and discourage prisoners from using the prison appeals process.”

We believe this Ninth Circuit decision was a mistake and further erodes the exhaustion requirement of the PLRA in the Ninth Circuit. The PLRA requirements should apply based on when the inmate initiated the lawsuit, not an amended complaint, because an important purpose of the PLRA, which is to put the prison on notice of an issue and allow them to address it before the inmate proceeds with litigation.  The Ninth Circuit has completely ignored this principle, potentially opening the door to more litigation and not allowing the prison an opportunity to respond.

Further, pro per prison litigation often drags out for a number of years, and inmates are routinely granted leave to file five or more amended complaints. One potent weapon in defending these cases is the ability to move to dismiss some of these lawsuits under the PLRA’s exhaustion requirement. This defense loses all potency and rewards vexatious litigants when inmates can amend after their release, rendering the pre-filing exhaustion requirement inapplicable.

Finally, if the Ninth Circuit applies this same analysis to its attorneys’ fees analysis, allowing plaintiffs who are no longer “prisoners” at the time a case goes to trial to recover fees without the PLRA limitation on fees to 150% of the verdict, it will eviscerate the intent of the Legislature.