PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RODNEY ELMER ANDERSON, 

Plaintiff-Appellant,

v.

XYZ CORRECTIONAL HEALTH

SERVICES, INC.; RONALD J. ANGELONE;

D. A. GARRAGHTY; M. C. MILLARD;

JOHN DOE; DOCTOR SWETTER,  No. 04-6885

Defendants-Appellees,

and

ANDREW J. WINSTON; JAMES A.

SMITH; K. W. DAVIS; MR. ZUMMER;

MARSHA FORESMAN,

Defendants. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-02-1045)

Argued: February 2, 2005

Decided: May 17, 2005

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Reversed and remanded by published opinion. Judge Traxler wrote

the opinion, in which Judge Motz and Judge Shedd joined. 
COUNSEL

ARGUED: Jeffrey Bromme, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant. Joel Christopher Hoppe, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Elizabeth A. High, ARNOLD & PORTER, L.L.P., Washington, D.C., for

Appellant. Jerry W. Kilgore, Attorney General of Virginia, Richard

L. Savage, III, Deputy Attorney General, Richmond, Virginia, for

Appellees Ronald J. Angelone, D. A. Garraghty, and M. C. Millard.

OPINION

TRAXLER, Circuit Judge: 

The Prison Litigation Reform Act (the "PLRA") requires that

inmates exhaust all administrative remedies before filing an action

challenging prison conditions under federal law. See 42 U.S.C.A.

§ 1997e(a) (West 2003). The question in this case is whether this

requirement imposes a heightened pleading obligation on the inmate,

such that a district court may sua sponte dismiss a complaint that fails

to allege exhaustion of remedies. While the circuit courts have not

spoken uniformly, most of the courts that have considered the question have held that exhaustion of administrative remedies is not a

pleading requirement. In this case, however, the district court was

persuaded by the minority approach and concluded that exhaustion

must be alleged in the complaint. The court therefore sua sponte dismissed a complaint filed by Rodney Anderson for failure to sufficiently allege exhaustion. Anderson appeals. 

We conclude that the PLRA does not require a prisoner to allege

that he has exhausted his administrative remedies, so that a district

court may not dismiss a complaint that fails to allege exhaustion, at

least not before giving the prisoner an opportunity to address the

exhaustion question. Accordingly, we reverse the decision of the district court and remand for further proceedings. 

I.

Rodney Anderson was an inmate in the custody of the Michigan

state prison system. In 1999, however, he was transferred to a prison

2 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
in Virginia, where he was housed for approximately ten months.

While in Virginia, Anderson broke his arm, and he claims that the

Virginia officials failed to provide him proper medical treatment. 

In 2002, Anderson filed a complaint against various Virginia prison

officials. In his complaint, Anderson asserted, by way of § 1983, that

the defendants violated the Eighth Amendment. Anderson also

included various claims under state law. Two of the defendants filed

a motion to dismiss, contending the federal claims were not cognizable under § 1983 and that the state claims were barred under various

Virginia statutes of limitation. Anderson filed a response in which he

addressed the claims raised by Virginia in its motion to dismiss. 

The district court thereafter dismissed Anderson’s complaint on an

issue not raised in the motion to dismiss—Anderson’s failure to plead

in his complaint that he had exhausted his administrative remedies.1

Anderson filed a motion to reconsider, arguing that he had not been

given an opportunity to address the exhaustion issue. The district

court denied the motion, and this appeal followed.

II.

In response to an ever-growing number of prison-condition lawsuits that were threatening to overwhelm the capacity of the federal

judiciary, Congress in 1996 passed the Prison Litigation Reform Act.

See Para-Prof’l Law Clinic v. Beard, 334 F.3d 301, 303 (3d Cir.

2003) ("Congress enacted the PLRA in an apparent effort . . . to discourage prisoners from filing frivolous lawsuits which strain the judiciary’s scarce resources . . . ."); Doe v. Washington County, 150 F.3d

920, 924 (8th Cir. 1998) ("The PLRA was designed to discourage the

initiation of litigation by a certain class of individuals—prisoners—

that is otherwise motivated to bring frivolous complaints as a means

of gaining a short sabbatical in the nearest Federal courthouse." (internal quotation marks omitted)). The PLRA imposes a number of

restrictions on an inmate’s ability to initiate civil litigation. For example, after the PLRA, inmates can no longer use the in forma pauperis

1Although one of the defendants alleged in his answer that Anderson

failed to exhaust his administrative remedies, that defendant did not file

a motion to dismiss. 

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 3
statute to avoid paying filing fees, but must instead pay all filing fees

without regard to their financial status. See 28 U.S.C.A. § 1915(b)(1)

(West Supp. 2004). The PLRA also authorizes a district court to sua

sponte dismiss prison-condition lawsuits "if the court is satisfied that

the action is frivolous, malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief from a defendant who

is immune from such relief." 42 U.S.C.A. § 1997e(c).

Of importance to this case is the PLRA’s exhaustion-of-remedies

requirement. As a general rule, plaintiffs proceeding under § 1983

need not exhaust state administrative remedies before filing suit. See

Porter v. Nussle, 534 U.S. 516, 523 (2002); Patsy v. Board of

Regents, 457 U.S. 496, 516 (1982). The PLRA, however, reversed

that rule as to prison-condition lawsuits. See 42 U.S.C.A. § 1997e(a)

("No action shall be brought with respect to prison conditions under

section 1983 of this title, 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."). There is no

doubt that the PLRA’s exhaustion requirement is mandatory. See Porter, 534 U.S. at 524 ("Once within the discretion of the district court,

exhaustion in cases covered by § 1997e(a) is now mandatory. All

available remedies must now be exhausted; those remedies need not

meet federal standards, nor must they be plain, speedy, and effective.

Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to

suit." (citations and internal quotation marks omitted)). The question

we must answer is whether this exhaustion-of-remedies requirement

is a pleading requirement as well, such that a complaint is subject to

dismissal if it fails to include an allegation that the inmate has

exhausted his administrative remedies.

A majority of the circuit courts of appeals considering the question

have concluded that exhaustion of administrative remedies need not

be alleged by the plaintiff in his complaint but is instead an affirmative defense to be raised by the defendant. See Wyatt v. Terhune, 315

F.3d 1108, 1119 (9th Cir. 2003); Casanova v. DuBois, 304 F.3d 75,

77 (1st Cir. 2002); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002);

Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d

19, 28-29 (2d Cir. 1999); see also Jackson v. District of Columbia,

4 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
254 F.3d 262, 267 (D.C. Cir. 2001) (suggesting but not directly holding that exhaustion is an affirmative defense). Only two circuits have

concluded that exhaustion is a pleading requirement borne by the

plaintiff, so that failure to allege exhaustion makes the complaint subject to dismissal by the district court. See Steele v. Federal Bureau of

Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003); Brown v. Toombs, 139

F.3d 1102, 1104 (6th Cir. 1998) (per curiam). As we explain below,

we agree with the majority approach and conclude that the PLRA

does not require that an inmate allege in his complaint that he has

exhausted all administrative remedies. 

A.

If the PLRA’s exhaustion-of-remedies requirement were one that

implicated the district court’s subject-matter jurisdiction, then there

would be no question that an inmate would be obliged to allege

exhaustion in his complaint. See Pinckley, Inc. v. City of Frederick,

Md., 191 F.3d 394, 399 (4th Cir. 1999) ("Federal courts are courts of

limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction. Thus the facts providing the court

jurisdiction must be affirmatively alleged in the complaint." (citation

omitted)); Fed. R. Civ. P. 8(a) (stating that complaints must contain

"a short and plain statement of the grounds upon which the court’s

jurisdiction depends"). 

Every court to have considered the question has concluded that

§ 1997e(a)’s exhaustion requirement is not a jurisdictional requirement. See Steele, 355 F.3d at 1208; Richardson v. Goord, 347 F.3d

431, 434 (2d Cir. 2003) (per curiam); Casanova v. DuBois, 289 F.3d

142, 147 (1st Cir. 2002); Ali v. District of Columbia, 278 F.3d 1, 5-

6 (D.C. Cir. 2002); Wright v. Hollingsworth, 260 F.3d 357, 358 n.2

(5th Cir. 2001); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000);

Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000); Massey, 196 F.3d

at 732; Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999); Rumbles

v. Hill, 182 F.3d 1064, 1068 (9th Cir. 1999), overruled on other

grounds by Booth v. Churner, 532 U.S. 731, 740-41 (2001). We

agree. 

While Congress could have provided that a district court lacks

subject-matter jurisdiction in prison-condition cases unless the inmate

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 5
has exhausted his administrative remedies, the PLRA does not do

that. To the contrary, the structure of the PLRA itself clearly indicates

that exhaustion of remedies is not a jurisdictional requirement. 

Section 1997e(c)(2) states that:

In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief can be granted,

or seeks monetary relief from a defendant who is immune

from such relief, the court may dismiss the underlying claim

without first requiring the exhaustion of administrative remedies. 

42 U.S.C.A. § 1997e(c)(2). Section 1997e(c)(2) clearly contemplates

the dismissal on the merits of some claims that have not been

exhausted. Because a district court must have subject-matter jurisdiction before it can dismiss a claim on the merits, failure to exhaust cannot be viewed as affecting the district court’s subject-matter

jurisdiction over the claim. See Chelette, 229 F.3d at 687 ("Because

the existence of jurisdiction is a prerequisite to the evaluation and dismissal of a claim on its merits, it follows that jurisdiction is not

divested by the failure to exhaust administrative remedies."); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam) ("The

statute provides that the court may dismiss such claims without

requiring the exhaustion of administrative remedies. The court would

not be empowered to do so if the exhaustion provision deprived the

court of jurisdiction over the action." (citation omitted)). We therefore

conclude that the PLRA’s exhaustion-of-remedies requirement does

not operate as a bar to the district court’s exercise of its subject-matter

jurisdiction. 

B.

Because exhaustion of remedies is not a jurisdictional requirement,

we must determine whether the PLRA otherwise makes exhaustion a

pleading requirement. 

The appellate courts that have found exhaustion to be a pleading

requirement—to date, only the Sixth and Tenth Circuits—have

6 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
focused on the fact that the exhaustion of remedies required by the

PLRA is mandatory. See Porter, 534 U.S. at 524 ("Once within the

discretion of the district court, exhaustion in cases covered by

§ 1997e(a) is now mandatory."). These courts concluded, in essence,

that because exhaustion is mandatory under the PLRA, then it must

be a pleading requirement. The Tenth Circuit’s analysis in Steele is

illustrative:

Our . . . conclusion is compelled by the Supreme Court’s

emphasis on the mandatory nature of exhaustion, implications of the PLRA statutory scheme, the structure of the

Rules of Civil Procedure and our own precedent. We decline

to characterize exhaustion as an affirmative defense because

it cannot be waived. Under Federal Rule of Civil Procedure

8(c), a failure to plead an affirmative defense results in a

waiver of that defense. . . . 

. . . [C]lassification of the PLRA’s exhaustion requirement as an affirmative defense means that defendants may

choose to ignore it for their own strategic reasons. This

court, however, has warned against trivializing the Supreme

Court’s holding that exhaustion is now mandatory.

Steele, 355 F.3d at 1209 (citations, internal quotation marks, and

alterations omitted). While the Sixth Circuit’s analysis of the issue is

abbreviated, concerns similar to those articulated by the Tenth Circuit

seem to have guided its decision. See Brown, 139 F.3d at 1104 ("In

light of the plain mandatory language of the statute regarding exhaustion of remedies, the legislative purpose underlying the plain language, and the sound policy on which it is based, this court will

henceforth require that prisoners filing § 1983 cases involving prison

conditions must allege and show that they have exhausted all available state administrative remedies."); see also Knuckles El v. Toombs,

215 F.3d 640, 642 (6th Cir. 2000) (explaining that the rule announced

in Brown was necessary because the PLRA provides that "no action

shall be brought until all available administrative remedies are

exhausted" and requiring plaintiff to allege exhaustion permits the

district court to "intelligently decide if the issues raised can be

decided on the merits").

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 7
These circuits thus seem to view the PLRA as having created a

requirement that is not jurisdictional, but yet is not forfeitable, such

that compliance with the requirement must be addressed sua sponte

by the district court. This circuit, however, has rejected that sort of

analysis, albeit in a different context. See Brickwood Contractors, Inc.

v. Datanet Eng’g, Inc., 369 F.3d 385 (4th Cir. 2004) (en banc).

In Brickwood, we concluded that the "safe-harbor" provision governing the imposition of sanctions under Rule 11, see Fed. R. Civ. P.

11(c)(1)(A), created a mandatory condition precedent to the imposition of sanctions under the rule.2

See id. at 389. However, because

Rule 11(c)(1)(A) does not implicate the district court’s subject-matter

jurisdiction, see id. at 392, we concluded that the safe-harbor protections, though mandatory, could be forfeited by a defendant who fails

to timely raise them, see id. at 396. In reaching that conclusion, we

rejected the suggestion that there might be a category of rules "which

do not implicate a court’s subject-matter jurisdiction, but are nonetheless not forfeitable by a party, and which must be enforced by a court

without regard to whether compliance with the rule was timely (or

ever) raised by the appropriate party." Id. at 395. 

Our decision in Brickwood, of course, does not directly control our

disposition of this case.3 Nonetheless, we think that the analysis in

2The Rule 11 language at issue in Brickwood is similar to the PLRA

language at issue in this appeal. The PLRA provides that no prisonconditions action "shall be brought" unless the plaintiff has exhausted his

administrative remedies. 42 U.S.C.A. § 1997e(a). Rule 11’s safe-harbor

provision states that a motion seeking sanctions "shall not be filed with

or presented to the court" unless the party seeking sanctions served the

motion on the other party at least twenty-one days before the motion is

filed with the court. Fed. R. Civ. P. 11(c)(1)(A). 

3While this case involves the effect of a mandatory statute, at issue in

Brickwood was the effect of a mandatory court rule. As mentioned

above, Congress by statute can restrict the district court’s subject-matter

jurisdiction. Court rules, however, cannot restrict jurisdiction that has

been created by statute. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004)

("Only Congress may determine a lower federal court’s subject-matter

jurisdiction."); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

370 (1978) ("[I]t is axiomatic that the Federal Rules of Civil Procedure

do not create or withdraw federal jurisdiction."). 

8 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
Brickwood suggests that it would be improper to conclude, as did the

Sixth and Tenth Circuits, that simply because the PLRA’s exhaustion

requirement is mandatory, it cannot be waived or forfeited by the

defendant. Cf. Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (noting the

difference between a rule of subject-matter jurisdiction and a mandatory but non-jurisdictional rule: "[A] court’s subject-matter jurisdiction cannot be expanded to account for the parties’ litigation conduct;

a claim-processing rule, on the other hand, even if unalterable on a

party’s application, can nonetheless be forfeited if the party asserting

the rule waits too long to raise the point." (emphasis added)); Perez

v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999)

("Filing suit before exhausting prison remedies . . . is not the sort of

defect that judges must notice even if the defendant is happy to contest the suit on the merits. . . . The statute gives prisons and their officials a valuable entitlement—the right not to face a decision on the

merits—which courts must respect if a defendant chooses to invoke

it." (first and third emphasis added)). Accordingly, we reject any suggestion that the mandatory nature of the PLRA’s exhaustion requirement compels the conclusion that exhaustion of remedies must be

alleged by an inmate in his complaint.

C.

In our view, the question of whether the PLRA’s exhaustion

requirement imposes a heightened pleading obligation on the plaintiff

is one that is answered by a simple review of the relevant statutory

language. 

The PLRA specifies that district courts shall sua sponte dismiss

certain prison-condition complaints:

The court shall on its own motion or on the motion of a

party dismiss any action . . . if the court is satisfied that the

action is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief from

a defendant who is immune from such relief. 

42 U.S.C.A. § 1997e(c)(1). The exhaustion-of-remedies requirement

is contained in the same statutory section—§ 1997e(a), just a few

printed lines before the subsection listing grounds for dismissal.

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 9
Under these circumstances, it seems to us that the absence of failureto-exhaust as grounds for dismissal in § 1997e(c)(1) must be viewed

as an intentional congressional omission.

Congress had not forgotten about the need for exhaustion,

but chose not to include failure to exhaust among the

grounds for which the court could dismiss sua sponte. Inasmuch as the omission of failure to exhaust from the categories explicitly permitting sua sponte dismissal is found in

§ 1997e, the same section of the PLRA that sets out the

exhaustion requirement, the inference is inescapable that

Congress did not intend to include failure to exhaust among

the categories justifying sua sponte dismissal. 

Ray, 285 F.3d at 296 (footnotes omitted); see also United States v.

Vonn, 535 U.S. 55, 65 (2002) (explaining that the statutoryconstruction canon expressio unius est exclusio alterius is applicable

to statutes that refer to members of an "associated group or series,"

so as to justify the inference that the items not mentioned were

excluded deliberately rather than inadvertently); Russello v. United

States, 464 U.S. 16, 23 (1983) ("Where Congress includes particular

language in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion." (internal quotation marks and alteration omitted)). 

Moreover, in § 1997e(c)(2), Congress made it clear that when dismissing a complaint under a ground listed in § 1997e(c)(1), the district court need not first require the inmate to exhaust his

administrative remedies. See 42 U.S.C.A. § 1997e(c)(2) ("In the event

that a claim is, on its face, frivolous, malicious, fails to state a claim

upon which relief can be granted, or seeks monetary relief from a

defendant who is immune from such relief, the court may dismiss the

underlying claim without first requiring the exhaustion of administrative remedies." (emphasis added)). This statutory directive further

demonstrates that Congress clearly considered the interplay of the

exhaustion requirement with the district court’s obligation to dismiss

some complaints sua sponte, and yet decided not to include failure to

exhaust as a basis for sua sponte dismissal. It thus is not for us to read

failure-to-exhaust into § 1997e(c)(2). See, e.g., United States v. Bran10 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
don, 247 F.3d 186, 190 (4th Cir. 2001) (noting "the fundamental principle of statutory construction that courts are obligated to give effect

to Congress’s decision to use different language in proximate subsections of the same statute." (internal quotation marks omitted)); United

States v. Childress, 104 F.3d 47, 53 (4th Cir. 1996) ("Congress’ role

is to enact statutes; the judiciary’s to interpret those statutes as written."). 

The defendants, however, argue that because exhaustion is mandatory, failing to allege exhaustion is the equivalent of failing to state

a claim upon which relief can be granted. Thus, according to the

defendants, a district court may, pursuant to § 1997e(c)(2), dismiss a

complaint that does not allege exhaustion. We disagree. 

If Congress had been less precise when drafting the PLRA, then

perhaps this argument would be more persuasive. But § 1997e(c)

quite clearly does not treat a failure to allege exhaustion as the equivalent of a failure to state a claim. As noted above, § 1997e(c)(1)

requires a district court to dismiss a complaint that fails to state a

claim for which relief can be granted, while § 1997e(c)(2) states that

the court may dismiss a complaint under subsection (c)(1) without

first requiring the inmate to exhaust his administrative remedies. If,

as the defendants argue, "failure to state a claim included failure to

exhaust for purposes of Section 1997e(c), then paragraph (2) would

carry the highly improbable meaning that courts may dismiss for failure to exhaust administrative remedies without first requiring exhaustion of administrative remedies." Snider v. Melindez, 199 F.3d 108,

111 (2d Cir. 1999). Accordingly, we reject the contention that an

inmate’s failure to allege exhaustion of remedies amounts to a failure

to state a claim upon which relief can be granted. 

D.

In our view, the language and structure of the PLRA make it clear

that an inmate is not required to allege exhaustion of remedies in his

§ 1983 prison-conditions complaint. Instead, an inmate’s failure to

exhaust his administrative remedies must be viewed as an affirmative

defense that should be pleaded or otherwise properly raised by the

defendant. See, e.g., Wyatt, 315 F.3d at 1119 ("[N]onexhaustion under

§ 1997e(a) of the PLRA does not impose a pleading requirement. We

hold that § 1997e(a) creates a defense—defendants have the burden

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 11
of raising and proving the absence of exhaustion."); Ray, 285 F.3d at

295 ("We thus join the many other circuits that have held that failure

to exhaust is an affirmative defense to be pleaded by the defendant.");

Foulk, 262 F.3d at 697 ("[R]eliance upon the PLRA exhaustion

requirement is an affirmative defense . . . ."). We pause to emphasize,

however, that our determination that failure-to-exhaust is an affirmative defense does not foreclose in all cases the possibility of a sua

sponte dismissal on exhaustion grounds. 

In Nasim v. Warden, 64 F.3d 951 (4th Cir. 1995) (en banc), we

concluded that the district court’s authority to sua sponte dismiss an

in forma pauperis case as frivolous was broad enough to permit the

court to dismiss a complaint on the basis of an affirmative defense

that was apparent from the facts alleged in the complaint. See id. at

954-55; see also Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983)

(affirming § 1915(d) dismissal of actions which appeared on their

face to be barred by statute of limitations).4 While it seems unlikely

that the failure to exhaust administrative remedies will often be apparent from the face of a complaint, it is certainly possible that a complaint may clearly show that an inmate has not exhausted his

administrative remedies. In such a case, sua sponte dismissal under

Nasim would be appropriate. 

Morever, we have recognized in the habeas context that a district

court has the authority to sua sponte raise an affirmative defense

(timeliness of the habeas filing) as grounds for dismissal, so long as

the court gives the petitioner an opportunity to respond. See McMillan

v. Jarvis, 332 F.3d 244, 249-50 (4th Cir. 2003); Hill v. Braxton, 277

F.3d 701, 706-07 (4th Cir. 2002). We found such an approach proper

because the statutory time-limit for filing habeas petitions "implicates

4Nasim was decided before the PLRA was enacted, and it involved 28

U.S.C.A. § 1915 (West Supp. 2004), the generally applicable in forma

pauperis ("IFP") statute. Nonetheless, Nasim is applicable to PLRA

cases. The PLRA and the IFP statute are closely related. Many sections

of the PLRA are simply amendments to the IFP statute, and most of the

cases now brought under the PLRA would previously have been brought

under the IFP statute. Moreover, Nasim’s holding was premised on the

broad discretion that the IFP statute gave the district court to screen out

meritless cases, see Nasim, 64 F.3d at 954-55, discretion that likewise

forms an integral part of the PLRA, see 42 U.S.C.A. § 1997e(c). 

12 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES
values beyond the interests of the parties and, in particular, promotes

judicial efficiency and conservation of judicial resources." Hill, 277

F.3d at 706 (internal quotation marks omitted). Similar concerns of

efficiency and conservation of scarce judicial resources, of course,

underlie the PLRA in general and its exhaustion requirement in particular. See, e.g., Porter, 534 U.S. at 524-25 ("Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the

quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally

before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might

improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review

might filter out some frivolous claims. And for cases ultimately

brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy." (citations

and internal quotation marks omitted)). In the context of PLRA

claims, then, we believe it is appropriate to recognize that district

courts have the same authority to inquire into the applicability of an

affirmative defense as in the habeas context. Such a conclusion gives

some teeth to the PLRA’s exhaustion requirement, yet does not do a

disservice to the statutory language carefully chosen by Congress. 

Accordingly, we conclude that a district court may raise the issue

of exhaustion of remedies on its own motion. Except in the rare case

where failure to exhaust is apparent from the face of the complaint,

however, a district court cannot dismiss the complaint without first

giving the inmate an opportunity to address the issue.5See Snider v.

Melindez, 199 F.3d 108, 113 (2d Cir. 1999) ("[W]hile the district

court was free to [raise exhaustion of remedies] on its own motion,

it erred in dismissing the complaint without giving Snider notice and

an opportunity be heard in opposition."); cf. McMillan, 332 F.3d at

249-50 (explaining that a district court may not sua sponte dismiss a

5District courts taking this approach must exercise caution. To determine whether an inmate has exhausted his administrative remedies

requires an understanding of the remedies available and thus likely

would require information from the defendant as well as the inmate. See

Mojias v. Johnson, 351 F.3d 606, 610-11 (2d Cir. 2003); Snider, 199

F.3d at 113-14. 

ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES 13
habeas petition as untimely without first giving the petitioner an

opportunity to respond). 

III.

Accordingly, for the foregoing reasons, we conclude that the

PLRA’s exhaustion-of-remedies requirement does not impose a

heightened pleading obligation on an inmate. Instead, an inmate’s

failure to exhaust administrative remedies is an affirmative defense to

be pleaded and proven by the defendant. That exhaustion is an affirmative defense, however, does not preclude the district court from

dismissing a complaint where the failure to exhaust is apparent from

the face of the complaint, nor does it preclude the district court from

inquiring on its own motion into whether the inmate exhausted all

administrative remedies. Because the district court in this case dismissed Anderson’s complaint on exhaustion grounds without giving

him an opportunity to respond to the issue,6 we reverse the judgment

of the district court and remand for further proceedings. Given our

disposition of this issue, we need not consider whether Anderson sufficiently alleged exhaustion in his complaint, as he contends. We likewise decline to consider whether the PLRA’s requirements apply to

claims brought under state law.7

REVERSED AND REMANDED

6Although Anderson filed a motion under Rule 59(e) in which he

asserted that he had exhausted his remedies, a motion to alter or amend

the judgment does not provide an inmate with an adequate opportunity

to address the exhaustion issue. See Hill v. Braxton, 277 F.3d 701, 708

(4th Cir. 2002) ("Rule 59(e) is not an adequate avenue for the petitioner

to pursue a tolling argument because it affords a narrower basis for relief

than is available prior to entry of a judgment."). 

7We note that the defendants contend that the district court’s decision

should be affirmed because Anderson’s claims are barred by the statute

of limitations. The district court did not address that issue, and the defendants did not file a cross-appeal. We therefore decline to consider the

statute of limitations issue. See El Paso Nat. Gas Co. v. Neztsosie, 526

U.S. 473, 479 (1999); Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Cir.

1969). The district court is free to consider de novo that issue (and any

other not directly addressed in this opinion) should it arise on remand.

14 ANDERSON v. XYZ CORRECTIONAL HEALTH SERVICES