1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0252P (6th Cir.)

File Name: 03a0252p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DOUGLAS THOMAS,

Plaintiff-Appellant,

v.

SHAWN WOOLUM,

Defendant,

RICHARD KEPLER;

CHARLOTTE STARCHER;

BILLIE WADDELL, SR.,

Defendants-Appellees.

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No. 01-3227

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 99-01120—James L. Graham, District Judge.

Argued: August 6, 2002

Decided and Filed: July 28, 2003 

2 Thomas v. Woolum, et al. No. 01-3227

*

The Honorable Gerald E. Rosen, United States District Judge for the

Eastern District of Michigan, sitting by designation.

Before: MOORE and GILMAN, Circuit Judges; ROSEN,

District Judge.*

_________________

COUNSEL

ARGUED: Alphonse A. Gerhardstein, LAUFMAN &

GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Todd R.

Marti, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONSLITIGATION SECTION, Columbus, Ohio,

for Appellee. ON BRIEF: Alphonse A. Gerhardstein, Paul

M. Laufman, LAUFMAN & GERHARDSTEIN, Cincinnati,

Ohio, for Appellant. Todd R. Marti, OFFICE OF THE

ATTORNEY GENERAL, CORRECTIONS LITIGATION

SECTION, Columbus, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court. GILMAN,

J. (pp. 25-27), delivered a separate concurring opinion.

ROSEN, D. J. (pp. 28-66), delivered a separate opinion

dissenting in part and concurring in the judgment.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Congress’s

passage of the Prison Litigation Reform Act (“PLRA”) was

an attempt to curb rampant prison litigation in the federal

courts, but its enactment did not erode the role of the federal

courts as vindicators of federal rights. The PLRA explicitly

requires an inmate seeking to challenge prison conditions in

federal court to exhaust any available administrative

remedies, but the statute’s text does not condition access to

the federal courts on satisfying the procedures and timelines
No. 01-3227 Thomas v. Woolum, et al. 3

of prison administrators. Thus, this case turns not on whether

exhaustion is required, the answer to which is well settled, but

on what exhaustion requires. We answer that question in

light of Congress’s purpose in passing the PLRA and

Supreme Court precedent regarding the exhaustion doctrine’s

oft-stated purpose: to give prison officials the first

opportunity to address inmate complaints according to their

rules and procedures without letting those timetables dictate

the outcomes of § 1983 actions. Accordingly, we hold that so

long as an inmate presents his or her grievance to prison

officials and appeals through the available procedures, the

inmate has exhausted his or her administrative remedies, and

a prison’s decision not to address the grievance because it was

untimely under prison rules shall not bar the federal suit. We

also hold, however, that when a grievance does not give

prison officials notice of the nature of the inmate’s complaint,

the inmate has not met the PLRA’s requirements. We thus

AFFIRM the judgment of the district court.

I. BACKGROUND

When inmate Douglas Thomas told a supervising officer at

the North Central Correctional Institution (“NCCI”) that he

felt stressed out and needed “to lay it down for a few days,”

the officer instructed Corrections Officer Shawn Woolum to

take Thomas down to the segregation unit. J.A. at 84

(Springer Incident Rep.). Woolum, with whom Thomas had

exchanged angry words earlier that day, took the opportunity

to retaliate. While walking Thomas down to segregation,

Woolum instructed another inmate who was present to leave

and began to pummel the handcuffed Thomas. Woolum

struck Thomas from behind, slammed him into a steel door,

and banged his face against the steel door and cement walls.

Upon their arrival at the holding cell, Woolum slammed

Thomas into a steel doorframe, picked him up, and slammed

his face and head again into a cement wall. Woolum then

stomped on Thomas’s foot. Thomas was in handcuffs during

the relevant time and did not resist. As a result of Woolum’s

actions, Thomas suffered a broken clavicle, broken ribs, a

4 Thomas v. Woolum, et al. No. 01-3227

broken foot, facial lacerations, and massive swelling. Thomas

alleges that Officers Richard Kepler, Charlotte Starcher, and

Billie Waddell, Sr. observed the beating, but they failed to

intervene. That was on November 5, 1997.

Various investigations followed. OfficersWoolum,Kepler,

and Waddell, along with the supervising officer who had

suggested Thomas go to segregation and the nurse who

treated Thomas’s injuries, filed “incident reports,” as prison

regulations require when an employee struggles with an

inmate or observes such a struggle. Ohio Admin. Code

§ 5120-9-02(A)-(B) (1997). Thomas also filed a voluntary

statement the day after the incident, in which he described

what had happened and noted, “At some point when I was

being beaten while wearing handcuffs I seen officers looking

but the only on[e] I knew was Bill[ie] Waddell.” J.A. at 153.

In accord with regulations, prison officials then formed a

Use of Force Committee to investigate the incident. Having

heard additionalstatements, including another statement from

Thomas describing Woolum’s actions, the Use of Force

Committee issued a report concluding that Woolum had used

an inappropriate amount of force; after disciplinary

proceedings some time later, Woolum was fired. Under the

administrative code, however, the inmate has no right to view

the report or the evidence used to create it.

In addition to the prison’s internal administrative inquiry,

Thomas invoked the formal grievance procedure. After being

transferred to the Allen Correctional Institution (“ACI”), on

May 1, 1998, Thomas requested a grievance form in order to

report the November 5 incident. On or about May 4, 1998,

Thomas filed a Notification of Grievance with NCCI’s

institutional inspector. The Notification of Grievance form

requires the prisoner to state “[t]he nature of the Grievance”

in specific terms. Thomas stated, in part, as follows:

[O]n Nov. 5th while I was at NCCI I was assaulted by

[Corrections Officer] Woolum while I was in handcuffs
No. 01-3227 Thomas v. Woolum, et al. 5

and I had several bones broken and have since been

transferred to A.C.I. administratively. Also as you know

the state troopers & the FBI have conducted

investigations. . . . The Prison[] Litigation Reform Act &

Title 42 of the United States Code require[] that a

prisoner must exhaust state remedies prior to litigation.

Therefore I ask that [Corrections Officer] Woolum be

removed and released from his employment with the

Department of Corrections and that I am awarded 5

million dollars.

J.A. at 33. The institutional inspector denied relief,

apparently because the grievance was not filed within the

thirty-day period required by Department of Rehabilitation

and Correction (“Department”) policy.

Thomas pursued his grievance. Following the initial

denial, Thomas appealed to the Chief Inspector. Thomas

argued that the ACI law library had been provided copies of

Department policy manuals only in the last thirty to forty-five

days, that the thirty-day time limit was a recent change in

policy, and that prisoners had not been notified of the change

in policy. On October 30, 1998, the Chief Inspector denied

Thomas relief, determining that the grievance was filed too

late and that information regarding the Department’s new

time-limit policy was available in the law library.

Accordingly, the decision of the Chief Inspector stated, “This

Office will take no further action in regard to your complaint

at this time.” J.A. at 35.

Thomas filed a complaint in state court on November 5,

1998, against Woolum and John Does and Jane Does,

alleging that Woolum applied excessive force and that the

John Does and Jane Does failed to protect Thomas and

prevent the beating. Thomas claims that during discovery for

the state-court action, he learned that Kepler, Starcher, and

Waddell were present during the beating and failed to protect

him. Indeed, statements that officers had filed with their

incident reports and the Use of Force investigation —

6 Thomas v. Woolum, et al. No. 01-3227

statements that Thomas had no right to access — indicated

that other officers might have observed Woolum’s actions and

not intervened. Thomas learned through these documents, for

example, that Officer Kepler “heard a loud noise coming from

the sallyport” and “exited the R.I.B. office to investigate,”

J.A. at 88; that Officer Waddell “walked into the hall [when]

Thomas was being put in a holding cell,” J.A. at 89, which

meant that, according to the Use of Force Committee’s

conclusions, Waddell might have watched Thomas being

pushed in a way that caused his head to strike the wall; and

that Officer Starcher admitted having seen Thomas in the

holding cell. From these newly available statements, Thomas

appears to have concluded that these three officers may have

witnessed Woolum’s assault.

The state court action against Woolum and the John Does

and Jane Does was then dismissed without prejudice on

October 20, 1999, and Thomas filed the original complaint in

U.S. District Court on October 22, 1999. This time, Thomas

sued not John Does and Jane Does, but armed with the

information obtained in state court discovery, instead sued

Woolum, Kepler, Starcher, and Waddell. After briefing, the

district court ruled that Thomas had not exhausted his

remedies with respect to Kepler, Starcher, and Waddell.

Thomas’s grievance form, the District Court reasoned, was

“against defendant Woolum,” not the other defendants, J.A.

at 114, so although the court eventually awarded Thomas

$70,000 on his claim against Woolum, it dismissed his claims

against Kepler, Starcher, and Waddell for failure to exhaust.

Thomas appealed the dismissal of his claims against the

other defendants. The defendants now offer two ways in

which Thomas failed to exhaust his remedies against Kepler,

Starcher, and Waddell: (1) that we may not look at Thomas’s

state prison grievance at all, and (2) that his grievance was

insufficient to exhaust his claims. First, the defendants argue

that Thomas failed to exhaust his administrative remedies

because he did not file his grievance regarding the

November 5, 1997 beating until May of 1998, after the thirty-
No. 01-3227 Thomas v. Woolum, et al. 7

day period in which the Department will accept grievances

had expired. Second, they argue that his grievance was not

“against” them, but against Woolum alone, and that he could

not bring a suit against them. We review de novo any legal

determinations made in dismissing a complaint for lack of

subject matter jurisdiction, including a determination that the

plaintiff did not exhaust administrative remedies, and we

review any factual findings for clear error. See Cathedral

Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 358

(6th Cir. 2000). We begin with the defendants’ first

argument, for before we may determine whether Thomas’s

grievance was sufficient, it is necessary for us to determine

whether we may look at his grievance at all.

II. COMPLIANCE WITH STATE PROCEDURAL

REQUIREMENTS

The Prison Litigation Reform Act prohibits inmates from

challenging prison conditions in federal courts until they have

exhausted their available administrative remedies. 42 U.S.C.

§ 1997e(a). There is no doubt that under the PLRA,

exhaustion by prisoners is mandatory. See Booth v. Churner,

532 U.S. 731, 739 (2001); see also Page v. Torrey, 201 F.3d

1136, 1139 (9th Cir. 1999) (recognizing that exhaustion

requirement applies only to those who are “currently

detained,” not former prisoners, and noting agreement of the

Second, Seventh, and Eighth Circuits). The exhaustion

requirement ensures that state prison systems will have an

opportunity to handle prison grievances internally before

recourse to the federal courts becomes available. But

exhaustion is not the same as procedural default, and in

similar state administrative contexts, the Supreme Court has

held that state timelines cannot foreclose access to the federal

courts when a petitioner has exhausted his or her state

administrative remedies by bringing a grievance to the state

and pursuing that grievance through to the administrative

agency’s final ruling. That is, the exhaustion requirement is

a “termination” requirement, requiring a petitioner to pursue

administrative remedies as far as they exist. So long as a

8 Thomas v. Woolum, et al. No. 01-3227

prisoner meets this requirement, a federal claim will not be

barred by the plaintiff’s failure to comply with a state prison’s

internal procedural requirements.

A. Exhaustion and the PLRA

By requiring prisoners who challenge the conditions of

their confinement to exhaust first their state administrative

remedies, the PLRA grants state prison systems the initial

opportunity to address their internal problems. Whereas parts

of the PLRA aim to ease the burden that meritless prisoner

lawsuits impose on state law-enforcement officials and the

federal docket, see, e.g., 42 U.S.C. § 1997e(c)(1) (permitting

court to dismiss sua sponte prisoner suits that are obviously

frivolous); id. § 1997e(f) (authorizing pretrial hearings via

telephone or videoconference rather than in-person

appearance of the prisoner); id. § 1997e(g)(1) (permitting

defendant to waive the right to reply to prisoner actions),

nothing suggests that a goal of the act, and specifically, of the

exhaustion requirement, was to defeat valid constitutional

claims. Rather, the exhaustion requirement simply recognizes

that unless a prisoner first presents his or her grievance to the

state prison system, what will often be the most efficient

mechanism to remedy a violation of federal law will be lost.

See Porter v. Nussle, 534 U.S. 516, 525 (2002) (“Congress

afforded corrections officials time and opportunity to address

complaints internally before allowing the initiation of a

federal case.”). The exhaustion requirement is therefore a

benefit accorded to state prisons, an opportunity to satisfy

those inmate grievances the state wishes to handle internally.

See Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (“Since

these internal problems of state prisons involve issues so

peculiarly within state authority and expertise, the States have

an important interest in not being bypassed in the correction

of those problems.”). It is “an accommodation of our federal

system designed to give the State an initial opportunity to

pass upon and correct alleged violations of its prisoners’

federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971).

It is not, however, designed to permit state administrative
No. 01-3227 Thomas v. Woolum, et al. 9

1We have rendered two unpublished orders in which we held that the

exhaustion requirement was not met because of a failure to meet a state’s

procedural deadlines. However, these unpublished orders have no

precedential value and do not bind this panel. Jacobs v. Wilkinson, No.

00-3212, 2001 WL 1298979 (6th Cir. Aug. 8, 2001) (Unpub. Order);

Qawi v. Stegall, No. 98-2402, 2000 WL 571919 (6th Cir. May 3, 2000)

(Unpub. Order).

timelines to handcuff the federal courts in adjudicating cases

involving important federal rights. Accordingly, the PLRA

does not contain any language regarding the timeliness of

grievance filings or the application of procedural default; if

the state forgoes an opportunity to decide matters internally

whether for internal time constraints or any other reason, the

PLRA has nonetheless served its purpose, and the prisoner

may proceed to federal court.

Because the purpose of the exhaustion requirement is to

provide states the first opportunity to resolve problems

themselves, an inmate who has not pursued available

administrative remedies may not yet proceed in federal court.

Thus, we have clearly held that an inmate does not exhaust

available administrative remedies when the inmate entirely

fails to invoke the prison’s grievance procedure, see

Hartsfield v. Vidor, 199 F.3d 305, 308-09 (6th Cir. 1999);

Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert.

denied, 525 U.S. 833 (1998), or when the inmate filed such a

grievance but “did not appeal the denial of that complaint to

the highest possible administrative level,” Wright v. Morris,

111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522 U.S. 906

(1997); see also Freeman v. Francis, 196 F.3d 641, 645 (6th

Cir. 1999). However, we have not previously ruled in a

published opinion1 that an inmate fails to exhaust his or her

available administrative remedies when the inmate invokes

the prison’s grievance system initially and appeals the denial

of that grievance, but is time barred by the prison’s

administrative procedures.

10 Thomas v. Woolum, et al. No. 01-3227

Our precedent demonstrates only that, in keeping with the

plain language of § 1997e(a), a prisoner does not exhaust his

administrative remedies when he fails to commence the

grievance process or to run the gamut of potential appeals. In

Hartsfield, we dismissed a prisoner’s § 1983 suit because the

disappearance of the prisoner’s grievance form, the lack of

any evidence demonstrating that a grievance was actually

filed, and the failure of the prisoner to refile a grievance did

not support the argument that the prisoner ever began the

grievance process. 199 F.3d at 308-09; see also Jones v.

Smith, 266 F.3d 399, 400 (6th Cir. 2001) (affirming dismissal

of § 1983 suit because plaintiff prisoner was not vigilant

enough in obtaining a grievance form after his initial request

for one was denied and because the prisoner never made “any

other attempt to obtain a form or to file a grievance without

a form”). In Freeman, the exhaustion requirement was not

met because the prisoner jumped the gun, and despite making

some attempts to follow the proper grievance procedures,

filed a federal complaint before completing all of the stages

of the internal grievance process. 196 F.3d at 645. In Wright

v. Morris, one prisoner filed an initial grievance, but then

failed to appeal the denial of this grievance through the entire

process. 111 F.3d at 417 n.3; see also Harper v. Jenkin, 179

F.3d 1311, 1312 (11th Cir. 1999) (dismissing § 1983 claim

because the inmate did not appeal the denial of the grievance,

thus failing to give the state a full chance to hear the

grievance). These cases thus address the situation in which

the prisoner is attempting to “bypass the exhaustion

requirement by declining to file administrative complaints

and then claiming that administrative remedies are timebarred and thus not then available.” Wright, 111 F.3d at 417

n.3.

Here, however, Thomas filed a grievance in the prison’s

formal grievanceprocess, and once that grievance was denied,

Thomas appealed as far as he could. He had quite literally

exhausted his ability to go any further within the internal

prison system. There were no more avenues to travel within

the state prison system. If Thomas had failed to file, the state
No. 01-3227 Thomas v. Woolum, et al. 11

2

Analogizing the prison grievance system to other state

administrative processes is more apt than analogizing it to the process of

habeas relief. The Supreme Court has not placed any procedural default

hurdles upon the congressionally mandated exhaustion requirements for

Title VII and the ADEA, which are chiefly concerned with administrative

grievances. Thus, simply because the Supreme Court has crafted a

procedural default rule in the habeas corpus context to shore up potential

end-runs around the exhaustion requirement does not justify extending

procedural default outside of the sphere of criminal law. There are key

distinctions between the administrative grievance process and the habeas

process that warrant disparate applications of a procedural default

requirement. The notions of comity that prevent federal courts from

unduly interfering with the state criminal judicial process in the habeas

context do not have precisely the same resonance and intensity when

federal courts are analyzing the outcome of a non-criminal state

administrative process and when § 1983 interposes the federal courts as

a vindicator of federal rights.

prison system would never have had any opportunity to

review the claim. However, by filing, Thomas gave the state

an opportunity to hear the claim and, by appealing, Thomas

gave the state the opportunity to reconsider its decision.

Thomas received the benefit of the potential that the state

would hear his grievance by waiving the procedural

guidelines, which the state could have done if it wanted to

avoid federal court. The state received the benefit of dealing

with the case internally if it so desired. The defendants,

however, argue that exhaustion also requires more, and

specifically, that it requires compliance with state

administrative deadlines. Yet such an outcome would extend

our established precedent beyond its present boundaries.

B. Exhaustion and State Procedural Rules

In two similar statutory contexts requiring resort to state

administrative procedures, the Supreme Court hasspecifically

held that a plaintiff’s failure to comply with state statutes of

limitations cannot prevent the plaintiff from proceeding to

federal court.2 Both the Age Discrimination in Employment

Act and Title VII of the Civil Rights Act of 1964 require

plaintiffs to present their grievances in the relevant state

12 Thomas v. Woolum, et al. No. 01-3227

system before the plaintiff may initiate a federal suit. See 29

U.S.C. § 633(b) (ADEA); 42 U.S.C. § 2000e-5(c) (Title VII).

In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), the

Supreme Court held that an ADEA plaintiff who had

presented his grievance to the governing state agency after the

state’s statute of limitations had expired had nonetheless

satisfied the ADEA’s requirements and could proceed with

his federal suit. See Oscar Mayer, 441 U.S. at 753 (“[T]he

grievant is not required by [§ 633(b)] to commence the state

proceedings within time limits specified by state law.”).

Similarly, in EEOC v. Commercial Office Products Co., 486

U.S. 107 (1988), the Supreme Court held that a Title VII

plaintiff’s failure to comply with a state statute of limitations

in presenting her grievance to the state agency was irrelevant

in determining whether she could proceed to federal court.

See id. at 123 (“[S]tate time limits for filing discrimination

claims do not determine the applicable federal time limit.”).

For both of those frameworks, the Supreme Court relied on

three primary arguments to conclude that failure to comply

with state time limits could not prevent the plaintiff from

coming to federal court. All three arguments are applicable

in the present case. First, the Court found in both instances

that the absence of any mention in the statutes’ text of any

requirement of timeliness under state law indicated

Congress’s intent that state time requirements could not bar

the federal claims. In both cases, the Court insisted that such

a requirement could be imposed only by explicit mention.

See Oscar Mayer, 441 U.S. at 759 (“In particular, there is no

requirement [in the ADEA] that, in order to commence state

proceedings and thereby preserve federal rights, the grievant

must file with the State within whatever time limits are

specified by state law.”);Commercial Office Prods., 486 U.S.

at 124 (“Title VII, like the ADEA, contains no express

reference to timeliness under state law.”). Second, the Court

emphasized that state statutes of limitations should not serve

as a bar to federal court “‘in a statutory scheme in which

laymen, unassisted by trained lawyers, initiate the process.’”

Oscar Mayer, 441 U.S. at 761 (quoting Love v. Pullman Co.,
No. 01-3227 Thomas v. Woolum, et al. 13

404 U.S. 522, 527 (1972)); accordCommercial Office Prods.,

486 U.S. at 124. Third, the Court reasoned that state

procedural rules should not be able to prevent a federal court

from remedying a harm that Congress sought to prevent. The

requirement that plaintiffs first initiate state proceedings gave

states “a limited opportunity” to resolve discrimination

complaints, and “[i]ndividuals should not be penalized if

States decline, for whatever reason, to take advantage of these

opportunities.” Oscar Mayer, 441 U.S. at 761; see also

Commercial Office Prods., 486 U.S. at 123-24 (recognizing

that the filing provisions of the ADEA and Title VII are

nearly identical and that the same policy considerations apply

in each).

The latter two arguments unquestionably apply with equal

force in the context of the PLRA. First, the prison grievant is

generally the epitome of the layperson, unassisted by a trained

lawyer, seeking to invoke the legal process. Further, if states

may not use administrative time limits to defeat an ADEA or

a Title VII claim, they should not be able to defeat a claim

under the Civil Rights Act of 1871, Congress’s preeminent

declaration that state officials may not undermine federal law.

“A major factor motivating the expansion of federal

jurisdiction through [the predecessor to 42 U.S.C. § 1983]

was the belief of the 1871 Congress that the state authorities

had been unable or unwilling to protect the constitutional

rights of individuals or to punish those who violated these

rights.” Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 505

(1982) (refusing, absent explicit congressional instruction, to

create an exhaustion requirement for § 1983 suits). If we

were to create a rule that permitted states to defeat § 1983

suits with their administrative time limits, however, and

thereby let “unable or unwilling” state authorities prevail over

“the constitutional rights of individuals,” id., we would have

undone what Congress wrought. These rationales, which the

Supreme Court relied on to hold that compliance with state

statutes of limitations is irrelevant to a plaintiff’s ability to

14 Thomas v. Woolum, et al. No. 01-3227

3

Another, subsidiary argument relied on in the ADEA context

supports our conclusion. The Supreme Court reasoned in Oscar Mayer

that, because another provision of the ADEA identified a statute of

limitations for claims brought under that Act, the Court could not

“attribute to Congress an intent through [29 U.S.C. § 633(b)] to add to

these explicit requirements by implication and to incorporate by reference

into the ADEA the various state age-discrimination statutes of

limitations.” Oscar Mayer, 441 U.S. at 762-63. This structural argument

applies with similar force in the § 1983 context. Because 42 U.S.C.

§ 1988(a) indicates that the statute of limitations for an action under

§ 1983 is to be that provided for by “the common law, as modified by the

constitution and statutes of the State” of jurisdiction, 42 U.S.C. § 1988(a),

which under Ohio law provides for two years, see Browning v. Pendleton,

869 F.2d 989, 992 (6th Cir. 1989) (en banc), for us to borrow a different,

thirty-day statute of limitations suggested by an administrative agency for

its own internal grievance process would attribute to Congress an intent

that appears nowhere in the PLRA and is inconsistent with the reasoning

of Oscar Mayer. Congress nowhere suggested an intention “to

incorporate by reference,” Oscar Mayer, 441 U.S. at 762-63, state

administrative deadlines.

That Congress has instructed us to borrow a state’s statute of

limitations on personal injury actions in no way implies that we should

borrow a state prison’s administrative deadlines. The two deadlines serve

very different purposes; whereas a state legislature’s incentives in setting

its personal injury statute of limitations will be well balanced, a state

prison’s incentives in setting a time limit on inmate grievances —

especially if the limit would insulate prison officials from § 1983 suits —

would likely lead to shorter and shorter limitations periods. Compare,

e.g., Kentucky Corrections Policy 14.6(VI)(J) (requiring aggrieved inmate

to file grievance within five days, and appeal within three days), with

Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)

(recognizing statute of limitations for § 1983 actions at one year for those

in Kentucky’s general population). Although state officials may have

legitimate reasons for imposing deadlines on inmate grievances, there is

no reason that a prison’s legitimate interest in, for example, conserving

investigative resources must prohibit federal court jurisdiction.

bring a federal claim, apply with equal or stronger force to

claims under § 1983.3

Thus the only question is whether the language of § 1997e,

which prevents prisoners from challenging prison conditions

“until such administrative remedies as are available are

exhausted,” 42 U.S.C. § 1997e(a), distinguishes the PLRA
No. 01-3227 Thomas v. Woolum, et al. 15

from the ADEA and Title VII in such a way as to permit state

agencies to defeat federal claims. Title VII’s filing

requirement, after which the ADEA’s was patterned, reads as

follows:

In the case of an alleged unlawful employment practice

occurring in a State, or political subdivision of a State,

which has a State or local law prohibiting the unlawful

employment practice alleged and establishing or

authorizing a State or local authority to grant or seek

relief from such practice or to institute criminal

proceedings with respect thereto upon receiving notice

thereof, no charge may be filed under subsection [(b)] of

this section by the person aggrieved before the expiration

of sixty days after proceedings have been commenced

under the State or local law, unless such proceedings

have been earlier terminated, provided that such sixtyday period shall be extended to one hundred and twenty

days during the first year after the effective date of such

State or local law. If any requirement for the

commencement of such proceedings is imposed by a

State or local authority other than a requirement of the

filing of a written and signed statement of the facts upon

which the proceeding is based, the proceeding shall be

deemed to have been commenced for the purposes of this

subsection at the time such statement is sent by registered

mail to the appropriate State or local authority.

42 U.S.C. § 2000e-5(c). To be sure, as the Oscar Mayer court

indicated, a requirement that a would-be federal plaintiff

exhaust state remedies is different from a requirement that the

plaintiff commence state proceedings. See Oscar Mayer, 441

U.S. at 761. Accordingly, as Congress requires that an inmate

exhaust available administrative remedies, 42 U.S.C.

§ 1997e(a), the question is what exhaustion requires.

In a number of cases, the Supreme Court has suggested that

exhaustion is the antonym of commencement. Whereas

commencement requires the plaintiff to begin, exhaustion

16 Thomas v. Woolum, et al. No. 01-3227

requires the plaintiff to finish. In Oscar Mayer, for example,

the distinction between the ADEA’s requirement and an

exhaustion requirement focused not on any purported

difference in the two requirements’ power to defeat federal

claims, but on the simple fact that 29 U.S.C. § 633(b)

“requires only that the grievant commence state proceedings.”

Oscar Mayer, 441 U.S. at 759 (emphasis in original).

Exhaustion, then, provides the flip side of that coin,

“requir[ing] the court to delay action until the administrative

phase of the state proceedings is terminated.” Gibson v.

Berryhill, 411 U.S. 564, 574 (1973) (emphasis added).

Unlike the commencement requirement, which is crafted to

give state agencies an opportunity to resolve a problem while

federal action proceeds on a parallel track, see Oscar Mayer,

441 U.S. at 757 (recognizing that ADEA set up “concurrent

rather than sequential state and federal administrative

jurisdiction”), exhaustion is a termination requirement,

designed to keep federal courts out as long as the state

administrative machinery is working to resolve the problem.

Even the dissenters in Patsy v. Board of Regents of Florida,

who argued that § 1983 included a judicially created

exhaustion requirement for all plaintiffs, agreed that an

exhaustion requirement “does not defeat federal-court

jurisdiction, it merely defers it.” Patsy, 457 U.S. at 532

(Powell, J., dissenting). Thus when Congress imposed an

exhaustion requirement in the PLRA, but imposed no other

restrictions, it imposed a termination requirement. See, e.g.,

United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e

presume that Congress expects its statutes to be read in

conformity with this Court’s precedents.”).

With the PLRA, Congress could have required more than

an exhaustion requirement, but it chose not to. Congress

could have, for example, required in § 1997e(a) that, “In

exhausting available administrative remedies, the prisoner

shall comply with the prison’s reasonable time limits for

filing grievances. Untimely claims shall be deemed

procedurally defaulted.” Had Congress done so, the present

case would be much easier. But Congress did not, and the
No. 01-3227 Thomas v. Woolum, et al. 17

Supreme Court has instructed that we are not to impose such

requirements when Congress refuses. See Commercial Office

Prods., 486 U.S. at 124 (“Title VII, like the ADEA, contains

no express reference to timeliness under state law.”); Patsy,

457 U.S. at 514 (reasoning that legislatures, not courts, are to

determine “what consequences should attach to the failure to

comply with procedural requirements of administrative

proceedings”); Oscar Mayer, 441 U.S. at 759 (“In particular,

there is no requirement that, in order to commence state

proceedings and thereby preserve federal rights, the grievant

must file with the State within whatever time limits are

specified by state law.”).

To reach the contrary conclusion, we would have to impose

a judicially created procedural default rule, going well beyond

the exhaustion rule that Congress imposed with the PLRA

and contravening the Supreme Court’s explicit instructions in

the Oscar Mayer line of cases. This may be a tempting and

common mistake, but it is a mistake nonetheless, as Coleman

v. Thompson, 501 U.S. 722 (1991), shows. In discussing a

habeas petitioner who filed an untimely notice of appeal in

state court, the Court in Coleman reasons, “A habeas

petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion; there are no

state remedies any longer ‘available’ to him.” Id. at 732.

That is, by filing the notice of appeal, even though untimely,

the petitioner had exhausted his state remedies. The

petitioner failed not because he had failed to exhaust his

remedies, but because he had procedurally defaulted them.

See id. (“In the absence of the independent and adequate

state ground doctrine in federal habeas, habeas petitioners

would be able to avoid the exhaustion requirement by

defaulting their federal claims in state court.”) (emphasis

added). Procedural default is thus distinct from the

exhaustion requirement, an additional requirement added on

top of exhaustion.

Although there may be an “interplay” between the two

doctrines, O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999),

18 Thomas v. Woolum, et al. No. 01-3227

and they appear together when there is a procedural default

“at trial, on appeal, or on state collateral attack,” Edwards v.

Carpenter, 529 U.S. 446, 451 (2000), the Supreme Court’s

habeas decisions make clear that they are different doctrines

that impose different requirements. The judiciary created the

procedural default rule to ensure that courts did not issue

advisory opinions when an independent and adequate state

ground supported a state court’s judgment, and extended the

rule into the habeas context only because “a state prisoner is

in custody pursuant to a judgment” that would be rendered

ineffective by a federal court’s ruling. Coleman, 501 U.S. at

729-30 (emphasis in original). This extension of the

procedural default rule into the habeas context obviously

cannot support its extension into exhaustion of prison

administrative remedies, as we have never considered a state

warden’s decision on a grievance to be the equal of a full

state-court judgment. Indeed, the Supreme Court’s habeas

decisions instruct that, whereas the procedural default

doctrine requires a habeas petitioner to comply with

reasonable state procedural rules, the exhaustion requirement

requires that “state prisoners . . . give the state courts one full

opportunity to resolve any constitutional issues by invoking

one compete round of the State’s established appellate review

process.” Boerckel, 526 U.S. at 845. This is precisely our

holding here.

Thus the only ground for barring a federal § 1983 suit due

to an untimely prison grievance is that we would otherwise

render prison grievance procedures irrelevant. If a prisoner

knows that he or she may file a federal suit by filing an

untimely grievance, the argument goes, prisoners will have an

incentive to bypass the prison grievance process by waiting

until its deadline has passed, filing an untimely grievance, and

then proceeding to federal court. Indeed, the Seventh Circuit

appears to have relied on this policy argument in holding that

an untimely grievance will bar a § 1983 suit. See Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied, --

U.S. --, 123 S. Ct. 414 (2002). However, not only does this

argument sweep aside the meaning of exhaustion, it is an
No. 01-3227 Thomas v. Woolum, et al. 19

4

There is no doubt that deadlines are mutually beneficial for both

prison administrators and prisoners. The dissenting opinion claims that

we view “time limits as mere traps for the unwary, and utterly fail[] to

acknowledge that procedural deadlines serve the legitimate interests of

both sides to a dispute” and the dissent accuses us of ascribing “nefarious

motives . . . to prison administrators who seek to enforce . . . deadlines.”

Diss. Op. at 30 (emphasis deleted). Then, while mistakenly criticizing the

majority for an assumption it does not make, the dissenting opinion makes

the equally sweeping and erroneous presumption that absent a procedural

default requirement, prisoners will have “carte blanche . . . to ignore any

and all administrative time limits” and will purposefully default their

administrative remedies to seek a trip to federal court. Id. at 32.

However, the perception that the absence of procedural default

guidelines in this area will result in prisoners purposefully not filing

grievances within the deadlines in order to bypass the internal prison

system is counterbalanced by the equally real concern that in the presence

of procedural default standards, prison administrators will impose shorter

and shorter deadlines measured in hours and days, because prisoners will

then have no recourse to the federal courts if they miss even one deadline.

Following the dictates of Congress and refraining from judicially

argument that the Supreme Court specifically rejected in

Oscar Mayer itself. There is “[n]o reason” why one would

“wish to forgo an available state remedy,” the Court reasoned;

“[p]rior resort to the state remedy would not impair the

availability of the federal remedy, for the two are

supplementary, not mutually exclusive.” Oscar Mayer, 441

U.S. at 764. That is, permitting prisoners to file in federal

court following an untimely grievance in no way creates an

incentive to bypass state remedies, for potential litigants will

still have every incentive to raise their grievance within the

prison’s timelines, because it is in the prison grievance

process that inmates will, for most practical purposes, receive

their swiftest and most effective remedies. Those who bypass

it will generally do so to their own disadvantage. In fact, the

policy argument works in favor of the conclusion we reach

here: prison administrators, knowing that their refusal to

entertain grievances filed after certain deadlines will not

protect them from subsequent litigation, will more likely take

advantage of the opportunity to resolve the grievance that the

PLRA has granted them.4

20 Thomas v. Woolum, et al. No. 01-3227

imposing a procedural default mechanism where none was legislated best

balances these concerns and maintains the mutually advantageous internal

grievance system.

Both prisoners and prison administrators gain little from prisoners

jumping right to federal court as opposed to utilizing the prison grievance

system first, because internal resolution of disputes gives prisoners more

of an opportunity for quick resolution of their problems. Judicial

restraint, exercised by the majority by not grafting a procedural default

requirement onto the PLRA, serves both prisoners and prisons here

because it maintains the potential for federal recourse. As a result, prison

officials will not make grievance deadlines unduly short, as they will

establish timelines that are lengthy enough to permit administrators to

evaluate grievances internally so as to avoid a trip to the federal

courthouse. Prisoners in turn will have more time to meet deadlines and

prepare their grievances.

Thus the PLRA’s exhaustion requirement distinguishes the

PLRA from the interpretations of Title VII and the ADEA,

but not in a manner meaningful for this case. Exhaustion of

state administrative remedies under the PLRA requires a

plaintiff not only to bring his or her claim before the state, but

to see it through to completion, appealing denials as permitted

and participating in offered hearings. Exhaustion also

requires a plaintiff to bring a grievance to the state before

coming to federal court even when the state has made clear

that it will not grant the relief requested. See Booth, 532 U.S.

at 736. But just as a state prison system’s decision not to

grant certain kinds of relief does not strip the federal courts of

their power to grant that relief under § 1983, so too its

decision not to grant relief in particular cases — whether for

timeliness or for any other state procedural requirement —

does not strip the federal courts of their power to do so.

Thomas brought his grievance to the prison officials’

attention, they refused to hear it, and he appealed their

decision through each available level. That prison officials

did not wish to address his complaint, as they prefer only to

address complaints brought before them within thirty days, is

irrelevant for our purposes. Thomas gave the state officers an

opportunity, which is all that is required. We may not

penalize Thomas simply because the prison does not wish to
No. 01-3227 Thomas v. Woolum, et al. 21

hear grievances more than thirty days after the incident. See

Oscar Mayer, 441 U.S. at 761. We therefore hold that a

prisoner who has presented his or her grievance through one

complete round of the prison grievance process has exhausted

the available administrative remedies under 42 U.S.C.

§ 1997e(a), regardless of whether the prisoner complied with

the grievance system’s procedural requirements.

III. EXHAUSTION OF CLAIMS

Although a grievance that is untimely under prison rules

still gives state prison officials an opportunity to address an

inmate’s complaints, a grievance that does not give officials

notice of the nature of the inmate’s grievance does not afford

the officials the opportunity the PLRA requires. Thomas

argues that between his official grievance form and his

cooperation with the prison’s Use of Force investigation, in

which he specifically mentioned the presence of other officers

who failed to protect him, he gave prison officials sufficient

notice for them to address his concerns in the grievance

process. True though that may be, our cases require more.

Because Thomas made no reference to the issues involved in

his failure-to-protect claim in his grievance, we must find that

he failed to exhaust his administrative remedies with respect

to the claims against Kepler, Starcher, and Waddell.

Thomas’s grievance form does not offer the kind of

information that our precedent requires for exhausting his

claims against Kepler, Starcher, and Waddell. Thomas’s

grievance mentions neither the defendants themselves nor any

facts suggesting that officers other than Woolum knew

anything of the incident. Thomas was indisputably aware of

the other officers’ presence at the time, as he mentioned them

in the incident report he filed the day after the beating, so this

case falls under the rule of Curry v. Scott, 249 F.3d 493 (6th

Cir. 2001), which requires that “a prisoner file a grievance

against the person he ultimately seeks to sue,” id. at 505.

Similarly, in Hartsfield v. Vidor, we ruled that a prisoner who

named three officers in his grievance, and who could have but

22 Thomas v. Woolum, et al. No. 01-3227

did not name two additional officers, had not exhausted his

administrative remedies with respect to the two previously

unnamed officers. Hartsfield, 199 F.3d at 308-09. He thus

did not “administratively exhaust his . . . claim as to each

defendant associated with the claim.” Burton v. Jones, 321

F.3d 569, 574 (6th Cir. 2003). Although an inmate need not

identify each officer by name when the identities of the

particular officers are unknown, Thomas here knew one onlooking officer’s identity and knew that others had watched

the beating as well. Accordingly, his grievance form should

have noted either the other officers’ names or the fact that

other officers had seen the beating.

Thomas suggests that his deficient grievance

notwithstanding, he satisfied the exhaustion requirement by

participating fully in the prison’s internal investigation.

Indeed, the day after the attack, Thomas told prison officials

that Officer Waddell and other officers had witnessed Officer

Woolum’s actions, a notification that — when combined with

Thomas’s subsequent filing of an official grievance regarding

the incident — would seem to accomplish many purposes of

the PLRA’s exhaustion requirement. However, it is no longer

sufficient for an inmate simply to give prison officials notice

of the complaint by cooperating with other investigations, as

was sufficient in such pre-PLRA “substantial compliance”

cases as Wolff v. Moore, 199 F.3d 324, 329 (6th Cir. 1999).

In our post-PLRA cases we have emphasized that “the

exhaustion requirement in § 1997e(a) is directed at exhausting

the prisoner’s administrative remedies,” and that Use of Force

or other investigations do not satisfy the PLRA’s dictates.

Freeman, 196 F.3d at 644. In determining whether the

inmate has exhausted his or her remedies, we thus look to the

inmate’s grievance, not to other information compiled in

other investigations. Although an inmate grievance might

conceivably specifically incorporate or otherwise refer to

information previously obtained, it must do so in a manner

that points prison officials to the relevant materials. That is

not what happened here.
No. 01-3227 Thomas v. Woolum, et al. 23

Finally, Thomas suggests that our requirement that prison

grievances be filed “against” potential defendants, Curry, 249

F.3d at 505, mistakes the prison grievance process as a type

of civil action. Grievances are not filed “against” individual

persons, Thomas argues, but are rather filed regarding certain

problems; accordingly, a grievance should be understood to

exhaust remedies so long as it alerts prison officials to a

problem to be investigated, whether or not it identifies

specific individuals. Sims v. Apfel, 530 U.S. 103 (2000),

supports Thomas’s position. In Sims, a Social Security case,

the Supreme Court ruled that even when a party is required to

exhaust administrative remedies, the plaintiff is not

necessarily required to exhaust each specific issue that he or

she intends to bring to federal court. See id. at 112 (plurality);

id. at 113 (O’Connor, J., concurring). Rather, “the

desirability of a court imposing a requirement of issue

exhaustion depends on the degree to which the analogy to

normal adversarial litigation applies in a particular

administrative proceeding.” Id. at 109 (majority). Applying

the reasoning of Sims to the problem-solving mechanism of

an inmate grievance procedure, a court might well conclude

that the process is “inquisitorial rather than adversarial,” id.

at 111 (plurality), and thus that a court should not impose an

issue-exhaustion requirement on top of the PLRA’s general

exhaustion requirement. On that view, an inmate’s grievance

informing prison officials that he had been beaten by an

officer would be sufficient to notify the prison of claims

arising out of that beating, including, perhaps, a claim that

other officers had witnessed the event but failed to intervene.

However, we are bound by our decision in Curry, which

apparently found the Sims reasoning inapplicable in the prison

context and which thus requires prisoners to file grievances

“against” specific defendants. See Hinchman v. Moore, 312

F.3d 198, 203 (6th Cir. 2002) (noting that one panel cannot

overrule a prior panel’s published decision). Thomas is thus

subject to Curry’s standards; as his grievance contained no

information relevant to his claims against Kepler, Starcher,

and Waddell, we conclude that he has not exhausted his

claims with respect to those defendants.

24 Thomas v. Woolum, et al. No. 01-3227

IV. CONCLUSION

Had Thomas’s grievance pointed prison officials to the

alleged presence of other officers when Officer Woolum was

beating him, it would have given the officials a sufficient

opportunity to investigate the other officers’ actions. The

prison may have declined that opportunity, as it prefers to

address only those grievances filed within a particular time

limit. But the prison would have been given the opportunity,

which is all that § 1997e(a) requires, so we hold that the

timeliness of an inmate’s grievance is irrelevant under the

PLRA’s exhaustion requirement. Because Thomas’s

grievance did not contain the necessary information, however,

it did not give prison officials the requisite opportunity. We

thus conclude that Thomas failed to exhaust his

administrative remedies with respect to Officers Kepler,

Starcher, and Waddell, and we AFFIRM the district court’s

judgment.
No. 01-3227 Thomas v. Woolum, et al. 25

_________________

CONCURRENCE

_________________

RONALD LEE GILMAN, Circuit Judge, concurring. I

fully concur in Judge Moore’s opinion. My purpose in

writing separately is to acknowledge the difficulty of the issue

before us and to explain why I believe that Judge Rosen’s

opinion is less persuasive in interpreting what it means to

exhaust “available administrative remedies” under the PLRA.

To begin with, I must confess that I find the question of

whether a prisoner must comply with the prison’s

administrative deadlines as a precondition to filing a § 1983

action in federal court to be extremely difficult. I have indeed

flip-flopped on this issue during the course of extensive

deliberations with my two erudite colleagues, no doubt to the

frustration of them both. The assertiveness of Judge Rosen’s

opinion is more than sufficient to give anyone pause,

especially his accusations that we have issued an “invitation

to chaos and delay” (Dissenting Op. at 30), “abandon[ed] all

notions of judicial restraint” (id. at 31), provided “a classic

example of judicial meddling” (id. at 31), and engaged in

“thinly-veiled policymaking” (id. at 32). In the end, however,

I find that these sweeping generalizations generate more heat

than light, and that his position is actually the more “activist”

in an expansive interpretation of the PLRA beyond

Congress’s language and the Supreme Court’s precedents.

The heart of the problem is that the failure to apply the

concept of procedural default to a prison’s administrative

deadlines will, in cases such as the one before us, obligate the

federal courts to deal with the § 1983 issues without the

benefit of the state’s administrative consideration on the

merits. This makes the issue difficult for me because, were I

a legislator, I would think it sound policy to require prisoners

to comply with reasonable administrative deadlines. On the

other hand, as pointed out by Judge Moore, this legitimate

26 Thomas v. Woolum, et al. No. 01-3227

concern “is counterbalanced by the equally real concern that

in the presence of procedural default standards, prison

administrators will impose shorter and shorter deadlines

measured in hours and days, because prisoners will then have

no recourse to the federal courts if they miss even one

deadline.” (Maj. Op. at 19 n.4) These competing policy

considerations, however, are better reserved for Congress to

resolve than for us to adjudicate.

In deciding this issue, the two factors that ultimately

persuade me are that (1) Congress could have, but did not,

specify that a prisoner’s failure to comply with the prison’s

reasonable time limitations would result in a procedural

default (see Maj. Op. at 16-17), and (2) Supreme Court

precedents continue to distinguish between the concepts of

exhaustion of remedies and procedural default. Congress, if

it desires a different outcome, is clearly able to make an

appropriate amendment to the PLRA. Judge Rosen or I might

have drafted the current statute differently, but we are not

legislators. As a judge on the court of appeals, I do not feel

that I should attempt to alter the PLRA as it presently stands.

Judge Rosen obviously subscribes to a different analysis.

In his opinion, the concept of procedural default is built into

the concept of exhaustion of remedies. But the Supreme

Court cases that he relies on—Boerckel, Carpenter, and

Coleman—do not, in my opinion, support his analysis.

Judge Rosen, for example, quotes the Supreme Court’s

statement in O’Sullivan v. Boerckel, 526 U.S. 838 (1999), that

“we ask not only whether a prisoner has exhausted his state

remedies, but also whether he has properly exhausted those

remedies.” Id. at 848 (emphasis in original). If procedural

default were a necessary component of exhaustion in the

habeas corpus context (rather than an independent,

complementary doctrine), this sentence would make no sense.

The Supreme Court would instead have simply stated: “We

ask whether a prisoner has exhausted his state remedies.”

What the Supreme Court actually said, however, is that “we
No. 01-3227 Thomas v. Woolum, et al. 27

ask not only whether a prisoner has exhausted his state

remedies, but also whether he has properly exhausted those

remedies.” Id. (first two emphases added; third emphasis in

original). Basic English grammar, not “adroit

deconstruction” (Dissenting Op. at 47), therefore compels the

conclusion that, under the Supreme Court’s precedents,

exhaustion and procedural default are two distinct concepts.

Carpenter and Coleman make the same differentiation.

Carpenter, 529 U.S. 446, 453 (2000); Coleman, 501 U.S.

722, 732 (1991).

In the final analysis, my policymaker heart yearns for the

result proposed by Judge Rosen, but my judicial head tells me

that Judge Moore has reached the correct result. Our legal

system requires us to heed the words of Congress as

interpreted by applicable Supreme Court precedent. Until

Congress changes the law or the Supreme Court corrects our

interpretation of its language, I am unwilling to read the

concept of procedural default into the PLRA.

28 Thomas v. Woolum, et al. No. 01-3227

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

ROSEN, District Judge, dissenting in part and concurring

in the judgment.

With one bold stroke, the lead opinion stands much of this

Circuit’s existing precedent on administrative exhaustion on

its head, holding that administratively established filing

deadlines mean nothing in a prisoner’s effort to exhaust his

remedies before commencing a § 1983 suit. By permitting

inmates to thumb their noses at such time limits, the lead

opinion thoroughly disables prison grievance systems as

meaningful tools for dispute resolution — a result deemed

unacceptable by every other Circuit that has addressed the

timeliness issue to date. More importantly, this result is

wholly at odds with Congress’s intent in enacting the Prison

Litigation Reform Act (“PLRA”) and amending 42 U.S.C.

§ 1997e(a) to establish a strict, mandatory exhaustion

requirement for prisoner § 1983 suits.

Still worse, however, is that this departure from precedent

and congressional intent is utterly unnecessary to our ultimate

judgment in this case. The District Court plainly must be

affirmed here, on the obvious ground that Plaintiff/Appellant

Douglas Thomas failed to exhaust his remedies against those

Defendants/Appellees who were not even mentioned in his

prison grievance. The lead opinion ultimately reaches

precisely this conclusion, and I fully concur on this point.

But first, the lead opinion goes out of its way to rewrite the

law on a different issue, notwithstanding its lack of bearing

upon the outcome of this case. Rather, the mischief is wholly

prospective — and, I might note, crafted in such a way as to

seemingly insulate it from further review.

The issue upon which I part company with my colleagues

is easily stated — whether an inmate presumptively must
No. 01-3227 Thomas v. Woolum, et al. 29

comply with the procedural aspects of a prison’s grievance

system, including its time limits, in order to satisfy the

mandatory exhaustion requirement of § 1997e(a). This issue

already has been settled in this Circuit. We have held, for

example, that an inmate does not exhaust his administrative

remedies unless and until he pursues all avenues of appeal

that are available within the prison grievance system. See,

e.g., Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999);

White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Wright

v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522

U.S. 906 (1997). Such a failure to appeal is a species of

procedural default, see O’Sullivan v. Boerckel, 526 U.S. 838,

848, 119 S. Ct. 1728, 1734 (1999), legally indistinguishable

from the sort of procedural default at issue in this case —

namely, a prisoner’s failure to meet an administrative filing

deadline.

Yet, the lead opinion explains that this case is different,

because it involves a late filing at the threshold of the

administrative process, rather than a failure to proceed to the

next level of this process. And, indeed, this is a distinction —

an inmate who fails to pursue an administrative appeal has

exhausted at least some available remedies, while a prisoner

whose grievance is properly rejected as untimely (as

happened here) has exhausted none. Nevertheless, in the

Alice-in-Wonderland world conjured up in the lead opinion,

the latter course now is favored over the former in this

Circuit. 

Or is it? In cases which formerly were controlled by our

procedural default decisions, the lead opinion now provides

an open-ended opportunity for inmates to cure any sort of

procedural defect that a court might identify. After all,

dismissal in such cases is without prejudice, see Brown v.

Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525

U.S. 833 (1998), and, after today, inmates are no longer

bound by administrative deadlines of any sort. Consequently,

if a prisoner’s case is dismissed for failure to proceed through

all steps of the administrative process, the inmate now can

30 Thomas v. Woolum, et al. No. 01-3227

respond by completing the process, even though the relevant

deadlines might long since have passed. In short, much of

our existing precedent on prisoner exhaustion has been

rendered meaningless, and the courts in this Circuit have been

relegated to the role of providing legal advice to prisoners on

the proper filing of grievances.

Indeed, this invitation to chaos and delay must, of

necessity, be a two-way street. If prisoners no longer are

bound by deadlines, the same surely must be true for prison

administrators. Although prison regulations often call for

decisions to be reached within a specified time frame,

administrators presumably may now withhold their rulings

indefinitely, and then argue that any § 1983 suit is premature

until a decision eventually is forthcoming. In the event that

a court might conclude differently, prison administrators

could simply rewrite their regulations to remove any time

limits upon their decisionmaking process. We could hardly

complain, given the lack of significance that the lead opinion

places upon administrative deadlines, and given the nefarious

motives it ascribes to prison administrators who seek to

enforce such deadlines.

Here lies the root of my disagreement with the lead opinion

— it seemingly views time limits as mere traps for the

unwary, and utterly fails to acknowledge that procedural

deadlines serve the legitimate interests of both sides to a

dispute. This undoubtedly is why such limits are a standard

feature of virtually every dispute resolution process of which

I am aware. As a quid pro quo for their strict and uniform

adherence to these deadlines, parties are assured that their

dispute will be promptly resolved, and that justice will not be

effectively denied through interminable delay. This interest

is particularly compelling here, where the core purpose of

§ 1997e(a)’s exhaustion requirement is to ensure that prisoner

grievances are resolved administratively to the greatest extent

possible. See Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct.

983, 988 (2002). While I do not question the sincerity of the

lead opinion’s view that this purpose is served by
No. 01-3227 Thomas v. Woolum, et al. 31

disregarding filing deadlines, I believe that this judgment

rests upon a fundamental misapprehension of the importance

of time limits to the effective and orderly functioning of any

dispute resolution system.

As a result, today’s decision is a classic example of judicial

meddling, with this panel substituting its own policy

judgment in place of the far different one made by Congress

in enacting § 1997e(a) in its present form. The statute

requires that prisoners must exhaust “such administrative

remedies as are available.” 42 U.S.C. § 1997e(a). As even

the lead opinion concedes, the prisoner in this case, Douglas

Thomas, exhausted these remedies only in the most technical

sense — once his grievance was rejected as having been filed

nearly five months past the relevant deadline, he had

exhausted all of the remedies that were then “available” to

him. Yet, we have sensibly recognized — and all other

Circuits that have considered the matter have agreed — that

“it would be contrary to Congress’s intent” to permit a

prisoner to procedurally default his grievance and then claim

that administrative remedies no longer are “available.”

Wright, 111 F.3d at 417 n.3; see also Pozo v. McCaughtry,

286 F.3d 1022, 1023-24 (7th Cir.), cert. denied, 123 S. Ct.

414 (2002); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir.

1999); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995).

This plain, pragmatic reading of § 1997e(a) is wholly at odds

with the lead opinion’s effort to distinguish between an

inmate’s “mere” procedural default and a failure to exhaust

his remedies.

To what end does the lead opinion abandon all notions of

judicial restraint and overturn this settled understanding of

administrative exhaustion? Presumably, the lead opinion

means to ensure that future prisoner § 1983 suits do not fall

victim to the cunning device of administrative filing

deadlines. Never mind that there is no record before us of any

large-scale, or even occasional, difficulty in complying with

such deadlines — fully seven years after Congress amended

§ 1997e(a) in 1996, we publish a decision on this issue for the

32 Thomas v. Woolum, et al. No. 01-3227

1

I doubt that Congress (or prison officials) will be much consoled by

the lead opinion’s assurance that it has exercised “[j]udicial restraint.”

(Lead Op. at 19-20 n.4.) To say it does not make it so.

first time today. Never mind that there is nothing inherently

unreasonable or suspicious about the 30-day filing limit

imposed by Ohio prison officials in this case. Never mind

that prisoner Thomas has not identified any obstacles he

confronted in meeting this deadline. Never mind that, even

if he had, we could readily address this concern through casespecific equitable tolling of the filing period, as opposed to

the lead opinion’s carte blanche for any and all inmates to

ignore any and all administrative time limits.

In my view, it is precisely this sort of thinly-veiled

policymaking that leads Congress to ever more curtail our

judicial discretion. Indeed, Congress did just that in

amending § 1997e(a) through the PLRA, enacting a

mandatory provision which eliminated the courts’ prior

“discretion to dispense with administrative exhaustion” and

imposed “an obviously broader exhaustion requirement.”

Booth v. Churner, 532 U.S. 731, 739, 741, 121 S. Ct. 1819,

1824, 1825 (2001). Upon reviewing this legislation, the

Supreme Court concluded that Congress “may well have

thought we were shortsighted” in prior decisions which

tended to downplay the value of administrative exhaustion.

Booth, 532 U.S. at 737, 121 S. Ct. at 1823. If so, Congress

surely will be chagrined by today’s result, which opens the

courts to even more claims that have never been addressed on

the merits in a prison’s administrative grievance system.1

Accordingly, I dissent from the Court’s ruling on the

timeliness issue, and concur only in its judgment affirming

the District Court.
No. 01-3227 Thomas v. Woolum, et al. 33

I.

I begin with what seems to me an obvious point — that the

decision upon which the lead opinion principally relies, the

decades-old Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99

S. Ct. 2066 (1979), is not the first place one would look for

guidance in construing the exhaustion requirement of

§ 1997e(a). Among myriad other grounds for distinction, to

which I will return later, Oscar Mayer deals with a

requirement of commencement rather than exhaustion, and

addresses a detailed statutory scheme with a number of

unique features — e.g., concurrent state and federal

administrative jurisdiction, an express federal statute of

limitations, and an explicit definition of what constitutes

“commencement” of state proceedings — that have no

counterpart in the statute at issue here. Thus, I find it more

useful to start with the language of § 1997e(a) itself, our own

direct pronouncements on the meaning of this provision, and

the views of other Circuits on this subject. In the event that

this survey does not settle the issue, I find it instructive to

review the Supreme Court’s treatment of a similar statutory

exhaustion requirement imposed upon state prisoners —

namely, the requirement that they “exhaust[] the remedies

available in the courts of the State,” 28 U.S.C.

§ 2254(b)(1)(A), before seeking habeas corpus relief in

federal court. All of these sources, in my view, point

unmistakably toward the conclusion that exhaustion under

§ 1997e(a) entails compliance with a prison’s administrative

procedures, including filing deadlines.

Any analysis of § 1997e(a) necessarily must begin with the

language of the statute itself. As noted, prior to its 1996

amendment through the PLRA, the statute’s call for

exhaustion was largely discretionary — courts were

authorized to stay an inmate’s § 1983 suit for up to 180 days

while the prisoner exhausted such available administrative

remedies as were “plain, speedy, and effective,” but only if

the court deemed this “appropriate and in the interests of

justice.” 42 U.S.C. § 1997e(a)(1) (1994 ed.). The current

34 Thomas v. Woolum, et al. No. 01-3227

provision, in contrast, entirely eliminates this judicial

discretion, and instead mandates strict exhaustion in every

case:

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.

42 U.S.C. § 1997e(a). Through this enactment, Congress

“invigorated the exhaustion prescription,” thereby seeking “to

reduce the quantity and improve the quality of prisoner suits.”

Porter, 534 U.S. at 524, 122 S. Ct. at 988. While the prePLRA version of § 1997e invited judges to assess the efficacy

of a prison’s dispute resolution processes, the current statute

decidedly does not “prescribe[] appropriate grievance

procedures or enable[] judges, by creative interpretation of the

exhaustion doctrine, to prescribe or oversee prison grievance

systems.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th

Cir. 2001).

Given the clear command of § 1997e(a) in its present form,

the lead opinion properly observes that “the question is what

exhaustion requires.” (Lead Op. at 15.) Whatever the precise

contours of this requirement, it plainly is procedural in nature:

While the modifier “available” requires the possibility of

some relief for the action complained of . . . , the word

“exhausted” has a decidedly procedural emphasis. It

makes sense only in referring to the procedural means,

not the particular relief ordered. It would, for example,

be very strange usage to say that a prisoner must

“exhaust” an administrative order reassigning an abusive

guard before a prisoner could go to court and ask for

something else; or to say (in States that award money

damages administratively) that a prisoner must “exhaust”

his damages award before going to court for more. How

would he “exhaust” a transfer of personnel? Would he
No. 01-3227 Thomas v. Woolum, et al. 35

have to spend the money to “exhaust” the monetary relief

given him? It makes no sense to demand that someone

exhaust “such administrative [redress]” as is available;

one “exhausts” processes, not forms of relief, and the

statute provides that one must.

Booth, 532 U.S. at 738-39, 121 S. Ct. at 1824.

This Circuit’s precedents reflect a similar understanding of

the nature of § 1997e exhaustion. As noted at the outset, we

have held on several occasions that a prisoner must fully

pursue all administrative processes to completion, including

all available avenues of internal appeal, in order to satisfy

§ 1997e(a) and commence a § 1983 suit. See, e.g., Hartsfield

v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999); Freeman, 196

F.3d at 645; White, 131 F.3d at 595. In so ruling, we have

consistently taken note of the filing deadlines that govern

these administrative processes, and have cautioned inmates to

pay heed to these time limits.

In Hartsfield, for example, the plaintiff prisoner, Napoleon

Hartsfield, complained that he had been unlawfully placed in

top-of-bed restraints for eighteen hours. Hartsfield contended

that he had submitted an administrative grievance a day after

the incident, but he produced no evidence of this filing.

Instead, the record disclosed that Hartsfield had written to the

grievance coordinator about two weeks later, stating that he

had not been provided with a receipt for or response to his

grievance. The grievance coordinator responded the next day

that no grievance had been received, and that Hartsfield

would have to refile. He chose instead to bring a § 1983 suit,

and to pursue an administrative appeal only after a Magistrate

Judge had instructed the parties to brief the issue of

exhaustion. A prison official refused to allow this appeal,

absent proof that Hartsfield had ever filed an initial

administrative grievance.

Under this record, Hartsfield argued that his attempts at

administrative exhaustion should be deemed to satisfy the

36 Thomas v. Woolum, et al. No. 01-3227

standards of § 1997e(a) or, alternatively, that any further

efforts at exhaustion should be excused as futile. This Court

disagreed:

Even if plaintiff did file an initial grievance . . . , he

was required to continue to the next step in the grievance

process within the time frame set forth in the

regulations if no response is received from prison

officials or if the prisoner is not satisfied with the

response. We have previously held that an inmate cannot

simply fail to file a grievance or abandon the process

before completion and claim that he has exhausted his

remedies or that it is futile for him to do so because his

grievance is now time-barred under the regulations.

Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert.

denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 190

(1997). Plaintiff should have either refiled his grievance

when he was informed . . . that the prison had no record

of the grievance or provided [a] receipt[] . . . so he could

have proceeded with an [administrative] appeal. We

find, therefore, that plaintiff did not exhaust his

administrative remedies . . . .

Hartsfield, 199 F.3d at 309 (emphasis added); see also

Freeman, 196 F.3d at 645 (recognizing that the plaintiff

prisoner “made some attempts to go through the prison’s

grievance procedures,” but ordering dismissal because the

plaintiff “filed his federal complaint before allowing the

administrative process to be completed”).

As noted in Hartsfield, we first endorsed this rule of

complete exhaustion in Wright, 111 F.3d at 417 n.3. One of

the plaintiff prisoners in Wright had filed an administrative

grievance, but had not appealed the denial of this grievance

through the entire administrative process. The inmate

contended that he had exhausted all “available” remedies

within the meaning of § 1997e(a), because the deadline for

any further appeals had long since expired. We found it

unnecessary to address this argument, in light of our
No. 01-3227 Thomas v. Woolum, et al. 37

conclusion that the amended § 1997e(a) did not apply to the

prisoner’s pre-PLRA suit. Nonetheless, we emphasized:

It is clear, however, that in the usual case in the future,

where the alleged violations occurred after the PLRA’s

enactment, and inmates have both notice that exhaustion

is required and a reasonable opportunity to file

complaints, it would be contrary to Congress’s intent in

enacting the PLRA to allow inmates to bypass the

exhaustion requirement by declining to file

administrative complaints and then claiming that

administrative remedies are time-barred and thus not

then available.

Wright, 111 F.3d at 417 n.3 (emphasis added); see also

Hrynczyn v. Mitchell, No. 00-4320, 2001 WL 1299027, at *1

(6th Cir. Aug. 9, 2001) (rejecting a prisoner’s argument that

no administrative remedies were available because any

grievance he filed would be dismissed as untimely).

Indeed, this Court has insisted that inmates be resourceful

in their efforts to comply with prison grievance procedures.

In Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001), for

instance, the plaintiff prisoner claimed that he had asked for

a grievance form, but was told by a prison counselor to “get

out of his office.” We affirmed the dismissal of the case for

failure to exhaust administrative remedies, reasoning that the

plaintiff did “not allege that there was no other source for

obtaining a grievance form or that he made any other attempt

to obtain a form or to file a grievance without a form.” Jones,

266 F.3d at 400. More generally, we have placed the burden

upon prisoners to “allege and show that they have exhausted

all available state administrative remedies,” and have

instructed that “[d]istrict courts should enforce the exhaustion

requirement sua sponte if not raised by the defendant.”

Brown, supra, 139 F.3d at 1104.

Under these precedents, then, once a prison’s filing

deadline has passed, an inmate cannot simply dispense with

38 Thomas v. Woolum, et al. No. 01-3227

the filing of an administrative grievance on the ground that

prison officials surely would reject it. In the present case, for

example, if prisoner Thomas had altogether failed to file a

grievance, rather than submitting it nearly five months after

the prison’s 30-day deadline, we would have been bound to

conclude that this course of action did not comply with the

dictates of § 1997e(a). This leads to the question whether an

untimely filing should be accorded different treatment under

§ 1997e(a) than no filing at all.

As a matter of brute fact, Thomas’s untimely filing in this

case produced absolutely no benefit over an outright failure

to file. His grievance was rejected as submitted outside the

prison’s 30-day limit, and there was no administrative review

of his complaints on the merits. As a result, none of the aims

of § 1997e(a) has been achieved here — Thomas’s grievance

did not spur corrective action that might have obviated the

need for litigation, there has been no filtering of any frivolous

claims, and no administrative record was developed that

might assist the courts in understanding “the contours of the

controversy.” Porter, 534 U.S. at 525, 122 S. Ct. at 988.

Nonetheless, the lead opinion holds that “Thomas gave the

state officers an opportunity” to address his grievance, “which

is all that is required” to satisfy the statutory exhaustion

requirement. (Lead Op. at 20.)

This “opportunity-based” theory of exhaustion, however,

improperly shifts the burden from inmates to prison officials,

requiring that the latter seize upon any chance to address any

complaint that a prisoner might raise at any time and through

any means. As such, the lead opinion’s reasoning runs

counter to our precedents, which have consistently construed

§ 1997e(a) as demanding that inmates must invoke and fully

exhaust a prison’s administrative grievance processes. In

Freeman, for example, the plaintiff prisoner alleged that he

was assaulted by a corrections officer, and he argued that “an

investigation by the prison Use of Force Committee and the

Ohio State Highway Patrol into the alleged assault satisfies

§ 1997e(a) because the statute does not specify that
No. 01-3227 Thomas v. Woolum, et al. 39

exhaustion must be through the prison’s grievance

procedure.” 196 F.3d at 644. This Court disagreed, noting

that use-of-force investigations can be initiated for a variety

of reasons, and stressing “the importance of using the prison

grievance process in order to alert prison officials to

problems.” Freeman, 196 F.3d at 644. More importantly, we

held that “the exhaustion requirement in § 1997e(a) is

directed at exhausting the prisoner’s administrative remedies

in the corrections system, and investigation by another agency

does not satisfy the requirement of the statute.” 196 F.3d at

644. We recently affirmed this rule, stating that “an

investigation by a prison Use of Force Committee will not

substitute for exhaustion through the prison’s administrative

grievance procedure.” Curry v. Scott, 249 F.3d 493, 504 (6th

Cir. 2001).

The present case perfectly illustrates the important

distinction between internal use-of-force investigations and

prisoner grievances. The Ohio prison officials themselves

initiated an investigation of Thomas’s beating, and a use-offorce committee concluded that Defendant Shawn Woolum

had acted contrary to prison regulations in his assault on

Thomas. Following this investigation, the prison authorities

addressed the problem as they perceived it by discharging

Woolum. If Thomas desired a broader inquiry or additional

relief, whether from Woolum or others, it behooved him to

file an administrative grievance bringing these matters to the

attention of prison officials. Yet, under the lead opinion’s

broadest statement of its holding, Thomas need not have filed

a grievance at all, so long as prison officials had the

“opportunity” to discern what his complaints might be and

address them. Such a rule is simply irreconcilable with this

Court’s prior decisions, which require a good deal more from

the inmate himself before he may commence a § 1983 suit.

Perhaps, however, the lead opinion means to endorse a

more limited rule, under which a prison official’s

“opportunity” to address an inmate’s complaint must be

triggered by the inmate’s filing of a grievance, whether or not

40 Thomas v. Woolum, et al. No. 01-3227

untimely or procedurally deficient in some other way. Even

this more limited proposition is at odds, in my view, with our

oft-stated rule of complete exhaustion — though a timelyfiled grievance plainly provides an “opportunity” (and,

indeed, a duty) to address a prisoner’s complaints, we still

insist that the inmate pursue the matter through all available

levels of the administrative process. More specifically, the

lead opinion’s disregard for administrative time limits goes

against the considered views of two panels in this Circuit,

albeit in unpublished decisions, and places us alone among

the several Courts of Appeals that have addressed this precise

issue.

This Court first considered this question in Qawi v. Stegall,

No. 98-1402, 211 F.3d 1270, 2000 WL 571919 (6th Cir.

May 3, 2000). In that case, the plaintiff prisoner’s

administrative grievance was rejected as untimely, but he

argued that this delay should be excused as a result of his

good faith efforts to resolve the matter informally. We held

that the plaintiff had failed to exhaust his administrative

remedies, observing that his grievance was untimely even

under the prison rules governing informal dispute resolution.

Similarly, in Jacobs v. Wilkinson, No. 00-3212, 2001 WL

1298979 (6th Cir. Aug. 8, 2001), the plaintiff inmate

complained of two incidents — his grievance as to the first

had been dismissed as untimely, and he had submitted only an

informal complaint as to the second. We found that the

plaintiff had failed to exhaust his administrative remedies as

to either of his two complaints, making no distinction

between his untimely grievance and his outright failure to file

a grievance.

As noted, three of our sister Circuits have reached the same

conclusion. First, in Marsh, supra, the Fifth Circuit upheld

the dismissal of a prisoner’s § 1983 suit for failure to exhaust

administrative remedies under the pre-PLRA version of

§ 1997e(a), where the inmate’s administrative grievance had

been dismissed as untimely filed more than 30 days after the

incident of which she complained. Although the version of
No. 01-3227 Thomas v. Woolum, et al. 41

2

Although Marsh predates § 1997e(a) in its present form, the Fifth

Circuit recently confirmed the continued vitality of this decision in Days

v. Johnson, 322 F.3d 863 (5th Cir. 2003). The plaintiff inmate in Days

alleged that a broken hand had prevented him from timely filing his

administrative grievance, but that he had filed a grievance as soon as this

injury had healed. The Court found that these allegations, if proven,

would suffice to show that the prisoner had “exhausted the administrative

remedies that were personally available to him.” 322 F.3d at 867. The

Fifth Circuit then emphasized the narrow reach of this ruling:

We, of course, do not hold that an untimely grievance in and

of itself would render the system unavailable, thus excusing the

exhaustion requirement. Such a holding would allow inmates to

file suit in federal court despite intentionally evading the

§ 1997e(a) then in effect authorized the courts to grant a

continuance so that the plaintiff prisoner could exhaust any

available administrative remedies, the Court reasoned that a

continuance was not warranted under the circumstances of

that case:

Because the prison had already rejected [the plaintiff’s]

administrative grievance as untimely, her administrative

remedies were foreclosed, and a continuance would have

served no purpose. When a section 1997e continuance

would serve no purpose, a district court still has the

power to dismiss a prisoner’s suit under section 1997e

for failure to exhaust administrative remedies . . . .

Without the prospect of a dismissal with prejudice, a

prisoner could evade the exhaustion requirement by

filing no administrative grievance or by intentionally

filing an untimelyone,therebyforeclosing administrative

remedies and gaining access to a federal forum without

exhausting administrative remedies. Thus, we hold that

a district court has the power to dismiss a prisoner’s

section 1983 suit under section 1997e even when

administrative relief is time-barred or otherwise

precluded.

Marsh, 53 F.3d at 710 (citations and footnote omitted).2

42 Thomas v. Woolum, et al. No. 01-3227

PLRA’s exhaustion requirement by failing to comply with the

prison grievance system. See Harper v. Jenkin, 179 F.3d 1311,

1312 (11th Cir. 1999); see also Marsh v. Jones, 53 F.3d 707, 710

(5th Cir. 1995) (previous version of § 1997e). We emphasize

that our holding is limited to the narrow facts of this case. More

specifically, administrative remedies are deemed unavailable

when (1) an inmate’s untimely filing of a grievance is because

of a physical injury and (2) the grievance system rejects the

inmate’s subsequent attempt to exhaust his remedies based on

the untimely filing of the grievance.

Days, 322 F.3d at 867-68 (footnote omitted).

The Eleventh Circuit also has held that an untimely

grievance generally does not satisfy § 1997e(a)’s exhaustion

requirement. In Harper, supra, the plaintiff inmate’s

grievance was denied as untimely, and the inmate failed to

invoke a prison procedure that authorized waiver of the filing

deadline for “good cause” shown. Under these circumstances,

the Court held that the plaintiff “cannot be considered to have

exhausted his administrative remedies.” Harper, 179 F.3d at

1312. The Court reasoned that a contrary conclusion would

permitinmatesto “ignore the PLRA’s exhaustion requirement

and still gain access to federal court merely by filing an

untimely grievance.” 179 F.3d at 1312.

Most recently, the Seventh Circuit has joined in this

consensus, construing § 1997e(a) as requiring that a prisoner

“complete[] the administrative process by following the rules

the state has established for that process,” including filing

deadlines. Pozo, supra, 286 F.3d at 1023. In Pozo, the

plaintiff prisoner timely filed his initial grievance, but then

waited a year before pursuing an administrative appeal. He

argued that Wisconsin prison officials had the discretion to

waive the state’s usual 10-day filing deadline, and that this

power to hear an untimely appeal satisfied the purposes of the

exhaustion requirement because it afforded the opportunity to

address his complaints. The Court disagreed:
No. 01-3227 Thomas v. Woolum, et al. 43

3

Still another Circuit, like this one, has addressed the issue of

untimely filing only in an unpublished decision. In Collins v. Federal

Bureau of Prisons, No. 02-1503, 2003 WL 21380545 (10th Cir. June 16,

2003), the Tenth Circuit held that an inmate’s “failure to meet the

appropriate filing deadlines for administrative remedies constitutes a

failure to exhaust those remedies.”

[T]his position would leave § 1997e(a) without any

oomph. Wisconsin cannot be unusual in allowing prison

officials some authority to entertain untimely complaints

and appeals. If the existence of this power means that

prisoners need not file timely complaints and appeals,

then the incentive that § 1997e(a) provides for prisoners

to use the state process will disappear. Prisons are

unlikely to entertain many appeals filed a year late, or by

prisoners who otherwise thumb their noses at the

specified procedures.

Pozo, 286 F.3d at 1025. More generally, the Seventh Circuit

reasoned that judicial disregard for prison grievance

procedures

would allow a prisoner to “exhaust” state remedies by

spurning them, which would defeat the statutory

objective of requiring the prisoner to give the prison

administration an opportunity to fix the problem — or to

reduce the damages and perhaps to shed light on factual

disputes that may arise in litigation even if the prison’s

solution does not fully satisfy the prisoner.

286 F.3d at 1023-24 (citations omitted).3

Thus, prior to the lead opinion’s ruling today, every court

that has considered the matter has concluded that an untimely

grievance which is rejected as such by prison officials does

not satisfy the exhaustion requirement of § 1997e(a). Indeed,

the lead opinion is unable to identify any case in any area of

the law in which a court has found that an administrative

exhaustion requirement was satisfied through an unexcused

44 Thomas v. Woolum, et al. No. 01-3227

filing outside of the governing administrative time limit.

Instead, the lead opinion’s reasoning rests principally upon

the inapposite Oscar Mayer decision, with an additional

appeal to the Supreme Court’s rulings on exhaustion in the

context of state prisoner habeas petitions. I turn first to these

latter decisions, as they weigh decidedly against the

conclusion reached in the lead opinion here.

II.

Whether a state prisoner wishes to bring a § 1983 suit or a

habeas petition under 28 U.S.C. § 2254(a) challenging the

lawfulness of his confinement, he first must exhaust the

relevant set of remedies. The two exhaustion requirements

are similarly worded: § 1997e(a) provides that an inmate

must exhaust “such administrative remedies as are available,”

while habeas relief cannot be granted unless an inmate “has

exhausted the remedies available in the courts of the State,”

28 U.S.C. § 2254(b)(1)(A). Accordingly, the Supreme Court

precedents as to the latter statute are likely to be instructive in

interpreting the former. The lead opinion agrees, citing

several of these decisions in support of the result it reaches.

I find this utterly remarkable, since the Supreme Court

expressly held in one of these cases that a prisoner’s untimely

filing in state court barred him from seeking habeas relief in

federal court.

Specifically, in Coleman v. Thompson, 501 U.S. 722, 111

S. Ct. 2546 (1991), the Court considered the effect of a death

row prisoner filing his state court notice of appeal a mere

three days after the 30-day deadline imposed by the

governing Virginia court rule. In light of this untimely

submission, the Virginia Supreme Court dismissed the

prisoner’s appeal without reaching the merits. The U.S.

Supreme Court recognized that the prisoner’s delayed filing

— a defect legally tantamount to an outright “failure to appeal

at all” — was “no doubt” a result of “inadvertent error.”

Coleman, 501 U.S. at 749, 750, 111 S. Ct. at 2564, 2565.

Nonetheless, the Court held that federal habeas review was
No. 01-3227 Thomas v. Woolum, et al. 45

4

Coleman also undermines the lead opinion’s appeal to the

presumption that Congress legislates with full awareness of the relevant

Supreme Court precedents. (See Lead Op. at 16.) While I fully accept

this proposition, I would suggest that Congress much more likely had

Coleman than Oscar Mayer in mind when it enacted § 1997e(a), a

provision which is quite similar to the statute involved in Coleman, but

which bears absolutely no resemblance to the enactment at issue in Oscar

Mayer.

unavailable as to the claims advanced in the inmate’s

untimely state court appeal. 501 U.S. at 757, 111 S. Ct. at

2568.

The import of Coleman to the question presented here

seems plain enough. In that case, a filing three days past a

state court deadline led the Supreme Court to hold that a

death row prisoner had forfeited his opportunity to obtain

federal court review of the constitutionality of his continued

detention and sentence. The only relevant statutory

prerequisite to such habeas relief was that the prisoner must

have exhausted the remedies available to him in the state

courts. It readily follows, in my view, that a filing past an

administrative deadline presumptively precludes an inmate

from establishing the nearly identical statutory prerequisite

for commencement of a § 1983 suit. At a minimum, Coleman

blunts the force of the lead opinion’s contention that a

requirement of timely filing would impose too high a cost

upon the constitutional rights of prisoners — the stakes

obviously were much higher in Coleman, implicating the

prisoner’s asserted right to be free from confinement and an

eventual death sentence.4

In addition, while the lead opinion relies heavily upon

policy arguments gleaned from the Supreme Court’s Oscar

Mayer decision, it barely acknowledges (and largely

misconstrues) the much more pertinent policy considerations

set forth in Coleman. Having previously held, for example,

that a state prisoner’s federal habeas suit failed for lack of

46 Thomas v. Woolum, et al. No. 01-3227

5

The lead opinion casually dismisses Coleman’s various policy

considerations with the observation that “we have never considered a state

warden’s decision on a grievance to be the equal of a full state court

judgment.” (Lead Op. at 18.) Unless we are engaged in some sort of

zero-sum game, however, I see no reason to inquire whether the two are

entirely equivalent or one is “better” than the other. It only matters

whether both are entitled to some degree of federal court deference, and

a vast array of Supreme Court precedent holds that prison officials are

entitled to a large measure of deference in the day-to-day operations of

their institutions.

In any event, the lead opinion arrives at the wrong answer by asking

the wrong question. Section 1997e(a) is silent on the weight to be given

to a warden’s decision on the merits in a particular case. What it does

demand, however, is that an inmate present his grievance for the warden’s

timely filing under Fed. R. App. P. 4(a), the Coleman Court

observed that its ruling had the virtue of

eliminat[ing] inconsistency between the respect federal

courts show for state procedural rules and the respect

they show for their own. This Court has long understood

the vital interest served by federal procedural rules, even

when they serve to bar federal review of constitutional

claims . . . . No less respect should be given to state rules

of procedure.

Coleman, 501 U.S. at 751, 111 S. Ct. at 2565-66 (citations

omitted). More generally, the Court explained that its strict

insistence upon exhaustion in the habeas context was

“grounded in principles of comity; in a federal system, the

States should have the first opportunity to address and correct

alleged violations of [a] state prisoner’s federal rights.”

Coleman, 501 U.S. at 731, 111 S. Ct. at 2555. All of this

readily carries over to the present context, in light of the

Supreme Court’s admonition that “prison administrators . . . ,

and not the courts, [are] to make the difficult judgments

concerning institutional operations.” Turner v. Safley, 482

U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (internal quotations

and citation omitted).5
No. 01-3227 Thomas v. Woolum, et al. 47

consideration and see the administrative process through to completion

before he may proceed to federal court. No one seriously questions the

correctness of the warden’s decision in this case — no matter how much

or how little deference we give, we surely would agree that Thomas’s

grievance was, in fact, filed several months past the 30-day deadline, and

that he has presented no valid excuse for his untimely submission. The

relevant question is whether we must respect Ohio’s imposition and

enforcement of this 30-day deadline. So again, I ask — if we agree to

respect a State’s judgment that a prisoner must proceed through one or

more layers of administrative appeal, why should we balk at the wholly

analogous procedural rule at issue here? 

Nevertheless, through adroit deconstruction, the lead

opinion endeavors to show that Coleman supports its

conclusion here. In particular, the lead opinion focuses on

portions (though not the entirety) of the following passage

from that decision:

Just as in those cases in which a state prisoner fails to

exhaust state remedies, a habeas petitioner who has failed

to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts

of an opportunity to address those claims in the first

instance. A habeas petitioner who has defaulted his

federal claims in state court meets the technical

requirements for exhaustion; there are no state remedies

any longer “available” to him. In the absence of the

independent and adequate state ground doctrine in

federal habeas, habeas petitioners would be able to avoid

the exhaustion requirement by defaulting their federal

claims in state court. The independent and adequate state

ground doctrine ensures that the States’ interest in

correcting their own mistakes is respected in all federal

habeas cases.

Coleman, 501 U.S. at 731-32, 111 S. Ct. at 2555 (citations

omitted). From this language, the lead opinion surmises that

untimely filing does not directly equate with lack of

exhaustion, but that it bars habeas relief only by virtue of the

distinct “independent and adequate state ground” or

48 Thomas v. Woolum, et al. No. 01-3227

6

Even this point is a dubious one. While the lead opinion dutifully

recounts a portion of Coleman’s historical survey of the independent and

adequate state ground doctrine and the procedural default rule, it stops

notably short of acknowledging that the federal courts’ application of the

latter rule in the habeas context rests solely upon “concerns of comity and

federalism” — concerns which undoubtedly are present here — and not

upon jurisdictional considerations or the need to avoid advisory opinions.

Coleman, 501 U.S. at 730, 111 S. Ct. at 2554. Thus, it would be

misleading to suggest, as the lead opinion appears to do, that the Coleman

Court felt itself jurisdictionally compelled to adhere to the procedural

default rule.

Rather, Coleman plainly evidences the Court’s recognition of the

complementary nature of the exhaustion requirement and the procedural

default rule — both are “grounded in principles of comity,” and the

former would be rendered a nullity without the latter. 501 U.S. at 731-32,

111 S. Ct. at 2554-55. Thus, the Court equated “cases in which a state

prisoner fails to exhaust state remedies” and those in which a prisoner

“fail[s] to meet the State’s procedural requirements for presenting his

federal claims” — in either case, the inmate “has deprived the state courts

of an opportunity to address those claims in the first instance.” 501 U.S.

at 732, 111 S. Ct. at 2555. Moreover, the Court invoked the procedural

default rule to ensure that prisoners did not “avoid the exhaustion

requirement by defaulting their federal claims in state court,” 501 U.S. at

732, 111 S. Ct. at 2555 — precisely the reasoning which the various

Courts of Appeals have employed in resolving the issue now before us,

yet which the lead opinion summarily rejects as contrary to the purported

views of the Supreme Court and the “meaning of exhaustion,” (Lead Op.

at 18).

“procedural default” doctrine. The lead opinion then reasons

that no such doctrine has been incorporated into our prisoner

§ 1983 jurisprudence, leaving us free to follow the “technical”

definition of exhaustion cited in Coleman.

I find this reasoning wholly unpersuasive, for two reasons.

First, to whatever extent Coleman can be read as

distinguishing between procedural default and exhaustion,6

this distinction has been obliterated in subsequent Supreme

Court habeas decisions. In O’Sullivan, supra, for example,

the Court considered the question whether a state prisoner

must petition for discretionary review by a state supreme
No. 01-3227 Thomas v. Woolum, et al. 49

7

Indeed, the dissent’s chief complaint in O’Sullivan was that the

Court’s opinion “confuse[d]” the two “analytically distinct” rules of

exhaustion and procedural default. 526 U.S. at 850, 119 S. Ct. at 1735

(Stevens, J., dissenting). Even the dissent recognized, however, that the

procedural default doctrine was “crafted” by the Court “[i]n order to

protect the integrity of our exhaustion rule.” 526 U.S. at 853, 119 S. Ct.

court in order to satisfy the exhaustion requirement. In

answering in the affirmative, the Court noted the “interplay”

between the doctrines of exhaustion and procedural default,

once again explaining (as it had in Coleman) that “a prisoner

could evade the exhaustion requirement — and thereby

undercut the values that it serves — by letting the time run on

state remedies.” O’Sullivan, 526 U.S. at 848, 119 S. Ct. at

1734 (internal quotations and citation omitted). The Court

then elaborated:

To avoid this result, and thus protect the integrity of the

federal exhaustion rule, we ask not only whether a

prisoner has exhausted his state remedies, but also

whether he has properly exhausted those remedies, i.e.,

whether he has fairly presented his claims to the state

courts. Our disagreement with [the dissent] in this case

turns on our differing answers to this last question:

Whether a prisoner who fails to present his claims in a

petition for discretionary review to a state court of last

resort has properly presented his claims to the state

courts. Because we answer this question “no,” we

conclude that [state prisoner] Boerckel has procedurally

defaulted his claims.

526 U.S. at 848, 119 S. Ct. at 1734 (internal quotations and

citations omitted).

Apart from this express statement that the procedural

default doctrine is a necessary component of the exhaustion

rule, the Court interchangeably referred to the prisoner’s

failure in that case as a lack of exhaustion and a procedural

default.7 Because Illinois authorizes petitions for

50 Thomas v. Woolum, et al. No. 01-3227

at 1736-37 (Stevens, J., dissenting).

discretionary review by that State’s highest court, the

Supreme Court reasoned that this was an “available” remedy

which prisoner Boerckel was obliged to exhaust before

seeking habeas relief in federal court. Boerckel fell short of

this exhaustion requirement, however, by virtue of his failure

to include three of his federal claims in his petition to the

Illinois Supreme Court. Moreover, because the “time for

filing such a petition ha[d] long passed,” the Court held that

“Boerckel’s failure to present three of his federal habeas

claims to the Illinois Supreme Court in a timely fashion has

resulted in a procedural default of those claims.” O’Sullivan,

526 U.S. at 848, 119 S. Ct. at 1734. Under this reasoning, the

notions of exhaustion and procedural default are merged, and

an inmate’s failure to properly pursue a state remedy in

accordance with the relevant procedural requirements can just

as well be termed a lack of exhaustion or a procedural default.

It follows, in particular, that an outright failure to file is

legally indistinguishable from a submission beyond the state’s

filing deadline.

But perhaps even more to the point, and closer to home, the

Supreme Court recently rejected this Circuit’s continued

recognition of a distinction between exhaustion and

procedural default in the habeas context. In Carpenter v.

Mohr, 163 F.3d 938, 944 (6th Cir. 1998), we had held that the

District Court had “erroneously conflated the exhaustion

requirement with the procedural default or waiver rule,”

thereby merging two inquiries which were “analytically

distinct.” In language which bears a striking similarity to the

lead opinion’s reasoning in this case, we stated that “the

exhaustion requirement is satisfied even if a claim was

procedurally defaulted in state court, because in such cases

there are no longer remedies available for the petitioner to

exhaust.” Carpenter, 163 F.3d at 944 (citing Coleman and

other cases).
No. 01-3227 Thomas v. Woolum, et al. 51

The Supreme Court reversed. See Edwards v. Carpenter,

529 U.S. 446, 120 S. Ct. 1587 (2000). The Court deemed it

“not a hard question” whether it suffices to merely “present”

a claim to the state courts, “even though it was not presented

in the manner that state law requires.” 529 U.S. at 452, 120

S. Ct. at 1591-92. An affirmative answer to this question, in

the Court’s view, “would render [the] exhaustion requirement

illusory.” 529 U.S. at 452, 120 S. Ct. at 1592 (footnote

omitted). The Court then continued:

We recognized the inseparability of the exhaustion rule

and the procedural default doctrine in Coleman . . . . We

again considered the interplay between exhaustion and

procedural default last Term in O’Sullivan . . . ,

concluding that the latter doctrine was necessary to

“‘protect the integrity’ of the federal exhaustion rule.”

The purposes of the exhaustion requirement, we said,

would be utterly defeated if the prisoner were able to

obtain federal habeas review simply by “‘letting the

time run’” so that state remedies were no longer

available. Those purposes would be no less frustrated

were we to allow federal review to a prisoner who had

presented his claim to the state court, but in such a

manner that the state court could not, consistent with

its own procedural rules, have entertained it. In such

circumstances, though the prisoner would have

“concededly exhausted his state remedies,” it could

hardly be said that, as comity and federalism require, the

State had been given a “fair ‘opportunity to pass upon

[his claims].’”

529 U.S. at 452-53, 120 S. Ct. at 1592 (emphasis added)

(citations omitted).

Under federal habeas law, then, all that remains of any

distinction between the exhaustion and procedural default

rules is different terminology and separate historical lineages.

While it is true that the Supreme Court had to make a choice

whether to merge these two doctrines, the Court has readily

52 Thomas v. Woolum, et al. No. 01-3227

8

Judge Gilman’s concurrence rests entirely on the proposition that

my approach would effectively amend Congress’s statutory mandate of

exhaustion by incorporating a requirement of timely filing. Certainly, this

charge of “judicial activism” would apply as well to the three other

Circuits which have adopted the reading of § 1997e(a) that I favor — and,

as noted, it would apply as well to the Supreme Court’s habeas decisions.

But Judge Gilman’s analysis merely begs the question, in my view. I

freely acknowledge, as did the Supreme Court in Coleman, that a prisoner

exhausts his remedies in a “technical” sense once there are no more

administrative avenues to pursue, whether because of a procedural default

or for any other reason. The question we confront here is whether the

congressional mandate is satisfied through such “technical” exhaustion,

or whether § 1997e(a) demands something more from prisoners.

and repeatedly recognized the practical necessity of this

merger — absent a procedural default component, the

exhaustion requirement would be a nullity. Likewise, our

sister Circuits — as well as this Circuit, albeit in unpublished

decisions — have found it necessary to construe the

exhaustion rule of § 1997e(a) as encompassing procedural

default through untimely administrative filing.

The lead opinion and concurrence insist that this reading of

§ 1997e(a) is improper, however, because it would add a

timeliness requirement to the statute that Congress

purportedly has declined to impose. To this contention, I can

only respond that the Supreme Court presumably did not view

itself as legislating when it adopted a similar construction of

the habeas exhaustion statute, 28 U.S.C. § 2254(b)(1)(A).

Indeed, if it would be improper for a court to erect additional

obstacles to a prisoner suit under § 1983, it would be all the

more problematic for the courts to restrict their

congressionally-conferred and constitutionally-mandated

authority to entertain prisoner habeas petitions. But this is not

what the Supreme Court has done, or what our sister Circuits

have done, in insisting that prisoners comply with applicable

deadlines and other procedural requirements — to the

contrary, they have ensured that the congressional mandate of

exhaustion is preserved rather than subverted, by construing

exhaustion in the only way that makes sense.8
No. 01-3227 Thomas v. Woolum, et al. 53

As a matter of brute semantics, I do not deny that the “technical”

definition of exhaustion favored by my colleagues is a permissible one.

For all of the reasons outlined herein, however, I simply do not believe

that this is the meaning Congress intended in enacting the PLRA. Judge

Gilman has succinctly stated one of my reasons — that, in cases such as

this one, a requirement of mere “technical” exhaustion results in the

federal courts having “to deal with the § 1983 issues without the benefit

of the state’s administrative consideration on the merits.” (Concurring

Op. at 25.) While Judge Gilman states that such cases “make[] the issue

difficult” for him, (id.), they make it easier for me to conclude that

Congress could not have intended a definition of exhaustion that routinely

permits claims to reach the federal courts without the benefit of any prior

consideration on the merits. Under such circumstances, I find it

unnecessary to await a legislative declaration that § 1997e(a) mandates

actual, meaningful, and not merely “technical” exhaustion.

Yet, because it is possible to define exhaustion in a purely “technical”

sense, my charges of “judicial meddling” do not rest upon any notion that

my colleagues have “rewritten” § 1997e(a). Rather, my quarrel is with

the analytical route by which they arrive at their reading of this statute.

Judge Gilman’s concurrence makes the argument, for example, that the

Supreme Court’s habeas decisions do not compel any particular result

here, because the “inseparability of the exhaustion rule and the

procedural-default doctrine” in the habeas context, Edwards, 529 U.S. at

452, 120 S. Ct. at 1592, does not require that we place a similar

procedural-default gloss upon § 1997e(a). Very well, but this does not

deny the force of (or even address) my argument that all of the same

grounds relied upon by the Supreme Court in Coleman, O’Sullivan, and

Carpenter are fully applicable here, and therefore should lead us to

construe exhaustion under § 1997e(a) in the same way that exhaustion has

been interpreted in habeas cases. It is evidence of judicial activism, in my

view, to resolve an issue as though writing on a blank slate, and to deny

the clear import of closely analogous decisions.

The remaining bases for my concerns of judicial policymaking are set

forth throughout this opinion and need not be repeated here. I do wish to

emphasize one point, however — that, no matter how many times my

colleagues appeal to “Supreme Court precedent,” (Lead Op. at 2-3;

Concurring Op. at 27), they simply cannot identify a single case, whether

under § 1997e(a) or in any other statutory or administrative context, in

which that Court (or any other) has held that an exhaustion requirement

was satisfied through an unexcused filing beyond an applicable deadline.

Next, even assuming that some meaningful distinction

54 Thomas v. Woolum, et al. No. 01-3227

might remain between procedural default and exhaustion, it

is far too late in the day to contend that the former doctrine

should not apply in the context of § 1997e(a), and that the

purely “technical” definition of exhaustion instead should

control. At the risk of redundancy, I again point out that this

Circuit already has held that certain types of procedural

defaults — e.g., a failure to pursue all available avenues of

administrative appeal — constitute lack of exhaustion under

§ 1997e(a). To the Supreme Court, at least, a late filing and

an outright failure to file at all are both analyzed in precisely

the same way — namely, as procedural defaults. See

O’Sullivan, 526 U.S. at 848, 119 S. Ct. at 1734; Coleman,

501 U.S. at 750-52, 111 S. Ct. at 2565-66. Thus, while one

might seek to distinguish between these two forms of default

— although, as discussed below, I am wholly unpersuaded by

the lead opinion’s attempts at such a distinction here — it is

untenable to suggest that procedural defaults generally do not

run afoul of § 1997e(a)’s exhaustion requirement. Rather, it

is now the law of this Circuit that some procedural defaults,

but not others, bar a prisoner suit under § 1983.

III.

In my view, the above-cited authorities point uniformly and

unmistakably toward the conclusion that timely filing is a

necessary component of exhaustion under § 1997e(a) in all

but the most unusual of circumstances. Even if we were

writing on a blank slate, however, I could not subscribe to the

policy judgments made in the lead opinion. Rather, I believe

that the lead opinion’s analysis of untimely prisoner

grievances substitutes superficial straw-men for careful

scrutiny, and rests upon a fundamental misunderstanding of

the significance of administrative filing deadlines.

Throughout its entire discussion of the timeliness issue, the

lead opinion acknowledges only a single argument in support

of the rule that inmates presumptively must comply with

administrative time limits. In particular, the lead opinion

proclaims that “the only ground for barring a federal § 1983
No. 01-3227 Thomas v. Woolum, et al. 55

suit due to an untimely prison grievance is that we would

otherwise render prison grievance procedures irrelevant.”

(Lead Op. at 18.) The lead opinion confidently assures us that

this will not occur, however — inmates “will still have every

incentive to raise their grievances within the prison’s

timelines, because it is in the prison grievance process that

inmates will, for most practical purposes, receive their

swiftest and most effective remedies.” (Id. at 19.)

The various policy-based considerations that lurk beneath

the surface of this analysis thwart the considered judgment

and expressed will of Congress when it enacted § 1997e(a) in

its present form. First and foremost, Congress did not

legislate a system of “incentives” for prisoners to pursue their

administrative remedies — it commanded in the most explicit

of language that inmates must exhaust these remedies in all

cases. In this case, for one, this simply did not occur —

because of Thomas’s untimely filing, there was no

administrative consideration whatsoever of the merits of his

grievance, let alone exhaustion of the prison’s dispute

resolution process. Moreover, even before today’s ruling,

Thomas, for one, apparently failed to perceive any incentive

to timely file his grievance — he submitted it five months

past the 30-day limit, despite the admitted absence of any

impediment to meeting this deadline. I find little comfort,

then, in the lead opinion’s prediction that its rule will not

thoroughly undermine the congressional command of

exhaustion. It is bad enough, in my view, that some prisoners

undoubtedly will take advantage of our free pass to

circumvent this requirement.

Further, Congress made no secret of its principal concern

in making exhaustion mandatory. This Court and others have

amply recounted the legislative history leading up to the 1996

amendment of § 1997e(a). We recently observed:

“Congress was primarily concerned about the rising

number of lawsuits filed by prisoners and the perception

that most of these suits were frivolous.” Cruz v. Jordan,

56 Thomas v. Woolum, et al. No. 01-3227

80 F. Supp.2d 109, 113 (S.D.N.Y. 1999). See, e.g., 141

Cong. Rec. S14408-01, *S14414 (daily ed. Sept. 27,

1995) (statement of Senator Dole) (noting that prisoner

suits increased from 6,600 in 1975 to over 39,000 in

1994 and included claims for “insufficient storage locker

space, a defective haircut by a prison barber, the failure

of prison officials to invite a prisoner to a pizza party for

a departing prison employee, and . . . being served

chunky peanut butter instead of the creamy variety.”);

141 Cong. Rec. S7498-01, *S7526 (daily ed. May 25,

1995) (statement of Senator Kyl) (stating that in 1994,

prisoners brought more than one-fourth of all civil suits

filed in the United States District Courts); Bernard D.

Reams, Jr & William H. Manz, A Legislative History of

the Prison Litigation Reform Act of 1996, Pub. L. No.

104-134, 110 Stat. 1321, Doc. 33, at 61 (noting that the

short title given to the House measure containing the

PLRA was “Stopping Abusive Prisoner Lawsuits”).

Cox v. Mayer, ___ F.3d ___, 2003 WL 21340291, at *3 (6th

Cir. June 11, 2003); see also Wyatt v. Leonard, 193 F.3d 876,

878 (6th Cir. 1999) (“The 1996 Act is designed to deter

frivolous lawsuits . . . .”). Likewise, the Eleventh Circuit has

explained:

Congress enacted this mandatory exhaustion

requirement in section 1997e(a) as part of the PLRA’s

effort to curtail frivolous and abusive prisoner litigation

. . . . Congress did not enact the PLRA in a vacuum. It

held hearings and rendered findings, concluding that

prisoners file more frivolous lawsuits than any other

class of persons. Congress found that the number of

prisoner lawsuits has grown astronomically . . . .

Congress intended section 1997e(a) to curtail the ability

of prisoners to bring frivolous and malicious lawsuits by

forcing prisoners to exhaust all administrative remedies

before bringing suit in Federal court.
No. 01-3227 Thomas v. Woolum, et al. 57

9

In this case, by contrast, inmate Thomas already had transferred to

another institution by the time he filed his grievance.

Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998)

(internal quotations and citations omitted).

This recognition is notably lacking in the lead opinion’s

wishful thinking on incentives. The inmates least likely to

adhere to a prison’s time limits and other procedural rules are

precisely those prisoners who are pursuing frivolous or

abusive claims. Such prisoners, after all, would have nothing

to lose in flouting prison procedures, because they would

have no legitimate expectation of obtaining any remedy

through the prison’s grievance process. For such prisoners,

it matters only that they reach the finish line of this process

and secure their ticket to federal court, and today’s ruling

provides a handy shortcut for doing so. Thus, by presuming

that inmates will pursue their administrative remedies in good

faith, even if this Court does not insist that they do so, the

lead opinion disregards the finding of Congress that prisoners

all too often were not acting in good faith, and the judgment

of Congress that this problem could best be addressed through

a requirement of mandatory exhaustion.

Yet, as much as the lead opinion is prepared to assume that

prisoners act in good faith, it is quite unwilling to make the

same assumption about prison officials. Tellingly, in

assessing the potential costs of its ruling and identifying the

“one ground” that might militate against it, the lead opinion

utterly fails to even allow for the possibility that prison

officials might have good reasons for establishing deadlines

for the filing of grievances. Even a moment’s thought,

however, would reveal several such reasons, including: (i)

the inherent benefit of prompt investigation, while memories

are still fresh and all involved inmates and prison employees

remain at the facility;

9

 (ii) the desire to bring the entire

matter, including all available internal appeals, to a

58 Thomas v. Woolum, et al. No. 01-3227

10To the extent that the process is prolonged, of course, this leaves

the courts to deal with stale claims and an outdated record.

11Indeed, in its discussion of prisoner incentives, the lead opinion

cites the capacity of the prison grievance process to provide the “swiftest

and most effective remedies.” (Lead Op. at 19.) This capacity rests in no

small part upon the proper functioning and enforcement of deadlines.

12To be sure, the lead opinion pays lip service to the “mutually

beneficial” value of deadlines to both prisoners and prison officials.

(Lead Op. at 19 n.4.) It quickly reverts to form, however, speculating

without any discernable basis as to a purportedly “real concern” that

“prison administrators will impose shorter and shorter deadlines measured

in hours and days” in order to shut prisoners out of federal court. (Id.)

Since several other Circuits have adopted the procedural default doctrine

that so concerns the lead opinion, one would expect to see prison

administrators within those Circuits busily shortening their filing

deadlines and setting other sorts of procedural traps. To my knowledge,

this has not occurred.

conclusion within a reasonable time period;10 and (iii) the

greater likelihood that a prisoner might be satisfied by swift

action against any transgressors.

11 Significantly, most of

these benefits accrue to prisoners and prison officials alike —

and this presumably is why prison officials routinely impose

deadlines upon themselves as well as inmates. On the

assumption that the 30-day time limit in this case was

motivated by these and other legitimate considerations of

efficient and effective institutional functioning — and, again,

the record contains no suggestion whatsoever to the contrary

— I would hold that this deadline is presumptively entitled to

our respect, with exceptions made only in those cases where

an inmate establishes his inability to comply with a prison’s

filing limit.12

All of these benefits are lost, however, when deadlines are

reduced to mere suggestions. To be sure, there may be some

cases in which both sides act in enlightened good faith, and

voluntarily agree to move promptly through the stages of the

administrative process. As we judges well know, however,
No. 01-3227 Thomas v. Woolum, et al. 59

13In this case, for example, Thomas requested a grievance form on

May 1, 1998, was given the form two days later, on May 3, and was able

to file his grievance the next day, on May 4, 1998. This grievance was a

handwritten one-page document, setting forth the factual basis for

Thomas’s complaints and the various remedies he was seeking.

14As noted in the lead opinion, this is two years in Ohio.

litigation is more often adversarial than collegial, and any

process which results in winners and losers is likely to invite

strategic behavior. Procedural rules, it seems to me, are

designed to avoid worst cases and limit strategic behavior,

while imposing no special hardship upon those who would

proceed in good faith even in their absence. As noted at the

outset, I see no indication that inmates generally have found

it difficult to meet prison filing deadlines, particularly in light

of the modest effort involved in filing a grievance.

13

In contrast, the worst cases invited by the lead opinion’s

rule promise to be very bad indeed. A prisoner who wishes

to avoid the exhaustion requirement now has every incentive

to wait as long as possible before filing a grievance, in order

to enhance the likelihood that his submission will be rejected

as untimely. The outer bound for this delay presumably is the

statute of limitations for § 1983 suits14 — and not one day

earlier, because this limitation period is immediately tolled

upon the commencement of administrative proceedings. See

Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). It is

highly disingenuous, in my view, to insist that prison officials

still have a meaningful “opportunity” to address the merits of

such an intentionally delayed grievance. Rather, as the

Supreme Court has explained, even if it could be said that the

prisoner had technically “exhausted” his remedies, it could

not seriously be contended that “the State had been given a

fair opportunity to pass upon” the prisoner’s claims.

60 Thomas v. Woolum, et al. No. 01-3227

15Even more puzzling is the lead opinion’s assertion that a state may

“avoid federal court” by “waiving [its] procedural guidelines.” (Lead Op.

at 11.) Just how state officials might accomplish this is not explained. In

fact, a state that elects to address an untimely grievance might very well

still find itself in federal court, unless it resolves the grievance in a way

that totally satisfies the inmate. This is highly unlikely in the frivolous

and abusive cases that Congress specifically targeted in enacting the

PLRA.

Edwards, 529 U.S. at 453, 120 S. Ct. at 1592 (internal

quotations and citation omitted).15

Then, after this prolonged but essentially worthless

administrative process has finally reached its conclusion, the

courts would be left to address claims which have gone stale,

and which in most cases have never been addressed on the

merits, but which nonetheless have been fully “exhausted” as

the lead opinion construes that term. Alternatively, in cases

which do not meet even this lenient notion of “exhaustion,”

a court’s dismissal without prejudice under § 1997e(a) often

will be only the beginning of the process, rather than the end.

Armed with the court’s “blueprint” for the administrative

steps that should have been taken but were not, an inmate

may go back and fix his prior administrative filings,

unimpeded by the expiration of any administrative deadlines.

This process may be repeated as necessary, limited only by

the running of the underlying statute of limitations for § 1983

suits — which, again, is tolled during administrative

proceedings, and likely during judicial proceedings as well.

As noted at the outset, this eviscerates many of our prior

failure-to-exhaust decisions — an inmate who, for example,

did not pursue all available administrative appeals can now

pick up the process where he left off, undeterred by any

missed filing deadlines.

Or consider this very case, in which we hold that Thomas’s

grievance setting forth his claims against Defendant Shawn

Woolum did not serve to exhaust his claims against the

remaining Defendants. I see nothing to prevent Thomas from
No. 01-3227 Thomas v. Woolum, et al. 61

16I express no view on the proper outcome of this inquiry in this

case.

going back and filing grievances against these other parties,

advancing the failure-to-protect theory that he did not assert

in his initial grievance. To be sure, these new grievances

would come almost six years after the incident in question —

but this no longer matters, so long as the underlying two-year

statute of limitations has not run in light of the pendency of

various administrative and judicial proceedings.

16 Prison

officials still would have the “opportunity” to address these

new grievances, and this is all that today’s ruling requires

from an inmate in order to exhaust his remedies. Although

this strikes me as the height of absurdity, my colleagues on

the panel unfortunately do not share in this view — nor,

indeed, do they even acknowledge the concern.

IV.

Against the foregoing weight of authority and reason in

favor of the judiciary’s presumptive respect for administrative

filing deadlines, the lead opinion offers up the Supreme

Court’s Oscar Mayer decision as singlehandedly compelling

the opposite result. Indeed, it appears that the lead opinion

must cast its lot with Oscar Mayer, because no other case of

which I am aware supports its view of exhaustion as mere

termination by any means. Yet, even the most cursory review

reveals that Oscar Mayer has nothing whatsoever to say about

administrative exhaustion or the proper construction of

§ 1997e(a). Thus, the lead opinion is left adrift without an

anchor.

In Oscar Mayer, the Supreme Court addressed a lengthy,

detailed, and highly idiosyncratic provision of the Age

Discrimination in Employment Act (“ADEA”), requiring that

a person must “commence[]” state proceedings at least sixty

days before bringing a federal age discrimination suit:

62 Thomas v. Woolum, et al. No. 01-3227

17As noted in the lead opinion, the Court reached essentially the

same conclusion in EEOC v. Commercial Office Products Co., 486 U.S.

107, 108 S. Ct. 1666 (1988), a case involving a nearly identically worded

provision in Title VII, 42 U.S.C. § 2000e-5(c). Because this ruling and

Oscar Mayer rest upon virtually the same statutory language and

reasoning, I have confined my discussion only to the latter decision.

In the case of an alleged unlawful practice occurring in

a State which has a law prohibiting discrimination in

employment because of age and establishing or

authorizing a State authority to grant or seek relief from

such discriminatory practice, no suit may be brought

under section 626 of this title before the expiration of

sixty days after proceedings have been commenced under

the State law, unless such proceedings have been earlier

terminated . . . . If any requirement for the

commencement of such proceedings is imposed by a

State authority other than a requirement of the filing of a

written and signed statement of the facts upon which the

proceeding is based, the proceeding shall be deemed to

have been commenced for the purposes of this subsection

at the time such statement is sent by registered mail to

the appropriate State authority.

29 U.S.C. § 633(b). Upon reviewing the language of this

statute, the Supreme Court held, among other things, that a

grievant is not required to commence state proceedings within

the time limits specified by state law in order to preserve his

federal right of action. See Oscar Mayer, 441 U.S. at 753, 99

S. Ct. at 2070.17

Although the lead opinion recites various policy

considerations noted by the Court in reaching this decision,

the ruling in Oscar Mayer rests first and foremost on the

language of the statute itself. Initially, the Court observed

that the use of the word “commenced” does not necessarily

demand compliance with state filing deadlines, “since, by

way of analogy, under the Federal Rules of Civil Procedure

even a time-barred action may be ‘commenced’ by the filing
No. 01-3227 Thomas v. Woolum, et al. 63

18Notably, in giving effect to this plain statutory language, the

Supreme Court observed that this was the “prevailing interpretation”

adopted by the courts, as well as the interpretation adopted by the EEOC.

Oscar Mayer, 441 U.S. at 760-61, 99 S. Ct. at 2074. This latter

construction, of course, was “entitled to great deference” by the courts.

441 U.S. at 761, 99 S. Ct. at 2074 (internal quotations and citation

omitted). Here, by contrast, no court or other authority whatsoever has

previously endorsed the lead opinion’s interpretation of § 1997e(a).

of a complaint.” 441 U.S. at 759, 99 S. Ct. at 2073 (citations

omitted). The Court then found that any ambiguity on this

point was overcome by the statute’s express definition of

what constitutes “commencement” — namely, the “filing of

a written and signed statement of the facts upon which the

proceeding is based,” and nothing else. 441 U.S. at 760, 99

S. Ct. at 2073 (quoting 29 U.S.C. § 633(b)). Thus, the Court

explained, “even if a State were to make timeliness a

precondition for commencement . . . , a state proceeding will

be deemed commenced for purposes of [the federal statute] as

soon as the complaint is filed,” and irrespective of any state

filing limits. 441 U.S. at 760, 99 S. Ct. at 2073.

The lead opinion does not address, or even acknowledge,

this principal basis for the decision in Oscar Mayer. The

statute in that case defined “commencement,” and decreed

that the states could not impose any requirements for

“commencement” beyond the bare filing of a statement of

facts.18 Section 1997e(a), in contrast, supplies no special

definition of exhaustion. It seems reasonable to assume, then,

that Congress meant for prisoners to “exhaust” their remedies

under § 1997e(a) in precisely the same way that they must

“exhaust” their remedies under 28 U.S.C. § 2254(b)(1)(A).

Under the Supreme Court’s then-recent decision in Coleman,

such exhaustion entailed compliance with a state’s procedural

rules, including filing deadlines. More generally, through its

enactment of the PLRA, Congress could hardly have meant

to relax the standards for a prisoner to exhaust his

administrative remedies, or to invite creative schemes for

avoiding this mandatory requirement.

64 Thomas v. Woolum, et al. No. 01-3227

Other portions of Oscar Mayer also demonstrate its

inapplicability here. The Court emphasized, for instance, that

the ADEA provision at issue “does not stipulate an

exhaustion requirement,” but “is intended only to give state

agencies a limited opportunity to settle the grievances of

ADEA claimants in a voluntary and localized manner so that

the grievants thereafter have no need or desire for

independent federal relief.” 441 U.S. at 761, 99 S. Ct. at 2074

(emphasis added). Congress set the bar a good deal higher in

§ 1997e(a), of course — this provision does mandate

exhaustion, and prison officials have been granted far more

than a “limited opportunity” to address prisoner grievances.

As noted earlier, Congress meant for this exhaustion

requirement to staunch the flow of frivolous and abusive

prisoner litigation, a concern which in no way animated the

enactment of the provision at issue in Oscar Mayer.

More generally, Oscar Mayer’s express disavowal of any

consideration of exhaustion principles presumably explains

why, so far as I can tell, that decision has never been cited

outside of its peculiar ADEA/Title VII context as any sort of

authority on the meaning of administrative exhaustion.

Indeed, Oscar Mayer does not state a rule of general

applicability to administrative exhaustion even in the narrow

context of employment discrimination law. In particular, the

courts do insist that grievants comply with administrative

time limits in order to pursue their employment

discrimination claims in federal court. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,

1132 (1982). In a decision affirming the dismissal of a case

in which a pro se plaintiff missed a Title VII filing deadline,

the Supreme Court emphasized that “[p]rocedural

requirements established by Congress for gaining access to

the federal courts are not to be disregarded by courts out of a

vague sympathy for particular litigants.” Baldwin County

Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct.

1723, 1726 (1984). Although doctrines such as equitable

tolling might excuse an untimely filing in a particular case,

we have cautioned that such relief is “sparingly bestow[ed],”
No. 01-3227 Thomas v. Woolum, et al. 65

19In light of these precedents, I am at a loss to see how the lead

opinion can claim that no “procedural default hurdles” stand in the way

of a Title VII or ADEA litigant. (Lead Op. at 11 n.2.) Whether or not the

courts employ the terminology of “procedural default” in such cases, the

brute fact remains that individuals who miss administrative deadlines

generally forfeit their right to call upon the “federal courts as a vindicator

of federal rights.” (Id.)

and that “[a]bsent compelling equitable considerations, a

court should not extend limitations by even a single day.”

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,

209 F.3d 552, 560-61 (6th Cir. 2000).19

I fail to see why we should favor the civil rights claims of

prisoners over those of law-abiding citizens. In fact, the lead

opinion’s rule creates precisely the dilemma the Supreme

Court sought to avoid in Coleman — in this Circuit, we

respect federal procedural rules in employmentdiscrimination

cases, but not state procedural rules in prisoner § 1983 suits.

Neither Oscar Mayer nor any other authority supports such a

result.

V.

In the end, the lead opinion’s ruling on the issue of

timeliness rests upon a smattering of policy-based

observations in Oscar Mayer, wholly unmoored from the

specific statutory context in which the Supreme Court ruled

in that case. This is a far cry from the lead opinion’s initial

promise to resolve this question “in light of Congress’s

purpose in passing the PLRA,” (Lead Op. at 3) — which

purpose the lead opinion then proceeds to discount — and in

light of the Supreme Court’s exhaustion precedents — which,

as noted, recognize timeliness as an essential element of

exhaustion. It is a strange form of “[j]udicial restraint,” (Lead

Op. at 19-20 n.4), in my judgment, which reaches out to

decide an unnecessary issue in a way that invites prisoners to

circumvent the congressional mandate of exhaustion.

66 Thomas v. Woolum, et al. No. 01-3227

As explained above, I believe that the relevant policy

considerations militate strongly against the rule adopted by

the lead opinion in this case. More importantly, the lead

opinion’s willingness to dispense with administrative filing

deadlines runs counter to the strict exhaustion requirement of

§ 1997e(a), the intent of Congress in imposing this mandatory

prerequisite to prisoner suits under § 1983, and the decisions

of this and other Courts of Appeals uniformly holding that

inmates must comply with a prison’s procedural rules as they

exhaust their administrative remedies. Accordingly, while I

concur in the Court’s judgment affirming the District Court,

I dissent from the lead opinion’s ruling that untimely

grievances satisfy the administrative exhaustion requirement

of § 1997e(a).