1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0252P (6th C ir.) File Name: 03a02 52p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

D OUGLA S T HOMAS ,

Plaintiff- Appellant

,

v.

S HAWN W OOLUM , Defenda nt,

R ICHA RD K EPLER ; C HARLOTTE S TARCHER ; B ILL IE W ADDE LL , S R ., Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - - N No. 01-3227

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

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

Argued: August 6, 2002
Decided and Filed: July 28, 2003 2 Thomas v. W oolum, et al. No. 01-3227

* The Honorable Gerald E. Rosen, United State s District Judge for the Eastern District

of Michigan, sit

ting by designat ion. Before: MOORE and GI LMAN, Circuit Judges; ROSEN, District Judge. *

_________________ COUNSEL

ARGUE D: Alphonse A. Gerhardstein, LA UFMAN & GERHARDSTEIN, Cincinnat i, Ohio, for

Appellan t. Todd R. Mar ti, OFFI CE OF THE ATTORNEY

GENERAL
, CORRECTIONS LITIGATI ON SECTION, Columbus, O hio
, for Appellee. ON BRI EF: Alphonse A. Gerhardstein, Paul M. Laufman, L

AUFMAN& GERHARDST EIN, Cincinnat i, Ohio
, for Appellan t. Todd R. Marti, OFFICE OF T H E ATTORNEY GENERAL, C O RRECTIONS LI TIGATI ON SECTION, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court. GIL MAN, J. (pp. 25-2 7), deliv ered a separate concurring opinion. ROSEN, D. J. (pp. 28-6 6), d elivered a separate opinion dissenting

in part a nd concu rring i n the judg ment.

_________________ OPINION

_________________ K AREN NELSON M OORE, Circu it J udge. C ongr ess’ s passa ge of the Pri son Li

tigation Reform A ct (“PL

RA ”) was

an attempt to curb rampant prison litigation in the federa l courts, but its enactment did noterode the role of the federal courts as vindic ators of

federa l rights. The PL

RA explicitl

y requires aninmate se eking to challen ge pris on conditi ons in federalcourt to exhaust any available administrative remedie s, but the statute’ s text does not condition acces s to the federal courts on

satisfying the pr

ocedures and timelinesNo. 01-3227 Thomas v. W oolum, et al. 3

of prison administrators. Thus, this case turns noton whether exhaustion is requir

ed, the a nswer to which is w ell settled, but

on what exhaustion requ ires. We a nswer tha t question

in light of Congr

ess’s pur pose in pa ssing th e PLRA and Supreme Courtprecedent

regarding the exhaustion doctrine’s oft-stated purpos e: to give p rison off icials the

first

o pportunit

y to addre ss inmate c omplaints a ccordin g to thei r rules and procedures without letting those timetables dictate the outcomes of § 1983 a

ctions. Ac cordingly, we hold that so long as an inma

te prese nts his or her grievance to prison officia ls and appeals through the available pr ocedures, the inmatehas 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 f eder al sui t. We also hold, however, that when a grievanc e does no t give prisonofficials notice of the natureof the inmate’s complain t, the inmate has not met the PLRA’s requ irements. We thus AFFIRM the judg ment of the

district c ourt.

I. BACKGROUND

When inmateDouglas Thomas told a supervising officer at t he North Central Correctional Institution (“NCCI”) that h e felt stressed out and needed “to lay it do wn for afew day s,” the officer

instructed Corrections Officer Shawn Woolu

m to take Thomas down t o the segregation unit. J.A. at 84 (Springer Inc ident Rep. ). Woolum, w ithwhomThomas had exchanged

angry words earlier

that day, took

the oppor tunity to retal iate. Whil e walk ing Tho mas do wn to s egr e gation, Woolum instructed another inmate who was present to leave and began to pummel the ha n dcuffed Thomas. Woolum struck Thomas fr

om behind, slammed hi

m into a ste el d oor, and banged his face ag ainst the steel door and cement walls. Upontheir ar

rival at t he holding

cell, Woolu

m sla mmed Thomas into a steel doorframe, picked him up, and slammed his face and head aga

in into a cement wall. Woolum then stomped on Thomas’s foot. Thomas was in handcuffs during the relevant

time and did notresist. As a result of Woolum’s actions, Thomas suffered a broken clavicle, br oken ribs, a 4 Thomas v. W oolum, et al. No. 01-3227

broken foot, facial lacerations, and massive swelling

. Thoma s alleges that Officers Richard Kepler, Charlotte

Starcher, and BillieWaddell, Sr . observe d the bea tin g , but they

failed to intervene. That was on November 5, 1997.

Various investig ations followed. Officers Woolum, Keple r, and Waddell, along with the supervising officer who ha d suggested Tho mas g o to segregation and the nurse w ho treated Thomas’s injuries, filed “incident reports,” as prison regulations req

uire w hen an employe e struggles with an inma te orobserves such a struggle. Ohio Admin. Code § 5120-9-02(A)-(B) (1997). Tho ma s also filed a voluntary stat ement the day after the incide

nt, in whic

h he desc ribe d what had happened and noted, “At some point whe n I was being beaten

while wearing handcuffs I seen officers looking butthe only on[e] I

knew was Bill[ie] Waddell.” J.A. at 153.

Inacco rd wi th regulations, prison officials then formed a Use of Force Committee t o investig ate the incident. Having heard addi tional statements, including another statement from Thomas describ in g W oolum’s actions, the Use of Force Committee issued a report concluding that Woolum had used

aninappro priate amount of force; after disciplinary procee dings some time l ater, Woo lum was fired. Under the administrative code, however, the inma te has no r ight to view the report or the e

vidence used to cr

eate it.

Inaddition to th e p ri so n’ s i nt er na l a dm in is tr at iv e i nq ui ry, Thomas invoked the formal grievance proc edure. 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 abo ut May 4, 1998, Thomas filed a Notifi cati on of Grievance with NCCI’ s institutional insp ect or. The Notification of Grievance form requires the prisoner

to state “[t]he nature of the Grievance” in specif ic terms. Thomas sta

ted, in pa rt, as fo llows:
[O]n N ov. 5th whi le I was at NCCI I wa s assaulte d b y [Corrections Officer] Woolumwhile I was in handcuffsNo. 01-3227 Thomas v. W oolum, et al. 5

and I h ad sev eral bones broken and have since bee n transferred

to A.C.I. administratively . Also as you know the st ate troopers & the FBI have conducted investig ations.

. . . The Prison[] Litigation Reform Act & Title 42 of the U

nited State s Code req

uire[] that a prisoner must exhaus t state re

medies pr ior to l itigation. Therefore I ask that [Corrections Officer ] W oolum be

remov edandreleased from his employ ment with the Departme nt of Corrections and that I am awa rded 5 million dolla

rs.

J.A. at 33. The institutional inspector denied relief, appare ntly because the g

rie vance was not filed within the thirty-day period require d b y Depar tment of Rehabilitation

an d C or re ct io n ( “D ep ar tm en t” ) p ol ic y.
Thomas pursued his grievance. Following the initial deni al, Thomas appealed to the Chief Inspe ctor. Thom a s argued that the ACI

lawlibrary had be en provided copies of Department

policy manuals only

in the last thirty to forty-five day s, that the th

irty-day time limit

was a re cent cha

nge in po li cy, and that prisoners had not been notified of the change in po licy. On October

30, 1998, the Chief Inspector de nie d Thomas relie f, det ermin ing th at the gr ievan ce was filed too late and th at inf

ormat ion re gardin g the De partment’s new ti me-limit

policy was ava

ilable in the law librar y

. Ac co rd in gl y, the decision of the Chief Inspector stated, “ This Office will take no further action in regard to y our complaint at this time.” J.A. at 35.

Tho ma s filed a complaint in state court on November 5, 1998
, a gainst Wo olum and John Does and

Jane Does
, alleging that Woolum appliede xcessive force and that the Jo hnDoes and Jane Does failed to protect Thom as an d prevent the be ating. Thomas claims that during discovery

for the state-court action, he le arned that Kepler, Starcher, and Waddell were present during the bea ting and failed to protect him. Inde ed, state

ments t hat offic ers had f iled with their incident reports and the Use of Force inv estigat ion — 6 Thomas v. W oolum, et al. No. 01-3227

statemen ts tha t Thom as had no right to access — indicated that other office rs might have obse

rved Woolu

m’s actions a

n d notinter vened . Thom as lear ned th rough these doc uments, for example, that Officer Kepler “heard a loud noise coming from the sallyport” and “ exited the R.I.B. off ic e to investigate,” J.A. at 88; that Officer

Waddell “walked into the hall [when] Thomas was being pu

t in a holding cell,” J.A. at 89, which meant that, according to the Use of Forc e Committee’s conclusi ons, Waddell migh t have watched Thomas being pushed in a way that cau se d hi s head to strike the wall; and that Office r Star cher ad mitt ed hav ing s een Tho mas in the holding cell. Fr

om these newly available statements, Thomas appears to have c oncluded that these

three officers may have witnesse d Woolum’s a ssault.

The state co

urt action again st

Woolum and the John Does and Jane Does

was then

dism issed without prejudice on October 20, 1999, and Thomas filed the original comp laint in U.S. District Court on October 22, 1999. This time, Thomas sued not John Does and Jane D oes, but armed with the informationobtained

in state c ourt disc overy, instead sue d Woolum, Kepler, Starcher, and Waddell. After briefing, the districtcourt ruled that Thomas ha d not exhausted his remedies with respect to Keple r, Starc her, and Waddell. Thomas’s grievance form, the District Court rea soned, was “aga inst defe ndant Woolum,” not the other defendants, J.A. at 114, so although the court eventua ll y awarded Thomas $70,000 onhis claim a

gainst Wo olum, it

dismissed h

is claims againstKepler, Starcher, and Waddell for failure to exhaust.

Thomas appealed the dismissal of his claims ag ai nst the other defendants. The defendants now offe r two way

s in whichThomas 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 g rievance was insufficient

to exhaust h

is claims. First, the defendants argue that Thomas fa

iled to exha

ust his admi

ni strative remedies because he did not f

il e his grievance reg arding the November

5, 1997 be ating un

til May of 19 98 , a ft er th e t hi rt y-No. 01-3227 Thomas v. W oolum, et al. 7

day period in which the De partment will accept grievance s had expired. Second , t he y argue that his grievance was not “aga inst” them, butagainst Woolum alone, and that he c ould notbring a suit against them. We review de novo any leg al determinations made in di smi ssing a complaint for lack of subject matter jurisdiction, including a determination that the plai ntiff did not exhaust administrative remedies, and w e review any fac tual findings for clea

r error. See Cathedral Rock of North College Hill, Inc. v. Shalala , 223 F.3d 354, 358 (6th C ir . 2000). We

begin w

ith the de fendant s’ first argume nt, for befor e we may

determine whether Thomas’s grievance was suf

ficient, it is necessary

for us to determine whether we may look at his

grieva nce at a ll.

II. COMPLIANCE WITH STATE PROCEDURAL

REQUIREME NTS

The Prison Litigation Reform Act prohibits inmates fr o m challenging

prison conditions in federal courts un til they have exhausted their available administrative remedie s. 42 U.S.C. § 1 997e(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 C ir. 1999)(recog nizing tha

t exhaustion requirement

applies only to thos e who are “curre ntly detained,” notformer prisoners, and noting agr eement of the Second, Seventh, and Eighth Circuits). Th e e xhaustion requirement

ensures that state prison sys tems will have an opportuni ty to handle prison griev a nces internally be fore

recourse to the feder a l courts becomes available. But exhaustion is not the sa me as pr ocedura

l defaul t, and in similar sta

te administrative contexts, the Supreme Court has held that state timelines cannot foreclose access to the feder al courts when a pe

tit io ner has e

xhausted hi s or her s tate administra tive remedie s by bringin g a gr ievance to the stat

e
an d pursuing that grievance throug h to the administrative agency ’s final ruling. That is, the exhaustion requirement is

a “termina tion” re quireme

nt, requiring a petitioner

to pursue administrative reme di es as fa r as they exist. So long

as a 8 Thomas v. W oolum, et al. No. 01-3227

prisoner meets this requ irement, a federal claim will not be barred by t he plaint iff’s fa ilure to c omply

with a state prison’s interna l proced ural re quireme

nts.

A. Exhaustion and the PLRA
By requiring prisoners who cha llenge the conditions of their confine ment to e xhaust first their state administrative remedie s, the PLRA gran ts state prison systems the initial opportuni ty to addre ss their inte

rnal pro blems. Whereas

parts of the PLRA aim to ea se the bur den that meritless

pris one r lawsuitsimpose on state law-enforcemen t officials and the federaldocket, see, e.g. , 42 U.S.C. § 1997e(c)(1) (permitting court to dismi ss su a sponte prisoner suits that a

re obviou sly frivolous); id. § 1997e(f) (authorizing pretrial heari ng s via telephone or videoconference rather than in-person appearanceof the pr

is one r); 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 defe at v alid constitutional claims. Ra th er , t he ex ha us ti on re qu ir em en t s im pl y reco gniz e s that unless a prisoner

first pre sents hisor her grievance to the stateprison system, what will often be the most eff icient mechani smto remedy a

violation of federal law will be lost. See Porter v. Nussle , 5 34 U.S. 516, 5 25 (2002)(“Cong ress afforded corrections offi cials time and oppor

tunity to addre ss
c omplaintsinternally befor e allowing the initiation o f a federalcase .”). The exh austi on requirement is therefore a bene fitacc orded to state prisons, an opportunity to satisfy those inmategrievances thest at e w is he s t o h an dl e i nt er na ll y. See Preiser v. Rodriguez , 411 U.S. 475, 492 (1 973) (“Since theseinterna

l problems

of st ate pri sons involv e issues s o peculia rly within state authority and expertise, the States have

animportant

interest innot being bypa ssed in the correction of those problems.”). It is “an ac commodationof our federal system design ed to giv e the Stat e an initia

l opportun

ity t o pass upon an d correct all eged violations o f its prisoners’ federalrights.” Picard

v. Connor , 404 U.S. 270, 275 (1971). It is not, howe v er, designed to permit state administrativeNo. 01-3227 Thomas v. W oolum, et al. 9

1 We have rendered t

wo unpublis hed orders i n which we held that t he exhau sti on requ ireme nt was no t met be cause of a failure to me et a state’s proced u ral deadlines. However, these unpublished orders have no pr eceden tial

value a nd d o no t bind th is pane l. Jacobs v . Wil kins on , No. 00-3212, 2001 WL 1298979 (6th Ci r. Au g. 8, 2001 ) (Unp ub. Order); Qawi v. Steg all , No. 98- 2402, 2000 WL 5 71919 (6th Cir. May 3, 2000) (Unpub. O rder). timelines to handcuff the federal courts in adjudica ting cases involving important federal rights. Accor d ingly, the PL

RA does not conta

in any langua ge regarding

the timeline ss of grievancefilings or the applica tio n of proc edural d

efault; i f the state for

goes a n opportun

ity t o de cide matt

ers inter nally whether for inter nal time constraints or any othe

r reason, the P LRA has nonetheless served its purpose, and the prisoner may procee d to fede

ral cour t.

Becau se the purpo se of th e e xhaustion r equirement is to provide states the

first opportu

nit y to resolve problems themselve s, an inmate w ho has not p ursued a vailable administrative remedies may not yet proce ed in fed

eral co urt. Thus, we have clearly

hel d that a

n inmate d

oes not exha

ust availab le admi nistrativ e remed ies when the inmate

entirely fails to invoke t

h e prison’s grievance procedur e, 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 c omplaint to the highest possible administrative level,” Wright v. Morris
, 111 F.3d 414, 417 n.3 (6th Ci r.), cert. denied, 522 U.S. 906 (1997); see also Freemanv. Franc is , 196 F.3d 641, 645 (6th Cir. 1999 ) . However, we have not previously ruled in a published opinion 1 that an in

mate fail s to exhaust his or her availab le administrative r e medies when the inmate invokes the prison’s grievance sy

stem initially and appeals the denial of that gri eva nce, but is time barred by the prison’s administr ative pr ocedure s. 10 Thomas v. W oolum, et al. No. 01-3227

Our pre cedent d

emonstra tes only that, in keeping with the plain language of § 1997e(a), a prisoner does not exhaust his admini strative remedies when he fails to commence the grievanceprocess or

to run the gamut of potential appeals. In Hartsfield, we dismissed a prisoner’s § 1983 suit because the disappearanceof the prisoner’s grievance f orm, the lack of any evide nce dem onst ratin g that a grieva nce was actually filed, and the failure of the prisoner t o refile a grieva nce did notsupport the argument th at the prisoner ever began the grievancep rocess. 199 F.3d a t 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 obtainin

g a gr ievance form aft er his init ial request for one was denied and because the prisoner ne ver made “any other attempt to obtain a form or to file a grievance without

a form”). In Freeman , the exhau stion req uirement was not met because the prisoner jumped the gun, and despite making

some attempts to f

o llow the pr

oper g rievanc e proce dures, filed a federal complaint before completing all of the stages of the inter nal gri evance

process

. 196 F.3d at 645. In Wright

v. Morris , one pris oner file d an initia l griev ance, b

ut t he n failed to appeal the de nial o f this grievan ce thro ugh the entire process

. 111 F.3d at

417 n.3; see also Harpe

r v. Jenk in , 179 F.3d1311, 1312(11th Cir. 1999) (di smissing § 1983 clai m because the inmate did not appeal the denial of the grievance, thus failing to give the state a full chance to hear the gri e vance). These cases thus address the situation in which the prisoner

is attemp ting to “bypa ss the exhaustion requirement

by d eclining to file ad

ministrati ve compla

ints andt hen clai

ming tha t administr

ative re medies a re tim e

barred and thus not then available.” Wright, 111 F.3d at 417 n.3.
Here, however, Thomas filed a gr ievance in the prison’s formal gri evance proc ess, and once that grievance was denied, Thomas appealed a s far as he could. He had qu ite litera lly exhaust ed

his ability to go any

further within the internal prisonsystem. There

were no more ave

nues to tr avel with in the state prison system. If T homas had

failed to file, the stateNo. 01-3227 Thomas v. W oolum, et al. 11

2 Analogizing the priso n grieva nce syste m to oth er state administrati ve proces ses is more apt than analogizing it

to t he proc ess of habeas relief. The Supreme Court has not plac ed any pr oce dura l defau lt hurdles upon the cong ress ional ly mandat ed exhaust ion r equir ement s f or Title VII and the ADE A, which are chiefly concerned with administrat ive grievances. Thus, si mply becaus e th e Supre me Court has c raf

ted a procedural defau lt rule in the ha beas corpus cont ext t o shore up poten tial end-runs around the exhaust ion requi remen t does not justif y extending procedural defaul t outs ide of t he sphere of

crimi nal l aw. There are key distinct ions between the adminis trat ive gr ievance process and t he habeas proce ss that warr an t dispa rate ap plicatio ns of a p roce dura l defau lt requ ireme nt. The no ti ons of c omi t y that preven t f ederal court s f rom undu ly int erfer ing wi th t he sta te cri minal j udicia l process in t he hab ea s
co ntext do not have pr ecisely the same resonance and in tensi ty wh en federalcourts are anal yzing the out come of a n on-cri minal sta te administrati ve process an d when § 1983 interpose s the federal courts as a vindicator o f federal rights. p risonsystem would never ha ve had any op po rt un it y t o review the claim. However, by

filing, Thomas gavethe state

anopportunity to hear the claim and, by appe aling, Thomas gave the state the opportunity to rec onsider its decision. Thomas receiv ed the be

nefit of the p otential t

hat the sta

te would hear his grievan ce by waiving the procedural guid elines, which the state could have done if it wan ted t o avoid federa l court. The state received the benefit of dealing with the case inter

nally if it so desir

ed. The d

efenda nts, however, argue

that e xhaustion also requires more, and sp ec if ic al ly, that it re quires c omplianc e with sta te administrative deadlines. Yet such an outcome would extend our esta blished pr

eceden t bey ond its pre sent bound

aries.

B. Exhaustion and State Procedural Rules

Intwo similar statutory contexts requirin g resor t to state admini strative procedu

res, the Supreme C ourt h as specific all y held t h at a plaintiff’s failure to comply with state statutes of limitations cannot pr

event the plaintiff from p roc eeding

to federalcourt. 2 Both the Age Discrimination in Employ ment Act and Title V II of the Civil Rights Act of 1964 require plaintiffs to prese

nt their g rievanc es in the r

elevant stat e 12 Thomas v. W oolum, et al. No. 01-3227

system before the plaintiff may

initiate a federalsuit. See 29 U.S.C. § 633(b) (ADEA); 42 U.S.C. § 2000e-5(c) (Title VI I). 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 thegoverning state ag ency after the state’s statute of limitations hadex pired ha d nonethe less satisfied the ADEA ’s requi

r ements and could

procee d with his federal suit. See Oscar May e r , 441 U.S. at 753 (“[T]he grie vant is not requ ired by [§ 633(b)] to commence the st ate procee dings w ithin time limits specified by state law.”). Si mi la rl y, in EEOC

v. Commercial Office Products Co.
, 486 U.S. 107 (1988 ), the Supr eme Court hel d t hat a Ti tl e VII plaintiff’s failure to comply with a state statute of limitations inpresenting her grieva

nce to the state agency

was irrelevant indeterm inin g w hether she could p roceed to feder al court

. See id. at 123 (“[ S]tat e time limits for filing discrimination claims do not determine the applicable federal time limit.”).

For both of those f ramewor ks, the SupremeCourt relied on three primary

argume nts to conc lude that

failur e to compl

y with state time limits could not pre ven t the plaintiff from coming to federal court. A l l three a rgumen ts are a pplicabl e inthe present case. First, theCourt found in both instances that the absence of any

mention in the statutes’ t ext of any requirement

of timeliness under state law ind icate d Congress’s inte nt that state time requirements could not bar the federa l claims. Inboth cases, the Court insisted that such

a require ment could be imposed only by explicit mention. See Oscar Mayer , 441 U.S. at 759 (“In particular
, there is no require ment [in the ADEA ] that, in or

der to commence s tate procee dings and thereby

preserve federal

rights, the grievant must file with the State within whatever time limits are specified by s tate law.”); Commerc ial Office Prods. , 486 U.S. at 124 (“ Title VII , like the ADEA, contains no e

xpress reference to timeline ss under

state law.”). Second, the Court emphasized

that state statutes of limitations should not serve
as a bar to federal co ur t “‘in a statutory sche me in which laymen, unassiste d by

trained lawy ers, initiate the process.’” Oscar Mayer , 441 U.S. at

761 (q uoti ng Love v. Pullman Co.
,No. 01-3227 Thomas v. W oolum, et al. 13

404 U.S. 522, 5 27 (1972) ); accord Com merc ial Office Prods.
, 486 U.S. at 124 . Third , the Cour t reasoned that sta

te proceduralrules sho

uld not be a

ble to prevent a federal

court fromremedying

a harm that Congress sought to prevent. The requirement

that plain tiffs first initiate

state procee dings gave states “a limited opportunity” to resolve discr imination complain ts, and “[i]ndividuals should not be penalized i f States decline, for whatever reason, to tak e advan tage of these opportunities.” Oscar Mayer , 441 U.S. at 761 ; see also Commercial

Office Prod

s. , 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 consider ations ap ply in each).

The latter two argume

nts unquestionably

apply with equal force in the context of the PLRA. First, the prison g rievant is gener ally the epitome of the layperson, unassisted by a traine d lawyer, seeking to invoke the legal process. Further, if state s may not use ad

ministrati ve timelimits to defeat an ADEA or

a Tit le VII claim, the

y should not be

able to de feat a c laim under the Civil Rights Act of 1871 , Con gress’s preeminent declaration

that state officials may

not undermine federal law. “Amajor fa ct or 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 un willing to protect the constitutional rightsof individ

uals or to punish thos e who viol ated th e se rights.” Patsy v. Bd. of Regents of Florida , 457 U.S. 496, 505 (1982) (refus ing, absent

explicit congress ional instr uction, to create an exhaust

ion r equirement for § 1983 suits). If we

were to create a rule that permitted sta tes to defeat § 1983 suits wi th 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 rationale s, which the Supreme Court rel ied on to ho ld that co mpli an ce with st ate statutes of limitations is irrel evan t to a plain tiff’s a bility to 14 Thomas v. W oolum, et al. No. 01-3227

3 Another, sub si dia ry arg umen t r eli ed on in th e ADEA c ontex t supp orts our conc lusion. The Supreme Court reasoned in Oscar Mayer that, becaus e anot

her pr ovis ion of

the ADEA ident if

ied a st atut e of lim itati ons for

cla ims br ought

under tha t Act , the Court

coul d not “attribut e to Congr ess an in tent thro ugh [2 9 U .S.C. § 633 (b)] to add to these expl ici t re quir ement s by impl ication and to in corporate byrefer ence into the AD EA the vario us state ag e-dis cri mination s tat utes of limitation s.” Oscar Mayer , 441 U.S . at 762 -63. This structural argument applies with similar force in the § 1 983 conte xt. Becau se 4 2 U.S. C. § 1988 (a) ind ic ates t

hat t he sta tut e of li mitat ions f or an act ion under § 1983 is to be t

hat provi ded for by “the common law, as modified by the const it uti on and st atut es of

the St ate” of jurisdi ction, 42 U.S.C. § 1988(a), which under Ohio l aw prov ides for two yea rs, see Br owning v. Pendlet on , 869 F.2d 989 , 992 (6th C ir. 198 9) (en banc ), for us to bor row a differen t, thi rty -day statut e of limit ations sugges ted by an adminis trat ive agen cy for its own internal gri evance process would attribute t o Congress an inte nt that appears nowhere in the PLRA and is incon sistent with the reasoning of Oscar Mayer . Co ngre ss now here su ggeste d an in tention “to incor por ate by ref

erence, ” Oscar Mayer , 441 U.S . at 7 62-6 3, s tate administrative dea dlines. That Congress ha s ins truct ed us to borr ow a s tat e’s st atut e of limit ations on p erson al in jury ac tio ns in no way imp lies that we should borrow a state pri son’s administ rative deadlines. The two deadlines serve very different purpo ses; whereas a stat e legi slat ure’s incent ives in sett ing its perso nal injur y statute o f limitations w ill be we ll balanc ed, a sta te priso n’s in ce ntives in setting a time limit on inmate grievances — espe cially if

the li mit woul d ins ulat e pri son of fi cial s f rom § 1983 suits — wou ld likely lead to sho rter and shorte r limitation s perio ds. Compa re, e.g. , Kentucky Corr ecti ons Policy 14.6(VI)(J) ( req uiring agg rieved inmate to fil e grievance withi n five days, and appeal within three day s), with Collard v. Kent

uck y Bd . of Nursi ng , 896 F. 2d 179, 182 ( 6th Ci r. 1990) (recognizing st atut e of

li mit ati ons f

or § 1983 act ions at on e yea r f or those in Kentuc ky’ s gen eral popula ti on). Although sta te of ficials may have leg it imate reaso ns for im pos ing de adline s on inm ate grie vanc es, there is

no reaso n that a p rison’s leg itimate inte rest in , for example, conserving investi gative resources must prohibit federal court

jurisdict ion. bring a feder

al c laim, app ly w

ith equal or stronger forc e to claims under § 1983. 3

Thus the only question is whether the language of § 1997e, whichprevent s prisoners from challenging prison conditions “until such administrative r emedies as are available are exhausted,” 42 U .S. C. § 1997e( a), distin guishes the PLRANo. 01-3227 Thomas v. W oolum, et al. 15

fromthe ADEA and Title VII in such a way as to per mit state agencies to defeat fed eral claims. Title VII ’s filing require ment, after which the ADEA’s was patterne d, reads as follows:

Inthe case of an alleged unlaw ful em ploymen t practice occurring in a State, or political subdivision of a State, whichhas a Stat

e or lo cal l aw prohibiting the unlawful employment

practic e alleg ed and e sta bl ishing or autho ri zing a State or local authority to grant or seek relief fro m such practice or to institute criminal procee dings with respect theret o upon receiving notice thereof, no charge may

be filed under

subsection [(b)] of this sectionby the

person aggrieved be fore the expiration of sixt y days after proceedings have be en commenced

un der the Stat e or lo cal la w, unl ess su ch pro ceedin gs have be en ea rl ie r t er mi na te d, pr ov id ed th at su ch si xt yday period shall be exte

nded to one hundred

and twen ty days during

the first year

after the effective date of such State or local law. If any requirement for the commencement

of su ch pr oc ee di ng s i s i mp os ed by a S tate orlocal authority other tha n a requirement of the filing of a written and

signed statement of the facts upon

w hich t he proceeding is based, the proce eding shall be deemed to have be en comme

nced for the purpo ses of this subsectionat the time such statement is sent by reg

istered

ma il to th e a pp ro pr ia te St at e o r l oc al au th or it y.

42 U.S.C. § 2000e-5(c). To be sure, as the Oscar Mayer court indicat ed, a requirement that a would-be federal plaintiff exhaust state remedies is different from a requirement that the plaintiff commenc e state proceed

ings. See Oscar Mayer
, 441 U.S. at 76 1. Ac co rd in gl y, as Congress requires that an inmate exhau st availab le adminis trative r emedies , 42 U.S.C. § 1997e( a), the q

uestion is w

hat exhaus tion requ

ires.

Ina number of cases, the Supreme Court has sugg ested that exhaustion is the anto

nym of co mmencement. Whereas commencement

requires the plaintiff to begin , exhaustion 16 Thomas v. W oolum, et al. No. 01-3227

requires the plain

tiff to finish. In Oscar

Mayer , for example, the dis tin ction between the ADEA’s requirement and a n exhaustion requirement focu sednot on any purported differencein the two requirements’ power to def eat federal claims, b ut on the simple fact that 29 U.S.C. § 633(b) “requires only that the

grieva nt commence

stateproceedings.” Oscar Mayer , 441 U.S. at 75 9 (emp hasis in original). Exhaustion, then, provides the flip side of that coin, “requi r[in g] the court to delay action until the administrative phase of th e s tate proceedings is terminated .” Gibson v. Berryhil l
, 411 U. S. 564, 574 (1973) (emphasis added). Unlike the commencement requ iremen t, which is crafte d to give state ag encies a

n opportun

ity to resolve

a proble m while federalaction proceeds on a parallel track, see Oscar Mayer
, 441 U.S. at 757 (recognizing that ADEA set up “c oncurrent rather than sequential state and fede ra l administrative jurisdiction”), exhaustion is a t erminati on requir ement, designed to keep f

eder al court s out as lon g as the state administrative machinery is wor king to resolv e the pro

blem. Even the disse nters in Patsy v. B oard

of Regents of Florida
, who argued that § 1983 included a jud icia lly create d exhaustion requirement for al l plaintiffs, agreed that an exhausti on requirement “does not defeat feder al-court j urisdiction, it merely defe rs it.” Patsy , 457 U.S. at 53 2 ( Powell, J., dissenting). Thus when Congress imposed a n exhaustion require

ment in the

PLRA, b ut im p osed no other restrictions, it imposed a termination requirement. See, e.g.
, United States v. Well

s , 519 U.S. 482, 4 95 (199 7) (“ [W]e presume t ha t Congre ss expects

its statute s to be re ad in conformity with this Court’s prece dents.”).

With th e PLRA, Congress could have required more than

anexhaustion requirement, but it chose not to. Congr ess could have, for example, requi re d i n § 1 997 e(a ) th at, “In exhausting available administrative remedies, the pr i soner shal l compl y with the prison’s rea sonable time limits for filing grievances. Untimely clai m s shall be deemed procedurally

defaulted.” Had

Congress done so, the present

casewould be much eas ier . But Congress did not, and theNo. 01-3227 Thomas v. W oolum, et al. 17

Supreme Court has instructed that we are not to impose such require ments when Cong

ress refuses. See Commercial Office Prods.
, 486 U.S. at 124 (“Title VII , like the ADEA, contains

no express r

efere nce to time liness und

er state law.”); Patsy
, 457 U.S. at 514 (r

easoning that legislature s, not court s, are to determine “what consequences should attach to the failure to comply with procedura l r equirements of administrative proceedings”); Oscar Mayer
, 441 U.S. at 759 (“In particular
, there is no requ

irement t hat, in or der to commence s tate procee dings and ther

eby preser ve fede ral rig hts, 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 crea

ted procedu ral def ault rule, going well bey

ond the exhaustion

rule tha t C ong ress impos ed with the PLRA and contravening

the Supre me Court’ s explicit in struction s in the Oscar Mayer

line of cases. T his may be a tempting and

commonmistake, b

ut it is a mist

ake none theless, as Coleman

v. Thompson , 501 U.S. 722 (1991), shows. In di scus sing a habeas petitione

r who file d an untime ly n otice of appeal i n state court, the Court in Coleman reasons, “A habea s petitioner who has defaulted

his fede ral clai ms in state

court meets the technic al requi

rements for exhaustion; there are no stateremedies any

longer ‘avai lable’ t o him.” Id. at 732. That is, by filing the notice

of ap pe al , e ve n t ho ug h u nt im el y, the petitioner h ad exha usted his state remedies. The petitioner failed not because he had failed to exh aust his remedie s, but because he had procedurally de faulte d them. See id. (“

In the abs ence of t

h e independ

ent and ad

equate state ground doctrine in federal habeas, habeas petitioners would be able to avoi d the e xhaustion requirement by defaultingth ei r feder

al claims in state c ourt.”)(emphas is added). Procedural default is thu s dist inct from the exhaustion require

ment, anadditional requirement added on top of exhaustion.

Alth ough there may be

an “interplay

” between the t wo doctrine s, O’Sullivan v. Boerckel , 526 U.S. 838, 848 (1999), 18 Thomas v. W oolum, et al. No. 01-3227

and they appea

r together when the re is a proce dural de fault “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 imposedifferent requirements. The judiciary cr

eated the procedu ral default rule to ensure that courts did not issue advisory opinions when an i ndep endent a nd adequ ate state ground supported

a state court’s judgment, and extended the rule into t he habe as context only

because “a state prisoner is incu st od y pur

suant to a judgment” that would be rendered ineffective by a fede

ral court’s ruling. Coleman
, 501 U.S. at 729-30 (em

pha sis in original). This extension of the proceduraldefault rule into the h abeas c ontext obvio usly

cann otsupport its

extension in

to exhaustion of pris o n administrative remedie s, as we have nev er consi dered a state warden’s decision

on a gr ievance to be the e qual of a

full state-court

judgment. Indeed, the

Sup reme Court’s habeas decisions instruct t

hat, whe reas the procedu ral def ault doctrine requires a habeas petitioner to co mply with

reasona ble state procedural rules, the exhaustion requirement requires that “state prisoners . . . give the state courts on e full opportuni ty to resolv e any

constituti o nal issues by invoking

one compete round of

the State’s established

appellate review pr ocess.” Boerckel , 526 U.S. at 845. This is precisely our holding here.
Thus the only gr

ound for barring a feder al § 1983 su

it due to an untime ly prison gr

ievance is that w e would

otherwis e render prison grievan ce procedures irrelevant. If a prisoner knows th at he or sh e m ay f ile a federal suit by

filing an untimely grievance, the argument goes, prisoners will have an incentive to bypass the pr is on grievance process by waiting until its deadline

has passe d, filing

an untime ly

grievance, and thenproceeding to federal court. I ndeed, the Seventh

Circuit appears to have r

elied on t his policy argume nt in holding that

anuntimely grieva

nce will bar a § 19 83 su it. See Pozo v. McCaught

ry , 286 F.3d 1022, 1025 (7th Cir.), cert. denied , -- U.S. --, 123 S. Ct. 414 (2002 ). However, not on ly d oes this argu ment sweep aside the meaning of exhaustion, it is anNo. 01-3227 Thomas v. W oolum, et al. 19

4 There is no d oub t that dea dlines a re mu tu ally ben eficial for b oth pris on administrators and priso ners. The dissent ing opin ion cl aims t hat

we view “tim e limits as m ere trap s for the u nwary, a nd utte rly fail[] to acknowledge that procedural deadline s serv e th e le git imat e in ter est s of both sides to a dis pute” and t he diss ent accu ses us of ascribi ng “nefarious moti ves .

. . to pr ison

administrat ors who seek to enforc e . . . dead lines.” Diss. Op . at 30 ( emp hasis d eleted ). Then, while mistakenl y crit icizing the majo rity for an a ssumpti on it does not make, the di ssent ing opin ion makes the equall y sweepi ng and errone ous presumpt ion th at absen t a procedur al defau lt requir ement, prisoner s wil l have “ cart e blanc he

. . . to ignore any and all adm inistrative tim e limits” a nd will p urpo sefully d e fault their adm inistrative re med ies to see k a trip to feder al cou rt. Id. at 32. However, the perception t hat the a bsen ce of p roce dura l defau lt guidel ines in this area will result i n pris oners purposefully not fil ing grievances wit

hin the deadl ines in or der t o by pass the int ernal pris on syst em is coun terba lance d by the equa lly real co ncern that in the pres ence of pro ced ural de fault standar ds, pri son admini stra tors wi ll i mpose shorte r and short er deadlines m easured in ho urs and da ys, because priso ners will then have no re course to the fed eral co urts if they miss ev en one deadli ne. Following th e dicta tes of C ongr ess and refraining from j udicia lly argument that the Supreme Court specifica ll y rejecte d in Oscar M aye r itself. There is “ [n]o reason ” why one would “wish to forgo an available state reme dy,” the Court reasoned; “[p]rior res ort to the state remedy would not impair the availab ility

of the federal remedy , for th e two are supplementar

y , not mutually exclusive.” Oscar Mayer , 441 U.S. at 764. That is, pe r mitting prisoners to file in federal court foll ow ing an untimely g rievance in no way

creates an incentive to byp ass state re medies, f or potent ial litig ants will still ha ve ev er y i nce ntive to raise their grievance within the pris on’s timelines, because it is in the prison grievance process that inmates will, for most practical purposes, receive their swiftest a nd most effective remedies. Those whobyp ass it will generally

do so to their own disadvantage. Infact, the policy ar gument

works in favor of the conclusion we reach here: prison ad

mi nis trators, knowing

that their

refusa l to enterta ingrievances filed after c ertain deadlines will not protect them from subsequent

litigation, will more likely take advan tage of the opportunity to resolve the g rievance that the PLRA ha s grant

ed them. 4 20 Thomas v. W oolum, et al. No. 01-3227

imposing a procedural default mechanism where none was legislated best balances these concerns and mainta ins t he mutual ly adva ntageous int ernal gri evan ce s ys tem

. Bo th prisoner s and prison administrat ors gain li ttle f rom prisoners jumping right t o federal court as opposed to ut ili zing t he pris on griev ance syst em fi rst , beca

use i nter nal resol uti on of disputes gives prisoners more of an op por tunity for q uick re solutio n of their p rob lems. Ju dicia l restraint, exerc ised b y the ma jority b y not gra fti ng a pr oce dura l defau lt require m ent o nto the PLRA, serves both prisoners and prisons here because it maintains the poten tial for federal recourse. A s a res ult , pri son officials will not m ake gr ievanc e dea dlines u nduly sh ort, as the y will establish timel ines t

hat ar e len gth y enou gh to p ermit ad ministrato rs to evalua te grievances internally so as to av oid a tr ip to t he federa l

cou rthou se. Priso ners in turn will have more time to meet deadlines and prepa re their grievances. Thus the PLRA’s exhaustion requirement distinguishes the PLRA from the interpretations of Title VII and the ADEA, butnot in amanner meaningful for this case. Exhaustion of stateadministrative remedies under t he PLR A requir es a plaintiff notonly to bring his or her claim before the state, but to see it thr

ough tocompletion, appealing denials as permitted and particip ating in

offere d hearin

gs. Exhau stion also requires a plaintiff to bring a grievance to th e state before coming to federal court even when the state ha s made clear that it willnot grant the relief requested. See Boot h , 532 U.S. at 736. But just

as a state

prison sy

stem’s de cision not

to grant certain kinds of relief

does not st

rip the federal courts of their power to grant that rel ief un der § 198 3, so too its decisionnot to grant relief in particular case s — whether for timelines s or f

orany other sta te proce dural re quireme

nt — does not strip the federal courts of their power to do so. Thomas brough

t his grie

vance to the prison officia

ls’ attention, they ref

us ed to he ar it, and he appe aled the ir decisionthrough each available level. Tha t prison offi cials did not wish to address his com plaint, as they

prefer only to address complain ts brough t before them within

thirty day s, is irrelevant for our purpo ses. Thoma s gave the state officers an op po rt un it y, which is all that is required. We may not pena lizeThomas simply because the prison does not wish toNo. 01-3227 Thomas v. W oolum, et al. 21

hear grievances more than

thirty day

s after the incident. See Oscar M ayer , 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 proc ess has exhausted the available administrative re medie s under 42U.S.C. § 1997e(a ), reg ardless

of whether the prisoner

complied with the gri evance

sys tem’s pro cedura

l require ments.

III. EXHAUSTION OF CLAIMS

Alth ough a grievance t

hat is untimely under prison rules still gives state prison officials an o pportun ity to address an inmate’s complaints, a grievance that does not give officia ls notice of the nature of the inmate’s grievance does not afford the officials the opportunity the P LRA requires. Thomas argues that betw een h is offici al grie vance f orm and hi s cooperation

with the pr

ison’s Use

of Forc e investigation, in whichhe specifically me

ntioned the presence of other officers who failed to

protect him, he gav e prison o fficial s sufficient notice for them to address his conc e rns in the grievance process

. True though that may be, our cases require more. Becau se Thomas ma

de no ref erence to the issues involved

in his failure -to-pro tect cla

im in his gr

ievance , we must

find that he failed to exhaust his administrative remedie s with respect to the cla ims aga inst Keple

r, Starcher, and

Waddell.

Thomas’s gr i evance form does not offer the kind of informationthat our prece dent require s for exha usting hi s claims against Kepler, Starcher, and Wadde ll. Thomas ’ s grievancementions neither the def endants themselves nor any facts suggesting that office rs o ther than Woolum knew anything of the incident. Thomas was indisputably awar e of the other officers’ presence a t the time, as he mentioned them inthe incident

report he filed the day

after the beatin

g, so this

casefalls under the rule of Curry v. S cott , 249 F.3d 493 (6th Cir. 2001), wh

ich requ ires that “a prisoner file

a grievance againstthe person he ultimately see ks to sue,” i d. at 505. Si mi la rl y, in Hartsfield

v. Vidor , we ruled that

a prisoner who named three officers inhis grievance, and who could have but 22 Thomas v. W oolum, et al. No. 01-3227

did not name t

wo additional offic ers, had not exhaust

ed his administrative remedies with respect to the two previousl y unnamed officers. Hartsfield

, 199 F.3d at 308-09. He thu s did not “administrat ively

exhaust his . . . claim as to each defendant associa ted wit h the claim.” Burton v. Jones , 321 F.3d 569, 574 (6th Cir. 2003). Although an inmate need not identify each officer by

na me when the identities of the particular officers are unknown, Thom as here knew one onlooking officer ’ s identity and knew that others ha d watched the beating

as well. Accordingly , his grievance form should have noted either the other officers’ names or the fact that other offic ers had seen t he beat ing.

Thomas sugg ests that his defici ent grievance notwi thst andin g, he s atisfied the exhaustion requirement by participatingfully in the prison’s internal investig ation. Indeed, the day

after the attack, Thomas told prison officia ls 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 se em to acc omplish many purposes of the PLRA’s exhaustion requirement. However, it is no longe r sufficient for an inmate sim

ply to give prison officials notice of the compl aint by

coopera ting with other inv estiga

tions, as
was sufficie

nt in such pre-PL

RA “substa

nti a l compliance”

cases as W

olff v. Moore , 199 F.3d 324, 329 (6th Cir. 1999). Inour post-PLRA cases we have emphasized t hat “t he exhaustion require

ment in § 19 97e(a)is d irected at ex hausting the prisoner’s adm inistrative r emedies,” and that Use of Force

o roth er inves tigation s do not sat isfy the PLRA’s dicta

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

his or her remedies, we thus look to the inmate’s g riev ance, not to other informat ion compile d in other investigations. Althoug h an inmate grievance might conceiv ably

specifically inc orporate or otherwise re fer to informationpreviously obtained, it must do so in a manner that points pr ison o fficial s to the re levant ma terials. That is not what happened here.No. 01-3227 Thomas v. W oolum, et al. 23

Fi na ll y, Thomas suggests that our requirement that prison grievances be filed

“against” potential defendants, Curry , 249 F.3d at 505, mistakes the prison grievance proce ss as a type of civilaction. G

rievanc es are n

ot filed “ against” individual persons, Thomas argues, but are rather filed re gardin

g cert ain problems ; accordingly , a grievance shoul d be u nderstoo d to exhaust remedies so long as it alerts prison official s to a problemto be inve st igat ed, whether or not it identifies sp ecific individuals. Sims v. Apfel , 530 U.S. 103 (2 000)
, supportsThomas’s position. In Sims
, a Social Security ca se, the Supreme

Court ruled that even

when a pa

rty is requir ed 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 desirab ility

of a court imposing a requirement of issue exhaustion depends on the degree to w hich the a nalogy to normal adversa

rial liti gation applies in a particular administrative proceeding.” Id. at 109 (majority). Apply ing t he re asoning of Sims to the problem-solving mechanism of

aninmate grievance procedur e, a court might we ll conclude that the p roces s is “inquisitorial rather than adversarial,” id. at 111 (plurality), and thus that a c ourt should not impose an issue- exha ustion requirement on top of the PLRA’s g eneral exhaustion requirement. On that view, an inmate’s grieva nce informing prison officials that he had been be a ten by an officer would b e suff

icient to n

otify the prison of clai

ms arising out of that beating, including, perhaps, a cla im that other officers had witnessed theevent but failed to intervene. However, we are b ound by our decision in Curry , which appare ntly found the Sims reaso ning ina pplicable in the prison context and which thus requi res prisoners to file grievances “aga inst” spe cific defenda

nts. See Hinc

hman v. M

oore , 312 F.3d 19 8, 2 03 (6th Cir. 2002) (noting that one panel cannot overrul e a prior panel’s published decision). Thomas is thus subject to Curry ’s standards; as his grievance contained no informationreleva

nt to his cla

ims aga inst Keple

r, St archer
, and Waddell, we conclude that he has not exhaus ted his claims wit

h respec t to those d

efenda nts. 24 Thomas v. W oolum, et al. No. 01-3227

IV. CONCL USION

Had Thomas’s grievance pointed prison officials to the alleged presence of other officers when Officer Woolum was beatinghim, it would

have given the officials a sufficie nt opportuni ty to investigate the oth er officers’ actions. The prisonmay have de clined that opportun ity, as it prefe rs to

a ddressonly those gr

ievances filed within a particul ar tim e limit. But the prisonwo ul d h av e b ee n g iv en th e o pp or tu ni ty, whichis all that § 1 997e( a) requires, so we hold that the timelines s of an inmate’s gri e vance is irrelevant under the P LRA ’s exhaustion requirement. Because Thomas’s grievancedid not contain the necessary infor mation, howev er, it did not give prison officials the requisite opportunity. We thus conclude

that Thoma s failed t o exhaust hi s administrative remedies with re spect to Officers Kepler, Starche r, and Wad

dell, and we AFFIRM

the district court’s judgmen t.No. 01-3227 Thomas v. W oolum, et al. 25

_________________ CONCURRENCE

_________________ RON ALD LEE G

IL MAN, Ci rcuit Judge, concurring. I f ully concur i n Judge Mo ore’s op inion. My purpose i

n writing separa

tely is to ackno wledge the difficulty of the issue before us and to explain why I believe that Judge Rosen’s opinion is less per

suasive i n interpr eti ng wha t it means t

o exhaust “availa ble admi nist rative remedies” under the PL RA.

To b e gin with, I must confess that I find the question of whe ther a prisoner must comply with the prison’s administrative deadline s as a pre condition to filing a § 1983 actionin feder

al court to be extre

mely difficult. I have indeed flip-flop pedon this issue during the course of extensive deliberations with my

two erud ite colleag

ues, no doubt to the frustration

of them both. The assertiveness of Judge Rosen’s opinion is more than sufficient to giv e anyone

pause, especially his ac cusations that we have issued an“invitation to chaos and delay

” (DissentingOp. at 30), “aband on[ed] all notion s of j udicial restraint” ( id. at 31), pr ovided “a classic example of judicial meddling” ( i d. at 31), and engag ed in “thinly-veiled

poli cymaking” ( id. at 32). In the end, howeve r, Ifind that these sweeping gener alizations generate moreheat thanlight, and

that his po sition is actually the more “activist” inan expansi

ve inter pretation of the PL

RA beyond Congre ss’s lang

uage a nd the Supr

eme Court ’s prec edents.

The heart of the problem is that the failureto apply the concept of pro c edural default to a prison’s administrative deadlines will, in cases such as the one before us, obligate the feder al courts to deal with the § 1983 issues without the benefit of the sta

te’s admi ni strative consideration on the merits. This makes the issue difficult for me because, were I

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

isoners to comply

with rea sonable

administrative deadlines. On the other hand, as pointed out b y Judg e Moore, this leg itimate 26 Thomas v. W oolum, et al. No. 01-3227

concer n “is coun

terbala nced by the equa lly real concern that inthe pres ence of

procedu ral def ault stand

ards, pr is o n administrators wi ll impose shorter and shorter deadlines measured in hours a

nd days, because

prisoners will then have

no recourse to the federal courts if they miss even one deadline.” (Maj. Op. at 19 n.4) Thes e competing policy consider ations, however, are better reser ved for Cong ress to resolve than for us to adjudicate.

Indeciding this issue, t he t wo factors that ult

imately persua de me are that (1) Con gress c ould have , but did not
, speci fy t hat a prisoner’s failure to comply with the prison’s

reason able time limitations would result in a procedural default ( see Maj. Op. at 16-17), and (2) S upreme Court prec ede nts continue to distinguish between the concepts of exhaustion of remedies and procedu ral def ault. Congre ss, if it desires a different outcome, is clearly a ble to make an appropr iate amendme

nt to the PLRA. Judge Rosen or I might have drafted the current

stat ute differently , but we are not legislat ors. As a judge on the court of appeals, I do not fee l that Ishould attemptto alter t he PLR A as it pre sently

stands.
Judge Rosen obvi ously

subscrib es to a dif

ferent analy sis. Inhis opinion, the concep t of proc edural d efault is built into the concep t of exhaus tion of re medies. B ut t

he Supreme Courtcases that he relies on— Boerckel
, Carpenter , and Coleman —do not, in m

y op inion, supp ort his analy sis.
Judge Rosen, for example, quotes the Supreme Court’s statement in O’Sullivan v. Boerckel , 526 U.S. 838 (1999), that “we ask not onl

y w heth er a pri s oner has

exhausted

his state remedie s, but also whethe r he has properly exhausted

those remedies.” Id. at 848 (emphasis in original). I f procedural default were a necessary component of exhaustion in the habeas corpus c onte xt (rathe r than an

independ

ent, complementary

doctrine ), this sen

tence w ould make

no se nse

. The Supreme Court would instead have si mply state d: “We ask whether a p risoner has exhausted his state remedies.” Whatthe Supreme Court actually sa id, however, is that “weNo. 01-3227 Thomas v. W oolum, et al. 27

ask not only

whether a prisone

r has exha

usted his s tate remedie s, but also whether he has properly exhausted those remedies.” Id. (first two emphases added; third emphasis in

or iginal). Basic English grammar, not “adroi t deconstruction” (Dissenting Op. at 47), theref ore comp els the conclusionthat, under the Supreme Court’s prece d ents, exhaustion

and proc edural d

efault are two d

istinct concepts. Car penter and Coleman make the same differentiation. Carpenter
, 529 U.S. 446, 45 3 (2000 ); Coleman , 501 U.S. 722, 732 (1991).

In the final analysis, my

policymaker he art yea

rns for th e result proposed by Judge Rosen, but my

judicial head

tells me that Judge Moore has r

eached the corr ect result . Our legal system require s us to hee d the words of Congress as interpreted

by applicable Supre

me Court pr e cedent. Until Congre ss changes the law or the Supreme Court cor rects our interpretation

of its l anguage , I am unwilling to read the concept of procedural default into the PL RA. 28 Thomas v. W oolum, et al. No. 01-3227

______________________________________________ CONCURRING IN PART, DISSENTING IN P ART

______________________________________________ ROSEN, District J

udge , dissenting in part and concurring in the judg

ment.

Withone bold stroke, the lead opin ion stands much of th

is Circuit’s existing precedent on administrative exhaustion on its head, holding that administratively established filing deadlines mean no thin g i n a prisoner’s ef fort to exha

ust his remedies before commencing a § 1983 suit. By per m itting inma tes to thumb their noses at such time limits, the lea d opinion thoroug hl y disables prison grievance sy stems as meaningful tools for d ispute resolution — a result deemed

unacce ptable by every othe

r Circuit that has addressed the timeline ss issue to date. M ore impor tantly , this resu

lt is wholly at odds with Congress’ s intent in enactingthe Prison Litigation Refor m Act ( “PLRA”) and am endin g 4 2 U.S. C. § 1997e(a) to establish a strict, mandatory exhaustion require ment for p

risoner § 1983 suits

. Still worse, however, is that this departure from prec edent and congr essional intent isutterly unnece ssary to our ultimate judgment in this case. The District Court plai nly must be affirmed here, on the obvious ground that Plaintiff/Appellant Douglas Thomas failed

to exhaust h

is remedie s again st those Defendants/Appellees who were not even ment ione d in his prisongrie vance. The lead opinion ultimately reaches preci sely thi s conclus ion, and I

fully concur on this point. But first, the lead opin

ion goe s out of it s w ay t o rewrite the lawon a diff

erent is sue, n otwithstanding its lack of bearing uponthe outcome of this case. Rather, the mischief is wholly prospective —

and, I might note, cra

fted in such a way

as to seemingly insulate

it from further review.

The issue upon

which I part com pany with my coll eague s is eas ily stated — whether a n inmate presumptiv ely

mu s tNo. 01-3227 Thomas v. W oolum, et al. 29

compl y with the procedural aspects of a prison’s g rievanc e sys tem, including its time limits, in order to satisfy the mandatory

exhaustion requirement of § 1997e(a). This issue already has been set

tled in th is Circuit. We have held, for example, that an inmate does not e xhaust his administrative remedies unless an

d until he p

ursues a ll a venues of appeal that are ava ilable wi th in t he prison grievance sy stem. See
, e.g. , Freemanv. Franc is , 196 F.3d 641, 645 (6th Cir. 1999); White v. McGin nis , 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 proceduraldefault, see O’Sullivan v. Boerckel , 526 U.S. 838, 848, 119 S. Ct. 1728, 1734 (1999), l egally indisting uishable fr om the sort o f proce dural de fault at i ssue in this case

— na me ly, a p risoner’s failure to meet an administrative filing deadline.
Yet, the lead

opinion expl ains t

hat th is case is

differe nt, bec ause it involves a late filing at the threshold of the administrative process, rather than a fa ilure toproceed to the next level of this proc ess. And, indeed, t his is a distinction —

aninmate who fails to pursue an administrative appeal has exhausted at least some

availab le remedies, while a prisoner whosegrievance is properly rejected as untimely

(as happened here) has exhausted none. Neverthele ss, in the Alice-in-Wonderland

world conjured up in the lead opinion, the latter c ourse now

is favore d over the

former i n this Circuit.

Or is it? In c ases w

hich formerly wer

e controlled by our proceduraldefault decisions, the lea d opinion now provides

anopen-en

ded oppor

tunity for inmat

es to cur e any so rt of proceduraldefect

th at a cou rt might i dentify . After a ll, 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 tod ay, inmates ar

e no longer bound by administrative deadlines of an y so rt . C on se qu en tl y, if a prisone r’s cas e is dismissed for failure to proceed throu gh all steps of the ad

ministr ative process, the inmate now can 30 Thomas v. W oolum, et al. No. 01-3227

respond by completing the

process, even though the relevant deadlines might lon

g since have pa ss ed. In short, much of

our existing preceden

t o n prisoner exhaustion has been rendered meaningless, and

the cour ts in this Circuit have been relegated to the role

of provid ing leg al advic e to prisoners on the prope r filing of grie vances. Indeed, thi s invitation to chaos and delay must, of

nece ss it y, be a two-way

street. If prisoners no long er are bound by d eadline s, the same surely

must be tr

ue for prison administr ators. Although pri so n regulations often call for d ecis ions to be reached within a specified time frame, admini stra tors presu mably may now with hold their rulin gs in de fi ni te ly, and then argue that any § 1983 suit i s premature until a decisi on eventu

ally is f orthcoming. In the eve

nt that

a court might conclude differently
, priso n administrators could simply rewrite their re gulations to remo ve any time limits upon their

de cisionmak

ing proc ess. We co

uld hardl y complain, given the lack of significance that the lead opinion places upon administrative deadlines, and given the nefarious motives it ascribes to prison adm inistrators who se ek to enforc e such de adlines.

Here lies the r

oot of my disagreement with the lead opinion

— it see min gly view s time limits as mere traps for the

un wa ry, an d u tt er ly f

ails to acknowledge that procedura l deadlines serve the legit imate inte

rests o f both sides to a dispute. This undoubtedly is why such limits are a standard feature of virtua

lly e very dispute resolution process of which Iam aware. As a quid pro quo for their strict an d unifor m adherenceto these d

eadlin es, p arties a

re assur ed that th eir dispute will be promptly resolved, and that justice will not be effectively

denied through interminable de la y. This inter est is particularly c ompelling here, where the core purpose of § 1997e(a)’s exhaustion

require ment is to ensure that prisoner grievances are resolved

administr atively to the gr eatest extent possible. See Porter v. Nussle , 534 U.S. 516, 525, 122 S. C t. 983, 988 (2002). Wh

ile I do not question the sincerity of the lead opinion’s view that this purp ose is served byNo. 01-3227 Thomas v. W oolum, 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 r esolution sys tem.

As a result, to day ’s decis ion is a classic example of judicial meddl ing, wi th this panel substituting its own policy judgment in place of

the far diff

erent one made by

Congre ss in e nacting

§ 1997e( a) in its pr

esent form. The st

atu t e requir es th at 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, Doug las Thomas, exhausted

theseremedie s only

in the most technical

sense— once his grievance was re jected as having been

filed nearly five month s past

th e relevant deadline, he had exhaust edall of the re

medies tha

t were then “ava

ilable” t o him. Yet, we have sensibly recog nized — and all other Circuitsthat have considered the matter have ag reed — that “it would be c ontrary

to Congr

ess’s inte nt” to per

mit a prisoner to proce durally

default his grie vance a nd then cl aim that administrative remedies no long er a re “available.” Wright
, 111 F.3d a

t 4 1 7 n.3; see also Pozo v. M cCaughtry
, 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 defa ult and a failure

to exhaust his remed ies.

To what end does the lead opinion abandon all notions of jud icial restrai

nt and ove

rturn this settled un

derstan din g o f admi ni strative exhaustion? Presumably, the lead opinion

means to ensure

that futur

e prisone r § 1983 su

its do not fa

ll victim to the cunni ng device of administrative filing deadline s. Never mind

that there is no record before us of any large-scale, or eve

noccasional, difficulty

in complying

with suchdeadlines — fully seve nyears after Congress amended § 1997e(a) in 1996, we publish a decision on this issue for the 32 Thomas v. W oolum, et al. No. 01-3227

1 I doubt that

Congres s (or

pris on off

ici als ) wi ll be much consol ed by the lea d opini on’s ass uranc e that it has e xercise d “[j]u dicial re straint.” (Lead Op. at 19- 20 n.4. ) To say it does not

make i t s o. first ti me to da y. Never mind that there is nothing inheren tly

unreasonableor suspic ious about the 30-da

y f iling limit imposed by Ohio priso n officia

ls in this case. Never mind that pri soner Thomas has not identified any obstacles he confronted

in meeting

th is dea dline. Never mind that, even if he had, we could readily

address this concern through casespecific equitabl e tolling

of the fil in g perio d, as oppo sed to the lead opin

ion’s carte blanchefo r any and all in

mates to ignore any and all a dministra tive time li

mits.

Inmy vi ew, it

is precisely this sort of thinly -veiled policymaking

that leads Congres s to e ver more curtail our ju dicial discreti on. I

ndeed, Congress

did just tha

t i n amending§ 1997 e(a) th rough t he PLRA, enacti ng a mandatory

provision which eliminat ed the courts’ prior “discretion

to dispense with administrative exhaustion” and imposed “an obvio

usl y broader exhaustion requirement.” Booth v. Churner
, 5 32 U.S. 731, 739, 741, 121 S. Ct. 1819, 1 824, 1825 (2001). Upon reviewing this legislation, th e Supreme Court concluded that Congr ess “may we ll have thought we were

shortsig hted” in prior dec isio ns which tended to downp lay

the value of administrative exhaustion. Booth
, 532 U.S. a

t 737, 121 S. Ct. at 1823 . If s o, Congr ess surely will be chagrined by

today’s result, whic h opens the courts to even more claims that have never been addressed on the merits in a

prison’s administr

ative g rievanc e sy stem. 1 Ac co rd in gl y, I diss ent from t h e Court ’s ruling on the timelines s is su e, an d c on cu r o nl y i n its judgment affirming the Distr ict Court.No. 01-3227 Thomas v. W oolum, et al. 33

I.

Ibegin with what

seems to me an obvious point — that the decision upon which the lead opinion principally r elies, the decade s-old Oscar Mayer & Co. v. Evans , 44 1 U .S. 750, 99 S. Ct. 2066 (1979), is not the first place one would look for guidance in constr

uing the exhaustion

requir e ment of § 1997e(a). Among my

riad other grounds for distin

ction, to whichI will return later
, Os car Mayer deals with a requirement

of comme

ncement r ather than exhaustion, and ad dr esses a detailed statutory sc heme with a number of unique features — e.g., concu rren t state and federal administrative jurisdict

ion, an expr

ess fed eral statute of limitations
, and an explicit definition o f wha t constitutes “commen cement” of st ate proceedings — that have no counterpart in the statute at issue here. Thus, I f ind it more useful to start with the language of § 1997e(a ) itself, our own direct pronouncements on the meaning of this provision, and the vi ews of other Circuits on this subject. In the event that this survey does not settle the issue, I fin d it instructive to review the Supreme Court’s treatment of a simil ar statutory exhaustion require

ment impose d upon stat e p risoner s —
na me ly, th e requirement that they “exhaust[] the remedies availab le in the cou

rts of the

State,” 2 8 U.S.C. § 2254(b)( 1)(A), b efore s eeking habeas c orpus re lief in federalcourt. All of these sources, in my vi ew, po int unmistaka

bly toward the concl usion that exhaustion under § 1997e(a) entails compliance with a prison’s administrative procedu res, inc luding f

iling de adlines.
Any analy sis of § 199 7e(a) necessa

rily must begin with the languag e of the statute itself. As noted, prior to its 1996 amendment

through the PLRA, the statute’s call for exhaustion was largely discre tio nary — cour ts were authorized

to stay an inmate ’s § 1983 su

it for up to

18 0 d ays while the prisoner exhausted such ava ilable administrative remedies as we re “p la in , s pe ed y, and eff ective, ” but only

if the court deemed this “appropriate and in the interests of justice.” 42 U.S.C . § 1997e(a)(1) (1994 ed.). The cur rent 34 Thomas v. W oolum, et al. No. 01-3227

provision, in contrast, entirely e liminates this judicial discretion, and in stead mandates strict exhaustion in every

case:

No action shall b e brought with respect to prison conditions under section 198 3 o f this title, or any other Federallaw, by

a prisone r confined in

any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.

42 U.S .C. § 1997e( a). Thro ugh this e

nactmen t, Congr ess “invigorated

the exhaustion prescription ,” there by s eeking

“to reduce the quant

ity and improve the quality of prisoner suits.” Porter
, 534 U.S. at 524, 12 2 S. Ct. at 988. While the prePLRA version of § 1997e invited judges to assess the efficacy of a prison’ s dispute

resolution proces ses, the curr ent statut e decided ly does no t “prescribe[] appropriate grievanc e proce dures or e nable[] judges, by cre ative interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems.” Wrigh t v. Hollin gsworth , 260 F.3d

357, 358 ( 5th Cir. 2001).

Giventhe clea

r command of § 1997 e(a) in its prese nt form, the lead opinion properly obse rves that “the question is what exhaustion requires.” (Lead Op. at 15.) Whateve r the precise contours of

this requ irement, it plainly

is proce dural in

nature:

While the modifier “available” requires the possibility

of

some relief for the action complained of

. . . , the word “exhau s ted” has a de cid edl y pro ced ura l em pha si s. It makes sense onl

y in refer ring to t h e p rocedur

al means
, notthe part

icular r elief or dered. I t w o uld, for example, be ver y strang e usag e to say

that a pr

isoner mu st “exhaust” an administrative order reassigning an a busive guard before a prisone

r could g o to court

and ask f or something else; or to say (in States that awardmoney damages administratively) that a pri soner mus t “exhaust ” his damages award

before going to court for more. How would he “exhaust” a transfer

of per sonnel? Would heNo. 01-3227 Thomas v. W oolum, et al. 35

have to spend

the money to “exhaust” the monetar y relief give n him ? It makes no sense to demand that someone

e xhaust “such administrative [redress]” as is availab le ;
one “exhausts ” proce sses, not f orms of re lie f, and the statute pr ovides tha

t one must.

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

This Circuit’s

preced ents reflect

a similar understanding of the nature of § 1997e exhaustion. As noted at the outset, we have held on several occasions that a pr isoner m ust fully pursue all administrative processes to completion, including all availab le avenu

es of inte rnal ap peal, in order to satisfy § 1997e(a) and commence a § 1983 suit. See
, e.g. , Hartsfield

v. Vidor , 199 F.3d

305, 309 ( 6th Cir. 199 9); Fre eman , 196 F.3dat 645; White , 131 F.3d at 595. In so ruling, we h av e consiste ntly taken note o f the f

ilin g d e adlines that govern theseadministrative processes, and have cautioned inmatesto pay heed to these time l imits.

In Hartsfield

, for example, the plaintiff prisoner, Napoleon Hartsfield, complained that he had been unla

wfully placed i n top-o f -bed restraints for eighteen hours. Hartsfie ld contended that he had submitted an administrative grievance a da y after the incident , but h e prod uced n o evid ence of this fili ng. Instead, the record

disclose d that Har

tsfield ha d written to the grievancecoordinator about two week s later, stating that he had not been provi ded with

a rece ipt for or

response to his grievance. The grievance coordinator responded

the n ext day that no grievance had been receiv ed, and that Harts field would have to refile. He chose ins tead to br ing a § 1 983 suit, and to pursue an administrative appealonly after a Magistr ate Judge had instructed the parties to brief t he issue of exhaustion. A pri so n officia l refuse d to allow t

his appea l, absent proof that Hartsfield ha d ever filed an initial administrative grievance.

Under this r ecord, Hartsfield argued tha t his attempts at admi nistrative ex ha us ti on sh ou ld be de em ed to sa ti sf y th e 36 Thomas v. W oolum, et al. No. 01-3227

standards of § 1997e(a) or, alter n atively, that any

further efforts at exhaustion should be excused as futile. This Court disagreed:

Even if plainti ff did fil e an initia l g rievance . . . , he

was required

to continue to the next step in the grievance proc e ss within the time f rame set for

th in the reg ul ationsif no response is received from prison offi cial s or if the prisoner is not satisfied with the response. We have pr

eviously held that an inmate cannot simply fail to file a grievance or a bandon th e proce ss before completion and cla im that he has exhaust

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

is now time-bar

red under th e regul

ati ons

. 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 g riev ance or pr ovide d [a] r

ece ipt[] . . . so he could have proc eede d with

an [ad minis trat ive] a ppea l. We find, therefore, that plaintiff did n ot exhaust his administrative remedies . . . .
Hartsfield

, 199 F. 3d at 309 ( emphasis added); see also Freeman
, 196 F. 3d at 6 45 (rec ogn izin g that the plaintiff prisoner “made some attempts to go t hrou gh the prison’s gri evance procedures,” but ordering dismissal beca use th e plaintiff “filed his federal co mpla int before allowing the administrative process to be completed”).

As noted in Hart

sfield , we first endorsed this rule of complete exhaustion in Wright , 111 F.3d at 417 n.3. One of the plaintiff prisoners in Wrig ht had filed an administrative grievance, but had

no t appealed the denial of this grievance throu gh the entire administrative p roces s. The inma te contended

that he had exhausted all “available” remedies

w ithin the meaning of § 1997e(a), beca use the deadline for any further appeals had long

since expi

red. We f

ound it

un nece ssary

to address this argument, in light of ourNo. 01-3227 Thomas v. W oolum, et al. 37

conclusionthat 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 violat

io ns occ urred after the PLRA’ s enactme nt, and inmates have both notice that exhaustion is require d and a re asonable opportuni

ty to file complain ts, it would be contrary t

o Congress’

s intent in enacting the PLRA to allow inmates to by p ass the exhaustion r equirement by declining t o fil e ad ministrative complaints and then claimi ng that administrative re medies are time-barred and thus not then availa

ble

. Wright
, 111 F.3d at 417 n.3 (e mphasis a

dded); see also Hrynczyn v. Mitch ell
, No. 0 0-43 20, 20 01 WL 1299027, at *1 (6th Cir. Aug. 9, 2001) (rejecting a prisoner’s ar gument that

no a dministrative remedies were available beca use an y grievance he filed would be dismissed as untimely ).
Indeed, this Court has insisted that inmates be resourceful inthe ir e fforts to

comply with prison griev ance pr ocedure s. In Jones v. Smith , 266 F.3d 399, 400 ( 6th Ci r. 2001), for instance, the plaintiff prisoner claimed that he had

asked for

a grievan ce f

orm, but was told by a prison counselor to “get out of hisoffice.” We affirmed the dismissal of the case for failure to exhaust administrative remedies, reasoning that the plaintiff di d “not allege that there was no other sourc e for obtaining a grievance form or that he made any othe

r attempt to obtain a f

orm or to f

ile a grievance

without a form.” Jones
, 266 F.3d at

400. More generally, we have placed the burden uponprisoners to “allege and show that they have

exhausted all available state administrative remedies ,” a nd have instructed that “[d]istrict courts sho uld e nforce the exhaustion

r equirement sua sponte

if not rai sed by

the defe ndant. ” Brown
, supra , 139 F.3d at 1104.

Under these precedents, then , once a prison’s filing deadline has passed, an i nmate cannot si mply dispense with 38 Thomas v. W oolum, et al. No. 01-3227

the filing of an adm inistrative grievance on the gr ound that prisonofficia

ls surely would reject it. In the prese ntcase, for

exam ple, if prisoner Thomas had altogether failed to file a g rievanc e, rather than submitting it nearly five months after the prison’s 30-day

deadl ine, we would have been bou nd to conclud e tha t this course of action did not comply with the dictates of § 1997e(a). This leads to the question whether an untimely filing sh ould be accorded different trea tmentunder § 1997e( a) than n

o filing at all.
As a matter of brute fact, Thomas’suntimely filing in this

caseproduce d absolute ly no benefi t o ve r an outright failure to file. His grievance was reje cted as submitted outside the prison’s 30-day limit, and there was no administrative review of his complaints on the merits. As a resu lt, none of the aims of § 1997e(a) has been achieved here — Thomas’s g rievance did not spur corrective action that might hav e obv iated 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. Nonethe less, th e l ead opinion holds that “Thomas gave the stateoffice

rs an opportunity

” to addr ess his g rie va nce, “which is all that is required” to satisfy the statutory

exha ustion requirement. (Lea

d Op. at 20.)

This “opportu

nity -based”

th eory of exhaustion, however, improper ly shifts the burden from inmates to prison officia ls, requiringthat

the la tter seize upon any cha

nce to address any complaint that a prisoner might ra ise at any tim e and t hrough any means. As such, th e lead opinion’s reasoning runs counter to our precedents, which

have consistently construe d § 1997e(a ) as dema nding tha t inmates must

invoke an

d fully

e xhaust a prison’s administrative grievance proc esses. In Freeman
, f

o r example, the plaintiff prisoner alleged that he

was assaulted

by a corrections officer, and he a rgued that “an investig atio n by t he prison Use of Force Committee and the Ohio State Highway

Patrol into the alleged assault satisfies § 1997e(a) because the statute does not specify thatNo. 01-3227 Thomas v. W oolum, et al. 39

exhaustion must be thr ough the

prison’s

g rie vance procedure.” 196 F.3 d at 644. This Court disagreed, noting that use-of- force i

nvestig ations can be initiated for a va riety of reasons , and stressing “the importance of using the prison grievanceprocess in order to a lert pris on offic ials 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 inthe corrections sy stem, and investigation by another agency does no t s at is fy t he r equirement of the statute.” 196 F.3d at 644. We rece nt ly a ffirmed this rule, stating that “an investigation

by a prison Use of

Force Committee wi ll not substitute for ex haust ion t hrough the prison’s administrative grievanceprocedure.” Curry v. S cott , 249 F.3d

493, 504 ( 6th Cir. 2001).

The present ca s e perfectly illustrates the important distinction between internal use-of-force investigations and prisoner g rievances. The Ohio prison officials themselves init iated an inv estiga tion of Tho mas’s beati ng, and a use-offorce committee concluded that Defendant Shawn W oolum had acted c ontrary

to prison regulations in his assault on Thomas. Followin

g this investigation, the prison authorities addressed the problem as they pe

rceived it by discha

rging Woolum. If

Thomas desired a broader inquiry or additional relief, whether

from Woolu

m or oth ers, it be

hooved hi

m to file an admini strative

grieva nce brin ging these matters to the attentionof prison

officia ls . Yet , under the lead opinion’s broadeststatement of its holding, Thomas need not have filed

a grievanc e at all, so long as prison officials had the “o pp or tu ni ty” to d iscern what his complaints might be and addres s them. Such a ru

le is simply

irreconcilable

with this Court’s prior

decisions, which require a good deal more from the inmate

himself be fore he

may commenc e a § 1983 suit.
Perhaps, however, the lead opinion means to endorse a

more limited rule, under which a pri son official’s “o pp or tu ni ty” to ad d ress an inmate’s complaint must be triggered by the inmate’s filingof a grievance, whethe r or not 40 Thomas v. W oolum, 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 — thou gh a t im el yfiled grievance plainly

provides an

“op portunity” (and, indeed, a duty

) to addr ess a pri soner’s

complain

ts, we still insist that the inmate pursue the matter through all avail able level s of the ad

ministrati ve proce ss. More s

pecific ally , th e lead opini on’s disregard for administrative time limits goes againstthe con si dered vi ews of tw o panels i n this Circ

uit, albeit in unpublished dec isions, and places us alone among the several Courts of Appea ls that have addre ssed this precise issue.

This Court first considered this question in Qawi v. Stegal l
, No. 98-1402, 211 F.3d 1270, 2000 WL 571919 ( 6th Cir. May 3, 2000). In that case, the plai ntiff prisoner’s administrative grievanc e was rejected as untimely , but he argued that this delay shoul d be excused a s a resul t of his good faith ef forts to r esolve the matter

informal ly. We held that the plain

tiff had f ailed to exhaust his a

dminist ra tive remedie s, observing that his grievance wa s untimely even under the prison rules governing informal dispute resolution. Si mi la rl y, in Jaco bs v. Wilkinson , No. 00-3 212, 2 001 WL 1298979 (6th Cir. A

ug. 8, 20 01), the p laintif f i nmate complained

of two inc idents — his grie vance a s to the first had been dismissed as untimely, and he had submitted only an informal complaint as to the second. We fou nd that the plaintiff had failed to exhaust his administrative remedies as to either of his two complaints, making no d ist inction between his untimely

grieva nce and his outrig ht failur e to file a grievance.

As noted, three of

our sister Circuits have reached the same conclusion. First, i n Marsh
, supra , the Fif th Circuit u

pheld the dismissal of a prisoner’s § 1983 suit for f ailure to exhaust administrative remedies unde r th e pre-PLRA version of § 1997e(a), where the inmate’s administrative grievancehad been dismissed a s untimely

filed more than

30 days afte

r the incident of which she complained. Altho ugh the version ofNo. 01-3227 Thomas v. W oolum, et al. 41

2 Although Ma rsh preda t es § 1 997 e(a) in its p resen t form, the Fifth Circu it recently conf

irmed the cont inu ed vi tal ity of this decis ion in Days

v. Johnson , 322 F.3 d 863 ( 5th Ci r. 2003 ). The plaintif f inmate i n Days alle ged that a bro ken ha nd ha d pr even ted him from tim ely filing his administrati ve griev ance, but that he had fi led a gri evance as soon as this injury had h ealed . The Co urt foun d that the se allega tions, if p roven , wou ld suffi ce to show that the prisoner had “exhau sted the administr ative remedies that were perso nally avai labl e to him.” 322 F.3d at 867. T he Fifth Circui t then emphasized the narrow reach of t his ruling:

W e, of course, do not hold that an un timely grievance in and of it self would render

the syst em unavailable, thus excusing the exhau sti on requir ement. Such a hold ing wo uld allow inm ates to file suit in fe deral court despite int entionally evading the § 199 7e(a) t

hen in ef fect au thorized the courts

to gran t a contin uance so that the

plaintiff prisoner could exha

ust a n y availab le administrative remedies, the Cou rt reasoned that a continuanc e was not warranted under the circumstanc es of that case:

Becau se the prison had already rejected [the pl aintiff’ s] administrative grievanceas un ti me ly, her administrative remedies were foreclosed, and a continuanc e would have served no purpose. W hen a section 1997e continuance would serve no purpose, a district cou rt still has the power to dismiss a

prisoner ’s s ui t under section 1997e for failure to exhaust a

dmini strative remedies . . . . Without the p rospect of a dismissal with prejudice, a prisoner c ould evade the exhaustion requirement by fil ing n o administr

ative g rievanc e or by

intentiona

lly filing an un timely one, thereby f oreclosing administrative remedies and gaining access to a f ederal forum without exhausting administrative remedies. Thus, we hold that

a district court has the powe r to di smiss a prisoner’s section1983 suit under section 1997e even when administrative relief i s time-ba rred or otherwis e precluded.

Marsh , 53 F.3d at 710 (citations and footnote omitted). 2 42 Thomas v. W oolum, et al. No. 01-3227

PL RA ’s exh aus ti on r equi reme nt by f ail in g t o comp l y with t he pris on grieva nce syste m. See Harper v. J enkin, 179 F.3d 1311, 1312 (11th Cir. 199 9); see also Ma rsh v. Jon es, 53 F.3d 707, 710 (5th Cir . 199 5) ( prev iou s ve rsi on of § 1997e ). We emp hasiz e that our holding is l imited to the nar row facts of t

his case. More spec ifically, adminis trat ive re medies are d eeme d una vailab le when (1) an i nmate’ s unt imely fil ing of a grie v ance is b ecause of a physical i nju ry an d (2) the grievance sys tem rejects the inmate ’s subs equent

att empt t o exhau st his remedi es bas ed on the untimely

fil ing of the gr ievance.

Days , 322 F.3d at 867-68 (footnote omitted). The Eleventh Circuit also has he ld that an untimely grievancegenerally

does not satisfy § 1997e(a )’s exhaustion require ment. In Harp er , supra , the plaintiff inmate’s grieva n ce was deni ed as unti

mely , and the i

nmate fa iled to invoke a prison procedure that authorized waiver of the filing deadline for “g ood caus e” shown . Under t h ese circumst

a nces, the Courtheld that

the plaintiff “cannot be considered to have exhausted his administrative remedies.” Harper , 179 F.3d at 1312. The Court reasoned that a contrar y c onclusion

would permit inmates to “ ignore

the PL RA’s exhau stion req

uirement and still gain access to federal court mere ly by filing an untimely grieva

nce.” 179 F.3d at 1312.

Most recently, the

Seventh Circuit has joi n ed in this

consensu s, construing § 1997e(a) as requiring that a prisoner “com plete [] the administrative process by f ollowing the rules the state ha s establishedfor that process,” including filing deadlin es. Pozo
, supra , 286 F.3d at 1023. In Pozo , the plaintiff prisoner timel y f

il ed his initial grievance, but then waited a yea r before pursuing an administrative appea l. He argued that Wisconsin prison officials had the d iscretion to waive the st ate’s usual 10-da y filing d ead line, and that this power to hear an untimely a

ppeal satisfied the purposes of the exhaustion require

ment bec ause it afforde d the opportunity to address his complaints. The Court disagreed:No. 01-3227 Thomas v. W oolum, et al. 43

3 Still another

Circui t, l ike t

his one, has addr esse d the is sue of untime ly fil ing only i n an unpublished decision. In Col l ins v. Fede ral Bureau of Pri

sons , No. 02- 1503, 2003 WL 21380545 (10thCir. June 16, 2003), the T enth C ir c uit held t hat an inmate’s “failure to meet the app rop riate filing dea dli n es for adm inistrative remedies con stitutes a failure to e xhau st those r eme dies.” [T]his position w ould

leave § 1997e(a) without any oomph. Wisconsin c annot be u nusual in allowing prison officia ls some authority

to enterta in untimely

complain ts and appeals. I f the existence of this power means that prisoners need not f

ile timely complain

ts and app eals, thenthe ince

ntive tha t § 1997e(a) provides for prisoners to us e t he state process will disappear. Prisons are unlikely to enter tain many appeals filed a yea

r late, or by pri soner s who otherwise thumb their noses at the specifie d proced

ures.

Pozo
, 28 6 F .3 d a t 1 02 5. Mo re ge ne ra ll y, the Seven thCircuit reasoned that judicial disregard for prison grie vance procedures

would al l ow a prisoner to “exhaust” state remedies by spurning them, whic

h would de feat t

he statutory objective of requiring the prisoner to give the pr ison administration anopportunity to fix the problem — or to reduce the damages and perhaps to shed lig ht on factual d isputes that may arise in litiga tion 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 c ourt that has considered the matter has concluded that an un

timely gr ieva nce which is rejected as such by prison officials does notsatisfy the exhaustion requirement of § 1997e (a). Indeed, the le ad op in io n i s u na bl e t o i de nt if y any case in any area of the law in which a court has found that an a d ministrative exhaustion require

ment was s ati sf

ied through an unexcused 44 Thomas v. W oolum, et al. No. 01-3227

filing outside of

the gov erning

administr

ative time

limit. Inste ad, the lead opinion’s reasoning rests principally up o n the inapposite Oscar Mayer decision, with an

add itional appeal to the Supreme Court’s rulings on exhaustion in the context of state prisoner habeas petitions. I tur n first to t hese latter decisions, as they we igh decidedl y aga inst the conclusion reached in the lead opinion here.

II.

Whether a state prisoner

wishes to b

ring a § 1983 suit

or a habeas petition under 28 U.S.C. § 2254(a) challenging the lawfulne ss of

his confinement, he first must exha ust th e relevant set of re medies. T

he two exha

ustion re quireme

nts

are similarly worded: § 1997e(a ) provi de s that an in

mate must exhaust “such administrative remedies as are available,” while habeas relief cannot be gr ant ed unless an inmate “has exhausted the reme dies ava

ilable in t he court s of th e Stat e,” 28 U.S.C. § 2254(b)(1)(A). Accordingly , the Supreme Court preced ents as to the latter

statute a re likely to be instr

uctive in interpretingthe f

o rmer. The lead opinion agrees, c iting

se vera l of these

decision s in suppor

t of the re sult it rea

ches. Ifind t his ut terly rema rkable, since the Supreme Court expressly held in one of these cases that a prisoner’suntimely filing instate co

urt barr ed him from seeking

habeas r elief in federa l court.
Sp ec if ic al ly, in Coleman v. Thompson , 501 U.S. 722, 111 S. Ct. 2546 (1991), the Court considered the effect of

a death

rowprisoner filing his state court not ice of appeal a mere threedays after t

he 3 0-day dea

dline imposed by the governing Virginia court rule. I

n lig ht of this un

timely submission, the Vi rgi nia Supreme Court dismissed the prisoner’s appeal without reaching th e merits. The U.S. Supreme Courtrec ognized that the prisoner’s delay ed filing

— a defec t legal ly ta ntamount to

an outright “failure to appeal at all” — was “no doubt” a result of “inadvertent error.” Coleman
, 501 U.S. a

t 749, 750, 111 S. Ct. at 2 564, 2 565. Nonethe less, the Court held t ha t federal habeas review wa sNo. 01-3227 Thomas v. W oolum, et al. 45

4 Coleman also undermines the l ead opinion’ s appe al to the presumpti on that Congre ss legislates with full awareness of the rel evant Supr eme Co urt pre ced ents. ( See Lead Op

. at 16. ) While I f ull y acc ept this propo si ti on, I wou ld s ugg est th at Congr ess mu ch more lik ely h ad Coleman than Oscar Mayer in mind when it enacte d § 1 997 e(a), a provi sion

which is quit e similar t o the statut e involved in Coleman , but which bears absolutely no resemblance to t he enactment at is sue in Oscar Mayer

. una vailable

as to the c laims adva nced in the inmate ’ s unt imely state court appeal. 501 U.S. at 757, 111 S. Ct. a t 2568.

The import of Coleman to the question presented here

see ms plai n enoug

h. In that cas e, a filin

g three day s past a statecourt de adline le d the Supre me Court to

hold t hat a d eath row prisoner had forfeited his opportunity to obtai n federal court review of the constitutionality of his continued detentionand sentence. The only relevant statutory prereq uisite to suchhab eas rel ief was t hat the pr isoner mu st have exhausted

the reme dies ava

ilablet o him in the state

co urts. It readily

follows, in my view, that a filing pa st an administrat ive deadline

presumpt

ively preclud es an inma

te fromestablish

ing the nearly

identica l statutor y pr erequis i te for commencement of a § 1983 suit. At a minimum, Coleman blunts the forc e of th e lea d opinion’ s content ion that a requirement

of t im ely

filing would impose

too high a

cost upon th e constitutional rights of prisoners — the stakes obviously were much higher in Coleman , implicat ing the prisoner’s asserted right to be free fr om conf i nement and an eventual death sentence. 4

Inaddition, while the lead opinion relies heavily upo n policy arguments gleaned fr

om the Supreme Court’s Oscar May er decis ion, it bar ely acknow ledges (and l arge l y misconstr ues) the much more pertinent policy consider ations set forth in Coleman . Havingpreviou sly held, for example, that a state prisoner’s federal habea s suit failed for lack of 46 Thomas v. W oolum, et al. No. 01-3227

5 Th e lead op inion casually dismisses Coleman ’s variou s polic y considerations with the ob serva tion that “w e have never cons idere d a state ward en’s decisio n on a g rievance to be the equal of a f ull st ate court judg men t.” (Lead O p. at 18.) U nless we are engag ed in some s ort of

zero-sum game, however, I see no reason to inquire whet her the two are entirely equivalent or one is “ better” than t he other. It

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

a vast array of

Supreme Co urt precedent holds tha t prison offici als are enti tledto a large mea su re of def erenc e in the day- to- day oper ati ons of their instituti ons.
In any e vent, the lead opinion arrives at the wrong answer by aski ng the wrong quest ion. Sect ion 1997e (a) i s si lent on the weight

to be gi ven to a warden ’s d ec isi on on the meri ts i n a parti cular case. W hat i t does demand, however, is tha t an inma te pr esen t hi s gr ievance f or the war den ’s timely filing under Fed. R. App. P. 4 (a), the Coleman Court observed that its ruling had the virtue of

elim inat[ ing] inconsiste

nc y between the respect federa l courts show for state procedural rules and the respect they show for their own. This Court has long understood the vital interest

se rv ed by federal

procedural rules, even when they serve

to bar feder al review of constitutional claims . . . . No le ss respe ct should b e given to state rules of procedure.

Coleman
, 501 U.S. at 751, 111 S. Ct. at 2565-66 (citations omit t ed). More generally, the Court explained that its strict insistence upon exhaustion in the hab eas context was “grounded in pr inciples of comity; in a fede ral system, the States should have the first opportunity to addre ss and correct alleged violations of [a] state pri soner ’s federal rights.” Coleman
, 501 U.S. at 731 , 111 S. Ct. a t 2555. All o f this readily carries over to the present context, in light of the Supreme Court’s admonition that “prison administrators

. . . , and not the co

urts , [are] to make th e diffic ult judgments concerning

instit utio nal operations.” Turner v. Safley , 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (internal quotations and citation omitted). 5No. 01-3227 Thomas v. W oolum, et al. 47

consi derat ion and se e the ad ministr ativ e p roces s t hroug h to c omplet ion before he ma y pro ceed to fede ral co urt. No one se riously q uestio ns the correctness of

the war den’s deci sion i n thi s case — no matter how much

or ho w little defe rence we give , we sure ly would agree that T hom as’s grievance was, in fact, fil ed several months past the 30-day deadline, and that he has presented no valid excuse for h is unti mely submission. The relevant quest ion i s whe ther we mus t re spect

Ohio’ s i mpo s ition and enforcement of this 30-day deadline. So again, I ask — if we agre e t o respect a S tate’s jud gment

tha t a pr ison er mus t proc eed t hroug h one or

more layers of administra ti ve ap pea l, why sho uld we balk a t the who lly anal ogous proc edur al rul e at is sue her e? Nevertheless, through

adroit de construction, the le a d opinion endeav ors to show that Coleman supp o rts its conclusionhere. I

n partic ular, the le adopinion focuses on portions (though not the entirety ) of the fol low ing pas sage from that decision:

Just as in those

cases in which a s tate pris o ner

fails to exhaust state remedies, a habea s pet itioner who has failed to meet the State’s procedural requiremen ts for presentinghis fede

ral clai ms has deprived the

state co urts of an oppor

tunity to addre ss those c laims in the first instance. A ha

beas petitione

r who has

default ed his federalc laims in state court meets the technical require ments for exhaustion; there are no state remedies any lon ger “ available” to him. In the absenc e of the independent

and ad equa te state g

round doctrine in federalhabeas, habeas p etitioners would be able to avoid the exhaustion requirement by def aulting their federal claims in state c ourt. The

independ ent and a dequate state ground doctrine ensures that the Sta

tes’ in tere st in correcting their own mistakes is respected in all federal habeas c ases.

Coleman
, 501 U.S. a

t 731-32, 1 11 S. Ct. at 2555 (citations omitted). From this language, the lead opinion surmises that untimely fi lin g does not directly equate with lack of exhaustion, but that it bars habeas relief only by virtue of the distinct“independent and adequate state g round ” o r 48 Thomas v. W oolum, et al. No. 01-3227

6 Even this point is a dubious one . W hile the lead opin ion d utifully

reco unts a po rtion o f Coleman ’s his torical sur vey of the independent and

a deq uate stat e ground doctr ine and t he procedural defaul t rul e, it st op s notab ly short of ackno wledging that the federa l courts’ application of t he latt er rule in the ha

beas conte xt rests solely upon “concerns of comity and fede ral is m” — concerns whi ch undou btedl y ar e pres ent here — and not upon jurisdict ional considerati ons or the need to avoid ad visory opinions. Coleman
, 501 U.S . a t 730, 111 S. Ct . at 2554. Thus , i t wou ld be misleading to s ugges t, as t he l ead opi nion appears to do, t hat t he Coleman Court felt its elf juri sdict ionally compell ed to adhere to the procedur al defaul t rul e.
Rather, Coleman plainly evidences the Court’s recogn ition of the complementary nature of the exhaus tion requirement and the procedur al defau lt rule — both are “gro unded in principl es of comity,” and t he former would be ren dered a nul li ty wit houtthe lat

ter . 501 U.S. at 731- 32, 111 S. Ct. at 255 4-55. T hus, the Court eq uated “case s in which a state prisoner fail s to exhaust st ate remedies” and those in which a pri son er “fail[s] to me et the Sta te’s pro ced ural req uirem ents for p resen ting his federal clai ms” — in eith er case, the inma te “has d epriv ed the state cour ts of an opport

uni ty to addr ess thos e cl aims in t he f irs t i nst ance. ” 501 U.S. at 732 , 111 S. Ct. at 2 555 . Mo reov er, the C ourt i nvoked the pr ocedural defau lt rul e to e nsur e th at pr ison ers did not “ avoid the exhau sti on requirement by defaul tin g thei r feder al claims in state court, ” 501 U.S. at 73 2, 111 S. C t. at 2555 — precisely t he reasoning which the vari ous Co urts of App eals have em ployed in reso lving the issu e now before us, yetwhich the lead opin ion sum marily reject s as cont rary t o the purport ed views of the Supreme Court and the “meaning of ex haus ti on,” (Lead Op. at 18). “proceduraldefault” doctrine. The lead opinion then reasons that no such doctrine has been incorporated into our prisoner § 1983 jurisprudence, leaving us free to follow t

he “technical” definition of exhaustion cited in Coleman

. Ifind this reasoningwholly unpersua sive, for

two reas ons. First, to whatever extent Coleman can be read as distinguishing between procedural default and e xhau st ion, 6 this dis tinction ha s been ob literate d in subseq uent Supre

me Courthabeas decisions. In O’Sullivan
, supra , for example, the Co ur t considered the question whether a state prisoner must petition for discretionary rev iew by

a state su

premeNo. 01-3227 Thomas v. W oolum, et al. 49

7 Indeed, the dissent ’s chief complaint in O’ Sull ivan was that t he Co urt’s opin ion “co nfuse[d ]” the two “analytica lly di stinct” rul es of exhau sti on and proc edural defa ult . 526 U.S. at 850, 119 S. Ct . at 17 3 5 (Stev ens, J., disse nti ng). Even the di ssent recogni zed, however , th at the procedural default doctri ne was “cra fted” b y the Co urt “[i]n o rder to protect the integr ity of our

exhau sti on rul e.” 526 U.S. a t 853, 119 S. Ct. court in order to sa tisf y the ex hau st io n re qui rem ent . In answering

inthe affirmative, the Court noted th e “ in te rp la y” betwe enthe doctr

ines of exhaustion a

nd proce dural de fault,

once again explaining (as it had in Coleman ) that “a prisoner could eva de t he exhaustion requirement — and thereby undercut the value s that it se

rves — by letting the time run on stateremedies.” O’Sul li van , 526 U.S. at 848, 119 S. Ct. at 1734 (interna

l quotation s and cita

ti on omi tted). The Court then elaborated:

To avoid this result, and thus protect the integrity of

the federalexha ustion rule, we ask not only whethe r a prisoner h as exhaust

ed his sta

te remed ies, but a

lso whether he has properly exh austed those remedies, i.e., whether he has f airly present ed his cla ims to the st

ate courts. O ur disag reemen t with [the di ssent] in thi s case tur ns on our dif

fering answer s to this las t questi on : Whether a prisone r who fa ils to pres ent his clai ms in a petition for discretionary review to a s tate co urt of last resort has properly

present ed his c laims to the stat e courts. Becau se we an swer this qu estion “no,” we conclude that [state

prisoner] Boerckel has pr ocedura lly default ed his cla ims.

526 U.S. at 848, 119 S. Ct . at 1734 (internal quotations and citations omitted).
Apart from this express statement that the proced ural d ef ault doctrine is a necessary

component of the exhaustion rule, the Court interchangeably referred to the prison er ’s failur e in that case as a lack of exhaustion and a procedur al default. 7 Because I llinois authorizes petitions for 50 Thomas v. W oolum, et al. No. 01-3227

at 1736-37 (Stevens, J., dissent ing). discret iona ry

review by tha

t State’s highest court, the Supreme Court reasoned

that this was an “available” remedy whichprisoner Boerckel was oblige d to exhaust before seekinghabeas relief in federal cour t. Boerckel fell short of this exhaustion requirement, however, by virtue of his failure to include three of his fe deral claims in his petition to the Illinois Supreme C ourt. Mo reove r, because the “time for filing such a petition ha[d] long pa ssed,” the Court he ld that “Boerckel’s failure to present three of his fede ral habeas claims to the Illinois Sup re me Court in a timely fashion has resulted ina proce dural de fault

of those claims.” O’Sullivan
, 526 U.S. at 848, 119 S. Ct. at 1734. Under this reason ing, the notions of exhaustion and procedural default are merg ed, and

aninm ate’s fa ilure to pr operly pursue a

state re medy in accordancewit

h th e relev ant proc edural r equirements can

just

as well be termed a

lack of exhaustion or a procedural default

. It follows, in particular, that an outright failure to fi le is legall y indistinguishable from a s ubmission be yo nd the state’s filing deadline.

But perhaps even more to the poin t, and clo ser to home, the Supreme Court recent ly rejecte d this Circuit’s continued recognition

of a distinction between exhaustion and proceduraldefault 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 “ analytica ll y distinct.” In languag e which bears a striking similarity to the lead opinio n’s rea soning in this case, we stated that “the

e xhaust ion requirement is satisfied even if a claim was procedu rally defa ult ed in state court, because in such cases there are no longer remedies ava ilable for the petitioner t o exhaust.” Carpenter , 163 F.3d a t 944 (citi ng Coleman and other cases).No. 01-3227 Thomas v. W oolum, et al. 51

The Supreme Court reversed. See Edwards v. Carpenter
, 529 U.S. 446, 1 20 S. Ct. 1587 (2000). The Court deemed i t “not a hard question” whether it suffices to merely

“prese nt”

a claim tothe state courts, “even though it was not presented in the manner that state law requires.” 529 U.S. at 452, 120 S. Ct. at1591-92. An affirmative answer to this que stion, in the Court’s view, “would render [the] exhaustion requirement illusory.” 529 U.S. a

t 452, 120 S. Ct. at 15 92 (footn ote omitted). The Court then continued:

We recog nized th e insepar ability

of the exha

ustion rule and the procedural default doctrine in Coleman

. . . . We again considered the interplay betwe en exhaustion and procedura l default last Term in O’Sullivan
. . . , concluding t hat the la

tter doc trine wa s necess ary to “‘protect the inte gr it y’ of the federal exhaustion rule.” The purposes of the exhaustion requirement, we said, would be utterly

defeate d if the prisoner w ere able to obtain federal

habeas re

view simply b

y “‘letti ng the time run’” so that state remedies were no longe r available . Those purp oses would

be no less frustrated

were we to allow federal review to a prisoner who had presented

his c laim to t he state c

ourt, but in suc

h a

m anner that the state

court could

not, consist

ent with its own proced

ural rules, ha ve ente

rtai ned it. In such circumst ances, though the prisoner would h ave “conce dedly

exhausted

his state r

emedies ,” it coul d hardly be said that, as comity and fe deralism require, the State had been given

a “ fair ‘opportunity to pass upon [his claims].’”

529 U.S. at 452-53, 120 S. Ct. at 159 2 ( emphasis added) (citations omitted).

Under federal habeas law, then, all that rema ins of an y distinction between the exhaustion and procedu ra l defaul t rules is differ

ent termi nology and sepa ratehistorical lineag es. While it is true that the Supreme Court had to make a choice whether to merg e these t

wo doctr ines, the Court has r

eadily 52 Thomas v. W oolum, et al. No. 01-3227

8 Judge Gilman’s concurrence rests ent ire ly on the proposi tion t hat my approach

woul d eff

ecti vely amend Cong ress ’s sta tut ory ma ndate of exhau sti on by incorporating a requirementof timely filing. Ce rtainly, this cha rge of “j udicia l act ivi sm” would apply as wel l to t

he thr ee other Circu its which h ave adopted th e reading of § 1997e(a) that I f avor — and,

as note d, it would app ly as well to the Suprem e Cou rt’s habeas dec isions. But Judge Gilman’s analysi s merely begs the quest ion, in my vi ew. I freely acknowledge, as did the Supreme Co urt in Coleman , th at a pris oner

ex hausts his remedies in a “technical” s ense once there are no more administrati ve avenues to pursu e, whet her because of a procedura l defau lt

or for any

other r eas on. The question we confront here is whether t he congress ional mand ate is satisfied throug h such “technic al” exhau stion, or whether § 199 7e(a) d emand s something m ore from prisoners. and repeat edly recog

nized the practica

l necess ity o f this merger — absent a procedural defau lt component, the exhaustion requirement would be a nullity . L ik ewise, our sister Circuits — as well as this Circuit, albeit in unpublished decisions — have fo

und it necessary

to construe the exhaustion rule of § 1997e(a) as encom passi ng procedural defaul t thro ugh unt imel y admini strat ive fi ling.

The lead opinion and concurrenceinsist that this reading of § 1997e(a) is improper, h o wever, because it would add a timeline ss require

ment to the

statute that Congr

ess purporte dly

has declined to impose. To this contention, I can only respond that the Supreme C ourt pre sumably 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 u nder § 19 83, it woul d be all the

more problema

tic for the courts

to restri ct their congressionally-conferred and constitutionally-mandated authority to enter tain prisoner habeas p etitions. But this is not what the Supreme Court has done, or what our sister Cir cuits have done, in insisting that prisoner s comply with appli cable deadlines and other procedural requirements — to the

co nt ra ry, they have e

nsured that the congressional mandate of exhaustion is preserved

rather than subverted, by construing exhaustion in the only way that makes sense. 8No. 01-3227 Thomas v. W oolum, et al. 53

As a matter of brute sem antics, I do n ot de ny that the “te chnica l” defi nit ion of exhaus tion f avored by my col leagues is a per missible one

. For allof t

he re asons outl ined herein, h owever , I simply do not believe that thi s is t

he meaning Congress intended in enacting t he PLRA. Judge Gilman has suc cinctly stated one o f m y reas ons — that, in cas es suchas this one, a re quirement of mere “ tech nical ” e xhaustion resul ts in t he feder al cou rts having “to de al with the § 198 3 issue s withou t the be nefit of the stat e’s administ

rative considerat ion on th e merits.” ( Concurring Op. at 25.) While Judge Gilmanstates t hat such cases “make[] t he issue difficult” for him , ( id. ), they ma ke it easier for me t o conclude tha t Cong ress could not have in tended a def ini tion of exhaust ion th at routine ly perm its cl aim s to reach the fede ral court s wi thou t t he bene fi t of

any prior consi derat ion on the merits. Under such c ircum stance s, I find it unnecessary to a wait a legi slat ive decl arati on that § 1997e(a) mandates actual, meaningf

ul, and not merely “ technical” exhaust ion.

Ye t, beca use it is po ssible to de fine exh austion in a pur ely “techn ical”
sense, my charge s of “

judici al meddling” do not rest upon any notion that my collea gues h ave “re written” § 19 97e (a). Ra ther, my q uar rel is with
t he analy tica l rout e by whi ch they arri ve at t

heir r eading of

thi s st at ute

. Judge Gilman’s concurrence makes the argu men t, f or example, that the Supr eme Court’s habeas deci sions do not compel any parti cu lar r es ult here, because t

he “in separability

of the exhausti on rule and the pro ced ural-de fault doctri ne” in t he habeas conte xt, Edwards
, 529 U.S. at 452
, 120 S. C t. at

1592, does not re quire t hat we pl ace a si milar pro ced ural-de fault glos s upon § 1997 e(a ). Very we ll , but thi s does not deny the for ce of

(or eve n addr ess ) myarg umen t t hat al l of th e sa me groun ds relied upon b y the Supreme Court in Coleman
, O’Sull ivan , and Carpenter are fully ap plicab le here
, and the refore should lead u s to construe exhau sti on unde r § 199 7e(a ) i n t he s ame way that exh austi on has been interpr eted in habeas cas es. It is evi denc e of

judi cia l a cti vi sm, in my

v iew, to resolve an iss ue as though writ ing on a blank slat e, and to deny the clear impo rt of closely analogou s decisions.

The remai nin g base s f

or my concerns of judicial poli cymaking are set forth through out th is opin ion and need not be repeated he re. I do wish to emphasize one p oin t, howe ver — that , n o mat ter

how many ti mes m y
co llea gues app eal to “S upre me C ourt p reced ent,” (L ead Op . at 2 -3 ; Concurring Op. at 27), they simp ly canno t identify a sing le cas e, whet her under § 1997 e(a ) or in an y other s tatutory o r adm inistrative c ontex t, in which that Co urt (or a ny other) has held that an exhaustion requirement

was sati sfi ed throughan unexcus ed filing beyo nd an app licable deadline

. Next, even as sumi ng t hat s ome meaningful distinction 54 Thomas v. W oolum, et al. No. 01-3227

might remain b etween

procedu ral def ault and e xhaustion, i

t is far too late in the day

to contend t

h at the former doctrine should not apply in the context of § 1997e(a), a nd that the purely “te chnical ” defini

tion of exha

ustion inste ad should control. At

the risk o f redund

ancy , I a gain po int out that

this Circui t alre ady

has held that certain ty pes of procedural de faults — e.g., a failur

e to pursu

e all ava ilable avenues o f administrative appeal —

constitute lack of exhaustion under § 1997e(a). To the Supreme Court, at least, a late filing and

anoutrigh

t failure to file at a

ll are both

analy zed in pre cisely the same way

— name ly , as procedural defaults. See O’Sullivan
, 526 U.S. a

t 848, 119 S. Ct. at 1734 ; Coleman
, 501 U. S. at 75 0-52, 111 S. Ct. at 2565-66. Thus, while one might seek to di stinguish betwee n these two forms of defa

ult

— although, as discussed below, I am wholly unpersuade d by the lead opinion’s attempts at such a distinction here — it is untenabl e to sugg est that pr ocedura l defaul ts generally

do not

runafoul of

§ 1997e( a)’s exha

ustion re quireme

nt. Rather, i

t is now the la

w of this Cir

cuit that some

procedu ral def aults, but not others, bar a prisoner suit under § 1983.

III.

Inmy view, the above-cited authorities point uniformly and unmistaka

bly towar d the conclusi on that time ly f iling is a necessary compon ent of exha ustion unde

r § 1997e (a) in a

ll butthe most un

usual of c ir cumsta

nces. Even if we were writing on a blank slate, however, I c ould not subscribe to the policy judgments made in the lead opinion. Rather, I believe that the l ead opinion’s analy sis of untimely prisoner grievances substitutes superficial straw-men for care ful

sc ru ti ny, and rests upon a fu ndam ental misunderstanding of the sign ificanc e of admi

nistrativ e filing

deadline s. Throughout

its entire discussion of the timeliness issue, the lead opinion ac

knowledg es only

a single argument in support of the rule that inmates presumptive ly m ust comply with admi nistrative time limits. In particular, the lead opinion proclai ms that “the only g

round for barring a fede

ral § 1983No. 01-3227 Thomas v. W oolum, et al. 55

suit due to an u

ntim ely pri son grie

vance is that we would otherwi se r ender prison grievance proc edures 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 grieva nces within the prison’s timelines
, bec ause i t is in the prison grievance process that inmates will, for most practica l purposes, re ceive their swiftest and most effective remedies.” ( Id. at 19.)

The various p olicy

-based c onsidera

tions that l

urk bene ath the surface of this analysis thwa rt the considered judgment and expressed will of

Congress when it enacted § 1997e( a) in its present form. First and foremost, Congress did no t legisla te a system of “ince

ntives” for prisoners to pursue their administrative remedie s — it comma nded in the

most explici

t of language that inmates must exhaust these remedies in all

cases. In thi s case, f

or one, th

is si mply did not occur — because of Thomas’s untimely filing, the re was no administrative consideration whatsoever of the merits of his grievance, let alone exhaustion of the prison ’s dispute resolutionprocess. Moreover, even bef ore to day’s rul ing, Thomas, for one, apparently failed to perceive any

incentive to tim ely file his grievance — he submitted it five months past the 30-day limit, despite the admitted absen c e of any impedimentto meeting this dea d line. I find little

comfort, then, in the lead opinion’s prediction that its rule will not thoroug hly undermine the congressional command of exhaustion. It is b ad enoug h, in my view, that some prisoners undou bte dly will

take advantage

of our fr

ee pass t

o circumv ent this re quireme nt.
Further, Congress made no secret of its principal con cern inmaking exhaustion mandatory. This Court and others have amply recounted the legislative history leading up to the 1996 amendment of § 1997e(a). We recently observed:
“Congr ess was primari l y conce rned about the rising number of lawsuits filed by

prisoners and the perception that most of the se suits were frivolous.” Cruz v. Jordan, 56 Thomas v. W oolum, et al. No. 01-3227

80 F. Supp.2d 109, 113 (S.D.N.Y. 1999). See, e.g., 141 Cong. Re c . S14408-01, *S14414 (daily ed. Sept. 27, 1995) (statement of Sena

to r Dole) (noting that prisoner suits increa sed from

6 ,600 in 1975 to over 39,00 0 in 1994 and included claims for “insufficient stora ge locker space, a d efective haircut by

a prison barber, the failure of prison officials to invite a prisoner to a pizza party f or
a departi n g prisonemployee, a

nd . . . being served chunky peanut butt er instead of the creamy variety.”) ; 141 Cong. Rec. S 749 8-01, *S7526 (daily ed. May 25, 1995) ( sta tement of Senator Ky l) (stating that in 1994, prisoners broug

ht more tha

n one-fo urth of a ll civilsuits filed in the United States District Courts); Bernard D. Reams, Jr & William H. Manz, A Legislative History of the Prison Litigation Reform Act of 1 996, Pub. L. No. 104-134, 110 Stat. 1321, Doc. 33, at 61 (noting that the short title given to th e 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 Wya tt v. Leona rd , 193 F.3d 876, 878 (6th Cir. 1999) (“The 1 996 Act i s designed to deter frivolous lawsuits . . . .”). Likewise, the Eleventh Circuit has explained:
Congre ss enacted this mandatory exhaustion requ iremen tin section 1997e(a) as part of the PL RA’s effort to curtail frivolous and abusive prisoner litigation

. . . . Congress did not enact the PLRA in a va cuum. It held hearings and rendered find ings, concluding that prisoners file more

frivolou s lawsuit s than any other class of persons. Co ngress found that the number of prisoner lawsuits has gro wn astronomically . . . . Congre ss intended section 1997e(a) to curta

il the abil ity of prisoners to bring frivolous and malicious lawsuits by forcing prisoners to exhaust

all administrative remedies before bringin g suit in F ederal

court.No. 01-3227 Thomas v. W oolum, et al. 57

9 In this cas e, by co ntrast, inm ate Thomas already h ad transferr ed to another inst itu tion by

the t ime he f

iled h is gr ievance. Alexand er v. Hawk , 159 F.3d 1321, 1324 (11th Cir. 1998) (internal quotations and citations omitted).

This recog

nition is not

ably lack ing in the lead opinion’s wishful thinking

on incent

ives. The

inmates le ast

likel y to adhere to a prison’s time limits and other procedural rules are precise ly those prisoners who are pursuing frivolouso r abusive claims. Such prisoners, after all, would have nothing to lose in flouting prison pr ocedure s, becau se they

would have no l egiti mate expectation of obtaining any remedy throu gh the prison’s gri evance process . For suc

h prisone rs, it matters only that they

reach the finish line o f this process and secure their t icket t o federal court, and today ’s ruling provides a handy

shortcut for doing so. Thus, by presuming that inmates w

ill pursue their administr ative re medies in good fa ith, even if this Court does not insist that they do so, th e lead opinion disregards the finding of Congr ess that prisoners all too often were not

acting in good faith, and the judgment of Congre ss that this

problem c ould best

be add ressed throu gh a requirement of mandatory exhaustion.
Yet, as much as the lead opinionis prepared to assume that prisoner s a ct in good faith, it is quite unwilling to make the

same assu

m ption abou

t prison of

ficials. Telling ly, in assessing the poten

tial costs of it s ruling and identify ing the “one g round” that might militate against it, the lead opinion utterly fails to e

ven allow

for the p ossibilit

y that prison officia ls might have go od reasons for establishing deadlines for the f il ing of g

rievanc es. Even

a moment’ s though

t, however, would reveal severa l such reason s, in cludi ng: ( i) the inherent benefit of prompt investigation, while memories

are still fresh and all involved inmates and prisonemployees remain at th e f ac il it y; 9 (ii) the d

esire to b

rin g t he entire matter, including all available internal appeals, to a 58 Thomas v. W oolum, et al. No. 01-3227

10 To the ext ent t

hat t he process is prol onged, of c ourse, thi s leav es the court s t o deal wit

h st ale clai ms and a n out dated recor d.

11 Indeed, i n it s di scus sion of pr ison er i ncent ives , the l ead opi nion cite s the capacity of the prison grievance p rocess to p rovide the “swiftest and most effecti ve remedies.” (Lead Op. at 19.) Th is capa city rests in no small part upo n the prop er functioning and e nforceme nt of deadlines.

12 To be sure, the l ead opinion pay s li p servi ce to t he “m utually ben eficial” val ue of

deadl ines to bot

h pri soner s and pr ison of ficials. (Lead Op. at 19 n.4.) It quickly re vert s t o f

orm, however, speculating without any discernable basis as to a purportedly “real conc er n” that “pri son administrat ors will impose shor ter an d shorter

deadline s measure d in hours and days” in order to shut pri s one rs out o f federa l court. ( Id. ) Since several

other Ci rcuit s have adopte d the procedural default doctri ne t hat so c oncern s t he l ead opi nion , one woul d expect to s ee pri son administrators within those Circuits b usily shortening t

heir fi ling deadlines and sett ing ot her sorts of procedural traps. To my knowledge, thi s has not oc curr ed. conclusionwithin a r

easonab le ti me per iod; 10 and (iii) the greater likelihood

that a pr is oner mi ght be satisfied by swift actionagainst any

transg ressors

. 11 Significantly, most of thesebenefits accrue to prisoners and prisonofficials alike — and this presumably is why

prisonofficia

ls routine ly im

pose deadlines upon themselves as well as inm at es. On the assumption that the 3 0-day time limit in t

his c ase was motivated by t hese and other le gitima

te considerations of efficient and effective institutional funct ioni ng —and, again, the record contains no suggestion whatsoever to the contrary

— I wou ld hold that this de adline is

presumpt ively entitled t o our respect, with exceptions made only in those cases where

aninmate establishes his inability to comply with a prison’s filing li mit. 12

All of these

benefits are lost, however, when deadlines a re reduced to mere suggestions. To be sure, there may

be some
cases in which both sides act in enlightened good faith, and voluntar ily agree to move promptly

through the stages of the administrative process. As we judges wel l know , however,No. 01-3227 Thomas v. W oolum, et al. 59

13 In thi s case, for exampl e, Thomas request ed a grie vance for m on May 1, 19 98, w as given the form two d ays later, o n M ay 3, an d wa s able to file his grieva nce the next d ay, on M ay 4, 1 998 . This grievance wa s a handwrit ten one-page docume nt, set ting f ort h the fac tual

basi s f or Thom as’s complaints and the various remedies he was seeking.

14 As not ed in the lea d opini on, t his is two y ears in Ohi o. litigationis mor e of

ten adversarial than collegial, and a ny process whichresults in

winners a

nd losers is likely to invite strategic behavior. Proced ural rules, it seems to me, are designed to avoid worst cases and limit strat egic behavior, while imposing

no specia

l hard ship upon those who w ould proceed in good f aith even in their

absence. As noted at the outset, I see no indication that inmates generally

have found it difficult to meet prison filing deadline s, partic ularly in light of the modest effort involved in filing a grieva nce. 13

Incontras t, the worst cases invited by the lead opinion’s rule promise to

be very bad indee d. A prisoner who w is he s to avoid the exhaustion requirement nowhas every incentive to wait as long as possible before filing a g rievance, in order to enhance the likeli

hood that h

is submission will be rejected

as untimely. The outer

bound for

this delay presuma bly is the statute of limitati ons for § 1 983 suits 14 — and n o t one day earlier, because this limitation period is immediately tolled uponthe commencement of administrative proceeding s. See Brown v. Morgan , 209 F.3d 595, 596 (6th Cir. 2000). It is highly disingenuous, in my view, to insist tha t prison of ficials still have a me aningf

ul “oppor tunity ” to addr ess the merits of suchan intentiona lly delay ed grievance. Rather, as the Supreme Court has explained , even if it could be

said that the prisoner had technically

“exhau st ed” his r

emedies , it could notse ri ou sl y be cont ended that “the State had been given a fair opportuni

ty to pass upon

” the pri soner’s

claims. 60 Thomas v. W oolum, et al. No. 01-3227

15 Even more puz zli ng i s t he l ead opi nion ’s asse rti on that a stat e may “avo id federalcourt ” by “wai vin g [i ts] procedu ral gui deli nes. ” (Lea d Op. at 11.) Just

how state offici als might accomplish t his is not explained. In fact, a state tha t elects to a ddr ess an u ntimely g rieva nce m ight very w ell still fin d its elf in f

ederal cour

t, unles s it reso lves t

he gri evance i n a way tha t totall y sati sfies the inmate. This is highl y unlikel y in t he frivolous and abusive cas es that Congress specif ically targeted in enact ing the PLRA. Edwards
, 529 U.S. a

t 453, 120 S. Ct . a t 1592 (internal quotations and citation omitted). 15

Then, after t his p rolon ge d but essentia lly worthless administrative process has finally reached its conclusion, the courts would

be left to address claims which have gone stale, and which in mos t cases have never been addressed on the merits, but which

nonethel ess have been

fully “exhausted” as the lead opinion construes that term. Alternatively , in cases whichdo not meet even this lenient notion of “exhaustion,”

a court’s dismissal withoutprejudice under § 1997e(a) often will be only the beg

inning of the process, rather than the end. Armed with the court’s “blueprint” for the administrative steps that shoul d have be en taken but were not, an inmate may go back and fix his

prior ad

minis trati ve filing s, unimpeded

by t he expira tion of an y a dministra tive dea dlines. This process

may be repe ated as neces sary, limited only by the running of the underlying statute of limitations for

§ 1983 suits — which, ag ain, is tolled during administrative proce e dings, and likel

y du ring jud icial pro ceeding s as well. As noted at t

he outset , this e viscerat es many of our pr ior failure-to-exhaust decisions — an inmate who, for example, di d not pursue all available administrative appeals can now pick up th e p ro ce ss wh er e h e l ef t o ff , u nd et er re d b y an y missed fil ing dea

dlines.

Or consider this very ca se, in which we hold that Thomas’s grievancesetting

forth his c la ims against Defendant Shawn Woolum did not serve to exhaust hi s c laims against the remainingDefend

ants. I see nothing to preve nt Thomas fromNo. 01-3227 Thomas v. W oolum, et al. 61

16 I express no view on the proper outcome of this inqui ry in th is

case. going back and filing

grieva nces ag ainst thes e other p arti es , advancing

the fa i lure-to-protect theory that he did not assert in his init ial grievance. To be sure, these new grievances would come almost six years after the incide nt in question — butthis no longer matters, so long as the underlying

two-year statute of limitations has not run in light of t he pende ncy of various administrative an d ju dicial pr oceedin gs. 16 Prison officia ls still would have the “o ppor tunity ” to addr ess these

newgrieva

nces, an d this is all

that toda y’ s ruli ng requires froman inmate

in order to exhaust h

is remedies . Alt hough this strikes me as the height of absurdity , my colleag ues on the panel unf

ortunate ly d

o not s hare in this view — nor, indeed, do they e

ven acknowledge the conce rn.

IV.
Agains tt he fore going

weight of author

ity a nd reason in favor of the judi ci ar y’ s presumptive respect for administrative filing deadlines, the lead opinion offers up t he Supreme Court’s Oscar

Mayer decisionas singlehandedly compelling the opposite result. Indeed, it appear s that the lead

opi nion must cast itslot with Oscar Mayer
, because no other case of wh ich I am aware supports its view of exhaustion as mere terminationby any

means. Yet, even the most cursory review reveal s that Oscar

Mayer has nothing whatsoever to say about administrative exhaustion or the pro per construction of § 1997e(a ). Thus, the lead op inion is l eft adrift without an anchor.

In Oscar M

ayer , th e S up re me Co ur t a dd re ss ed a l en gt hy, detailed, and highly idiosy ncratic pro visi on of t he Age Discriminationin Employment Act (“ADEA”), requiring that a person must “commence[]” state proceedings at least sixty day s before

bringin g a fed eral ag e discrim

ination su it: 62 Thomas v. W oolum, et al. No. 01-3227

17 As noted in the lead opin ion, t he Court reached essentiall y the

same conc lusion in EE OC v. Co mm ercia l Office P rod ucts Co. , 486 U.S. 107, 108 S. Ct. 166 6 (19 88), a case invol ving a n early ident ical ly wor ded provi sion

in Title VII, 42 U.S.C. § 2000e-5(c). Because this ruling and Oscar Mayer rest

upon virt

uall y the same s tatuto ry language and reasoning, I have confi ned my discussion only t o the latt er decision. Inthe case of an alleged unlaw ful practice occurring in

a State whic

h has a la

w prohibit

ing discrimi nation in employment

because of age and esta

blish ing or authorizing a State a

uthority to grant or seek relief from suchdiscriminatory

prac tice, no suit may be broug ht under section 62 6 of this title before the expiration of sixty day s after p

roceed ings have be en commenced under the State law, unless such proceedings have been e arlier terminated

. . . . I f any

requir ement fo r the commencement

of su ch pr oc ee di ng s i s i mp os ed by a State authority other than a requirement of

the filing of a writtenand

signed statement

of the facts upon which the proceeding

is based, the proc eeding

shall be d

eemed to have been co mmenced

for the p urpose s of this subsection at the time su

ch state ment is se nt by regist

ered ma il to th e a pp ro pr ia te St at e a ut ho ri ty.

29 U.S. C . § 633(b) . Upon re viewing the lang uage o f this statute, th e S upreme Co

urt held, among o ther thing s, that a grievant is not requ ire d to comme

nce stat e proce edings w

ithin the time limits specified

by s tate law

in order to prese rve his federalright

of action. See Oscar Mayer , 441 U.S. at 753, 99 S. Ct. at 2070. 17

Alth ough the lead opinion recites various policy

c onsider ations noted by the Court in reac hing this decision, t he ruling in Oscar Mayer rests first and foremost on th e langua ge of the statute itself. Initi ally, the Court observed that the use of the word “co mme nced” d oes not ne cessar

ily demand complian c e with state filing deadlines, “since, by way of analogy , under the Federal Rules of C iv il Procedure

even a time-barred action may be ‘commenced’ by

the filingNo. 01-3227 Thomas v. W oolum, et al. 63

18 N ota bly, in givi ng effect to this plain stat utory language, the Supr eme Court observed that this was the “prevail ing int erpretation” adopted by the courts, as w ell as t he i nt erpr eta ti on ado pte d by t he EEOC. Oscar May er , 441 U.S. at 760-61, 99 S. Ct. at 2074. This lat ter construc ti on, of course, was “en titled to great deference ” by the courts. 441 U.S. a t 761
, 99 S. Ct . at 2074 (i nter

nal quotations and ci tat ion omitted). Here, by cont ras t, no court or ot

her aut horit y what soever has previously endorsed the lead opinion’s interpretat ion of § 1997e(a). of a complaint.” 441 U.S. at 759, 99 S. Ct. at 2073 (citations omitted). The Court

then foun

d that any ambigui ty on this pointwas over

come by the statut

e’s express d

efinit i on of what constitutes “commencement” — namely, the “f

iling of

a wri tten and signed statement of the facts upon which th e proceeding

is based,” and nothing else. 4 41 U. S. at 760, 99 S. Ct. at 2073 (quoting 29 U.S.C. § 633(b)). Thus, the Court explained, “even

if a St ate wer

e to make

timelines s a precondition

for comme

ncement

. . . , a state

procee ding will be deemed commenced

for purposes of

[the federal statute] as

soonas th e c om pl ai nt is fi le d, ” a nd ir re sp ec ti ve of an y s tate filing limits. 441 U.S. at 760, 99 S. Ct. at 2073.

The lead opinion does not address, or even a ckn owledge, this princ ipal ba sis for the decision in Oscar Mayer . The statute in that case defined “com mence ment,” and decreed that the stat e s could not impose any require ments for “commenc ement” beyond the bar e filing of a statement of facts. 18 Section 1997e( a) , in contrast, supplies no special definitionof exhaustion. It seems reasonable to a ssume, then, that Congress meant

for prisoners to “exhaust” their remedies under § 1997e( a) in pre cisely

the same way that they must “exhaust ” th eir remedies under 28 U.S.C. § 2254(b)(1)(A). Under the Supreme Court’s then-recent decision in Coleman
, suchexhaustion

entailed compli a nce with a state’s procedural rules, including

filing d eadline s. More ge

nerally , throug h its enactment

of the PL

RA, Congr

ess could hard ly have mea

nt to relax the standard s for a pr is oner to exhaust h

is administrative remedies, or to i nvite creative schemes for avoiding this manda

tory require ment. 64 Thomas v. W oolum, et al. No. 01-3227

Other portions of Osc ar Mayer also demonstrate i

ts inapplic ability

here. The Court emphasized, for instance, that the ADEA provision at is sue “ does not stipulate an exhaustion requirement

,” but “is intended only to give s tate agencies a limited o

pportunit y to settle the

grie van ces of ADEAclaimants in a

voluntary and loca

lized manner so that the grieva

nts there afte r h ave no need or desire for independent

federal relief.” 441 U.S. at 761, 99 S. Ct. at 2074 (emphas is added). Congress set the bar a g ood deal h igher i n § 1997e(a), of cours e — this provision does mandate exhaustion, and prison officials have be en granted far more thana “limited opportunity” to addre ss prisoner grie vances. As noted ea rlier, Congress meant for this exhaustion requir e ment to staunch the flow of frivolous and abusive prisoner litigation, a concern whi ch in no way a nimated the enactment of the provision at issue in Oscar Mayer

. More gener

all y , Oscar Mayer ’s express disavowal of any

co nsid eration

of exhaustion principles presumably explains wh y, so far as I ca

ntell , that dec ision has never been cited outside of its pec

uliar AD EA/Title

VI I c onte xtas any sort of authority on the meaning of administrat ive exhaustion. Indeed, Oscar Mayer doe s not state a rule of general applica bility to administrative exhaustion evenin the narrow context of employment discrimination law. I n particular, the courts do ins is t that grievants comply with administrative time limits in order to pursue thei r employment discrimination claims in federal co urt. See Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 39 3, 102 S. Ct. 1127, 1132 (1982). In a decision af firming the dismissal of a case in whicha pro se

plaintiff missed a Title VII filing deadline, the Supreme Court empha sized that “[p]rocedura l require ments established

by Congre ss for g aining a ccess to the federa l courtsare not to be disregarded by courts out of a vague sympathy

fo r particular litigants.” Baldwin Coun ty W elcomeCenter v. Brown , 466 U.S. 147, 152, 104 S . Ct

. 1723, 1726 (1984). Al thoug h doctrines such a s equitab le tolling m ight excuse an untimely filing in a particular case,

we have cautioned that such relief is “sparingly

bestow[ed],”No. 01-3227 Thomas v. W oolum, et al. 65

19 In light of these precedent s, I am at a l oss to s ee how the l ead opini on can cla im that no “pro ced ural de fa ult hurdl es” st and in t

he way of a Title VII or ADE A liti gant. (Lead Op. at 11 n.2.) Whether or not the

cou rts employ

the term inolo gy of “p roce dura l defau lt” in such cases, the brute fact r em ains t

hat i ndivi duals wh o miss admi nist rati ve deadli nes gene rally forfeit

their ri ght to ca ll upon the “f ederal court s as a vi ndica tor of feder al ri ghts. ” ( Id. ) and that “[a]bs ent c om pelling equitable considerations, a court should not extend limitations by eve n a single day .” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.
, 209 F.3d 552, 560-61 (6th Cir. 2000). 19

Ifail to see why we should fa vor the civil rights claims of prisoners over thos e of law-abiding citizens. In fa ct, the lead opinion’s rule create s precis ely the dilemma the Supr

eme Courtsought to avoid

in Coleman — in this Circuit, we

res pect federa l proced ural rule s in emplo yment discrimin atio n 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 o f ti meli ness rests upon a smattering of policy -based observations in Oscar Mayer , wholly unmo ored from the specific statutory context in which the Supreme Court ruled inth at case. This is a far cry from the lead opinion’s initial pr omise to resolve this question “in light of Congress’s purpose in pass ing th e PLRA,” (L ead Op. at 3) — which purpose the lead opinionthen proc eeds to di scount — and in light of the Supreme Court’s exhaustion precedents — which,

as no ted, recognize timeliness as an essential element of exhaustion. It

is a strange form of “[j]udicial restraint,” (L ead Op. at 19 -20 n.4), in my judgmen t, which r

eaches out to decide an unnecessary

issue in a way that

invites pr isoners to circumvent the congressional mandate of e xhaustion. 66 Thomas v. W oolum, et al. No. 01-3227

As explained

above, I believe that the relevant policy

con siderations militate strongly ag ainst the rule adopted b y the lead opinion in t his case. More importantly , the lead opinion’s willingnes s to dispense with administrative filing deadlines runs counter to the strict exhaustion requirement of § 1997e(a ), the inte nt of Cong

ress in imposing this mandatory prereq uisite to prisoner

suits under § 1983, and the decisions of t his an d other Courts of Appeals uniformly holding that inmates must comply with a prison’s procedural rules as they exhaust the ir

administrative remedies. Accordingly , while I concur in the Court’s judgment affirming the District Court, Idissent fr om the lead opinion’s

ruling t hat untime ly grievances satisfy the

administrative exhaustion requirement of § 1997e(a).