Tag Archives: administrative exhaustion

Shocking News: BOP Grievance Procedure Deck is Stacked – Update for June 22, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP ADMIN REMEDY PROCEDURE – THE HOUSE ALWAYS WINS

A study by The Marshall Project and NPR published last week reported that the BOP’s grievance system – the BP-9, BP-10 and BP-11 – has inmate failure baked in.

I have not been this shocked by a revelation since learning that professional wrestling is fixed.

Reviewing BOP remedy filings for 2023, the latest year for which data are available, the study found that out of about 40,000 grievances filed in Fiscal Year 2023, 75% were rejected for being inconsistent with the BOP’s arcane procedural rules (too few copies of attachments provided, failure to enclose a copy of a lower-level denial, late filing). Of the 10,000 or so that made the procedural cut, only about 700 were granted.

Overall, the BOP’s grant rate is somewhere under 2% of the remedies filed. Like shooting craps with the house winning 49 out of 50 times.

The TMP/NPR report noted that the grievance process has gotten much worse in the past 20 years. The rate at which the Bureau granted grievances has fallen from just under 7% in 2000 to its current rate, a decline of 70% in 20 years.

“The program is intended to solve problems and be responsive to issues raised by inmates,” Randilee Giamusso, a BOP representative, wrote in an email to TMP/NPR, “and does not prevent inmates from pursuing litigation.”

Of course it doesn’t. And vandals are wrecking President Trump’s perfect beautification of the Reflecting Pool.

The Prison Litigation Reform Act, passed in 1995, requires prisoners to complete all available administrative remedies as a condition of bringing suit. Other litigation, such as a petition for habeas corpus under 28 U.S.C. § 2241, requires exhaustion (but excuses it in rare cases where exhaustion would be futile, something that the BOP’s 2% approval rate should be considered to be “all the time”).

Contrary to Ms. Giamusso’s assurance, in Fiscal Year 2025 alone, over 1,770 federal court cases grappled with failure-to-exhaust-remedies claims raised by the government. In other words, the government uses failure-to-exhaust as a bludgeon to get inmate lawsuits dismissed on a regular basis.

The TMP/NPR study followed the medical travails of inmate Terri Mollica, whose serious condition was identified by physicians but needed surgery was withheld, and whose BP-9 was not answered for over 6 months. Mollica’s final level internal remedy to the BOP Central Office was never logged as received, leading to her lawsuit against the BOP being thrown out. The Circuit’s dry recitation of Terri’s history of trying to get the BOP to “solve problems and be responsive to issues raised by inmates” (as Ms. Giamusso so chirpily puts it) tells the story:

•   On October 31, 2019, McGuire-Mollica filed an informal resolution form with the prison. She requested to “see a specialist/surgeon to determine the best course of action, within the next 30 days.” The next day, prison officials returned her form as unresolved.

•   On December 4, 2019, McGuire-Mollica submitted a request for administrative remedy using a BP-9 form. She explained that she “ha[d] not received any treatment or additional consults for this problem” and renewed her request for “an outside specialist or surgeon.” On June 23, 2020, the acting warden responded to her request by confirming that she had a “scheduled appointment with an OB/GYN specialist.”

•   On June 26, 2020, McGuire-Mollica filed an appeal using a BP-10 form. She continued to demand to see a surgeon. On December 21, 2020, the regional director denied her request because there was “no evidence of a May 2017 diagnosis of a malignant uterine growth” in her medical records and “[s]urgical intervention was not recommended.”

•   On October 1, 2020, McGuire-Mollica mailed an appeal using a BP-11 form. McGuire-Mollica mailed this appeal before receiving the regional director’s response to her BP-10 form, but the regional director’s time to respond had already expired, which allowed the prisoner to “consider the absence of a response to be a denial.” She signed the BP-11 form and listed a certified mail tracking number on it. But prison officials contend that they never received the form, as the SENTRY database that tracks the status of all administrative grievances has no record of the BP-11 form being filed.

•   On October 27, 2020, 26 days after she submitted the BP-11 form, McGuire-Mollica filed pro se a complaint in the district court. She alleged that the Bureau of Prisons and its officials had violated her rights under the Federal Tort Claims Act and the Eighth Amendment. And she attached exhibits to substantiate her claims, including copies of her administrative grievance filings and an affidavit alleging that “the officers/staff at this prison ha[ve] been tampering with [her] legal mail and denying [her] access to the Courts.”

•   On July 1, 2022, McGuire-Mollica filed—still pro se—an amended complaint. She listed several prison staff and officials as defendants and described their involvement in the denial of her request.

•   On October 19, 2023, the prison staff moved to dismiss the amended complaint. They contended that McGuire-Mollica failed to exhaust her administrative remedies… They argued that she did not complete the final step of the process of “appeal[ing] the response from the Regional Office to the General Counsel level.” McGuire-Mollica responded that she filed the BP-11 form when she submitted it to prison officials for mailing. And she explained that she “ha[d] done all administrative remedies that were available to her” because she could not “control the mail, whether the [Bureau]’s employees actually process or respond to the form, or even when or if the remedy is logged into the [Bureau] system.”

•   On March 8, 2024, the magistrate judge granted the motion to dismiss. She explained that ‘[g]iven the clear conflict between the parties’ allegations, the court must accept as true McGuire-Mollica’s version of events—that she mailed her final appeal to the General Counsel.’ But… ‘although McGuire-Mollica properly completed and mailed her final appeal, it was never ‘logged into the Administrative Remedy Index as received’ and ‘[b]ecause her appeal was never received and logged into the Administrative Remedy Index, it was never considered ‘filed.’ She also dismissed the amended complaint because ‘when McGuire-Mollica filed her [original] complaint, the General Counsel’s time to respond had not expired’ such that ‘the administrative remedy process had not been completed.

So the BOP’s non-resolution of Terri’s problem only took a year.  Seldom has a ‘no’ been delivered with such alacrity.

See how well it works, Ms. Giamusso?

The 11th Circuit reinstated the case after attorneys for the MacArthur Justice Center proved that she had tried to follow every step, but officials had failed to record her final appeal.

The report noted that the BOP’s approval rate “appears to be far below that of many state corrections departments, the news organizations found, though departments track such data in different ways. In California, officials granted roughly 15% of grievances and appeals in 2023… In Georgia, nearly 13% of cases were “granted, partially granted or resolved” that year, according to the department. In Texas state prisons, over 4% of complaints and appeals processed that year were “resolved in inmate favor” — a very small portion, but about twice the BOP’s rate.

Ms. Giamusso told TMP/NPR that the agency is working on “updates and additional guidance” on the remedy procedure. However, nothing to that effect has been proposed in the Federal Register, suggesting that a fix – if one is being planned at all – is years away.

NPR,  ‘Rejected’: How federal prisons stonewall grievances and deny care for years (June 17, 2026)

McGuire-Mollica v. Fed. Bureau of Prisons, 146 F.4th 1308, 1312-13 (11th Cir. 2025)

~ Thomas L. Root

Supreme Court Gives PLRA Prisoner a Procedural Win – Update for June 26, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PLRA EXHAUSTION MAY BE A JURY QUESTION, SCOTUS RULES

Prisoners know that virtually any lawsuit brought against the Federal Bureau of Prisons other than a habeas corpus action is subject to the procedural straitjacket of the Prison Litigation Reform Act. The PLRA, among other things, makes exhaustion of all available administrative remedies a jurisdictional requirement, meaning courts cannot waive the requirement because it is futile (which it almost always is) or inconvenient (which it invariably is).

But what happens when a prison refuses to give the inmate access to the remedy system?

The Supreme Court last week sided with Michigan state prisoner Kyle Richards, holding that a jury—not a judge—must consider his claim that a corrections officer destroyed his sexual harassment complaints, making it impossible for Kyle to use the prison’s remedy process.

Exhaustion questions are usually decided by a judge. But here, the high court ruled, a jury must decide whether the CO’s action made the remedy process “unavailable,” because that question is bound up with the merits of Kyle’s claim.

Kyle sued the CO for violating his constitutional rights, including his First Amendment right to file grievances. The CO responded that Kyle had failed to exhaust available grievance procedures as required by the PLRA. “The parties agree that the exhaustion and First Amendment issues are intertwined, because both depend on whether [the CO] did in fact destroy Richards’s grievances and retaliate against him… [T]he usual practice of the federal courts in cases of intertwinement is to send common issues to the jury. Because nothing in the PLRA suggests Congress intended to depart from that practice here, we hold that parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim protected by the Seventh Amendment.”

“The usual federal court practice in cases of intertwinement is to send common issues to the jury, and nothing in the PLRA suggests Congress intended to depart from that practice,” the majority said.

Where a prisoner is unable to exhaust remedies (a fairly common occurrence, not so much due to inmate sloth as it is to unduly restrictive procedures and deadlines imposed by the prison administration), the decision suggests that a canny litigation strategy may be to frame the effective denial of the grievance procedure as a constitutional violation (where such a claim can colorably be made). Any complaint that gets the PLRA to a jury rather than to a summary dismissal increases the gravitas of the lawsuit and the odds that the defendants will seek a settlement.

The PLRA is notorious for having tilted the playing favor strongly in favor of the prison administration.  Any decision that evens up the procedural pitch, even a bit, is welcome.

Perttu v. Richards, Case No. 23-1324, 2025 U.S. LEXIS 2380 (June 18, 2025)

– Thomas L. Root

No Deference to Flawed BOP Time Credits Rule – Update for October 30, 2023

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BOP SMACKED BY CHEVRON BUT STANDS TOUGH ON DENYING FSA BENEFIT

chevron230508Writing in Forbes last week, Walter Pavlo flagged a First Step Act credit benefit that the Bureau of Prisons has been denying to prisoners except where courts order otherwise. With the Supreme Court primed this term to rein in the Chevron deference doctrine – the judicial rule that courts defer to federal agencies’ interpretation of the statutes they administer – the BOP’s denial of FSA credits until an inmate reaches his or her assigned institution is an excellent case of how even Chevron can ban some BOP overreaching.

The FSA provides that a prisoner “who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” according to a set schedule. Under 18 USC 3632(d)(4)(B), otherwise-eligible prisoners cannot earn FSA credits during official detention before the prisoner’s sentence commences under 18 USC 3585(a).” Section 3585(a) says a “term of imprisonment commences on the date the prisoner is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”

But the BOP puts its own gloss on the statute, directing in 28 CFR 523.42(a) that “an eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

Any prisoner who has spent weeks or months between sentencing and final delivery to his or her designated institution can see that the BOP rule can create months of FSA credit dead time.

Ash Patel filed a petition for habeas corpus seeking FSA credit from his sentencing in September 2020 until he finally reached his designated institution on the other side of the country in April 2023. The BOP argued his FSA credits only started in April 2023, stripping him of 2.5 years of earnings. The agency cited 28 CFR 523.42(a) and urged the Court to apply Chevron deference, accepting its interpretation of when FSA credits start.

ambiguity161130The Court didn’t buy it. “Because Section 523.42(a) sets a timeline that conflicts with an unambiguous statute, it is not entitled to Chevron deference and the Court must give effect to the statutory text,” the judge wrote, citing Huihui v. Derr where the court held that while the prisoner was not eligible “before her sentence commenced, [] under 18 USC 3632(d)(4)(B)(ii), her ineligibility ended the moment she was sentenced… because FDC had already received her in custody.”

Pavlo cites Yufenyuy v. Warden FCI Berlin, perhaps the first decision to refuse to give Chevron deference to the BOP’s incorrect 28 CFR 523.42(a) rule. He rightly complains that perhaps thousands of other prisoners ‘who were sentenced and have months of time in transit getting to their final designated facility… are currently not getting those credits.” Pavlo notes that “prisoners who have a disagreement with the BOP have access to an administrative remedy process to air their grievances. However, those in the chain of command at the BOP who would review those grievances have no authority within the BOP to award these credits as it deviates from the BOP’s own Program Statement, which remains unchanged… Currently, the only solution is for every prisoner who has this situation is to exhaust the administrative remedy process, something that could take 6-9 months, and go to court to find a judge who agrees with [Yufenyuy], which could take months more.”

Exhaustion170327Not necessarily. The Huihui v. Derr Court excused exhaustion because “further pursuit would be a futile gesture because… there is an error in [the BOPs] understanding of when Petitioner can begin earning credits under 18 USC 3632(d)(4)(B) and 3632(a)… The Court thus concludes that any further administrative review would not preclude the need for judicial review. The Court thus excuses Petitioner’s failure to exhaust her administrative remedies.”

Forbes, Bureau of Prisons’ Dilemma On First Step Act Credits (October 27, 2023)

Patel v. Barron, Case No C23-937, 2023 U.S. Dist. LEXIS 174601 (WD Wash., September 28, 2023)

Huihui v. Derr, Case No 22-00541, 2023 U.S. Dist. LEXIS 106532 (D. Hawaii, June 20, 2023)

Yufenyuy v. Warden FCI Berlin, No. 22-CV-443, 2023 U.S. Dist. LEXIS 40186 (D.NH, March7, 2023)

– Thomas L. Root

7th Circuit Says Exhaustion of Remedies No ‘Scavenger Hunt’ – Update for February 4, 2022

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SCAVENGER HUNT FOR BP-9 UNNECESSARY

Eric Gooch filed a Bivens action in December 2019 against two correctional officers, claiming an 8th Amendment violation after they allegedly convinced another inmate to attack him. Under the Prison Litigation Reform Act, an inmate has to exhaust all available administrative remedies before he or she can sue.

snitch160802Eric did not, claiming that when he asked his counselor for a remedy form, the counselor refused to give him one, saying “I’m not giving you a form to file on that and you better watch out snitching on staff.”

The District Court dismissed his lawsuit, holding that Eric could have mailed his request “directly to the Regional Office, as the regulations and program statement provide.” Thus, the administrative remedy process was still “available” to Eric, so he had to exhaust all of its steps before filing a complaint in federal court.

Last week, the 7th Circuit reversed the dismissal. The Circuit held that exhaustion of administrative remedies is not required when the prison officials responsible for providing grievance forms refuse to give a prisoner the forms necessary to file an administrative grievance. Evidence of the appropriate official’s refusal to give a prisoner an available form is sufficient to permit a finding that the administrative remedies are not available.

scavenger220204The 7th said that under the plain language of the BOP’s administrative-remedy process rules, in order to submit a grievance to the Warden or Regional Director, a prisoner must use the appropriate BP-9 form. The BOP argued that Eric had time remaining to file a timely BP-9, so he should have tried harder to procure the BP-9 form — for instance, by asking other staff — before “rushing to court.” The Circuit rejected this as “unworkable,” holding that the PLRA does require “prisoners to go on scavenger hunts just to take the first step toward filing a grievance.”

Gooch v. Young, Case No. 21-1702, 2022 U.S. App. LEXIS 2042 (7th Cir., January 24, 2022)

– Thomas L. Root

Twenty-Five Years of Mischief Is Enough – Update for May 4, 2021

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HAPPY ANNIVERSARY TO TWO LOUSY LAWS

A quarter-century ago, Congress enacted a pair of laws that severely restricted the ability of prisoners to raise constitutional challenges against conditions of confinement, as well as challenge unjust and wrongful convictions. Over the last 25 years, this pair of laws — the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) — “have all but closed the federal courthouse doors to life and death lawsuits,” the ACLU complained last week in commemorating dual anniversaries of enactment of the laws.

aedpa210504

First, the AEDPA: “This pernicious, dizzyingly complicated law created a minefield of procedural barriers and deadlines that severely limited state prisoner use of federal habeas corpus,” the ACLU said last week. What’s more, it placed severe restrictions on the filing of 28 USC § 2255 habeas corpus motions, especially successive ones. The AEDPA, according to the Washington Post, was “the first time in centuries that the legislature of a western democracy had put restrictions on the “Great Writ.”

innocent210504The AEDPA took away a lot of the authority of federal judges to do their jobs. “The law creates a maze of Kafkaesque procedures that create the danger of an incarcerated person’s petition being thrown out at every turn for a failure to follow even the most minute rule,” the ACLU reported, “regardless of whether their claims have merit.”

While having its most restrictive impact on state prisoners, the AEDPA set severe time limits on the filing of 2255 motions, stripped from judges the ability to choose when a successive 2255 was appropriate instead of abusive, and seriously limited a petitioner’s right to appellate review, unless he or she first obtained a certificate of appealability granting permission to appeal.

Congress passed the Prison Litigation Reform Act in 1996, a piece of litigation that – contrary to most laws Washington enacts – has worked all too well. The goal of the PLRA was to reduce the number of lawsuits brought by prisoners, and by that metric, it has been a phenomenal success. But now, many commentators are calling for its demise.

nothing170125Passed as the nation’s prison population was exploding thanks to the war on drugs, the PLRA was supposed to weed out the sort of frivolous prisoner litigation Congress perceived as bombarding the federal courts. As The Appeal described it last week, testimony in hearings on the PLRA “focused on sensationalized and largely mythical claims about ‘a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party, and, yes, being served chunky peanut butter instead of creamy variety’. By dismissing real cries for help as frivolous, disingenuous, and opportunist, lawmakers built the PLRA on dehumanizing and inaccurate stereotypes of incarcerated men and women.”

In the 25 years since, it has become clear that the PLRA is reducing prisoner litigation — but not just by targeting frivolous claims. It cut the rate of civil rights lawsuits filed by prisoners by nearly half. “But if the goal was to somehow weed out ‘frivolous’ lawsuits in favor of meritorious claims, the Appeal argued, “then, presumably, there would have been at least some increase in the rate of successful civil rights lawsuits by incarcerated plaintiffs. Not so. Instead, the success rate of civil rights lawsuits for incarcerated plaintiffs steadily dropped after the enactment of the PLRA and despite a recent uptick is nearly identical to the success rate pre-PLRA.”

Among other provisions, the PLRA made exhaustion of remedies mandatory prior to suing. It permitted courts to throw out suits as frivolous prior to requiring an answer. And it required prisoners to pay filing fees by withholding installment payments from commissary accounts, even if the prisoner was indigent. Additionally, the PLRA makes it “hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies,” according to the Prison Policy Initiative.

nothingcoming181018Incarcerated people are still allowed to sue over unlawfully inflicted physical injury, but the PLRA restricts the remedies available in cases where people are alleging only mental or emotional harm. Some courts have interpreted this to mean that people cannot receive money damages for their prison/jail injuries unless they can show that they suffered extremely serious physical injury. Others have found that this provision applies even to Constitutional claims about free speech, religious freedom, discrimination, and due process.

As a Senator, Joe Biden tried to strip the AEDPA of its worst limitation, but President Clinton’s support for the bill doomed the effort. Now, the Post said last week, “lawmakers could consult with defense lawyers, legal scholars, federal judges and prosecutors, repeal AEDPA, and replace it with something more just and fair. The last 25 years have shown the Clinton administration should have listened to Biden in 1995. But, now, Biden’s own administration can lead an effort to fix the problems he predicted, and once tried to prevent.”

ACLU, The Unhappy 25th Birthday of Two Tough-on-Crime Era Laws That Have Deadly Consequences for Incarcerated People (April 27, 2021)

Washington Post, Opinion: Joe Biden fought this destructive law. 25 years later, he can help repeal it (April 27, 2021)

The Appeal, How The Prison Litigation Reform Act Has Failed For 25 Years (April 26, 2021)

Prison Policy Initiative, Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act (April 26, 2021)

– Thomas L. Root

First, Do Something Futile… And Do It Well – Update for February 19, 2021

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COMPLETENESS COUNTS IN COMPASSIONATE RELEASE REQUEST TO WARDEN

compassionate200928Cory Williams wanted to file for compassionate release based on what he alleged was misconduct by his trial judge. So he dutifully asked his warden to bring the motion, as required by the administrative exhaustion requirement of 18 USC § 3582(c)(1)(A)(i). The BOP refused, of course (as it always does), so Cory himself filed a compassionate release motion with the federal court that had originally sentenced him.

Early on in the COVID-19 pandemic, a number of federal courts adopted standing orders that all inmates filing their own compassionate release motions would have counsel appointed to assist them. Cory’s court was one of those. The court appointed counsel to represent Cory. As we all know, counsel knows best (probably true in this case, where a defendant was essentially asking a judge to acknowledge his own misconduct was so bad that a defendant should be freed from prison). Counsel wisely scrapped Cory’s “I-should-go-home,-Your-Honor,-because-you’re-a-bum” argument, and filed an amended compassionate release motion that sought Cory’s based solely on COVID-19.

The government argued Cory had not exhausted his remedies with the BOP, because he had not raised his susceptibility to COVID-19 to the warden as a reason for compassionate release. Last week, the 7th Circuit agreed with the government.

“We have not yet had occasion to consider whether, in order properly to exhaust, an inmate is required to present the same or similar ground for compassionate release in a request to the Bureau as in a motion to the court,” the Circuit ruled. “But now that the issue is squarely before us, we confirm that this is the rule — any contrary approach would undermine the purpose of exhaustion.”

negativezero210219“The purpose of exhaustion…” That’s like saying the purpose of taking your kid to see Santa Claus at the Mall is to be sure he brings her the right toys on Christmas morning. Between March and December 2020, the BOP only granted 11 out of 10,940 inmate requests (that’s 0.001005484%, for you math fans). Let’s round that to about one out of 1,000 requests.

The § 3582(c)(1)(A)(i) exhaustion requirement seems like so much Kabuki theater. No matter. A request to the warden is the price of admission, and that request should clearly state the grounds the inmate intend to use when he or she petitions the court without the BOP’s help, as invariably is the case.

United States v. Williams, Case No 20-2404, 2021 USApp LEXIS 3762 (7th Cir. Feb. 10, 2021)

– Thomas L. Root

BOP Compassionate Release Approval – Vegas Without Comp’d Drinks – Update for October 13, 2020

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THE DEFINITION OF FUTILITY

futile201012People seeking compassionate release know that 18 USC § 3582(c)(1)(A) requires that they exhaust administrative remedies first, that is, ask the warden of their facility to recommend that the BOP bring the motion on their behalf and then wait 30 days before filing.

Many prisoners have asked courts to waive the exhaustion requirement as being futile. Courts have uniformly refused, ruling – like the 6th Circuit did last June in United States v. Alam, that the exhaustion requirement “ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist. These are not interests we should lightly dismiss or re-prioritize.”

The courts’ confidence in the Bureau of Prisons would be laughable if the stakes were not so high. And a report last week from NBC and The Marshall Project underscores what attorneys, inmates, advocates and experts have long suspected: since March 1, wardens have denied or ignored over 98% of all compassionate release requests.

Of the 10,940 federal prisoners who applied for compassionate release in just the first two months of the pandemic, from March through May, wardens approved 1.4%, or 156. Some wardens, including those at Seagoville and Oakdale, did not respond to any request during those two months, while others deny every request presented to them. Of the 156 approved by wardens, only 11 were approved by the Central Office. Overall approval rate? One-tenth of one percent.

Here’s the breakdown: 84.8% of the requests were denied by wardens. Another 13.7% were not even answered.

Lose200615In other words, you have literally a one-in-a-thousand chance that the BOP will approve a compassionate release request. This is about the same as an inmate’s chance of dying from COVID-19 (0.09%). On the other hand, 16,000 people have received compassionate release (slightly more than 1% of the BOP population).

Notable pullouts from the data: At Elkton, an early COVID hot spot (with more than 900 cases and nine deaths), the warden denied 866 out of 867 requests for compassionate release. At FCI Terminal Island, 694 prisoners had tested positive by the end of May, the warden approved five of the 256 compassionate release requests filed between March and May.

A BOP spokesman told The Marshall Project that “we can share that the BOP has continued to process compassionate release requests as directed by the First Step Act and agency policy.”

United States v. Alam, 960 F.3d 831 (6th Cir. 2020)

NBC News/The Marshall Project, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied. (October 7, 2020)

Rochester, Minnesota, Post-Bulletin, Cases Continue in Federal Prison, Compassionate Release Hard to Get (Oct 9)

– Thomas L. Root

Compassionate Release Exhaustion Requirement Nonwaivable, Court Says – Update for June 12, 2020

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6TH CIRCUIT HOLDS THERE’S NO EXCUSING EXHAUSTION UNDER COMPASSIONATE RELEASE

notime160915The 6th Circuit ruled last week that 18 USC § 3582(c)(1)(A)’s requirement that an inmate first ask the warden to recommend compassionate release, and then either exhaust remedies or wait 30 day before going to court is a “mandatory claims-processing rule” that cannot be waived because of emergency.

Ever since the start of the COVID-19 pandemic in March, the volume of motions filed with federal courts seeking compassionate release has skyrocketed. The statute requires that a prisoner may file the motion with his or her sentencing court only “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier…” A large number of filers skipped that requirement, arguing to their courts that they should be allowed to skip the administrative exhaustion requirement, because the COVID-19 dangers make every second count.

timewaits200325To be sure, the exhaustion requirement makes no sense. First, the notion that anyone can navigate the BOP’s three-level administrative remedy process in under six months is fantasy. The agency not only has 20 to 40 days to respond at each level, but the rules entitle the BOP to automatic extensions of time. An inmate has fair winds and following seas if he or she can push an administrative remedy to conclusion in six months.

Second, the old compassionate release statute permitted only the BOP to file motions for compassionate release on behalf of inmates. Congress became so irked at the BOP’s chary use of its power that in the First Step Act, it granted inmates the right to file themselves. But in order to let the BOP salvage a shred of honor from its stripping the BOP of its sole authority to make such motions, Congress offered the BOP a fig leaf of what is essentially a right of first refusal.

But the odds that the BOP is any more likely to bring such motions now than at any time in the past are really long. That makes the requirement that an inmate make a request to the warden and then wait 30 days little more than a pointless ritual.

No matter. Congress wrote it the way it wrote it, and anyone who recalls those hectic days in December 2018 pushing First Step to fruition should not be surprised that the 149-page bill is somewhat less pellucid that the Declaration of Independence.

time161229Last week, the 6th Circuit held that the exhaustion requirement of the statute means what it says, and that court-made “equitable carveouts” to its terms – including the excuse that the request is an emergency – make no sense. “Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. For such prisoners, time usually will be of the essence. That would make nearly every prisoner eligible to invoke ‘irreparable harm’ and eligible to jump the line of applications — making the process less fair, not more fair.”

United States v. Alam, 2020 U.S. App. LEXIS 17321 (6th Cir, June 2, 2020)

– Thomas L. Root

3rd Circuit Frolics, Compassionate Release Suffers – Update for April 7, 2020

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3RD CIRCUIT GOES OFF THE RAILS ON ADMINISTRATIVE EXHAUSTION

Francis Raia, a small-time Hoboken politician who tried to buy a city council seat for $50 a vote, ended up with a conviction for fraud and a very short 90-day sentence (which the government has appealed). Even a few months seemed like a lifetime to Frank, and – given the coronavirus – it might just be. So he asked his district court for compassionate release.

corona200313The district court said it would grant the motion, except that the case had been appealed by the government so it had no jurisdiction. Raia’s lawyers, rather than appealing the District Court’s decision, instead refiled the § 3582 motion with the 3rd Circuit to grant compassionate release, a truly foolish approach. (Appeals courts are for appeals, but that is an issue for another day).

Last week, the 3rd refused to grant Frank’s motion for several reasons, any of which would have been good enough by itself. But just to show it could be as foolish as the lawyers appearing before it, the Circuit then laid down some dictum on an issue that had not been briefed. The three-judge panel essentially gutted well-established exceptions to the administrative exhaustion doctrine in the process.

Exhaustion means that an inmate has to complete the administrative review process before he or she goes to court. The compassionate-release statute, 18 USC § 3582(c)(1)(A), requires that an inmate first ask the warden to recommend compassionate release, and exhaust remedies if denied. If the warden does nothing, the inmate can file directly with the court after 30 days.

Exhaustion170327There are some well-established exceptions to exhaustion. If exhaustion would be futile, if there are exigent circumstances, if the agency has already made clear that it will deny the request: all of these have excused exhaustion requirements in cases. Frank apparently did not ask the BOP for its recommendation first, but the district court never addressed that lapse, and on appeal, neither party discussed the exhaustion requirement (or Frank’s failure to meet it) in the briefs.

But the 3rd weighed in nonetheless. After paying lip service to the risks of COVID-19 to federal prison inmates like Raia, the three-judge panel said

But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID19 Action Plan (Mar. 13, 2020, 3:09 PM). Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added — and critical — importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.

BOP’s action plan? How’s that working out? The BOP sends COs back to work after being exposed to an inmate with COVID-19 who later died, The BOP fudges the numbers. The BOP denies any problems with halfway houses. Strong arguments exist that the BOP’s approach to COVID-19 has been ham-handed.

coronadog200323That is hardly the only problem with the slapdash decision. The Circuit held that before defendants file a motion in court for compassionate release under § 3582(c)(1)(A), they “must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals. See § 3582(c)(1)(A).”

Yesterday, Raia’s attorneys filed a motion for clarification with the 3rd Circuit, asking that the court at least correct that holding to require defendants to exhaust remedies or wait 30 days, but not both. The government does not oppose the motion, which argues that

It is critically important that the Court’s opinion be clear on § 3582(c)(1)(A)’s requirements. As the Court recognized, COVID-19 poses serious risks within the federal prison system, particularly to high-risk inmates such as Mr. Raia. Now more than ever, individualized determinations of compassionate release must be made as expeditiously as the law permits. Any suggestion that defendants must both wait thirty days and exhaust administrative appeals will inevitably lead to confusion among the district courts and delays in adjudicating properly filed compassionate-release motions, potentially with life-or-death consequences.

Ohio State University law professor Doug Berman argued last Saturday in his Sentencing Law and Policy blog that the Circuit’s ruling “creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion. But the language and structure of this requirement makes it appear much more like what the Supreme Court calls ‘nonjurisdictional claim-processing rules’… With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions. In other words, if and when the ‘30-day lapsing/exhaustion’ language is properly understood by courts as a claim-processing rules, then courts can… decide that the requirement need not be meet given the equities of a particular case.”

timewaits200325Berman rightly notes that “sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing. As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) ‘releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19’.”

This is an awful decision, and what’s worse, an unnecessary one. The Court has already denied the appeal when it adds its “oh, by the way,” that the defendant had not exhausted administrative remedies (and does so in a misstatement of the statute that would earn a first-year law student a failing grade).

My belief that the Raia decision is an intellectual “drive-by shooting” of established administrative exhaustion waiver law is shared by others. In the New Jersey Law Journal, Christopher Adams, chairman of the criminal defense and regulatory practice group at Greenbaum, Rowe, Smith & Davis in Woodbridge, New Jersey, observed that prisoners may be able to sidestep § 3582(c)(1)’s 30-day requirement based on vulnerability to the coronavirus, because Raia fails to address a 1992 U.S. Supreme Court case, McCarthy v. Madigan, allowing prisoners to bypass administrative procedure based on equitable considerations. The 1992 case found exceptions to the 30-day requirement where such a waiting period would prejudice the subsequent court action, where the administrative process lacks authority to grant adequate relief, and where pursuing the administrative remedy would expose the petitioner to undue prejudice.

“I will continue to make these applications to district court. I would encourage people to try,” the NJLJ quoted Adams as saying. “Raia doesn’t close the door to compassionate relief applications, even when the administrative remedy is not observed. I admit, the circuit, in Raia, makes it much harder, but it doesn’t close the door completely.”

screwpooch200407I am glad Raia’s counsel – who screwed this pooch to begin with – at least sought clarification of the ruling. It would be far better to seek a rehearing pointing out to the court that it should withdraw the exhaustion portion of the opinion altogether.

United States v. Raia, 2020 U.S. App. LEXIS 10582 (3rd Cir. Apr 2, 2020)

Unopposed Motion to Amend Opinion, United States v. Raia (filed Apr 6, 2020)

Sentencing Law and Policy, Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A) (Apr 4)

New Jersey Law Journal, After 3rd Circuit Setback, Defense Lawyers Look for New Path for COVID-19 Compassionate Release (Apr. 6)

– Thomas L. Root

Too Exhausted to Exhaust? – Update for September 5, 2018

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PLRA EXHAUSTION REQUIREMENT EXCUSED IF INMATE UNABLE TO COMPLY

exhaustedThe Prison Litigation Reform Act was adopted in the 1990s to make it more procedurally complex for inmates to file civil actions. One provision of the PLRA requires a prisoner to exhaust all available administrative remedies before filing a federal lawsuit. Not meeting this exhaustion requirement usually gets an inmate civil action tossed out.

Rodolph Lanaghan is a very ill Wisconsin state prison inmate. Wisconsin prison regs require an inmate to file a grievance within 14 days of the occurrence giving rise to the complaint. Rodolph, who suffers from a severe degenerative muscle disease, filed a federal suit under 42 USC 1983, alleging state authorities were deliberately indifferent to his medical needs, and this violated his 8th Amendment rights.

The problem is that he did not file a state prison grievance first. After Rodolph was released from the hospital back into general population, a fellow inmate tried to sit with him in the day room to prepare a grievance on the prescribed form. But all the rec tables were occupied, and Rodolph needed a flat surface to write on. The day room study tables were available, but a corrections officer (CO) denied him use of a study table because prison regulations stated that those were reserved for studying only.

plra180906Unable to secure a table, Rodolph – who lacked any stamina because of the disease – went back to his cell with the help of the other inmate. Rodolph “spent the next week trapped inside his own body, believing he was going to die,” before being sent back to the hospital for two months.

He got out of the hospital in March, but by then he was months past the deadline for filing a grievance. Therefore, he did not bother to try. Instead, he filed his lawsuit against the prison a few months later, in July. When Rodolph learned that the PLRA required he file a grievance before suing in order to exhaust his remedies, as the legal jargon puts it, he immediately did so, but the grievance was rejected as untimely.

At a hearing on whether Rodolph’s lawsuit complied with the PLRA, the Wisconsin institutional complaint examiner testified that Rodolph’s physical condition would have been good cause to extend the time for filing until March, had Rodolph only asked for a waiver to do so. Nothing, however, but nothing supported a delay from March until July, which was months after Rodolph’s return from the hospital.

The district court held Rodolph had failed to exhaust his administrative remedies with the prison, and his lawsuit should be tossed for violating the PLRA. Last week, however, the 7th Circuit reversed.

A prisoner does not have to follow the PLRA exhaustion requirements when the grievance procedure is not available to him or her. The appeals court noted that the proper focus is not whether the prison officials engaged in any misconduct that kept Rodolph from filing, but instead whether Rodolph was not able to file the grievance within the time period through no fault of his own. The availability of a grievance procedure is not an “either‐or” proposition, the Court said. “Sometimes grievances are clearly available; sometimes they are not; and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain topics.” For that reason, the availability of a remedy is therefore a fact‐specific inquiry.

If the prison had a procedure under which grievance forms were provided to all inmates and they were required to fill them out without any assistance from others, the Court said, “that procedure might render the grievance remedy available for the majority of inmates, but the same procedure could render it unavailable for a subset of inmates such as those who are illiterate or blind, for whom either assistance or a form in braille would be necessary to allow them to file a grievance.”

plrachart180906Here, even though most inmates could have returned when a rec table was available, the Court said, and even though the COs were only following the rules in denying Rodolph a table, Rodolph’s particular circumstances (the disease) in conjunction with the CO’s decision made the prison grievance remedy unavailable to him.

What’s more, the Court said, Rodolph could not be held responsible for not filing after he got back from hospital months later. While nothing prevented him from filing the grievance immediately after he returned, a time when it might have been considered because his physical incapacity could have constituted good cause for the delay, nothing in the inmate handbook made him aware of such a procedure. The Court said that “a secret grievance procedure is no procedure at all, at least absent some evidence that the inmate was aware of that procedure.”

Lanaghan v. Koch, Case No. 17-1399 (7th Cir., Aug. 29, 2018)

– Thomas L. Root

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