Tag Archives: prison litigation reform act

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

7th Circuit Limits Court’s Dive Into Prisoner’s Pockets – Update for October 17, 2023

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HOW MUCH IS TOO MUCH FOR IFP?

The right of access to the courts is not forfeited by indigent people (including prisoners), a constitutional imperative for the past 75 years or so. The Prison Litigation Reform Act tried the limit that right by hobbling would-be litigants, due to what politicians perceived to be abuses of the federal courts by prisoners with grievances,

broke191011One provision requires prisoners to pay filing fees upfront unless they can prove poverty. If they are successful, prisoners may proceed in forma pauperis (IFP), but the courts extract the filing fees from their prison commissary accounts at a set rate.  An indigent who is not a prisoner is not subject to this limitation.

To gain IFP status, and thus to avoid prepaying a $405 U.S. District Court filing fee, prisoners must – among other things – file an affidavit including a printout of their inmate trust accounts (commissary account) showing how much they collected and spent for the past 6 months.

But how much can you have in the account before you’re too rich to be poor? Jordan Whitaker, an Illinois prisoner, found that out last week. He wanted to appeal the loss of a federal suit against his state prison. His IFP filing showed his commissary account had $575, more than enough to cover the $505 filing fee, on the day his notice of appeal was filed, so the district court denied his request and told him to pay.

Last week, a 7th Circuit judge reversed the district court, holding that “the district court did not adequately consider the balance the Prison Litigation Reform Act (PLRA) struck between the need to collect fees and a prisoner’s discretionary use of his funds.”

IFP status is an exception to the normal rule in federal court that parties must prepay fees when filing litigation. But if a prisoner shows he or she is indigent, the PLRA requires the court to collect 20% of the prisoner’s average monthly deposits or balances in the past six months (whichever is higher) and then collect the remainder of the fees in installments based on 20% of the prisoner’s monthly income until the full debt is paid.

pooremptypockets231017Here, the 7th said, “drawing the line for in forma pauperis eligibility at the mere ability to pay the full filing fee fails to respect Congress’s compromise. Worse, it can lead to odd results that Congress likely did not intend. For example, such a rule creates a sharp welfare cliff: a prisoner with a consistent monthly income of $504 that he spent in full would need to pay only $100.80, but a prisoner like Whitaker with a balance of a few dollars more would need to pay almost everything he has, regardless of his income… A court may well have discretion to find a prisoner ineligible short of the point where the outcome of the statutory formula exceeds the full fee, but Whitaker’s income and assets are nowhere close to that limit…Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.”

Whitaker v. Dempsey, Case No 23-1086, 2023 U.S. App. LEXIS 26851 (7th Cir. Oct 10, 2023)

– Thomas L. Root

11th Circuit Calls One for the Batter – Update for February 10, 2023

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SUMMARY JUDGMENT LOSS NOT A ‘STRIKE’

A prisoner unable to pay court fees may proceed in forma pauperis, that is, without prepaying fees. The Prison Litigation Reform Act, however, bars a prisoner from proceeding in forma pauperis if he or she has brought three or more actions or appeals in a federal court that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. This is called the “three-strikes rule.”

Jeremy Wells had filed three prior actions against state prison officials. One was dismissed for failing to state a claim.  A second was dismissed for failure to exhaust remedies, and the third was denied on summary judgment for the same reason. When he filed a new case, he was denied in forma pauperis status under the “three strikes rule.”

strikethree2302310Last week, the 11th Circuit allowed Jeremy to proceed in forma pauperis. “Summary judgment based on evidence outside the face of the complaint or on something other than the allegations in the complaint is not a dismissal for failure to state a claim,” the Circuit ruled. “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Summary judgment, on the other hand, asks whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Wells v. Brown, Case No 21-10550, 2023 U.S. App. LEXIS 2582 (11th Cir., February 1, 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

7th Circuit Gets Metaphysical (Inadvertently) – Update for August 23, 2019

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FRAUD OR FORGETFULNESS?

In classical Greek. the word “αλήθεια” (we American-speakers would say “aletheia”) means truth.  In Greek mythology, the waters of Lethe (“λήθη” for you purists) induced one into a state of forgetfulness. Literally, aletheia is defined as the opposite of the state of forgetfulness.

dontforget190823Heavy stuff, huh? Not for a number of district courts that require inmate filers of civil cases to list every case they have ever been involved in. The information is collected to determine inmate compliance with the “three strikes” rule of 28 USC § 1915(g), which prohibits a prisoner from bringing a civil case if he or she has had three prior civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted…” The rule was adopted as part of the Prison Litigation Reform Act in 1996, a measure intended to reduce the amount of prisoner litigation clogging federal courts.

In the district courts demanding the disclosure, a prisoner who fails to list all of his or her prior cases, or provides incorrect information when listing them) is subject to having the suit dismissed because of “fraud on the court.”

The problem is that over years, inmates can forget details, lose legal papers, and just plain overlook cases. Last week, the 7th Circuit told district courts that fraud is not necessarily the opposite of truth. Sometimes, as the Greeks observed, the opposite of truth may just be forgetfulness.

forgetfulness190823The Circuit said that district judges must decide whether a prisoner’s omissions are intentional and material before throwing out inmate lawsuits. “In the PLRA context as elsewhere, it is essential to distinguish between a negligent, reckless, or even willful act, on the one hand, and a fraudulent act on the other. A finding of fraud opens a litigant to additional and heightened penalties and thus requires a showing of fraudulent intent.”

Greyer v. Illinois Dept. of Corrections, Case No. 18-1459 (7th Cir. Aug. 13, 2019)

– 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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