Exhausting Administrative Remedy, Federal Civil Rights

It should come as no surprise that just as a prisoner must exhaust administrative remedies to file a state-court action against prison officials or other governmental actors or entities, the prisoner must also do so to file a federal civil rights action.

The exhaustion requirement applies to all § 1983 lawsuits, whether they involve general circumstances of prison life or particular episodes of abuse. Porter v. Nussle (2002) 534 U.S. 516, 525-528, 122 S. Ct. 983; 152 L. Ed. 2d 12.  A person must exhaust administrative remedies even if they are seeking money damages and money damages are not available through the prison grievance system. Booth v. Churner (2001) 532 U.S. 731, 733-734, 121 S. Ct. 1819; 149 L.Ed.2d 958.  The exhaustion requirement also applies even if the person is not bringing a constitutional claim under § 1983, and is raising claims under a federal statute like the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) or the federal Rehabilitation Act (29 U.S.C. § 701(b)(1)(F)). O’Guinn v. Lovelock Corr. Center (9th Cir. 2007) 502 F. 3d 1056, 1060-1061.

In considering such a federal action, one would be prudent to understand that the Prison Litigation Reform Act of 1995 (PLRA) (42 U.S.C. § 1997e), which took effect April 26, 1996, imposed significant limits on § 1983 suits.  The PLRA requires a person in prison to “exhaust” all “available” administrative remedies before filing a federal civil rights action. 42 U.S.C. § 1997e(a).  The exhaustion requirement includes people who are housed in privately-operated prisons. Roles v. Maddox (9th Cir. 2006) 439 F. 3d 1016, 1017.

This means that a person must file (or at least attempt to file) a CDCR Form 602 or other type of administrative appeal through the Third (Director’s) Level before filing a federal civil rights complaint.

However, this rule only applies to people in prison.  People who are civilly committed as Sexually Violent Predators under Welfare & Institutions Code §§ 6600-6609.3 are not “prisoners” within the meaning of the PLRA and do not have to exhaust administrative remedies before filing federal civil rights suits. Page v. Torrey (9th Cir. 2000) 201 F. 3d 1136, 1139.

A person who is released from prison prior to filing a civil rights complaint need not exhaust administrative remedies. Greig v. Goord (2d Cir. 1999) 169 F. 3d 165, 166; Talamantes v. Leyva (9th Cir. 2009) 575 F. 3d 1021, 1024. See also Jackson v. Fong (9th Cir. 2017) 870 F. 3d 929 [PLRA exhaustion requirement did not apply to person who filed lawsuit while in prison without exhausting administrative remedies, but was released from prison prior to filing an amended complaint].

Exhaustion of administrative remedies is not a pleading requirement in federal civil rights cases. This means that a person is not required to state in the initial complaint that they have exhausted administrative remedies. Rather, absence of exhaustion is an affirmative defense, which the government has the burden of raising and proving. Jones v. Bock (2007) 549 U.S. 199, 211, 127 S. Ct. 910; 166 L. Ed.2d 798.  Nonetheless, it is good practice for a person to avoid disputes by explaining in the complaint how he or she has exhausted administrative remedies.

Sometimes people file “mixed complaints” that contain both exhausted and unexhausted claims. For example, a § 1983 complaint might involve a claim about a gang validation that has been exhausted plus unexhausted claims about safety concerns and denial of access to the courts. A court should dismiss the unexhausted claims and allow the person to proceed with the exhausted claims. Jones, supra, at 219. 

If the exhausted and unexhausted claims are closely related or “intertwined,” the entire complaint can be dismissed and the person should be allowed to amend the complaint to include only exhausted claims. Lira v. Herrera (9th Cir. 2005) 427 F. 3d 1164, 1175.  If the person files an amended complaint, any additional claims need not have been exhausted before the original complaint was filed, but must have been exhausted before the amended complaint was filed. Rhodes v. Robinson (9th Cir. 2010) 621 F. 3d 1002, 1006-1007; Cano v. Taylor (9th Cir. 2014) 739 F. 3d 1214, 1220.

For federal civil rights suits, there is no requirement (as there is with an action brought under the California Tort Claims Act) that a government claim be filed and rejected by the Department of General Services, Office of Risk and Insurance Management before a lawsuit seeking money damages can be filed. Williams v. Horvath (1976) 16 Cal. 3d 834, 129 Cal. Rptr. 453; Plasencia v. California (C.D. Cal. 1998) 29 F. Supp. 2d 1145, 1148; Barry v. Ratelle (S.D. Cal. 1997) 985 F. Supp. 1235, 1238.  However, where money damages are sought, a person should still file a government claim form to protect the right to sue under state tort law.  

There is no requirement (as there is with federal habeas corpus) that a person first present their claims to the state courts. Ellis v. Dyson (1975) 421 U.S. 426, 432-433, 95 S. Ct. 1691; 44 L.Ed.2d 274.  The exception is a challenge to the validity or length of a sentence, including loss of credits due to disciplinary hearing, which must first be raised in the state courts and then in a federal habeas petition. 

Indeed, a person who challenges prison conditions via a state habeas corpus action, and loses following a reasoned denial on the merits by the state courts, can be barred from bringing a § 1983 lawsuit concerning the same wrongful act or decision. Allen v. McCurry (1980) 449 U.S. 90, 102-103, 101 S. Ct. 411; 66 L. Ed. 2d 308; Furnace v. Giurbino (9th Cir. 2016) 838 F. 3d 1019; Gonzales v. California Dept. of Corrections (9th Cir. 2014) 739 F. 3d 1226, 1231; Silverton v. Dept. of Treasury (9th Cir. 1981) 644 F. 2d 1341, 1345-1347; Sperl v. Deukmejian (9th Cir. 1981) 642 F. 2d 1154, 1155; Harris v. Jacobs (9th Cir. 1980) 621 F. 2d 341, 343-344. 

This bar should not apply, however, if the challenge to the constitutionality of the underlying state statute or rule governing the state courts’ decision. Skinner v. Switzer (2011) 562 U.S. 521, 533-534, 131 S. Ct. 1289; 179 L. Ed. 2d 233; compare with Cooper v. Ramos (9th Cir. 2012) 704 F. 3d 772, 780-781 (federal court will not hear § 1983 claim that is actually an attack on state court’s application of the state statute).

While this article appears on our website, it would be misleading to attribute it entirely to Greg Hill & Associates.  Instead, we ask that credit be given to The Prison Law Office in Folsom, CA, whose treatise, California Prison and Parole Law Handbook, is the source of much of the information in this article.