Argued: December 6, 2018
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:17-cv-11181-Robert H.
Cleland, District Judge.
Deborah A. LaBelle, Ann Arbor, Michigan, for Appellants.
Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
Deborah A. LaBelle, Ann Arbor, Michigan, Michael L. Pitt,
Cary S. McGehee, PITT MCGEHEE PALMER RIVERS & GOLDEN PC,
Royal Oak, Michigan, for Appellants.
Heather S. Meingast, Mark E. Donnelly, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
Before: MOORE, GIBBONS, and COOK, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
Prison Litigation Reform Act ("PLRA") requires
inmates to exhaust available administrative remedies.
See 42 U.S.C. § 1997e(a). The Supreme Court has
explained that "the PLRA contains its own, textual
exception to mandatory exhaustion. Under § 1997e(a), the
exhaustion requirement hinges on the 'availab[ility]'
of administrative remedies: An inmate, that is, must exhaust
available remedies, but need not exhaust unavailable
ones." Ross v. Blake, 136 S.Ct. 1850, 1858
(2016). The question here is whether the administrative
remedies provided to inmates by the State of Michigan are
"available." In the case before us, they are not.
As the experiences of John Doe 8 and John Doe 10 show, the
Michigan Department of Corrections ("MDOC")
administrative process is, in practice, filled with
contradictions-so much so that we hold that it is
Doe 9's situation is slightly different. Doe 9 did not
file a grievance, but he claims that he should be excused
from doing so because he experienced retaliation after a
prior attempt to submit a grievance. Doe 9's allegations,
if true, would deter a person of ordinary firmness from
continuing with the grievance process. The district court
failed to address this issue on the merits, but it should
we REVERSE the judgment of the district
court and REMAND this case for further
proceedings consistent with this opinion.
Plaintiffs, John Does 8-10, are inmates in various Michigan
prison facilities. At one time, the Does were juveniles
housed with adult inmates, a policy that Michigan has since
abandoned. The Plaintiffs bring § 1983 claims that stem
from alleged sexual abuse by adult inmates, which occurred
when the policy of housing juveniles with adults was in
place. This is a putative class action, and the class seeks
monetary, injunctive, and declaratory relief. (The district
court, however, has not yet addressed class certification.)
The Defendants are former-Governor Rick Snyder and a host of
other state officials and prison wardens. Before turning to
the experiences of each John Doe, some procedural and legal
background is helpful.
8-10 are making a second appearance in federal court. In a
previous case, a separate set of plaintiffs filed a motion to
amend their complaint to add Does 8-10, which the district
court granted on March 11, 2016. The district court later
dismissed these Does on the ground that they failed to
exhaust administrative remedies. See Does 1-12 v. Mich.
Dep't of Corr., No. 13-14356, 2017 WL 993184 (E.D.
Mich. Mar. 14, 2017). At that time, Does 8-10 had not filed
any grievances. Id. at *4-5. Further, the district
court noted that Doe 9 cited no record evidence to support
the argument that Doe 9 should be excused from the exhaustion
requirement because of potential retaliation. Id. at
*5. The district court dismissed Does 8-10 without prejudice.
Id. at *7; see also Snider v. Melindez, 199
F.3d 108, 111-12 (2nd Cir. 1999) ("Failure to exhaust
administrative remedies is often a temporary, curable,
procedural flaw. . . . [A] prisoner who brings suit without
having exhausted [his] remedies can cure the defect simply by
exhausting them and then reinstituting his suit (in the event
the administrative claim fails to afford him the desired
The Prison Rape Elimination Act & MDOC's PREA
April 27, 2016, MDOC adopted a grievance process pursuant to
the Prison Rape Elimination Act ("PREA").
Approximately one month later, Doe 8 and 10 filed grievances,
which MDOC channeled through the PREA process. See
infra Section I.C. Notably, these events occurred after
Does 8-10 were added to the prior litigation but before the
district court dismissed them from that case-but neither PREA
issues nor Doe 8's and Doe 10's grievances were
before the district court during that prior litigation. This
case is the first instance in which these points will be
enacted PREA with the purpose of implementing standards and
policies to prevent prison rape and to "protect the
Eighth Amendment rights of Federal, State, and local
prisoners." 34 U.S.C. § 30302 (formerly 42 U.S.C.
§ 15602). Congress found that juvenile "offenders
are at increased risk of sexual victimization" and
"are 5 times more likely to be sexually assaulted in
adult rather than juvenile facilities-often within the first
48 hours of incarceration." Id. at §
30301(4); see also id. at § 30301(6)
("Prison rape often goes unreported, and inmate victims
often receive inadequate treatment for the severe physical
and psychological effects of sexual assault-if they receive
treatment at all.").
generally left intact the PLRA's exhaustion requirement,
42 U.S.C. § 1997e(a), but regulations promulgated
pursuant to PREA modified one aspect of exhaustion. On June
20, 2012, the Department of Justice issued a final rule
mandating that an "agency shall not impose a time limit
on when an inmate may submit a grievance regarding an
allegation of sexual abuse." 28 C.F.R. §
115.52(b)(1); National Standards to Prevent, Detect, and
Respond to Prison Rape, 77 Fed. Reg. 37106-01 (June 20, 2012)
(to be codified at 28 C.F.R. pt. 115); see also 28
C.F.R. § 115.5 (defining "Agency" as "the
unit of a State, local, corporate, or nonprofit authority, or
of the Department of Justice, with direct responsibility for
the operation of any facility that confines inmates . . .
."). As to time limits that apply to inmate
lawsuits, however, § 115.52(b)(4) of the
regulations provide: "Nothing in this section shall
restrict the agency's ability to defend against an inmate
lawsuit on the ground that the applicable statute of
limitations has expired." See also 77 Fed. Reg.
37106-01 at 37159 ("Importantly, one key time limit will
still apply . . . . The statute of limitations provides a
backstop against the filing of stale claims . . . .").
By its own terms, the regulation went into effect on August
20, 2012. 28 C.F.R. § 115.52; 77 Fed. Reg. 37106-01 at
37106. Thus, an inmate's failure to exhaust can
no longer result from an untimely grievance if that grievance
involved an allegation of sexual abuse.
MDOC's PREA Grievance Process
April 27, 2016, Michigan instituted a two-step PREA grievance
process for sexual-abuse claims. At Step I, an inmate must
submit a grievance form to the PREA coordinator or inspector
at the facility at which the inmate is housed. R. 27-2 (MDOC
PREA Grievance Process) (Page ID #334). All PREA grievances
are also referred to an "Internal Affairs Division"
for investigation. Id. (Page ID #335). MDOC requires
the PREA coordinator or inspector to "ensure a written
response is provided to the prisoner within 60 calendar days
of receipt of the Step I PREA grievance unless an extension
[of up to seventy days] has been approved by the Internal
Affairs Division in order to conduct an appropriate
investigation." Id. But if an extension is
approved, an inmate must "be informed in writing . . .
and provided a date by which a decision will be made."
Id.; see also 28 C.F.R. § 115.52(d)(3)
("The agency may claim an extension of time to respond,
of up to 70 days, if the normal time period for response is
insufficient to make an appropriate decision. The agency
shall notify the inmate in writing of any such extension and
provide a date by which a decision will be made.").
an inmate "may only file a Step II administrative appeal
to the PREA Administrator if s/he is dissatisfied with the
response received at Step I or if s/he did not receive a
timely response at Step I." R. 27-2 (MDOC PREA Grievance
Process) (Page ID #335). To appeal to Step II:
[T]he prisoner must request a [Step II form] from the
facility PREA coordinator or inspector and send the completed
form to the PREA Administrator within 10 calendar days after
receiving the initial response. If no response was received,
the prisoner shall submit the appeal within 10 calendar days
after the date the response was due, including any extension.
Id. Accordingly, whether or not the coordinator or
inspector complies with MDOC's sixty-day response
requirement, an inmate must file a Step II appeal.
Step II, we further observe that, at oral argument, counsel
for the State represented that "the only reason a
prisoner would go to Step II on the PREA grievance is that if
we did not investigate." Oral Argument at 21:51-22:00;
see also id. at 22:23-29 ("The only time you
[i.e., an inmate] would ask for a Step II response is if you
were not being investigated"). First, state
counsel's description does not appear anywhere in
MDOC's regulations. See R. 27-2 (MDOC PREA
Grievance Process). Second, we also observe that counsel for
the State admitted that Doe 8's and Doe 10's
grievances were being investigated. See
Oral Argument at 21:19-23, 22:40-52. This fact, of course,
implies that these Does would not need to go to Step II (at
least according to state counsel's statements).
under the grievance process, the PREA Administrator must
provide a "final agency determination on the merits . .
. within 90 calendar days from the original filing of the
grievance. Computation of the 90 days does not include the 10
days allowed for the prisoner to file an administrative
appeal." R. 27-2 (MDOC PREA Grievance Process) (Page ID
#335). MDOC's regulations state that a ...