       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2       Thomas v. Woolum, et al.                        No. 01-3227
   ELECTRONIC CITATION: 2003 FED App. 0252P (6th Cir.)
               File Name: 03a0252p.06                     Before: MOORE and GILMAN, Circuit Judges; ROSEN,
                                                                           District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
              FOR THE SIXTH CIRCUIT                                                  COUNSEL
                _________________
                                                         ARGUED: Alphonse A. Gerhardstein, LAUFMAN &
DOUGLA S THOMAS,                  X                      GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Todd R.
                                   -                     Marti, OFFICE OF THE ATTORNEY GENERAL,
          Plaintiff-Appellant,                           CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
                                   -
                                   -  No. 01-3227        for Appellee. ON BRIEF: Alphonse A. Gerhardstein, Paul
           v.                      -                     M. Laufman, LAUFMAN & GERHARDSTEIN, Cincinnati,
                                    >                    Ohio, for Appellant. Todd R. Marti, OFFICE OF THE
                                   ,                     ATTORNEY GENERAL, CORRECTIONS LITIGATION
SHAWN WOOLUM,                      -
                   Defendant, -                          SECTION, Columbus, Ohio, for Appellee.
                                   -                       MOORE, J., delivered the opinion of the court. GILMAN,
RICHARD KEPLER;                    -                     J. (pp. 25-27), delivered a separate concurring opinion.
CHARLOTTE STARCHER;                -                     ROSEN, D. J. (pp. 28-66), delivered a separate opinion
                                   -                     dissenting in part and concurring in the judgment.
BILLIE WADDELL, SR.,
                                   -
        Defendants-Appellees. -                                                 _________________
                                   -
                                   -                                                OPINION
                                   -                                            _________________
                                  N
                                                           KAREN NELSON MOORE, Circuit Judge. Congress’s
      Appeal from the United States District Court       passage of the Prison Litigation Reform Act (“PLRA”) was
     for the Southern District of Ohio at Columbus.      an attempt to curb rampant prison litigation in the federal
   No. 99-01120—James L. Graham, District Judge.         courts, but its enactment did not erode the role of the federal
                                                         courts as vindicators of federal rights. The PLRA explicitly
                Argued: August 6, 2002                   requires an inmate seeking to challenge prison conditions in
                                                         federal court to exhaust any available administrative
           Decided and Filed: July 28, 2003              remedies, but the statute’s text does not condition access to
                                                         the federal courts on satisfying the procedures and timelines

                                                             *
                                                              The Honorable Gerald E. Rosen, United States District Judge for the
                                                         Eastern District of Michigan, sitting by designation.

                           1
No. 01-3227                   Thomas v. Woolum, et al.        3    4      Thomas v. Woolum, et al.                  No. 01-3227

of prison administrators. Thus, this case turns not on whether     broken foot, facial lacerations, and massive swelling. Thomas
exhaustion is required, the answer to which is well settled, but   alleges that Officers Richard Kepler, Charlotte Starcher, and
on what exhaustion requires. We answer that question in            Billie Waddell, Sr. observed the beating, but they failed to
light of Congress’s purpose in passing the PLRA and                intervene. That was on November 5, 1997.
Supreme Court precedent regarding the exhaustion doctrine’s
oft-stated purpose: to give prison officials the first                Various investigations followed. Officers Woolum, Kepler,
opportunity to address inmate complaints according to their        and Waddell, along with the supervising officer who had
rules and procedures without letting those timetables dictate      suggested Thomas go to segregation and the nurse who
the outcomes of § 1983 actions. Accordingly, we hold that so       treated Thomas’s injuries, filed “incident reports,” as prison
long as an inmate presents his or her grievance to prison          regulations require when an employee struggles with an
officials and appeals through the available procedures, the        inmate or observes such a struggle. Ohio Admin. Code
inmate has exhausted his or her administrative remedies, and       § 5120-9-02(A)-(B) (1997). Thomas also filed a voluntary
a prison’s decision not to address the grievance because it was    statement the day after the incident, in which he described
untimely under prison rules shall not bar the federal suit. We     what had happened and noted, “At some point when I was
also hold, however, that when a grievance does not give            being beaten while wearing handcuffs I seen officers looking
prison officials notice of the nature of the inmate’s complaint,   but the only on[e] I knew was Bill[ie] Waddell.” J.A. at 153.
the inmate has not met the PLRA’s requirements. We thus
AFFIRM the judgment of the district court.                           In accord with regulations, prison officials then formed a
                                                                   Use of Force Committee to investigate the incident. Having
                    I. BACKGROUND                                  heard additional statements, including another statement from
                                                                   Thomas describing Woolum’s actions, the Use of Force
   When inmate Douglas Thomas told a supervising officer at        Committee issued a report concluding that Woolum had used
the North Central Correctional Institution (“NCCI”) that he        an inappropriate amount of force; after disciplinary
felt stressed out and needed “to lay it down for a few days,”      proceedings some time later, Woolum was fired. Under the
the officer instructed Corrections Officer Shawn Woolum to         administrative code, however, the inmate has no right to view
take Thomas down to the segregation unit. J.A. at 84               the report or the evidence used to create it.
(Springer Incident Rep.). Woolum, with whom Thomas had
exchanged angry words earlier that day, took the opportunity          In addition to the prison’s internal administrative inquiry,
to retaliate. While walking Thomas down to segregation,            Thomas invoked the formal grievance procedure. After being
Woolum instructed another inmate who was present to leave          transferred to the Allen Correctional Institution (“ACI”), on
and began to pummel the handcuffed Thomas. Woolum                  May 1, 1998, Thomas requested a grievance form in order to
struck Thomas from behind, slammed him into a steel door,          report the November 5 incident. On or about May 4, 1998,
and banged his face against the steel door and cement walls.       Thomas filed a Notification of Grievance with NCCI’s
Upon their arrival at the holding cell, Woolum slammed             institutional inspector. The Notification of Grievance form
Thomas into a steel doorframe, picked him up, and slammed          requires the prisoner to state “[t]he nature of the Grievance”
his face and head again into a cement wall. Woolum then            in specific terms. Thomas stated, in part, as follows:
stomped on Thomas’s foot. Thomas was in handcuffs during
the relevant time and did not resist. As a result of Woolum’s          [O]n Nov. 5th while I was at NCCI I was assaulted by
actions, Thomas suffered a broken clavicle, broken ribs, a             [Corrections Officer] Woolum while I was in handcuffs
No. 01-3227                   Thomas v. Woolum, et al.         5   6    Thomas v. Woolum, et al.                    No. 01-3227

  and I had several bones broken and have since been               statements that Thomas had no right to access — indicated
  transferred to A.C.I. administratively. Also as you know         that other officers might have observed Woolum’s actions and
  the state troopers & the FBI have conducted                      not intervened. Thomas learned through these documents, for
  investigations. . . . The Prison[] Litigation Reform Act &       example, that Officer Kepler “heard a loud noise coming from
  Title 42 of the United States Code require[] that a              the sallyport” and “exited the R.I.B. office to investigate,”
  prisoner must exhaust state remedies prior to litigation.        J.A. at 88; that Officer Waddell “walked into the hall [when]
  Therefore I ask that [Corrections Officer] Woolum be             Thomas was being put in a holding cell,” J.A. at 89, which
  removed and released from his employment with the                meant that, according to the Use of Force Committee’s
  Department of Corrections and that I am awarded 5                conclusions, Waddell might have watched Thomas being
  million dollars.                                                 pushed in a way that caused his head to strike the wall; and
                                                                   that Officer Starcher admitted having seen Thomas in the
J.A. at 33. The institutional inspector denied relief,             holding cell. From these newly available statements, Thomas
apparently because the grievance was not filed within the          appears to have concluded that these three officers may have
thirty-day period required by Department of Rehabilitation         witnessed Woolum’s assault.
and Correction (“Department”) policy.
                                                                     The state court action against Woolum and the John Does
   Thomas pursued his grievance. Following the initial             and Jane Does was then dismissed without prejudice on
denial, Thomas appealed to the Chief Inspector. Thomas             October 20, 1999, and Thomas filed the original complaint in
argued that the ACI law library had been provided copies of        U.S. District Court on October 22, 1999. This time, Thomas
Department policy manuals only in the last thirty to forty-five    sued not John Does and Jane Does, but armed with the
days, that the thirty-day time limit was a recent change in        information obtained in state court discovery, instead sued
policy, and that prisoners had not been notified of the change     Woolum, Kepler, Starcher, and Waddell. After briefing, the
in policy. On October 30, 1998, the Chief Inspector denied         district court ruled that Thomas had not exhausted his
Thomas relief, determining that the grievance was filed too        remedies with respect to Kepler, Starcher, and Waddell.
late and that information regarding the Department’s new           Thomas’s grievance form, the District Court reasoned, was
time-limit policy was available in the law library.                “against defendant Woolum,” not the other defendants, J.A.
Accordingly, the decision of the Chief Inspector stated, “This     at 114, so although the court eventually awarded Thomas
Office will take no further action in regard to your complaint     $70,000 on his claim against Woolum, it dismissed his claims
at this time.” J.A. at 35.                                         against Kepler, Starcher, and Waddell for failure to exhaust.
   Thomas filed a complaint in state court on November 5,            Thomas appealed the dismissal of his claims against the
1998, against Woolum and John Does and Jane Does,                  other defendants. The defendants now offer two ways in
alleging that Woolum applied excessive force and that the          which Thomas failed to exhaust his remedies against Kepler,
John Does and Jane Does failed to protect Thomas and               Starcher, and Waddell: (1) that we may not look at Thomas’s
prevent the beating. Thomas claims that during discovery for       state prison grievance at all, and (2) that his grievance was
the state-court action, he learned that Kepler, Starcher, and      insufficient to exhaust his claims. First, the defendants argue
Waddell were present during the beating and failed to protect      that Thomas failed to exhaust his administrative remedies
him. Indeed, statements that officers had filed with their         because he did not file his grievance regarding the
incident reports and the Use of Force investigation —              November 5, 1997 beating until May of 1998, after the thirty-
No. 01-3227                   Thomas v. Woolum, et al.        7    8     Thomas v. Woolum, et al.                     No. 01-3227

day period in which the Department will accept grievances          prisoner meets this requirement, a federal claim will not be
had expired. Second, they argue that his grievance was not         barred by the plaintiff’s failure to comply with a state prison’s
“against” them, but against Woolum alone, and that he could        internal procedural requirements.
not bring a suit against them. We review de novo any legal
determinations made in dismissing a complaint for lack of          A. Exhaustion and the PLRA
subject matter jurisdiction, including a determination that the
plaintiff did not exhaust administrative remedies, and we             By requiring prisoners who challenge the conditions of
review any factual findings for clear error. See Cathedral         their confinement to exhaust first their state administrative
Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 358     remedies, the PLRA grants state prison systems the initial
(6th Cir. 2000). We begin with the defendants’ first               opportunity to address their internal problems. Whereas parts
argument, for before we may determine whether Thomas’s             of the PLRA aim to ease the burden that meritless prisoner
grievance was sufficient, it is necessary for us to determine      lawsuits impose on state law-enforcement officials and the
whether we may look at his grievance at all.                       federal docket, see, e.g., 42 U.S.C. § 1997e(c)(1) (permitting
                                                                   court to dismiss sua sponte prisoner suits that are obviously
  II. COMPLIANCE WITH STATE PROCEDURAL                             frivolous); id. § 1997e(f) (authorizing pretrial hearings via
              REQUIREMENTS                                         telephone or videoconference rather than in-person
                                                                   appearance of the prisoner); id. § 1997e(g)(1) (permitting
   The Prison Litigation Reform Act prohibits inmates from         defendant to waive the right to reply to prisoner actions),
challenging prison conditions in federal courts until they have    nothing suggests that a goal of the act, and specifically, of the
exhausted their available administrative remedies. 42 U.S.C.       exhaustion requirement, was to defeat valid constitutional
§ 1997e(a). There is no doubt that under the PLRA,                 claims. Rather, the exhaustion requirement simply recognizes
exhaustion by prisoners is mandatory. See Booth v. Churner,        that unless a prisoner first presents his or her grievance to the
532 U.S. 731, 739 (2001); see also Page v. Torrey, 201 F.3d        state prison system, what will often be the most efficient
1136, 1139 (9th Cir. 1999) (recognizing that exhaustion            mechanism to remedy a violation of federal law will be lost.
requirement applies only to those who are “currently               See Porter v. Nussle, 534 U.S. 516, 525 (2002) (“Congress
detained,” not former prisoners, and noting agreement of the       afforded corrections officials time and opportunity to address
Second, Seventh, and Eighth Circuits). The exhaustion              complaints internally before allowing the initiation of a
requirement ensures that state prison systems will have an         federal case.”). The exhaustion requirement is therefore a
opportunity to handle prison grievances internally before          benefit accorded to state prisons, an opportunity to satisfy
recourse to the federal courts becomes available. But              those inmate grievances the state wishes to handle internally.
exhaustion is not the same as procedural default, and in           See Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (“Since
similar state administrative contexts, the Supreme Court has       these internal problems of state prisons involve issues so
held that state timelines cannot foreclose access to the federal   peculiarly within state authority and expertise, the States have
courts when a petitioner has exhausted his or her state            an important interest in not being bypassed in the correction
administrative remedies by bringing a grievance to the state       of those problems.”). It is “an accommodation of our federal
and pursuing that grievance through to the administrative          system designed to give the State an initial opportunity to
agency’s final ruling. That is, the exhaustion requirement is      pass upon and correct alleged violations of its prisoners’
a “termination” requirement, requiring a petitioner to pursue      federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971).
administrative remedies as far as they exist. So long as a         It is not, however, designed to permit state administrative
No. 01-3227                         Thomas v. Woolum, et al.             9    10   Thomas v. Woolum, et al.                     No. 01-3227

timelines to handcuff the federal courts in adjudicating cases                   Our precedent demonstrates only that, in keeping with the
involving important federal rights. Accordingly, the PLRA                     plain language of § 1997e(a), a prisoner does not exhaust his
does not contain any language regarding the timeliness of                     administrative remedies when he fails to commence the
grievance filings or the application of procedural default; if                grievance process or to run the gamut of potential appeals. In
the state forgoes an opportunity to decide matters internally                 Hartsfield, we dismissed a prisoner’s § 1983 suit because the
whether for internal time constraints or any other reason, the                disappearance of the prisoner’s grievance form, the lack of
PLRA has nonetheless served its purpose, and the prisoner                     any evidence demonstrating that a grievance was actually
may proceed to federal court.                                                 filed, and the failure of the prisoner to refile a grievance did
                                                                              not support the argument that the prisoner ever began the
  Because the purpose of the exhaustion requirement is to                     grievance process. 199 F.3d at 308-09; see also Jones v.
provide states the first opportunity to resolve problems                      Smith, 266 F.3d 399, 400 (6th Cir. 2001) (affirming dismissal
themselves, an inmate who has not pursued available                           of § 1983 suit because plaintiff prisoner was not vigilant
administrative remedies may not yet proceed in federal court.                 enough in obtaining a grievance form after his initial request
Thus, we have clearly held that an inmate does not exhaust                    for one was denied and because the prisoner never made “any
available administrative remedies when the inmate entirely                    other attempt to obtain a form or to file a grievance without
fails to invoke the prison’s grievance procedure, see                         a form”). In Freeman, the exhaustion requirement was not
Hartsfield v. Vidor, 199 F.3d 305, 308-09 (6th Cir. 1999);                    met because the prisoner jumped the gun, and despite making
Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert.                        some attempts to follow the proper grievance procedures,
denied, 525 U.S. 833 (1998), or when the inmate filed such a                  filed a federal complaint before completing all of the stages
grievance but “did not appeal the denial of that complaint to                 of the internal grievance process. 196 F.3d at 645. In Wright
the highest possible administrative level,” Wright v. Morris,                 v. Morris, one prisoner filed an initial grievance, but then
111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522 U.S. 906                  failed to appeal the denial of this grievance through the entire
(1997); see also Freeman v. Francis, 196 F.3d 641, 645 (6th                   process. 111 F.3d at 417 n.3; see also Harper v. Jenkin, 179
Cir. 1999). However, we have not previously ruled in a                        F.3d 1311, 1312 (11th Cir. 1999) (dismissing § 1983 claim
published opinion1 that an inmate fails to exhaust his or her                 because the inmate did not appeal the denial of the grievance,
available administrative remedies when the inmate invokes                     thus failing to give the state a full chance to hear the
the prison’s grievance system initially and appeals the denial                grievance). These cases thus address the situation in which
of that grievance, but is time barred by the prison’s                         the prisoner is attempting to “bypass the exhaustion
administrative procedures.                                                    requirement by declining to file administrative complaints
                                                                              and then claiming that administrative remedies are time-
                                                                              barred and thus not then available.” Wright, 111 F.3d at 417
                                                                              n.3.
    1
     W e have rendered two unpublished orders in which we held that the         Here, however, Thomas filed a grievance in the prison’s
exhaustion requirement was no t met be cause of a failure to meet a state’s   formal grievance process, and once that grievance was denied,
procedural deadlines. However, these unpublished orders have no               Thomas appealed as far as he could. He had quite literally
precedential value and do not bind this pane l. Jacobs v. Wilkinson, No.      exhausted his ability to go any further within the internal
00-3212, 2001 WL 1298979 (6th Cir. Aug. 8, 2001) (Unpub. Order);              prison system. There were no more avenues to travel within
Qawi v. Steg all, No. 98-2402, 2000 WL 571919 (6th Cir. May 3, 2000)
(Unpub. O rder).                                                              the state prison system. If Thomas had failed to file, the state
No. 01-3227                        Thomas v. Woolum, et al.           11     12    Thomas v. Woolum, et al.                     No. 01-3227

prison system would never have had any opportunity to                        system before the plaintiff may initiate a federal suit. See 29
review the claim. However, by filing, Thomas gave the state                  U.S.C. § 633(b) (ADEA); 42 U.S.C. § 2000e-5(c) (Title VII).
an opportunity to hear the claim and, by appealing, Thomas                   In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), the
gave the state the opportunity to reconsider its decision.                   Supreme Court held that an ADEA plaintiff who had
Thomas received the benefit of the potential that the state                  presented his grievance to the governing state agency after the
would hear his grievance by waiving the procedural                           state’s statute of limitations had expired had nonetheless
guidelines, which the state could have done if it wanted to                  satisfied the ADEA’s requirements and could proceed with
avoid federal court. The state received the benefit of dealing               his federal suit. See Oscar Mayer, 441 U.S. at 753 (“[T]he
with the case internally if it so desired. The defendants,                   grievant is not required by [§ 633(b)] to commence the state
however, argue that exhaustion also requires more, and                       proceedings within time limits specified by state law.”).
specifically, that it requires compliance with state                         Similarly, in EEOC v. Commercial Office Products Co., 486
administrative deadlines. Yet such an outcome would extend                   U.S. 107 (1988), the Supreme Court held that a Title VII
our established precedent beyond its present boundaries.                     plaintiff’s failure to comply with a state statute of limitations
                                                                             in presenting her grievance to the state agency was irrelevant
B. Exhaustion and State Procedural Rules                                     in determining whether she could proceed to federal court.
                                                                             See id. at 123 (“[S]tate time limits for filing discrimination
  In two similar statutory contexts requiring resort to state                claims do not determine the applicable federal time limit.”).
administrative procedures, the Supreme Court has specifically
held that a plaintiff’s failure to comply with state statutes of               For both of those frameworks, the Supreme Court relied on
limitations cannot prevent the plaintiff from proceeding to                  three primary arguments to conclude that failure to comply
federal court.2 Both the Age Discrimination in Employment                    with state time limits could not prevent the plaintiff from
Act and Title VII of the Civil Rights Act of 1964 require                    coming to federal court. All three arguments are applicable
plaintiffs to present their grievances in the relevant state                 in the present case. First, the Court found in both instances
                                                                             that the absence of any mention in the statutes’ text of any
    2
                                                                             requirement of timeliness under state law indicated
      Analogizing the priso n grieva nce system to other state               Congress’s intent that state time requirements could not bar
administrative processes is more apt than analogizing it to the process of   the federal claims. In both cases, the Court insisted that such
habeas relief. The Supreme Court has not placed any procedural default       a requirement could be imposed only by explicit mention.
hurdles upon the congressionally mandated exhaustion requirements for
Title VII and the ADE A, which are chiefly concerned with administrative     See Oscar Mayer, 441 U.S. at 759 (“In particular, there is no
grievances. Thus, simply because the Supreme Court has crafted a             requirement [in the ADEA] that, in order to commence state
procedural default rule in the habeas corpus context to shore up potential   proceedings and thereby preserve federal rights, the grievant
end-runs around the exhaustion requirement does not justify extending        must file with the State within whatever time limits are
procedural default outside of the sphere of criminal law. There are key      specified by state law.”); Commercial Office Prods., 486 U.S.
distinctions between the administrative grievance process and the habeas
process that warrant disparate ap plicatio ns of a p rocedural default       at 124 (“Title VII, like the ADEA, contains no express
requirement. The notions of comity that prevent federal courts from          reference to timeliness under state law.”). Second, the Court
undu ly interfering with the state criminal judicial process in the habeas   emphasized that state statutes of limitations should not serve
context do not have precisely the same resonance and intensity when          as a bar to federal court “‘in a statutory scheme in which
federal courts are analyzing the outcome of a non-criminal state             laymen, unassisted by trained lawyers, initiate the process.’”
administrative process and when § 1983 interposes the federal courts as
a vindicator o f federal rights.                                             Oscar Mayer, 441 U.S. at 761 (quoting Love v. Pullman Co.,
No. 01-3227                    Thomas v. Woolum, et al.       13    14       Thomas v. Woolum, et al.                            No. 01-3227

404 U.S. 522, 527 (1972)); accord Commercial Office Prods.,         bring a federal claim, apply with equal or stronger force to
486 U.S. at 124. Third, the Court reasoned that state               claims under § 1983.3
procedural rules should not be able to prevent a federal court
from remedying a harm that Congress sought to prevent. The            Thus the only question is whether the language of § 1997e,
requirement that plaintiffs first initiate state proceedings gave   which prevents prisoners from challenging prison conditions
states “a limited opportunity” to resolve discrimination            “until such administrative remedies as are available are
complaints, and “[i]ndividuals should not be penalized if           exhausted,” 42 U.S.C. § 1997e(a), distinguishes the PLRA
States decline, for whatever reason, to take advantage of these
opportunities.” Oscar Mayer, 441 U.S. at 761; see also                   3
Commercial Office Prods., 486 U.S. at 123-24 (recognizing                  Another, subsidiary argument relied on in the ADEA context
that the filing provisions of the ADEA and Title VII are            supp orts our conclusion. The Supreme Court reasoned in Oscar Mayer
nearly identical and that the same policy considerations apply      that, because another provision of the ADEA identified a statute of
                                                                    limitations for claims brought under that Act, the Court could not
in each).                                                           “attribute to Congress an intent through [2 9 U .S.C. § 633 (b)] to add to
                                                                    these explicit requirements by implication and to incorporate by reference
   The latter two arguments unquestionably apply with equal         into the AD EA the vario us state ag e-discrimination statutes of
force in the context of the PLRA. First, the prison grievant is     limitations.” Oscar Mayer, 441 U.S. at 762 -63. This structural argument
generally the epitome of the layperson, unassisted by a trained     applies with similar force in the § 1 983 context. Because 42 U.S.C.
                                                                    § 1988(a) ind icates that the statute of limitations for an action under
lawyer, seeking to invoke the legal process. Further, if states     § 1983 is to be that provided for by “the common law, as modified by the
may not use administrative time limits to defeat an ADEA or         constitution and statutes of the State” of jurisdiction, 42 U.S.C. § 1988(a),
a Title VII claim, they should not be able to defeat a claim        which under Ohio law provides for two years, see Browning v. Pendleton,
under the Civil Rights Act of 1871, Congress’s preeminent           869 F.2d 989 , 992 (6th C ir. 198 9) (en banc ), for us to borrow a different,
declaration that state officials may not undermine federal law.     thirty-day statute of limitations suggested by an administrative agency for
                                                                    its own internal grievance process would attribute to Congress an intent
“A major factor motivating the expansion of federal                 that appears nowhere in the PLRA and is inconsistent with the reasoning
jurisdiction through [the predecessor to 42 U.S.C. § 1983]          of Oscar Mayer.         Congress nowhere suggested an intention “to
was the belief of the 1871 Congress that the state authorities      incorporate by reference,” Oscar Mayer, 441 U.S. at 762-6 3, state
had been unable or unwilling to protect the constitutional          administrative deadlines.
rights of individuals or to punish those who violated these               That Congress has instructed us to borrow a state’s statute of
rights.” Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 505      limitations on person al injury ac tions in no way imp lies that we should
                                                                    borrow a state prison’s administrative deadlines. The two deadlines serve
(1982) (refusing, absent explicit congressional instruction, to     very different purposes; whereas a state legislature’s incentives in setting
create an exhaustion requirement for § 1983 suits). If we           its perso nal injury statute of limitations will be well balanc ed, a state
were to create a rule that permitted states to defeat § 1983        prison’s incentives in setting a time limit on inmate grievances —
suits with their administrative time limits, however, and           especially if the limit would insulate prison officials from § 1983 suits —
thereby let “unable or unwilling” state authorities prevail over    would likely lead to shorter and shorter limitations perio ds. Compa re,
                                                                    e.g., Kentucky Corrections Policy 14.6(VI)(J) (requiring aggrieved inmate
“the constitutional rights of individuals,” id., we would have      to file grievance within five days, and appeal within three days), with
undone what Congress wrought. These rationales, which the           Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)
Supreme Court relied on to hold that compliance with state          (recognizing statute of limitations for § 1983 actions at one year for those
statutes of limitations is irrelevant to a plaintiff’s ability to   in Kentucky’s general population). Although state officials may have
                                                                    legitimate reasons for imposing deadlines on inm ate grievances, there is
                                                                    no reaso n that a prison’s legitimate interest in, for example, conserving
                                                                    investigative resources must prohibit federal court jurisdiction.
No. 01-3227                   Thomas v. Woolum, et al.      15    16   Thomas v. Woolum, et al.                    No. 01-3227

from the ADEA and Title VII in such a way as to permit state      requires the plaintiff to finish. In Oscar Mayer, for example,
agencies to defeat federal claims. Title VII’s filing             the distinction between the ADEA’s requirement and an
requirement, after which the ADEA’s was patterned, reads as       exhaustion requirement focused not on any purported
follows:                                                          difference in the two requirements’ power to defeat federal
                                                                  claims, but on the simple fact that 29 U.S.C. § 633(b)
  In the case of an alleged unlawful employment practice          “requires only that the grievant commence state proceedings.”
  occurring in a State, or political subdivision of a State,      Oscar Mayer, 441 U.S. at 759 (emphasis in original).
  which has a State or local law prohibiting the unlawful         Exhaustion, then, provides the flip side of that coin,
  employment practice alleged and establishing or                 “requir[ing] the court to delay action until the administrative
  authorizing a State or local authority to grant or seek         phase of the state proceedings is terminated.” Gibson v.
  relief from such practice or to institute criminal              Berryhill, 411 U.S. 564, 574 (1973) (emphasis added).
  proceedings with respect thereto upon receiving notice          Unlike the commencement requirement, which is crafted to
  thereof, no charge may be filed under subsection [(b)] of       give state agencies an opportunity to resolve a problem while
  this section by the person aggrieved before the expiration      federal action proceeds on a parallel track, see Oscar Mayer,
  of sixty days after proceedings have been commenced             441 U.S. at 757 (recognizing that ADEA set up “concurrent
  under the State or local law, unless such proceedings           rather than sequential state and federal administrative
  have been earlier terminated, provided that such sixty-         jurisdiction”), exhaustion is a termination requirement,
  day period shall be extended to one hundred and twenty          designed to keep federal courts out as long as the state
  days during the first year after the effective date of such     administrative machinery is working to resolve the problem.
  State or local law. If any requirement for the                  Even the dissenters in Patsy v. Board of Regents of Florida,
  commencement of such proceedings is imposed by a                who argued that § 1983 included a judicially created
  State or local authority other than a requirement of the        exhaustion requirement for all plaintiffs, agreed that an
  filing of a written and signed statement of the facts upon      exhaustion requirement “does not defeat federal-court
  which the proceeding is based, the proceeding shall be          jurisdiction, it merely defers it.” Patsy, 457 U.S. at 532
  deemed to have been commenced for the purposes of this          (Powell, J., dissenting). Thus when Congress imposed an
  subsection at the time such statement is sent by registered     exhaustion requirement in the PLRA, but imposed no other
  mail to the appropriate State or local authority.               restrictions, it imposed a termination requirement. See, e.g.,
                                                                  United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e
42 U.S.C. § 2000e-5(c). To be sure, as the Oscar Mayer court      presume that Congress expects its statutes to be read in
indicated, a requirement that a would-be federal plaintiff        conformity with this Court’s precedents.”).
exhaust state remedies is different from a requirement that the
plaintiff commence state proceedings. See Oscar Mayer, 441           With the PLRA, Congress could have required more than
U.S. at 761. Accordingly, as Congress requires that an inmate     an exhaustion requirement, but it chose not to. Congress
exhaust available administrative remedies, 42 U.S.C.              could have, for example, required in § 1997e(a) that, “In
§ 1997e(a), the question is what exhaustion requires.             exhausting available administrative remedies, the prisoner
                                                                  shall comply with the prison’s reasonable time limits for
  In a number of cases, the Supreme Court has suggested that      filing grievances. Untimely claims shall be deemed
exhaustion is the antonym of commencement. Whereas                procedurally defaulted.” Had Congress done so, the present
commencement requires the plaintiff to begin, exhaustion          case would be much easier. But Congress did not, and the
No. 01-3227                   Thomas v. Woolum, et al.       17    18    Thomas v. Woolum, et al.                      No. 01-3227

Supreme Court has instructed that we are not to impose such        and they appear together when there is a procedural default
requirements when Congress refuses. See Commercial Office          “at trial, on appeal, or on state collateral attack,” Edwards v.
Prods., 486 U.S. at 124 (“Title VII, like the ADEA, contains       Carpenter, 529 U.S. 446, 451 (2000), the Supreme Court’s
no express reference to timeliness under state law.”); Patsy,      habeas decisions make clear that they are different doctrines
457 U.S. at 514 (reasoning that legislatures, not courts, are to   that impose different requirements. The judiciary created the
determine “what consequences should attach to the failure to       procedural default rule to ensure that courts did not issue
comply with procedural requirements of administrative              advisory opinions when an independent and adequate state
proceedings”); Oscar Mayer, 441 U.S. at 759 (“In particular,       ground supported a state court’s judgment, and extended the
there is no requirement that, in order to commence state           rule into the habeas context only because “a state prisoner is
proceedings and thereby preserve federal rights, the grievant      in custody pursuant to a judgment” that would be rendered
must file with the State within whatever time limits are           ineffective by a federal court’s ruling. Coleman, 501 U.S. at
specified by state law.”).                                         729-30 (emphasis in original). This extension of the
                                                                   procedural default rule into the habeas context obviously
   To reach the contrary conclusion, we would have to impose       cannot support its extension into exhaustion of prison
a judicially created procedural default rule, going well beyond    administrative remedies, as we have never considered a state
the exhaustion rule that Congress imposed with the PLRA            warden’s decision on a grievance to be the equal of a full
and contravening the Supreme Court’s explicit instructions in      state-court judgment. Indeed, the Supreme Court’s habeas
the Oscar Mayer line of cases. This may be a tempting and          decisions instruct that, whereas the procedural default
common mistake, but it is a mistake nonetheless, as Coleman        doctrine requires a habeas petitioner to comply with
v. Thompson, 501 U.S. 722 (1991), shows. In discussing a           reasonable state procedural rules, the exhaustion requirement
habeas petitioner who filed an untimely notice of appeal in        requires that “state prisoners . . . give the state courts one full
state court, the Court in Coleman reasons, “A habeas               opportunity to resolve any constitutional issues by invoking
petitioner who has defaulted his federal claims in state court     one compete round of the State’s established appellate review
meets the technical requirements for exhaustion; there are no      process.” Boerckel, 526 U.S. at 845. This is precisely our
state remedies any longer ‘available’ to him.” Id. at 732.         holding here.
That is, by filing the notice of appeal, even though untimely,
the petitioner had exhausted his state remedies. The                 Thus the only ground for barring a federal § 1983 suit due
petitioner failed not because he had failed to exhaust his         to an untimely prison grievance is that we would otherwise
remedies, but because he had procedurally defaulted them.          render prison grievance procedures irrelevant. If a prisoner
See id. (“In the absence of the independent and adequate           knows that he or she may file a federal suit by filing an
state ground doctrine in federal habeas, habeas petitioners        untimely grievance, the argument goes, prisoners will have an
would be able to avoid the exhaustion requirement by               incentive to bypass the prison grievance process by waiting
defaulting their federal claims in state court.”) (emphasis        until its deadline has passed, filing an untimely grievance, and
added). Procedural default is thus distinct from the               then proceeding to federal court. Indeed, the Seventh Circuit
exhaustion requirement, an additional requirement added on         appears to have relied on this policy argument in holding that
top of exhaustion.                                                 an untimely grievance will bar a § 1983 suit. See Pozo v.
                                                                   McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied, --
  Although there may be an “interplay” between the two             U.S. --, 123 S. Ct. 414 (2002). However, not only does this
doctrines, O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999),       argument sweep aside the meaning of exhaustion, it is an
No. 01-3227                          Thomas v. Woolum, et al.             19     20     Thomas v. Woolum, et al.                             No. 01-3227

argument that the Supreme Court specifically rejected in                            Thus the PLRA’s exhaustion requirement distinguishes the
Oscar Mayer itself. There is “[n]o reason” why one would                         PLRA from the interpretations of Title VII and the ADEA,
“wish to forgo an available state remedy,” the Court reasoned;                   but not in a manner meaningful for this case. Exhaustion of
“[p]rior resort to the state remedy would not impair the                         state administrative remedies under the PLRA requires a
availability of the federal remedy, for the two are                              plaintiff not only to bring his or her claim before the state, but
supplementary, not mutually exclusive.” Oscar Mayer, 441                         to see it through to completion, appealing denials as permitted
U.S. at 764. That is, permitting prisoners to file in federal                    and participating in offered hearings. Exhaustion also
court following an untimely grievance in no way creates an                       requires a plaintiff to bring a grievance to the state before
incentive to bypass state remedies, for potential litigants will                 coming to federal court even when the state has made clear
still have every incentive to raise their grievance within the                   that it will not grant the relief requested. See Booth, 532 U.S.
prison’s timelines, because it is in the prison grievance                        at 736. But just as a state prison system’s decision not to
process that inmates will, for most practical purposes, receive                  grant certain kinds of relief does not strip the federal courts of
their swiftest and most effective remedies. Those who bypass                     their power to grant that relief under § 1983, so too its
it will generally do so to their own disadvantage. In fact, the                  decision not to grant relief in particular cases — whether for
policy argument works in favor of the conclusion we reach                        timeliness or for any other state procedural requirement —
here: prison administrators, knowing that their refusal to                       does not strip the federal courts of their power to do so.
entertain grievances filed after certain deadlines will not                      Thomas brought his grievance to the prison officials’
protect them from subsequent litigation, will more likely take                   attention, they refused to hear it, and he appealed their
advantage of the opportunity to resolve the grievance that the                   decision through each available level. That prison officials
PLRA has granted them.4                                                          did not wish to address his complaint, as they prefer only to
                                                                                 address complaints brought before them within thirty days, is
                                                                                 irrelevant for our purposes. Thomas gave the state officers an
    4
      There is no doubt that dea dlines are mutually beneficial for b oth        opportunity, which is all that is required. We may not
prison administrators and prisoners. The dissenting opinion claims that          penalize Thomas simply because the prison does not wish to
we view “time limits as m ere trap s for the unwary, and utterly fail[] to
acknowledge that procedural deadlines serve the legitimate interests of
both sides to a dispute” and the dissent accuses us of ascribing “nefarious
motives . . . to prison administrators who seek to enforc e . . . dead lines.”   imposing a procedural default mechanism where none was legislated best
Diss. Op . at 30 (emp hasis deleted). Then, while mistakenly criticizing the     balances these concerns and maintains the mutually advantageous internal
majo rity for an assumption it does not make, the dissenting opinion makes       grievance system.
the equally sweeping and erroneous presumption that absent a procedural               Bo th prisoners and prison administrators gain little from prisoners
default requirement, prisoners will have “carte blanche . . . to ignore any      jumping right to federal court as opposed to utilizing the prison grievance
and all adm inistrative time limits” and will purpo sefully default their        system first, because internal resolution of disputes gives prisoners more
adm inistrative remed ies to see k a trip to federal court. Id. at 32.           of an op portunity for quick resolution of their p roblems. Judicial
     However, the perception that the absence of p rocedural default             restraint, exercised by the majority by not grafting a procedural default
guidelines in this area will result in prisoners purposefully not filing         requirement onto the PLRA, serves both prisoners and prisons here
grievances within the deadlines in order to bypass the internal prison           because it maintains the potential for federal recourse. As a result, prison
system is counterbalanced by the equa lly real concern that in the presence      officials will not make grievanc e dea dlines unduly short, as they will
of procedural de fault standards, prison administrators will impose shorter      establish timelines that are lengthy enough to p ermit ad ministrato rs to
and shorter deadlines m easured in ho urs and da ys, because prisoners will      evalua te grievances internally so as to avoid a trip to the federal
then have no recourse to the fed eral co urts if they miss even one deadline.    courthouse. Priso ners in turn will have more time to meet deadlines and
Following the dictates of Congress and refraining from judicially                prepare their grievances.
No. 01-3227                    Thomas v. Woolum, et al.        21    22   Thomas v. Woolum, et al.                    No. 01-3227

hear grievances more than thirty days after the incident. See        did not name two additional officers, had not exhausted his
Oscar Mayer, 441 U.S. at 761. We therefore hold that a               administrative remedies with respect to the two previously
prisoner who has presented his or her grievance through one          unnamed officers. Hartsfield, 199 F.3d at 308-09. He thus
complete round of the prison grievance process has exhausted         did not “administratively exhaust his . . . claim as to each
the available administrative remedies under 42 U.S.C.                defendant associated with the claim.” Burton v. Jones, 321
§ 1997e(a), regardless of whether the prisoner complied with         F.3d 569, 574 (6th Cir. 2003). Although an inmate need not
the grievance system’s procedural requirements.                      identify each officer by name when the identities of the
                                                                     particular officers are unknown, Thomas here knew one on-
             III. EXHAUSTION OF CLAIMS                               looking officer’s identity and knew that others had watched
                                                                     the beating as well. Accordingly, his grievance form should
   Although a grievance that is untimely under prison rules          have noted either the other officers’ names or the fact that
still gives state prison officials an opportunity to address an      other officers had seen the beating.
inmate’s complaints, a grievance that does not give officials
notice of the nature of the inmate’s grievance does not afford         Thomas suggests that his deficient grievance
the officials the opportunity the PLRA requires. Thomas              notwithstanding, he satisfied the exhaustion requirement by
argues that between his official grievance form and his              participating fully in the prison’s internal investigation.
cooperation with the prison’s Use of Force investigation, in         Indeed, the day after the attack, Thomas told prison officials
which he specifically mentioned the presence of other officers       that Officer Waddell and other officers had witnessed Officer
who failed to protect him, he gave prison officials sufficient       Woolum’s actions, a notification that — when combined with
notice for them to address his concerns in the grievance             Thomas’s subsequent filing of an official grievance regarding
process. True though that may be, our cases require more.            the incident — would seem to accomplish many purposes of
Because Thomas made no reference to the issues involved in           the PLRA’s exhaustion requirement. However, it is no longer
his failure-to-protect claim in his grievance, we must find that     sufficient for an inmate simply to give prison officials notice
he failed to exhaust his administrative remedies with respect        of the complaint by cooperating with other investigations, as
to the claims against Kepler, Starcher, and Waddell.                 was sufficient in such pre-PLRA “substantial compliance”
                                                                     cases as Wolff v. Moore, 199 F.3d 324, 329 (6th Cir. 1999).
   Thomas’s grievance form does not offer the kind of                In our post-PLRA cases we have emphasized that “the
information that our precedent requires for exhausting his           exhaustion requirement in § 1997e(a) is directed at exhausting
claims against Kepler, Starcher, and Waddell. Thomas’s               the prisoner’s administrative remedies,” and that Use of Force
grievance mentions neither the defendants themselves nor any         or other investigations do not satisfy the PLRA’s dictates.
facts suggesting that officers other than Woolum knew                Freeman, 196 F.3d at 644. In determining whether the
anything of the incident. Thomas was indisputably aware of           inmate has exhausted his or her remedies, we thus look to the
the other officers’ presence at the time, as he mentioned them       inmate’s grievance, not to other information compiled in
in the incident report he filed the day after the beating, so this   other investigations. Although an inmate grievance might
case falls under the rule of Curry v. Scott, 249 F.3d 493 (6th       conceivably specifically incorporate or otherwise refer to
Cir. 2001), which requires that “a prisoner file a grievance         information previously obtained, it must do so in a manner
against the person he ultimately seeks to sue,” id. at 505.          that points prison officials to the relevant materials. That is
Similarly, in Hartsfield v. Vidor, we ruled that a prisoner who      not what happened here.
named three officers in his grievance, and who could have but
No. 01-3227                    Thomas v. Woolum, et al.        23    24   Thomas v. Woolum, et al.                   No. 01-3227

   Finally, Thomas suggests that our requirement that prison                            IV. CONCLUSION
grievances be filed “against” potential defendants, Curry, 249
F.3d at 505, mistakes the prison grievance process as a type            Had Thomas’s grievance pointed prison officials to the
of civil action. Grievances are not filed “against” individual       alleged presence of other officers when Officer Woolum was
persons, Thomas argues, but are rather filed regarding certain       beating him, it would have given the officials a sufficient
problems; accordingly, a grievance should be understood to           opportunity to investigate the other officers’ actions. The
exhaust remedies so long as it alerts prison officials to a          prison may have declined that opportunity, as it prefers to
problem to be investigated, whether or not it identifies             address only those grievances filed within a particular time
specific individuals. Sims v. Apfel, 530 U.S. 103 (2000),            limit. But the prison would have been given the opportunity,
supports Thomas’s position. In Sims, a Social Security case,         which is all that § 1997e(a) requires, so we hold that the
the Supreme Court ruled that even when a party is required to        timeliness of an inmate’s grievance is irrelevant under the
exhaust administrative remedies, the plaintiff is not                PLRA’s exhaustion requirement.             Because Thomas’s
necessarily required to exhaust each specific issue that he or       grievance did not contain the necessary information, however,
she intends to bring to federal court. See id. at 112 (plurality);   it did not give prison officials the requisite opportunity. We
id. at 113 (O’Connor, J., concurring). Rather, “the                  thus conclude that Thomas failed to exhaust his
desirability of a court imposing a requirement of issue              administrative remedies with respect to Officers Kepler,
exhaustion depends on the degree to which the analogy to             Starcher, and Waddell, and we AFFIRM the district court’s
normal adversarial litigation applies in a particular                judgment.
administrative proceeding.” Id. at 109 (majority). Applying
the reasoning of Sims to the problem-solving mechanism of
an inmate grievance procedure, a court might well conclude
that the process is “inquisitorial rather than adversarial,” id.
at 111 (plurality), and thus that a court should not impose an
issue-exhaustion requirement on top of the PLRA’s general
exhaustion requirement. On that view, an inmate’s grievance
informing prison officials that he had been beaten by an
officer would be sufficient to notify the prison of claims
arising out of that beating, including, perhaps, a claim that
other officers had witnessed the event but failed to intervene.
However, we are bound by our decision in Curry, which
apparently found the Sims reasoning inapplicable in the prison
context and which thus requires prisoners to file grievances
“against” specific defendants. See Hinchman v. Moore, 312
F.3d 198, 203 (6th Cir. 2002) (noting that one panel cannot
overrule a prior panel’s published decision). Thomas is thus
subject to Curry’s standards; as his grievance contained no
information relevant to his claims against Kepler, Starcher,
and Waddell, we conclude that he has not exhausted his
claims with respect to those defendants.
No. 01-3227                    Thomas v. Woolum, et al.       25    26   Thomas v. Woolum, et al.                    No. 01-3227

                    _________________                               concern “is counterbalanced by the equally real concern that
                                                                    in the presence of procedural default standards, prison
                     CONCURRENCE                                    administrators will impose shorter and shorter deadlines
                    _________________                               measured in hours and days, because prisoners will then have
                                                                    no recourse to the federal courts if they miss even one
  RONALD LEE GILMAN, Circuit Judge, concurring. I                   deadline.” (Maj. Op. at 19 n.4) These competing policy
fully concur in Judge Moore’s opinion. My purpose in                considerations, however, are better reserved for Congress to
writing separately is to acknowledge the difficulty of the issue    resolve than for us to adjudicate.
before us and to explain why I believe that Judge Rosen’s
opinion is less persuasive in interpreting what it means to            In deciding this issue, the two factors that ultimately
exhaust “available administrative remedies” under the PLRA.         persuade me are that (1) Congress could have, but did not,
                                                                    specify that a prisoner’s failure to comply with the prison’s
   To begin with, I must confess that I find the question of        reasonable time limitations would result in a procedural
whether a prisoner must comply with the prison’s                    default (see Maj. Op. at 16-17), and (2) Supreme Court
administrative deadlines as a precondition to filing a § 1983       precedents continue to distinguish between the concepts of
action in federal court to be extremely difficult. I have indeed    exhaustion of remedies and procedural default. Congress, if
flip-flopped on this issue during the course of extensive           it desires a different outcome, is clearly able to make an
deliberations with my two erudite colleagues, no doubt to the       appropriate amendment to the PLRA. Judge Rosen or I might
frustration of them both. The assertiveness of Judge Rosen’s        have drafted the current statute differently, but we are not
opinion is more than sufficient to give anyone pause,               legislators. As a judge on the court of appeals, I do not feel
especially his accusations that we have issued an “invitation       that I should attempt to alter the PLRA as it presently stands.
to chaos and delay” (Dissenting Op. at 30), “abandon[ed] all
notions of judicial restraint” (id. at 31), provided “a classic       Judge Rosen obviously subscribes to a different analysis.
example of judicial meddling” (id. at 31), and engaged in           In his opinion, the concept of procedural default is built into
“thinly-veiled policymaking” (id. at 32). In the end, however,      the concept of exhaustion of remedies. But the Supreme
I find that these sweeping generalizations generate more heat       Court cases that he relies on—Boerckel, Carpenter, and
than light, and that his position is actually the more “activist”   Coleman—do not, in my opinion, support his analysis.
in an expansive interpretation of the PLRA beyond
Congress’s language and the Supreme Court’s precedents.                Judge Rosen, for example, quotes the Supreme Court’s
                                                                    statement in O’Sullivan v. Boerckel, 526 U.S. 838 (1999), that
   The heart of the problem is that the failure to apply the        “we ask not only whether a prisoner has exhausted his state
concept of procedural default to a prison’s administrative          remedies, but also whether he has properly exhausted those
deadlines will, in cases such as the one before us, obligate the    remedies.” Id. at 848 (emphasis in original). If procedural
federal courts to deal with the § 1983 issues without the           default were a necessary component of exhaustion in the
benefit of the state’s administrative consideration on the          habeas corpus context (rather than an independent,
merits. This makes the issue difficult for me because, were I       complementary doctrine), this sentence would make no sense.
a legislator, I would think it sound policy to require prisoners    The Supreme Court would instead have simply stated: “We
to comply with reasonable administrative deadlines. On the          ask whether a prisoner has exhausted his state remedies.”
other hand, as pointed out by Judge Moore, this legitimate          What the Supreme Court actually said, however, is that “we
No. 01-3227                  Thomas v. Woolum, et al.     27    28   Thomas v. Woolum, et al.                    No. 01-3227

ask not only whether a prisoner has exhausted his state          ______________________________________________
remedies, but also whether he has properly exhausted those
remedies.” Id. (first two emphases added; third emphasis in       CONCURRING IN PART, DISSENTING IN PART
original).     Basic English grammar, not “adroit                ______________________________________________
deconstruction” (Dissenting Op. at 47), therefore compels the
conclusion that, under the Supreme Court’s precedents,            ROSEN, District Judge, dissenting in part and concurring
exhaustion and procedural default are two distinct concepts.    in the judgment.
Carpenter and Coleman make the same differentiation.
Carpenter, 529 U.S. 446, 453 (2000); Coleman, 501 U.S.             With one bold stroke, the lead opinion stands much of this
722, 732 (1991).                                                Circuit’s existing precedent on administrative exhaustion on
                                                                its head, holding that administratively established filing
  In the final analysis, my policymaker heart yearns for the    deadlines mean nothing in a prisoner’s effort to exhaust his
result proposed by Judge Rosen, but my judicial head tells me   remedies before commencing a § 1983 suit. By permitting
that Judge Moore has reached the correct result. Our legal      inmates to thumb their noses at such time limits, the lead
system requires us to heed the words of Congress as             opinion thoroughly disables prison grievance systems as
interpreted by applicable Supreme Court precedent. Until        meaningful tools for dispute resolution — a result deemed
Congress changes the law or the Supreme Court corrects our      unacceptable by every other Circuit that has addressed the
interpretation of its language, I am unwilling to read the      timeliness issue to date. More importantly, this result is
concept of procedural default into the PLRA.                    wholly at odds with Congress’s intent in enacting the Prison
                                                                Litigation Reform Act (“PLRA”) and amending 42 U.S.C.
                                                                § 1997e(a) to establish a strict, mandatory exhaustion
                                                                requirement for prisoner § 1983 suits.
                                                                  Still worse, however, is that this departure from precedent
                                                                and congressional intent is utterly unnecessary to our ultimate
                                                                judgment in this case. The District Court plainly must be
                                                                affirmed here, on the obvious ground that Plaintiff/Appellant
                                                                Douglas Thomas failed to exhaust his remedies against those
                                                                Defendants/Appellees who were not even mentioned in his
                                                                prison grievance. The lead opinion ultimately reaches
                                                                precisely this conclusion, and I fully concur on this point.
                                                                But first, the lead opinion goes out of its way to rewrite the
                                                                law on a different issue, notwithstanding its lack of bearing
                                                                upon the outcome of this case. Rather, the mischief is wholly
                                                                prospective — and, I might note, crafted in such a way as to
                                                                seemingly insulate it from further review.
                                                                   The issue upon which I part company with my colleagues
                                                                is easily stated — whether an inmate presumptively must
No. 01-3227                   Thomas v. Woolum, et al.       29    30   Thomas v. Woolum, et al.                    No. 01-3227

comply with the procedural aspects of a prison’s grievance         respond by completing the process, even though the relevant
system, including its time limits, in order to satisfy the         deadlines might long since have passed. In short, much of
mandatory exhaustion requirement of § 1997e(a). This issue         our existing precedent on prisoner exhaustion has been
already has been settled in this Circuit. We have held, for        rendered meaningless, and the courts in this Circuit have been
example, that an inmate does not exhaust his administrative        relegated to the role of providing legal advice to prisoners on
remedies unless and until he pursues all avenues of appeal         the proper filing of grievances.
that are available within the prison grievance system. See,
e.g., Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999);         Indeed, this invitation to chaos and delay must, of
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Wright       necessity, be a two-way street. If prisoners no longer are
v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522     bound by deadlines, the same surely must be true for prison
U.S. 906 (1997). Such a failure to appeal is a species of          administrators. Although prison regulations often call for
procedural default, see O’Sullivan v. Boerckel, 526 U.S. 838,      decisions to be reached within a specified time frame,
848, 119 S. Ct. 1728, 1734 (1999), legally indistinguishable       administrators presumably may now withhold their rulings
from the sort of procedural default at issue in this case —        indefinitely, and then argue that any § 1983 suit is premature
namely, a prisoner’s failure to meet an administrative filing      until a decision eventually is forthcoming. In the event that
deadline.                                                          a court might conclude differently, prison administrators
                                                                   could simply rewrite their regulations to remove any time
  Yet, the lead opinion explains that this case is different,      limits upon their decisionmaking process. We could hardly
because it involves a late filing at the threshold of the          complain, given the lack of significance that the lead opinion
administrative process, rather than a failure to proceed to the    places upon administrative deadlines, and given the nefarious
next level of this process. And, indeed, this is a distinction —   motives it ascribes to prison administrators who seek to
an inmate who fails to pursue an administrative appeal has         enforce such deadlines.
exhausted at least some available remedies, while a prisoner
whose grievance is properly rejected as untimely (as                  Here lies the root of my disagreement with the lead opinion
happened here) has exhausted none. Nevertheless, in the            — it seemingly views time limits as mere traps for the
Alice-in-Wonderland world conjured up in the lead opinion,         unwary, and utterly fails to acknowledge that procedural
the latter course now is favored over the former in this           deadlines serve the legitimate interests of both sides to a
Circuit.                                                           dispute. This undoubtedly is why such limits are a standard
                                                                   feature of virtually every dispute resolution process of which
   Or is it? In cases which formerly were controlled by our        I am aware. As a quid pro quo for their strict and uniform
procedural default decisions, the lead opinion now provides        adherence to these deadlines, parties are assured that their
an open-ended opportunity for inmates to cure any sort of          dispute will be promptly resolved, and that justice will not be
procedural defect that a court might identify. After all,          effectively denied through interminable delay. This interest
dismissal in such cases is without prejudice, see Brown v.         is particularly compelling here, where the core purpose of
Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525          § 1997e(a)’s exhaustion requirement is to ensure that prisoner
U.S. 833 (1998), and, after today, inmates are no longer           grievances are resolved administratively to the greatest extent
bound by administrative deadlines of any sort. Consequently,       possible. See Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct.
if a prisoner’s case is dismissed for failure to proceed through   983, 988 (2002). While I do not question the sincerity of the
all steps of the administrative process, the inmate now can        lead opinion’s view that this purpose is served by
No. 01-3227                    Thomas v. Woolum, et al.       31    32       Thomas v. Woolum, et al.                          No. 01-3227

disregarding filing deadlines, I believe that this judgment         first time today. Never mind that there is nothing inherently
rests upon a fundamental misapprehension of the importance          unreasonable or suspicious about the 30-day filing limit
of time limits to the effective and orderly functioning of any      imposed by Ohio prison officials in this case. Never mind
dispute resolution system.                                          that prisoner Thomas has not identified any obstacles he
                                                                    confronted in meeting this deadline. Never mind that, even
   As a result, today’s decision is a classic example of judicial   if he had, we could readily address this concern through case-
meddling, with this panel substituting its own policy               specific equitable tolling of the filing period, as opposed to
judgment in place of the far different one made by Congress         the lead opinion’s carte blanche for any and all inmates to
in enacting § 1997e(a) in its present form. The statute             ignore any and all administrative time limits.
requires that prisoners must exhaust “such administrative
remedies as are available.” 42 U.S.C. § 1997e(a). As even             In my view, it is precisely this sort of thinly-veiled
the lead opinion concedes, the prisoner in this case, Douglas       policymaking that leads Congress to ever more curtail our
Thomas, exhausted these remedies only in the most technical         judicial discretion. Indeed, Congress did just that in
sense — once his grievance was rejected as having been filed        amending § 1997e(a) through the PLRA, enacting a
nearly five months past the relevant deadline, he had               mandatory provision which eliminated the courts’ prior
exhausted all of the remedies that were then “available” to         “discretion to dispense with administrative exhaustion” and
him. Yet, we have sensibly recognized — and all other               imposed “an obviously broader exhaustion requirement.”
Circuits that have considered the matter have agreed — that         Booth v. Churner, 532 U.S. 731, 739, 741, 121 S. Ct. 1819,
“it would be contrary to Congress’s intent” to permit a             1824, 1825 (2001). Upon reviewing this legislation, the
prisoner to procedurally default his grievance and then claim       Supreme Court concluded that Congress “may well have
that administrative remedies no longer are “available.”             thought we were shortsighted” in prior decisions which
Wright, 111 F.3d at 417 n.3; see also Pozo v. McCaughtry,           tended to downplay the value of administrative exhaustion.
286 F.3d 1022, 1023-24 (7th Cir.), cert. denied, 123 S. Ct.         Booth, 532 U.S. at 737, 121 S. Ct. at 1823. If so, Congress
414 (2002); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir.        surely will be chagrined by today’s result, which opens the
1999); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995).            courts to even more claims that have never been addressed on
This plain, pragmatic reading of § 1997e(a) is wholly at odds       the merits in a prison’s administrative grievance system.1
with the lead opinion’s effort to distinguish between an            Accordingly, I dissent from the Court’s ruling on the
inmate’s “mere” procedural default and a failure to exhaust         timeliness issue, and concur only in its judgment affirming
his remedies.                                                       the District Court.
   To what end does the lead opinion abandon all notions of
judicial restraint and overturn this settled understanding of
administrative exhaustion? Presumably, the lead opinion
means to ensure that future prisoner § 1983 suits do not fall
victim to the cunning device of administrative filing
deadlines. Never mind that there is no record before us of any
large-scale, or even occasional, difficulty in complying with            1
such deadlines — fully seven years after Congress amended                 I doubt that Congress (or prison officials) will be much consoled by
                                                                    the lead opinion’s assurance that it has exercise d “[j]udicial restraint.”
§ 1997e(a) in 1996, we publish a decision on this issue for the     (Lead Op. at 19-20 n.4.) To say it does not make it so.
No. 01-3227                   Thomas v. Woolum, et al.      33    34    Thomas v. Woolum, et al.                     No. 01-3227

                              I.                                  provision, in contrast, entirely eliminates this judicial
                                                                  discretion, and instead mandates strict exhaustion in every
  I begin with what seems to me an obvious point — that the       case:
decision upon which the lead opinion principally relies, the
decades-old Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99              No action shall be brought with respect to prison
S. Ct. 2066 (1979), is not the first place one would look for       conditions under section 1983 of this title, or any other
guidance in construing the exhaustion requirement of                Federal law, by a prisoner confined in any jail, prison, or
§ 1997e(a). Among myriad other grounds for distinction, to          other correctional facility until such administrative
which I will return later, Oscar Mayer deals with a                 remedies as are available are exhausted.
requirement of commencement rather than exhaustion, and
addresses a detailed statutory scheme with a number of            42 U.S.C. § 1997e(a). Through this enactment, Congress
unique features — e.g., concurrent state and federal              “invigorated the exhaustion prescription,” thereby seeking “to
administrative jurisdiction, an express federal statute of        reduce the quantity and improve the quality of prisoner suits.”
limitations, and an explicit definition of what constitutes       Porter, 534 U.S. at 524, 122 S. Ct. at 988. While the pre-
“commencement” of state proceedings — that have no                PLRA version of § 1997e invited judges to assess the efficacy
counterpart in the statute at issue here. Thus, I find it more    of a prison’s dispute resolution processes, the current statute
useful to start with the language of § 1997e(a) itself, our own   decidedly does not “prescribe[] appropriate grievance
direct pronouncements on the meaning of this provision, and       procedures or enable[] judges, by creative interpretation of the
the views of other Circuits on this subject. In the event that    exhaustion doctrine, to prescribe or oversee prison grievance
this survey does not settle the issue, I find it instructive to   systems.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th
review the Supreme Court’s treatment of a similar statutory       Cir. 2001).
exhaustion requirement imposed upon state prisoners —
namely, the requirement that they “exhaust[] the remedies           Given the clear command of § 1997e(a) in its present form,
available in the courts of the State,” 28 U.S.C.                  the lead opinion properly observes that “the question is what
§ 2254(b)(1)(A), before seeking habeas corpus relief in           exhaustion requires.” (Lead Op. at 15.) Whatever the precise
federal court. All of these sources, in my view, point            contours of this requirement, it plainly is procedural in nature:
unmistakably toward the conclusion that exhaustion under
§ 1997e(a) entails compliance with a prison’s administrative        While the modifier “available” requires the possibility of
procedures, including filing deadlines.                             some relief for the action complained of . . . , the word
                                                                    “exhausted” has a decidedly procedural emphasis. It
  Any analysis of § 1997e(a) necessarily must begin with the        makes sense only in referring to the procedural means,
language of the statute itself. As noted, prior to its 1996         not the particular relief ordered. It would, for example,
amendment through the PLRA, the statute’s call for                  be very strange usage to say that a prisoner must
exhaustion was largely discretionary — courts were                  “exhaust” an administrative order reassigning an abusive
authorized to stay an inmate’s § 1983 suit for up to 180 days       guard before a prisoner could go to court and ask for
while the prisoner exhausted such available administrative          something else; or to say (in States that award money
remedies as were “plain, speedy, and effective,” but only if        damages administratively) that a prisoner must “exhaust”
the court deemed this “appropriate and in the interests of          his damages award before going to court for more. How
justice.” 42 U.S.C. § 1997e(a)(1) (1994 ed.). The current           would he “exhaust” a transfer of personnel? Would he
No. 01-3227                   Thomas v. Woolum, et al.       35    36   Thomas v. Woolum, et al.                      No. 01-3227

  have to spend the money to “exhaust” the monetary relief         standards of § 1997e(a) or, alternatively, that any further
  given him? It makes no sense to demand that someone              efforts at exhaustion should be excused as futile. This Court
  exhaust “such administrative [redress]” as is available;         disagreed:
  one “exhausts” processes, not forms of relief, and the
  statute provides that one must.                                       Even if plaintiff did file an initial grievance . . . , he
                                                                     was required to continue to the next step in the grievance
Booth, 532 U.S. at 738-39, 121 S. Ct. at 1824.                       process within the time frame set forth in the
                                                                     regulations if no response is received from prison
   This Circuit’s precedents reflect a similar understanding of      officials or if the prisoner is not satisfied with the
the nature of § 1997e exhaustion. As noted at the outset, we         response. We have previously held that an inmate cannot
have held on several occasions that a prisoner must fully            simply fail to file a grievance or abandon the process
pursue all administrative processes to completion, including         before completion and claim that he has exhausted his
all available avenues of internal appeal, in order to satisfy        remedies or that it is futile for him to do so because his
§ 1997e(a) and commence a § 1983 suit. See, e.g., Hartsfield         grievance is now time-barred under the regulations.
v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999); Freeman, 196            Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert.
F.3d at 645; White, 131 F.3d at 595. In so ruling, we have           denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 190
consistently taken note of the filing deadlines that govern          (1997). Plaintiff should have either refiled his grievance
these administrative processes, and have cautioned inmates to        when he was informed . . . that the prison had no record
pay heed to these time limits.                                       of the grievance or provided [a] receipt[] . . . so he could
                                                                     have proceeded with an [administrative] appeal. We
  In Hartsfield, for example, the plaintiff prisoner, Napoleon       find, therefore, that plaintiff did not exhaust his
Hartsfield, complained that he had been unlawfully placed in         administrative remedies . . . .
top-of-bed restraints for eighteen hours. Hartsfield contended
that he had submitted an administrative grievance a day after      Hartsfield, 199 F.3d at 309 (emphasis added); see also
the incident, but he produced no evidence of this filing.          Freeman, 196 F.3d at 645 (recognizing that the plaintiff
Instead, the record disclosed that Hartsfield had written to the   prisoner “made some attempts to go through the prison’s
grievance coordinator about two weeks later, stating that he       grievance procedures,” but ordering dismissal because the
had not been provided with a receipt for or response to his        plaintiff “filed his federal complaint before allowing the
grievance. The grievance coordinator responded the next day        administrative process to be completed”).
that no grievance had been received, and that Hartsfield
would have to refile. He chose instead to bring a § 1983 suit,       As noted in Hartsfield, we first endorsed this rule of
and to pursue an administrative appeal only after a Magistrate     complete exhaustion in Wright, 111 F.3d at 417 n.3. One of
Judge had instructed the parties to brief the issue of             the plaintiff prisoners in Wright had filed an administrative
exhaustion. A prison official refused to allow this appeal,        grievance, but had not appealed the denial of this grievance
absent proof that Hartsfield had ever filed an initial             through the entire administrative process. The inmate
administrative grievance.                                          contended that he had exhausted all “available” remedies
                                                                   within the meaning of § 1997e(a), because the deadline for
  Under this record, Hartsfield argued that his attempts at        any further appeals had long since expired. We found it
administrative exhaustion should be deemed to satisfy the          unnecessary to address this argument, in light of our
No. 01-3227                   Thomas v. Woolum, et al.       37    38    Thomas v. Woolum, et al.                     No. 01-3227

conclusion that the amended § 1997e(a) did not apply to the        the filing of an administrative grievance on the ground that
prisoner’s pre-PLRA suit. Nonetheless, we emphasized:              prison officials surely would reject it. In the present case, for
                                                                   example, if prisoner Thomas had altogether failed to file a
  It is clear, however, that in the usual case in the future,      grievance, rather than submitting it nearly five months after
  where the alleged violations occurred after the PLRA’s           the prison’s 30-day deadline, we would have been bound to
  enactment, and inmates have both notice that exhaustion          conclude that this course of action did not comply with the
  is required and a reasonable opportunity to file                 dictates of § 1997e(a). This leads to the question whether an
  complaints, it would be contrary to Congress’s intent in         untimely filing should be accorded different treatment under
  enacting the PLRA to allow inmates to bypass the                 § 1997e(a) than no filing at all.
  exhaustion requirement by declining to file
  administrative complaints and then claiming that                    As a matter of brute fact, Thomas’s untimely filing in this
  administrative remedies are time-barred and thus not             case produced absolutely no benefit over an outright failure
  then available.                                                  to file. His grievance was rejected as submitted outside the
                                                                   prison’s 30-day limit, and there was no administrative review
Wright, 111 F.3d at 417 n.3 (emphasis added); see also             of his complaints on the merits. As a result, none of the aims
Hrynczyn v. Mitchell, No. 00-4320, 2001 WL 1299027, at *1          of § 1997e(a) has been achieved here — Thomas’s grievance
(6th Cir. Aug. 9, 2001) (rejecting a prisoner’s argument that      did not spur corrective action that might have obviated the
no administrative remedies were available because any              need for litigation, there has been no filtering of any frivolous
grievance he filed would be dismissed as untimely).                claims, and no administrative record was developed that
                                                                   might assist the courts in understanding “the contours of the
   Indeed, this Court has insisted that inmates be resourceful     controversy.” Porter, 534 U.S. at 525, 122 S. Ct. at 988.
in their efforts to comply with prison grievance procedures.       Nonetheless, the lead opinion holds that “Thomas gave the
In Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001), for          state officers an opportunity” to address his grievance, “which
instance, the plaintiff prisoner claimed that he had asked for     is all that is required” to satisfy the statutory exhaustion
a grievance form, but was told by a prison counselor to “get       requirement. (Lead Op. at 20.)
out of his office.” We affirmed the dismissal of the case for
failure to exhaust administrative remedies, reasoning that the       This “opportunity-based” theory of exhaustion, however,
plaintiff did “not allege that there was no other source for       improperly shifts the burden from inmates to prison officials,
obtaining a grievance form or that he made any other attempt       requiring that the latter seize upon any chance to address any
to obtain a form or to file a grievance without a form.” Jones,    complaint that a prisoner might raise at any time and through
266 F.3d at 400. More generally, we have placed the burden         any means. As such, the lead opinion’s reasoning runs
upon prisoners to “allege and show that they have exhausted        counter to our precedents, which have consistently construed
all available state administrative remedies,” and have             § 1997e(a) as demanding that inmates must invoke and fully
instructed that “[d]istrict courts should enforce the exhaustion   exhaust a prison’s administrative grievance processes. In
requirement sua sponte if not raised by the defendant.”            Freeman, for example, the plaintiff prisoner alleged that he
Brown, supra, 139 F.3d at 1104.                                    was assaulted by a corrections officer, and he argued that “an
                                                                   investigation by the prison Use of Force Committee and the
  Under these precedents, then, once a prison’s filing             Ohio State Highway Patrol into the alleged assault satisfies
deadline has passed, an inmate cannot simply dispense with         § 1997e(a) because the statute does not specify that
No. 01-3227                   Thomas v. Woolum, et al.      39    40   Thomas v. Woolum, et al.                     No. 01-3227

exhaustion must be through the prison’s grievance                 untimely or procedurally deficient in some other way. Even
procedure.” 196 F.3d at 644. This Court disagreed, noting         this more limited proposition is at odds, in my view, with our
that use-of-force investigations can be initiated for a variety   oft-stated rule of complete exhaustion — though a timely-
of reasons, and stressing “the importance of using the prison     filed grievance plainly provides an “opportunity” (and,
grievance process in order to alert prison officials to           indeed, a duty) to address a prisoner’s complaints, we still
problems.” Freeman, 196 F.3d at 644. More importantly, we         insist that the inmate pursue the matter through all available
held that “the exhaustion requirement in § 1997e(a) is            levels of the administrative process. More specifically, the
directed at exhausting the prisoner’s administrative remedies     lead opinion’s disregard for administrative time limits goes
in the corrections system, and investigation by another agency    against the considered views of two panels in this Circuit,
does not satisfy the requirement of the statute.” 196 F.3d at     albeit in unpublished decisions, and places us alone among
644. We recently affirmed this rule, stating that “an             the several Courts of Appeals that have addressed this precise
investigation by a prison Use of Force Committee will not         issue.
substitute for exhaustion through the prison’s administrative
grievance procedure.” Curry v. Scott, 249 F.3d 493, 504 (6th        This Court first considered this question in Qawi v. Stegall,
Cir. 2001).                                                       No. 98-1402, 211 F.3d 1270, 2000 WL 571919 (6th Cir.
                                                                  May 3, 2000). In that case, the plaintiff prisoner’s
   The present case perfectly illustrates the important           administrative grievance was rejected as untimely, but he
distinction between internal use-of-force investigations and      argued that this delay should be excused as a result of his
prisoner grievances. The Ohio prison officials themselves         good faith efforts to resolve the matter informally. We held
initiated an investigation of Thomas’s beating, and a use-of-     that the plaintiff had failed to exhaust his administrative
force committee concluded that Defendant Shawn Woolum             remedies, observing that his grievance was untimely even
had acted contrary to prison regulations in his assault on        under the prison rules governing informal dispute resolution.
Thomas. Following this investigation, the prison authorities      Similarly, in Jacobs v. Wilkinson, No. 00-3212, 2001 WL
addressed the problem as they perceived it by discharging         1298979 (6th Cir. Aug. 8, 2001), the plaintiff inmate
Woolum. If Thomas desired a broader inquiry or additional         complained of two incidents — his grievance as to the first
relief, whether from Woolum or others, it behooved him to         had been dismissed as untimely, and he had submitted only an
file an administrative grievance bringing these matters to the    informal complaint as to the second. We found that the
attention of prison officials. Yet, under the lead opinion’s      plaintiff had failed to exhaust his administrative remedies as
broadest statement of its holding, Thomas need not have filed     to either of his two complaints, making no distinction
a grievance at all, so long as prison officials had the           between his untimely grievance and his outright failure to file
“opportunity” to discern what his complaints might be and         a grievance.
address them. Such a rule is simply irreconcilable with this
Court’s prior decisions, which require a good deal more from        As noted, three of our sister Circuits have reached the same
the inmate himself before he may commence a § 1983 suit.          conclusion. First, in Marsh, supra, the Fifth Circuit upheld
                                                                  the dismissal of a prisoner’s § 1983 suit for failure to exhaust
   Perhaps, however, the lead opinion means to endorse a          administrative remedies under the pre-PLRA version of
more limited rule, under which a prison official’s                § 1997e(a), where the inmate’s administrative grievance had
“opportunity” to address an inmate’s complaint must be            been dismissed as untimely filed more than 30 days after the
triggered by the inmate’s filing of a grievance, whether or not   incident of which she complained. Although the version of
No. 01-3227                         Thomas v. Woolum, et al.             41   42     Thomas v. Woolum, et al.                            No. 01-3227

§ 1997e(a) then in effect authorized the courts to grant a                      The Eleventh Circuit also has held that an untimely
continuance so that the plaintiff prisoner could exhaust any                  grievance generally does not satisfy § 1997e(a)’s exhaustion
available administrative remedies, the Court reasoned that a                  requirement. In Harper, supra, the plaintiff inmate’s
continuance was not warranted under the circumstances of                      grievance was denied as untimely, and the inmate failed to
that case:                                                                    invoke a prison procedure that authorized waiver of the filing
                                                                              deadline for “good cause” shown. Under these circumstances,
  Because the prison had already rejected [the plaintiff’s]                   the Court held that the plaintiff “cannot be considered to have
  administrative grievance as untimely, her administrative                    exhausted his administrative remedies.” Harper, 179 F.3d at
  remedies were foreclosed, and a continuance would have                      1312. The Court reasoned that a contrary conclusion would
  served no purpose. When a section 1997e continuance                         permit inmates to “ignore the PLRA’s exhaustion requirement
  would serve no purpose, a district court still has the                      and still gain access to federal court merely by filing an
  power to dismiss a prisoner’s suit under section 1997e                      untimely grievance.” 179 F.3d at 1312.
  for failure to exhaust administrative remedies . . . .
  Without the prospect of a dismissal with prejudice, a                         Most recently, the Seventh Circuit has joined in this
  prisoner could evade the exhaustion requirement by                          consensus, construing § 1997e(a) as requiring that a prisoner
  filing no administrative grievance or by intentionally                      “complete[] the administrative process by following the rules
  filing an untimely one, thereby foreclosing administrative                  the state has established for that process,” including filing
  remedies and gaining access to a federal forum without                      deadlines. Pozo, supra, 286 F.3d at 1023. In Pozo, the
  exhausting administrative remedies. Thus, we hold that                      plaintiff prisoner timely filed his initial grievance, but then
  a district court has the power to dismiss a prisoner’s                      waited a year before pursuing an administrative appeal. He
  section 1983 suit under section 1997e even when                             argued that Wisconsin prison officials had the discretion to
  administrative relief is time-barred or otherwise                           waive the state’s usual 10-day filing deadline, and that this
  precluded.                                                                  power to hear an untimely appeal satisfied the purposes of the
                                                                              exhaustion requirement because it afforded the opportunity to
Marsh, 53 F.3d at 710 (citations and footnote omitted).2                      address his complaints. The Court disagreed:


    2
      Although Ma rsh predates § 1 997 e(a) in its present form, the Fifth
Circuit recently confirmed the continued vitality of this decision in Days
v. Johnson, 322 F.3d 863 (5th Cir. 2003). The plaintiff inmate in Days             PLRA’s exhaustion requirement by failing to comply with the
alleged that a broken ha nd had prevented him from tim ely filing his              prison grievance system. See Harper v. Jenkin, 179 F.3d 1311,
administrative grievance, but that he had filed a grievance as soon as this        1312 (11th Cir. 199 9); see also Ma rsh v. Jones, 53 F.3d 707, 710
injury had healed . The Court found that these allega tions, if proven,            (5th Cir. 1995) (previous version of § 1997e). We emphasize
would suffice to show that the prisoner had “exhausted the administrative          that our holding is limited to the narrow facts of this case. More
remedies that were perso nally available to him.” 322 F.3d at 867. T he            specifically, administrative remedies are deemed unavailable
Fifth Circuit then emphasized the narrow reach of this ruling:                     when (1) an inmate’s untimely filing of a grievance is because
                                                                                   of a physical injury and (2) the grievance system rejects the
         W e, of course, do not hold that an untimely grievance in and             inmate’s subsequent attempt to exhaust his remedies based on
    of itself would render the system unavailable, thus excusing the               the untimely filing of the grievance.
    exhaustion requirement. Such a hold ing would allow inm ates to
    file suit in federal court despite intentionally evading the              Days, 322 F.3d at 867-68 (footnote omitted).
No. 01-3227                       Thomas v. Woolum, et al.         43     44    Thomas v. Woolum, et al.                      No. 01-3227

  [T]his position would leave § 1997e(a) without any                      filing outside of the governing administrative time limit.
  oomph. Wisconsin cannot be unusual in allowing prison                   Instead, the lead opinion’s reasoning rests principally upon
  officials some authority to entertain untimely complaints               the inapposite Oscar Mayer decision, with an additional
  and appeals. If the existence of this power means that                  appeal to the Supreme Court’s rulings on exhaustion in the
  prisoners need not file timely complaints and appeals,                  context of state prisoner habeas petitions. I turn first to these
  then the incentive that § 1997e(a) provides for prisoners               latter decisions, as they weigh decidedly against the
  to use the state process will disappear. Prisons are                    conclusion reached in the lead opinion here.
  unlikely to entertain many appeals filed a year late, or by
  prisoners who otherwise thumb their noses at the                                                       II.
  specified procedures.
                                                                             Whether a state prisoner wishes to bring a § 1983 suit or a
Pozo, 286 F.3d at 1025. More generally, the Seventh Circuit               habeas petition under 28 U.S.C. § 2254(a) challenging the
reasoned that judicial disregard for prison grievance                     lawfulness of his confinement, he first must exhaust the
procedures                                                                relevant set of remedies. The two exhaustion requirements
                                                                          are similarly worded: § 1997e(a) provides that an inmate
  would allow a prisoner to “exhaust” state remedies by                   must exhaust “such administrative remedies as are available,”
  spurning them, which would defeat the statutory                         while habeas relief cannot be granted unless an inmate “has
  objective of requiring the prisoner to give the prison                  exhausted the remedies available in the courts of the State,”
  administration an opportunity to fix the problem — or to                28 U.S.C. § 2254(b)(1)(A). Accordingly, the Supreme Court
  reduce the damages and perhaps to shed light on factual                 precedents as to the latter statute are likely to be instructive in
  disputes that may arise in litigation even if the prison’s              interpreting the former. The lead opinion agrees, citing
  solution does not fully satisfy the prisoner.                           several of these decisions in support of the result it reaches.
                                                                          I find this utterly remarkable, since the Supreme Court
286 F.3d at 1023-24 (citations omitted).3                                 expressly held in one of these cases that a prisoner’s untimely
                                                                          filing in state court barred him from seeking habeas relief in
  Thus, prior to the lead opinion’s ruling today, every court             federal court.
that has considered the matter has concluded that an untimely
grievance which is rejected as such by prison officials does                Specifically, in Coleman v. Thompson, 501 U.S. 722, 111
not satisfy the exhaustion requirement of § 1997e(a). Indeed,             S. Ct. 2546 (1991), the Court considered the effect of a death
the lead opinion is unable to identify any case in any area of            row prisoner filing his state court notice of appeal a mere
the law in which a court has found that an administrative                 three days after the 30-day deadline imposed by the
exhaustion requirement was satisfied through an unexcused                 governing Virginia court rule. In light of this untimely
                                                                          submission, the Virginia Supreme Court dismissed the
                                                                          prisoner’s appeal without reaching the merits. The U.S.
    3
      Still another Circuit, like this one, has addressed the issue of
                                                                          Supreme Court recognized that the prisoner’s delayed filing
untimely filing only in an unpublished decision. In Collins v. Federal    — a defect legally tantamount to an outright “failure to appeal
Bureau of Prisons, No. 02-1503, 2003 WL 21380545 (10th Cir. June 16,      at all” — was “no doubt” a result of “inadvertent error.”
2003), the T enth C ircuit held that an inmate’s “failure to meet the     Coleman, 501 U.S. at 749, 750, 111 S. Ct. at 2564, 2565.
app ropriate filing deadlines for administrative remedies constitutes a   Nonetheless, the Court held that federal habeas review was
failure to e xhaust those remedies.”
No. 01-3227                       Thomas v. Woolum, et al.           45    46       Thomas v. Woolum, et al.                          No. 01-3227

unavailable as to the claims advanced in the inmate’s                      timely filing under Fed. R. App. P. 4(a), the Coleman Court
untimely state court appeal. 501 U.S. at 757, 111 S. Ct. at                observed that its ruling had the virtue of
2568.
                                                                             eliminat[ing] inconsistency between the respect federal
  The import of Coleman to the question presented here                       courts show for state procedural rules and the respect
seems plain enough. In that case, a filing three days past a                 they show for their own. This Court has long understood
state court deadline led the Supreme Court to hold that a                    the vital interest served by federal procedural rules, even
death row prisoner had forfeited his opportunity to obtain                   when they serve to bar federal review of constitutional
federal court review of the constitutionality of his continued               claims . . . . No less respect should be given to state rules
detention and sentence. The only relevant statutory                          of procedure.
prerequisite to such habeas relief was that the prisoner must
have exhausted the remedies available to him in the state                  Coleman, 501 U.S. at 751, 111 S. Ct. at 2565-66 (citations
courts. It readily follows, in my view, that a filing past an              omitted). More generally, the Court explained that its strict
administrative deadline presumptively precludes an inmate                  insistence upon exhaustion in the habeas context was
from establishing the nearly identical statutory prerequisite              “grounded in principles of comity; in a federal system, the
for commencement of a § 1983 suit. At a minimum, Coleman                   States should have the first opportunity to address and correct
blunts the force of the lead opinion’s contention that a                   alleged violations of [a] state prisoner’s federal rights.”
requirement of timely filing would impose too high a cost                  Coleman, 501 U.S. at 731, 111 S. Ct. at 2555. All of this
upon the constitutional rights of prisoners — the stakes                   readily carries over to the present context, in light of the
obviously were much higher in Coleman, implicating the                     Supreme Court’s admonition that “prison administrators . . . ,
prisoner’s asserted right to be free from confinement and an               and not the courts, [are] to make the difficult judgments
eventual death sentence.4                                                  concerning institutional operations.” Turner v. Safley, 482
                                                                           U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (internal quotations
  In addition, while the lead opinion relies heavily upon                  and citation omitted).5
policy arguments gleaned from the Supreme Court’s Oscar
Mayer decision, it barely acknowledges (and largely
misconstrues) the much more pertinent policy considerations                     5
set forth in Coleman. Having previously held, for example,                        The lead op inion casually dismisses Coleman’s various policy
                                                                           considerations with the ob servation that “we have never considered a state
that a state prisoner’s federal habeas suit failed for lack of             ward en’s decisio n on a grievance to be the equal of a full state court
                                                                           judgment.” (Lead O p. at 18.) U nless we are engaged in some sort of
                                                                           zero-sum game, however, I see no reason to inquire whether the two are
                                                                           entirely equivalent or one is “better” than the other. It only matters
    4
                                                                           whether both are entitled to some degree of federal court deference, and
      Coleman also undermines the lead opinion’s appeal to the             a vast array of Supreme Co urt precedent holds that prison officials are
presumption that Congress legislates with full awareness of the relevant   entitled to a large measure of deference in the day-to-day operations of
Supreme Court precedents. (See Lead Op . at 16.) While I fully accept      their institutions.
this proposition, I would suggest that Congress much more likely had
Coleman than Oscar Mayer in mind when it enacted § 1 997 e(a), a                In any event, the lead opinion arrives at the wrong answer by asking
provision which is quite similar to the statute involved in Coleman, but   the wrong question. Section 1997e(a) is silent on the weight to be given
which bears absolutely no resemblance to the enactment at issue in Oscar   to a warden’s decision on the merits in a particular case. W hat it does
Mayer.                                                                     demand, however, is that an inmate present his grievance for the warden’s
No. 01-3227                        Thomas v. Woolum, et al.           47     48       Thomas v. Woolum, et al.                           No. 01-3227

  Nevertheless, through adroit deconstruction, the lead                      “procedural default” doctrine. The lead opinion then reasons
opinion endeavors to show that Coleman supports its                          that no such doctrine has been incorporated into our prisoner
conclusion here. In particular, the lead opinion focuses on                  § 1983 jurisprudence, leaving us free to follow the “technical”
portions (though not the entirety) of the following passage                  definition of exhaustion cited in Coleman.
from that decision:
                                                                               I find this reasoning wholly unpersuasive, for two reasons.
  Just as in those cases in which a state prisoner fails to                  First, to whatever extent Coleman can be read as
  exhaust state remedies, a habeas petitioner who has failed                 distinguishing between procedural default and exhaustion,6
  to meet the State’s procedural requirements for                            this distinction has been obliterated in subsequent Supreme
  presenting his federal claims has deprived the state courts                Court habeas decisions. In O’Sullivan, supra, for example,
  of an opportunity to address those claims in the first                     the Court considered the question whether a state prisoner
  instance. A habeas petitioner who has defaulted his                        must petition for discretionary review by a state supreme
  federal claims in state court meets the technical
  requirements for exhaustion; there are no state remedies
  any longer “available” to him. In the absence of the                            6
  independent and adequate state ground doctrine in                                 Even this point is a dubious one. W hile the lead opinion dutifully
  federal habeas, habeas petitioners would be able to avoid                  recounts a portion of Coleman’s historical survey of the independent and
                                                                             adeq uate state ground doctrine and the procedural default rule, it stops
  the exhaustion requirement by defaulting their federal                     notab ly short of ackno wledging that the federa l courts’ application of the
  claims in state court. The independent and adequate state                  latter rule in the habeas context rests solely upon “concerns of comity and
  ground doctrine ensures that the States’ interest in                       federalism” — concerns which undoubtedly are present here — and not
  correcting their own mistakes is respected in all federal                  upon jurisdictional considerations or the need to avoid ad visory opinions.
  habeas cases.                                                              Coleman, 501 U.S . at 730, 111 S. Ct. at 2554. Thus, it would be
                                                                             misleading to suggest, as the lead opinion appears to do, that the Coleman
                                                                             Court felt itself jurisdictionally compelled to adhere to the procedural
Coleman, 501 U.S. at 731-32, 111 S. Ct. at 2555 (citations                   default rule.
omitted). From this language, the lead opinion surmises that
untimely filing does not directly equate with lack of                             Rather, Coleman plainly evidences the Court’s recognition of the
exhaustion, but that it bars habeas relief only by virtue of the             complementary nature of the exhaustion requirement and the procedural
distinct “independent and adequate state ground” or                          default rule — both are “grounded in principles of comity,” and the
                                                                             former would be rendered a nullity without the latter. 501 U.S. at 731-32,
                                                                             111 S. Ct. at 2554-55. T hus, the Court eq uated “cases in which a state
                                                                             prisoner fails to exhaust state remedies” and those in which a prisoner
consideration and se e the ad ministrative process through to completion     “fail[s] to meet the State’s procedural req uirements for p resenting his
before he ma y proceed to fede ral court. No one se riously questions the    federal claims” — in either case, the inma te “has d eprived the state courts
correctness of the warden’s decision in this case — no matter how much       of an opportunity to address those claims in the first instance.” 501 U.S.
or how little deference we give, we surely would agree that Thom as’s        at 732 , 111 S. Ct. at 2 555 . Mo reover, the C ourt invoked the procedural
grievance was, in fact, filed several months past the 30-day deadline, and   default rule to ensure that prisoners did not “avoid the exhaustion
that he has presented no valid excuse for his untimely submission. The       requirement by defaulting their federal claims in state court,” 501 U.S. at
relevant question is whether we must respect Ohio’s imposition and           732, 111 S. Ct. at 2555 — precisely the reasoning which the various
enforcement of this 30-day deadline. So again, I ask — if we agree to        Courts of App eals have em ployed in reso lving the issue now before us,
respect a State’s judgment that a prisoner must proceed through one or       yet which the lead opinion sum marily rejects as contrary to the purported
more layers of administrative ap peal, why should we balk at the who lly     views of the Supreme Court and the “meaning of exhaustion,” (Lead Op.
analogous procedural rule at issue here?                                     at 18).
No. 01-3227                        Thomas v. Woolum, et al.           49     50     Thomas v. Woolum, et al.                  No. 01-3227

court in order to satisfy the exhaustion requirement. In                     discretionary review by that State’s highest court, the
answering in the affirmative, the Court noted the “interplay”                Supreme Court reasoned that this was an “available” remedy
between the doctrines of exhaustion and procedural default,                  which prisoner Boerckel was obliged to exhaust before
once again explaining (as it had in Coleman) that “a prisoner                seeking habeas relief in federal court. Boerckel fell short of
could evade the exhaustion requirement — and thereby                         this exhaustion requirement, however, by virtue of his failure
undercut the values that it serves — by letting the time run on              to include three of his federal claims in his petition to the
state remedies.” O’Sullivan, 526 U.S. at 848, 119 S. Ct. at                  Illinois Supreme Court. Moreover, because the “time for
1734 (internal quotations and citation omitted). The Court                   filing such a petition ha[d] long passed,” the Court held that
then elaborated:                                                             “Boerckel’s failure to present three of his federal habeas
                                                                             claims to the Illinois Supreme Court in a timely fashion has
  To avoid this result, and thus protect the integrity of the                resulted in a procedural default of those claims.” O’Sullivan,
  federal exhaustion rule, we ask not only whether a                         526 U.S. at 848, 119 S. Ct. at 1734. Under this reasoning, the
  prisoner has exhausted his state remedies, but also                        notions of exhaustion and procedural default are merged, and
  whether he has properly exhausted those remedies, i.e.,                    an inmate’s failure to properly pursue a state remedy in
  whether he has fairly presented his claims to the state                    accordance with the relevant procedural requirements can just
  courts. Our disagreement with [the dissent] in this case                   as well be termed a lack of exhaustion or a procedural default.
  turns on our differing answers to this last question:                      It follows, in particular, that an outright failure to file is
  Whether a prisoner who fails to present his claims in a                    legally indistinguishable from a submission beyond the state’s
  petition for discretionary review to a state court of last                 filing deadline.
  resort has properly presented his claims to the state
  courts. Because we answer this question “no,” we                             But perhaps even more to the point, and closer to home, the
  conclude that [state prisoner] Boerckel has procedurally                   Supreme Court recently rejected this Circuit’s continued
  defaulted his claims.                                                      recognition of a distinction between exhaustion and
                                                                             procedural default in the habeas context. In Carpenter v.
526 U.S. at 848, 119 S. Ct. at 1734 (internal quotations and                 Mohr, 163 F.3d 938, 944 (6th Cir. 1998), we had held that the
citations omitted).                                                          District Court had “erroneously conflated the exhaustion
                                                                             requirement with the procedural default or waiver rule,”
  Apart from this express statement that the procedural                      thereby merging two inquiries which were “analytically
default doctrine is a necessary component of the exhaustion                  distinct.” In language which bears a striking similarity to the
rule, the Court interchangeably referred to the prisoner’s                   lead opinion’s reasoning in this case, we stated that “the
failure in that case as a lack of exhaustion and a procedural                exhaustion requirement is satisfied even if a claim was
default.7     Because Illinois authorizes petitions for                      procedurally defaulted in state court, because in such cases
                                                                             there are no longer remedies available for the petitioner to
                                                                             exhaust.” Carpenter, 163 F.3d at 944 (citing Coleman and
    7                                                                        other cases).
     Indeed, the dissent’s chief complaint in O’Sullivan was that the
Court’s opinion “co nfuse[d ]” the two “analytically distinct” rules of
exhaustion and procedural default. 526 U.S. at 850, 119 S. Ct. at 1735
(Stevens, J., dissenting). Even the dissent recognized, however, that the
procedural default doctrine was “crafted” b y the Co urt “[i]n order to
protect the integrity of our exhaustion rule.” 526 U.S. at 853, 119 S. Ct.   at 1736-37 (Stevens, J., dissenting).
No. 01-3227                   Thomas v. Woolum, et al.       51    52       Thomas v. Woolum, et al.                           No. 01-3227

   The Supreme Court reversed. See Edwards v. Carpenter,           and repeatedly recognized the practical necessity of this
529 U.S. 446, 120 S. Ct. 1587 (2000). The Court deemed it          merger — absent a procedural default component, the
“not a hard question” whether it suffices to merely “present”      exhaustion requirement would be a nullity. Likewise, our
a claim to the state courts, “even though it was not presented     sister Circuits — as well as this Circuit, albeit in unpublished
in the manner that state law requires.” 529 U.S. at 452, 120       decisions — have found it necessary to construe the
S. Ct. at 1591-92. An affirmative answer to this question, in      exhaustion rule of § 1997e(a) as encompassing procedural
the Court’s view, “would render [the] exhaustion requirement       default through untimely administrative filing.
illusory.” 529 U.S. at 452, 120 S. Ct. at 1592 (footnote
omitted). The Court then continued:                                   The lead opinion and concurrence insist that this reading of
                                                                   § 1997e(a) is improper, however, because it would add a
     We recognized the inseparability of the exhaustion rule       timeliness requirement to the statute that Congress
  and the procedural default doctrine in Coleman . . . . We        purportedly has declined to impose. To this contention, I can
  again considered the interplay between exhaustion and            only respond that the Supreme Court presumably did not view
  procedural default last Term in O’Sullivan . . . ,               itself as legislating when it adopted a similar construction of
  concluding that the latter doctrine was necessary to             the habeas exhaustion statute, 28 U.S.C. § 2254(b)(1)(A).
  “‘protect the integrity’ of the federal exhaustion rule.”        Indeed, if it would be improper for a court to erect additional
  The purposes of the exhaustion requirement, we said,             obstacles to a prisoner suit under § 1983, it would be all the
  would be utterly defeated if the prisoner were able to           more problematic for the courts to restrict their
  obtain federal habeas review simply by “‘letting the             congressionally-conferred and constitutionally-mandated
  time run’” so that state remedies were no longer                 authority to entertain prisoner habeas petitions. But this is not
  available. Those purposes would be no less frustrated            what the Supreme Court has done, or what our sister Circuits
  were we to allow federal review to a prisoner who had            have done, in insisting that prisoners comply with applicable
  presented his claim to the state court, but in such a            deadlines and other procedural requirements — to the
  manner that the state court could not, consistent with           contrary, they have ensured that the congressional mandate of
  its own procedural rules, have entertained it. In such           exhaustion is preserved rather than subverted, by construing
  circumstances, though the prisoner would have                    exhaustion in the only way that makes sense.8
  “concededly exhausted his state remedies,” it could
  hardly be said that, as comity and federalism require, the
  State had been given a “fair ‘opportunity to pass upon                8
                                                                         Judge Gilman’s concurrence rests entirely on the proposition that
  [his claims].’”                                                  my approach would effectively amend Congress’s statutory mandate of
                                                                   exhaustion by incorporating a requirement of timely filing. Ce rtainly, this
529 U.S. at 452-53, 120 S. Ct. at 1592 (emphasis added)            charge of “judicial activism” would apply as well to the three other
(citations omitted).                                               Circuits which have adopted the reading of § 1997e(a) that I favor — and,
                                                                   as noted, it would app ly as well to the Supreme Court’s habeas decisions.
                                                                   But Judge Gilman’s analysis merely begs the question, in my view. I
  Under federal habeas law, then, all that remains of any          freely acknowledge, as did the Supreme Co urt in Coleman, that a prisoner
distinction between the exhaustion and procedural default          exhausts his remedies in a “technical” sense once there are no more
rules is different terminology and separate historical lineages.   administrative avenues to pursue, whether because of a procedural default
While it is true that the Supreme Court had to make a choice       or for any other reason. The question we confront here is whether the
whether to merge these two doctrines, the Court has readily        congressional mand ate is satisfied through such “technical” exhaustion,
                                                                   or whether § 1997e(a) demand s something more from prisoners.
No. 01-3227                           Thomas v. Woolum, et al.             53     54    Thomas v. Woolum, et al.                     No. 01-3227

  Next, even assuming that some meaningful distinction                            might remain between procedural default and exhaustion, it
                                                                                  is far too late in the day to contend that the former doctrine
                                                                                  should not apply in the context of § 1997e(a), and that the
                                                                                  purely “technical” definition of exhaustion instead should
     As a matter of brute sem antics, I do not deny that the “technica l”         control. At the risk of redundancy, I again point out that this
definition of exhaustion favored by my colleagues is a permissible one.           Circuit already has held that certain types of procedural
For all of the reasons outlined herein, however, I simply do not believe
that this is the meaning Congress intended in enacting the PLRA. Judge
                                                                                  defaults — e.g., a failure to pursue all available avenues of
Gilman has succinctly stated one o f my reasons — that, in cases such as          administrative appeal — constitute lack of exhaustion under
this one, a requirement of mere “technical” exhaustion results in the             § 1997e(a). To the Supreme Court, at least, a late filing and
federal courts having “to deal with the § 198 3 issues without the benefit        an outright failure to file at all are both analyzed in precisely
of the state’s administrative consideration on the merits.” (Concurring           the same way — namely, as procedural defaults. See
Op. at 25.) While Judge Gilman states that such cases “make[] the issue           O’Sullivan, 526 U.S. at 848, 119 S. Ct. at 1734; Coleman,
difficult” for him, (id.), they make it easier for me to conclude that
Congress could not have intended a definition of exhaustion that routinely        501 U.S. at 750-52, 111 S. Ct. at 2565-66. Thus, while one
perm its claims to reach the federal courts without the benefit of any prior      might seek to distinguish between these two forms of default
consideration on the merits. Under such circumstances, I find it                  — although, as discussed below, I am wholly unpersuaded by
unnecessary to await a legislative declaration that § 1997e(a) mandates           the lead opinion’s attempts at such a distinction here — it is
actual, meaningful, and not merely “technical” exhaustion.                        untenable to suggest that procedural defaults generally do not
     Yet, beca use it is po ssible to define exhaustion in a purely “technical”   run afoul of § 1997e(a)’s exhaustion requirement. Rather, it
sense, my charges of “judicial meddling” do not rest upon any notion that         is now the law of this Circuit that some procedural defaults,
my colleagues have “re written” § 19 97e (a). Ra ther, my q uarrel is with        but not others, bar a prisoner suit under § 1983.
the analytical route by which they arrive at their reading of this statute.
Judge Gilman’s concurrence makes the argument, for example, that the                                            III.
Supreme Court’s habeas decisions do not compel any particular result
here, because the “inseparability of the exhaustion rule and the
procedural-de fault doctrine” in the habeas context, Edwards, 529 U.S. at
                                                                                    In my view, the above-cited authorities point uniformly and
452, 120 S. Ct. at 1592, does not require that we place a similar                 unmistakably toward the conclusion that timely filing is a
procedural-de fault gloss upon § 1997e(a). Very well, but this does not           necessary component of exhaustion under § 1997e(a) in all
deny the force of (or even address) my argument that all of the same              but the most unusual of circumstances. Even if we were
grounds relied upon by the Supreme Court in Coleman, O’Sullivan, and              writing on a blank slate, however, I could not subscribe to the
Carpenter are fully ap plicab le here, and therefore should lead us to
construe exhaustion under § 1997e(a) in the same way that exhaustion has
                                                                                  policy judgments made in the lead opinion. Rather, I believe
been interpreted in habeas cases. It is evidence of judicial activism, in my      that the lead opinion’s analysis of untimely prisoner
view, to resolve an issue as though writing on a blank slate, and to deny         grievances substitutes superficial straw-men for careful
the clear impo rt of closely analogou s decisions.                                scrutiny, and rests upon a fundamental misunderstanding of
                                                                                  the significance of administrative filing deadlines.
     The remaining bases for my concerns of judicial policymaking are set
forth throughout this opinion and need not be repeated here. I do wish to
emphasize one point, however — that, no matter how many times my
                                                                                    Throughout its entire discussion of the timeliness issue, the
colleagues appeal to “S upreme C ourt preced ent,” (Lead Op . at 2-3;             lead opinion acknowledges only a single argument in support
Concurring Op. at 27), they simp ly canno t identify a single case, whether       of the rule that inmates presumptively must comply with
under § 1997 e(a) or in any other statutory o r adm inistrative context, in       administrative time limits. In particular, the lead opinion
which that Co urt (or any other) has held that an exhaustion requirement          proclaims that “the only ground for barring a federal § 1983
was satisfied through an unexcused filing beyo nd an applicable deadline.
No. 01-3227                   Thomas v. Woolum, et al.       55    56   Thomas v. Woolum, et al.                      No. 01-3227

suit due to an untimely prison grievance is that we would            80 F. Supp.2d 109, 113 (S.D.N.Y. 1999). See, e.g., 141
otherwise render prison grievance procedures irrelevant.”            Cong. Rec. S14408-01, *S14414 (daily ed. Sept. 27,
(Lead Op. at 18.) The lead opinion confidently assures us that       1995) (statement of Senator Dole) (noting that prisoner
this will not occur, however — inmates “will still have every        suits increased from 6,600 in 1975 to over 39,000 in
incentive to raise their grievances within the prison’s              1994 and included claims for “insufficient storage locker
timelines, because it is in the prison grievance process that        space, a defective haircut by a prison barber, the failure
inmates will, for most practical purposes, receive their             of prison officials to invite a prisoner to a pizza party for
swiftest and most effective remedies.” (Id. at 19.)                  a departing prison employee, and . . . being served
                                                                     chunky peanut butter instead of the creamy variety.”);
   The various policy-based considerations that lurk beneath         141 Cong. Rec. S7498-01, *S7526 (daily ed. May 25,
the surface of this analysis thwart the considered judgment          1995) (statement of Senator Kyl) (stating that in 1994,
and expressed will of Congress when it enacted § 1997e(a) in         prisoners brought more than one-fourth of all civil suits
its present form. First and foremost, Congress did not               filed in the United States District Courts); Bernard D.
legislate a system of “incentives” for prisoners to pursue their     Reams, Jr & William H. Manz, A Legislative History of
administrative remedies — it commanded in the most explicit          the Prison Litigation Reform Act of 1996, Pub. L. No.
of language that inmates must exhaust these remedies in all          104-134, 110 Stat. 1321, Doc. 33, at 61 (noting that the
cases. In this case, for one, this simply did not occur —            short title given to the House measure containing the
because of Thomas’s untimely filing, there was no                    PLRA was “Stopping Abusive Prisoner Lawsuits”).
administrative consideration whatsoever of the merits of his
grievance, let alone exhaustion of the prison’s dispute            Cox v. Mayer, ___ F.3d ___, 2003 WL 21340291, at *3 (6th
resolution process. Moreover, even before today’s ruling,          Cir. June 11, 2003); see also Wyatt v. Leonard, 193 F.3d 876,
Thomas, for one, apparently failed to perceive any incentive       878 (6th Cir. 1999) (“The 1996 Act is designed to deter
to timely file his grievance — he submitted it five months         frivolous lawsuits . . . .”). Likewise, the Eleventh Circuit has
past the 30-day limit, despite the admitted absence of any         explained:
impediment to meeting this deadline. I find little comfort,
then, in the lead opinion’s prediction that its rule will not            Congress enacted this mandatory exhaustion
thoroughly undermine the congressional command of                    requirement in section 1997e(a) as part of the PLRA’s
exhaustion. It is bad enough, in my view, that some prisoners        effort to curtail frivolous and abusive prisoner litigation
undoubtedly will take advantage of our free pass to                  . . . . Congress did not enact the PLRA in a vacuum. It
circumvent this requirement.                                         held hearings and rendered findings, concluding that
                                                                     prisoners file more frivolous lawsuits than any other
   Further, Congress made no secret of its principal concern         class of persons. Congress found that the number of
in making exhaustion mandatory. This Court and others have           prisoner lawsuits has grown astronomically . . . .
amply recounted the legislative history leading up to the 1996       Congress intended section 1997e(a) to curtail the ability
amendment of § 1997e(a). We recently observed:                       of prisoners to bring frivolous and malicious lawsuits by
                                                                     forcing prisoners to exhaust all administrative remedies
  “Congress was primarily concerned about the rising                 before bringing suit in Federal court.
  number of lawsuits filed by prisoners and the perception
  that most of these suits were frivolous.” Cruz v. Jordan,
No. 01-3227                        Thomas v. Woolum, et al.           57    58     Thomas v. Woolum, et al.                            No. 01-3227

Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998)                     conclusion within a reasonable time period;10 and (iii) the
(internal quotations and citations omitted).                                greater likelihood that a prisoner might be satisfied by swift
                                                                            action against any transgressors.11 Significantly, most of
   This recognition is notably lacking in the lead opinion’s                these benefits accrue to prisoners and prison officials alike —
wishful thinking on incentives. The inmates least likely to                 and this presumably is why prison officials routinely impose
adhere to a prison’s time limits and other procedural rules are             deadlines upon themselves as well as inmates. On the
precisely those prisoners who are pursuing frivolous or                     assumption that the 30-day time limit in this case was
abusive claims. Such prisoners, after all, would have nothing               motivated by these and other legitimate considerations of
to lose in flouting prison procedures, because they would                   efficient and effective institutional functioning — and, again,
have no legitimate expectation of obtaining any remedy                      the record contains no suggestion whatsoever to the contrary
through the prison’s grievance process. For such prisoners,                 — I would hold that this deadline is presumptively entitled to
it matters only that they reach the finish line of this process             our respect, with exceptions made only in those cases where
and secure their ticket to federal court, and today’s ruling                an inmate establishes his inability to comply with a prison’s
provides a handy shortcut for doing so. Thus, by presuming                  filing limit.12
that inmates will pursue their administrative remedies in good
faith, even if this Court does not insist that they do so, the                All of these benefits are lost, however, when deadlines are
lead opinion disregards the finding of Congress that prisoners              reduced to mere suggestions. To be sure, there may be some
all too often were not acting in good faith, and the judgment               cases in which both sides act in enlightened good faith, and
of Congress that this problem could best be addressed through               voluntarily agree to move promptly through the stages of the
a requirement of mandatory exhaustion.                                      administrative process. As we judges well know, however,
  Yet, as much as the lead opinion is prepared to assume that
prisoners act in good faith, it is quite unwilling to make the                   10
same assumption about prison officials. Tellingly, in                              To the extent that the process is prolonged, of course, this leaves
                                                                            the courts to deal with stale claims and an outdated record.
assessing the potential costs of its ruling and identifying the
“one ground” that might militate against it, the lead opinion                    11
                                                                                    Indeed, in its discussion of prisoner incentives, the lead opinion
utterly fails to even allow for the possibility that prison                 cites the capacity of the prison grievance process to provide the “swiftest
officials might have good reasons for establishing deadlines                and most effective remedies.” (Lead Op. at 19.) This capa city rests in no
for the filing of grievances. Even a moment’s thought,                      small part upo n the prop er functioning and e nforceme nt of deadlines.
however, would reveal several such reasons, including: (i)
                                                                                 12
the inherent benefit of prompt investigation, while memories                       To be sure, the lead opinion pays lip service to the “mutually
are still fresh and all involved inmates and prison employees               beneficial” value of deadlines to both prisoners and prison officials.
remain at the facility;9 (ii) the desire to bring the entire                (Lead Op. at 19 n.4.) It quickly reverts to form, however, speculating
                                                                            without any discernable basis as to a purportedly “real concern” that
matter, including all available internal appeals, to a                      “prison administrators will impose shorter and shorter deadlines measured
                                                                            in hours and days” in order to shut prisoners out o f federal court. (Id.)
                                                                            Since several other Circuits have adopted the procedural default doctrine
                                                                            that so concerns the lead opinion, one would expect to see prison
    9
                                                                            administrators within those Circuits busily shortening their filing
     In this case, by co ntrast, inmate Thomas already had transferred to   deadlines and setting other sorts of procedural traps. To my knowledge,
another institution by the time he filed his grievance.                     this has not occurred.
No. 01-3227                          Thomas v. Woolum, et al.           59     60     Thomas v. Woolum, et al.                             No. 01-3227

litigation is more often adversarial than collegial, and any                   Edwards, 529 U.S. at 453, 120 S. Ct. at 1592 (internal
process which results in winners and losers is likely to invite                quotations and citation omitted).15
strategic behavior. Procedural rules, it seems to me, are
designed to avoid worst cases and limit strategic behavior,                       Then, after this prolonged but essentially worthless
while imposing no special hardship upon those who would                        administrative process has finally reached its conclusion, the
proceed in good faith even in their absence. As noted at the                   courts would be left to address claims which have gone stale,
outset, I see no indication that inmates generally have found                  and which in most cases have never been addressed on the
it difficult to meet prison filing deadlines, particularly in light            merits, but which nonetheless have been fully “exhausted” as
of the modest effort involved in filing a grievance.13                         the lead opinion construes that term. Alternatively, in cases
                                                                               which do not meet even this lenient notion of “exhaustion,”
   In contrast, the worst cases invited by the lead opinion’s                  a court’s dismissal without prejudice under § 1997e(a) often
rule promise to be very bad indeed. A prisoner who wishes                      will be only the beginning of the process, rather than the end.
to avoid the exhaustion requirement now has every incentive                    Armed with the court’s “blueprint” for the administrative
to wait as long as possible before filing a grievance, in order                steps that should have been taken but were not, an inmate
to enhance the likelihood that his submission will be rejected                 may go back and fix his prior administrative filings,
as untimely. The outer bound for this delay presumably is the                  unimpeded by the expiration of any administrative deadlines.
statute of limitations for § 1983 suits14 — and not one day                    This process may be repeated as necessary, limited only by
earlier, because this limitation period is immediately tolled                  the running of the underlying statute of limitations for § 1983
upon the commencement of administrative proceedings. See                       suits — which, again, is tolled during administrative
Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). It is                      proceedings, and likely during judicial proceedings as well.
highly disingenuous, in my view, to insist that prison officials               As noted at the outset, this eviscerates many of our prior
still have a meaningful “opportunity” to address the merits of                 failure-to-exhaust decisions — an inmate who, for example,
such an intentionally delayed grievance. Rather, as the                        did not pursue all available administrative appeals can now
Supreme Court has explained, even if it could be said that the                 pick up the process where he left off, undeterred by any
prisoner had technically “exhausted” his remedies, it could                    missed filing deadlines.
not seriously be contended that “the State had been given a
fair opportunity to pass upon” the prisoner’s claims.                            Or consider this very case, in which we hold that Thomas’s
                                                                               grievance setting forth his claims against Defendant Shawn
                                                                               Woolum did not serve to exhaust his claims against the
                                                                               remaining Defendants. I see nothing to prevent Thomas from


                                                                                    15
    13                                                                                  Even more puzzling is the lead opinion’s assertion that a state may
        In this case, for example, Thomas requested a grievance form on        “avoid federal court” by “waiving [its] procedural guidelines.” (Lead Op.
May 1, 19 98, was given the form two days later, o n M ay 3, and was able      at 11.) Just how state officials might accomplish this is not explained. In
to file his grieva nce the next day, on M ay 4, 1998 . This grievance wa s a   fact, a state that elects to address an untimely grievance m ight very well
handwritten one-page docume nt, setting forth the factual basis for            still find itself in federal court, unless it resolves the grievance in a way
Thom as’s complaints and the various remedies he was seeking.                  that totally satisfies the inmate. This is highly unlikely in the frivolous
    14
                                                                               and abusive cases that Congress specifically targeted in enacting the
         As noted in the lead opinion, this is two years in Ohio.              PLRA.
No. 01-3227                         Thomas v. Woolum, et al.         61    62    Thomas v. Woolum, et al.                           No. 01-3227

going back and filing grievances against these other parties,                   In the case of an alleged unlawful practice occurring in
advancing the failure-to-protect theory that he did not assert               a State which has a law prohibiting discrimination in
in his initial grievance. To be sure, these new grievances                   employment because of age and establishing or
would come almost six years after the incident in question —                 authorizing a State authority to grant or seek relief from
but this no longer matters, so long as the underlying two-year               such discriminatory practice, no suit may be brought
statute of limitations has not run in light of the pendency of               under section 626 of this title before the expiration of
various administrative and judicial proceedings.16 Prison                    sixty days after proceedings have been commenced under
officials still would have the “opportunity” to address these                the State law, unless such proceedings have been earlier
new grievances, and this is all that today’s ruling requires                 terminated . . . .         If any requirement for the
from an inmate in order to exhaust his remedies. Although                    commencement of such proceedings is imposed by a
this strikes me as the height of absurdity, my colleagues on                 State authority other than a requirement of the filing of a
the panel unfortunately do not share in this view — nor,                     written and signed statement of the facts upon which the
indeed, do they even acknowledge the concern.                                proceeding is based, the proceeding shall be deemed to
                                                                             have been commenced for the purposes of this subsection
                                   IV.                                       at the time such statement is sent by registered mail to
                                                                             the appropriate State authority.
   Against the foregoing weight of authority and reason in
favor of the judiciary’s presumptive respect for administrative            29 U.S.C. § 633(b). Upon reviewing the language of this
filing deadlines, the lead opinion offers up the Supreme                   statute, the Supreme Court held, among other things, that a
Court’s Oscar Mayer decision as singlehandedly compelling                  grievant is not required to commence state proceedings within
the opposite result. Indeed, it appears that the lead opinion              the time limits specified by state law in order to preserve his
must cast its lot with Oscar Mayer, because no other case of               federal right of action. See Oscar Mayer, 441 U.S. at 753, 99
which I am aware supports its view of exhaustion as mere                   S. Ct. at 2070.17
termination by any means. Yet, even the most cursory review
reveals that Oscar Mayer has nothing whatsoever to say about                 Although the lead opinion recites various policy
administrative exhaustion or the proper construction of                    considerations noted by the Court in reaching this decision,
§ 1997e(a). Thus, the lead opinion is left adrift without an               the ruling in Oscar Mayer rests first and foremost on the
anchor.                                                                    language of the statute itself. Initially, the Court observed
                                                                           that the use of the word “commenced” does not necessarily
  In Oscar Mayer, the Supreme Court addressed a lengthy,                   demand compliance with state filing deadlines, “since, by
detailed, and highly idiosyncratic provision of the Age                    way of analogy, under the Federal Rules of Civil Procedure
Discrimination in Employment Act (“ADEA”), requiring that                  even a time-barred action may be ‘commenced’ by the filing
a person must “commence[]” state proceedings at least sixty
days before bringing a federal age discrimination suit:
                                                                                17
                                                                                  As noted in the lead opinion, the Court reached essentially the
                                                                           same conc lusion in EE OC v. Comm ercial Office P roducts Co., 486 U.S.
                                                                           107, 108 S. Ct. 1666 (1988), a case involving a nearly identically worded
    16
                                                                           provision in Title VII, 42 U.S.C. § 2000e-5(c). Because this ruling and
         I express no view on the proper outcome of this inquiry in this   Oscar Mayer rest upon virtually the same statutory language and
case.                                                                      reasoning, I have confined my discussion only to the latter decision.
No. 01-3227                        Thomas v. Woolum, et al.          63     64   Thomas v. Woolum, et al.                    No. 01-3227

of a complaint.” 441 U.S. at 759, 99 S. Ct. at 2073 (citations                Other portions of Oscar Mayer also demonstrate its
omitted). The Court then found that any ambiguity on this                   inapplicability here. The Court emphasized, for instance, that
point was overcome by the statute’s express definition of                   the ADEA provision at issue “does not stipulate an
what constitutes “commencement” — namely, the “filing of                    exhaustion requirement,” but “is intended only to give state
a written and signed statement of the facts upon which the                  agencies a limited opportunity to settle the grievances of
proceeding is based,” and nothing else. 441 U.S. at 760, 99                 ADEA claimants in a voluntary and localized manner so that
S. Ct. at 2073 (quoting 29 U.S.C. § 633(b)). Thus, the Court                the grievants thereafter have no need or desire for
explained, “even if a State were to make timeliness a                       independent federal relief.” 441 U.S. at 761, 99 S. Ct. at 2074
precondition for commencement . . . , a state proceeding will               (emphasis added). Congress set the bar a good deal higher in
be deemed commenced for purposes of [the federal statute] as                § 1997e(a), of course — this provision does mandate
soon as the complaint is filed,” and irrespective of any state              exhaustion, and prison officials have been granted far more
filing limits. 441 U.S. at 760, 99 S. Ct. at 2073.                          than a “limited opportunity” to address prisoner grievances.
                                                                            As noted earlier, Congress meant for this exhaustion
  The lead opinion does not address, or even acknowledge,                   requirement to staunch the flow of frivolous and abusive
this principal basis for the decision in Oscar Mayer. The                   prisoner litigation, a concern which in no way animated the
statute in that case defined “commencement,” and decreed                    enactment of the provision at issue in Oscar Mayer.
that the states could not impose any requirements for
“commencement” beyond the bare filing of a statement of                       More generally, Oscar Mayer’s express disavowal of any
facts.18 Section 1997e(a), in contrast, supplies no special                 consideration of exhaustion principles presumably explains
definition of exhaustion. It seems reasonable to assume, then,              why, so far as I can tell, that decision has never been cited
that Congress meant for prisoners to “exhaust” their remedies               outside of its peculiar ADEA/Title VII context as any sort of
under § 1997e(a) in precisely the same way that they must                   authority on the meaning of administrative exhaustion.
“exhaust” their remedies under 28 U.S.C. § 2254(b)(1)(A).                   Indeed, Oscar Mayer does not state a rule of general
Under the Supreme Court’s then-recent decision in Coleman,                  applicability to administrative exhaustion even in the narrow
such exhaustion entailed compliance with a state’s procedural               context of employment discrimination law. In particular, the
rules, including filing deadlines. More generally, through its              courts do insist that grievants comply with administrative
enactment of the PLRA, Congress could hardly have meant                     time limits in order to pursue their employment
to relax the standards for a prisoner to exhaust his                        discrimination claims in federal court. See Zipes v. Trans
administrative remedies, or to invite creative schemes for                  World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,
avoiding this mandatory requirement.                                        1132 (1982). In a decision affirming the dismissal of a case
                                                                            in which a pro se plaintiff missed a Title VII filing deadline,
                                                                            the Supreme Court emphasized that “[p]rocedural
    18                                                                      requirements established by Congress for gaining access to
       Notably, in giving effect to this plain statutory language, the
Supreme Court observed that this was the “prevailing interpretation”        the federal courts are not to be disregarded by courts out of a
adopted by the courts, as well as the interpretation adopted by the EEOC.   vague sympathy for particular litigants.” Baldwin County
Oscar Mayer, 441 U.S. at 760-61, 99 S. Ct. at 2074. This latter             Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct.
construction, of course, was “entitled to great deference” by the courts.   1723, 1726 (1984). Although doctrines such as equitable
441 U.S. at 761, 99 S. Ct. at 2074 (internal quotations and citation        tolling might excuse an untimely filing in a particular case,
omitted). Here, by contrast, no court or other authority whatsoever has
previously endorsed the lead opinion’s interpretation of § 1997e(a).        we have cautioned that such relief is “sparingly bestow[ed],”
No. 01-3227                          Thomas v. Woolum, et al.             65     66   Thomas v. Woolum, et al.                   No. 01-3227

and that “[a]bsent compelling equitable considerations, a                          As explained above, I believe that the relevant policy
court should not extend limitations by even a single day.”                       considerations militate strongly against the rule adopted by
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,                          the lead opinion in this case. More importantly, the lead
209 F.3d 552, 560-61 (6th Cir. 2000).19                                          opinion’s willingness to dispense with administrative filing
                                                                                 deadlines runs counter to the strict exhaustion requirement of
  I fail to see why we should favor the civil rights claims of                   § 1997e(a), the intent of Congress in imposing this mandatory
prisoners over those of law-abiding citizens. In fact, the lead                  prerequisite to prisoner suits under § 1983, and the decisions
opinion’s rule creates precisely the dilemma the Supreme                         of this and other Courts of Appeals uniformly holding that
Court sought to avoid in Coleman — in this Circuit, we                           inmates must comply with a prison’s procedural rules as they
respect federal procedural rules in employment discrimination                    exhaust their administrative remedies. Accordingly, while I
cases, but not state procedural rules in prisoner § 1983 suits.                  concur in the Court’s judgment affirming the District Court,
Neither Oscar Mayer nor any other authority supports such a                      I dissent from the lead opinion’s ruling that untimely
result.                                                                          grievances satisfy the administrative exhaustion requirement
                                                                                 of § 1997e(a).
                                     V.
   In the end, the lead opinion’s ruling on the issue of
timeliness rests upon a smattering of policy-based
observations in Oscar Mayer, wholly unmoored from the
specific statutory context in which the Supreme Court ruled
in that case. This is a far cry from the lead opinion’s initial
promise to resolve this question “in light of Congress’s
purpose in passing the PLRA,” (Lead Op. at 3) — which
purpose the lead opinion then proceeds to discount — and in
light of the Supreme Court’s exhaustion precedents — which,
as noted, recognize timeliness as an essential element of
exhaustion. It is a strange form of “[j]udicial restraint,” (Lead
Op. at 19-20 n.4), in my judgment, which reaches out to
decide an unnecessary issue in a way that invites prisoners to
circumvent the congressional mandate of exhaustion.



    19
        In light of these precedents, I am at a loss to see how the lead
opinion can claim that no “procedural de fault hurdles” stand in the way
of a Title VII or ADE A litigant. (Lead Op. at 11 n.2.) Whether or not the
courts employ the terminology of “procedural default” in such cases, the
brute fact remains that individuals who miss administrative deadlines
generally forfeit their right to call upon the “federal courts as a vindicator
of federal rights.” (Id.)
