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A federal prisoner’s complaint about his missing personal belongings provided the vehicle for the 10th U.S. Circuit Court of Appeals to weigh in on a question of exhaustion under the Prison Litigation Reform Act (PLRA). In a Dec. 29 decision, Steele v. Federal Bureau of Prisons, No. 02-1492, that court joined the 6th Circuit in ruling that inmates who protest prison conditions under the act must prove that they have exhausted prison administrative procedures before a federal court will review their case. On the other hand, six circuits-the 2d, 3d, 7th, 8th, 9th and D.C.-hold that federal courts need not inquire into exhaustion unless the prison raises the issue as an affirmative defense, by presenting proof that the prisoner did not dot his i’s and cross his t’s before proceeding to federal court. The most recent entrant to the majority camp is the 9th Circuit, which characterized exhaustion as an affirmative defense in a January 2003 decision, Wyatt v. Terhune, 315 F.3d 1108. Steele’s complaint The plaintiff in the 10th Circuit case, Victor Steele, an inmate at the U.S. penitentiary in Florence, Colo., was required to put his personal belongings into the care of prison officials when he was transferred to a special housing unit for disciplinary reasons. Upon his return to the general population, Steele discovered that his belongings, which he valued at $247.10, were missing. Steele filed an administrative tort claim for that amount, but did not make use of the prison’s separate grievance process for complaints about prison conditions. When the prison offered him a mere $9.30 in settlement of his tort claim, Steele turned to federal court. He alleged that the prison had committed a tort against him and that prison conditions were a violation of his civil rights. The federal trial judge dismissed the tort claim because the prison had not waived its sovereign immunity. The judge also struck the prison-conditions claim when the prison argued that Steele had not exhausted its grievance process. Steele countered, to no avail, that the dual-track process was so confusing as to make it inaccessible to inmates. The PRLA states, “No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” The 9th Circuit in Wyatt gave three reasons for putting the burden on the prison to disprove exhaustion. First, while the court acknowledged that the phrase “no action shall be brought” was so imperious that it might imply that a prisoner must plead exhaustion even to get his foot in the door, it also noted that similarly imperious language in statutes of limitations did not prevent them from being interpreted as affirmative defenses. The court also cited Supreme Court precedent for the proposition that “we will not impose heightened pleading requirements where Congress has not expressly instructed us to do so.” Lastly, it said, “prison officials are likely to have greater legal expertise and, as important, superior access to prison administrative remedies in comparison to prisoners, especially, as is often the case, when prisoners have moved from one facility to another.” In contrast, the 10th Circuit in Steele said that Supreme Court precedent emphasizing the mandatory nature of exhaustion required the placing of the burden on the prisoner, since prisons might choose not to plead an affirmative defense for strategic reasons. Also, it maintained that, while a prisoner might not have access to files, he would have immediate knowledge of the nature of administrative claim and its relation to his federal lawsuit. The court softened its ruling somewhat by suggesting that prisoners be given a chance to resolve ambiguities in their exhaustion statements and that they be given a chance to file again. But it did not extend that charity to Steele, finding his complaint so lacking in merit as to warrant dismissal with prejudice. Young’s e-mail address is gyoungnlj.com.

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