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The 2nd U.S. Circuit Court of Appeals has cautioned judges to carefully examine whether prisoners have failed to exhaust their administrative remedies before filing federal lawsuits. The 2nd Circuit said prisoners must have “notice and opportunity to respond” to a possible dismissal of claims in their lawsuits. It said a federal civil rights case was improperly dismissed without a hearing because a prisoner had answered an emergency room form indicating he had not pursued an administrative grievance. Judge Wilfred Feinberg said the 2nd Circuit was taking the occasion of deciding Mojias v. Deputy Johnson, 03-121, “to reiterate and refine its holding” in Snider v. Melendez, 199 F.3d 108 (1999), a similar case that dealt with the exhaustion requirement of the Prison Litigation Reform Act of 1995. In Snider, the circuit said that a court “may not dismiss for failure to exhaust administrative remedies unless the court determines that such remedies are available.” It also said the question is one of law, and the court “cannot properly determine a question of law on the basis of a party’s concession.” Therefore, the Snider court said judges are “obligated to establish the availability of an administrative remedy from a legally sufficient source” before dismissing a prisoner’s complaint. In the Mojias case, prisoner Demostede Mojias was allegedly assaulted in 2002 by two captains and four correctional officers while in the custody of the New York City Department of Corrections. While being treated for his injuries in the emergency room, he filled out a form and answered “yes” to whether there was a grievance procedure at the institution, and then answered “no” to a question of whether he had presented the facts relating to his complaint in the state prisoner grievance procedure. Mojias’ answers to those questions prompted Southern District Judge Naomi Reice Buchwald to dismiss his civil rights case for failure to exhaust his remedies as required by the PLRA. One problem, argued lawyers for Mojias, is that he was a city prisoner who obviously had not gone through a state procedure. Another was that grievance procedures do not cover assault claims. John Boston, Director of the Legal Aid Society’s Prisoner’s Rights Project, said he and co-counsel took the case to the 2nd Circuit and cited a number of cases where judges have ignored the Snider holding. In some of those cases, judges looked to the New York state grievance procedures in dismissing the claims of New York City prisoners. “We took this case because we believed the problem to be a recurrent one,” he said. “We presented it as a housekeeping problem in the district courts, where Snider seemed to have escaped notice. [The 2nd Circuit] seemed to agree that you need to center on this issue and put it in neon.” Feinberg said that Mojias’ “answers on the complaint form are not a legally sufficient source from which to draw the conclusion that there were administrative remedies that Mojias failed to exhaust.” Because the availability of administrative remedies for an inmate may not be clear from the face of the complaint, he said, the circuit has warned that the “better practice” is to give inmates a chance to respond before dismissing a case. “In Snider … we held that the district court erred in dismissing the complaint without providing notice and an opportunity to respond,” Feinberg said. “We now reiterate that notice and an opportunity to respond are necessary in cases such as these and accordingly hold that the district court erred in denying them to Mojias.” Judge Robert D. Sack and Eastern District Judge Leonard D. Wexler, sitting by designation, joined in the opinion. Mary Lynne Werlwas joined Boston in representing Mojias. New York City did not appear in the action because it was never served, as the case was dismissed sua sponte by the district court.

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