Introduction
The COVID-19 pandemic has created especially risky environments in state and federal prisons where, due to mass incarceration and overcrowding, social distancing is nearly impossible and incarcerated persons are not provided proper protective equipment, such as face masks and gloves.1 There has been an increase in claims filed by incarcerated people seeking release and other injunctive remedies due to prison conditions that place them at a higher risk of contracting COVID-19.2 Under the Prison Litigation Reform Act, all incarcerated people who file claims regarding prison conditions under § 1983,3 or other federal law, must satisfy an exhaustion requirement that requires complete exhaustion of all administrative remedies prior to litigation.4 Administrative remedies are often grievances filed with the prison administration, which must be processed and responded to by administrative officials.5 Due to this exhaustion requirement, many district courts are rejecting these claims, even though exhaustion can take 75 to 105 days to complete, which can be detrimental in the context of a highly contagious disease.6
This Note will propose that the exhaustion requirement be amended by Congress to allow an incarcerated person to bring suit without exhausting all administrative remedies in cases of life-threatening emergencies, such as a global pandemic. The exhaustion requirement was previously amended in the Prison Rape Elimination Act in order to allow victims of sexual assault to meet the exhaustion requirement, and thus bring suit, by merely reporting the assault without having to file an administrative grievance.7 The exhaustion requirement of the Prison Litigation Reform Act should not apply to suits filed by incarcerated persons when they are seeking relief due to life-threatening emergency situations, and should instead be satisfied by reporting the emergency to prison officials in a manner aligned with the Prison Rape Elimination Act sexual assault exception.
This Note proceeds in three Parts. Part I presents a background of the novel COVID-19 virus and the severe impact it had on the United States prison population.8 Next, Part I describes the legislative history of the Prison Litigation Reform Act (PLRA),9 and lastly examines the history and purpose of the Prison Rape Elimination Act, which is the only context in which less stringent exhaustion requirements have been interpreted to satisfy PLRA exhaustion.10 Part II begins with an analysis of the various ways in which the PLRA’s exhaustion requirement serves as a barrier to incarcerated people seeking to file suit regarding inadequate prison conditions that place them at a higher risk of contracting COVID-19.11 Part II continues by presenting the various reasons that the exhaustion requirement is unnecessary in the context of a dangerous global pandemic.12 Lastly, Part III presents a proposed amendment to the Prison Litigation Reform Act—to remove the exhaustion requirement in a method analogous to the amendment made in the Prison Rape Elimination Act.13
I. Background
A. The COVID-19 Pandemic in the United States
On March 11, 2020, the World Health Organization (WHO) characterized the novel COVID-19 (COVID) virus as a global pandemic,14 and on March 13, 2020, President Trump declared a National Emergency due to COVID outbreaks in the United States.15 As of February 16, 2022, 77,951,498 people in the United States have been infected with COVID and at least 923,809 have died.16 The infection rate in the United States is steadily increasing, with an average of 140,204 new cases a day.17 As of February 16, 2022, the case fatality ratio in the United States is 1.2%, with 281.94 deaths per 100,000 people.18
COVID symptoms include, but are not limited to, fever or chills, coughing, shortness of breath or difficulty breathing, fatigue, muscle or body aches, and headaches.19 Those with preexisting medical conditions, such as asthma, obesity, diabetes, chronic kidney disease, coronary artery disease, etc., are at a higher risk for hospitalization and serious illness.20 Age can also make one high-risk if they are infected with COVID.21 For example, those age fifty to sixty-four are 25 times more likely to die from COVID, and those age sixty-five to seventy-four are 65 times more likely to die from COVID, when compared to those age eighteen to twenty-nine.22 There is also a racial component to the risk posed by COVID infection.23 Black Americans are 2.5 times more likely to be hospitalized from COVID and 1.7 times more likely to die from it, and Hispanic Americans are 2.4 times more likely to be hospitalized from COVID and 1.9 times more likely to die from it, when compared to white non-Hispanic Americans.24
The Centers for Disease Control (CDC) has produced guidelines in order to reduce the spread of COVID infection.25 For example, the guidelines recommend frequent handwashing, or sanitizing in the alternative; maintaining six feet of distance between oneself and others, referred to as social distancing; wearing a mask outside the home at all times; and frequent disinfecting of commonly touched surfaces.26 The CDC has also released guidelines for correctional facilities, with an emphasis on disinfecting commonly touched surfaces and proper personal protective equipment, with a recognition that correctional facilities are environments that promote the spread of COVID infection.27
B. Overview of COVID-19 Pandemic in Prison
The COVID-19 pandemic has ravaged the United States prison system and has left thousands of vulnerable people at a much greater risk than the general population. As of April 16, 2021, there have been 661,000 COVID infections and 2,990 deaths among incarcerated people and correctional facility staff across the country.28 The COVID infection rate inside prison facilities is 7,000 cases per 100,000 incarcerated people, which is more than four times the rate of cases per 100,000 United States residents.29 The mortality rate is 60% higher than the mortality rate of the general population, with 61.8 deaths per 100,000 infected incarcerated people.30 Prison officials are also facing an increased risk of COVID infection, with more than 45,470 reported cases and 98 deaths in the 685,000 people employed by a correctional facility.31
There are currently 134,190 people incarcerated in federal prison and as of February 16, 2022, 128,906 incarcerated people have been tested for COVID across all federal facilities, with 55,554 positive tests.32 As of February 16, 2022, the Federal Bureau of Prisons (BOP) reported that 54,062 incarcerated people in federal facilities and 10,736 BOP staff members have been infected with COVID, and that 285 incarcerated people and 7 BOP staff members have died from COVID infection.33 However, the Equal Justice Initiative reported that these numbers may not be accurate, as there are limited amounts of testing conducted on incarcerated people.34 For example, many facilities will not test incarcerated people who are likely to die from COVID infection, even after showing symptoms.35 As of February 16, 2022, the BOP has placed 38,185 high-risk incarcerated people in home confinement due to an order from the Attorney General issued on March 26, 2020.36 While there was an initial reduction in prison populations, it has since been reported that many state facilities have steadily increased their prison populations, returning to capacities similar to those before the pandemic began.37
The New York Times has reported that federal testing of incarcerated people is far below the national average.38 California has tested only 7% of their incarcerated population, while New York has only tested 3% as of November 30, 2020.39 Prisons that have conducted mass testing of their incarcerated populations have found that about 1 in 7 tests are positive.40 The vast majority of incarcerated people who have tested positive for COVID have been asymptomatic, meaning that they are infected but are not showing symptoms of infection.41 Furthermore, in December of 2020 the Federal Defenders reported that proper guidelines and protections were not being followed at Metropolitan Detention Center, a federal facility in Brooklyn, New York.42 While the BOP is claiming the opposite, the Federal Defenders has reported noncompliance with face mask protocols by prison officials, a lack of segregation between infected and healthy incarcerated people, and a lack of medical attention to incarcerated people who request it.43
State prisons systems are also battling terrible infection outbreaks, especially in large facilities that house more than 1,000 incarcerated people.44 For example, San Quentin State Prison in California reported an outbreak in the summer of 2020 that resulted in 2,200 infections and 28 deaths among incarcerated people, and 298 infections and 1 death among correctional officers.45 A report by The New York Times attributed this to poor ventilation, substandard healthcare, prohibitions on cleaning products, and a facility that was at 124% of its capacity.46 In North Carolina, the state prison system has reported 8,000 infections and 36 deaths of incarcerated persons and guards.47 In Connecticut, a study by the New England Journal of Medicine revealed that out of approximately 10,000 state incarcerated people, 13% of the male population was infected, which is a higher infection rate than that of the overall state.48 Furthermore, in Arkansas the mortality rate of state incarcerated people is nearly 20 times higher than the adjusted state rate, Ohio’s is 11 times higher than the adjusted state rate, Texas’s 3 times higher than the state rate, and California’s prison death rate was about twice the state rate.49
The United States has the highest incarceration rate in the world, with 1.3 million people currently incarcerated in state and federal prisons,50 which in turn leads to overcrowding in these facilities.51 Consequently, there is difficulty implementing CDC health guidelines, such as social distancing or frequent disinfection of commonly touched surfaces.52 The facilities are overcrowded and poorly ventilated, with a constant influx of prison officials, transferred incarcerated people, and visitors.53 Even more concerning, the healthcare quality offered to incarcerated people is notoriously substandard.54 These factors combine to create an increase in COVID infection and mortality rates across the country’s incarcerated population.55 A study conducted by the American Civil Liberties Union found that 188,000 incarcerated people will die from COVID infection if less effective social distancing continues, and that number is only reduced to 99,000 deaths with highly effective social distancing implemented.56
As stated earlier, the age of an individual is a contributing factor toward the risk level posed by COVID infection. This is especially problematic in the prison context, as the number of incarcerated adults who are age fifty-five and older reached 12% in 2016.57 There are also extreme racial disparities within the prison system.58 If current trends continue, 1 in 3 Black males and 1 in 6 Hispanic males can expect to go to prison in their lifetime, compared to 1 in 17 white males.59 Across all facilities in the United States, 67% of the incarcerated population are people of color, while only making up 37% of the general population.60 Black Americans are twice as likely to die from COVID infection than white Americans, but are 5 times more likely to be incarcerated.61 The Marshall Project has reported that 43 state institutions and the BOP refuse to release information categorizing COVID deaths by race. However, in states that did release that data, a higher percentage of Black incarcerated people have died from COVID infection when compared to the percentage of the general population who died in the state overall.62 A disproportionate number of older people, racial disparities, and substandard qualities of healthcare in correctional institutions, combined with a lack of adequate implementation of health guidelines and testing protocols, have all contributed to an increased risk of incarcerated people contracting and dying from COVID.
C. The History of the Prison Litigation Reform Act
Congress enacted the Prison Litigation Reform Act in 1996, which impacted various areas of the criminal justice system, including the institution of a strict exhaustion requirement.63 The purpose of the exhaustion requirement was to reduce the number of “frivolous” lawsuits challenging conditions of confinement that the House viewed as clogging the courts and preventing the efficient administration of justice.64 One method of fulfilling this purpose was to create an exhaustion requirement with only one substantive condition, namely that the administrative remedies be “available.”65 The exhaustion requirement states: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”66 The Supreme Court has determined that the PLRA exhaustion requirement applies to all suits by incarcerated people regarding prison conditions, whether they involve daily circumstances or particular instances of excessive force or other wrongs.67
Exhaustion requirements are common in many facets of administrative law, not just the PLRA, and the Supreme Court has held that all exhaustion requirements have two main purposes.68 The first is to protect the administrative agency’s authority by allowing them the first opportunity to redress their wrongs before being subjected to federal court.69 Exhaustion requirements also promote judicial efficiency in two ways. They allow the administrative agency the opportunity to remedy the issue without requiring the need for litigation, and in cases where exhaustion did not result in a proper remedy and litigation is required, the court is still provided with a useful factual record for consideration.70
The PLRA was enacted to replace the Civil Rights of Institutionalized Persons Act (CRIPA), which was enacted in 1980.71 The exhaustion requirement of the PLRA changed the exhaustion requirement of CRIPA in four distinct ways.72 First, the PLRA mandates dismissal of conditions of confinement cases in which exhaustion was not met, whereas CRIPA allowed for courts to stay cases pending exhaustion of administrative remedies.73 Second, all incarcerated people contesting their conditions of confinement on constitutional or federal grounds are subject to this requirement, which previously only applied to adults in state facilities.74 Third, the PLRA eliminated the mandatory cap on the exhaustion period, which previously provided only 180 days for correctional facilities to process an administrative grievance.75 Currently there is no time limit for processing.76 Lastly, the PLRA removed the minimum standards requirement that provided state and local facilities with specific factors that must be instituted in their grievance procedure in order to comply with CRIPA.77 Under CRIPA, if a court or the Attorney General deemed an administrative procedure to be not in substantial compliance with these minimum standards, exhaustion would not be required.78 After these amendments, the only substantive requirement that administrative remedies must meet in order for the exhaustion requirement to apply is that the remedies be “available.”79
The definition of “available”80 has been the subject of much disagreement and the Supreme Court has since interpreted its meaning. In Booth v. Churner, the Court held that an administrative remedy that cannot provide the plaintiff with the specific relief sought is still deemed available for purposes of exhaustion.81 The Court found exhaustion mandatory even when the relief sought, namely monetary damages, could not be granted by the administrative process.82 Booth also established the first exception to the exhaustion requirement, namely that an administrative remedy that is unavailable does not need to be exhausted.83 An administrative remedy is deemed unavailable when it operates as a dead end, in the sense that officers are unable or unwilling to provide relief, regardless of whether the official regulations of the facility state the contrary.84
In Ross v. Blake, the Supreme Court recognized further exceptions, although they are very narrow.85 When an administrative remedy is unknowable, meaning that the remedy exists but is so complicated or convoluted that the average incarcerated person would not be able to discern it, it is deemed unavailable under the PLRA.86 The Court explained that this does not require the remedies to be so plain as to only suggest one interpretation, but it cannot be entirely unknowable as to what is required of the incarcerated person.87 Another exception to the exhaustion requirement arises when prison administrators attempt to prevent an incarcerated person from using the grievance process through various means of machination, misrepresentation, or intimidation.88 In these situations where prison officials seek to interfere with an incarcerated person’s pursuit of relief, complete exhaustion is not required.89 These three judicially created exceptions to the exhaustion requirement are extremely narrow and not often successfully invoked, and most incarcerated plaintiffs are still required to exhaust all administrative remedies before filing suit.90
Even a procedural error by an incarcerated plaintiff, such as missing the deadline to file an administrative grievance, can preclude courts from hearing the claim due to a failure to exhaust.91 While the Supreme Court did offer some narrow exceptions to exhaustion, it is clear that the requirement remains a barrier to most litigation brought by incarcerated people.92 Notably, the Court has also held that the strict language of the PLRA requires a lower court to not excuse a failure to exhaust, even when there may be special circumstances, such as a plaintiff who mistakenly, but reasonably, believed they had exhausted their administrative remedies.93 Emphasizing the legislative authority of Congress, the Court reasoned that mandatory exhaustion statutes cannot be judicially altered, and that all exceptions must come from legislation.94 This is very pertinent, especially when federal court judges express interest in excusing the exhaustion requirement, but feel bound by the strict language of the PLRA.95
D. Emergency Situations Under the Prison Litigation Reform Act
The PLRA removed the previous emergency provision in CRIPA, which required, as a minimum standard, that the administrative remedy procedures prioritized processing emergency grievances.96 Some courts have opined that the reason for this removal was that an exception for urgent medical needs would defeat one of the purposes of the exhaustion requirement, namely, to give prison officials the first opportunity to remedy a situation and to curb frivolous lawsuits.97 Lower federal courts have typically held that there are no emergency exceptions under the PLRA that would avoid the application of the mandatory exhaustion requirement.98
The PLRA is not binding on state law claims, but the vast majority of complaints from plaintiffs incarcerated in either state or federal facilities are filed in federal court. In most cases, the Constitution is the only meaningful source of protection for these plaintiffs, and the PLRA is applicable to any claim filed under federal law.99 Some states have enacted legislation to provide expediated processing of grievances if the prison official reviewing grievances determines it is of an emergency nature.100 This does not preclude an incarcerated person’s requirement to exhaust, but merely provides that their grievance should be reviewed swiftly.101 However, this is state specific and not all states have codified a similar exception. There is also a situation in which an “imminent danger exception” can apply. Under 28 U.S.C. § 1915, if an incarcerated person has brought three or more civil actions that were ultimately found to be “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” they are precluded from filing suit again in forma pauperis,102 except if the incarcerated person is “under imminent danger of serious physical injury.”103 Generally, the imminent danger exception only excuses full payment of the filing fee, not exhaustion.104
In an extreme situation the Seventh Circuit applied the imminent danger exception to the exhaustion requirement as well. In Fletcher v. Menard Correctional Center, the Seventh Circuit reasoned that in certain situations where an incarcerated person is placed in imminent danger of serious physical injury, such as a death threat by a white supremacist prison gang within the next twenty-four hours, then administrative remedies, which offer no potential to provide relief before the imminent danger occurs, cannot be thought of as available.105 The court distinguished this situation from the holding in Booth v. Churner, where the plaintiff argued that a lack of monetary damages as potential relief deemed his administrative remedies unavailable, and the Supreme Court strongly rejected that as a valid exception to exhaustion.106 Ultimately, the Fletcher court held that because the plaintiff had access to an expedited grievance procedure, codified in the Illinois Administrative Code,107 which was separate from the prison administration’s procedure, the exhaustion requirement could not be excused for Fletcher.108 However, the decision suggested that administrative remedies would be deemed unavailable when they would not redress an immediate danger to an incarcerated person’s health or safety.109 It should be noted that Fletcher was decided before the Supreme Court clarified the meaning of “unavailable” in Ross v. Blake,110 and reliance on Fletcher’s holding has generally been unsuccessful in COVID litigation.111
The BOP’s grievance procedure provides that the warden should respond to an administrative grievance within three calendar days of filing if “the [r]equest is determined to be of an emergency nature which threatens the inmate’s immediate health or welfare.”112 However, this does not entitle a plaintiff to expedited relief, but merely to a response to the initial grievance, which could contain some relief.113 When evaluating the availability of an administrative remedy, the standard is whether the remedy could offer the possibility of some relief, not whether total and immediate relief can be granted.114 Thus, if the warden deems the request to one be of an emergency nature, even then a petitioner will most likely still have to litigate their claim in order to get the total relief sought.115
E. History of the Prison Rape Elimination Act
The Prison Rape Elimination Act (PREA) requires federal and state prison facilities to provide an expedited grievance procedure to plaintiffs who are victims of sexual assault, which in turn satisfies PLRA exhaustion.116 The PREA was introduced to combat the prevalence of sexual assault in prisons and jails across the United States.117 The Act initially garnered support due to a Human Rights Watch report on this issue, which focused on the prevalence of white men in custody who were victims of sexual assault.118 Congress created the National Prison Rape Elimination Commission (Commission) to conduct a comprehensive study on the impacts of prison rape, and the Commission then reported its findings to the Attorney General.119 The Attorney General and the Department of Justice (DOJ) were then required to implement national standards to correct the systemic issues brought to light by the Commission’s report to detect, prevent, reduce, and punish prison rape.120 The standards directly bind institutions governed by the BOP and the Department of Homeland Security121 and use a financial incentive to bind state institutions.122 If a state’s correctional facilities’ policies are not in accordance with the PREA requirements, then the state’s qualifying federal grants can be reduced by five percent until the regulations comply with PREA.123
PREA did not create a new cause of action for incarcerated litigants and as such, suits regarding sexual assault are still governed by other PLRA requirements.124 The PREA National Standards were codified in 28 C.F.R. § 115125 and permitted prison and jail administrations to create their own sexual assault grievance procedures, so long as they mirror the requirements set forth in PREA.126 The National Standards loosened the exhaustion requirements for these claims, which otherwise would be governed by the PLRA.127 The new standards contained five critical rules to assist in the exhaustion process: (1) the agency could not impose a time limit to submit a grievance alleging sexual assault;128 (2) the agency must ensure that an incarcerated person can report the grievance without revealing the report to the staff member accused of assault;129 (3) the agency must issue a final decision on the grievance within ninety days of the initial filing;130 (4) third parties, including staff, family members, or attorneys, must be allowed to assist the incarcerated person in filing the grievance and be permitted to file on their behalf;131 and (5) the agency must create an emergency grievance procedure for incarcerated people alleging a substantial risk of imminent sexual abuse.132 These new standards are much more plaintiff-friendly than the PLRA standards, especially the removal of a deadline to file a grievance. Many facilities require a grievance to be filed within fourteen days of the incident, which could be extremely difficult for a sexual assault victim who may be understandably traumatized or fearful of retaliation if the assaulter was a prison official.133 Under the PLRA, a failure to file an administrative grievance within the specified timeframe could preclude exhaustion, even if the claim had merits.134
New York State provides a good example of state rules that implemented the PREA requirements into their own correctional institutions.135 Under this rule, an incarcerated person is not required to file an administrative grievance concerning sexual assault or harassment before bringing suit, and as long as the incident is reported by one of the methods offered by the rule, a person’s administrative remedies are deemed exhausted.136 The methods of reporting that are offered are: reporting the incident to facility staff; reporting in writing to the Central Office staff; reporting to an outside agency that the Department has identified as agreeing to receive reports and forward them; reporting to the Department’s Office of the Inspector General; or a third party can report that the victim was assaulted, which the victim must then confirm.137 There is no time limit for submitting a complaint, and a filed complaint will satisfy exhaustion for the PLRA.138 Encompassed in both the New York and federal rules is the proposition that neither federal nor state Departments of Justice will tolerate sexual abuse, and both deem the issue emergent and important enough for an expediated and simpler manner of exhaustion.139
II. Analysis
A. Exhaustion Requirement Analyses for COVID-19 Litigation
The COVID-19 pandemic is unprecedented on many accounts. Not only has there never been such a widescale disruption to ordinary life, but the death toll globally and nationally is disparaging to say the least.140 When the PLRA was enacted nearly twenty-five years ago, it is doubtful Congress had envisioned its exhaustion requirement to apply to a situation such as this.141 As it stands, the PLRA exhaustion requirement is a strong barrier to plaintiffs seeking relief due to unsafe prison conditions placing them at a higher risk of contracting COVID.142 Due to the entrenched precedent mandating a stringent exhaustion requirement under the PLRA, as well as very narrow and few exceptions, federal courts have been struggling to decide whether a global pandemic circumvents the need for exhaustion of administrative remedies.143 Some district courts are finding that state departments of corrections cannot establish the affirmative defense of failure to exhaust administrative remedies when there was evidence that the petitioners had already filed grievances and were told in response that the department was already doing everything it could to combat the spread of COVID inside the facility.144 For example, the Eastern District of Arkansas seemed to suggest that this response deemed the administrative remedy as “unavailable,” as it operates as a dead end with officers unwilling or unable to provide relief.145
Other district courts have found an exception to the exhaustion requirement where incarcerated people were told by prison officials not to submit grievances because grievances related to COVID were not being accepted due to understaffing.146 Thus, the administrative remedy cannot be considered available when prison officials inform the petitioners not to file a grievance or tell the incarcerated population that their grievances will be denied if they do file.147 Similarly, in situations where prison administrations have failed to adjudicate either the initial grievances or subsequent appeals, some courts are finding that the exhaustion requirement has been met.148
However, other district courts evaluating similar arguments regarding availability are instead holding that because the grievance process exists, it is inherently not unavailable and thus requires exhaustion.149 For example, a plaintiff incarcerated at the Rayburn Correctional Facility in Louisiana filed an administrative grievance, and subsequently the state superintendent suspended the deadline for the administration to reply to the grievances, which the plaintiff argued made the remedy unavailable, as he could have been infected with COVID awaiting a response.150 The Eastern District of Louisiana rejected that argument, finding that a remedy is still available when it is possible, even if it is not addressed “as quickly as [a] [p]laintiff would like.”151 In a similar case, a plaintiff incarcerated at a federal facility in Colorado argued that due to the ninety-day timeframe allotted to respond to an administrative grievance, the administrative remedy was a “dead end,”152 as the grievance process can offer no possible relief in time to prevent the threat of COVID infection.153 The District of Colorado found that the Ross dead end exception was not applicable,154 explaining that a court may not adjust the exhaustion requirements of the PLRA for COVID or any other “special circumstance,” and denied his motion for failure to exhaust.155 Conversely, the District of Connecticut, when evaluating a similar argument that a grievance procedure, which takes 75 to 105 business days to complete, is a dead end and thus is unavailable, agreed with the plaintiff that this created unavailability.156 The purpose of the PLRA was to curb frivolous lawsuits while preserving meritorious ones,157 but in actuality a plaintiff’s claim regarding COVID will be deemed meritorious or not depending on the jurisdiction of the district court in which it is filed.
Some incarcerated plaintiffs are also seeking emergency injunctive relief and are likewise barred by exhaustion requirements. Under the Federal Rules of Civil Procedure,158 a civil action is only commenced by submission of a valid complaint, and a complaint submitted prior to exhaustion is inherently invalid and must be dismissed.159 Furthermore, without full exhaustion, complaints seeking injunctive relief must fail, as a lack of exhaustion suggests that there is not a substantial likelihood the plaintiffs will prevail on the merits of their claims, which is one of the factors a plaintiff must establish for a successful preliminary injunction.160 In regard to injunctions relating to COVID, some courts are finding that the complaints also must be dismissed due to a lack of alleged irreparable harm that COVID infection would pose unless the injunction is issued.161 Even in situations where plaintiffs who were, at the time, suffering from COVID infection sought preliminary injunctive relief, courts have dismissed their claims due to a lack of exhaustion.162
When evaluating motions seeking injunctive relief, including temporary restraining orders, district courts are reaching mixed results. For example, when evaluating a challenge to the Michigan Department of Corrections (DOC) COVID policies and procedures, the Eastern District of Michigan found that while the plaintiffs had not exhausted their administrative remedies, they were not required to do so in this instance.163 Relying on previous Sixth Circuit decisions, the court explained that incarcerated plaintiffs are not required to exhaust administrative remedies for “non-grievable issues,”164 which include complaints about DOC policies or procedures.165 Conversely, the District of Maryland held that a plaintiff’s complaint seeking injunctive relief for COVID policies must be dismissed for failure to exhaust.166 Instead of finding complaints regarding prison policies as “non-grievable issues,” the court found that excusing this failure to exhaust would defy the purpose of exhaustion requirements, namely giving administrations an opportunity to address complaints.167
COVID litigation is still moderately novel and has yet to be truly evaluated by the higher courts, but it is clear that the district courts are struggling to determine whether the exhaustion requirement must remain mandatory, especially when upholding the requirement can lead to the petitioner’s infection or death.168 For example, the District of Massachusetts refused to apply the exhaustion requirement to a habeas claim, finding that the case arose from extraordinary circumstances and unprecedented public health risks.169 Without relying on a previous exception established by the Supreme Court, the court found it an unnecessary requirement in the context of a dangerous health risk.170
One of the most highly litigated cases regarding COVID and the exhaustion requirement is Valentine v. Collier, first heard by the Southern District of Texas in April of 2020.171 In a series of appeals and remands, the district court granted the incarcerated plaintiffs’ motion for a preliminary injunction, while the Fifth Circuit stayed the injunction.172 Notably, the Supreme Court declined to vacate the stay, but issued a memorandum opinion on the exhaustion requirement and the importance of protecting the country’s incarcerated population.173 Justices Ruth Bader Ginsburg and Sonia Sotomayor found that since the incarcerated plaintiffs filed suit before filing any grievance with the prison itself, they could not find a reason to claim that the Fifth Circuit erred in its decision, but still emphasized the dire situation faced by incarcerated persons across the country.174
The Fifth Circuit seemed to reject the possibility that grievance procedures could ever be a “dead end” even if they could not provide relief before an inmate faced a serious risk of death. But if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like COVID-19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely. . . . But I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.175
While the memorandum opinion was issued in agreement with the Fifth Circuit’s holding, it is evident that the Justices also believed that a global pandemic is a situation in which stringent adherence to the textual definition of “available” only serves to do more harm than good.176
In the most recent appeal of Valentine, the Fifth Circuit once again found that the plaintiffs’ claim must fail due to a failure to exhaust administrative remedies.177 Citing Ross v. Blake, the court held that the exhaustion requirement is mandatory and courts have zero discretion to hear unexhausted claims.178 The court rejected the district court’s analysis, which found that the grievance procedure was unavailable and thus excused, and held that special circumstances do not matter, even when posed by global pandemics.179 In coming to this conclusion, the court noted that since the PLRA’s exhaustion requirement was set by Congress, only Congress has the power to amend it.180 The Eleventh Circuit, in Swain v. Junior, also found that failure to exhaust is an affirmative defense and that special circumstances cannot be taken into account.181 As these are two of the few COVID cases that have been litigated in the circuit courts thus far, these holdings have more authority on the district courts, even in nonbinding jurisdictions, than less novel issues of litigation.182
B. The Exhaustion Requirement Is Unnecessary in the Context of a Global Pandemic and Other Emergency Situations
The mandatory exhaustion requirement of the PLRA is extremely harmful in the context of a global pandemic and a national emergency. As federal courts have noted, and is now evident to most people, the COVID pandemic presents a unique risk to public safety, one that has been ravaging the United States for more than two years and taking hundreds of thousands of lives in the process.183 Exhaustion of all administrative remedies can take ninety days to complete,184 in some states as many as 105 business days,185 at which point a medically vulnerable incarcerated person could be infected with COVID or potentially deceased. If an incarcerated person is at high risk for severe illness or death from COVID infection, due to age or underlying medical conditions, a mandatory two to three month waiting period can make the relief sought futile if they are infected during this time.186 Even where courts are noting that medically vulnerable incarcerated plaintiffs are likely to suffer imminent serious medical complications or death if they contract COVID,187 relief is still denied, largely due to the procedural requirements imposed by the PLRA.188
Even the Supreme Court, while still finding the exhaustion requirement controlling, implied that in unprecedented circumstances such as this, administrative remedies may be deemed unavailable.189 The district courts have also reiterated that there is a duty on prison administrations to ensure the health and safety of all incarcerated populations, even if the mandated exhaustion requirement prevents the judicial system from providing the requested relief.190 Even if it could be agreed that COVID creates a special circumstance, the lower federal courts are bound by the plain language of the PLRA.191 Without an amendment to the PLRA, those incarcerated must either wait in fear of contracting a serious disease or be left without any possibility for relief due to a procedural error in the administrative grievance process.192
The lack of adequate healthcare and overcrowding only adds to the peril of this situation, as incarcerated people do not have the autonomy to maintain social distancing nor do they have the adequate personal protective equipment to attempt to keep themselves safe.193 Furthermore, due to the congregate environment of a prison, namely that people work, live, and eat within the same crowded environment, it is extremely difficult to stop the spread of COVID once it enters a facility.194 In many respects, the country’s incarcerated population are the most vulnerable to COVID infection, as they do not have the ability to protect themselves or remove themselves from their highly infectious environment.
While some states have created their own emergency grievance procedures,195 those procedures should be available in all states. The specific state in which one is incarcerated should not determine whether they remain healthy and uninfected. There is a relevant federal rule for expedited procedures if the grievance is deemed emergent, but various cases have exemplified that prison administrators do not classify COVID as an emergency as it is affecting all incarcerated persons.196 Even in other emergency situations, such as the devastating aftermath of Hurricane Katrina, the courts felt constrained to the exhaustion requirement.197 The Fifth Circuit held that Hurricane Katrina was not a special circumstance that provided the court the liberty to create new exceptions to the PLRA’s exhaustion requirement, as this is an area in which it is particularly restrained.198 When facing national disasters, such as a hurricane or a pandemic, this procedural barrier should not prevent the courts from remedying the unconstitutional treatment of some of the most vulnerable in the population, solely to defer to the legislative authority of Congress. When constitutional violations occur, it is within the government’s interest, and that of society, to remedy it,199 and the judiciary should have the authority to do so when it sees fit.
III. Proposal
The exhaustion requirement should be amended to allow for a flexible and faster procedure when an incarcerated person is seeking relief, whether through release or other injunctive remedy, due to an emergency situation, such as serious threat of illness or death from COVID. The PREA altered the exhaustion requirement once before, to provide an expedited procedure for an incarcerated person who was a victim of sexual assault.200
The PREA exception should be used as a framework for emergency situations, which, similar to sexual assault, cannot be properly remedied with the current grievance procedures.201 Various federal courts that found that exhaustion was not required, even though ultimately denying relief to the petitioners on other grounds, were in agreement that this crisis should preempt the administrative requirement.202 Instead of requiring the district courts to force a global pandemic into one of the three narrow exceptions created by the Supreme Court,203 an amendment would allow for a more efficient litigation process. Since one of the reasons for the exhaustion requirement is to promote judicial efficiency,204 an amendment will create more efficiency, rather than constant appeals and reversals as the district courts and courts of appeals continue to decide COVID litigation without proper guidance.205
Another reason for the exhaustion requirement is to allow administrative agencies the opportunity to resolve disputes before litigating in court.206 However, when a highly contagious disease is spreading through a facility, there is little that an administrative agency can do to resolve the threat to a high-risk incarcerated person. In this situation especially, it is more prudent to allow the judicial system to handle these claims, as it may be more equipped to do so, especially if a petitioner is seeking release or home confinement.207
Furthermore, when enacting the PLRA its proponents emphasized that its purpose was not to curtail incarcerated people from bringing legitimate claims, but rather to reduce the influx of meritless claims from pro se incarcerated plaintiffs.208 However, since its enactment there has been a drastic reduction of filed claims, as well as a reduction in successful claims, which critics have attributed to the overwhelming barriers encompassed in the PLRA—exhaustion being only one.209 In fact, when the PREA was first proposed, its proponents argued that the PLRA exhaustion requirement frustrated Congress’s purpose of eliminating sexual assault in prison, as many victims were unable to bring claims due to the strict deadlines for filing administrative grievances.210 In response, Congress eliminated the timing restriction and loosened the requirements for meeting exhaustion when bringing a sexual assault claim.211
The emergency faced by incarcerated persons fearing COVID infection is as necessary to combat as sexual assault, and Congress should respond to this crisis in a similar manner by amending the exhaustion requirement as it pertains to COVID claims. As one critic stated, “A requirement of administrative exhaustion that punishes failure . . . and allows no exceptions for emergencies, is simply unsuited for the circumstances of prisons and jails, where physical harm looms so large and prisoners are so ill-equipped to comply with legalistic rules.”212 Rather than allowing the administrations the freedom to remedy constitutional infringements of their own accord, the exhaustion requirement has been argued to instead have the effect of obstructing judicial oversight of conditions of confinement.213
There are also a multitude of other barriers encompassed in the PLRA, such as only granting release as a remedy if a three-judge panel determines that the statutory requirements for release have been met.214 These already existing statutory barriers will reduce the number of requests granted by the courts.215 Furthermore, when plaintiffs’ claims have not been dismissed due to the exhaustion requirement, the physical injury requirement of the PLRA has still circumvented the court from issuing relief.216 The PREA exception did not result in overflow of litigated cases but merely provided a better system for the most vulnerable of the prison population.217 An amendment that allows for exhaustion to be satisfied by reporting the grievance, combined with either a mandatory expedited review process by the administration or removal of the appeals process for administrative grievances, will provide an incarcerated person with a route to relief less impeded by procedural barriers. Furthermore, if the judicial system is able to provide relief for these grievances, ultimately the administrations will either release their medically vulnerable population or implement better procedures, which would benefit not only the plaintiffs, but also the administration and society in general.218 This amendment will not erode the rationales for the exhaustion requirement, but rather will make the judicial system more humane during a national crisis.
At the time of this Note’s publication, the House Judiciary Committee’s Subcommittee on Crime was drafting a narrowly focused bill aimed at amending the PLRA exhaustion requirement in emergency circumstances.219 The proposed bill contains an “Emergency Circumstance Exception,”220 which states that “[d]uring an emergency circumstance, a prisoner who is confined to any jail, prison, or other facility need not exhaust administrative remedies with respect to prison conditions that pose a significant risk of harm to prisoners before filing a suit concerning prison conditions or access to counsel.”221 It also contains a provision defining “emergency circumstances,” which include declarations of emergency from the President or state authorized designee, a public health emergency pursuant to the Public Health Service Act, or a situation at any correctional facility that presents an immediate and significant risk of harm to incarcerated people.222 At the time of this publication, this bill was still in the process of being revised, but its writers were driven to propose this amendment largely from the COVID-19 pandemic and the resulting litigation under the PLRA as it currently stands.223 Without support for these changes, or others like them, incarcerated people, and the judiciary, will remain bound to the language of the PLRA.
Conclusion
As the world enters its third year facing a global pandemic, the infection rate in the United States only continues to worsen. On February 22, 2021, The New York Times reported that 500,000 Americans had died from COVID infection, a disheartening milestone.224 The United States’ death toll is higher than any other country in the world, and more Americans have now died from COVID than have died from World War I, World War II, and the Vietnam War combined.225 This situation is not resolving on its own and has only served to infect more people and claim more lives. While individuals can use personal measures to protect themselves, such as wearing personal protective equipment and cleaning their own belongings and common spaces, incarcerated people are not entitled to that luxury. While it is common knowledge that those incarcerated are not entitled to the same freedoms as other individuals, they are entitled to retain their health and safety while finishing their debt to society. However, as the pandemic has only made more evident, procedural barriers can stand in the way of medically vulnerable people receiving the assistance they require.
When federal judges and Supreme Court Justices are remarking their empathies toward the incarcerated population, without being able to legally provide the relief requested, it should emphasize to Congress how dire the situation is. The exhaustion requirement of the PLRA was amended from its predecessor to be stricter and less open to exceptions, which it did accomplish. However, in doing so, it also removed the opportunity for relief from unconstitutional conditions of confinement from hundreds of thousands of incarcerated people, many of whom have legally valid claims, but are prevented from redressing them. Since this requirement was amended in the PREA to curtail the prevalence of prison sexual assault, it clearly can and should be amended to prevent the needless death of people all over the country.