On March 24, 2005, in Ngo v. Woodford, Case Number 03-16042, a published opinion, the Ninth Circuit Federal Court of Appeals, whose opinions effect eleven western states, essentially tossed-out the California Department of Corrections ("CDC") procedural rejection criteria codified in Title 15 of the California Code of Regulations ("15CCR"), regarding the rejection of inmate appeals and grievances for procedural grounds.

In filing an administrative appeal or grievance, typically, an inmate must first attempt to resolve the issue at an “Informal” level (See 15CCR 55 3084.5(a), 3084.6(c).). Then following rejection of the informal appeal, an inmate may file a “Formal” appeal with the Appeals Coordinator (See Ibid.), who has the duty to screen and categorize appeals, and may also reject appeals based on procedural requirements the inmate was unable to meet. Often the time spent in attempting to resolve the appeal at the “informal” level cannot be documented and will delay the formal appeal filing, beyond the 15-day time limit.

In 1995, Congress passed the Prison Litigation Reform Act ("PLRA"), and the part relevant to exhaustion of administrative remedy was codified at 42 U.S.C. §1997e(a), which in pertinent part states, "No action shall be brought with respect to prison conditions under [42 U.S.C. 51983]...by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

Prison Appeals Coordinators, almost without exception, immediately began taking advantage of the PLRA by strictly enforcing procedural barriers to submitted appeals -- thus avoiding addressing the actual appeal or grievance issues.

The Ngo Court noted that complex procedural timing schemes "would penalize the less sophisticated and less informed who are unable to satisfy complex and demanding procedural requirements, regardless of the merits of their claims," (Ngo, Slip Opinion at p. 3606-07)

The Ngo case involved an appeal that the Appeals Coordinator rejected on procedural grounds because the inmate had not filed within 15 days of the action or incident being appealed. Ngo then filed a second appeal contending that his appeal was in fact timely. The Court noted that it is unclear as to why the CDC has such a short deadline, but felt it unnecessary to decide the timeliness issue. Instead, the Court held that any type of “Procedural default is not an inextricable element of the PLRA exhaustion requirement.” (See Slip Opinion at p. 3608)

The Court discusses its reasoning and, in short, the administrative exhaustion rules have two principle purposes. “The first is to protect an administrative agency's authority by giving the agency the first opportunity to resolve a controversy before a court intervenes in the dispute. See id. The second is to promote judicial efficiency by either resolving the dispute outside of the courts, or by producing a factual record that can aid the court in processing a plaintiff's claim." (See Slip Opinion at p. 3596)

The Court found that, “The PLRA requires prisoners to exhaust all available administrative remedies before filing a 51983 claim in federal court.  See 42 U.S.C. 5 1997e(a). With the Appeals Coordinator's second decision, Ngo exhausted his appeals because he could go no further in the prison's administrative system; no remedies remained available to him.”  (See Slip Opinion at p. 3598)

After much discussion explaining the distinction between a failure to exhaust and a procedural default, the court states, “Holding that the PLRA does not contain a procedural default bar thus would in no way obstruct the goal of allowing prison officials first crack at resolving prisoners’ grievances. It is for the prison officials to decide whether to exercise its discretion and accept or refuse the opportunity to hear the case on the merits regardless whether the grievance is timely filed. In this case, the Appeals Coordinator could have considered Ngo's appeal; she was authorized to do so by the grievance regulations: but elected not to.” (See Slip Opinion at p. 3605)

Within its conclusion the court stated, “Not even proponents of the PLRA wanted to bar worthy claims.” . . . "Procedural default is not an inextricable element of the PLRA's exhaustion requirement.” . . . “We also hold that the PLRA's exhaustion requirement does not bar subsequent judicial consideration of an exhausted administrative appeal that was denied on state procedural grounds.” (See Slip Opinion at p. 3608)

The Court also makes the comment that, “Moreover, prison administrators should not be given an incentive to fashion grievance procedures which prevent or even defeat prisoners' meritorious claims.” (See Slip Opinion at p. 3608)

Within the text, the Court also notes that there is a split in the Circuits over some of the issues considered. Until, or even if, the U.S. Supreme Court ever decides to consider this issue, it will remain law in the western states.

Tom Watson