Booth v. Churner - Oral Argument

Argument of Nancy Winkelman

Chief Justice Rehnquist: We'll hear argument next in Number 99-1964, Timothy Booth v. C.O. Churner.

Ms. Winkelman.

Mr. Winkelman: Mr. Chief Justice, and may it please the Court:

This case involves an excessive force action brought by a State prisoner under Section 1983 that was dismissed on the grounds that the prisoner had not exhausted the Commonwealth of Pennsylvania's three-tiered prison grievance system.

The case turns on an issue of statutory construction, whether when first enacting and then amending Section 1997e(a), to limit the exhaustion provisions to, quote, such administrative remedies as are available.

Congress intended to require a prisoner, whose remedy is one for monetary damages, to address a past-completed constitutional violation to exhaust a prison grievance system that cannot provide such a remedy.

Of course, the backdrop of this case is that there's no general exhaustion requirement in Section 1983.

But what is key here is that when Congress first enacted the Section 1997e exception in 1980 and then when it amended Section 1997e in 1996, while dramatically strengthening and changing the exhaustion provision in many respects, it retained the key words, such administrative remedies as are available.

Chief Justice Rehnquist: But they also took out the words about effective, did they not?

Mr. Winkelman: That's correct, Your Honor.

Congress took out the words plain, speedy and effective in 1996, along with making exhaustion mandatory rather than discretionary, removing the stay provision and a number of other changes.

The purpose of taking out plain, speedy and effective, though, those words did not drive the result that we're seeking here.

They didn't drive the inquiry of whether, in fact, the prison grievance system could provide the relief.

What those words... what the work that those words did in the prior statute, and this is evident from looking at the present statute, which is reprinted on page 5A of Respondent's brief.

Justice Breyer: In this case the statute says, no action.

It doesn't say particular claim for something.

It says no action shall be brought until such administrative remedies as are available are exhausted.

Your client, I take it, brought an action and in that action, he wanted a transfer of records, a bunch of different things, as well as damages.

So at least as far as this case is concerned, why wasn't there for that action remedies to exhaust, namely all the transfer part, all the other parts?

Mr. Winkelman: Your Honor, when Mr. Booth brought his claim, it's true that he sought both what we know as injunctive relief and money damages and in fact that was the basis upon which Respondents opposed our petition for writ of certiorari, that this was a mixed case.

But the question that we presented was a money damages only case and that's the question that's before--

Justice Breyer: Just looking at the statute, the statute, though, and the statute refers to action and this is a mixed action.

And I would think there's a very strong argument that whatever you think about somebody who runs into court and files a claim only for money damages, where a prisoner asks for both, he shouldn't be able to bring his money claim in court until after he's exhausted his prison remedies in respect to what there is to exhaust and there's a lot.

Mr. Winkelman: --Actually, Your Honor, the Courts of Appeals have taken a different approach.

The Tenth Circuit--

Justice Breyer: So that's what I want to know, what's the rationale for allowing a person who has the mixed claim to go to Federal court at all, if he doesn't first go and exhaust what he has to exhaust?

Mr. Winkelman: --The Courts of Appeals haven't explained their reasoning in the decisions, but one possibility would be a practical one, which is if in a mixed claim situation the prisoner has to go back and exhaust both the injunctive and the monetary part, it's likely that their monetary claim... they would risk... face a high risk of forfeiting their money claim because it would be too late to exhaust that through the prison grievance system.

Pennsylvania's, for example, is five days.

It's 15 days for bringing your initial grievance.

So if Mr. Booth's case had been dismissed, he would have been out of time, in all likelihood by that point, to pursue the money claim through the grievance procedure, which is why I think the Courts of Appeals had approached the issue and dealt with this problem by permitting--

Justice Ginsburg: I don't follow that if he hadn't come to court at all.

If the rule is, if you want more than one kind of relief, you must go to the administrator within five days, whatever.

So the idea is, I think what Justice Breyer was suggesting, that is if you have a mixed claim, this... what you're trying to present, you said, the question we presented is damages only.

You want this Court to treat this case as though there were never any claims, anything else other than money damages and I understand that that's how you would like this case to be treated, but if we take this very case, I am not following your argument that there would be any loss of time and a time bind for the defendant if you must go swiftly to the prison system and name everything.

Mr. Winkelman: --My argument Justice Ginsburg is that when he brought his... he brought his mixed action, that is true.

If he had been... if that action had then been dismissed, go back and exhaust because there are injunctive claims in here that need to be exhausted, he would have been, he would have been time-barred from pursuing the money damages claim then in Federal court because he had to bring his grievance, under Pennsylvania's grievance procedure, within 15 days of the incident.

By the time he brings his action in Federal court, the Federal court then dismisses.

He's too late.

Justice Ginsburg: But the point is he should never have come to a Federal court.

On the interpretation that you've got a mixed claim, don't come to Federal court, exhaust.

Mr. Winkelman: If our interpretation is right on the money damages point, and I'd like to go there, if that's right then the approach that the Tenth Circuit took in the Miller case, I think, addresses the concern.

The prisoner brings a mixed claim.

The court allows the money damages aspect of the claim that the Tenth Circuit agrees does not have to be exhausted to go forward, thereby avoiding this problem of the prisoner perhaps losing the money damages claim all together because they could never exhaust the claim.

It's too late.

Justice Ginsburg: May I ask you about that?

Is it your position, let's say, it was, you were seeking nothing but money, that it is not required even to take the first step.

Here there were three steps in the grievance procedure, the first was taken.

There was an administrative complaint filed.

Mr. Winkelman: That's correct, Your Honor.

Justice Ginsburg: But then the prisoner said, I'm not going to go on to steps two and three.

But I take your argument to be, if you want money, you don't even have to take step one.

You can go directly to court.

You don't have to complain within the prison system at all.

Mr. Winkelman: It's not exactly if you want money.

It's if what you are seeking and the relief that you're seeking, that the prisoner's seeking in the 1983 action, is not available, cannot be provided--

Justice Ginsburg: I'm just asking you to answer that question yes or no.

On your theory, am I right, is not available, you don't even have to take step one?

Mr. Winkelman: --That's correct, Your Honor.

Justice Scalia: I don't understand how you get there from the statute.

I mean, you would have the statute read until such administrative remedies providing the same relief are exhausted and it doesn't say that.

It says until such administrative remedies as are available.

I mean, that's a very broad phrase, such administrative remedies as are available.

Justice Ginsburg: It could be all sorts of remedies, damages, injunctions.

Justice Scalia: On what basis do you want it limited to only those remedies that provide your client the same relief he wants in the 1997e action.

I don't understand that.

Mr. Winkelman: I think the answer to that question, Justice Scalia, lies in the whole purpose of administrative exhaustion.

What are we talking about here?

We're talking about, in any context, prisoner context, or security context, any other context, an individual going to an administrative agency when that agency can provide the relief.

Here there's no question--

Justice Scalia: I understand that.

That may well be with respect to those exhaustion requirements that are devised by the courts without any statutory requirement, but it is entirely conceivable that an exhaustion requirement would have other purposes as your opponents claim here, simply making the prisoner go through a lengthy procedure that may satisfy him even though the relief is not the same or that may persuade him that the factual basis for his claims are so insubstantial that it's no use troubling the Federal courts with them.

There are a lot of other reasons for making him go through these hoops before he is one of the, what, 45,000 prisoners a year who run into Federal court right away.

That seems to be a perfect valid purpose and it seems to me that the way the statute reads.

Mr. Winkelman: --Your Honor, if Congress had intended to require exhaustion in every case, a blanket exhaustion rule, it would have and could have written such a statute, but it didn't do that in 1980 and when Congress had the opportunity in 1996, and I want to go back to the question about effective because I don't think I answered that completely.

When Congress had the opportunity in 1996 to create this kind of blanket exhaustion, we want all prisoner problems to go through the prison grievance system, it didn't do that, it retained the six words.

Justice Scalia: I don't know what possible language I would use if I were writing a statute to demand precisely that result, other than the language, until such administrative remedies as are available are exhausted.

I mean, that seems to me to do precisely what you say Congress hasn't done.

Mr. Winkelman: Let me suggest to you what we... that the kind of the statute that we would think would be this blanket exhaustion, exhaustion every case, it's a good thing for prisons.

The statute is at issue in McNeil, the Federal Tort Claims Act, an action shall not be instituted under the FTCA unless the claimant shall have first presented the claim to the appropriate Federal agency.

So this statute could have said Congress could have, rather than advertently leaving in the words, until such administrative remedies as are available, Congress could have written a broad exhaustion statute.

Justice Kennedy: Well, I'm not sure that that would work.

It seems to me that the statute that the Congress has here is better.

There may be cases, not just as Justice Scalia indicated where the claim is insubstantial, there may be cases where it's very substantial.

But the courts are certainly helped by having a... suppose they had a hearing, the guard was disciplined, reprimanded.

They restored whatever disciplinary demerits or they erased any disciplinary action that was taken against the Petitioner.

That would be very helpful to the court.

Now maybe they can't give damages, but that's the next stage.

Mr. Winkelman: It might be--

Justice Kennedy: And you're saying that it's just irrelevant to the courts, that there are some disciplinary mechanisms that the prisoner... that cover this incident.

It's not saying that he has to apply for library privileges or something.

It is to cover this incident and help clarify and crystallize the situation.

Then he goes and asks for damages.

Mr. Winkelman: --Justice Kennedy, it's not... this isn't a general prison notification.

There may be benefits to having prisons know about problems in the first instance.

We don't dispute that.

We don't dispute that there are benefits to prison grievance systems, but the point here and our argument is that Congress kept in these words.

It didn't create an FTCA type statute and what's important--

Justice Kennedy: The FTCA statute doesn't work because you don't make a claim for damages.

What the Congress is saying here is there are other benefits besides simply processing this claim.

We want to have the entire incident investigated first and you can't make that parallel between the FTCA and this statute.

This statute served purposes that are not served by the FTCA example you put out and this statute is... it doesn't seem to me that the Congress could have taken the FTCA analogy to accomplish the result that it wants to accomplish here.

Mr. Winkelman: --If the result is that all prison complaints and all prison problems are aired through the prison grievance system first, then I submit that Congress could have created that type of statute, but Congress didn't do that.

Justice Souter: Well, I would agree with you that Congress perhaps could have been clearer about it.

But I want to ask you just a textual question to see whether we disagree on that.

I will admit that when I first looked at the statute I thought remedies referred to form of relief.

But after reading the briefs and reading the statute a few more times, I came to the conclusion that, in fact, remedies was an ambiguous word.

It could either mean form of relief or it could mean administrative process.

And one of the textual clues, it seems to me, that's in there to indicate that Congress meant administrative process was its use of the word exhaust.

We don't normally speak of exhausting the relief that you get.

I mean, like running through the money damages and having a good time, that's what... I mean, exhaustion usually refers to exhausting a particular process.

So just at kind of step one, the textual point here seemed to me probably to make a better argument or support a better argument, that what Congress was talking about when it used relief was administrative process rather than... a remedy rather.

It was using administrative process rather than particular relief awarded.

Would you comment on that?

Mr. Winkelman: I agree that there's some ambiguity in the word remedy and procedure and it's something certainly that we've struggled with, with the word remedy in the statute, that sometimes it can mean an administrative procedure and sometimes it can mean the right.

Where we've come out is that in this statute it's probably doing double duty in some sense, but when it--

Justice Souter: Well, if it's doing double duty, doesn't that nix your case?

Mr. Winkelman: --I don't think so, Your Honor, because it's still an administrative remedy as are available.

It means both procedure and it means something that can actually give you the right, the relief that you seek, something that can actually redress the wrong.

That's the meaning of remedy.

Chief Justice Rehnquist: One of the practical difficulties of your interpretation is that I gather a prisoner by simply saying he wants money damages in any case can avoid the grievance system entirely even though money damages might not be a major part of what he wants.

Mr. Winkelman: Chief Justice Rehnquist, this problem of bypass, I think, is a little, somewhat overblown in some of the briefs.

It's conjectural.

In fact, the empirical evidence would point to the contrary that in the Circuits, in the Fifth and the Ninth Circuits, that have held our away on the money damages point, there hasn't been this bypass and this explosion of litigation and that makes sense because if what the prisoner wants, the prisoner can, in fact, get through the prison grievance process, then just like the State's amicus brief points out, numerous grievances are resolved in a prisoner's favor.

They would go there.

I need a different cell.

I need to be housed without a smoker.

Why would they give up the injunctive relief that they want simply to get into Federal court where they have to today pay a filing fee, at least in installments, where they risk losing one of their three lifelong strikes if, in fact, their proceeding IFP and their case is dismissed?

So--

Justice Ginsburg: Ms. Winkelman, I wanted to get a clearer handle than I now have on the nature of the claim you think you have.

You were candid in saying before, if you have this kind of claim, you can go directly to court with no administrative filing at all.

Suppose the administrative process does include some kind of monetary relief, but it's got a cap, say a thousand dollars capped.

And your client's view is they beat me to a bloody pulp and a thousand dollars wouldn't begin to compensate me for my injury.

Could such a person, in your view, go directly to court because there's no available remedy?

There's a monetary remedy but it's capped.

Mr. Winkelman: --Your Honor, in that situation, Justice Ginsburg, the prisoner would have to go through the prison grievance system because the prison grievance system, while it couldn't provide the one-to-one correlation of the relief could provide the category of relief and certainly our position wouldn't preclude a cap such as the one that you posit your hypothetical.

But in that situation there is a monetary damages remedy available.

It may not be a perfect remedy.

It may not be the one-to-one fit, but the difference between that case and our case, is that in our case there was no monetary damages remedy available at all and that's why Mr. Booth, as a matter of administrative exhaustion, didn't have to go through that process.

Remember, when we're talking about administrative exhaustion and Congress can be presumed to have been legislating when it chose and then retained these words, such available... such administrative remedies as are available, that there's a long-standing jurisprudence in the administrative law area about the futility--

Justice Ginsburg: I'd like to ask you now, I understand the nature of the claim you're asserting.

Suppose I were of the view, this statute is nor crystal clear.

It could be read either way.

It could be read to say, if there's administrative process, you have to exhaust it or it could be read to say, only if the kind of relief you're seeking is available must you exhaust.

Then when the text doesn't tell me which one of those is right.

Why isn't the proper perspective what Congress was trying to do?

One thing we know Congress was trying to do, is to curtail prisoner litigation.

Why wouldn't it be appropriate for a court to say well that's going to be how I break the tie?

The text could be read either way, but I know that Congress wanted to curtail prisoner litigation so I'm going to read it the way that will keep cases out of court.

Mr. Winkelman: --Certainly that was a purpose of the Prison Litigation Reform Act.

We acknowledge that and there are numerous provisions in the PLRA that go to that point, the filing fee, the three strikes provision, all the enhanced mechanisms for a district court's screening of prisoner complaints.

And even this very statute was amended in significant respects to channel far more grievances and complaints through the grievance system before they could come to court.

It's mandatory rather than discretionary.

There's no more stay.

There's no more Federal oversight of the adequacy of the State procedures, but Congress fell short we believe when it retained those words against a backdrop of administrative law jurisprudence about futility.

When it retained those words, Congress intended to preserve that avenue for prisoners and, in fact, there are other parts--

Justice Scalia: Ms. Winkelman, when Justice Ginsburg followed up on her question, I thought she was going to follow-up by asking what if the damages available in the prison grievance procedure were only 50 dollars?

I presume your answer would be the same since there is a damage remedy available in the administrative procedure you have to exhaust, which means that, you know, that what you're proposing to us besides not, in my view, corresponding to the text of the statute doesn't even have the virtue of providing fairness it seems to me.

Why should it be if I can get 50 dollars I have to go through the prison grievance procedure when I'm claiming 10,000 dollars of actual damages?

It doesn't make any sense.

Mr. Winkelman: --Certainly, Justice Scalia, there would be some threshold at which the prison grievance system's damages might be so nominal as to not be the kind of relief that we're talking about.

I don't know exactly where that line is.

But the other point in terms of statutory interpretation is that, if all Congress meant to do was to say that prisoners have to go through every prison grievance system, then these words would be superfluous.

What could they mean, such administrative remedies as are available?

Certainly, if there's not a procedure in existence, Congress wasn't trying to say a prisoner has to go through that.

Chief Justice Rehnquist: If you're right, Ms. Winkelman, Federal judges are going to have to say, does this prison system allow for damages?

And maybe it won't always be clear whether it does or not.

And secondly, what is the cutoff point in damages, which you say there must be, between just allowing enough to require exhaustion and not requiring it and not awarding enough.

So, you're putting more uncertainty into the Act it seems to me.

Mr. Winkelman: I think actually, Chief Justice Rehnquist, we're putting less uncertainty into the Act than Respondents' reading is because, even Respondents don't take the extreme position that such administrative remedies as are available means any procedure in existence.

Even Respondents acknowledge that the procedure has to be, the administrative remedy has to be capable of addressing the subject matter of the prisoner's complaint.

And with that in mind that would create more work on the district courts because instead of just looking at what the prisoner is seeking, what relief and then is that available in the grievance system, they're going to have to parse through the subject matter of the complaint, parse through whether the grievance system can actually address that, which I think it would create more work for the district courts.

Chief Justice Rehnquist: But, I mean, as is opposed to applying for a library card, is there really going to be much doubt about whether a prison system can address a type of grievance?

Mr. Winkelman: But if that's the case, Your Honor, then I'd go back to the point then the words are superfluous, why are they in there if there's no doubt?

Justice Scalia: What words?

I don't understand.

You did say that before and I didn't understand what you meant.

What--

Mr. Winkelman: If all Congress meant was, is there a procedure in existence or does the procedure address the subject matter, it didn't need to say such administrative remedies as are available because certainly it goes without saying that there would have to be a grievance procedure in existence and that that procedure--

Justice Souter: --Why does it have to go without--

Mr. Winkelman: --Because Congress couldn't have been intending to write a statute that would require a prisoner to exhaust if there was no procedure in existence to begin with.

Justice Breyer: --No, but the argument is... as are available, as we'll hear the complaint.

I mean, obviously they'll hear it, but I take it that they're willing to hear it.

He has a complaint about something, guard hit me, as are exhausted.

I mean, do you see the obvious thing?

Am I... what's the answer to that?

Mr. Winkelman: But available means--

Justice Breyer: Available means they'll hear it.

Of course if they won't hear, you don't have to go there.

Will they hear it in your case or not?

Mr. Winkelman: --In that case, again I think it goes without saying, I think that those words then aren't necessary.

Certainly if the prison grievance system... if there's no grievance procedure or if it won't hear this type of complaint, then nobody's suggesting that the prisoner would have to go through it.

Congress didn't need to add those six words and retain those six words if that's all it meant to do.

I'd like to reserve the remainder of my time for rebuttal.

Argument of Gerald J. Pappert

Chief Justice Rehnquist: Very well, Ms. Winkelman.

Mr. Pappert, we'll hear from you.

Mr. Pappert: Mr. Chief Justice, and may it please the Court:

In the PLRA, Congress changed the exhaustion scheme that it had previously imposed upon prisoners because it had not worked.

It had not controlled the explosive growth in prisoner litigation.

Congress amended the scheme by deleting the requirements that the administrative remedies be plain, speedy or effective and by withdrawing from the courts the discretion to determine whether or not exhaustion is required.

In light of these changes, it is clear that Congress wants prisoners to exhaust their prison administrative processes whether or not those processes can provide the prisoner the relief he or she says they need.

Justice Breyer: And what does that mean?

I mean, that's the... I mean, I imagine this is a case, which it isn't, which is only money damages were at stake.

There's nothing else at stake.

What does it mean to exhaust a process where all you want is money and they can't give you any money, what does that mean?

Mr. Pappert: Your definition of available, Your Honor, is ours.

If the prison will in any way accept the prisoner's complaint and address it.

Justice Breyer: And what does it mean?

What does it mean to accept it and hear it when the prisoner's only asking for money?

What does that mean?

Can you give content?

I know I wanted to hear her response, but I'm still puzzled by my own question.

Mr. Pappert: What it means, Your Honor, is what Congress wanted and that is that there is a presumption that underlies, I think, the Petitioner's point and your initial question, which is that, just because money's not available there is nothing that this process can do for the prisoner.

Justice Scalia: Well, his complaint is not money.

His complaint is that a guard whacked him over the head or something of that sort.

Mr. Pappert: Yes, Your Honor.

Justice Scalia: And the way the statute reads, it says with respect to prison conditions, no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted and I gather the condition here is the fact that guards go about whacking people over the head and the remedies for that are presumably whatever remedies the prison provides for when you get whacked over the head, which might include money damages, but might not.

Mr. Pappert: Well, remedy in this statute means process, Your Honor.

Congress wanted the inmates to exhaust their administrative process.

Justice Scalia: Even though there's nothing at the end of it?

You mean it's just a process.

We, you know, we're not going to give you anything but we're going to have a hearing and then an appeal and then a second appeal.

Of course, you can't get any relief.

Surely it doesn't mean that.

Mr. Pappert: No, it doesn't.

No, it doesn't, Your Honor.

And where I respectfully differ with your question is again the presumption that it means nothing.

The process means nothing if there isn't money at the end of the line and the reason that that is not correct is that there is an indefinite and almost endless list of ways that the prison could satisfy the prisoner, short of money.

There is always a possibility that the prison can satisfy the prisoner short of giving him or her money because in essence the currency equivalence isn't money.

Money has a value within the prisons, but the currency of prisons is in-kind relief.

And there are many things within a prison that money can't buy and that are very valuable to the prisoner.

Justice Scalia: Well, come on, this is a sort they likes-to-but-what kind of an argument.

What... if indeed what the prison can provide is more attractive to the prisoner than money presumably you wouldn't need this statute to make him go through the prison procedure.

He would use it.

Mr. Pappert: You would still need the statute.

Again because Congress wanted as many of these claims going through the administrative process as possible because they wanted as few--

Justice Scalia: Well, that's a different argument.

Don't tell me that you're helping the prisoner because there a lot of things that he would think even more valuable than money.

If he would think them even more valuable than money, he'd use them.

This is forcing the prisoner to go through the prison procedure, which presumably he doesn't want to go through.

Mr. Pappert: --He says he doesn't want to go through it, Your Honor, but again I think we make a mistake to equate what the prisoner says he wants or needs when he files a grievance, with what the prisoner says he wants once he files his civil rights complaint.

And the entire premise upon which the Petitioner's interpretation is based is that there's absolutely nothing the process can do for him and that's simply not true.

There are many things the process can do for him, but Your Honor, in your hypothetical if the prisoner goes through the process, if he doesn't accept any of the various forms of relief that he's offered, if his allegations, of course, are found to be true by the prison, he can still go to court.

We have no problem with that.

This is just a mechanism to try to weed as many of the court claims out as possible.

Justice Scalia: And I assume the statute of limitations on his money claim or any other claim that he cannot get in the prison grievance system would not start running until the exhaustion of the administrative remedies?

Mr. Pappert: I do not think so, Your Honor.

I believe the statute of limitations claim may start to run earlier and if it does, that is just something that Congress took into mind when it imposed no doubt a dramatic difference in how they wanted prisoner litigation handled.

Such that, you know, as long as he goes through the process, he conceivably can still file a Federal court claim.

The administrative process will be over with in most cases before a statute of limitations on an underlying claim--

Justice Ginsburg: But if it's not... you're saying, tough luck.

You're saying Congress built a process, which the prison... if the prison wants to defeat ultimate relief in court, could just string it out till the time limit is up and say, well, too bad, we got you.

Mr. Pappert: --Your Honor, I agree with part of your question and respectfully disagree with the second part.

There may be an instance where there is a harsh result following the prison process and if the statute of limitation expires it's for a number of reasons.

First of all being that Congress wanted to leave the setting of the deadlines to the discretion of the States and the departments of corrections and the local institutions.

So--

Justice Ginsburg: I could understand the deadlines for within the prison process.

I don't understand something that says we give you... the clock starts ticking when the event occurs, when the alleged assault occurs.

And even if you're in the twirls of the administrative process, it continues to tick and if the time is up while you're still in the administrative process, too bad, you can't get to court, but that's what you're telling me this statute does.

And I don't see the rationale to that.

Mr. Pappert: --Well, the rationale is, Your Honor, first of all, the second part of your prior question ties into my answer to this question.

That was, you indicated that the prison could in effect drag the process out.

We would not agree with that.

And we would say that if the administrative process is not honored by the prison, the prisoner will still have a remedy.

We are not saying that courts do not have the discretion under this statute to determine whether exhaustion has, in fact, taken place.

Justice Souter: Well, if that's so, why doesn't it--

Chief Justice Rehnquist: --A court might well say that a remedy, which took a greater length of time than the statute of limitations, was not available since the idea of exhaustion of remedies is to get ready to go to court.

Mr. Pappert: Well, the idea of exhaustion of remedies, Mr. Chief Justice, is to prevent having to go to court, as Congress wanted this statute to work.

Chief Justice Rehnquist: Well, at any rate a predicate to going to court.

It contemplates the idea that at the end of the administrative road, the prisoner may still want to go to court.

Mr. Pappert: Yes Your Honor.

Justice Souter: Why do you take the position... there may be a very simple answer to this, but I don't know what it is.

Why do you take the position that it, why you assume that the statute of limitations on the damage action cannot be tolled?

Mr. Pappert: I wouldn't assume that, Your Honor, and that was the point I was leading to.

Justice Souter: If you don't assume that then you don't have the problem that you got into with Justice Ginsburg.

Mr. Pappert: Right.

Justice Scalia: Could have eliminated the last couple of minutes of a very difficult discussion.

Mr. Pappert: I was honestly trying to get to that, Your Honor, and that is, that that's my point behind the fact that courts do not lose the discretion here to determine whether exhaustion has taken place, which means that the prisoner's put in the position that Justice Ginsburg referred to and for no good reason that the prison simply dragged out the process.

The prisoner can still--

Justice Scalia: Justice Souter was saying less than that.

Justice Souter was saying, and I confess I don't know any other situation in which you are compelled to exhaust and the statute keeps on running while you're exhausting.

That seems to be a very unusual situation.

Justice Souter was suggesting that the statute of limitations is simply tolled while you're exhausting and you think that is conceivable too, isn't it?

Mr. Pappert: --We believe that the prisoner could make an equitable tolling argument at the appropriate time, yes, Your Honor.

But another point here though is that, under the Petitioner's interpretation, we still have the problem Justice Ginsburg referred to.

If there's a short deadline for the bringing of the claim to the administrative process, whether or not there's relief at the end of the line that the Petitioner wants, they still may have that very situation.

So the Petitioner's interpretation of the statute doesn't satisfy some of the problems that could come.

Justice Kennedy: Well, I'm somewhat concerned about your cautious answer.

You said, well he could make argument that there's equitable tolling.

That indicates to me that the State at some later time is to going take the position there's no tolling and that's of great concern.

If that's your position, I'd like to know it.

Mr. Pappert: That was in the context, Your Honor, of what I thought was Justice Ginsburg's hypo of the prison unreasonably dragging out the process for the purposes of blowing the statute of limitations.

And what I was saying in response to that is, that in situations like that, we would determine that exhaustion... we would feel that exhaustion has taken place if, for example, the prisoner submits his claim, the prison sits on it, they do not honor their deadlines under the exhaustion process.

Exhaustion has taken place under that and what I am saying is there's no prohibition on a court recognizing that.

Justice Kennedy: I am concerned about the fact that there's no general tolling of the statute of limitations.

Suppose the State in all good faith is behind, and... how long is the statute of limitations for filing on the court.

Mr. Pappert: In Pennsylvania under these facts, it would be two years, Your Honor.

Justice Kennedy: All right.

I can see a court, prison system taking 18, 19 months and you say there's no tolling.

Mr. Pappert: Well, if the deadlines in this process are honored by Pennsylvania, the process would take on average probably under 90 days, Your Honor.

If the deadlines have not been honored and the prison has, in effect, sat on the grievance, the prisoner would have a remedy, yes.

The Petitioner's interpretation of the statute I think most importantly would reintroduce the effectiveness requirement that came out in some prior questions.

And it would also allow the prisoner to bypass the process simply by manipulating the relief that he requests.

And there's no better example of that, I think in response to a question, we heard that it's not just money.

Money might not be the only issue and we get to the questions of the caps and that is that next time it may be that the prisoner wants the prison regulations be declared unconstitutional.

And he says that you can't declare it unconstitutional, prison, so I have to go the Federal courts.

There will be different ways to evade the process other than by saying that money is all that the prisoner really wants and that is a risk here.

And that, in fact, happened in one of the cases cited by the Petitioner in the Fifth Circuit where the prisoner filed a mixed claim, as in some of the prior questions, the magistrate recommended dismissal of the claim based on failure to exhaust.

The prisoner quickly amended his claim and made it solely a money damages case and the Fifth Circuit allowed that.

I mean, that's a clear example of empirical evidence of how a prisoner got around the exhaustion requirement and that we know is contrary to what Congress wanted in this statute.

Justice Ginsburg: May I ask you to clarify one other thing?

As I recall, in your brief, you said one of the virtues of the administrative process is that it can establish a factual record, but I think part of this, isn't it part of the Pennsylvania rules that whatever's developed in the grievance system cannot be used in court?

Mr. Pappert: Yes, Your Honor, and that's... it is.

Under the Pennsylvania process it's almost as though a provision tries to foster use of the grievance process by putting it into the context of settlement negotiations.

We were not speaking in terms of a factual record as a lower court would deliver to an appellate court.

But what we meant there was there can still be an investigation.

There can be the gathering and preservation of evidence by the prison, all of which can narrow the claims that do make it to court and that's what we meant by the value in a record sense of exhausting the process.

Justice Stevens: May I just clarify one thing in my own mind about your position?

I understand if the prisoner files a case in which he just asks for damages and nothing else, it's accusing a guard of beating him up on a particular occasion.

You'd say he must exhaust and maybe you can satisfy him by transferring the guard or moving or something like that, but supposing the guard is dead and there's nothing that could be done to remedy a situation except money damage, do you still say he should exhaust?

Mr. Pappert: Yes, Your Honor.

Yes, Your Honor because--

Justice Stevens: And why again in that hypothetical?

Mr. Pappert: --In that hypo, even though there could be no action taken against the guard, there could still be something that the prison could give the prisoner that would satisfy him.

The problem with the Petitioner's interpretation of the statute is, we will never know that.

We don't know that in this case before the claim gets to Federal courts and we will not know that in all the cases that are similar to this that follow because we never gave the prison the chance to try.

Justice Stevens: Could you give me an example of this.

My hypothetical is he sues because he was assaulted by a guard who since died and nothing else he wants but money.

Mr. Pappert: Yes.

Justice Stevens: What could the prison give him that would help him?

Mr. Pappert: The types of relief that they could try to satisfy him with, Your Honor, again, could be one of any... a single... a better cell assignment, a single cell, extra privileges.

Justice O'Connor: Let's add to the mix and say the prison transferred the prisoner immediately to another prison so there's nothing at all they can do for him there.

Mr. Pappert: Your Honor, there are... yes, Your Honor, and I'll assume under your question that there's absolutely nothing the prison can do for that prisoner.

Congress focused more broadly in this statute and there still things that can benefit the other inmates who remain at the prison and the prison itself by putting the prison on notice of the problem and giving the prison the first opportunity to correct it.

So those are benefits that can flow generally from exhaustion of the process.

Even though under your question, Your Honor, that particular prisoner was not satisfied.

Justice Scalia: Do you consider that to be an administrative remedy, even though it doesn't give any benefit to the inmate at all.

That's pretty tough statutory construction.

Mr. Pappert: Well, again, our--

Justice Scalia: Until such administrative remedies as are available are exhausted, I'd be inclined to say that if the prison can't give me any satisfaction that's going to do me any good, there is no administrative remedy available.

Mr. Pappert: --Well, we define remedy as process, Your Honor.

Remedy is not relief--

Justice Scalia: Oh, that's nice.

Mr. Pappert: --under this statute.

Justice Scalia: It doesn't say process though, it says remedies.

Mr. Pappert: The words are used interchangeably in the statute and when we do speak of exhaustion of remedies we don't, as I believe Justice Souter pointed out, we don't speak of exhaustion of the money or the injunctive relief, we speak of exhaustion of the process.

So I would respectfully differ with you there, but again even in your question--

Justice Scalia: It means a process that provides relief.

Mr. Pappert: --Yes.

Justice Thomas: Then what if your prison system, describing the procedure, says the following relief can be given and they give a bunch of examples, but none of them include the hypothetical you've given me.

Justice Stevens: You're suggesting there's sort of an undefined category of relief that might be granted by the warden independently, not as a result of a particular proceeding as I understand it.

Mr. Pappert: I'm not sure I understand what you're referring to, Justice Stevens.

Justice Stevens: Well, my hypo was the dead guard.

Mr. Pappert: Yeah, oh, okay.

Justice Stevens: And you say well they might give him a different cell or they might give him library privileges or something like that, but if none of that is prescribed in the procedure, that is, you know, the prison disciplinary remedy procedure, can you still say that's a part of the available remedies?

Mr. Pappert: Yes, Your Honor.

The procedure itself does not list in it what a prison can or cannot--

Justice Stevens: Supposing the procedure has a limited set of remedies that it does authorize.

Mr. Pappert: --Okay.

Justice Stevens: And then you're still saying, but that still would not be exhaustive.

Is that what you're saying?

Mr. Pappert: We are still saying that the prisoner under you question, Your Honor, would have to exhaust the process because one, there still may be something that can satisfy him.

Two, even if there isn't, there may be something that can benefit the prison and the other inmates and three, that even if all the above fail, the prisoner can still go to court and that's all Congress really wanted.

Justice Souter: But you're not saying that there would be a satisfaction of the statue in the case in which the prison literally simply provided a forum for complaints and said we'll never do anything about them, but if you want to get them off your chest, sure you can come in and tell us.

You're not claiming that that would satisfy?

Mr. Pappert: That would not, Your Honor, and again that gets to our definition of available.

If the prison will accept and address the complaint, he has an available remedy.

Under your question, the prison--

Justice Souter: In other words, if some remedy of some sort is available, that's what you're saying.

Mr. Pappert: --It doesn't hinge as much on remedy, Your Honor, as it does on whether the prison will take the complaint and address it in any way and under your question--

Justice Souter: Okay, but if it... when you say address, I assume address with the object of providing relief if there is merit in the complaint, some kind of relief.

Mr. Pappert: --No, that would more be the Petitioner's interpretation of the statue as meaning that the prisoner has to get what he wants, that would not be our interpretation--

Justice Souter: No, I mean that is the prison's argument, but I mean, I'm suggesting that perhaps the prisoner would have a good argument here if the prison said, we have a system that does not provide relief.

We simply have a system in which you can come up and make your complaints and feel better for having talked to somebody.

The prisoner would say there surely, in that case, we don't have to go through the... under the statute does not require us to go through--

Mr. Pappert: --That would not be an available remedy, Your Honor.

Justice Scalia: --Why not?

It's a procedure.

It's a procedure and it's available.

I thought you say remedy means procedure.

You can't have it both ways.

Mr. Pappert: It is not, Justice Scalia, as I'm interpreting the question.

I'm interpreting the question--

Justice Souter: You're saying procedure leading to some conceivable relief.

Mr. Pappert: --No, I'm just saying, will they address it all?

And under your question, Your Honor, the prison is saying, you can bring us the complaint.

We're not going to do anything about it, but if it makes you feel better, you can drop it on our doorstep, there is no available remedy there.

That is almost... that's an exclusion of the claim.

Chief Justice Rehnquist: What about a chaplain in the armed forces, which perhaps sometimes serves that purpose, you know you go talk to the chaplain, nothing much happens.

Thank you, Mr. Pappert.

Mr. Pappert: Thank you, Your Honor.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Mr. Gornstein.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

The PLRA requires an inmate to exhaust available administrative remedies without regard to whether they offer the relief that the inmate seeks in court.

So if an institution responds to legitimate complaints about excessive force through such means as disciplining the officer involved--

Justice Stevens: May I just, so I'll be sure I have time to get your answer.

What if the system doesn't provide any relief at all for the particular grievances in my example?

Mr. Gornstein: --Then we would say that no administrative remedies are available.

Justice Stevens: You would.

So you would just agree with the State on that point.

Mr. Gornstein: On that small point and I don't think it would come up very much because almost often... almost in all cases there would be something that the administrative process could do about the complaint and here we're talking about a complaint about excessive force.

So the available remedies that have to be in existence is just something that addresses complaints about excessive force and it could be transferring the inmate to another area, it could be disciplining the officer involved and directing the officer not to repeat that conduct and that would show that administrative remedies are available and an inmate would have to exhaust, even if he only wants to seek money in court.

Now that conclusion follows when the textual changes that Congress made in the statute.

Before the Act was amended, exhaustion could only be required when the available administrative remedies were effective.

And this Court said in McCarthy against Madigan that administrative remedies are not effective when the inmate seeks only money and the administrative process does not offer that specific form of relief.

Justice Scalia: And it was dictum there, of course.

Mr. Gornstein: Of course, it was dictum, but when Congress is reviewing a statute and are attempting to amend it, it's very unlikely that Congress is going to make fine distinctions about whether this Court had a holding or an analysis that was necessary to the holding or that it was dicta.

What Congress was faced with was an interpretation of the term effective and the Court interpreted it to mean then when administrative remedies do not offer money and the inmate is seeking money, the administrative available remedies are not effective and in that context, Congress's elimination of the term effective shows that Congress intended to require inmates to exhaust available remedies in all cases, including ones like that in McCarthy, in which the inmate seeks only money and the available remedies do not offer money.

So what we have, what the statue essentially says to an inmate, is if you have a complaint about prison conditions and the administrative process will address it in some way, you must give the administrative process a chance to do it to your satisfaction and if they cannot do that--

Justice Stevens: Your interpretation of the word remedy is more than process then, it's some relief.

Mr. Gornstein: --I think it's some relief, but that's what I think is implicit in a grievance procedure.

I would just use the word grievance procedure.

A grievance procedure is something that offers some relief for the kind of complaint that an inmate is complaining about.

And the reason Congress made the particular changes that it made here is it wanted to reduce the enormous burden that these kinds of cases were placing on Federal district courts and the change that it made accomplishes that in two important ways.

First of all, an inmate may start out wanting nothing other than money and he may end up being satisfied with something else.

And second of all, you have cases where the inmate receives a decision on the merits and he decides after seeing that decision that this is not a claim that's worth pursuing in court.

And finally, it's important to note that very few State administrative programs offer money for anything other than personal property loss.

So the consequence of accepting the Petitioner's construction here would be that an inmate would have the ability in a wide range of cases to avoid the exhaustion requirement simply by formulating a complaint that seeks only money.

If the Court has nothing further--

Rebuttal of Nancy Winkelman

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Ms. Winkelman, you have three minutes remaining.

Mr. Winkelman: And I have three points, Your Honor.

Number one, there's been a lot of discussion about the types of remedies, disciplining the guard, apologies and so forth.

I would point out and emphasize that none of what has been mentioned is a remedy to the prisoner for the particular wrong.

In this case, Mr. Booth was assaulted by prison guards.

The only remedy available to address that wrong to him is money damages.

Transferring the prison guard is not going to provide redress to Mr. Booth for the wrong that was inflicted upon him.

And as counsel for the Respondent conceded, Mr. Booth has a high risk of forfeiting his money damages claim under Section 1983 completely for no reason.

The prison grievance system cannot remedy that wrong.

He has everything to lose.

Justice Breyer: How is that a forfeit?

How does he forfeit it?

Mr. Winkelman: Because if he misses one of these short time frames through the prison grievance system as is pointed out in McCarthy--

Justice Breyer: That's the part I don't understand.

Suppose it's 15 days, all right he has to file in 15 days, what's the problem?

Mr. Winkelman: --If he... the prison grievance system has three levels.

If he misses one of those time frames as this Court pointed out in McCarthy, he has a high risk of forfeiting his Federal claim all together because when he--

Justice Breyer: That's true of any claim that he has to... I mean, that would be true of every claim--

Mr. Winkelman: --That's true, but in the injunctive context, he has something to gain.

Here he has nothing to gain.

The second point is, is that in terms of what about couldn't it just mean that the prison grievance will hear the complaint.

I would return this Court to the words in First Iowa of 55 years ago.

When Congress intends for a litigant to do something futile, it has to be explicit about it.

Here Congress was far than explicit about it.

Under our view, we think it was said the opposite.

At best it was ambiguous, but certainly Congress didn't explicitly require a prisoner to do a futile act.

And the final point on the deletion of the word effective, I would point the Court to the prior statutory scheme because the words plain, speedy and effective in that scheme right on the face of the statute went only towards the procedural aspects of the State grievance procedure.

Did it prevent against reprisals?

Could it deal with things quickly enough?

That's what Congress took out.

But what Congress left in was such administrative remedies as are available, which we believe have force and in this situation the only remedy available was to pay damages.

Chief Justice Rehnquist: --Thank you, Ms. Winkelman.

Mr. Winkelman: Thank you.

Chief Justice Rehnquist: The case is submitted.