Courts should bear in mind the real-world workings of prison grievance system. | Photo credit to Doug Brown

The ACLU of Oregon has filed a friend-of-the-court brief with the United States Court of Appeals for the Ninth Circuit challenging Oregon’s prison grievance system. Prison grievance systems are, by design, nearly impossible to traverse. These systems are devised, implemented, and enforced by prison administrators who are often the same individuals these claims are brought against. As such, because the responsibility for the creation and implementation of any and all grievance requirements rests with prison administrators, those administrators can design procedures that will virtually immunize themselves and their staff from suit. Consequently, incarcerated people are often unable to successfully navigate the grievance process and are thus barred from seeking judicial redress for serious civil rights violations.

Additional barriers also hinder incarcerated people’s ability to complete the intentionally convoluted grievance process including disproportionately high rates of disabilities and low rates of English proficiency in the prison population as well as threatened or actual retaliation from prison employees. Federal law requires that incarcerated people exhaust administrative remedies prior to seeking judicial redress and courts interpret this requirement to demand perfect compliance with every step in the grievance process regardless of how complicated and arduous the process may be.

However, federal law also contains an exception to the exhaustion mandate: incarcerated people need not exhaust administrative remedies that are not available. Courts should not reflexively defer to prison administrators when deciding if such remedies are not available and should instead bear in mind the real-world workings of prison grievance systems. Our brief asserts that when overly complicated grievance systems prevent incarcerated people from exhausting their administrative remedies and unconstitutionally precludes their access to the courts, remedies should be found to be not available under federal law.

Date filed

January 18, 2022


United States Court of Appeals for the Ninth Circuit


Hon. Michael H. Simon



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