Douglas Thomas v. Shawn Woolum

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0252P (6th Cir.)
File Name: 03a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DOUGLAS THOMAS,
Plaintiff-Appellant,
v.
SHAWN WOOLUM,
Defendant,
RICHARD KEPLER;
CHARLOTTE STARCHER;
BILLIE WADDELL, SR.,
Defendants-Appellees.
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No. 01-3227
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-01120—James L. Graham, District Judge.
Argued: August 6, 2002
Decided and Filed: July 28, 2003
2 Thomas v. Woolum, et al. No. 01-3227
*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
Before: MOORE and GILMAN, Circuit Judges; ROSEN,
District Judge.*
_________________
COUNSEL
ARGUED: Alphonse A. Gerhardstein, LAUFMAN &
GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Todd R.
Marti, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: Alphonse A. Gerhardstein, Paul
M. Laufman, LAUFMAN & GERHARDSTEIN, Cincinnati,
Ohio, for Appellant. Todd R. Marti, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS LITIGATION
SECTION, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court. GILMAN,
J. (pp. 25-27), delivered a separate concurring opinion.
ROSEN, D. J. (pp. 28-66), delivered a separate opinion
dissenting in part and concurring in the judgment.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Congress’s
passage of the Prison Litigation Reform Act (“PLRA”) was
an attempt to curb rampant prison litigation in the federal
courts, but its enactment did not erode the role of the federal
courts as vindicators of federal rights. The PLRA explicitly
requires an inmate seeking to challenge prison conditions in
federal court to exhaust any available administrative
remedies, but the statute’s text does not condition access to
the federal courts on satisfying the procedures and timelines

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No. 01-3227 Thomas v. Woolum, et al. 3
of prison administrators. Thus, this case turns not on whether
exhaustion is required, the answer to which is well settled, but
on what exhaustion requires. We answer that question in
light of Congress’s purpose in passing the PLRA and
Supreme Court precedent regarding the exhaustion doctrine’s
oft-stated purpose: to give prison officials the first
opportunity to address inmate complaints according to their
rules and procedures without letting those timetables dictate
the outcomes of § 1983 actions. Accordingly, we hold that so
long as an inmate presents his or her grievance to prison
officials and appeals through the available procedures, the
inmate has exhausted his or her administrative remedies, and
a prison’s decision not to address the grievance because it was
untimely under prison rules shall not bar the federal suit. We
also hold, however, that when a grievance does not give
prison officials notice of the nature of the inmate’s complaint,
the inmate has not met the PLRA’s requirements. We thus
AFFIRM the judgment of the district court.
I. BACKGROUND
When inmate Douglas Thomas told a supervising officer at
the North Central Correctional Institution (“NCCI”) that he
felt stressed out and needed “to lay it down for a few days,”
the officer instructed Corrections Officer Shawn Woolum to
take Thomas down to the segregation unit. J.A. at 84
(Springer Incident Rep.). Woolum, with whom Thomas had
exchanged angry words earlier that day, took the opportunity
to retaliate. While walking Thomas down to segregation,
Woolum instructed another inmate who was present to leave
and began to pummel the handcuffed Thomas. Woolum
struck Thomas from behind, slammed him into a steel door,
and banged his face against the steel door and cement walls.
Upon their arrival at the holding cell, Woolum slammed
Thomas into a steel doorframe, picked him up, and slammed
his face and head again into a cement wall. Woolum then
stomped on Thomas’s foot. Thomas was in handcuffs during
the relevant time and did not resist. As a result of Woolum’s
actions, Thomas suffered a broken clavicle, broken ribs, a
4 Thomas v. Woolum, et al. No. 01-3227
broken foot, facial lacerations, and massive swelling. Thomas
alleges that Officers Richard Kepler, Charlotte Starcher, and
Billie Waddell, Sr. observed the beating, but they failed to
intervene. That was on November 5, 1997.
Various investigations followed. Officers Woolum, Kepler,
and Waddell, along with the supervising officer who had
suggested Thomas go to segregation and the nurse who
treated Thomas’s injuries, filed “incident reports,” as prison
regulations require when an employee struggles with an
inmate or observes such a struggle. Ohio Admin. Code
§ 5120-9-02(A)-(B) (1997). Thomas also filed a voluntary
statement the day after the incident, in which he described
what had happened and noted, “At some point when I was
being beaten while wearing handcuffs I seen officers looking
but the only on[e] I knew was Bill[ie] Waddell.” J.A. at 153.
In accord with regulations, prison officials then formed a
Use of Force Committee to investigate the incident. Having
heard additional statements, including another statement from
Thomas describing Woolum’s actions, the Use of Force
Committee issued a report concluding that Woolum had used
an inappropriate amount of force; after disciplinary
proceedings some time later, Woolum was fired. Under the
administrative code, however, the inmate has no right to view
the report or the evidence used to create it.
In addition to the prison’s internal administrative inquiry,
Thomas invoked the formal grievance procedure. After being
transferred to the Allen Correctional Institution (“ACI”), on
May 1, 1998, Thomas requested a grievance form in order to
report the November 5 incident. On or about May 4, 1998,
Thomas filed a Notification of Grievance with NCCI’s
institutional inspector. The Notification of Grievance form
requires the prisoner to state “[t]he nature of the Grievance”
in specific terms. Thomas stated, in part, as follows:
[O]n Nov. 5th while I was at NCCI I was assaulted by
[Corrections Officer] Woolum while I was in handcuffs

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No. 01-3227 Thomas v. Woolum, et al. 5
and I had several bones broken and have since been
transferred to A.C.I. administratively. Also as you know
the state troopers & the FBI have conducted
investigations. . . . The Prison[] Litigation Reform Act &
Title 42 of the United States Code require[] that a
prisoner must exhaust state remedies prior to litigation.
Therefore I ask that [Corrections Officer] Woolum be
removed and released from his employment with the
Department of Corrections and that I am awarded 5
million dollars.
J.A. at 33. The institutional inspector denied relief,
apparently because the grievance was not filed within the
thirty-day period required by Department of Rehabilitation
and Correction (“Department”) policy.
Thomas pursued his grievance. Following the initial
denial, Thomas appealed to the Chief Inspector. Thomas
argued that the ACI law library had been provided copies of
Department policy manuals only in the last thirty to forty-five
days, that the thirty-day time limit was a recent change in
policy, and that prisoners had not been notified of the change
in policy. On October 30, 1998, the Chief Inspector denied
Thomas relief, determining that the grievance was filed too
late and that information regarding the Department’s new
time-limit policy was available in the law library.
Accordingly, the decision of the Chief Inspector stated, “This
Office will take no further action in regard to your complaint
at this time.” J.A. at 35.
Thomas filed a complaint in state court on November 5,
1998, against Woolum and John Does and Jane Does,
alleging that Woolum applied excessive force and that the
John Does and Jane Does failed to protect Thomas and
prevent the beating. Thomas claims that during discovery for
the state-court action, he learned that Kepler, Starcher, and
Waddell were present during the beating and failed to protect
him. Indeed, statements that officers had filed with their
incident reports and the Use of Force investigation —
6 Thomas v. Woolum, et al. No. 01-3227
statements that Thomas had no right to access — indicated
that other officers might have observed Woolum’s actions and
not intervened. Thomas learned through these documents, for
example, that Officer Kepler “heard a loud noise coming from
the sallyport” and “exited the R.I.B. office to investigate,”
J.A. at 88; that Officer Waddell “walked into the hall [when]
Thomas was being put in a holding cell,” J.A. at 89, which
meant that, according to the Use of Force Committee’s
conclusions, Waddell might have watched Thomas being
pushed in a way that caused his head to strike the wall; and
that Officer Starcher admitted having seen Thomas in the
holding cell. From these newly available statements, Thomas
appears to have concluded that these three officers may have
witnessed Woolum’s assault.
The state court action against Woolum and the John Does
and Jane Does was then dismissed without prejudice on
October 20, 1999, and Thomas filed the original complaint in
U.S. District Court on October 22, 1999. This time, Thomas
sued not John Does and Jane Does, but armed with the
information obtained in state court discovery, instead sued
Woolum, Kepler, Starcher, and Waddell. After briefing, the
district court ruled that Thomas had not exhausted his
remedies with respect to Kepler, Starcher, and Waddell.
Thomas’s grievance form, the District Court reasoned, was
“against defendant Woolum,” not the other defendants, J.A.
at 114, so although the court eventually awarded Thomas
$70,000 on his claim against Woolum, it dismissed his claims
against Kepler, Starcher, and Waddell for failure to exhaust.
Thomas appealed the dismissal of his claims against the
other defendants. The defendants now offer two ways in
which Thomas failed to exhaust his remedies against Kepler,
Starcher, and Waddell: (1) that we may not look at Thomas’s
state prison grievance at all, and (2) that his grievance was
insufficient to exhaust his claims. First, the defendants argue
that Thomas failed to exhaust his administrative remedies
because he did not file his grievance regarding the
November 5, 1997 beating until May of 1998, after the thirty-

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No. 01-3227 Thomas v. Woolum, et al. 7
day period in which the Department will accept grievances
had expired. Second, they argue that his grievance was not
“against” them, but against Woolum alone, and that he could
not bring a suit against them. We review de novo any legal
determinations made in dismissing a complaint for lack of
subject matter jurisdiction, including a determination that the
plaintiff did not exhaust administrative remedies, and we
review any factual findings for clear error. See Cathedral
Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 358
(6th Cir. 2000). We begin with the defendants’ first
argument, for before we may determine whether Thomas’s
grievance was sufficient, it is necessary for us to determine
whether we may look at his grievance at all.
II. COMPLIANCE WITH STATE PROCEDURAL
REQUIREMENTS
The Prison Litigation Reform Act prohibits inmates from
challenging prison conditions in federal courts until they have
exhausted their available administrative remedies. 42 U.S.C.
§ 1997e(a). There is no doubt that under the PLRA,
exhaustion by prisoners is mandatory. See Booth v. Churner,
532 U.S. 731, 739 (2001); see also Page v. Torrey, 201 F.3d
1136, 1139 (9th Cir. 1999) (recognizing that exhaustion
requirement applies only to those who are “currently
detained,” not former prisoners, and noting agreement of the
Second, Seventh, and Eighth Circuits). The exhaustion
requirement ensures that state prison systems will have an
opportunity to handle prison grievances internally before
recourse to the federal courts becomes available. But
exhaustion is not the same as procedural default, and in
similar state administrative contexts, the Supreme Court has
held that state timelines cannot foreclose access to the federal
courts when a petitioner has exhausted his or her state
administrative remedies by bringing a grievance to the state
and pursuing that grievance through to the administrative
agency’s final ruling. That is, the exhaustion requirement is
a “termination” requirement, requiring a petitioner to pursue
administrative remedies as far as they exist. So long as a
8 Thomas v. Woolum, et al. No. 01-3227
prisoner meets this requirement, a federal claim will not be
barred by the plaintiff’s failure to comply with a state prison’s
internal procedural requirements.
A. Exhaustion and the PLRA
By requiring prisoners who challenge the conditions of
their confinement to exhaust first their state administrative
remedies, the PLRA grants state prison systems the initial
opportunity to address their internal problems. Whereas parts
of the PLRA aim to ease the burden that meritless prisoner
lawsuits impose on state law-enforcement officials and the
federal docket, see, e.g., 42 U.S.C. § 1997e(c)(1) (permitting
court to dismiss sua sponte prisoner suits that are obviously
frivolous); id. § 1997e(f) (authorizing pretrial hearings via
telephone or videoconference rather than in-person
appearance of the prisoner); id. § 1997e(g)(1) (permitting
defendant to waive the right to reply to prisoner actions),
nothing suggests that a goal of the act, and specifically, of the
exhaustion requirement, was to defeat valid constitutional
claims. Rather, the exhaustion requirement simply recognizes
that unless a prisoner first presents his or her grievance to the
state prison system, what will often be the most efficient
mechanism to remedy a violation of federal law will be lost.
See Porter v. Nussle, 534 U.S. 516, 525 (2002) (“Congress
afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a
federal case.”). The exhaustion requirement is therefore a
benefit accorded to state prisons, an opportunity to satisfy
those inmate grievances the state wishes to handle internally.
See Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (“Since
these internal problems of state prisons involve issues so
peculiarly within state authority and expertise, the States have
an important interest in not being bypassed in the correction
of those problems.”). It is “an accommodation of our federal
system designed to give the State an initial opportunity to
pass upon and correct alleged violations of its prisoners’
federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971).
It is not, however, designed to permit state administrative

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No. 01-3227 Thomas v. Woolum, et al. 9
1W e have rendered two unpublished orders in which we held that the
exhaustion requirement was no t met be cause of a failure to meet a state’s
procedural deadlines. However, these unpublished orders have no
precedential value and do not bind this panel. Jacobs v. Wilkinson, No.
00-3212, 2001 WL 1298979 (6th Cir. Aug. 8, 2001) (Unpub. Order);
Qawi v. Steg all, No. 98-2402, 2000 WL 571919 (6th Cir. May 3, 2000)
(Unpub. O rder).
timelines to handcuff the federal courts in adjudicating cases
involving important federal rights. Accordingly, the PLRA
does not contain any language regarding the timeliness of
grievance filings or the application of procedural default; if
the state forgoes an opportunity to decide matters internally
whether for internal time constraints or any other reason, the
PLRA has nonetheless served its purpose, and the prisoner
may proceed to federal court.
Because the purpose of the exhaustion requirement is to
provide states the first opportunity to resolve problems
themselves, an inmate who has not pursued available
administrative remedies may not yet proceed in federal court.
Thus, we have clearly held that an inmate does not exhaust
available administrative remedies when the inmate entirely
fails to invoke the prison’s grievance procedure, see
Hartsfield v. Vidor, 199 F.3d 305, 308-09 (6th Cir. 1999);
Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert.
denied, 525 U.S. 833 (1998), or when the inmate filed such a
grievance but “did not appeal the denial of that complaint to
the highest possible administrative level,” Wright v. Morris,
111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522 U.S. 906
(1997); see also Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999). However, we have not previously ruled in a
published opinion1 that an inmate fails to exhaust his or her
available administrative remedies when the inmate invokes
the prison’s grievance system initially and appeals the denial
of that grievance, but is time barred by the prison’s
administrative procedures.
10 Thomas v. Woolum, et al. No. 01-3227
Our precedent demonstrates only that, in keeping with the
plain language of § 1997e(a), a prisoner does not exhaust his
administrative remedies when he fails to commence the
grievance process or to run the gamut of potential appeals. In
Hartsfield, we dismissed a prisoner’s § 1983 suit because the
disappearance of the prisoner’s grievance form, the lack of
any evidence demonstrating that a grievance was actually
filed, and the failure of the prisoner to refile a grievance did
not support the argument that the prisoner ever began the
grievance process. 199 F.3d at 308-09; see also Jones v.
Smith, 266 F.3d 399, 400 (6th Cir. 2001) (affirming dismissal
of § 1983 suit because plaintiff prisoner was not vigilant
enough in obtaining a grievance form after his initial request
for one was denied and because the prisoner never made “any
other attempt to obtain a form or to file a grievance without
a form”). In Freeman, the exhaustion requirement was not
met because the prisoner jumped the gun, and despite making
some attempts to follow the proper grievance procedures,
filed a federal complaint before completing all of the stages
of the internal grievance process. 196 F.3d at 645. In Wright
v. Morris, one prisoner filed an initial grievance, but then
failed to appeal the denial of this grievance through the entire
process. 111 F.3d at 417 n.3; see also Harper v. Jenkin, 179
F.3d 1311, 1312 (11th Cir. 1999) (dismissing § 1983 claim
because the inmate did not appeal the denial of the grievance,
thus failing to give the state a full chance to hear the
grievance). These cases thus address the situation in which
the prisoner is attempting to “bypass the exhaustion
requirement by declining to file administrative complaints
and then claiming that administrative remedies are time-
barred and thus not then available.” Wright, 111 F.3d at 417
n.3.
Here, however, Thomas filed a grievance in the prison’s
formal grievance process, and once that grievance was denied,
Thomas appealed as far as he could. He had quite literally
exhausted his ability to go any further within the internal
prison system. There were no more avenues to travel within
the state prison system. If Thomas had failed to file, the state

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No. 01-3227 Thomas v. Woolum, et al. 11
2Analogizing the priso n grieva nce system to other state
administrative processes is more apt than analogizing it to the process of
habeas relief. The Supreme Court has not placed any procedural default
hurdles upon the congressionally mandated exhaustion requirements for
Title VII and the ADE A, which are chiefly concerned with administrative
grievances. Thus, simply because the Supreme Court has crafted a
procedural default rule in the habeas corpus context to shore up potential
end-runs around the exhaustion requirement does not justify extending
procedural default outside of the sphere of criminal law. There are key
distinctions between the administrative grievance process and the habeas
process that warrant disparate ap plications of a p rocedural default
requirement. The notions of comity that prevent federal courts from
undu ly interfering with the state criminal judicial process in the habeas
context do not have precisely the same resonance and intensity when
federal courts are analyzing the outcome of a non-criminal state
administrative process and when § 1983 interposes the federal courts as
a vindicator of federal rights.
prison system would never have had any opportunity to
review the claim. However, by filing, Thomas gave the state
an opportunity to hear the claim and, by appealing, Thomas
gave the state the opportunity to reconsider its decision.
Thomas received the benefit of the potential that the state
would hear his grievance by waiving the procedural
guidelines, which the state could have done if it wanted to
avoid federal court. The state received the benefit of dealing
with the case internally if it so desired. The defendants,
however, argue that exhaustion also requires more, and
specifically, that it requires compliance with state
administrative deadlines. Yet such an outcome would extend
our established precedent beyond its present boundaries.
B. Exhaustion and State Procedural Rules
In two similar statutory contexts requiring resort to state
administrative procedures, the Supreme Court has specifically
held that a plaintiff’s failure to comply with state statutes of
limitations cannot prevent the plaintiff from proceeding to
federal court.2 Both the Age Discrimination in Employment
Act and Title VII of the Civil Rights Act of 1964 require
plaintiffs to present their grievances in the relevant state
12 Thomas v. Woolum, et al. No. 01-3227
system before the plaintiff may initiate a federal suit. See 29
U.S.C. § 633(b) (ADEA); 42 U.S.C. § 2000e-5(c) (Title VII).
In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), the
Supreme Court held that an ADEA plaintiff who had
presented his grievance to the governing state agency after the
state’s statute of limitations had expired had nonetheless
satisfied the ADEA’s requirements and could proceed with
his federal suit. See Oscar Mayer, 441 U.S. at 753 (“[T]he
grievant is not required by [§ 633(b)] to commence the state
proceedings within time limits specified by state law.”).
Similarly, in EEOC v. Commercial Office Products Co., 486
U.S. 107 (1988), the Supreme Court held that a Title VII
plaintiff’s failure to comply with a state statute of limitations
in presenting her grievance to the state agency was irrelevant
in determining whether she could proceed to federal court.
See id. at 123 (“[S]tate time limits for filing discrimination
claims do not determine the applicable federal time limit.”).
For both of those frameworks, the Supreme Court relied on
three primary arguments to conclude that failure to comply
with state time limits could not prevent the plaintiff from
coming to federal court. All three arguments are applicable
in the present case. First, the Court found in both instances
that the absence of any mention in the statutes’ text of any
requirement of timeliness under state law indicated
Congress’s intent that state time requirements could not bar
the federal claims. In both cases, the Court insisted that such
a requirement could be imposed only by explicit mention.
See Oscar Mayer, 441 U.S. at 759 (“In particular, there is no
requirement [in the ADEA] that, in order to commence state
proceedings and thereby preserve federal rights, the grievant
must file with the State within whatever time limits are
specified by state law.”); Commercial Office Prods., 486 U.S.
at 124 (“Title VII, like the ADEA, contains no express
reference to timeliness under state law.”). Second, the Court
emphasized that state statutes of limitations should not serve
as a bar to federal court “‘in a statutory scheme in which
laymen, unassisted by trained lawyers, initiate the process.’”
Oscar Mayer, 441 U.S. at 761 (quoting Love v. Pullman Co.,

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No. 01-3227 Thomas v. Woolum, et al. 13
404 U.S. 522, 527 (1972)); accord Commercial Office Prods.,
486 U.S. at 124. Third, the Court reasoned that state
procedural rules should not be able to prevent a federal court
from remedying a harm that Congress sought to prevent. The
requirement that plaintiffs first initiate state proceedings gave
states “a limited opportunity” to resolve discrimination
complaints, and “[i]ndividuals should not be penalized if
States decline, for whatever reason, to take advantage of these
opportunities.” Oscar Mayer, 441 U.S. at 761; see also
Commercial Office Prods., 486 U.S. at 123-24 (recognizing
that the filing provisions of the ADEA and Title VII are
nearly identical and that the same policy considerations apply
in each).
The latter two arguments unquestionably apply with equal
force in the context of the PLRA. First, the prison grievant is
generally the epitome of the layperson, unassisted by a trained
lawyer, seeking to invoke the legal process. Further, if states
may not use administrative time limits to defeat an ADEA or
a Title VII claim, they should not be able to defeat a claim
under the Civil Rights Act of 1871, Congress’s preeminent
declaration that state officials may not undermine federal law.
“A major factor motivating the expansion of federal
jurisdiction through [the predecessor to 42 U.S.C. § 1983]
was the belief of the 1871 Congress that the state authorities
had been unable or unwilling to protect the constitutional
rights of individuals or to punish those who violated these
rights.” Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 505
(1982) (refusing, absent explicit congressional instruction, to
create an exhaustion requirement for § 1983 suits). If we
were to create a rule that permitted states to defeat § 1983
suits with their administrative time limits, however, and
thereby let “unable or unwilling” state authorities prevail over
“the constitutional rights of individuals,” id., we would have
undone what Congress wrought. These rationales, which the
Supreme Court relied on to hold that compliance with state
statutes of limitations is irrelevant to a plaintiff’s ability to
14 Thomas v. Woolum, et al. No. 01-3227
3Another, subsidiary argument relied on in the ADEA context
supp orts our conclusion. The Supreme Court reasoned in Oscar Mayer
that, because another provision of the ADEA identified a statute of
limitations for claims brought under that Act, the Court could not
“attribute to Congress an intent through [2 9 U.S.C. § 633 (b)] to add to
these explicit requirements by implication and to incorporate by reference
into the AD EA the vario us state age-discrimination statutes of
limitations.” Oscar Mayer, 441 U.S. at 762 -63. This structural argument
applies with similar force in the § 1 983 context. Because 42 U.S.C.
§ 1988(a) ind icates that the statute of limitations for an action under
§ 1983 is to be that provided for by “the common law, as modified by the
constitution and statutes of the State” of jurisdiction, 42 U.S.C. § 1988(a),
which under Ohio law provides for two years, see Browning v. Pendleton,
869 F.2d 989 , 992 (6th C ir. 198 9) (en banc ), for us to borrow a different,
thirty-day statute of limitations suggested by an administrative agency for
its own internal grievance process would attribute to Congress an intent
that appears nowhere in the PLRA and is inconsistent with the reasoning
of Oscar Mayer. Congress nowhere suggested an intention “to
incorporate by reference,” Oscar Mayer, 441 U.S. at 762-6 3, state
administrative deadlines.
That Congress has instructed us to borrow a state’s statute of
limitations on personal injury ac tions in no way imp lies that we should
borrow a state prison’s administrative deadlines. The two deadlines serve
very different purposes; whereas a state legislature’s incentives in setting
its perso nal injury statute of limitations will be well balanc ed, a state
prison’s incentives in setting a time limit on inmate grievances —
especially if the limit would insulate prison officials from § 1983 suits —
would likely lead to shorter and shorter limitations perio ds. Compa re,
e.g., Kentucky Corrections Policy 14.6(VI)(J) (requiring aggrieved inmate
to file grievance within five days, and appeal within three days), with
Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)
(recognizing statute of limitations for § 1983 actions at one year for those
in Kentucky’s general population). Although state officials may have
legitimate reasons for imposing deadlines on inm ate grievances, there is
no reason that a prison’s legitimate interest in, for example, conserving
investigative resources must prohibit federal court jurisdiction.
bring a federal claim, apply with equal or stronger force to
claims under § 1983.3
Thus the only question is whether the language of § 1997e,
which prevents prisoners from challenging prison conditions
“until such administrative remedies as are available are
exhausted,” 42 U.S.C. § 1997e(a), distinguishes the PLRA

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No. 01-3227 Thomas v. Woolum, et al. 15
from the ADEA and Title VII in such a way as to permit state
agencies to defeat federal claims. Title VII’s filing
requirement, after which the ADEA’s was patterned, reads as
follows:
In the case of an alleged unlawful employment practice
occurring in a State, or political subdivision of a State,
which has a State or local law prohibiting the unlawful
employment practice alleged and establishing or
authorizing a State or local authority to grant or seek
relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice
thereof, no charge may be filed under subsection [(b)] of
this section by the person aggrieved before the expiration
of sixty days after proceedings have been commenced
under the State or local law, unless such proceedings
have been earlier terminated, provided that such sixty-
day period shall be extended to one hundred and twenty
days during the first year after the effective date of such
State or local law. If any requirement for the
commencement of such proceedings is imposed by a
State or local authority other than a requirement of the
filing of a written and signed statement of the facts upon
which the proceeding is based, the proceeding shall be
deemed to have been commenced for the purposes of this
subsection at the time such statement is sent by registered
mail to the appropriate State or local authority.
42 U.S.C. § 2000e-5(c). To be sure, as the Oscar Mayer court
indicated, a requirement that a would-be federal plaintiff
exhaust state remedies is different from a requirement that the
plaintiff commence state proceedings. See Oscar Mayer, 441
U.S. at 761. Accordingly, as Congress requires that an inmate
exhaust available administrative remedies, 42 U.S.C.
§ 1997e(a), the question is what exhaustion requires.
In a number of cases, the Supreme Court has suggested that
exhaustion is the antonym of commencement. Whereas
commencement requires the plaintiff to begin, exhaustion
16 Thomas v. Woolum, et al. No. 01-3227
requires the plaintiff to finish. In Oscar Mayer, for example,
the distinction between the ADEA’s requirement and an
exhaustion requirement focused not on any purported
difference in the two requirements’ power to defeat federal
claims, but on the simple fact that 29 U.S.C. § 633(b)
“requires only that the grievant commence state proceedings.”
Oscar Mayer, 441 U.S. at 759 (emphasis in original).
Exhaustion, then, provides the flip side of that coin,
“requir[ing] the court to delay action until the administrative
phase of the state proceedings is terminated.” Gibson v.
Berryhill, 411 U.S. 564, 574 (1973) (emphasis added).
Unlike the commencement requirement, which is crafted to
give state agencies an opportunity to resolve a problem while
federal action proceeds on a parallel track, see Oscar Mayer,
441 U.S. at 757 (recognizing that ADEA set up “concurrent
rather than sequential state and federal administrative
jurisdiction”), exhaustion is a termination requirement,
designed to keep federal courts out as long as the state
administrative machinery is working to resolve the problem.
Even the dissenters in Patsy v. Board of Regents of Florida,
who argued that § 1983 included a judicially created
exhaustion requirement for all plaintiffs, agreed that an
exhaustion requirement “does not defeat federal-court
jurisdiction, it merely defers it.” Patsy, 457 U.S. at 532
(Powell, J., dissenting). Thus when Congress imposed an
exhaustion requirement in the PLRA, but imposed no other
restrictions, it imposed a termination requirement. See, e.g.,
United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e
presume that Congress expects its statutes to be read in
conformity with this Court’s precedents.”).
With the PLRA, Congress could have required more than
an exhaustion requirement, but it chose not to. Congress
could have, for example, required in § 1997e(a) that, “In
exhausting available administrative remedies, the prisoner
shall comply with the prison’s reasonable time limits for
filing grievances. Untimely claims shall be deemed
procedurally defaulted.” Had Congress done so, the present
case would be much easier. But Congress did not, and the

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No. 01-3227 Thomas v. Woolum, et al. 17
Supreme Court has instructed that we are not to impose such
requirements when Congress refuses. See Commercial Office
Prods., 486 U.S. at 124 (“Title VII, like the ADEA, contains
no express reference to timeliness under state law.”); Patsy,
457 U.S. at 514 (reasoning that legislatures, not courts, are to
determine “what consequences should attach to the failure to
comply with procedural requirements of administrative
proceedings”); Oscar Mayer, 441 U.S. at 759 (“In particular,
there is no requirement that, in order to commence state
proceedings and thereby preserve federal rights, the grievant
must file with the State within whatever time limits are
specified by state law.”).
To reach the contrary conclusion, we would have to impose
a judicially created procedural default rule, going well beyond
the exhaustion rule that Congress imposed with the PLRA
and contravening the Supreme Court’s explicit instructions in
the Oscar Mayer line of cases. This may be a tempting and
common mistake, but it is a mistake nonetheless, as Coleman
v. Thompson, 501 U.S. 722 (1991), shows. In discussing a
habeas petitioner who filed an untimely notice of appeal in
state court, the Court in Coleman reasons, “A habeas
petitioner who has defaulted his federal claims in state court
meets the technical requirements for exhaustion; there are no
state remedies any longer ‘available’ to him.” Id. at 732.
That is, by filing the notice of appeal, even though untimely,
the petitioner had exhausted his state remedies. The
petitioner failed not because he had failed to exhaust his
remedies, but because he had procedurally defaulted them.
See id. (“In the absence of the independent and adequate
state ground doctrine in federal habeas, habeas petitioners
would be able to avoid the exhaustion requirement by
defaulting their federal claims in state court.”) (emphasis
added). Procedural default is thus distinct from the
exhaustion requirement, an additional requirement added on
top of exhaustion.
Although there may be an “interplay” between the two
doctrines, O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999),
18 Thomas v. Woolum, et al. No. 01-3227
and they appear together when there is a procedural default
“at trial, on appeal, or on state collateral attack,” Edwards v.
Carpenter, 529 U.S. 446, 451 (2000), the Supreme Court’s
habeas decisions make clear that they are different doctrines
that impose different requirements. The judiciary created the
procedural default rule to ensure that courts did not issue
advisory opinions when an independent and adequate state
ground supported a state court’s judgment, and extended the
rule into the habeas context only because “a state prisoner is
in custody pursuant to a judgment” that would be rendered
ineffective by a federal court’s ruling. Coleman, 501 U.S. at
729-30 (emphasis in original). This extension of the
procedural default rule into the habeas context obviously
cannot support its extension into exhaustion of prison
administrative remedies, as we have never considered a state
warden’s decision on a grievance to be the equal of a full
state-court judgment. Indeed, the Supreme Court’s habeas
decisions instruct that, whereas the procedural default
doctrine requires a habeas petitioner to comply with
reasonable state procedural rules, the exhaustion requirement
requires that “state prisoners . . . give the state courts one full
opportunity to resolve any constitutional issues by invoking
one compete round of the State’s established appellate review
process.” Boerckel, 526 U.S. at 845. This is precisely our
holding here.
Thus the only ground for barring a federal § 1983 suit due
to an untimely prison grievance is that we would otherwise
render prison grievance procedures irrelevant. If a prisoner
knows that he or she may file a federal suit by filing an
untimely grievance, the argument goes, prisoners will have an
incentive to bypass the prison grievance process by waiting
until its deadline has passed, filing an untimely grievance, and
then proceeding to federal court. Indeed, the Seventh Circuit
appears to have relied on this policy argument in holding that
an untimely grievance will bar a § 1983 suit. See Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied, --
U.S. --, 123 S. Ct. 414 (2002). However, not only does this
argument sweep aside the meaning of exhaustion, it is an

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No. 01-3227 Thomas v. Woolum, et al. 19
4There is no doubt that deadlines are mutually beneficial for b oth
prison administrators and prisoners. The dissenting opinion claims that
we view “time limits as m ere trap s for the unwary, and utterly fail[] to
acknowledge that procedural deadlines serve the legitimate interests of
both sides to a dispute” and the dissent accuses us of ascribing “nefarious
motives . . . to prison administrators who seek to enforc e . . . dead lines.”
Diss. Op. at 30 (emp hasis deleted). Then, while mistakenly criticizing the
majo rity for an assumption it does not make, the dissenting opinion makes
the equally sweeping and erroneous presumption that absent a procedural
default requirement, prisoners will have “carte blanche . . . to ignore any
and all adm inistrative time limits” and will purpo sefully default their
adm inistrative remed ies to seek a trip to federal court. Id. at 32.
However, the perception that the absence of p rocedural default
guidelines in this area will result in prisoners purposefully not filing
grievances within the deadlines in order to bypass the internal prison
system is counterbalanced by the equally real concern that in the presence
of procedural de fault standards, prison administrators will impose shorter
and shorter deadlines m easured in ho urs and da ys, because prisoners will
then have no recourse to the fed eral co urts if they miss even one deadline.
Following the dictates of Congress and refraining from judicially
argument that the Supreme Court specifically rejected in
Oscar Mayer itself. There is “[n]o reason” why one would
“wish to forgo an available state remedy,” the Court reasoned;
“[p]rior resort to the state remedy would not impair the
availability of the federal remedy, for the two are
supplementary, not mutually exclusive.” Oscar Mayer, 441
U.S. at 764. That is, permitting prisoners to file in federal
court following an untimely grievance in no way creates an
incentive to bypass state remedies, for potential litigants will
still have every incentive to raise their grievance within the
prison’s timelines, because it is in the prison grievance
process that inmates will, for most practical purposes, receive
their swiftest and most effective remedies. Those who bypass
it will generally do so to their own disadvantage. In fact, the
policy argument works in favor of the conclusion we reach
here: prison administrators, knowing that their refusal to
entertain grievances filed after certain deadlines will not
protect them from subsequent litigation, will more likely take
advantage of the opportunity to resolve the grievance that the
PLRA has granted them.4
20 Thomas v. Woolum, et al. No. 01-3227
imposing a procedural default mechanism where none was legislated best
balances these concerns and maintains the mutually advantageous internal
grievance system.
Bo th prisoners and prison administrators gain little from prisoners
jumping right to federal court as opposed to utilizing the prison grievance
system first, because internal resolution of disputes gives prisoners more
of an op portunity for quick resolution of their p roblems. Judicial
restraint, exercised by the majority by not grafting a procedural default
requirement onto the PLRA, serves both prisoners and prisons here
because it maintains the potential for federal recourse. As a result, prison
officials will not make grievanc e dea dlines unduly short, as they will
establish timelines that are lengthy enough to p ermit ad ministrato rs to
evalua te grievances internally so as to avoid a trip to the federal
courthouse. Priso ners in turn will have more time to meet deadlines and
prepare their grievances.
Thus the PLRA’s exhaustion requirement distinguishes the
PLRA from the interpretations of Title VII and the ADEA,
but not in a manner meaningful for this case. Exhaustion of
state administrative remedies under the PLRA requires a
plaintiff not only to bring his or her claim before the state, but
to see it through to completion, appealing denials as permitted
and participating in offered hearings. Exhaustion also
requires a plaintiff to bring a grievance to the state before
coming to federal court even when the state has made clear
that it will not grant the relief requested. See Booth, 532 U.S.
at 736. But just as a state prison system’s decision not to
grant certain kinds of relief does not strip the federal courts of
their power to grant that relief under § 1983, so too its
decision not to grant relief in particular cases — whether for
timeliness or for any other state procedural requirement —
does not strip the federal courts of their power to do so.
Thomas brought his grievance to the prison officials’
attention, they refused to hear it, and he appealed their
decision through each available level. That prison officials
did not wish to address his complaint, as they prefer only to
address complaints brought before them within thirty days, is
irrelevant for our purposes. Thomas gave the state officers an
opportunity, which is all that is required. We may not
penalize Thomas simply because the prison does not wish to

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No. 01-3227 Thomas v. Woolum, et al. 21
hear grievances more than thirty days after the incident. See
Oscar Mayer, 441 U.S. at 761. We therefore hold that a
prisoner who has presented his or her grievance through one
complete round of the prison grievance process has exhausted
the available administrative remedies under 42 U.S.C.
§ 1997e(a), regardless of whether the prisoner complied with
the grievance system’s procedural requirements.
III. EXHAUSTION OF CLAIMS
Although a grievance that is untimely under prison rules
still gives state prison officials an opportunity to address an
inmate’s complaints, a grievance that does not give officials
notice of the nature of the inmate’s grievance does not afford
the officials the opportunity the PLRA requires. Thomas
argues that between his official grievance form and his
cooperation with the prison’s Use of Force investigation, in
which he specifically mentioned the presence of other officers
who failed to protect him, he gave prison officials sufficient
notice for them to address his concerns in the grievance
process. True though that may be, our cases require more.
Because Thomas made no reference to the issues involved in
his failure-to-protect claim in his grievance, we must find that
he failed to exhaust his administrative remedies with respect
to the claims against Kepler, Starcher, and Waddell.
Thomas’s grievance form does not offer the kind of
information that our precedent requires for exhausting his
claims against Kepler, Starcher, and Waddell. Thomas’s
grievance mentions neither the defendants themselves nor any
facts suggesting that officers other than Woolum knew
anything of the incident. Thomas was indisputably aware of
the other officers’ presence at the time, as he mentioned them
in the incident report he filed the day after the beating, so this
case falls under the rule of Curry v. Scott, 249 F.3d 493 (6th
Cir. 2001), which requires that “a prisoner file a grievance
against the person he ultimately seeks to sue,” id. at 505.
Similarly, in Hartsfield v. Vidor, we ruled that a prisoner who
named three officers in his grievance, and who could have but
22 Thomas v. Woolum, et al. No. 01-3227
did not name two additional officers, had not exhausted his
administrative remedies with respect to the two previously
unnamed officers. Hartsfield, 199 F.3d at 308-09. He thus
did not “administratively exhaust his . . . claim as to each
defendant associated with the claim.” Burton v. Jones, 321
F.3d 569, 574 (6th Cir. 2003). Although an inmate need not
identify each officer by name when the identities of the
particular officers are unknown, Thomas here knew one on-
looking officer’s identity and knew that others had watched
the beating as well. Accordingly, his grievance form should
have noted either the other officers’ names or the fact that
other officers had seen the beating.
Thomas suggests that his deficient grievance
notwithstanding, he satisfied the exhaustion requirement by
participating fully in the prison’s internal investigation.
Indeed, the day after the attack, Thomas told prison officials
that Officer Waddell and other officers had witnessed Officer
Woolum’s actions, a notification that — when combined with
Thomas’s subsequent filing of an official grievance regarding
the incident — would seem to accomplish many purposes of
the PLRA’s exhaustion requirement. However, it is no longer
sufficient for an inmate simply to give prison officials notice
of the complaint by cooperating with other investigations, as
was sufficient in such pre-PLRA “substantial compliance”
cases as Wolff v. Moore, 199 F.3d 324, 329 (6th Cir. 1999).
In our post-PLRA cases we have emphasized that “the
exhaustion requirement in § 1997e(a) is directed at exhausting
the prisoner’s administrative remedies,” and that Use of Force
or other investigations do not satisfy the PLRA’s dictates.
Freeman, 196 F.3d at 644. In determining whether the
inmate has exhausted his or her remedies, we thus look to the
inmate’s grievance, not to other information compiled in
other investigations. Although an inmate grievance might
conceivably specifically incorporate or otherwise refer to
information previously obtained, it must do so in a manner
that points prison officials to the relevant materials. That is
not what happened here.

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No. 01-3227 Thomas v. Woolum, et al. 23
Finally, Thomas suggests that our requirement that prison
grievances be filed “against” potential defendants, Curry, 249
F.3d at 505, mistakes the prison grievance process as a type
of civil action. Grievances are not filed “against” individual
persons, Thomas argues, but are rather filed regarding certain
problems; accordingly, a grievance should be understood to
exhaust remedies so long as it alerts prison officials to a
problem to be investigated, whether or not it identifies
specific individuals. Sims v. Apfel, 530 U.S. 103 (2000),
supports Thomas’s position. In Sims, a Social Security case,
the Supreme Court ruled that even when a party is required to
exhaust administrative remedies, the plaintiff is not
necessarily required to exhaust each specific issue that he or
she intends to bring to federal court. See id. at 112 (plurality);
id. at 113 (O’Connor, J., concurring). Rather, “the
desirability of a court imposing a requirement of issue
exhaustion depends on the degree to which the analogy to
normal adversarial litigation applies in a particular
administrative proceeding.” Id. at 109 (majority). Applying
the reasoning of Sims to the problem-solving mechanism of
an inmate grievance procedure, a court might well conclude
that the process is “inquisitorial rather than adversarial,” id.
at 111 (plurality), and thus that a court should not impose an
issue-exhaustion requirement on top of the PLRA’s general
exhaustion requirement. On that view, an inmate’s grievance
informing prison officials that he had been beaten by an
officer would be sufficient to notify the prison of claims
arising out of that beating, including, perhaps, a claim that
other officers had witnessed the event but failed to intervene.
However, we are bound by our decision in Curry, which
apparently found the Sims reasoning inapplicable in the prison
context and which thus requires prisoners to file grievances
“against” specific defendants. See Hinchman v. Moore, 312
F.3d 198, 203 (6th Cir. 2002) (noting that one panel cannot
overrule a prior panel’s published decision). Thomas is thus
subject to Curry’s standards; as his grievance contained no
information relevant to his claims against Kepler, Starcher,
and Waddell, we conclude that he has not exhausted his
claims with respect to those defendants.
24 Thomas v. Woolum, et al. No. 01-3227
IV. CONCLUSION
Had Thomas’s grievance pointed prison officials to the
alleged presence of other officers when Officer Woolum was
beating him, it would have given the officials a sufficient
opportunity to investigate the other officers’ actions. The
prison may have declined that opportunity, as it prefers to
address only those grievances filed within a particular time
limit. But the prison would have been given the opportunity,
which is all that § 1997e(a) requires, so we hold that the
timeliness of an inmate’s grievance is irrelevant under the
PLRA’s exhaustion requirement. Because Thomas’s
grievance did not contain the necessary information, however,
it did not give prison officials the requisite opportunity. We
thus conclude that Thomas failed to exhaust his
administrative remedies with respect to Officers Kepler,
Starcher, and Waddell, and we AFFIRM the district court’s
judgment.

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No. 01-3227 Thomas v. Woolum, et al. 25
_________________
CONCURRENCE
_________________
RONALD LEE GILMAN, Circuit Judge, concurring. I
fully concur in Judge Moore’s opinion. My purpose in
writing separately is to acknowledge the difficulty of the issue
before us and to explain why I believe that Judge Rosen’s
opinion is less persuasive in interpreting what it means to
exhaust “available administrative remedies” under the PLRA.
To begin with, I must confess that I find the question of
whether a prisoner must comply with the prison’s
administrative deadlines as a precondition to filing a § 1983
action in federal court to be extremely difficult. I have indeed
flip-flopped on this issue during the course of extensive
deliberations with my two erudite colleagues, no doubt to the
frustration of them both. The assertiveness of Judge Rosen’s
opinion is more than sufficient to give anyone pause,
especially his accusations that we have issued an “invitation
to chaos and delay” (Dissenting Op. at 30), “abandon[ed] all
notions of judicial restraint” (id. at 31), provided “a classic
example of judicial meddling” (id. at 31), and engaged in
“thinly-veiled policymaking” (id. at 32). In the end, however,
I find that these sweeping generalizations generate more heat
than light, and that his position is actually the more “activist”
in an expansive interpretation of the PLRA beyond
Congress’s language and the Supreme Court’s precedents.
The heart of the problem is that the failure to apply the
concept of procedural default to a prison’s administrative
deadlines will, in cases such as the one before us, obligate the
federal courts to deal with the § 1983 issues without the
benefit of the state’s administrative consideration on the
merits. This makes the issue difficult for me because, were I
a legislator, I would think it sound policy to require prisoners
to comply with reasonable administrative deadlines. On the
other hand, as pointed out by Judge Moore, this legitimate
26 Thomas v. Woolum, et al. No. 01-3227
concern “is counterbalanced by the equally real concern that
in the presence of procedural default standards, prison
administrators will impose shorter and shorter deadlines
measured in hours and days, because prisoners will then have
no recourse to the federal courts if they miss even one
deadline.” (Maj. Op. at 19 n.4) These competing policy
considerations, however, are better reserved for Congress to
resolve than for us to adjudicate.
In deciding this issue, the two factors that ultimately
persuade me are that (1) Congress could have, but did not,
specify that a prisoner’s failure to comply with the prison’s
reasonable time limitations would result in a procedural
default (see Maj. Op. at 16-17), and (2) Supreme Court
precedents continue to distinguish between the concepts of
exhaustion of remedies and procedural default. Congress, if
it desires a different outcome, is clearly able to make an
appropriate amendment to the PLRA. Judge Rosen or I might
have drafted the current statute differently, but we are not
legislators. As a judge on the court of appeals, I do not feel
that I should attempt to alter the PLRA as it presently stands.
Judge Rosen obviously subscribes to a different analysis.
In his opinion, the concept of procedural default is built into
the concept of exhaustion of remedies. But the Supreme
Court cases that he relies on—Boerckel, Carpenter, and
Coleman—do not, in my opinion, support his analysis.
Judge Rosen, for example, quotes the Supreme Court’s
statement in O’Sullivan v. Boerckel, 526 U.S. 838 (1999), that
“we ask not only whether a prisoner has exhausted his state
remedies, but also whether he has properly exhausted those
remedies.” Id. at 848 (emphasis in original). If procedural
default were a necessary component of exhaustion in the
habeas corpus context (rather than an independent,
complementary doctrine), this sentence would make no sense.
The Supreme Court would instead have simply stated: “We
ask whether a prisoner has exhausted his state remedies.”
What the Supreme Court actually said, however, is that “we

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No. 01-3227 Thomas v. Woolum, et al. 27
ask not only whether a prisoner has exhausted his state
remedies, but also whether he has properly exhausted those
remedies.” Id. (first two emphases added; third emphasis in
original). Basic English grammar, not “adroit
deconstruction” (Dissenting Op. at 47), therefore compels the
conclusion that, under the Supreme Court’s precedents,
exhaustion and procedural default are two distinct concepts.
Carpenter and Coleman make the same differentiation.
Carpenter, 529 U.S. 446, 453 (2000); Coleman, 501 U.S.
722, 732 (1991).
In the final analysis, my policymaker heart yearns for the
result proposed by Judge Rosen, but my judicial head tells me
that Judge Moore has reached the correct result. Our legal
system requires us to heed the words of Congress as
interpreted by applicable Supreme Court precedent. Until
Congress changes the law or the Supreme Court corrects our
interpretation of its language, I am unwilling to read the
concept of procedural default into the PLRA.
28 Thomas v. Woolum, et al. No. 01-3227
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
ROSEN, District Judge, dissenting in part and concurring
in the judgment.
With one bold stroke, the lead opinion stands much of this
Circuit’s existing precedent on administrative exhaustion on
its head, holding that administratively established filing
deadlines mean nothing in a prisoner’s effort to exhaust his
remedies before commencing a § 1983 suit. By permitting
inmates to thumb their noses at such time limits, the lead
opinion thoroughly disables prison grievance systems as
meaningful tools for dispute resolution — a result deemed
unacceptable by every other Circuit that has addressed the
timeliness issue to date. More importantly, this result is
wholly at odds with Congress’s intent in enacting the Prison
Litigation Reform Act (“PLRA”) and amending 42 U.S.C.
§ 1997e(a) to establish a strict, mandatory exhaustion
requirement for prisoner § 1983 suits.
Still worse, however, is that this departure from precedent
and congressional intent is utterly unnecessary to our ultimate
judgment in this case. The District Court plainly must be
affirmed here, on the obvious ground that Plaintiff/Appellant
Douglas Thomas failed to exhaust his remedies against those
Defendants/Appellees who were not even mentioned in his
prison grievance. The lead opinion ultimately reaches
precisely this conclusion, and I fully concur on this point.
But first, the lead opinion goes out of its way to rewrite the
law on a different issue, notwithstanding its lack of bearing
upon the outcome of this case. Rather, the mischief is wholly
prospective — and, I might note, crafted in such a way as to
seemingly insulate it from further review.
The issue upon which I part company with my colleagues
is easily stated — whether an inmate presumptively must

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No. 01-3227 Thomas v. Woolum, et al. 29
comply with the procedural aspects of a prison’s grievance
system, including its time limits, in order to satisfy the
mandatory exhaustion requirement of § 1997e(a). This issue
already has been settled in this Circuit. We have held, for
example, that an inmate does not exhaust his administrative
remedies unless and until he pursues all avenues of appeal
that are available within the prison grievance system. See,
e.g., Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999);
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Wright
v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert. denied, 522
U.S. 906 (1997). Such a failure to appeal is a species of
procedural default, see O’Sullivan v. Boerckel, 526 U.S. 838,
848, 119 S. Ct. 1728, 1734 (1999), legally indistinguishable
from the sort of procedural default at issue in this case —
namely, a prisoner’s failure to meet an administrative filing
deadline.
Yet, the lead opinion explains that this case is different,
because it involves a late filing at the threshold of the
administrative process, rather than a failure to proceed to the
next level of this process. And, indeed, this is a distinction —
an inmate who fails to pursue an administrative appeal has
exhausted at least some available remedies, while a prisoner
whose grievance is properly rejected as untimely (as
happened here) has exhausted none. Nevertheless, in the
Alice-in-Wonderland world conjured up in the lead opinion,
the latter course now is favored over the former in this
Circuit.
Or is it? In cases which formerly were controlled by our
procedural default decisions, the lead opinion now provides
an open-ended opportunity for inmates to cure any sort of
procedural defect that a court might identify. After all,
dismissal in such cases is without prejudice, see Brown v.
Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525
U.S. 833 (1998), and, after today, inmates are no longer
bound by administrative deadlines of any sort. Consequently,
if a prisoner’s case is dismissed for failure to proceed through
all steps of the administrative process, the inmate now can
30 Thomas v. Woolum, et al. No. 01-3227
respond by completing the process, even though the relevant
deadlines might long since have passed. In short, much of
our existing precedent on prisoner exhaustion has been
rendered meaningless, and the courts in this Circuit have been
relegated to the role of providing legal advice to prisoners on
the proper filing of grievances.
Indeed, this invitation to chaos and delay must, of
necessity, be a two-way street. If prisoners no longer are
bound by deadlines, the same surely must be true for prison
administrators. Although prison regulations often call for
decisions to be reached within a specified time frame,
administrators presumably may now withhold their rulings
indefinitely, and then argue that any § 1983 suit is premature
until a decision eventually is forthcoming. In the event that
a court might conclude differently, prison administrators
could simply rewrite their regulations to remove any time
limits upon their decisionmaking process. We could hardly
complain, given the lack of significance that the lead opinion
places upon administrative deadlines, and given the nefarious
motives it ascribes to prison administrators who seek to
enforce such deadlines.
Here lies the root of my disagreement with the lead opinion
— it seemingly views time limits as mere traps for the
unwary, and utterly fails to acknowledge that procedural
deadlines serve the legitimate interests of both sides to a
dispute. This undoubtedly is why such limits are a standard
feature of virtually every dispute resolution process of which
I am aware. As a quid pro quo for their strict and uniform
adherence to these deadlines, parties are assured that their
dispute will be promptly resolved, and that justice will not be
effectively denied through interminable delay. This interest
is particularly compelling here, where the core purpose of
§ 1997e(a)’s exhaustion requirement is to ensure that prisoner
grievances are resolved administratively to the greatest extent
possible. See Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct.
983, 988 (2002). While I do not question the sincerity of the
lead opinion’s view that this purpose is served by

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No. 01-3227 Thomas v. Woolum, et al. 31
disregarding filing deadlines, I believe that this judgment
rests upon a fundamental misapprehension of the importance
of time limits to the effective and orderly functioning of any
dispute resolution system.
As a result, today’s decision is a classic example of judicial
meddling, with this panel substituting its own policy
judgment in place of the far different one made by Congress
in enacting § 1997e(a) in its present form. The statute
requires that prisoners must exhaust “such administrative
remedies as are available.” 42 U.S.C. § 1997e(a). As even
the lead opinion concedes, the prisoner in this case, Douglas
Thomas, exhausted these remedies only in the most technical
sense — once his grievance was rejected as having been filed
nearly five months past the relevant deadline, he had
exhausted all of the remedies that were then “available” to
him. Yet, we have sensibly recognized — and all other
Circuits that have considered the matter have agreed — that
“it would be contrary to Congress’s intent” to permit a
prisoner to procedurally default his grievance and then claim
that administrative remedies no longer are “available.”
Wright, 111 F.3d at 417 n.3; see also Pozo v. McCaughtry,
286 F.3d 1022, 1023-24 (7th Cir.), cert. denied, 123 S. Ct.
414 (2002); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir.
1999); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995).
This plain, pragmatic reading of § 1997e(a) is wholly at odds
with the lead opinion’s effort to distinguish between an
inmate’s “mere” procedural default and a failure to exhaust
his remedies.
To what end does the lead opinion abandon all notions of
judicial restraint and overturn this settled understanding of
administrative exhaustion? Presumably, the lead opinion
means to ensure that future prisoner § 1983 suits do not fall
victim to the cunning device of administrative filing
deadlines. Never mind that there is no record before us of any
large-scale, or even occasional, difficulty in complying with
such deadlines — fully seven years after Congress amended
§ 1997e(a) in 1996, we publish a decision on this issue for the
32 Thomas v. Woolum, et al. No. 01-3227
1I doubt that Congress (or prison officials) will be much consoled by
the lead opinion’s assurance that it has exercised “[j]udicial restraint.”
(Lead Op. at 19-20 n.4.) To say it does not make it so.
first time today. Never mind that there is nothing inherently
unreasonable or suspicious about the 30-day filing limit
imposed by Ohio prison officials in this case. Never mind
that prisoner Thomas has not identified any obstacles he
confronted in meeting this deadline. Never mind that, even
if he had, we could readily address this concern through case-
specific equitable tolling of the filing period, as opposed to
the lead opinion’s carte blanche for any and all inmates to
ignore any and all administrative time limits.
In my view, it is precisely this sort of thinly-veiled
policymaking that leads Congress to ever more curtail our
judicial discretion. Indeed, Congress did just that in
amending § 1997e(a) through the PLRA, enacting a
mandatory provision which eliminated the courts’ prior
“discretion to dispense with administrative exhaustion” and
imposed “an obviously broader exhaustion requirement.”
Booth v. Churner, 532 U.S. 731, 739, 741, 121 S. Ct. 1819,
1824, 1825 (2001). Upon reviewing this legislation, the
Supreme Court concluded that Congress “may well have
thought we were shortsighted” in prior decisions which
tended to downplay the value of administrative exhaustion.
Booth, 532 U.S. at 737, 121 S. Ct. at 1823. If so, Congress
surely will be chagrined by today’s result, which opens the
courts to even more claims that have never been addressed on
the merits in a prison’s administrative grievance system.1
Accordingly, I dissent from the Court’s ruling on the
timeliness issue, and concur only in its judgment affirming
the District Court.

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No. 01-3227 Thomas v. Woolum, et al. 33
I.
I begin with what seems to me an obvious point — that the
decision upon which the lead opinion principally relies, the
decades-old Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99
S. Ct. 2066 (1979), is not the first place one would look for
guidance in construing the exhaustion requirement of
§ 1997e(a). Among myriad other grounds for distinction, to
which I will return later, Oscar Mayer deals with a
requirement of commencement rather than exhaustion, and
addresses a detailed statutory scheme with a number of
unique features — e.g., concurrent state and federal
administrative jurisdiction, an express federal statute of
limitations, and an explicit definition of what constitutes
“commencement” of state proceedings — that have no
counterpart in the statute at issue here. Thus, I find it more
useful to start with the language of § 1997e(a) itself, our own
direct pronouncements on the meaning of this provision, and
the views of other Circuits on this subject. In the event that
this survey does not settle the issue, I find it instructive to
review the Supreme Court’s treatment of a similar statutory
exhaustion requirement imposed upon state prisoners —
namely, the requirement that they “exhaust[] the remedies
available in the courts of the State,” 28 U.S.C.
§ 2254(b)(1)(A), before seeking habeas corpus relief in
federal court. All of these sources, in my view, point
unmistakably toward the conclusion that exhaustion under
§ 1997e(a) entails compliance with a prison’s administrative
procedures, including filing deadlines.
Any analysis of § 1997e(a) necessarily must begin with the
language of the statute itself. As noted, prior to its 1996
amendment through the PLRA, the statute’s call for
exhaustion was largely discretionary — courts were
authorized to stay an inmate’s § 1983 suit for up to 180 days
while the prisoner exhausted such available administrative
remedies as were “plain, speedy, and effective,” but only if
the court deemed this “appropriate and in the interests of
justice.” 42 U.S.C. § 1997e(a)(1) (1994 ed.). The current
34 Thomas v. Woolum, et al. No. 01-3227
provision, in contrast, entirely eliminates this judicial
discretion, and instead mandates strict exhaustion in every
case:
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.
42 U.S.C. § 1997e(a). Through this enactment, Congress
“invigorated the exhaustion prescription,” thereby seeking “to
reduce the quantity and improve the quality of prisoner suits.”
Porter, 534 U.S. at 524, 122 S. Ct. at 988. While the pre-
PLRA version of § 1997e invited judges to assess the efficacy
of a prison’s dispute resolution processes, the current statute
decidedly does not “prescribe[] appropriate grievance
procedures or enable[] judges, by creative interpretation of the
exhaustion doctrine, to prescribe or oversee prison grievance
systems.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th
Cir. 2001).
Given the clear command of § 1997e(a) in its present form,
the lead opinion properly observes that “the question is what
exhaustion requires.” (Lead Op. at 15.) Whatever the precise
contours of this requirement, it plainly is procedural in nature:
While the modifier “available” requires the possibility of
some relief for the action complained of . . . , the word
“exhausted” has a decidedly procedural emphasis. It
makes sense only in referring to the procedural means,
not the particular relief ordered. It would, for example,
be very strange usage to say that a prisoner must
“exhaust” an administrative order reassigning an abusive
guard before a prisoner could go to court and ask for
something else; or to say (in States that award money
damages administratively) that a prisoner must “exhaust”
his damages award before going to court for more. How
would he “exhaust” a transfer of personnel? Would he

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No. 01-3227 Thomas v. Woolum, et al. 35
have to spend the money to “exhaust” the monetary relief
given him? It makes no sense to demand that someone
exhaust “such administrative [redress]” as is available;
one “exhausts” processes, not forms of relief, and the
statute provides that one must.
Booth, 532 U.S. at 738-39, 121 S. Ct. at 1824.
This Circuit’s precedents reflect a similar understanding of
the nature of § 1997e exhaustion. As noted at the outset, we
have held on several occasions that a prisoner must fully
pursue all administrative processes to completion, including
all available avenues of internal appeal, in order to satisfy
§ 1997e(a) and commence a § 1983 suit. See, e.g., Hartsfield
v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999); Freeman, 196
F.3d at 645; White, 131 F.3d at 595. In so ruling, we have
consistently taken note of the filing deadlines that govern
these administrative processes, and have cautioned inmates to
pay heed to these time limits.
In Hartsfield, for example, the plaintiff prisoner, Napoleon
Hartsfield, complained that he had been unlawfully placed in
top-of-bed restraints for eighteen hours. Hartsfield contended
that he had submitted an administrative grievance a day after
the incident, but he produced no evidence of this filing.
Instead, the record disclosed that Hartsfield had written to the
grievance coordinator about two weeks later, stating that he
had not been provided with a receipt for or response to his
grievance. The grievance coordinator responded the next day
that no grievance had been received, and that Hartsfield
would have to refile. He chose instead to bring a § 1983 suit,
and to pursue an administrative appeal only after a Magistrate
Judge had instructed the parties to brief the issue of
exhaustion. A prison official refused to allow this appeal,
absent proof that Hartsfield had ever filed an initial
administrative grievance.
Under this record, Hartsfield argued that his attempts at
administrative exhaustion should be deemed to satisfy the
36 Thomas v. Woolum, et al. No. 01-3227
standards of § 1997e(a) or, alternatively, that any further
efforts at exhaustion should be excused as futile. This Court
disagreed:
Even if plaintiff did file an initial grievance . . . , he
was required to continue to the next step in the grievance
process within the time frame set forth in the
regulations if no response is received from prison
officials or if the prisoner is not satisfied with the
response. We have previously held that an inmate cannot
simply fail to file a grievance or abandon the process
before completion and claim that he has exhausted his
remedies or that it is futile for him to do so because his
grievance is now time-barred under the regulations.
Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir.), cert.
denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 190
(1997). Plaintiff should have either refiled his grievance
when he was informed . . . that the prison had no record
of the grievance or provided [a] receipt[] . . . so he could
have proceeded with an [administrative] appeal. We
find, therefore, that plaintiff did not exhaust his
administrative remedies . . . .
Hartsfield, 199 F.3d at 309 (emphasis added); see also
Freeman, 196 F.3d at 645 (recognizing that the plaintiff
prisoner “made some attempts to go through the prison’s
grievance procedures,” but ordering dismissal because the
plaintiff “filed his federal complaint before allowing the
administrative process to be completed”).
As noted in Hartsfield, we first endorsed this rule of
complete exhaustion in Wright, 111 F.3d at 417 n.3. One of
the plaintiff prisoners in Wright had filed an administrative
grievance, but had not appealed the denial of this grievance
through the entire administrative process. The inmate
contended that he had exhausted all “available” remedies
within the meaning of § 1997e(a), because the deadline for
any further appeals had long since expired. We found it
unnecessary to address this argument, in light of our

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No. 01-3227 Thomas v. Woolum, et al. 37
conclusion that the amended § 1997e(a) did not apply to the
prisoner’s pre-PLRA suit. Nonetheless, we emphasized:
It is clear, however, that in the usual case in the future,
where the alleged violations occurred after the PLRA’s
enactment, and inmates have both notice that exhaustion
is required and a reasonable opportunity to file
complaints, it would be contrary to Congress’s intent in
enacting the PLRA to allow inmates to bypass the
exhaustion requirement by declining to file
administrative complaints and then claiming that
administrative remedies are time-barred and thus not
then available.
Wright, 111 F.3d at 417 n.3 (emphasis added); see also
Hrynczyn v. Mitchell, No. 00-4320, 2001 WL 1299027, at *1
(6th Cir. Aug. 9, 2001) (rejecting a prisoner’s argument that
no administrative remedies were available because any
grievance he filed would be dismissed as untimely).
Indeed, this Court has insisted that inmates be resourceful
in their efforts to comply with prison grievance procedures.
In Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001), for
instance, the plaintiff prisoner claimed that he had asked for
a grievance form, but was told by a prison counselor to “get
out of his office.” We affirmed the dismissal of the case for
failure to exhaust administrative remedies, reasoning that the
plaintiff did “not allege that there was no other source for
obtaining a grievance form or that he made any other attempt
to obtain a form or to file a grievance without a form.” Jones,
266 F.3d at 400. More generally, we have placed the burden
upon prisoners to “allege and show that they have exhausted
all available state administrative remedies,” and have
instructed that “[d]istrict courts should enforce the exhaustion
requirement sua sponte if not raised by the defendant.”
Brown, supra, 139 F.3d at 1104.
Under these precedents, then, once a prison’s filing
deadline has passed, an inmate cannot simply dispense with
38 Thomas v. Woolum, et al. No. 01-3227
the filing of an administrative grievance on the ground that
prison officials surely would reject it. In the present case, for
example, if prisoner Thomas had altogether failed to file a
grievance, rather than submitting it nearly five months after
the prison’s 30-day deadline, we would have been bound to
conclude that this course of action did not comply with the
dictates of § 1997e(a). This leads to the question whether an
untimely filing should be accorded different treatment under
§ 1997e(a) than no filing at all.
As a matter of brute fact, Thomas’s untimely filing in this
case produced absolutely no benefit over an outright failure
to file. His grievance was rejected as submitted outside the
prison’s 30-day limit, and there was no administrative review
of his complaints on the merits. As a result, none of the aims
of § 1997e(a) has been achieved here — Thomas’s grievance
did not spur corrective action that might have obviated the
need for litigation, there has been no filtering of any frivolous
claims, and no administrative record was developed that
might assist the courts in understanding “the contours of the
controversy.” Porter, 534 U.S. at 525, 122 S. Ct. at 988.
Nonetheless, the lead opinion holds that “Thomas gave the
state officers an opportunity” to address his grievance, “which
is all that is required” to satisfy the statutory exhaustion
requirement. (Lead Op. at 20.)
This “opportunity-based” theory of exhaustion, however,
improperly shifts the burden from inmates to prison officials,
requiring that the latter seize upon any chance to address any
complaint that a prisoner might raise at any time and through
any means. As such, the lead opinion’s reasoning runs
counter to our precedents, which have consistently construed
§ 1997e(a) as demanding that inmates must invoke and fully
exhaust a prison’s administrative grievance processes. In
Freeman, for example, the plaintiff prisoner alleged that he
was assaulted by a corrections officer, and he argued that “an
investigation by the prison Use of Force Committee and the
Ohio State Highway Patrol into the alleged assault satisfies
§ 1997e(a) because the statute does not specify that

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No. 01-3227 Thomas v. Woolum, et al. 39
exhaustion must be through the prison’s grievance
procedure.” 196 F.3d at 644. This Court disagreed, noting
that use-of-force investigations can be initiated for a variety
of reasons, and stressing “the importance of using the prison
grievance process in order to alert prison officials to
problems.” Freeman, 196 F.3d at 644. More importantly, we
held that “the exhaustion requirement in § 1997e(a) is
directed at exhausting the prisoner’s administrative remedies
in the corrections system, and investigation by another agency
does not satisfy the requirement of the statute.” 196 F.3d at
644. We recently affirmed this rule, stating that “an
investigation by a prison Use of Force Committee will not
substitute for exhaustion through the prison’s administrative
grievance procedure.” Curry v. Scott, 249 F.3d 493, 504 (6th
Cir. 2001).
The present case perfectly illustrates the important
distinction between internal use-of-force investigations and
prisoner grievances. The Ohio prison officials themselves
initiated an investigation of Thomas’s beating, and a use-of-
force committee concluded that Defendant Shawn Woolum
had acted contrary to prison regulations in his assault on
Thomas. Following this investigation, the prison authorities
addressed the problem as they perceived it by discharging
Woolum. If Thomas desired a broader inquiry or additional
relief, whether from Woolum or others, it behooved him to
file an administrative grievance bringing these matters to the
attention of prison officials. Yet, under the lead opinion’s
broadest statement of its holding, Thomas need not have filed
a grievance at all, so long as prison officials had the
“opportunity” to discern what his complaints might be and
address them. Such a rule is simply irreconcilable with this
Court’s prior decisions, which require a good deal more from
the inmate himself before he may commence a § 1983 suit.
Perhaps, however, the lead opinion means to endorse a
more limited rule, under which a prison official’s
“opportunity” to address an inmate’s complaint must be
triggered by the inmate’s filing of a grievance, whether or not
40 Thomas v. Woolum, et al. No. 01-3227
untimely or procedurally deficient in some other way. Even
this more limited proposition is at odds, in my view, with our
oft-stated rule of complete exhaustion — though a timely-
filed grievance plainly provides an “opportunity” (and,
indeed, a duty) to address a prisoner’s complaints, we still
insist that the inmate pursue the matter through all available
levels of the administrative process. More specifically, the
lead opinion’s disregard for administrative time limits goes
against the considered views of two panels in this Circuit,
albeit in unpublished decisions, and places us alone among
the several Courts of Appeals that have addressed this precise
issue.
This Court first considered this question in Qawi v. Stegall,
No. 98-1402, 211 F.3d 1270, 2000 WL 571919 (6th Cir.
May 3, 2000). In that case, the plaintiff prisoner’s
administrative grievance was rejected as untimely, but he
argued that this delay should be excused as a result of his
good faith efforts to resolve the matter informally. We held
that the plaintiff had failed to exhaust his administrative
remedies, observing that his grievance was untimely even
under the prison rules governing informal dispute resolution.
Similarly, in Jacobs v. Wilkinson, No. 00-3212, 2001 WL
1298979 (6th Cir. Aug. 8, 2001), the plaintiff inmate
complained of two incidents — his grievance as to the first
had been dismissed as untimely, and he had submitted only an
informal complaint as to the second. We found that the
plaintiff had failed to exhaust his administrative remedies as
to either of his two complaints, making no distinction
between his untimely grievance and his outright failure to file
a grievance.
As noted, three of our sister Circuits have reached the same
conclusion. First, in Marsh, supra, the Fifth Circuit upheld
the dismissal of a prisoner’s § 1983 suit for failure to exhaust
administrative remedies under the pre-PLRA version of
§ 1997e(a), where the inmate’s administrative grievance had
been dismissed as untimely filed more than 30 days after the
incident of which she complained. Although the version of

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No. 01-3227 Thomas v. Woolum, et al. 41
2Although Ma rsh predates § 1997 e(a) in its present form, the Fifth
Circuit recently confirmed the continued vitality of this decision in Days
v. Johnson, 322 F.3d 863 (5th Cir. 2003). The plaintiff inmate in Days
alleged that a broken hand had prevented him from timely filing his
administrative grievance, but that he had filed a grievance as soon as this
injury had healed . The Court found that these allega tions, if proven,
would suffice to show that the prisoner had “exhausted the administrative
remedies that were perso nally available to him.” 322 F.3d at 867. T he
Fifth Circuit then emphasized the narrow reach of this ruling:
W e, of course, do not hold that an untimely grievance in and
of itself would render the system unavailable, thus excusing the
exhaustion requirement. Such a hold ing would allow inm ates to
file suit in federal court despite intentionally evading the
§ 1997e(a) then in effect authorized the courts to grant a
continuance so that the plaintiff prisoner could exhaust any
available administrative remedies, the Court reasoned that a
continuance was not warranted under the circumstances of
that case:
Because the prison had already rejected [the plaintiff’s]
administrative grievance as untimely, her administrative
remedies were foreclosed, and a continuance would have
served no purpose. When a section 1997e continuance
would serve no purpose, a district court still has the
power to dismiss a prisoner’s suit under section 1997e
for failure to exhaust administrative remedies . . . .
Without the prospect of a dismissal with prejudice, a
prisoner could evade the exhaustion requirement by
filing no administrative grievance or by intentionally
filing an untimely one, thereby foreclosing administrative
remedies and gaining access to a federal forum without
exhausting administrative remedies. Thus, we hold that
a district court has the power to dismiss a prisoner’s
section 1983 suit under section 1997e even when
administrative relief is time-barred or otherwise
precluded.
Marsh, 53 F.3d at 710 (citations and footnote omitted).2
42 Thomas v. Woolum, et al. No. 01-3227
PLRA’s exhaustion requirement by failing to comply with the
prison grievance system. See Harper v. Jenkin, 179 F.3d 1311,
1312 (11th Cir. 199 9); see also Ma rsh v. Jones, 53 F.3d 707, 710
(5th Cir. 1995) (previous version of § 1997e). We emphasize
that our holding is limited to the narrow facts of this case. More
specifically, administrative remedies are deemed unavailable
when (1) an inmate’s untimely filing of a grievance is because
of a physical injury and (2) the grievance system rejects the
inmate’s subsequent attempt to exhaust his remedies based on
the untimely filing of the grievance.
Days, 322 F.3d at 867-68 (footnote omitted).
The Eleventh Circuit also has held that an untimely
grievance generally does not satisfy § 1997e(a)’s exhaustion
requirement. In Harper, supra, the plaintiff inmate’s
grievance was denied as untimely, and the inmate failed to
invoke a prison procedure that authorized waiver of the filing
deadline for “good cause” shown. Under these circumstances,
the Court held that the plaintiff “cannot be considered to have
exhausted his administrative remedies.” Harper, 179 F.3d at
1312. The Court reasoned that a contrary conclusion would
permit inmates to “ignore the PLRA’s exhaustion requirement
and still gain access to federal court merely by filing an
untimely grievance.” 179 F.3d at 1312.
Most recently, the Seventh Circuit has joined in this
consensus, construing § 1997e(a) as requiring that a prisoner
“complete[] the administrative process by following the rules
the state has established for that process,” including filing
deadlines. Pozo, supra, 286 F.3d at 1023. In Pozo, the
plaintiff prisoner timely filed his initial grievance, but then
waited a year before pursuing an administrative appeal. He
argued that Wisconsin prison officials had the discretion to
waive the state’s usual 10-day filing deadline, and that this
power to hear an untimely appeal satisfied the purposes of the
exhaustion requirement because it afforded the opportunity to
address his complaints. The Court disagreed:

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No. 01-3227 Thomas v. Woolum, et al. 43
3Still another Circuit, like this one, has addressed the issue of
untimely filing only in an unpublished decision. In Collins v. Federal
Bureau of Prisons, No. 02-1503, 2003 WL 21380545 (10th Cir. June 16,
2003), the Tenth Circuit held that an inmate’s “failure to meet the
app ropriate filing deadlines for administrative remedies constitutes a
failure to exhaust those remedies.”
[T]his position would leave § 1997e(a) without any
oomph. Wisconsin cannot be unusual in allowing prison
officials some authority to entertain untimely complaints
and appeals. If the existence of this power means that
prisoners need not file timely complaints and appeals,
then the incentive that § 1997e(a) provides for prisoners
to use the state process will disappear. Prisons are
unlikely to entertain many appeals filed a year late, or by
prisoners who otherwise thumb their noses at the
specified procedures.
Pozo, 286 F.3d at 1025. More generally, the Seventh Circuit
reasoned that judicial disregard for prison grievance
procedures
would allow a prisoner to “exhaust” state remedies by
spurning them, which would defeat the statutory
objective of requiring the prisoner to give the prison
administration an opportunity to fix the problem — or to
reduce the damages and perhaps to shed light on factual
disputes that may arise in litigation even if the prison’s
solution does not fully satisfy the prisoner.
286 F.3d at 1023-24 (citations omitted).3
Thus, prior to the lead opinion’s ruling today, every court
that has considered the matter has concluded that an untimely
grievance which is rejected as such by prison officials does
not satisfy the exhaustion requirement of § 1997e(a). Indeed,
the lead opinion is unable to identify any case in any area of
the law in which a court has found that an administrative
exhaustion requirement was satisfied through an unexcused
44 Thomas v. Woolum, et al. No. 01-3227
filing outside of the governing administrative time limit.
Instead, the lead opinion’s reasoning rests principally upon
the inapposite Oscar Mayer decision, with an additional
appeal to the Supreme Court’s rulings on exhaustion in the
context of state prisoner habeas petitions. I turn first to these
latter decisions, as they weigh decidedly against the
conclusion reached in the lead opinion here.
II.
Whether a state prisoner wishes to bring a § 1983 suit or a
habeas petition under 28 U.S.C. § 2254(a) challenging the
lawfulness of his confinement, he first must exhaust the
relevant set of remedies. The two exhaustion requirements
are similarly worded: § 1997e(a) provides that an inmate
must exhaust “such administrative remedies as are available,”
while habeas relief cannot be granted unless an inmate “has
exhausted the remedies available in the courts of the State,”
28 U.S.C. § 2254(b)(1)(A). Accordingly, the Supreme Court
precedents as to the latter statute are likely to be instructive in
interpreting the former. The lead opinion agrees, citing
several of these decisions in support of the result it reaches.
I find this utterly remarkable, since the Supreme Court
expressly held in one of these cases that a prisoner’s untimely
filing in state court barred him from seeking habeas relief in
federal court.
Specifically, in Coleman v. Thompson, 501 U.S. 722, 111
S. Ct. 2546 (1991), the Court considered the effect of a death
row prisoner filing his state court notice of appeal a mere
three days after the 30-day deadline imposed by the
governing Virginia court rule. In light of this untimely
submission, the Virginia Supreme Court dismissed the
prisoner’s appeal without reaching the merits. The U.S.
Supreme Court recognized that the prisoner’s delayed filing
— a defect legally tantamount to an outright “failure to appeal
at all” — was “no doubt” a result of “inadvertent error.”
Coleman, 501 U.S. at 749, 750, 111 S. Ct. at 2564, 2565.
Nonetheless, the Court held that federal habeas review was

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No. 01-3227 Thomas v. Woolum, et al. 45
4Coleman also undermines the lead opinion’s appeal to the
presumption that Congress legislates with full awareness of the relevant
Supreme Court precedents. (See Lead Op . at 16.) While I fully accept
this proposition, I would suggest that Congress much more likely had
Coleman than Oscar Mayer in mind when it enacted § 1 997 e(a), a
provision which is quite similar to the statute involved in Coleman, but
which bears absolutely no resemblance to the enactment at issue in Oscar
Mayer.
unavailable as to the claims advanced in the inmate’s
untimely state court appeal. 501 U.S. at 757, 111 S. Ct. at
2568.
The import of Coleman to the question presented here
seems plain enough. In that case, a filing three days past a
state court deadline led the Supreme Court to hold that a
death row prisoner had forfeited his opportunity to obtain
federal court review of the constitutionality of his continued
detention and sentence. The only relevant statutory
prerequisite to such habeas relief was that the prisoner must
have exhausted the remedies available to him in the state
courts. It readily follows, in my view, that a filing past an
administrative deadline presumptively precludes an inmate
from establishing the nearly identical statutory prerequisite
for commencement of a § 1983 suit. At a minimum, Coleman
blunts the force of the lead opinion’s contention that a
requirement of timely filing would impose too high a cost
upon the constitutional rights of prisoners — the stakes
obviously were much higher in Coleman, implicating the
prisoner’s asserted right to be free from confinement and an
eventual death sentence.4
In addition, while the lead opinion relies heavily upon
policy arguments gleaned from the Supreme Court’s Oscar
Mayer decision, it barely acknowledges (and largely
misconstrues) the much more pertinent policy considerations
set forth in Coleman. Having previously held, for example,
that a state prisoner’s federal habeas suit failed for lack of
46 Thomas v. Woolum, et al. No. 01-3227
5The lead opinion casually dismisses Coleman’s various policy
considerations with the ob servation that “we have never considered a state
warden’s decisio n on a grievance to be the equal of a full state court
judgment.” (Lead O p. at 18.) U nless we are engaged in some sort of
zero-sum game, however, I see no reason to inquire whether the two are
entirely equivalent or one is “better” than the other. It only matters
whether both are entitled to some degree of federal court deference, and
a vast array of Supreme Co urt precedent holds that prison officials are
entitled to a large measure of deference in the day-to-day operations of
their institutions.
In any event, the lead opinion arrives at the wrong answer by asking
the wrong question. Section 1997e(a) is silent on the weight to be given
to a warden’s decision on the merits in a particular case. W hat it does
demand, however, is that an inmate present his grievance for the warden’s
timely filing under Fed. R. App. P. 4(a), the Coleman Court
observed that its ruling had the virtue of
eliminat[ing] inconsistency between the respect federal
courts show for state procedural rules and the respect
they show for their own. This Court has long understood
the vital interest served by federal procedural rules, even
when they serve to bar federal review of constitutional
claims . . . . No less respect should be given to state rules
of procedure.
Coleman, 501 U.S. at 751, 111 S. Ct. at 2565-66 (citations
omitted). More generally, the Court explained that its strict
insistence upon exhaustion in the habeas context was
“grounded in principles of comity; in a federal system, the
States should have the first opportunity to address and correct
alleged violations of [a] state prisoner’s federal rights.”
Coleman, 501 U.S. at 731, 111 S. Ct. at 2555. All of this
readily carries over to the present context, in light of the
Supreme Court’s admonition that “prison administrators . . . ,
and not the courts, [are] to make the difficult judgments
concerning institutional operations.” Turner v. Safley, 482
U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (internal quotations
and citation omitted).5

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No. 01-3227 Thomas v. Woolum, et al. 47
consideration and se e the ad ministrative process through to completion
before he may proceed to federal court. No one se riously questions the
correctness of the warden’s decision in this case — no matter how much
or how little deference we give, we surely would agree that Thomas’s
grievance was, in fact, filed several months past the 30-day deadline, and
that he has presented no valid excuse for his untimely submission. The
relevant question is whether we must respect Ohio’s imposition and
enforcement of this 30-day deadline. So again, I ask — if we agree to
respect a State’s judgment that a prisoner must proceed through one or
more layers of administrative appeal, why should we balk at the who lly
analogous procedural rule at issue here?
Nevertheless, through adroit deconstruction, the lead
opinion endeavors to show that Coleman supports its
conclusion here. In particular, the lead opinion focuses on
portions (though not the entirety) of the following passage
from that decision:
Just as in those cases in which a state prisoner fails to
exhaust state remedies, a habeas petitioner who has failed
to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts
of an opportunity to address those claims in the first
instance. A habeas petitioner who has defaulted his
federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies
any longer “available” to him. In the absence of the
independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid
the exhaustion requirement by defaulting their federal
claims in state court. The independent and adequate state
ground doctrine ensures that the States’ interest in
correcting their own mistakes is respected in all federal
habeas cases.
Coleman, 501 U.S. at 731-32, 111 S. Ct. at 2555 (citations
omitted). From this language, the lead opinion surmises that
untimely filing does not directly equate with lack of
exhaustion, but that it bars habeas relief only by virtue of the
distinct “independent and adequate state ground” or
48 Thomas v. Woolum, et al. No. 01-3227
6Even this point is a dubious one. W hile the lead opinion dutifully
recounts a portion of Coleman’s historical survey of the independent and
adeq uate state ground doctrine and the procedural default rule, it stops
notab ly short of ackno wledging that the federal courts’ application of the
latter rule in the habeas context rests solely upon “concerns of comity and
federalism” — concerns which undoubtedly are present here — and not
upon jurisdictional considerations or the need to avoid ad visory opinions.
Coleman, 501 U.S . at 730, 111 S. Ct. at 2554. Thus, it would be
misleading to suggest, as the lead opinion appears to do, that the Coleman
Court felt itself jurisdictionally compelled to adhere to the procedural
default rule.
Rather, Coleman plainly evidences the Court’s recognition of the
complementary nature of the exhaustion requirement and the procedural
default rule — both are “grounded in principles of comity,” and the
former would be rendered a nullity without the latter. 501 U.S. at 731-32,
111 S. Ct. at 2554-55. T hus, the Court eq uated “cases in which a state
prisoner fails to exhaust state remedies” and those in which a prisoner
“fail[s] to meet the State’s procedural req uirements for p resenting his
federal claims” — in either case, the inma te “has deprived the state courts
of an opportunity to address those claims in the first instance.” 501 U.S.
at 732 , 111 S. Ct. at 2 555 . Mo reover, the C ourt invoked the procedural
default rule to ensure that prisoners did not “avoid the exhaustion
requirement by defaulting their federal claims in state court,” 501 U.S. at
732, 111 S. Ct. at 2555 — precisely the reasoning which the various
Courts of App eals have employed in reso lving the issue now before us,
yet which the lead opinion sum marily rejects as contrary to the purported
views of the Supreme Court and the “meaning of exhaustion,” (Lead Op.
at 18).
“procedural default” doctrine. The lead opinion then reasons
that no such doctrine has been incorporated into our prisoner
§ 1983 jurisprudence, leaving us free to follow the “technical”
definition of exhaustion cited in Coleman.
I find this reasoning wholly unpersuasive, for two reasons.
First, to whatever extent Coleman can be read as
distinguishing between procedural default and exhaustion,6
this distinction has been obliterated in subsequent Supreme
Court habeas decisions. In O’Sullivan, supra, for example,
the Court considered the question whether a state prisoner
must petition for discretionary review by a state supreme

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No. 01-3227 Thomas v. Woolum, et al. 49
7Indeed, the dissent’s chief complaint in O’Sullivan was that the
Court’s opinion “co nfuse[d ]” the two “analytically distinct” rules of
exhaustion and procedural default. 526 U.S. at 850, 119 S. Ct. at 1735
(Stevens, J., dissenting). Even the dissent recognized, however, that the
procedural default doctrine was “crafted” b y the Co urt “[i]n order to
protect the integrity of our exhaustion rule.” 526 U.S. at 853, 119 S. Ct.
court in order to satisfy the exhaustion requirement. In
answering in the affirmative, the Court noted the “interplay”
between the doctrines of exhaustion and procedural default,
once again explaining (as it had in Coleman) that “a prisoner
could evade the exhaustion requirement — and thereby
undercut the values that it serves — by letting the time run on
state remedies.” O’Sullivan, 526 U.S. at 848, 119 S. Ct. at
1734 (internal quotations and citation omitted). The Court
then elaborated:
To avoid this result, and thus protect the integrity of the
federal exhaustion rule, we ask not only whether a
prisoner has exhausted his state remedies, but also
whether he has properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state
courts. Our disagreement with [the dissent] in this case
turns on our differing answers to this last question:
Whether a prisoner who fails to present his claims in a
petition for discretionary review to a state court of last
resort has properly presented his claims to the state
courts. Because we answer this question “no,” we
conclude that [state prisoner] Boerckel has procedurally
defaulted his claims.
526 U.S. at 848, 119 S. Ct. at 1734 (internal quotations and
citations omitted).
Apart from this express statement that the procedural
default doctrine is a necessary component of the exhaustion
rule, the Court interchangeably referred to the prisoner’s
failure in that case as a lack of exhaustion and a procedural
default.7 Because Illinois authorizes petitions for
50 Thomas v. Woolum, et al. No. 01-3227
at 1736-37 (Stevens, J., dissenting).
discretionary review by that State’s highest court, the
Supreme Court reasoned that this was an “available” remedy
which prisoner Boerckel was obliged to exhaust before
seeking habeas relief in federal court. Boerckel fell short of
this exhaustion requirement, however, by virtue of his failure
to include three of his federal claims in his petition to the
Illinois Supreme Court. Moreover, because the “time for
filing such a petition ha[d] long passed,” the Court held that
“Boerckel’s failure to present three of his federal habeas
claims to the Illinois Supreme Court in a timely fashion has
resulted in a procedural default of those claims.” O’Sullivan,
526 U.S. at 848, 119 S. Ct. at 1734. Under this reasoning, the
notions of exhaustion and procedural default are merged, and
an inmate’s failure to properly pursue a state remedy in
accordance with the relevant procedural requirements can just
as well be termed a lack of exhaustion or a procedural default.
It follows, in particular, that an outright failure to file is
legally indistinguishable from a submission beyond the state’s
filing deadline.
But perhaps even more to the point, and closer to home, the
Supreme Court recently rejected this Circuit’s continued
recognition of a distinction between exhaustion and
procedural default in the habeas context. In Carpenter v.
Mohr, 163 F.3d 938, 944 (6th Cir. 1998), we had held that the
District Court had “erroneously conflated the exhaustion
requirement with the procedural default or waiver rule,”
thereby merging two inquiries which were “analytically
distinct.” In language which bears a striking similarity to the
lead opinion’s reasoning in this case, we stated that “the
exhaustion requirement is satisfied even if a claim was
procedurally defaulted in state court, because in such cases
there are no longer remedies available for the petitioner to
exhaust.” Carpenter, 163 F.3d at 944 (citing Coleman and
other cases).

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No. 01-3227 Thomas v. Woolum, et al. 51
The Supreme Court reversed. See Edwards v. Carpenter,
529 U.S. 446, 120 S. Ct. 1587 (2000). The Court deemed it
“not a hard question” whether it suffices to merely “present”
a claim to the state courts, “even though it was not presented
in the manner that state law requires.” 529 U.S. at 452, 120
S. Ct. at 1591-92. An affirmative answer to this question, in
the Court’s view, “would render [the] exhaustion requirement
illusory.” 529 U.S. at 452, 120 S. Ct. at 1592 (footnote
omitted). The Court then continued:
We recognized the inseparability of the exhaustion rule
and the procedural default doctrine in Coleman . . . . We
again considered the interplay between exhaustion and
procedural default last Term in O’Sullivan . . . ,
concluding that the latter doctrine was necessary to
“‘protect the integrity’ of the federal exhaustion rule.”
The purposes of the exhaustion requirement, we said,
would be utterly defeated if the prisoner were able to
obtain federal habeas review simply by “‘letting the
time run’” so that state remedies were no longer
available. Those purposes would be no less frustrated
were we to allow federal review to a prisoner who had
presented his claim to the state court, but in such a
manner that the state court could not, consistent with
its own procedural rules, have entertained it. In such
circumstances, though the prisoner would have
“concededly exhausted his state remedies,” it could
hardly be said that, as comity and federalism require, the
State had been given a “fair ‘opportunity to pass upon
[his claims].’”
529 U.S. at 452-53, 120 S. Ct. at 1592 (emphasis added)
(citations omitted).
Under federal habeas law, then, all that remains of any
distinction between the exhaustion and procedural default
rules is different terminology and separate historical lineages.
While it is true that the Supreme Court had to make a choice
whether to merge these two doctrines, the Court has readily
52 Thomas v. Woolum, et al. No. 01-3227
8Judge Gilman’s concurrence rests entirely on the proposition that
my approach would effectively amend Congress’s statutory mandate of
exhaustion by incorporating a requirement of timely filing. Ce rtainly, this
charge of “judicial activism” would apply as well to the three other
Circuits which have adopted the reading of § 1997e(a) that I favor — and,
as noted, it would app ly as well to the Supreme Court’s habeas decisions.
But Judge Gilman’s analysis merely begs the question, in my view. I
freely acknowledge, as did the Supreme Co urt in Coleman, that a prisoner
exhausts his remedies in a “technical” sense once there are no more
administrative avenues to pursue, whether because of a procedural default
or for any other reason. The question we confront here is whether the
congressional mand ate is satisfied through such “technical” exhaustion,
or whether § 1997e(a) demand s something more from prisoners.
and repeatedly recognized the practical necessity of this
merger — absent a procedural default component, the
exhaustion requirement would be a nullity. Likewise, our
sister Circuits — as well as this Circuit, albeit in unpublished
decisions — have found it necessary to construe the
exhaustion rule of § 1997e(a) as encompassing procedural
default through untimely administrative filing.
The lead opinion and concurrence insist that this reading of
§ 1997e(a) is improper, however, because it would add a
timeliness requirement to the statute that Congress
purportedly has declined to impose. To this contention, I can
only respond that the Supreme Court presumably did not view
itself as legislating when it adopted a similar construction of
the habeas exhaustion statute, 28 U.S.C. § 2254(b)(1)(A).
Indeed, if it would be improper for a court to erect additional
obstacles to a prisoner suit under § 1983, it would be all the
more problematic for the courts to restrict their
congressionally-conferred and constitutionally-mandated
authority to entertain prisoner habeas petitions. But this is not
what the Supreme Court has done, or what our sister Circuits
have done, in insisting that prisoners comply with applicable
deadlines and other procedural requirements — to the
contrary, they have ensured that the congressional mandate of
exhaustion is preserved rather than subverted, by construing
exhaustion in the only way that makes sense.8

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No. 01-3227 Thomas v. Woolum, et al. 53
As a matter of brute sem antics, I do not deny that the “technica l”
definition of exhaustion favored by my colleagues is a permissible one.
For all of the reasons outlined herein, however, I simply do not believe
that this is the meaning Congress intended in enacting the PLRA. Judge
Gilman has succinctly stated one o f my reasons — that, in cases such as
this one, a requirement of mere “technical” exhaustion results in the
federal courts having “to deal with the § 198 3 issues without the benefit
of the state’s administrative consideration on the merits.” (Concurring
Op. at 25.) While Judge Gilman states that such cases “make[] the issue
difficult” for him, (id.), they make it easier for me to conclude that
Congress could not have intended a definition of exhaustion that routinely
perm its claims to reach the federal courts without the benefit of any prior
consideration on the merits. Under such circumstances, I find it
unnecessary to await a legislative declaration that § 1997e(a) mandates
actual, meaningful, and not merely “technical” exhaustion.
Yet, beca use it is possible to define exhaustion in a purely “technical”
sense, my charges of “judicial meddling” do not rest upon any notion that
my colleagues have “rewritten” § 19 97e (a). Ra ther, my q uarrel is with
the analytical route by which they arrive at their reading of this statute.
Judge Gilman’s concurrence makes the argument, for example, that the
Supreme Court’s habeas decisions do not compel any particular result
here, because the “inseparability of the exhaustion rule and the
procedural-default doctrine” in the habeas context, Edwards, 529 U.S. at
452, 120 S. Ct. at 1592, does not require that we place a similar
procedural-default gloss upon § 1997e(a). Very well, but this does not
deny the force of (or even address) my argument that all of the same
grounds relied upon by the Supreme Court in Coleman, O’Sullivan, and
Carpenter are fully ap plicab le here, and therefore should lead us to
construe exhaustion under § 1997e(a) in the same way that exhaustion has
been interpreted in habeas cases. It is evidence of judicial activism, in my
view, to resolve an issue as though writing on a blank slate, and to deny
the clear impo rt of closely analogous decisions.
The remaining bases for my concerns of judicial policymaking are set
forth throughout this opinion and need not be repeated here. I do wish to
emphasize one point, however — that, no matter how many times my
colleagues appeal to “S upreme C ourt preced ent,” (Lead Op. at 2-3;
Concurring Op. at 27), they simp ly canno t identify a single case, whether
under § 1997 e(a) or in any other statutory o r adm inistrative context, in
which that Co urt (or any other) has held that an exhaustion requirement
was satisfied through an unexcused filing beyo nd an applicable deadline.
Next, even assuming that some meaningful distinction
54 Thomas v. Woolum, et al. No. 01-3227
might remain between procedural default and exhaustion, it
is far too late in the day to contend that the former doctrine
should not apply in the context of § 1997e(a), and that the
purely “technical” definition of exhaustion instead should
control. At the risk of redundancy, I again point out that this
Circuit already has held that certain types of procedural
defaults — e.g., a failure to pursue all available avenues of
administrative appeal — constitute lack of exhaustion under
§ 1997e(a). To the Supreme Court, at least, a late filing and
an outright failure to file at all are both analyzed in precisely
the same way — namely, as procedural defaults. See
O’Sullivan, 526 U.S. at 848, 119 S. Ct. at 1734; Coleman,
501 U.S. at 750-52, 111 S. Ct. at 2565-66. Thus, while one
might seek to distinguish between these two forms of default
— although, as discussed below, I am wholly unpersuaded by
the lead opinion’s attempts at such a distinction here — it is
untenable to suggest that procedural defaults generally do not
run afoul of § 1997e(a)’s exhaustion requirement. Rather, it
is now the law of this Circuit that some procedural defaults,
but not others, bar a prisoner suit under § 1983.
III.
In my view, the above-cited authorities point uniformly and
unmistakably toward the conclusion that timely filing is a
necessary component of exhaustion under § 1997e(a) in all
but the most unusual of circumstances. Even if we were
writing on a blank slate, however, I could not subscribe to the
policy judgments made in the lead opinion. Rather, I believe
that the lead opinion’s analysis of untimely prisoner
grievances substitutes superficial straw-men for careful
scrutiny, and rests upon a fundamental misunderstanding of
the significance of administrative filing deadlines.
Throughout its entire discussion of the timeliness issue, the
lead opinion acknowledges only a single argument in support
of the rule that inmates presumptively must comply with
administrative time limits. In particular, the lead opinion
proclaims that “the only ground for barring a federal § 1983

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No. 01-3227 Thomas v. Woolum, et al. 55
suit due to an untimely prison grievance is that we would
otherwise render prison grievance procedures irrelevant.”
(Lead Op. at 18.) The lead opinion confidently assures us that
this will not occur, however — inmates “will still have every
incentive to raise their grievances within the prison’s
timelines, because it is in the prison grievance process that
inmates will, for most practical purposes, receive their
swiftest and most effective remedies.” (Id. at 19.)
The various policy-based considerations that lurk beneath
the surface of this analysis thwart the considered judgment
and expressed will of Congress when it enacted § 1997e(a) in
its present form. First and foremost, Congress did not
legislate a system of “incentives” for prisoners to pursue their
administrative remedies — it commanded in the most explicit
of language that inmates must exhaust these remedies in all
cases. In this case, for one, this simply did not occur —
because of Thomas’s untimely filing, there was no
administrative consideration whatsoever of the merits of his
grievance, let alone exhaustion of the prison’s dispute
resolution process. Moreover, even before today’s ruling,
Thomas, for one, apparently failed to perceive any incentive
to timely file his grievance — he submitted it five months
past the 30-day limit, despite the admitted absence of any
impediment to meeting this deadline. I find little comfort,
then, in the lead opinion’s prediction that its rule will not
thoroughly undermine the congressional command of
exhaustion. It is bad enough, in my view, that some prisoners
undoubtedly will take advantage of our free pass to
circumvent this requirement.
Further, Congress made no secret of its principal concern
in making exhaustion mandatory. This Court and others have
amply recounted the legislative history leading up to the 1996
amendment of § 1997e(a). We recently observed:
“Congress was primarily concerned about the rising
number of lawsuits filed by prisoners and the perception
that most of these suits were frivolous.” Cruz v. Jordan,
56 Thomas v. Woolum, et al. No. 01-3227
80 F. Supp.2d 109, 113 (S.D.N.Y. 1999). See, e.g., 141
Cong. Rec. S14408-01, *S14414 (daily ed. Sept. 27,
1995) (statement of Senator Dole) (noting that prisoner
suits increased from 6,600 in 1975 to over 39,000 in
1994 and included claims for “insufficient storage locker
space, a defective haircut by a prison barber, the failure
of prison officials to invite a prisoner to a pizza party for
a departing prison employee, and . . . being served
chunky peanut butter instead of the creamy variety.”);
141 Cong. Rec. S7498-01, *S7526 (daily ed. May 25,
1995) (statement of Senator Kyl) (stating that in 1994,
prisoners brought more than one-fourth of all civil suits
filed in the United States District Courts); Bernard D.
Reams, Jr & William H. Manz, A Legislative History of
the Prison Litigation Reform Act of 1996, Pub. L. No.
104-134, 110 Stat. 1321, Doc. 33, at 61 (noting that the
short title given to the House measure containing the
PLRA was “Stopping Abusive Prisoner Lawsuits”).
Cox v. Mayer, ___ F.3d ___, 2003 WL 21340291, at *3 (6th
Cir. June 11, 2003); see also Wyatt v. Leonard, 193 F.3d 876,
878 (6th Cir. 1999) (“The 1996 Act is designed to deter
frivolous lawsuits . . . .”). Likewise, the Eleventh Circuit has
explained:
Congress enacted this mandatory exhaustion
requirement in section 1997e(a) as part of the PLRA’s
effort to curtail frivolous and abusive prisoner litigation
. . . . Congress did not enact the PLRA in a vacuum. It
held hearings and rendered findings, concluding that
prisoners file more frivolous lawsuits than any other
class of persons. Congress found that the number of
prisoner lawsuits has grown astronomically . . . .
Congress intended section 1997e(a) to curtail the ability
of prisoners to bring frivolous and malicious lawsuits by
forcing prisoners to exhaust all administrative remedies
before bringing suit in Federal court.

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No. 01-3227 Thomas v. Woolum, et al. 57
9In this case, by co ntrast, inmate Thomas already had transferred to
another institution by the time he filed his grievance.
Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998)
(internal quotations and citations omitted).
This recognition is notably lacking in the lead opinion’s
wishful thinking on incentives. The inmates least likely to
adhere to a prison’s time limits and other procedural rules are
precisely those prisoners who are pursuing frivolous or
abusive claims. Such prisoners, after all, would have nothing
to lose in flouting prison procedures, because they would
have no legitimate expectation of obtaining any remedy
through the prison’s grievance process. For such prisoners,
it matters only that they reach the finish line of this process
and secure their ticket to federal court, and today’s ruling
provides a handy shortcut for doing so. Thus, by presuming
that inmates will pursue their administrative remedies in good
faith, even if this Court does not insist that they do so, the
lead opinion disregards the finding of Congress that prisoners
all too often were not acting in good faith, and the judgment
of Congress that this problem could best be addressed through
a requirement of mandatory exhaustion.
Yet, as much as the lead opinion is prepared to assume that
prisoners act in good faith, it is quite unwilling to make the
same assumption about prison officials. Tellingly, in
assessing the potential costs of its ruling and identifying the
“one ground” that might militate against it, the lead opinion
utterly fails to even allow for the possibility that prison
officials might have good reasons for establishing deadlines
for the filing of grievances. Even a moment’s thought,
however, would reveal several such reasons, including: (i)
the inherent benefit of prompt investigation, while memories
are still fresh and all involved inmates and prison employees
remain at the facility;9 (ii) the desire to bring the entire
matter, including all available internal appeals, to a
58 Thomas v. Woolum, et al. No. 01-3227
10To the extent that the process is prolonged, of course, this leaves
the courts to deal with stale claims and an outdated record.
11Indeed, in its discussion of prisoner incentives, the lead opinion
cites the capacity of the prison grievance process to provide the “swiftest
and most effective remedies.” (Lead Op. at 19.) This capa city rests in no
small part upo n the prop er functioning and enforceme nt of deadlines.
12To be sure, the lead opinion pays lip service to the “mutually
beneficial” value of deadlines to both prisoners and prison officials.
(Lead Op. at 19 n.4.) It quickly reverts to form, however, speculating
without any discernable basis as to a purportedly “real concern” that
“prison administrators will impose shorter and shorter deadlines measured
in hours and days” in order to shut prisoners out of federal court. (Id.)
Since several other Circuits have adopted the procedural default doctrine
that so concerns the lead opinion, one would expect to see prison
administrators within those Circuits busily shortening their filing
deadlines and setting other sorts of procedural traps. To my knowledge,
this has not occurred.
conclusion within a reasonable time period;10 and (iii) the
greater likelihood that a prisoner might be satisfied by swift
action against any transgressors.11 Significantly, most of
these benefits accrue to prisoners and prison officials alike —
and this presumably is why prison officials routinely impose
deadlines upon themselves as well as inmates. On the
assumption that the 30-day time limit in this case was
motivated by these and other legitimate considerations of
efficient and effective institutional functioning — and, again,
the record contains no suggestion whatsoever to the contrary
— I would hold that this deadline is presumptively entitled to
our respect, with exceptions made only in those cases where
an inmate establishes his inability to comply with a prison’s
filing limit.12
All of these benefits are lost, however, when deadlines are
reduced to mere suggestions. To be sure, there may be some
cases in which both sides act in enlightened good faith, and
voluntarily agree to move promptly through the stages of the
administrative process. As we judges well know, however,

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No. 01-3227 Thomas v. Woolum, et al. 59
13In this case, for example, Thomas requested a grievance form on
May 1, 19 98, was given the form two days later, on M ay 3, and was able
to file his grievance the next day, on M ay 4, 1998 . This grievance was a
handwritten one-page docume nt, setting forth the factual basis for
Thom as’s complaints and the various remedies he was seeking.
14As noted in the lead opinion, this is two years in Ohio.
litigation is more often adversarial than collegial, and any
process which results in winners and losers is likely to invite
strategic behavior. Procedural rules, it seems to me, are
designed to avoid worst cases and limit strategic behavior,
while imposing no special hardship upon those who would
proceed in good faith even in their absence. As noted at the
outset, I see no indication that inmates generally have found
it difficult to meet prison filing deadlines, particularly in light
of the modest effort involved in filing a grievance.13
In contrast, the worst cases invited by the lead opinion’s
rule promise to be very bad indeed. A prisoner who wishes
to avoid the exhaustion requirement now has every incentive
to wait as long as possible before filing a grievance, in order
to enhance the likelihood that his submission will be rejected
as untimely. The outer bound for this delay presumably is the
statute of limitations for § 1983 suits14 — and not one day
earlier, because this limitation period is immediately tolled
upon the commencement of administrative proceedings. See
Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). It is
highly disingenuous, in my view, to insist that prison officials
still have a meaningful “opportunity” to address the merits of
such an intentionally delayed grievance. Rather, as the
Supreme Court has explained, even if it could be said that the
prisoner had technically “exhausted” his remedies, it could
not seriously be contended that “the State had been given a
fair opportunity to pass upon” the prisoner’s claims.
60 Thomas v. Woolum, et al. No. 01-3227
15Even more puzzling is the lead opinion’s assertion that a state may
“avoid federal court” by “waiving [its] procedural guidelines.” (Lead Op.
at 11.) Just how state officials might accomplish this is not explained. In
fact, a state that elects to address an untimely grievance m ight very well
still find itself in federal court, unless it resolves the grievance in a way
that totally satisfies the inmate. This is highly unlikely in the frivolous
and abusive cases that Congress specifically targeted in enacting the
PLRA.
Edwards, 529 U.S. at 453, 120 S. Ct. at 1592 (internal
quotations and citation omitted).15
Then, after this prolonged but essentially worthless
administrative process has finally reached its conclusion, the
courts would be left to address claims which have gone stale,
and which in most cases have never been addressed on the
merits, but which nonetheless have been fully “exhausted” as
the lead opinion construes that term. Alternatively, in cases
which do not meet even this lenient notion of “exhaustion,”
a court’s dismissal without prejudice under § 1997e(a) often
will be only the beginning of the process, rather than the end.
Armed with the court’s “blueprint” for the administrative
steps that should have been taken but were not, an inmate
may go back and fix his prior administrative filings,
unimpeded by the expiration of any administrative deadlines.
This process may be repeated as necessary, limited only by
the running of the underlying statute of limitations for § 1983
suits — which, again, is tolled during administrative
proceedings, and likely during judicial proceedings as well.
As noted at the outset, this eviscerates many of our prior
failure-to-exhaust decisions — an inmate who, for example,
did not pursue all available administrative appeals can now
pick up the process where he left off, undeterred by any
missed filing deadlines.
Or consider this very case, in which we hold that Thomas’s
grievance setting forth his claims against Defendant Shawn
Woolum did not serve to exhaust his claims against the
remaining Defendants. I see nothing to prevent Thomas from

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No. 01-3227 Thomas v. Woolum, et al. 61
16I express no view on the proper outcome of this inquiry in this
case.
going back and filing grievances against these other parties,
advancing the failure-to-protect theory that he did not assert
in his initial grievance. To be sure, these new grievances
would come almost six years after the incident in question —
but this no longer matters, so long as the underlying two-year
statute of limitations has not run in light of the pendency of
various administrative and judicial proceedings.16 Prison
officials still would have the “opportunity” to address these
new grievances, and this is all that today’s ruling requires
from an inmate in order to exhaust his remedies. Although
this strikes me as the height of absurdity, my colleagues on
the panel unfortunately do not share in this view — nor,
indeed, do they even acknowledge the concern.
IV.
Against the foregoing weight of authority and reason in
favor of the judiciary’s presumptive respect for administrative
filing deadlines, the lead opinion offers up the Supreme
Court’s Oscar Mayer decision as singlehandedly compelling
the opposite result. Indeed, it appears that the lead opinion
must cast its lot with Oscar Mayer, because no other case of
which I am aware supports its view of exhaustion as mere
termination by any means. Yet, even the most cursory review
reveals that Oscar Mayer has nothing whatsoever to say about
administrative exhaustion or the proper construction of
§ 1997e(a). Thus, the lead opinion is left adrift without an
anchor.
In Oscar Mayer, the Supreme Court addressed a lengthy,
detailed, and highly idiosyncratic provision of the Age
Discrimination in Employment Act (“ADEA”), requiring that
a person must “commence[]” state proceedings at least sixty
days before bringing a federal age discrimination suit:
62 Thomas v. Woolum, et al. No. 01-3227
17As noted in the lead opinion, the Court reached essentially the
same conc lusion in EE OC v. Comm ercial Office P roducts Co., 486 U.S.
107, 108 S. Ct. 1666 (1988), a case involving a nearly identically worded
provision in Title VII, 42 U.S.C. § 2000e-5(c). Because this ruling and
Oscar Mayer rest upon virtually the same statutory language and
reasoning, I have confined my discussion only to the latter decision.
In the case of an alleged unlawful practice occurring in
a State which has a law prohibiting discrimination in
employment because of age and establishing or
authorizing a State authority to grant or seek relief from
such discriminatory practice, no suit may be brought
under section 626 of this title before the expiration of
sixty days after proceedings have been commenced under
the State law, unless such proceedings have been earlier
terminated . . . . If any requirement for the
commencement of such proceedings is imposed by a
State authority other than a requirement of the filing of a
written and signed statement of the facts upon which the
proceeding is based, the proceeding shall be deemed to
have been commenced for the purposes of this subsection
at the time such statement is sent by registered mail to
the appropriate State authority.
29 U.S.C. § 633(b). Upon reviewing the language of this
statute, the Supreme Court held, among other things, that a
grievant is not required to commence state proceedings within
the time limits specified by state law in order to preserve his
federal right of action. See Oscar Mayer, 441 U.S. at 753, 99
S. Ct. at 2070.17
Although the lead opinion recites various policy
considerations noted by the Court in reaching this decision,
the ruling in Oscar Mayer rests first and foremost on the
language of the statute itself. Initially, the Court observed
that the use of the word “commenced” does not necessarily
demand compliance with state filing deadlines, “since, by
way of analogy, under the Federal Rules of Civil Procedure
even a time-barred action may be ‘commenced’ by the filing

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No. 01-3227 Thomas v. Woolum, et al. 63
18Notably, in giving effect to this plain statutory language, the
Supreme Court observed that this was the “prevailing interpretation”
adopted by the courts, as well as the interpretation adopted by the EEOC.
Oscar Mayer, 441 U.S. at 760-61, 99 S. Ct. at 2074. This latter
construction, of course, was “entitled to great deference” by the courts.
441 U.S. at 761, 99 S. Ct. at 2074 (internal quotations and citation
omitted). Here, by contrast, no court or other authority whatsoever has
previously endorsed the lead opinion’s interpretation of § 1997e(a).
of a complaint.” 441 U.S. at 759, 99 S. Ct. at 2073 (citations
omitted). The Court then found that any ambiguity on this
point was overcome by the statute’s express definition of
what constitutes “commencement” — namely, the “filing of
a written and signed statement of the facts upon which the
proceeding is based,” and nothing else. 441 U.S. at 760, 99
S. Ct. at 2073 (quoting 29 U.S.C. § 633(b)). Thus, the Court
explained, “even if a State were to make timeliness a
precondition for commencement . . . , a state proceeding will
be deemed commenced for purposes of [the federal statute] as
soon as the complaint is filed,” and irrespective of any state
filing limits. 441 U.S. at 760, 99 S. Ct. at 2073.
The lead opinion does not address, or even acknowledge,
this principal basis for the decision in Oscar Mayer. The
statute in that case defined “commencement,” and decreed
that the states could not impose any requirements for
“commencement” beyond the bare filing of a statement of
facts.18 Section 1997e(a), in contrast, supplies no special
definition of exhaustion. It seems reasonable to assume, then,
that Congress meant for prisoners to “exhaust” their remedies
under § 1997e(a) in precisely the same way that they must
“exhaust” their remedies under 28 U.S.C. § 2254(b)(1)(A).
Under the Supreme Court’s then-recent decision in Coleman,
such exhaustion entailed compliance with a state’s procedural
rules, including filing deadlines. More generally, through its
enactment of the PLRA, Congress could hardly have meant
to relax the standards for a prisoner to exhaust his
administrative remedies, or to invite creative schemes for
avoiding this mandatory requirement.
64 Thomas v. Woolum, et al. No. 01-3227
Other portions of Oscar Mayer also demonstrate its
inapplicability here. The Court emphasized, for instance, that
the ADEA provision at issue “does not stipulate an
exhaustion requirement,” but “is intended only to give state
agencies a limited opportunity to settle the grievances of
ADEA claimants in a voluntary and localized manner so that
the grievants thereafter have no need or desire for
independent federal relief.” 441 U.S. at 761, 99 S. Ct. at 2074
(emphasis added). Congress set the bar a good deal higher in
§ 1997e(a), of course — this provision does mandate
exhaustion, and prison officials have been granted far more
than a “limited opportunity” to address prisoner grievances.
As noted earlier, Congress meant for this exhaustion
requirement to staunch the flow of frivolous and abusive
prisoner litigation, a concern which in no way animated the
enactment of the provision at issue in Oscar Mayer.
More generally, Oscar Mayer’s express disavowal of any
consideration of exhaustion principles presumably explains
why, so far as I can tell, that decision has never been cited
outside of its peculiar ADEA/Title VII context as any sort of
authority on the meaning of administrative exhaustion.
Indeed, Oscar Mayer does not state a rule of general
applicability to administrative exhaustion even in the narrow
context of employment discrimination law. In particular, the
courts do insist that grievants comply with administrative
time limits in order to pursue their employment
discrimination claims in federal court. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,
1132 (1982). In a decision affirming the dismissal of a case
in which a pro se plaintiff missed a Title VII filing deadline,
the Supreme Court emphasized that “[p]rocedural
requirements established by Congress for gaining access to
the federal courts are not to be disregarded by courts out of a
vague sympathy for particular litigants.” Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct.
1723, 1726 (1984). Although doctrines such as equitable
tolling might excuse an untimely filing in a particular case,
we have cautioned that such relief is “sparingly bestow[ed],”

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No. 01-3227 Thomas v. Woolum, et al. 65
19In light of these precedents, I am at a loss to see how the lead
opinion can claim that no “procedural de fault hurdles” stand in the way
of a Title VII or ADE A litigant. (Lead Op. at 11 n.2.) Whether or not the
courts employ the terminology of “procedural default” in such cases, the
brute fact remains that individuals who miss administrative deadlines
generally forfeit their right to call upon the “federal courts as a vindicator
of federal rights.” (Id.)
and that “[a]bsent compelling equitable considerations, a
court should not extend limitations by even a single day.”
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 560-61 (6th Cir. 2000).19
I fail to see why we should favor the civil rights claims of
prisoners over those of law-abiding citizens. In fact, the lead
opinion’s rule creates precisely the dilemma the Supreme
Court sought to avoid in Coleman — in this Circuit, we
respect federal procedural rules in employment discrimination
cases, but not state procedural rules in prisoner § 1983 suits.
Neither Oscar Mayer nor any other authority supports such a
result.
V.
In the end, the lead opinion’s ruling on the issue of
timeliness rests upon a smattering of policy-based
observations in Oscar Mayer, wholly unmoored from the
specific statutory context in which the Supreme Court ruled
in that case. This is a far cry from the lead opinion’s initial
promise to resolve this question “in light of Congress’s
purpose in passing the PLRA,” (Lead Op. at 3) — which
purpose the lead opinion then proceeds to discount — and in
light of the Supreme Court’s exhaustion precedents — which,
as noted, recognize timeliness as an essential element of
exhaustion. It is a strange form of “[j]udicial restraint,” (Lead
Op. at 19-20 n.4), in my judgment, which reaches out to
decide an unnecessary issue in a way that invites prisoners to
circumvent the congressional mandate of exhaustion.
66 Thomas v. Woolum, et al. No. 01-3227
As explained above, I believe that the relevant policy
considerations militate strongly against the rule adopted by
the lead opinion in this case. More importantly, the lead
opinion’s willingness to dispense with administrative filing
deadlines runs counter to the strict exhaustion requirement of
§ 1997e(a), the intent of Congress in imposing this mandatory
prerequisite to prisoner suits under § 1983, and the decisions
of this and other Courts of Appeals uniformly holding that
inmates must comply with a prison’s procedural rules as they
exhaust their administrative remedies. Accordingly, while I
concur in the Court’s judgment affirming the District Court,
I dissent from the lead opinion’s ruling that untimely
grievances satisfy the administrative exhaustion requirement
of § 1997e(a).

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