U.C. Davis Publishes Student Note on Split re PLRA Exhaustion Pleading Obligation

The U.C. Davis Law Review has just published a student note discussing the split among the circuits regarding which party has the burden of pleading exhaustion under the Prison Litigation Reform Act ("PLRA"). Here's an excerpt from the introduction:

The PLRA, which governs all prisoner-initiated suits brought under federal laws, creates various obstacles for prisoners who want to bring suit in federal court. The most important barrier to federal court is the PLRA's exhaustion requirement, section 1997e(a). Section 1997e(a) requires prisoners to exhaust their administrative remedies before they can bring valid suits alleging violations of prison conditions. However, the plain language of the PLRA does not indicate which party should plead administrative remedial exhaustion. The circuits are split about whether the plaintiff or defendant must bear the burden of pleading remedial exhaustion. The majority circuits hold that the defendant must plead failure to exhaust as an affirmative defense. On the other hand, the minority circuits hold that the burden of pleading administrative exhaustion falls on the plaintiff. This Comment argues that section 1997e(a) creates an affirmative defense requiring the defendant to plead failure to exhaust.

Jamie Ayers, Comment, To Plead or not to Plead: Does the Prison Litigation Reform Act's Exhaustion Requirement Establish a Pleading Requirement or an Affirmative Defense?, 39 U.C. Davis L. Rev. 247 (2005) [39 UCDLR 2].