D.S.C. Notes Split Re Exhaustion Requirement of PLRA in Section 1983 Cases

Per Nicholas v. Ozmint, Slip Copy, 2006 WL 2711852, (D.S.C. Sep. 20, 2006):

The Magistrate Judge recommended granting the defendants' motion for summary judgment on the unexhausted claims as well as the grooming claim under the rule of complete exhaustion. Under that legal rule, where some claims have been exhausted and others have not, the exhaustion requirement of the PLRA requires dismissal of all claims, both exhausted and unexhausted. Therefore, assuming without deciding that the grooming issue has been exhausted, under this doctrine the entire complaint would need to be dismissed where the plaintiff has not exhausted his administrative remedies as to all claims.

It does not appear that the Fourth Circuit has taken a position as to the doctrine of complete exhaustion in Section 1983 cases. See Johnson v. True, 125 F.Supp.2d 186, 188 (W.D.Va.2000) (Motion to dismiss on basis of total exhaustion rule denied: "[T]he defendants do not provide a viable reason why the habeas total exhaustion analysis of Rose v. Lundy should be applied to a ยง 1983 civil rights action.") The undersigned believes after a review of the cases from other circuits and the United States Supreme Court, that the partial exhaustion rule should be applied to section 1983 cases such as the case at bar and not the doctrine of complete exhaustion. Therefore, all unexhausted claims should be dismissed, but any claims which are exhausted should remain viable.

The circuit courts of appeal are split regarding this doctrine. The Tenth Circuit has adopted the rule of complete exhaustion. See Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir.2004). The Second Circuit rejected complete exhaustion in Ortiz v.. McBride, 380 F.3d 649 (2nd Cir.2004). Other circuits which have addressed the issue have adopted the partial exhaustion rule. In Kozohorsky v. Harmon, 332 F.3d 1141 (8th Cir.2003), the Eighth Circuit allowed the plaintiff to cure his complaint by deleting unexhausted claims. The Ninth Circuit has held that when a plaintiff files a "mixed" complaint, where some claims are exhausted and some are not, but they are closely related factually, the plaintiff should be allowed to amend his complaint to allege only fully exhausted claims. Where the unexhausted and exhausted claims are not factually intertwined, the court should dismiss the unexhausted claims and proceed with the exhausted claims. Lira v. Herrera, 427 F.3d 1164 (9th Cir.2005), Petition for Certiorari filed, 74 U.S.L.W. 3425 (Jan. 6, 2006).

Therefore, the Court finds that the unexhausted claims should be dismissed and that the case shall proceed only on the grooming claim asserted in his original complaint, now a part of the Amended Complaint by Order of Judge Hendricks.


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