S.D. Ohio Notes Split within Sixth Circuit Re Exhaustion Requirement for Prisoners' Suits

Per Freeman v. Wilkerson, Slip Copy, 2006 WL 3833511 (S.D. Ohio Dec. 29, 2006):

The threshold issue in this case is whether Magistrate Judge Abel correctly relied on Jones Bey v. Johnson, 407 F.3d 801, 807 (6th Cir.2005) in concluding that because Plaintiff had not exhausted his administrative remedies with respect to all claims against all defendants named in the complaint, the complaint must be dismissed in its entirety. Within the Sixth Circuit, there is a split of authority on this issue. In Burton v.. Jones, 321 F.3d 569 (6th Cir.2002), the court held, "a prisoner's lawsuit, which alleges multiple claims against multiple defendants, is not vulnerable to dismissal under § 1997e(a) simply because the prisoner has failed to exhaust a particular claim as to a specific defendant." Id. at 574 n. 2 (citing Hartsfield v. Vidor, 199 F.3d 305, 307-09 (6th Cir.1999)). On the other hand, in Jones Bey and in Rinard v. Luoma, 440 F.3d 361, 362 (6th Cir.2006), the court held that when a prisoner has not exhausted his administrative remedies for all claims and all defendants, the district court must dismiss the entire complaint without prejudice. Recently, in Spencer v. Bouchard, 449 F.3d 721, 726 (6th Cir.2006), the Sixth Circuit rejected Jones Bey's total exhaustion rule and declared that "the partial-exhaustion rule [of Hartsfield and Burton ] is the law of this circuit." Hartsfield and Burton were decided first, and the later decisions in Jones Bey and Rinard do not have the effect of overriding them. See id.

The United States Supreme Court has granted certiorari in Williams v. Overton, 126 S.Ct. 1463 (2006) and Jones v. Bock, 126 S.Ct. 1462 (2006), and is expected to resolve this issue later this term. In the meantime, this Court concludes that Magistrate Judge Abel's reliance on Jones Bey's total exhaustion rule is misplaced. Plaintiff's failure to exhaust administrative remedies with respect to all claims against all defendants does not warrant dismissal of his complaint in its entirety.