Posts Tagged ‘section-1983’
Exhaustion Under the Prison Litigation Reform Act and the Right to a Jury: Perttu v. Richards
Section 803 of the Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, imposes an exhaustion of prison administrative remedies requirement on prisoners who wish to sue under § 1983. (See § 9:65 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw)). At the same time, there is a Seventh Amendment right to a jury trial in certain § 1983 cases. (See §§ 1:52-1:55 of my Treatise on the right to a jury trial).
What is the interplay, if any, between the PLRA’s exhaustion requirement and the Seventh Amendment right to a jury trial? In some situations, the exhaustion issue is “intertwined” with the merits of the prisoner’s lawsuit because both depend on whether the plaintiff’s allegations are in fact true.
In Perttu v. Richards, 146 S. Ct. – (2025), aff’g, Richards v. Perttu, 96 F.4th 911, 921 (6th Cir. 2024), the Supreme Court resolved a split in the circuits on this question by holding that in such cases there is a right under the PLRA to a jury trial.
In Perttu, the plaintiff inmate challenged the district court’s decision, after an evidentiary hearing, that found he had failed to exhaust administrative remedies under the PLRA in connection with his First Amendment retaliation claim. He maintained that the defendant prison official had affirmatively prevented him from filing grievances alleging the defendant’s sexual abuse by ripping them up or otherwise destroying them.
In this case of first impression in its circuit, the Sixth Circuit reversed and held that the Seventh Amendment required that a jury decide disputed questions of fact relating to PLRA exhaustion “when the exhaustion issue is intertwined with the merits of the underlying dispute.” In this regard, the Sixth Circuit observed that it disagreed with the Seventh Circuit’s contrary decision as set out in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008): “[T]he rationale [of Pavey] that a jury may reexamine the judge’s factual findings [relating to the merits] rings hollow if the prisoner’s case is dismissed for failure to exhaust his or her administrative remedies. In such an instance, a jury would never be assembled to resolve the factual disputes. That is Pavey’s fatal flaw.”
Agreeing with the Sixth Circuit as to the result but not reaching the constitutional issue on the merits, the Supreme Court affirmed in an opinion by Chief Justice Roberts. It held “as a matter of statutory interpretation that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” (emphasis added). Here, the factual disputes over exhaustion overlapped with the plaintiff’s First Amendment retaliation claim.
Justice Barrett dissented, joined by Justices Thomas, Alito and Kavanaugh. Adopting an historical approach and indicating that the Seventh Amendment would not be violated if district courts decided disputed questions of fact implicating exhaustion even when intertwined with the merits, Justice Barrett asserted: “The Court reads the PLRA to say what it does not. It does so for reasons that the parties did not brief; that have no basis in our doctrine; and that are contrary to well-established principles of statutory interpretation. In so doing … the Court creates a regime … [that] generates more litigation of its own.” 146 S. Ct. at –.
The Court in Perttu avoided what many of the the Justices considered to be a difficult Seventh Amendment issue by deciding the case on PLRA statutory interpretation grounds. In so doing, it suggested that if Congress was not happy with the possible adverse effects of its decision on the implementation of the PLRA’s exhaustion requirement, Congress could amend the PLRA.
Supreme Court Sets Out New “Prevailing Party” Rule in Lackey v. Holcomb, Attorney’s Fees Case Involving Preliminary Injunctions and Mootness
The Supreme Court, on February 25, 2025, reversed the Fourth Circuit in Lackey v. Holcomb, 145 S. Ct. – (2025)(No. 23-621), an attorney’s fees case dealing with preliminary injunctions and mootness, and answered the following Questions Presented in the affirmative:
“(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.”
The Lower Court Decisions in Lackey
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Subsequently, however, with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its circuit’s earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
The Supreme Court’s Decision
The Supreme Court in turn reversed in an opinion by Chief Justice Roberts. He began with the text and the Black’s Law Dictionary definition of prevailing party, and determined that that status depended on whether, at the end of the lawsuit, the party making a claim against another has successfully maintained it. He then reasoned that preliminary injunctions “do not conclusively resolve legal disputes.” Rather, they had a transient nature, especially where a court reached a different conclusion on full consideration of the merits, as in Sole v. Wyner, 551 U.S. 74 (2007), discussed below. Further, it was not sufficient for prevailing party status that the grant of a preliminary injunction has “something” to do with the merits: “The plaintiff must succeed on the merits.” This conclusion, according to Chief Justice Roberts, was consistent with its precedents that rejected the catalyst theory and insisted on a final victory on a material (“even if not predominant”) claim
Finally, the Court articulated its standard going forward: the change in legal relationship must be both judicially sanctioned and enduring in order for the plaintiff to be a prevailing party entitled to attorney’s fees. Specifically, “we establish that the enduring nature of that change [in the legal relationship between the parties] must itself by judicially sanctioned…. [B]oth the change in relationship and its permanence must result from a judicial order.” This standard, according to the Court, promoted judicial economy and did not, in most cases, create perverse incentives favoring defendants who could strategically moot litigation rather than proceed to the merits where they might lose and be required to pay attorney’s fees.
The Dissent
Justice Jackson, joined by Justice Sotomayor, dissented. Among other things, they pointed out that the plaintiffs had received meaningful relief through a preliminary injunction that was never reversed on the merits on appeal. As shown by the text and legislative history of §1988(b), Congress intended that in such cases, the plaintiffs should be entitled to prevailing party status and reasonable attorney’s fees. They argued that the majority “overreads our precedents to support its blanket rule that preliminary injunctions can never support fee awards.” Sole should be read narrowly as applying to preliminary injunctive relief that is superseded by a final judgment reversing such relief. Finally, they maintained that the Court’s approach would indeed create perverse incentives.
Comments
Lackey addressed the unresolved question in Sole. Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. As indicated, this was the issue that Lackey decided in favor of defendants.
I argued in an earlier post on Lackey that the Court should affirm the Fourth Circuit en banc under the unique facts of the case : there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Moreover, as the dissenters point out, the Court’s bright-line approach may create perverse incentives: plaintiffs who seek preliminary relief may either be encouraged to include an otherwise unnecessary damages claim in order to preclude mootness (thereby complicating a simpler lawsuit) or to seek permanent injunctive relief even after they’ve received what they wanted through a preliminary injunction.
Nevertheless, the Court decided to set out a bright-line rule requiring a judicial imprimatur for both the merits and the enduring nature of the change in the legal relationship between the parties. In so doing, “it overrules the decisions of every Court of Appeals to consider the issue” as the dissenters observe.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw).
Nahmod Law 