When is Administrative Exhaustion Unavailable to a Prisoner?

Most folks who are interested in prison litigation know that it is necessary under the Prison Litigation Reform Act to fully exhaust the administrative remedies offered by the prison before heading to court. But what if exhaustion can’t occur?

The Maze: Administrative Exhaustion is a Complex Problem in Prison Litigation.

The Supreme Court has identified three scenarios in which the exhaustion requirement will not apply: (1) if the "administrative procedure . . . operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates;" (2) if the "administrative scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so that no ordinary prisoner can make sense of what it demands;" or if (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. 632, 643-45 (2016).

To use the “machination, misrepresentation, or intimidation” prong of this standard, the plaintiff must show both that "(1) the threat of [retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust." McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015).

Assuming the prison can make a prima facie showing that an administrative remedy was available, the burden shifts to the plaintiff to show why an exception applies, and claims about these exceptions must be supported with evidence, not just with conclusory allegations. see Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016). For example, in Kwesi Muhammad v. CDCR, No. 23-cv-02242-AMO (PR), 2026 U.S. Dist. LEXIS 36914 (N.D.Cal. Feb. 23, 2026), the plaintiff submitted his outgoing legal mail log showing that he attempted to send second-level grievances to the Office of Appeals, demonstrating that although those grievances were seemingly never received, that was the fault of the prison mail system. 2026 U.S. Dist. LEXIS 36914 at * 13-14.

Prisoners' Rights to Exercise and Recreation, and the role of Administrative ExhaUstion in Showing Subjective Knowledge

It has been clearly established law since 2020, a Ninth Circuit panel concluded this week, that prisoners have an Eighth Amendment right to “outdoor exercise or otherwise meaningful opportunities for recreation.” Evidence that a Nevada prisoner was confined to his cell for 23 or 23 and a half hours a day for more than a year raised a triable issue of fact as to whether that right was violated, the appellate court concluded in Cardenas-Ornelas v. Johnson, 24-6755. The fact that the appellant could do in-cell exercise or walk to work was not an adequate substitute for conditions that permitted actual recreation, and the fact that the warden argued that this confinement was a response to COVID-19 did not defeat that conclusion.

Photo by Hédi Benyounes on Unsplash.

The length of the deprivation is important here. In Witkin v. Pittsley, 2:22-cv-1211 WBS CSK P (E.D.Cal. Oct. 1, 2025), a district court concluded that a 60-day suspension of outdoor exercise for an inmate was covered by qualified immunity. 2025 U.S. Dist. LEXIS 194849 at * 9-10.

The damages in this type of case will typically be based on the psychological impact to the prisoner, which is a potentially tricky issue because the Prison Litigation Reform Act normally requires a showing of physical injury in order for a case brought based on emotional damages to be brought. In cases where there has been extensive (i.e., more than six weeks) deprivation of exercise, however, there is precedent (in the Seventh and Ninth Circuits, at least) for the idea that the deprivation in itself is sufficient. Lopez v. Smith, 203 F.3d 1122, 133, fn. 15 (9th Cir. 2000); Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001).  

Also interesting is the way Cardenas-Ornelas showed the subjective awareness of the defendant warden of the fact that this confinement was occurring and was excessive: namely because the warden personally denied his first-level grievance, and thus was put on notice of the situation. At least in this situation, then, the bureaucratic runaround of administrative exhaustion actually served some purpose in identifying who was responsible for what was happening.

Related Post: Eighth Amendment Overview

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