Under federal law, before prisoners can sue in federal court about prison conditions, they must first go through the prison's internal grievance process, a requirement called "exhaustion."
During oral arguments in Perttu v. Richards, a case involving a Michigan prisoner who sued a prison official for alleged sexual abuse and retaliation, at least four of the justices seemed poised to affirm a Sixth Circuit ruling holding that prisoners are entitled to a jury trial to determine if they have exhausted administrative remedies in those circumstances.
Ann Sherman of the Michigan Department of Attorney General, who represents prison official Thomas Perttu, told the court that allowing judges to determine exhaustion issues under the Prison Litigation Reform Act, or PLRA, promotes judicial efficiency and helps curb frivolous prisoner lawsuits.
But Justice Neil Gorsuch wasn't sold on the idea. "Isn't the default rule, in this country, to have a right to trial by jury?" he asked. "Why would we interpret the PLRA, which is silent about juries, to have a rule that you never get a jury?"
Kyle Richards and two co-plaintiffs, Kenneth Pruitt and Robert Kissee, filed a pro se civil rights lawsuit in April 2020 accusing Perttu, an official at Baraga Correctional Facility in Michigan, of sexually abusing at least a dozen inmates.
After attempting to report the alleged sexual assaults through the prison's administrative process, however, the prisoners said Perttu destroyed their grievance documents, preventing them from having their claims heard. They also said they faced retaliation from him.
"We file this action at risk to our lives and safety," the handwritten complaint says. "This is our last resort in an attempt to stop a vicious sexual predator from continuing his preying on vulnerable helpless inmates."
In December 2021, a federal magistrate judge determined that Richards had not exhausted the administrative remedies available to him. A federal judge later adopted that conclusion, dismissing his suit without prejudice.
But in March 2024, the Sixth Circuit reversed that dismissal, holding that because the factual disputes over exhaustion are intertwined with the merits of Richards' claims, a jury trial is required.
During Tuesday's arguments, Justice Gorsuch asked Sherman for any legal authority — statute, case law or historical record — that supports Perttu's position that the right to a jury trial doesn't apply to a lawsuit like the one filed by Richards. The exchange left Sherman momentarily struggling to find a response.
She then said that exhaustion in the context of the PLRA has a "unique nature" that makes it different from other legal issues where the Seventh Amendment applies.
Justice Gorsuch's questioning resonated with the liberal-leaning justices, in particular Justice Elena Kagan, who questioned whether Perttu's argument that exhaustion must be determined by a judge before a lawsuit can proceed to a jury would mean bypassing the power of the Seventh Amendment.
"If you have to convince the judge before you get to the jury, the jury right doesn't mean all that much," she said.
But Justice Samuel Alito appeared to break from his colleagues on that point.
"On this issue of the default rule, I thought the Seventh Amendment was limited to suits at common law," he said. "I don't know where this idea that there's a default rule in favor of jury trial with respect to every claim for damages, every new claim at law that Congress may create. Am I wrong?"
"I agree that there is no right to a jury trial here on exhaustion, and the reason is it didn't exist in 1791," Sherman replied.
Whether an historical analogue exists — a topic the court's conservative-leaning justices consistently inquire on in their hearings — also received some attention on Tuesday.
"Are you suggesting that the exhaustion argument — your exhaustion argument has historical analogs?" Justice Clarence Thomas asked Lori Alvino McGill of the University of Virginia School of Law, who argued on behalf of Richards.
Minutes later, Justice Amy Coney Barrett asked how the court should understand the issue of exhaustion "in the face of historical uncertainty." Justice Brett Kavanaugh asked a similar question.
"How do we weigh what Congress has to say about threshold considerations? Because it is clear that, in the PLRA, exhaustion was designed to try to weed out suits," Justice Barrett said. "I'm just trying to figure out how to think about it."
McGill replied that the Supreme Court's 1999 ruling in City of Monterey v. Del Monte Dunes at Monterey
held that lawsuits filed under Section 1983 of Title 42 of the U.S. Code — the same civil rights statute Richards invoked — are covered by the Seventh Amendment's right to a jury trial.Justice Sonia Sotomayor, meanwhile, questioned Perttu's argument that preserving an open path to jury trials on issues involving intertwinement — as is the rule in the First and Second circuits — would cause courts to be flooded with scores of lawsuits, many potentially frivolous.
Justice Sotomayor said her clerks searched 12 years' worth of court opinions in the Second Circuit, which has a high level of pro se prisoner litigation, only to find five instances in which exhaustion issues intersected with the merits of a case.
"I don't see where the floodgates have come up," she said.
Sherman replied that last year alone, Michigan faced 574 prisoner lawsuits, and that in four of those cases there were evidentiary hearings focusing on exhaustion. But when pressed by Justice Sotomayor to say whether those cases involved intertwinement with underlying allegations made by the prisoners, Sherman said she lacked "that granular data."
"That's not granular, that's the whole case," Justice Sotomayor said.
Richards is represented by Lori Alvino McGill of the University of Virginia School of Law.
Perttu is represented by Ann Maurine Sherman of the Michigan Department of Attorney General.
The case is Perttu v. Richards, case number 23-1324, in the Supreme Court of the United States.
--Editing by Adam LoBelia.