Someone Must Carry the Burden: Interpreting the Prison Litigation Reform Act’s Exhaustion Requirement

Legislators designed the Prison Litigation Reform Act (PLRA) to decrease the quantity and increase the quality of lawsuits brought by incarcerated individuals. The PLRA requires prisoners to exhaust all available administrative remedies before filing a lawsuit challenging prison conditions in federal court. Federal appellate courts remain split on which party carries the burden of proof when evaluating whether an incarcerated litigant exhausted their available administrative remedies. In 2022, in Lamb v. Kendrick, the U.S. Court of Appeals for the Sixth Circuit held the burden of proof falls on prison officials to show that the prisoner’s ability to exhaust was not hindered. In doing so, the Sixth Circuit agreed with the Seventh Circuit that when prison officials assert the affirmative defense of failure to exhaust, they carry the burden of proof. The Second, Third, Ninth, Tenth, and Eleventh Circuits apply a different burden-shifting approach. Under this approach, prison officials only bear the initial burden of establishing that a relevant grievance process exists and then the burden shifts to the prisoner to prove factors that made the official procedure unavailable. This Note argues that the Sixth and Seventh Circuits’ interpretation of the PLRA’s exhaustion requirement is correct as it recognizes the relative positions of the parties and protects prisoners’ rights.