Someone held in a Minnesota county jail or a state correctional facility is beaten, ignored when sick, or retaliated against, and wants to sue. Before any court decides whether what happened violated the Constitution, four provisions of the Prison Litigation Reform Act of 1995 have to be cleared. Each one is capable of ending the case on its own, and none of them has anything to do with whether the underlying treatment was lawful.
That is not an accident of drafting. The Supreme Court has described the three-strikes provision as one Congress enacted “[t]o help staunch a ‘flood of nonmeritorious’ prisoner litigation.” Lomax v. Ortiz-Marquez, 590 U.S. 595, 597 (2020) (quoting Jones v. Bock, 549 U.S. 199, 203 (2007)). The statute is a filter, and it filters before the merits.
First question: is the plaintiff a “prisoner”?
The PLRA defines the term, and the definition is broad in one direction and narrow in another.
Title 42 U.S.C. § 1997e(h) provides: “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” The same definition appears verbatim at 28 U.S.C. § 1915(h) and at 28 U.S.C. § 1915A(c).
“[A]ccused of” does the heavy lifting. A pretrial detainee who has been convicted of nothing, sitting in a Minnesota county jail waiting for a first appearance, is a “prisoner” for PLRA purposes.
The narrow direction matters just as much. The Eighth Circuit has held that “the exhaustion requirement does not apply to plaintiffs who file § 1983 claims after being released from incarceration.” Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (citing Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998)). Custody status is measured at filing. A person who is out — and whose limitations period has not run — may not be facing this gate at all. That single fact can change the shape of a case, and it is worth settling before anything is drafted. On how long that window stays open, see the § 1983 limitations period in Minnesota.
Exhaustion: § 1997e(a)
The text is short: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
Three things follow from it.
It is mandatory, and courts cannot make exceptions. In Ross v. Blake, 578 U.S. 632 (2016), the Fourth Circuit had recognized a “special circumstances” excuse for a prisoner who reasonably but mistakenly believed he had exhausted. The Supreme Court rejected it. The statutory language “is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Id. at 638–39. “And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.” Id. at 639. The Court’s conclusion was unequivocal: “The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.’” Id. at 648.
It requires proper exhaustion. Filing something is not enough. In Woodford v. Ngo, 548 U.S. 81 (2006), the Court held “that the PLRA exhaustion requirement requires proper exhaustion,” id. at 93, and explained what that means: “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90–91. A grievance filed late, filed at the wrong level, or abandoned before the final appeal can fail the requirement even though it was filed.
It is the defendant’s defense to raise. “We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). The Eighth Circuit had already treated it that way. See Nerness, 401 F.3d at 876 (“This circuit considers the PLRA’s exhaustion requirement to be an affirmative defense that the defendant has the burden to plead and to prove.”). A complaint does not have to allege exhaustion — but a defendant who has the defense will use it.
What “available” means
Everything the PLRA does to exhaustion runs through one adjective. Ross is where the Supreme Court gave it content.
Drawing on Booth v. Churner, 532 U.S. 731 (2001), the Court held that “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 578 U.S. at 642 (quoting Booth, 532 U.S. at 738). It then identified “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. at 643.
- The procedure “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id.
- The scheme “might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. at 643–44.
- “[T]he same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644.
Two cautions belong with that list. The Court set the opacity bar high: “When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion.” Id. at 644. And the Court expected these situations to be the exception — “Given prisons’ own incentives to maintain functioning remedial processes, we expect that these circumstances will not often arise.” Id. at 643.
The Minnesota layer. Every licensed Minnesota jail is required to have a grievance system. Minn. R. 2911.2900 provides in full: “A written grievance procedure with at least one level of appeal shall be made available to all inmates.” The rule is issued under the Commissioner of Corrections’ authority in Minn. Stat. § 241.021. Two consequences follow. Because the rule requires at least one level of appeal, stopping after the initial grievance may not be proper exhaustion under Woodford. And because the rule requires the procedure to be “made available to all inmates,” what a facility actually handed a detainee at intake — and whether the forms, deadlines, and appeal route were knowable — is exactly the factual territory Ross opened up. The facility’s own written grievance policy, the log of grievances filed and how they were answered, and the intake paperwork are the documents that decide this issue.
The physical-injury rule: § 1997e(e)
“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).”
The Eighth Circuit reads this broadly. In Royal v. Kautzky, 375 F.3d 720 (8th Cir. 2004), a prisoner won a First Amendment retaliation claim after being placed in segregation for filing grievances, but had no physical injury. The court joined the circuits applying the provision across the board: “we read section 1997e(e) as limiting recovery for mental or emotional injury in all federal actions brought by prisoners.” Id. at 723. A dissent argued the provision should not reach First Amendment claims. Id. at 726 (Heaney, J., dissenting). The majority’s view is the law in this circuit.
What survives is as important as what does not. “Congress did not intend section 1997e(e) to bar recovery for all forms of relief,” and the court held the plaintiff “was free to seek nominal damages, punitive damages, injunctive relief and a declaratory judgment.” Id. at 723. A claim with no physical injury is not necessarily worthless — but compensatory damages for the mental and emotional harm are gone.
Note also what the subsection says on its face: it governs a “Federal civil action.” Section 1997e(a)’s exhaustion command is not written with that limitation — it says “No action shall be brought.” The difference is on the page; where it leads in a particular case is a question that has to be researched, not assumed.
The fee cap: § 1997e(d)
Civil rights fee-shifting under 42 U.S.C. § 1988 is what makes small-damages constitutional cases economically possible. See attorney fees in civil rights cases. Section 1997e(d) takes much of that back for prisoner suits.
Fees “shall not be awarded, except to the extent that” the fee “was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title” and either “the amount of the fee is proportionately related to the court ordered relief for the violation” or the fee “was directly and reasonably incurred in enforcing the relief ordered for the violation.” § 1997e(d)(1). Paragraph (2) directs that “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant,” and adds: “If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” Paragraph (3) caps the hourly rate: no award “shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18 for payment of court-appointed counsel” — a figure that changes and has to be checked against the current Criminal Justice Act rate rather than remembered.
Royal shows what this produces. The prisoner won. His judgment was $1.00 in nominal damages. The Eighth Circuit affirmed “the district court’s order limiting the attorney fees award to $1.50, or 150 percent of the damages award.” 375 F.3d at 726. Counsel’s fee for winning a federal civil rights trial was a dollar fifty.
Filing fees and three strikes: 28 U.S.C. § 1915
In forma pauperis status does not waive the fee for a prisoner; it converts it into an installment plan. “[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee,” starting with an initial partial payment of “20 percent of the greater of” average monthly deposits or average monthly balance over the preceding six months, then “monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account,” forwarded by the custodial agency “each time the amount in the account exceeds $10.” § 1915(b)(1)–(2). The statute also provides that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” § 1915(b)(4).
Then the three-strikes rule: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” § 1915(g).
Lomax closed the argument that a dismissal without prejudice is not a strike: “The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.” 590 U.S. at 597. Prior pro se filings that were screened out under 28 U.S.C. § 1915A — which directs courts to review prisoner complaints against a governmental entity or officer “before docketing, if feasible,” § 1915A(a), and to dismiss a complaint that “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” § 1915A(b)(1) — can therefore be strikes. Three of them and the courthouse requires the full fee up front, unless the imminent-danger exception applies.
What this means practically
The PLRA does not change what the Constitution requires of a Minnesota jail. It changes when, and whether, a court ever gets to that question. A meritorious claim that was never grieved through the final appeal, brought while still in custody, seeking damages for psychological harm with no physical injury, can lose on all three grounds without a judge writing a word about the underlying conduct.
Which is why the sequence matters. Grieve everything, in writing, through every level the facility’s policy provides, and keep copies. Preserve the intake paperwork and the grievance forms. Get medical documentation of any physical injury contemporaneously. And identify the release date, because it may determine whether the exhaustion gate applies at all.
The substantive standards on the other side of the gate are covered separately: on medical care, see what the Eighth Circuit actually requires; on who is a proper defendant, see who can be sued under § 1983; on suing the county rather than the individual, see municipal liability under Monell; and where a detainee has died, see who can sue after a death in custody.
Madgett Law, LLC litigates civil rights and police misconduct claims in Minnesota state and federal court, alongside its personal injury and general civil litigation practice. If you or a family member was harmed while held in a Minnesota jail or correctional facility, send us a message or call 612-470-6529.
Sources: 42 U.S.C. § 1997e(a) (exhaustion), (d)(1)–(3) (attorney’s fees), (e) (limitation on recovery), (h) (definition of “prisoner”); 28 U.S.C. § 1915(b)(1)–(2), (b)(4), (g), (h); 28 U.S.C. § 1915A(a)–(c) — statutory text from the Office of the Law Revision Counsel, uscode.house.gov. Ross v. Blake, 578 U.S. 632, 638–39, 642, 643–44, 648 (2016) (mandatory exhaustion; no “special circumstances” exception; the three circumstances in which a remedy is not “available”; err on the side of exhaustion where the process admits multiple reasonable readings). Woodford v. Ngo, 548 U.S. 81, 90–91, 93 (2006) (proper exhaustion; compliance with deadlines and critical procedural rules). Jones v. Bock, 549 U.S. 199, 203, 216 (2007) (failure to exhaust is an affirmative defense; inmates need not plead exhaustion; “flood of nonmeritorious” prisoner litigation). Booth v. Churner, 532 U.S. 731, 738 (2001) (as quoted in Ross for “capable of use” to obtain “some relief for the action complained of”). Lomax v. Ortiz-Marquez, 590 U.S. 595, 597 (2020) (a dismissal for failure to state a claim is a strike whether with prejudice or without). Royal v. Kautzky, 375 F.3d 720, 723, 726 (8th Cir. 2004) (§ 1997e(e) limits recovery for mental or emotional injury in all federal prisoner actions; nominal, punitive, injunctive, and declaratory relief remain available; fee award limited to $1.50, or 150 percent of a $1.00 damages award). Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (exhaustion is an affirmative defense the defendant must plead and prove; the requirement does not apply to plaintiffs who file after release, citing Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998)). Minn. R. 2911.2900 (written grievance procedure with at least one level of appeal, made available to all inmates), issued under Minn. Stat. § 241.021 — Minnesota Office of the Revisor of Statutes.
This article is general legal information about federal law as it applies in Minnesota and the Eighth Circuit. It is not legal advice, and reading it does not create an attorney–client relationship. Deadlines and grievance requirements vary by facility, and whether a particular claim clears the PLRA depends entirely on its own facts. No outcome is promised or implied.