Supreme Court wrestles with whether PLRA exhaustion disputes must be decided by judges or juries

The U.S. Supreme Court heard argument in Pertoux v. Richards over whether courts must decide exhaustion under the Prison Litigation Reform Act or whether juries should decide that question when the factual issues are intertwined with the merits. Miss Sherman, counsel for the petitioner (the state), told the court that “Exhaustion is the centerpiece of Congress's reforms under the Prison Litigation Reform Act,” and urged the justices to preserve judge-led, early-stage exhaustion rulings.

The issue matters because exhaustion determinations can bar suits before they proceed to the merits, and the question presented affects both the scope of prisoners’ access to jury trials under the Seventh Amendment and the practical operation of prison grievance systems. Counsel for the respondent, Miss McGill, argued that where the same factual question governs both exhaustion and the merits, the jury must decide that factual question and that Beacon Theatres and related precedent protect the jury role.

Sherman emphasized that PLRA exhaustion is a mandatory prerequisite to suit and warned that sending intertwined exhaustion questions to juries would “increase this burden while incentivizing nonexhaustion and undermining the goals and structure of the PLRA.” She told the court that dismissal for failure to exhaust is normally without prejudice and that a prisoner who fails to exhaust can return to the administrative process and then seek a jury on the merits. Sherman also offered empirical data from Michigan: she said the state opened 574 prisoner cases last year, filed 96 motions for summary judgment on exhaustion and held four evidentiary (PAVE/PAVE-style) hearings on exhaustion — hearings that, she said, would become jury trials under the respondent’s rule.

Miss McGill, counsel for the respondent Richards, countered that the Sixth Circuit’s decision should be affirmed because the Seventh Amendment protects the right to a jury when the same factual questions are presented to judge and jury. McGill told the court that “the jury must resolve those facts regardless of how you characterize exhaustion,” and argued that judicial factfinding at the exhaustion stage can effectively extinguish a litigant’s jury right in practice even if a dismissal is without prejudice.

Several justices pressed both sides on discrete concerns. The Chief Justice asked whether exhaustion determinations are normally made by judges; Sherman answered that they generally are. Multiple justices — including Justices Alito, Gorsuch, Kagan and Barrett — explored how Beacon Theatres and earlier cases such as Land v. Dollar and Parklane Hosiery fit into the analysis, focusing on collateral estoppel, preclusion and the practical consequences if judges make binding factual findings at the exhaustion stage. Justice Gorsuch and others asked whether the availability of refiling after a dismissal meaningfully preserves the Seventh Amendment right in practice, given short administrative deadlines in many prison grievance procedures.

The arguments also ranged over method: whether the Court can resolve the case on the narrower “intertwinement” question (i.e., when the same facts are pivotal to exhaustion and the merits) without deciding the broader historical-analogy Seventh Amendment question, or whether the Court must address whether PLRA exhaustion is categorically for judges based on history and statutory structure. Counsel debated historical analogs and functional considerations, invoking cases the lawyers said courts have relied on in this area — for example, Jones v. Bock (on pleading exhaustion), Ross v. Blake (on availability), Woodford v. Ngo, Porter v. Nussle, Del Monte Dunes, and Pavey.

The parties also disputed practical consequences. Sherman warned of a potential “floodgates” effect and said prison administrations would be disincentivized to exercise discretion to excuse untimely grievances if exhaustion findings routinely resulted in jury trials. McGill and several justices pointed out that only a small subset of PLRA cases survive screening and summary judgment to reach contested factual hearings, and argued that precedent in some circuits already channels intertwined factual disputes to juries without producing a large increase in trials.

Both sides acknowledged particular features of the case below. McGill said the Sixth Circuit had held exhaustion and the merits to be “completely coterminous” under that circuit’s law, and she stressed that Richards had survived summary judgment on an availability theory under Ross v. Blake and on a First Amendment retaliation claim. Sherman noted that the PREA (Prison Rape Elimination Act) grievance policy referenced in the record includes First Amendment retaliation and told the Court that PREA grievances have no uniform time limit and that some systems permit excusal for good cause.

The Court heard rebuttal from Sherman and then recessed. The justices did not indicate how they will rule; the case was submitted following argument.