High Court Could Remand Prisoners' Rights Case to Avoid Tie

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By Jessica DaSilva

March 31 — The submission of several last-minute documents in a case about a procedural administrative issue dealing with prisoners' civil rights could result in the U.S. Supreme Court remanding the case to determine the new issue presented and potentially to avoid 4-4 split, a law professor told Bloomberg BNA.

The court originally granted certiorari in Ross v. Blake, No. 15-339, to determine whether a circuit court could create a special circumstances exception under the Prison Litigation Reform Act for an inmate who thought he had exhausted his administrative remedies before filing a civil claim, but did not actually comply .

The new documents, which were lodged with the court the day before the March 29 oral argument, raised a question as to whether the state of Maryland's guidance to inmates was so confusing that the state effectively failed to provide any remedy at all .

Although Chief Justice John G. Roberts Jr. asked all parties during oral arguments if the court should dismiss the case as improperly granted, the more likely scenario is that the court will remand to the district court for resolution of the new availability issue, said Steven D. Schwinn, an associate professor at John Marshall School of Law in Chicago.

“It's not clear enough for the Supreme Court to rule on the case—at least not comfortably,” Schwinn said in a March 31 phone interview.

New Issue

With the introduction of new documents, the case is now about access to the courts for civil rights damages in prisoner abuse cases, Schwinn explained.

“My guess is that the justices would split along their feelings on how available the federal courts should be,” Schwinn said. “Progressives seem to be favoring access. The conservatives didn't ask many questions, but that seems to assume they're not going to look for opportunities to find exceptions to the PLRA.”

He based that assessment on questioning from three typically leftist voices on the bench—Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen G. Breyer.

During oral arguments, Breyer expressed concern about adopting a specific test to establish the standard for whether a state adequately provided a remedy for inmates who were potential victims of misconduct from correctional officers. Specifically, Breyer cited to the difference in language used in two separate cases from the U.S. Courts of Appeal for the Fourth and Second circuits.

“These words will take on importance in the prison system.,” Breyer said. “I'm always nervous when that happens.”

Schwinn said that if the court did resolve the original issue, Breyer's questions would be the most intriguing based on Breyer's extensive background in administrative law. However, he presumed that if the court attempted to decide the original issue of federal circuit authority, they would split 4-4 along ideological lines.

That split could be one of the reasons behind a potential remand, Schwinn said, adding that it is almost impossible to speculate about the court's motives or actions.

“It's kind of hard to tell,” Schwinn said, adding that it is almost impossible to accurately predict the high court's actions. “There are now two issues on the table and I think both of them are interesting to the justices.”

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text of the oral argument transcript is available at http://src.bna.com/dSs.

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