A Good Exhaustion Defense Needs Good Records

TL;DR: Failure to exhaust under the PLRA is an affirmative defense. In Tubbs v. Payton, the Sixth Circuit reversed summary judgment because there was a factual dispute about when the inmate learned that his complaint had been finally rejected and, as a result, when his grievance deadline actually started running.

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Raising the defense that a plaintiff did not exhaust his grievance remedies can seem like an easy way to get a case dismissed, until the whole case turns on a date nobody can prove with any confidence.

That’s what happened in Tubbs v. Payton, No. 25-1950, 2026 WL 2664699 (6th Cir. Sept. 10, 2026).

The facts

Here’s what everyone knew: while Danyale Tubbs was incarcerated, a mailroom employee rejected a book written by his sister.

Tubbs challenged the rejection through the prison’s administrative process, and the prison held a hearing on April 5, 2022.

What happened after that was considerably less clear.

Tubbs said the hearing officer initially agreed that he should receive the book, but he did not learn that his request was again rejected until May 9, when he received a hearing report. He filed his Step I grievance that same day.

MDOC rejected the grievance as untimely, apparently measuring the deadline from April 5. The problem was that the record did not cleanly establish that April 5 was the date Tubbs actually learned the issue had been resolved against him.

The parties disputed whether April 5 was the first or second hearing. There were different versions of the hearing report. And although the hearing officer testified about his usual practice of preparing reports and sending them to the mailroom on the day of a hearing, there was no evidence establishing when Tubbs actually received the report.

The district court granted summary judgment, finding that Tubbs had failed to exhaust his administrative remedies and buying the prison’s argument that he filed his Step I grievance too late. The Sixth Circuit reversed.

Why the exhaustion defense failed

Because failure to exhaust is an affirmative defense, Payton had the burden to prove that Tubbs did not file his grievance in accordance with the prison’s rules. That meant she had to establish that Tubbs missed the grievance deadline, which in turn required her to establish when that deadline began to run.

Tubbs’s sworn declaration said he did not learn the final outcome until May 9. His grievance documents also identified May 9 as the relevant date, and the Sixth Circuit concluded that the competing evidence created a genuine factual dispute that had to be resolved at a trial.

The Sixth Circuit did not decide that Tubbs had properly exhausted his claims. It decided only that Payton had not carried her burden to prove that he hadn’t.

What jail operators can take from Tubbs

If a grievance deadline runs from notice of a decision, the file should make it possible to determine when that notice was actually given.

I’ve seen jails that do not consistently keep track of things like when an inmate received a decision, who provided the decision, which version of a document was provided, or when a particular step in the grievance process actually occurred. I understand why. Jails are busy places, recordkeeping systems are not always great, and the people handling grievances are usually doing plenty of other things at the same time. But those details become very important once the case gets into litigation.

Tubbs is a good example. The prison had evidence showing when a hearing occurred and testimony about how reports were normally handled, but it did not have clean evidence showing when Tubbs learned the result.

So keep the delivery record, acknowledgment, kiosk entry, mail log, or whatever your system uses to show that a decision actually reached the inmate. If a report is revised or replaced, the file should also make clear which version was given to the inmate and when.

The PLRA’s exhaustion requirement remains a valuable defense. But when the defense depends on a deadline, the institution still has to be able to prove when the clock started.