No “Timing” Exception to PLRA Exhaustion for Religious Observances: Second Circuit Reaffirms Strict Exhaustion and Deference to Credibility Findings

Case: Josey v. Bell, No. 24-1747-pr (2d Cir. Nov. 12, 2025) (summary order)

Panel: Kearse, Jacobs, and Kahn, Circuit Judges

Disposition: Affirmed (summary judgment for defendants)

Note: This is a summary order. Under Second Circuit Local Rule 32.1.1, it is non-precedential but may be cited pursuant to Fed. R. App. P. 32.1.

Introduction

This appeal arises from claims by plaintiff-appellant Derek Josey, an incarcerated person in New York, that correctional officers denied him access to religious services and activities during Ramadan in 2018. Josey sued under 42 U.S.C. § 1983, asserting violations of his religious rights. The case never reached the merits. Instead, it turned on the Prison Litigation Reform Act’s (PLRA) mandatory exhaustion requirement—i.e., the rule that incarcerated litigants must exhaust available administrative remedies before filing suit in federal court.

The district court (N.D.N.Y., Chief Judge Brenda K. Sannes) held an evidentiary hearing on exhaustion, discredited Josey’s testimony that he had filed grievances, found that the New York Department of Corrections and Community Supervision’s grievance process was available to him, and granted summary judgment to the defendants for failure to exhaust. On appeal, Josey argued (1) the district court erred in disbelieving his account that he filed two grievances in May and June 2018, and (2) even if he had not exhausted, the grievance process was “unavailable” because Ramadan ended before he learned his grievances were not recorded.

The Second Circuit affirmed. The court deferred to the district court’s credibility determinations after an exhaustion hearing and rejected a proposed “timing” carveout to the PLRA’s exhaustion mandate, emphasizing that Ramadan recurs annually and that New York’s grievance system can provide prospective, non-monetary relief—even when a transient event has ended and even when the inmate ultimately seeks money damages in court.

Terminology note: The opinion refers to the New York corrections agency as “DCCS.” The agency is commonly abbreviated “DOCCS” (Department of Corrections and Community Supervision). The substance of the court’s analysis is unaffected by the acronym.

Summary of the Opinion

Standards of review: The court reviewed the grant of summary judgment de novo but reviewed factual findings from the exhaustion hearing for clear error because the hearing was “the functional equivalent of a bench trial.”
Credibility and factual findings: The district court did not clearly err in finding Josey did not file the two Ramadan-related grievances he claimed to have submitted. The court credited testimony from prison officials on mail-handling and noted that other grievances from Josey were received. It found it telling that Josey filed three other grievances later in June 2018 that did not mention Ramadan or that earlier grievances had gone unanswered. The existence of carbon copies did not persuade the court because “carbon copies could really be created at any time.”
PLRA exhaustion and “unavailability”: The PLRA requires exhaustion of available administrative remedies. The sole textual exception is for actual unavailability of the remedy, as defined by the Supreme Court in Ross v. Blake (dead end, opacity, or thwarting by machination, misrepresentation, or intimidation). Here, defendants established that a grievance process existed and applied. Josey did not prove the process was unavailable under Ross’s categories.
No timing exception for religious observances: The court rejected Josey’s argument that he should be excused from exhaustion because Ramadan had ended by the time he learned there was no record of his grievances. Ramadan is annual, and New York’s grievance system can grant prospective relief, including policy changes. Moreover, Booth v. Churner compels exhaustion even where the inmate seeks only money damages unavailable in the grievance system.
Result: The judgment for defendants (summary judgment on non-exhaustion) was affirmed.

Analysis

Precedents Cited and Their Role

Banks v. General Motors, LLC, 81 F.4th 242 (2d Cir. 2023): Cited for the summary judgment standard of review: de novo.
Clark v. Hanley, 89 F.4th 78 (2d Cir. 2023): Establishes that when a district court conducts an evidentiary hearing on an issue (like PLRA exhaustion) that is “the functional equivalent of a bench trial,” the resulting factual findings—especially credibility determinations—are reviewed for clear error on appeal. This frame is crucial: it largely insulates the district court’s credibility calls from appellate second-guessing.
Ceraso v. Motiva Enterprises, 326 F.3d 303 (2d Cir. 2003): Reinforces that appellate courts do not reweigh competing permissible inferences or second-guess credibility determinations made by the factfinder.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Recites the general summary judgment principle that judgment is appropriate only if no reasonable jury could find for the non-moving party.
42 U.S.C. § 1997e(a) (PLRA): The statutory cornerstone: no federal action about prison conditions may be brought until “such administrative remedies as are available are exhausted.”
Jones v. Bock, 549 U.S. 199 (2007): Clarifies that failure to exhaust is an affirmative defense; inmates need not plead exhaustion, but unexhausted claims cannot proceed.
Ross v. Blake, 578 U.S. 632 (2016): The Supreme Court’s definitive articulation of “availability.” The Court identified three situations in which administrative remedies are “unavailable”: (1) dead end; (2) opacity rendering the process practically incapable of use; (3) thwarting through machination, misrepresentation, or intimidation. Ross also rejected judge-made exceptions beyond “availability.” The Second Circuit applied Ross to evaluate Josey’s “unavailability” argument.
Hubbs v. Suffolk County Sheriff’s Department, 788 F.3d 54 (2d Cir. 2015): Used to assign the burden: once defendants show an applicable grievance process exists, the inmate bears the burden to demonstrate unavailability as a matter of fact.
United States v. Mendez, 315 F.3d 132 (2d Cir. 2002): Highlights the “particularly strong deference” appellate courts give to trial-level credibility determinations.
Booth v. Churner, 532 U.S. 731 (2001): Key for the damages question: exhaustion is required even if the administrative process cannot award the relief the inmate seeks (e.g., money damages), so long as the process can take some responsive action. The Second Circuit used Booth to reject Josey’s argument that, once Ramadan ended, the grievance system had nothing meaningful to offer.
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(2), (b)(3)(ii): New York’s grievance rules authorize non-monetary remedies, including institutional policy changes, which are particularly apt for recurring religious observances like Ramadan.

Legal Reasoning

Framing the inquiry: mixed law and fact. The Second Circuit separated the legal question (summary judgment standard and PLRA doctrine) from factual determinations (did Josey actually file grievances; was the process available in practice). The latter, made after an evidentiary hearing, received clear-error review.
Did Josey file the grievances he claims? The district court discredited his testimony that he submitted grievances on May 24 and June 5, 2018 by placing them into the facility’s locked mailbox. It credited institutional testimony about mail handling and records showing that other grievances from Josey were received. It also noted a credibility gap: three grievances later in June made no mention of Ramadan or of prior, allegedly unacknowledged grievances—something a reasonable filer seeking redress would be expected to flag. The court found that carbon copies did not corroborate filing because they could have been created at any time. The Second Circuit, giving “particularly strong deference” to the district court’s credibility calls, found no clear error.
Mandatory exhaustion and the narrow “availability” exception. The PLRA’s exhaustion requirement is unyielding absent true unavailability under Ross. Defendants met their threshold by establishing that New York’s Inmate Grievance Program applied. The burden shifted to Josey to show that the process was unavailable. He pursued Ross’s third prong—“thwarting”—but offered no persuasive proof of machination, misrepresentation, or intimidation preventing access.
No “timing” carveout for ended religious observances. Josey argued that by the time he learned the facility had no record of his grievances, Ramadan had ended, so the administrative process could not offer meaningful relief. The Second Circuit rejected this logic for two reasons:
- Prospective relief for an annual observance: Ramadan recurs annually. New York’s grievance framework explicitly contemplates institutional policy changes and other forward-looking remedies. Thus, the administrative process was not a dead end; it could address future observance and prospective accommodations.
- Booth’s rule regarding damages: Even if an inmate seeks only money damages (which the grievance system does not award), exhaustion is still required because the system can take other responsive actions. Here, Josey’s § 1983 complaint sought monetary relief independent of Ramadan’s timing; Booth foreclosed any attempt to bypass exhaustion on that basis.
Bottom line: Because the district court permissibly found that Josey did not actually file the grievances, and because the process was not shown to be unavailable, the PLRA barred his suit. Summary judgment for defendants was proper.

Impact and Practical Implications

Although non-precedential, Josey v. Bell offers clear guidance for PLRA litigation in the Second Circuit, particularly in the religious-exercise context:

No exception for transient or seasonal events: The end of a religious observance (e.g., Ramadan) does not make the grievance process “unavailable.” Where the issue is likely to recur, prospective relief is available and must be sought administratively.
Damages-only suits still require exhaustion: Booth remains a robust barrier to skipping administrative steps. Even if an inmate intends to seek only money damages, exhaustion is mandatory if the system can take any responsive action.
Deference to credibility determinations after exhaustion hearings: Once a district court conducts an evidentiary hearing and makes credibility-based findings on whether grievances were filed or whether the process was thwarted, reversal on appeal will be rare. Practitioners should assume those findings will stand unless a definite mistake is shown.
Burden-shifting reinforces the need for paper trails: After defendants show an applicable grievance process, the inmate must prove unavailability. Bare assertions that grievances were filed (or were lost) will likely fail if the institution can show consistent receipt of other grievances and adherence to chain-of-custody procedures. Inmates and counsel should marshal corroboration—date-stamped filings, receipt numbers, follow-up requests, appeals of non-responses within regulatory timeframes, and witness affidavits.
Religious-rights claims remain viable—but only after exhaustion: The court did not reach the merits of Josey’s First Amendment or analogous claims. The lesson is procedural: even potentially strong religious-rights claims will be dismissed unless fully exhausted or unless one of Ross’s narrow unavailability categories is proved with specific, credible evidence.
Persuasive authority for district courts: While summary orders are non-precedential, their reasoning is often persuasive. District courts will likely cite Josey to reject “timing” arguments and to credit institutional processes absent concrete evidence of thwarting.

Complex Concepts Simplified

PLRA “exhaustion”: Before suing, an incarcerated person must use the prison’s internal grievance process for the issue. “Use” means following all steps and deadlines properly (sometimes called “proper exhaustion”).
“Available” remedies (Ross v. Blake): A remedy is unavailable only when:
- Dead end: Officials can’t or won’t provide any relief.
- Opacity: The process is so confusing that it’s practically unusable.
- Thwarting: Officials prevent access through deception, manipulation, or intimidation.
Mere delay or a single lost form usually isn’t enough; specific proof of one of these categories is needed.
New York’s inmate grievance process (7 N.Y.C.R.R. § 701.5):
- Step 1: File a grievance with the Inmate Grievance Resolution Committee (IGRC), generally within 21 calendar days of the event.
- Step 2: Appeal an adverse IGRC decision (or non-response within the set timeframe) to the Superintendent.
- Step 3: Appeal to the Central Office Review Committee (CORC). Only after a CORC decision (or properly appealing a non-response as the rules allow) is exhaustion complete.
- Remedies: The process can recommend or implement policy changes, training, or other non-monetary relief. It does not award money but can take actions that address conditions or future events.
Clear-error review: On appeal, factual findings—especially credibility calls—are overturned only if the appellate court is left with a “definite and firm conviction” that a mistake was made. It is a highly deferential standard.
Summary order vs. precedential opinion: A summary order resolves the case but does not constitute binding precedent. It can be cited (with the “summary order” notation) and may nevertheless influence future decisions as persuasive authority.

Conclusion

Josey v. Bell underscores the PLRA’s strict exhaustion requirement and the narrowness of the “availability” exception. The Second Circuit affirmed the district court’s credibility-based finding that Josey did not file the grievances he claimed and rejected the notion that the end of Ramadan excused exhaustion. Relying on Ross v. Blake and Booth v. Churner, the court emphasized that administrative remedies remain “available” when they can offer prospective, non-monetary relief for recurring religious practices and that exhaustion is required even for damages-only lawsuits.

The case delivers several practical messages for litigants and counsel: meticulously document grievance filings; pursue appeals when responses are delayed or missing; and, in religious-observance cases, seek prospective accommodations through the grievance process even after an observance has ended. For district courts, the decision signals continued deference to fact-finding after exhaustion hearings and a firm rejection of attempts to expand unavailability beyond Ross’s three, tightly defined categories.

While non-precedential, this summary order is a clear reaffirmation that there is no “timing” exception to PLRA exhaustion for religious observances, and that credibility determinations at exhaustion hearings will be upheld absent clear error.