The prison grievance regime is a quagmire. Civil rights literature and prison law scholarship have largely focused on the procedural impact of this regime, which has grown in the shadow of the Prison Litigation Reform Act’s (PLRA) exhaustion mandate. When an incarcerated person endures abusive conditions, they must first file an administrative grievance with prison authorities and navigate the prison’s complex labyrinth of procedural requirements before seeking relief in federal court. Because a single misstep can close the courthouse doors to incarcerated litigants, the PLRA—and the procedural critiques it has generated—has taken center stage when assessing the profound barriers the prison grievance regime poses to civil rights enforcement.

This Article redirects the spotlight to expose a different malignancy. The prison grievance regime operates not only as a procedural shield for prisons but also as a substantive weapon.

Tracing the history and progeny of the Supreme Court’s decision in Jones v. North Carolina Prisoners’ Labor Union, Inc., this Article explores what it terms “prison grievance creep”: the doctrinal intrusion of prison grievances into constitutional rights-making and remedies in prison. Even when incarcerated litigants overcome the PLRA’s exhaustion requirement and reach the merits of their civil rights claim, the prison grievance reemerges to curtail their pursued right.

This Article is the first to theorize and examine this phenomenon. It outlines the evolution of prison grievance creep and explains how grievances have crept into, and significantly undermined, First Amendment and Bivens rights enforcement in custody. This analysis uncovers a critical pitfall in civil rights jurisprudence that further insulates prisons from accountability. By deconstructing the myths used to justify this creep, this Article offers a foothold to dismantle the creep’s underpinnings.

* Assistant Professor, University of Maryland Carey School of Law. Many people generously shared encouragement and feedback on prior iterations of this Article. For their insights and conversations, I owe special thanks to Chaz Arnett, Paulina Arnold, Richard Boldt, Sharon Dolovich, Sheldon Evans, John Giammatteo, Leigh Goodmark, Benjamin Levin, Kat Macfarlane, Zina Makar, Vanessa Miller, Ion Meyn, Will Moon, Aadhithi Padmanabhan, Seema Saifee, Margo Schlanger, Maneka Sinha, and the participants of the Decarceration Law Professor Works-in-Progress Workshop, Richmond Junior Faculty Forum, Northeastern Junior Scholars Workshop, Maryland and UB Junior Scholars Workshop, and Workshop for AAPI and MENA Women in the Legal Academy. My immense gratitude to Sue McCarty and Tanya Thomas for their assistance, and to Joshua Hale, Mia Juliano, Sandy LaCrete, and Clare Reynolds for their stellar research. For their thoughtful and attentive editing, thank you to the editors of the Stanford Law Review, including Caleigh Lin, Tristan Alston, Annika Ariel, Sara Carrillo, Dayle D. Chung, Hannah L. Dahleen, Marcus Ellinas, Jared Hrebenar, Calvin Chul Huh, Faith Jeffers, Zachary Kimmel, Kuenhee Andy Lee, Peri Joy Long, Riley Martinez, Anna M. McGuire, Christian Meyer, Julia Rehmann, and Hana Ryan.