28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.170 Complaints--Prison Litigation Reform Act (Section-by-Section Analysis)

In the ANPRM, the Department proposed addressing the effect of the Prison Litigation Reform Act (PLRA) on complaints by prisoners alleging unlawful discrimination on the basis of disability under title II of the ADA.  The PLRA provides, in relevant part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."  42 U.S.C. 1997e(a).  As a result of this language, the Department proposed requiring those prisoners alleging title II violations to file an administrative complaint with the Department prior to filing a lawsuit, and that a complainant would satisfy this requirement if no action was taken by the Department within sixty days.  The Department has considered the comments that it received by a variety of groups and has decided not to propose an exhaustion requirement exclusively for prisoners in the regulation.