Opinion
Civil Action No. 4:00-CV-687-Y
February 11, 2002
FINAL JUDGMENT
Pursuant to an order issued this same day, and Federal Rule of Civil Procedure 58:
It is hereby ORDERED, ADJUDGED, and DECREED that all of Plaintiff's claims be, and they are hereby, DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that all costs of court are taxed against the party that incurred them.
ORDER OF DISMISSAL
Plaintiff Tonia Kennard, a federal inmate incarcerated at FCI-Dulbin in Dublin, California has filed suit against FCI-Dublin, the United States of America, and three individual physicians, one associated with FCI-Dublin, and two associated with FMC-Carswell, here in Fort Worth, Texas. As Plaintiff is a prisoner proceeding under 28 U.S.C. § 1915(a) and (b), her complaint is subject to review under both the provisions of 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A. In her complaint and more definite statement, Kennard complains of her transfer from FCI-Dublin to FMC-Carswell, and she complains of the alleged inadequate and improper medical care administered to her under the direction of psychiatrists working at FMC-Carswell. (Compl. ¶ IV; More Def. Statement 1-2.) Kennard seeks both monetary damages and injunctive relief. (Compl. ¶ V; More def. Statement at 3.)
When Plaintiff filed suit, she was housed at FMC-Carswell.
The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], 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." In Booth v. Churner, 121 S.Ct. 1819 (2001), the Supreme Court held that Congress intended a prisoner to invoke whatever administrative grievance remedies are available within a jail or prison, without regard to whether the grievance procedure affords money damage relief, before he may file suit contesting prison conditions in federal court. As the Court of Appeals for the Fifth Circuit has since explained:
42 U.S.C.A. § 1997e(a) (West Supp. 2001).
Booth, 121 S.Ct. 1819, 1824-25.
Quibbles about the nature of a prisoner's complaint, the type of remedy sought, and the sufficiency or breadth of prison grievance procedures were laid to rest in Booth. Justice Souter summed up the Court's conclusion in a footnote:
Here, we hold only that Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative sources.
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001), citing Booth, 121 S.Ct. at 1825 n. 6.
Plaintiff Kennard has named both the United States of America and individual defendants. Although Kennard has not expressly asserted her claims under Bivens or under the Federal Tort Clams Act (FTCA), it appears that she is pursuing relief under either or both, so she must first exhaust administrative remedies on all of these claims through the Bureau of Prisons. Under the federal administrative-remedy program established by the Bureau of Prisons, after an inmate initially submits a complaint informally to institution staff, if the complaint is not resolved, the inmate must commence a three-tiered administrative-remedy procedure. First, the inmate must seek relief from the institution's administrative staff (warden); then if dissatisfied, appeal to the regional director; and, if the inmate remains dissatisfied, he must file an appeal with the general counsel. An inmate has not fully exhausted his administrative remedies until he has appealed through all three levels.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 297 (1971). Bivens is, of course, the counterpart to 42 U.S.C. § 1983, and extends the protections afforded under § 1983 to parties injured by federal actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is analogous to an action under § 1983-the only difference being that § 1983 applies to constitutional violations by state, rather than federal officials."), citing Abate v. Southern Pacific Transp. Co., 993 F.2d 107, 110 n. 14 (5th cir. 1993).
See 28 U.S.C. § 2671, et seq. (West 1994).
See Booth, 121 S.Ct. 1819, 1824 (noting that Congress's elimination of the term "effective" from the language of § 1997e(a) was meant to preclude the determination in McCarthy v. Madigan, 503 U.S. 140, 149-51 (1992) that if a prisoner sought only money damages, he could proceed without exhaustion because of the lack of any such effective remedy: "It has to be significant that congress removed the very term we had previously emphasized in reaching the result Booth now seeks, and the fair inference to be drawn is that congress meant to preclude the McCarthy result;"); see also Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998) (affirming dismissal of prisoner's Bivens action under § 1997e(a)for failure to exhaust administrative remedies prior to filing suit in federal court); see also 28 U.S.C.A. § 2675(a) (West 1994) (a prerequisite to an FTCA suit against the United States is that the claimant first must exhaust administrative remedies by presenting such claims to the appropriate agency in writing and obtaining a final denial by the agency in writing).
See 28 C.F.R. § 542.10-16 (1999).
Hernandez v. Steward, No. 96-3222-SAC, 1996 WL 707015, at *1 (D. Kan. Nov. 27, 1996), citing 28 C.F.R. § 542.13, 542.14(a), and 542.15 (a).
Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir. 1994), cert denied, 516 U.S. 835 (1995).
In response to the question within the complaint form regarding whether she had exhausted the grievance procedures, Kennard answered "Yes," but in explaining her answer, Kennard stated that she only discussed the grievance with prison authorities, and she acknowledged in her more definite statement that she did not take any administrative steps prior to filing this suit. (Compl. ¶ II, E-J; More Def. Statement at 2 (¶ 3).) In this case, Kennard expressly seeks injunctive relief and monetary damages. Even if she sought only money damages, the fact that the Bureau of Prisons may not have afforded her monetary damages has no bearing on her 1997e(a) obligation to exhaust under Booth. Thus, Plaintiff's claims must be dismissed without prejudice pending exhaustion of any administrative remedies.
Several courts have recognized a district court's obligation to impose the exhaustion requirement prior to any consideration of the merits, and notwithstanding claims that the exhaustion process itself is futile. See generally Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 536 (7th Cir. 1999) (Vacating district court's denial of prisoner's Eighth Amendment claims on the merits, and remanding with instructions to dismiss for failure to exhaust administrative remedies under § 1997e(a), noting that "[1997e(a) can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit. . . ." [and noting] "As for the possibility that administrative remedies could be declared futile ex ante, without ever being tried: what would be the point of asking judges to be seers? Then the simplicity of § 1997e(a) would be lost, and instead of requiring exhaustion of remedies it would lead to guesswork about counterfactual situations."); Alexander v. Hawk, 159 F.3d at 1326 ("Since exhaustion is now a pre-condition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate. Such an interpretation would impose an enormous loophole in the PLPA, which congress clearly did not intend."); Lavista v. Beeler, 195 F.3d 254, 258 (6th Cir. 1999) (rejecting futility argument where record demonstrated that plaintiff had not actually shown he tried to bring his issues before the Bureau of Prisons).
It is therefore ORDERED that this action be, and is hereby, DISMISSED WITHOUT PREJUDICE to Plaintiff's refiling after she has exhausted available administrative remedies as to all claims.
See Wright. 260 F.3d at 359 (holding both that dismissal of a case for the failure of the plaintiff to exhaust administrative remedies under 42 U.S.C. § 1997e(a) should be without prejudice and that the applicable statute of limitations should be equitably tolled during the pendency of dismissed suit and any additional administrative proceedings).