Opinion
Civil Action No. 4:01-CV-990-Y
January 31, 2002
ORDER OF DISMISSAL
Plaintiff Ricky J. Shugart, a federal inmate presently incarcerated at the Federal Medical Center-Fort Worth, has filed suit against several individual defendant employees and officials at FMC-Fort Worth. As Plaintiff is a prisoner proceeding under 28 U.S.C. § 1915(a) and (b), his complaint is subject to review under both the provisions of 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A. In his complaint, Shugart complains of several different instances in which manuscripts, books, and research materials prepared by him have been confiscated by institution officials and not returned. (Compl. ¶ IV; attachment pages 1-5.) Shugart contends that the confiscation of such materials is a violation of his First, Fourth, and Fifth Amendment rights. (Compl. ¶ IV; attachment pages 2-5.) Shugart seeks $100,000.00 plus interest and costs. (Compl. ¶ V; attachment page 5.)
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.
The plaintiff named the defendants individually, but also challenges the defendants' actions in an official capacity. Although the plaintiff expressly asserted his claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, even assuming he also could assert claims under the Federal Tort Clams Act (FTCA), under either avenue, he must first exhaust administrative remedies on all of his 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, an 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.
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). The FTCA is referenced only to the extent the plaintiffs naming of the defendants in an official capacity could be construed as a suit against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).
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 McGarthy result;"); 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 he had exhausted the grievance procedures, Shugart answered "Yes," and he has actually provided evidence that he sought administrative review of some of his claims in copies of documents attached to his original complaint, in administrative case number 242067. (Compl. attachments pages 11-21.) Those documents show, however, that Shugart initiated such complaint in May 2001 with the final national inmate appeal response issued in October 2001. Yet, Shugart's complaint in this Court includes allegations of another property confiscation that took place on October 7, 2001, and he has provided documentation that although he commenced another administrative review process (assigned administrative number 253842), he had obtained only review at the warden level prior to the filing of this civil complaint. (Compl. attachment pp. 20-21.) Furthermore, the primary basis for Shugart's claims in federal court, that his constitutional rights were violated by the confiscation of the materials, was not made part of Shugart's claims in the administrative case number 242067. (Compl.; attachments 11-19.) As a result, Shugart has not shown that he resolved all levels of the administrative review process as to all claims made the basis of this suit, and he has not shown evidence of any effort to exhaust the allegations made the basis of this suit against each of the defendants listed in the complaint.
Even though Shugart seeks only money damages, the fact the Bureau of Prisons may not have afforded him monetary damages as possible relief on such claims, has no bearing on his 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 1321, 1326 (11th Cir. 1998) ("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 PLRA, 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 refiling after exhausting 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).