concluding "that the PLRA's exhaustion requirement is inapplicable to suits brought by one who is not incarcerated at the time suit is filed"Summary of this case from TILTON v. DOÑA ANA COUNTY DETENTION CENTER
November 5, 2002.
MEMORANDUM AND ORDER
On July 16, 2002, the court ordered plaintiff to show cause why this case should not be dismissed for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1995 (PLRA). The PLRA requires prisoners bringing § 1983 claims to exhaust available administrative remedies before proceeding in federal court. See 42 U.S.C. § 1997e(a).
Defendant timely responded to the show cause order, contending that the PLRA should not apply to lawsuits brought by former prisoners, only to those incarcerated at the time suit is filed. In support of this assertion, defendant cites to Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998). That case fails to support defendant's proposition. Although no mention of the PLRA was made in that case, this was not because exhaustion was not required of former prisoners, but because the PLRA had not yet been enacted on the date plaintiffs filed suit in that case. See 42 U.S.C. § 1997e, enacted April 26, 1996; Barney, 143 F.3d at 1303 n. 1(reflecting that plaintiffs filed suit before October 11, 1995).
Nonetheless, based upon other authority, the court finds that the PLRA's exhaustion requirement is inapplicable to suits brought by one who is not incarcerated at the time suit is filed. See, e.g., Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir. 2000) (en banc), cert. denied, 532 U.S. 1065 (2001); Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999), cert. denied, 532 U.S. 1065 (2001); cf., Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998) (determining PLRA not applicable to suit by juvenile for complaint arising out of incident alleged to have occurred while he was held in pretrial detention).
Similarly, other courts of appeals have held that other provisions of the PLRA do not apply to former prisoners. See, e.g., Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir. 1998) (Section 1997e(e) (physical injury requirement) does not apply to parolee since "the statutory language does not leave wriggle room . . . [and] a distinction between current and former prisoners makes a modicum of sense"); Harris, 216 F.3d at 976 (determining PLRA physical injury requirement does not apply to former prisoners); Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000) (determining PLRA fee limit does not apply to former prisoners), cert. denied, 531 U.S. 1113 (2001); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.) (en banc), cert. denied, 533 U.S. 953 (2001); but see Zehner v. Trigg, 952 F. Supp. 1318, 1327 (S.D.Ind. 1997) (finding physical injury requirement applies to suits arising while the prisoner is in custody, regardless of whether the litigant is released at the time of filing).
Accordingly, this case shall not be dismissed for failure to comply with the exhaustion requirement of the PLRA.