Nyhuis v. Reno

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

2-15-2000

Nyhuis v. Reno

Precedential or Non-Precedential:

Docket 98-3543

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Filed February 15, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-3543

DOUGLAS NYHUIS, Appellant

v.

JANET RENO, Attorney General;

ERIC HOLDER, Deputy Attorney General;

KATHLEEN HAWK, DIRECTOR-BOP;

JOHN HAHN, WARDEN

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. No. 97-cv-00324E)

District Judge: Honorable Sean J. McLaughlin

Argued: January 11, 2000

Before: BECKER, Chief Judge, ALITO and BARRY,

Circuit Judges.

(Filed: February 15, 2000)

JOSEPH M. RAMIREZ, ESQUIRE

(ARGUED)

Eckert, Seamans, Cherin & Mellott,

LLC

600 Grant Street, 44th Floor

Pittsburgh, PA 15219

Counsel for Appellant

DAVID W. OGDEN, ESQUIRE

Acting Assistant Attorney General

BARBARA L. HERWIG, ESQUIRE

PETER R. MAIER, ESQUIRE

(ARGUED)

United States Department of Justice

Civil Division, Appellate Staff

601 D Street, NW

Room 9012

Washington, DC 20530-0001

BONNIE R. SCHLUETER, ESQUIRE

TINA M. OBERDORF, ESQUIRE

Office of the United States Attorney

633 United States Post Office &

Courthouse

Pittsburgh, PA 15219

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

Given the large number of prisoner lawsuits filed in the

federal courts each year, the case at bar raises an

important question of statutory interpretation regarding the

mandatory exhaustion requirement governing prisoner

lawsuits. As amended by the Prison Litigation Reform Act of

1996 (the PLRA), 42 U.S.C. S 1997e(a) provides 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. S 1997e(a) (amended

by Pub. L. 104-134, Title I, S101(a), 110 Stat. 1321-71

(1996)) (emphasis added).

Douglas Nyhuis, an inmate at the Federal Correctional

Institution McKean (FCI McKean), brought this Bivens

action--alleging several violations of his property rights,

and seeking monetary, declaratory, and injunctive relief--

without first exhausting the administrative process

2

available to him at FCI McKean. He argues that he did not

avail himself of the administrative process because it could

not provide him with two of the three forms of relief that he

seeks in the present action--specifically, the monetary and

declaratory relief. Accordingly, he argues, because pursuit

of his administrative remedies would have been for the

most part futile, S 1997e(a)'s exhaustion requirement

should not bar his action.

Several of our sister circuits have accepted this argument

in cases in which exhaustion of administrative remedies is

truly futile; i.e. the administrative process cannot provide

the inmate-plaintiff with any form of the relief he seeks.

The Defendants in this case have suggested in their briefing

and at oral argument that such a futility exception may be

appropriate under certain circumstances. Other courts,

including two courts of appeals, have rejected the notion

that there is ever a futility exception to S 1997e(a)'s

mandatory exhaustion requirement.

Subscribing to the minority position among courts of

appeals, and rejecting arguments advanced by Nyhuis and

the Defendants, we hold that the PLRA amended S 1997e(a)

in such a way as to make exhaustion of all administrative

remedies mandatory--whether or not they provide the

inmate-plaintiff with the relief he says he desires in his

federal action. This conclusion is supported by the plain

language of S 1997e(a), by analogous Supreme Court

precedent, and by the policy considerations animating the

principle of administrative exhaustion. Therefore, because

Nyhuis failed to exhaust the administrative remedies

available to him, we hold that his action is barred by

S 1997e(a) and was appropriately dismissed by the District

Court. Accordingly, we affirm the District Court's order.1

I.

Nyhuis alleges that prison officials at FCI McKean

confiscated several items of his personal property, including

_________________________________________________________________

1. We express our appreciation to Joseph M. Ramirez, Esquire, who,

acting pro bono at the request of the court, represented Mr. Nyhuis both

ably and zealously.

3

a tan bath robe that he purchased in a prison store; several

pairs of shoes; two electric fans; an assortment of clothes,

towels, and blankets; a calculator; and a Timex watch.

These items were confiscated pursuant to the Bureau of

Prisons' Inmate Personal Property Program Statement (P.S.)

5580.05 and Institutional Supplement 5580.05, which

limited the types and amounts of items prisoners could

have in their personal possession pursuant to P.S. 5580.03.

Although Nyhuis objected to the confiscation of his

property, he concedes that he did not pursue the

administrative processes in place at FCI McKean in order to

remedy these deprivations. See infra note 12 (describing the

administrative process).

Instead, Nyhuis filed this pro se action, pursuant to

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), in the District Court for the Western District of

Pennsylvania. In his complaint, he alleged that the

Defendants--Janet Reno, Attorney General of the United

States; Eric Holder, Deputy Attorney General of the United

States; Kathleen M. Hawk, Director of the Federal Bureau

of Prisons; and John E. Hahn, Warden at FCI McKean--

through their control and regulation of federal prisons and

in their implementation of federal law regarding prisoners'

living conditions, had violated his constitutional rights by

depriving him of property without due process of law,

without just compensation, and in violation of substantive

due process. He contended, inter alia, that the FCI officials

at FCI McKean arbitrarily and unreasonably deprived him

of his personal property, some of which he had purchased

from the prison store, without giving him a hearing or

affording him a sufficient post-deprivation remedy. Nyhuis

also advanced a Fourth Amendment claim, but he has

abandoned this contention on appeal. In terms of relief, he

asked for (1) compensatory and punitive damages; (2) an

injunction ordering both that his property be returned, and

that P.S. 5580.03 be grandfathered for inmates such as

himself; and (3) a declaratory judgment, ruling, inter alia,

that the portion of the Congressional statute that gave rise

to P.S. 5580.05 is unconstitutional.

Defendants moved under FED. R. CIV . PRO. 12(b)(6) to

dismiss Nyhuis's complaint. They advanced several

4

arguments, including the contention that, because he had

failed to exhaust his available administrative remedies

before filing his action in federal court, his action was

barred procedurally by 42 U.S.C. S 1997e(a). Nyhuis

contended that since the Bureau of Prisons' administrative

process could not afford the monetary or declaratory relief

he requested, exhaustion would essentially be futile, and

thus, S 1997e(a) should not bar his action. In her Report

and Recommendation, the Magistrate Judge to whom the

case had been referred accepted the Defendants' procedural

bar argument and rejected Nyhuis's futility argument.

Rather than merely dismiss the case at that point, so

that Nyhuis might go back and exhaust his administrative

remedies, she reached the merits of Nyhuis's action so as to

dispose of the issues should Nyhuis refile his action after

exhausting the administrative process. See Nyhuis v. Reno,

No. 97-324, at 5 (W.D. Pa. July 24, 1998) ("[A]s this court

only has the power to dismiss this complaint without

prejudice, only to have it filed again when[Nyhuis] has

exhausted his administrative remedies, the substantive

allegations raised in the complaint are reviewed below.")

(bold in original). Framing the merits question as one of

standing, see id. at 7-8, and not allowing for discovery or

the development of a factual record before ruling on

Nyhuis's claims, the Magistrate Judge opined that Nyhuis

had failed to demonstrate that he had a cognizable property

interest in his personal property, see id. at 9.

Nyhuis filed a timely objection to the Magistrate Judge's

report and recommendation. The District Court adopted the

Magistrate Judge's report and recommendation as its

opinion and ordered that the Defendant's motion to dismiss

be granted. Nyhuis timely appealed. The District Court had

jurisdiction pursuant to 28 U.S.C. S 1331. We have

jurisdiction under 28 U.S.C. S 1291.2

_________________________________________________________________

2. To be appealable under 28 U.S.C. S 1291, an order of dismissal must

ordinarily be with prejudice. See, e.g., Bahtla v. U.S. Capital Corp., 990

F.2d 780, 786 (3d Cir. 1993). Though the District Court may have

dismissed Nyhuis's action without prejudice, in this situation, that

description is anomalous for two reasons. First, the"without prejudice"

description is in tension with the Magistrate Judge's reaching the merits.

5

II.

Our analysis focuses on whether S 1997e(a), as amended

by the PLRA, contemplates a futility exception in cases in

which the applicable administrative process cannot afford

the inmate-plaintiff with the relief he seeks in his federal

action, and whether such an exception applies in this case.

Section 1997e(a) provides 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. S 1997e(a). As the statutory language makes

clear, S 1997e(a) applies equally to S 1983 actions and to

Bivens actions. See, e.g., Lavista v. Beeler, 195 F.3d 254,

256 (6th Cir. 1999). Bivens actions are by definition

"brought . . . under . . . Federal law," 42 U.S.C. S 1997e(a),

and Congress clearly intended to sweep Bivens actions into

the auspices of the S1997e(a) when it enacted the PLRA, see

Lavista, 195 F.3d at 256 (collecting legislative history); see

also Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir.

1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th

Cir. 1997) (same).

_________________________________________________________________

Had Nyhuis exhausted his remedies and refiled his action, the

Magistrate Judge (and the District Court by adopting her report and

recommendation) would have no doubt dismissed Nyhuis's action on the

merits; her report says as much. Therefore, in a sense, Nyhuis had no

reason to cure the defect in his complaint. Second, Nyhuis did not

attempt to cure his complaint by availing himself of the administrative

process; instead, he filed this appeal, raising the argument that

exhausting his administrative remedies would be futile. In doing so, he

effectively stands on his original complaint. Under either of these

circumstances, appellate review from a dismissal without prejudice is

appropriate. See Garber v. Lego, 11 F.3d 1197, 1198 n.1 (3d Cir. 1993)

(noting that plaintiff can appeal from a dismissal without prejudice when

plaintiff cannot cure the defect in his complaint or when plaintiff

declares his intention to stand on the complaint); see also Bethel v.

McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996); Trevino-Barton v.

Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir. 1990).

6

Several courts of appeals have addressed the exhaustion

and futility question with which we are faced. Two general

lines of authority have emerged from these cases. In cases

in which a prison's internal grievance procedure cannot

provide money damages and the plaintiff asks only for

money damages arising only out of isolated past harms, a

number of courts have recognized and applied a futility

exception to 1997e(a)'s exhaustion requirement.3 These

courts, and the district courts that agree with them, reason

that it is senseless to force a prisoner to engage in the

"empty formality" of petitioning the prison administrative

process for a form of relief that it cannot provide. White v.

_________________________________________________________________

3. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998) (not requiring

exhaustion before filing Bivens action requesting monetary damages

when exhaustion would be futile because no monetary administrative

remedies were available); Lunsford v. Jumao-As, 155 F.3d 1178, 1179

(9th Cir. 1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1266-67 (10th

Cir. 1997) (same; noting that if Congress created an administrative

process that could provide monetary relief, the futility exception would

not apply); see also Rumbles v. Hill, 182 F.3d 1064, 1068-69 (9th Cir.

1999) (applying Lunsford's futility exception to a S 1983 action). The

Seventh Circuit can likely be included in this list as well. Judge

Easterbrook's opinion in Perez v. Wisconsin Dep't of Corrections, 182

F.3d 532, 538 (7th Cir. 1999), a S 1983 action, held that "pursuit of

administrative remedies is necessary no matter what relief the plaintiff

seeks." He noted, however,

It is possible to imagine cases in which the harm is done and no

further administrative action could supply any "remedy." Perhaps

Lunsford [cited supra] met that description. Suppose the prisoner

breaks his leg and claims delay in setting the bone is cruel and

unusual punishment. If the injury has healed by the time suit

begins, nothing other than damages could be a "remedy," and if the

administrative process cannot provide compensation then there is

no administrative remedy to exhaust. Perez, unlike Lunsford,

alleges

that his medical problems are ongoing and that his treatment

remains deficient, so Wisconsin can provide him with some "remedy"

whether or not its administrative process offers damages.

Id. (emphasis in original). A subsequent panel for the Seventh Circuit

Court of Appeals cast doubt on the extent of this exception, calling it

dicta and not applying it in the case at bar, but did not rule that such

an exception would not apply in the precise factual context about which

Judge Easterbrook hypothesized. See Massey v. Helman, 196 F.3d 727,

734 (7th Cir. 1999).

7

Fauver, 19 F. Supp. 2d 305, 317 (D.N.J. 1998) (Orlofsky, J.)

("Any other interpretation would compel the conclusion that

`Congress intended to erect meaningless barriers to suit.' ")

(citation omitted).

These courts, as do others, see infra note 4, also

conclude that S 1997e(a) is not a jurisdictional requirement,

which by definition cannot be subject to a futility exception.

Rather, they hold that S 1997e(a) is a codification within the

PLRA of the doctrine of exhaustion of administrative

remedies, which before the PLRA was enacted had a futility

exception grafted upon it. See, e.g., Rumbles, 182 F.3d

1067-68. Therefore, they conclude, it is appropriate to

apply the futility exception when it is warranted, much in

the same way a court would equitably toll a statute of

limitations.4

Two courts of appeals and several district courts have

refused to apply a futility exception to S 1997e(a) in light of

the way the PLRA amended the section. See, e.g., Wyatt v.

Leonard, 193 F.3d 876, 878 (6th Cir. 1999); Alexander v.

Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998); Beeson v.

Fishkill Correctional Facility, 28 F. Supp. 2d 884, 896

(S.D.N.Y. 1998). The amendment replaced the requirement

that plaintiff-inmates exhaust "plain, speedy, and effective

remedies as are available" with the requirement that

_________________________________________________________________

4. Although we disagree that the futility exception survives the

enactment of the PLRA, see infra Section II.C, we agree with the clear

majority of courts that S 1997e(a) is not a jurisdictional requirement,

such that failure to comply with the section would deprive federal courts

of subject matter jurisdiction. See, e.g., Massey v. Hellman, 196 F.3d

727, 732 (7th Cir. 1999); Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.

1999); Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998);

Basham v. Uphoff, 1998 WL 847689, No. 98-8013, at *3 (10th Cir. Dec.

8, 1998). Section 1997e(c)(2), also enacted as part of the PLRA, provides

that "[i]n the event that a claim is, on its face, frivolous, malicious,

fails

to state a claim upon which relief can be granted, or seeks monetary

relief from a defendant who is immune from such relief, the court may

dismiss the underlying claim without first requiring the exhaustion of

administrative remedies." 42 U.S.C.A. S 1997e(c)(2) (West Supp. 1999)

(emphasis added). If exhaustion under the PLRA were jurisdictional, this

section and the power it gives district courts would make no sense. See

Underwood, 151 F.3d at 295.

8

inmate-plaintiffs exhaust "such administrative remedies as

are available."5 These courts reason that the elimination of

the words "plain, speedy, and effective" from S 1997e(a)

precludes application of a futility exception, and that the

word "available" refers to any remedy the prison supplies,

rather than one of the prisoner's choosing. See, e.g.,

Alexander, 159 F.3d at 1326; Beeson, 28 F. Supp. 2d at

893.

Nyhuis's Bivens action is distinguishable from both lines

of cases because he requests a mix of remedies, some of

which were and some which were not available under the

Bureau of Prisons' administrative process. Nyhuis has

requested money damages and declaratory relief, which are

not available from the Bureau of Prisons, see 28

C.F.R. S 542.12(b) (1999); see also BOP Program Statement

1330.13, P 6(b)(1)-(3) (1996) (refusing to consider claims for

monetary relief), and a request for injunctive relief, which is

available from the Bureau, see 28 C.F.R. S 542.10 (1999).

Therefore, unlike the cases recognizing the futility

exception, in which the inmate asked the district court only

for remedies unavailable to him in the administrative

process, Nyhuis's action is a mixed claim, in which he asks

the District Court both for available and unavailable

remedies.

_________________________________________________________________

5. To set forth the full text, before it was amended by the PLRA,

S 1997e(a) provided that

(1) Subject to the provisions of paragraph (2), in any action

brought pursuant to section 1983 of this title by an adult

convicted

of a crime confined in any jail, prison, or other correctional

facility,

the court shall, if the court believes that such a requirement

would

be appropriate and in the interests of justice, continue such case

. . . to require exhaustion of such plain, speedy, and effective

remedies as are available.

(2) The exhaustion of administrative remedies under paragraph (1)

may not be required unless the Attorney General has certified or

the

court has determined that such administrative remedies are in

substantial compliance with the minimum acceptable standards

promulgated under subsection (b) of this section or are otherwise

fair and effective.

42 U.S.C. S 1997e(a) (1994) (amended 1996) (emphasis added).

9

B.

No court of appeals interpreting the PLRA has recognized

a futility exception to S 1997e(a)'s exhaustion requirement

in a mixed claim case. Alexander and Beeson would of

course require exhaustion in the mixed claim scenario;

both cases require exhaustion in every case, whether it is

futile or not. See Alexander, 159 F.3d at 1325 (also noting

that in cases decided prior to the enactment of the PLRA,

courts required exhaustion when plaintiff's claims were

mixed); Beeson, 28 F. Supp. 2d at 896. Those courts of

appeals that have recognized the futility exception, see

supra note 3, have not extended the exception to mixed

claims actions: Two courts have explicitly rejected the

futility exception's application in mixed claim cases,6 while

the other courts have impliedly rejected its application in

similar circumstances.7

_________________________________________________________________

6. In Whitley, 158 F.3d at 887, the Court of Appeals for the Fifth Circuit

applied the futility exception in a case in which the plaintiff asked for

money damages that were not available under administrative scheme.

The court noted, however, that it would have required exhaustion had

the plaintiff in the case not amended his pleading to drop his claim for

injunctive relief, which he could have obtained in the available

administrative process. See id. In Lavista v. Beller, the Court of Appeals

for the Sixth Circuit wrote:

Although it may make sense to excuse exhaustion of the

prisoner's complaint where the prison system has aflat rule

declining jurisdiction over [claims involving only money damages],

it

does not make sense to excuse the failure to exhaust when the

prison system will hear the case and attempt to correct legitimate

complaints, even though it will not pay damages. Here, because

plaintiff seeks injunctive and declaratory relief, as well as

monetary

damages, he may be successful in having the Bureau of Prisons at

least review its policies and procedures concerning disabled

persons

at their facilities. If so, presenting his claims to the Bureau of

Prisons first would not be futile, even if he cannot receive

monetary

damages.

195 F.3d 254, 257 (6th Cir. 1999) (citation and footnote omitted).

7. See Rumbles, 182 F.3d at 1069 ("Exhaustion of administrative

remedies under S 1997e(a) is not required if a prisoner's section 1983

claim seeks only money damages and if the correctional facility's

administrative grievance process does not allow for such an award.")

10

Such a rule makes particular sense in a case such as the

one at bar. Nyhuis admits that if we were to award him the

declaratory relief he seeks, his claims for injunctive relief

would be "essentially superfluous." Reply Brief at 3. The

converse, of course, is also true. If, in the available

administrative process, the Bureau of Prisons were to give

him the injunctive relief he requests, several of his claims

for declaratory relief would be rendered moot. Allowing the

federal courts to fashion prison remedies before the prisons

themselves have had the opportunity (and have the ability)

to do so, is surely not what Congress intended when it

enacted the PLRA. Cf. Perez, 182 F.3d at 536-37 ("No one

can know [ex ante] whether administrative requests will be

futile; the only way to find out is to try.""[Otherwise] the

_________________________________________________________________

(emphasis added); Lunsford, 155 F.3d at 1179 ("Lunsford . . . seeks only

damages . . . . He does not request that the Bureau of Prisons be

required to take further corrective action. . . .[He is] therefore not

required to exhaust his administrative remedies before filing this lawsuit

. . . in light of the fact that the Administrative Remedy Program only

provides for injunctive relief.") (emphasis added); Garrett v. Hawk, 127

F.3d at 1266 (focusing on fact that inmate sought"purely monetary

damages," which were not available under the current administrative

process, and not injunctive relief as well).

In cases arising before or outside of the PLRA context, this court has

treated mixed claim actions similarly. See, e.g., Muhammad v. Carlson,

739 F.2d 122, 125 (3d Cir. 1984) ("Because a prisoner asserting only a

claim for damages under Bivens apparently can obtain no relief from the

Bureau of Prisons, it would serve little purpose to require him to exhaust

administrative remedies before coming into the courts.") (emphasis

added). In this line of cases, the futility exception did not apply in

cases

in which the petitioner asked both for money damages, which were not

available in the administrative process, and for injunctive relief, which

was available. See Young v. Quinlan, 960 F.2d 351, 356 n.8 (3d Cir.

1992) (Bivens action) (citing Veteto v. Miller, 794 F.2d 98, 100 (3d Cir.

1986) (holding "that the requirement for exhaustion of the administrative

remedy provided by the [administrative process] applies to a prisoner's

suit for injunctive or mandatory relief whether or not it carries an added

claim for damages")). As explained below, we believe that the PLRA did

away with the futility exception altogether. See infra Section I.C.

Therefore, the PLRA rendered, for the most part, irrelevant the

distinction that Muhammad and Young drew between mixed claim

actions and those only involving requests for money damages.

11

simplicity of S 1997e(a) would be lost . . . .") (emphasis in

original).

Accordingly, under either the across-the-board

exhaustion approach or the mixed-claim approach adopted

by courts of appeals recognizing a futility exception to

S 1997e(a), Nyhuis's action, as pleaded, is barred because of

his failure to exhaust his available administrative remedies.

That said, we are of the opinion that S 1997e(a), as

amended by the PLRA, completely precludes a futility

exception to its mandatory exhaustion requirement.

Therefore, we will affirm the District Court's judgment not

on the ground that the futility exception was not applicable

in this case, but on the ground that it is not applicable in

any case.

C.

There are four principal reasons why we are convinced

that the most sensible reading of S 1997e(a) is that the

futility exception is not applicable in any case.

1.

The first reason is the plain-reading argument,

mentioned above, regarding the manner in which Congress

amended the language in S 1997e(a). As Judge Mukasey

noted in Beeson, 28 F. Supp. 2d at 893, the PLRA amended

"S 1997e(a) by, inter alia, deleting the phrase `plain, speedy,

and effective' and removing all references to Attorney

General certification or court approval of available

administrative remedies." See supra note 5 (reproducing

S 1997e(a) as it read before its amendment by the PLRA). In

interpreting the alteration in language, we must presume,

as always, that this amendment was intended to have"real

and substantial effect." Stone v. I.N.S., 514 U.S. 386, 397

(1995).

In Alexander, the Eleventh Circuit persuasively described

the effect of this amendment. The court wrote, "The removal

of the qualifiers `plain, speedy, and effective' from the

PLRA's mandatory exhaustion requirement indicates that

Congress no longer wanted courts to examine the

12

effectiveness of administrative remedies but rather to focus

solely on whether an administrative remedy program is

`available' in the prison involved." Alexander, 159 F.3d at

1326; accord Perez, 182 F.3d at 537. Concomitantly, Judge

Mukasey wrote in Beeson, 28 F. Supp. 2d at 893 (citations

and quotations omitted), the amendment "suggests strongly

that `Congress now conditions prisoner suits on the

exhaustion of such administrative remedies as are

available, without regard to whether those remedies are

`effective,' without regard to whether they substantially

comply with `minimum acceptable standards,' and without

regard to whether they are `just and effective,' " as

S 1997e(a) had required before it was amended by the

PLRA, see supra note 5 (reproducing S 1997e(a) prior to its

amendment by the PLRA).

The Court of Appeals for the Fifth Circuit, as have other

courts, attempts to refute this argument, suggesting that

the retention of the word "available" in S 1997e(a) implies

that the judicially created futility exception survives the

passage of the PLRA, which merely codified existing

exhaustion doctrine. See Whitley, 158 F.3d at 886-87.

Invoking Webster's definition of the word "available" as it

applies to a remedy--"a remedy is `available' when it can be

availed `for the accomplishment of a purpose' or`is

accessible or may be obtained' "--the court held that if

prisoner sought a remedy that he could not obtain in

accessible administrative procedures, pursuant to

S 1997e(a), he need not avail himself of those futile

procedures before bringing an action in federal court. Id. at

887 (quoting WEBSTER'S NEW INT'L DICTIONARY 150 (3d ed.

1981)).

Several courts have exposed the three weaknesses of this

argument. First, as Judge Mukasey writes, "[R]eading

S 1997e(a) to apply only where an administrative scheme

provides adequate relief would "essentially reintroduce[ ]

the requirement of an `effective administrative remedy' after

Congress deleted it." Beeson, 28 F. Supp. 2d at 893

(citation omitted) (alteration in original). Nyhuis and other

prisoners in similar cases, indeed, do not complain that the

prisons in which they are confined do not provide internal

remedies that can be availed "for the accomplishment of a

13

purpose"--as Webster's defines "available"--they merely

dispute that the internal remedies which are available do

not allow them to accomplish all of their own purposes.

This is true even in the non-mixed-claim scenario where

the prisoner asks for unavailable monetary relief, and the

prison can possibly ameliorate some of the prisoner's

concerns with internal remedies. See infra Section II.C.4

(describing several of these alternative remedies). By

eliminating the "effective" language in S 1997e(a), Congress

saved federal courts from inquiring into whether the

particular administrative remedies available comported with

inmate-plaintiff's individualized and immediate desires for

relief.

Second, by leaving the word "available" inS 1997e(a)

Congress merely meant to convey that if a prison provided

no internal remedies, exhaustion would not be required.

The fact that the word survived the changes that the PLRA

wrought does not necessarily mean that the futility

exception survives. See Alexander, 159 F.3d at 1326-27

("Some state penal institutions may not have an

administrative remedy program to address prison

conditions, and thus there are no `available' administrative

remedies to exhaust. Section 1997e(a) permits these

prisoners to pursue their claims directly in federal court.");

accord Perez, 182 F.3d at 537; see also Moore v. Smith, 18

F. Supp. 2d 1360, 1364 (N.D. Ga. 1998) (Murphy, J.) ("The

most natural reading of [S 1997e(a), as it was amended by

the PLRA,] leads to the conclusion that Congress was not

asking courts to evaluate the sufficiency of the

administrative remedies, but merely intended to require

prisoners to utilize the existing administrative remedies,

whether the grievance procedure will produce the precise

remedy that the prisoner seeks or some other remedy.").

Third, by amending S 1997e(a) in the way that it did,

Congress not only eliminated the futility exception, it

foreclosed the opportunity for courts to read the exception

back into the statute. The courts that have attempted to

resurrect the futility exception and justify their inquiry into

the efficacy of the available prison administrative process

ignore Supreme Court precedent cautioning against such a

move. As Judge Mukasey noted in Beeson, the Supreme

14

Court has drawn a "sharp distinction between statutory

and judicial exhaustion: `Where Congress specifically

mandates, exhaustion is required. But where Congress has

not clearly required exhaustion, sound judicial discretion

governs.' " 28 F. Supp. 2d at 894 (quoting McCarthy v.

Madigan, 503 U.S. 140, 144 (1992)). Before S 1997e(a) was

amended, it did not require exhaustion, but rather, vested

power in the federal courts to make such determinations.

See supra note 5. Therefore, the "sound discretion" of

courts governed, McCarthy, 503 U.S. at 144, and courts

were free to recognize a futility exception.

Section 1997e(a), as amended, however, eliminates such

discretion. It "specifically mandates" that inmate-plaintiffs

exhaust their available administrative remedies, id., by

providing that "[n]o action shall be brought" until the

inmate-plaintiff has done so, 42 U.S.C. S 1997e(a).

Accordingly, as Congress has now "clearly required"

exhaustion in S 1997e(a), McCarthy, 503 U.S. at 144, "it is

beyond the power of this court--or any other--to excuse

compliance with the exhaustion requirement, whether on

the ground of futility, inadequacy or any other basis."

Beeson, 28 F. Supp. 2d at 894-95 (citing Weinberger v.

Salfi, 422 U.S. 749, 766 (1975) (holding that where

exhaustion is statutorily mandated, "[t]he requirement . . .

may not be dispensed with merely by a judicial conclusion

of futility"); Patsy v. Florida Bd. of Regents, 457 U.S. 496,

512 (1982) (stating that courts do not have authority "to

alter the balance struck by Congress in establishing the

procedural framework for bringing actions underS 1983")).

2.

The second argument in favor of our reading of S 1997e(a)

has a great deal to do with the nature of prison litigation

and Congress's intent in enacting the PLRA. As the court

stated in Alexander, "Congress amended section 1997e(a)

largely in response to concerns about the heavy volume of

frivolous prison litigation in the federal courts." 159 F.3d at

1326 n.11 (citing 141 Cong. Rec. H14078-02, H14105

(daily ed. Dec. 6, 1995)). The court went on to note,

"Congress desired `to wrest control of our prisons from the

lawyers and the inmates and return that control to

15

competent administrators appointed to look out for society's

interests as well as the legitimate needs of prisoners.' " Id.

(quoting 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept.

27, 1995)). Inmate-plaintiffs often file claims which are

untidy, repetitious, and redolent of legal language. The very

nature of such complaints necessitates that courts expend

significant and scarce judicial resources to review and

refine the nature of the legal claims presented."With these

considerations in mind, Congress mandated that prisoners

exhaust administrative remedies and eliminated courts'

conducting case-by-case inquiries until after a prisoner has

presented his claims to a particular administrative remedy

program, which often helps focus and clarify the issues for

the court." Alexander, 159 F.3d at 1326 n.11.

Exempting claims for monetary relief from the exhaustion

requirement in S 1997e(a) would frustrate this purpose. It

would enable prisoners, as they became aware of such an

exemption, to evade the exhaustion requirement, merely by

limiting their complaints to requests for money damages.

See Wyatt, 193 F.3d at 878. The PLRA "is designed to deter

frivolous lawsuits and this purpose would be undermined if

prisoners could avoid the law simply by asking for

monetary damages." Id. Such a result, would "do little to

`stem the tide of meritless prisoner cases,' as Congress

intended." Beeson, 28 F. Supp. 2d at 893 (citing 141 Cong.

Rec. S7525 (May 25, 1995)).

3.

The third argument militating in favor of our position

arises from the justifiable assumption, that in amending

S 1997e(a), Congress intended to save courts from spending

countless hours, educating themselves in every case, as to

the vagaries of prison administrative processes, state or

federal. An interpretation of S 1997e(a) that conditioned

exhaustion on whether an administrative scheme grants

the relief requested would have the effect of making the

application of S 1997e(a) dependent upon the peculiarities

of such processes. Such an interpretation would involve

federal courts in the tedious and intrusive process of

evaluating each prisoner's cause of action and the

underlying administrative scheme in each prison--

16

something Congress was plainly guarding against when it

enacted the PLRA. See Wyatt, 193 F.3d at 878-79; see also

141 Cong. Rec. S7498-01, S7526-27 (May 25, 1995)

(statement of Sen. Kyl) ("Statistics compiled by the

Administrative Office of the U.S. Courts . . . show that

inmate suits are clogging the courts and draining precious

judicial resources . . . . The volume of prisoner litigation

represents a large burden on the judicial system, which is

already overburdened by increases in nonprisoner

litigation . . . . An exhaustion requirement is appropriate for

prisoners given the burden that their cases place on the

Federal court system . . . .").

The statements made at oral argument by the lawyer

from the Appellate Staff of the Civil Division of the

Department of Justice in Washington (representing all of

the Defendants) strengthen our belief that we reach the

correct result. Counsel advised us that each of the

institutions in the Bureau of Prisons can and sometimes

does treat claims for money damages differently. 8 According

to counsel, in many cases the local Bureau of Prisons

institution will reject out of hand a prisoner grievance that

includes a claim for money damages so that the grievance

would get effectively no review. (This treatment is

consonant with the Bureau's stated policy. See 28

C.F.R. S 542.12(b) (1999); see also BOP Program Statement

1330.13, P 6(b)(1)-(3) (1996).) In such a case, counsel

suggested, resort to administrative processes would be

futile.

But not always. Counsel also stated that the Bureau of

Prisons reserved its right to argue that, had the inmate

triggered the administrative process and presented a

meritorious claim, the local institution would have reviewed

the inmate's claim and fashioned some form of relief other

than money damages. (We presume that the institutions

_________________________________________________________________

8. There are ninety four such institutions, see Federal Bureau of

Prisons, Federal Bureau of Prisons Quick Facts P 1 (Jan. 18, 1999; last

updated Nov. 30, 1999) http://www.bop.gov/fact0598.html>, housing

some 136,163 inmates, Federal Bureau of Prisons, Weekly Population

Report, at *3 (Jan. 18, 1999; last updated Jan. 7, 1999)

http://www.bop.gov/weekly.html >.

17

sometimes do that.) In other words, the inmate seeking only

money damages, thinking he has no administrative remedy,

can proceed to federal court and wait and see whether a

motion to dismiss is filed, and if it is, he would then know

that he should have pursued his administrative remedies.

Of course, by this time, the time limit to file such a

grievance may have well passed. See infra note 12

(discussing this possibility).

The Defendants' suggested approach to these cases

would require prisoners to act as seers, and judges to act

as detectives as they attempted to discover whether the

local administrative process could have, would have, or

might have afforded the inmate relief. The bright-line rule

that we adopt makes things clear for inmates and insures

that our time is saved for more important matters, as

Congress intended. See Perez, 182 F.3d at 536-37. Our

bright-line rule is that inmate-plaintiffs must exhaust all

available administrative remedies.9 Under such an

approach, federal courts need not waste their time

evaluating whether those remedies provide the federal

prisoner with the relief he desires. As detailed in the

margin, this argument has equal, if not greater import, in

42 U.S.C. S 1983 actions brought by state prisoners against

state prison officials.10

_________________________________________________________________

9. Obviously, for the administrative process to constitute a bar, it must

be capable of addressing the events that could generate a lawsuit or

have some relevance to that lawsuit. If, for example, the only grievance

procedure available dealt exclusively with work assignments, it would

not have to be exhausted unless the subsequent lawsuit was related

thereto. But see discussion in Section II.C.4, infra.

10. In Mississippi Choctaw Indian Band v. Holyfield, the Supreme Court

made it clear that " `in the absence of a plain indication to the

contrary,' "

Congress should not be understood to " `mak[e] the application of [a]

federal act dependent on state law.' " 490 U.S. 30, 43 (1989) (emphasis

added) (citations omitted). Congress gave no indication--let alone a

"plain indication"--that application of S 1997e(a) should depend on the

vagaries of state law. In fact, as Judge Mukasey noted in Beeson,

[T]he deletion of the language making exhaustion dependent on the

effectiveness of state remedies, and the removal of the provisions

governing assessment of states' remedial schemes by the Attorney

General and courts, is a fairly "plain indication" that Congress

18

4.

The last argument supporting our holding relies upon the

policies underlying exhaustion requirements in general.

Courts have recognized myriad policy considerations in

favor of exhaustion requirements. They include (1) avoiding

premature interruption of the administrative process and

giving the agency a chance to discover and correct its own

errors; (2) conserving scarce judicial resources, since the

complaining party may be successful in vindicating his

rights in the administrative process and the courts may

never have to intervene; and (3) improving the efficacy of

the administrative process. Each of these policies, which

Congress seems to have had in mind in enacting the PLRA,

is advanced by the across-the-board, mandatory exhaustion

requirement in S 1997e(a).

As the courts in Wyatt, 193 F.3d at 878, Alexander, 159

F.3d at 1327, and Beeson, 28 F. Supp. 2d at 895, noted, a

comprehensive exhaustion requirement better serves the

policy of granting an agency the "opportunity to correct its

own mistakes with respect to the programs it administers

before it is haled into federal court." McCarthy v. Madigan,

503 U.S. 140, 145 (1992); see also Perez, 182 F.3d at 537.11

Moreover, "even if the complaining prisoner seeks only

money damages, the prisoner may be successful in having

the [prison] halt the infringing practice" or fashion some

other remedy, such as returning personal property,

_________________________________________________________________

intended the opposite: to impose one uniform standard requiring

prisoners to pursue their claims initially through the

administrative

process, without regard to the nature or extent of the relief

offered

by that process in each state.

Beeson, 28 F. Supp. 2d at 893 (citations omitted). When one considers

the enormous amount of time federal courts spend reviewing actions

filed by inmate-plaintiffs, this argument makes a great deal of sense.

11. The Supreme Court has recognized that this policy is especially

important where it implicates agencies of state government. See Preiser

v. Rodriguez, 411 U.S. 475, 491-92 (1973) (emphasizing the strength of

state prisons' and state courts' interests in resolving complaints filed

by

state prisoners). Therefore, this argument has even more strength in the

S 1983 context.

19

reforming personal property policies, firing an abusive

prison guard, or creating a better screening process for

hiring such guards. Alexander, 159 F.3d at 1327; see also

Wyatt, 193 F.3d at 878 ("A purpose of the [PLRA] was to

insure that prisons have notice of complaints and are given

the opportunity to respond to prisoner complaints,

particularly legitimate complaints, so that injuries are

prevented in the future."). And when a prisoner obtains

some measure of affirmative relief, he may elect not to

pursue his claim for damages. In either case, local actors

are given the chance to address local problems, and at the

very least, the time frame for the prisoner's damages is

frozen or the isolated acts of abuse are prevented from

recurring. See Perez, 182 F.3d at 537-38; Alexander, 159

F.3d at 1327.

An across-the-board exhaustion requirement also

promotes judicial efficiency. As Judge Mukasey noted, "A

prisoner may use the threat of money damages as a

bargaining chip to obtain relief that he really wants, and

may then be satisfied when he gets that relief from the

prison." Beeson, 28 F. Supp. 2d at 895. Moreover, even if

only a small percentage of cases settle, the federal courts

are saved the time normally spent hearing such actions and

multiple appeals thereto. See id. ("Each case settled

through the administrative process is one less case that

must be litigated in federal court, with the attendant costs

--not only to the judicial system, but also to the parties

and to administrative independence--saved.").

In cases in which inmate-plaintiffs exhaust their

remedies in the administrative process and continue to

pursue their claims in federal court, there is still much to

be gained. The administrative process can serve to create a

record for subsequent proceedings, it can be used to help

focus and clarify poorly pled or confusing claims, and it

forces the prison to justify or explain its internal

procedures. See Wyatt, 193 F.3d at 878-79; Perez, 182 F.3d

at 537-38. All of these functions help courts navigate the

sea of prisoner litigation in a manner that affords a fair

hearing to all claims.

Finally, applying S 1997e(a) without exception promotes

the efficacy of the administrative process itself, which in

20

our view can be a meaningful and constructive procedure.

Operating at its best, which it admittedly sometimes does

not, a prison administrative grievance procedure will afford

an inmate with the sense of respect. If prison officials treat

his claims with seriousness and care, they may well

discover that he can be easily satisfied. For example, in

Nyhuis's case, returning some of his personal belongings or

revising the prison policy in question may suffice to

ameliorate some of his concerns. In other cases, a letter of

apology, transfer to a more favorable cell block, or

disciplining the prison official who wronged the inmate may

suffice. And if the inmate sees his meritorious claims

handled with care by his jailers, he is more likely to respect

their rules and serve his time in a manner that is as

productive as possible. Most importantly, it is to be hoped

that, under the regime of this case and the PLRA, prison

grievance procedures will receive enhanced attention and

improved administration.

It is also important to observe that, if in the long run,

something of a cooperative ethos can be achieved between

inmate and jailer, the internal administrative process could

prove a less hostile and adversarial forum than that of

federal court. Of course, to serve these purposes, grievance

procedures must be understandable to the prisoner,

expeditious, and treated seriously. Although not necessary

to the holding we reach, as explained in the margin, the

procedures at issue in this case appear to meet these

requirements.12 Without embellishing--for the case law in

(Text continued on page 23)

_________________________________________________________________

12. An inmate "may seek formal review of an issue which relates to any

aspect of [his] confinement" under 28 C.F.R. S 542.10 (1999). The

procedure requires that the inmate first address his complaint to the

institution staff, see id. S 542.14(c)(4), within twenty calendar days

following the date on which the basis for the complaint occurred, see id.

S 542.14(a). The staff has twenty calendar days to respond to the

inmate's complaint. See id. S 542.18. If dissatisfied with the response at

that level, the inmate has twenty days to appeal his complaint to the

Regional Director of the Bureau of Prisons. See id. S 542.15(a). The

Regional Director has thirty calendar days to respond. See id. S 542.18.

Finally, the inmate may appeal his case, within thirty calendar days, to

the General Counsel in the Central Office of the Bureau of Prisons,

which is the "final administrative appeal." Id. S 542.15(a). The General

21

Counsel has forty calendar days to respond the inmate's petition. See id.

S 542.18. All told, the process should take no longer than one hundred

and eighty days. In fact, counsel for the Defendants has represented that

"absent an extension of time granted to the prisoner, the grievance

process in 1999 took no more than an average of 162.05 days to

complete from the day the grievance arose."

The procedure also insures that inmates are aware of their rights, and

that their rights are not forfeited unfairly. It provides that inmates may

obtain assistance from other prisoners, institution staff, or outside

sources, such as family members or attorneys, infiling their grievances.

See id. S 542.16(a). It also imposes the duty on wardens that they "shall

insure that assistance is available for inmates who are illiterate,

disabled, or who are not functionally literate in English." Id. S

542.16(b).

At each stage of the process, if an inmate is late in filing his

complaint,

these time limits may be extended when the inmate demonstrates a valid

reason for delay. See id. SS 542.14(b); 542.15(a).

At oral argument, we asked the Justice Department to check with the

Bureau of Prisoners whether there would be a tolling of the

administrative statutory period when an inmate filed his federal action

thinking his administrative remedies were futile, but later the Bureau of

Prisons asserted a S 1997e(a) exhaustion defense and the District Court

dismissed the inmate's action on this ground. In a letter memorandum,

counsel for the Justice Department represented that 28 C.F.R.

S 542.14(a) requires that "a prisoner file a formal Administrative Remedy

Request within twenty days of the date on which the basis for relief

arose. . . ." He further indicated that it was the Bureau of Prisons'

(apparently informal) policy that

[w]here a prisoner files an action in federal court within the

twenty-

day period and the court subsequently dismisses that action for

failure to exhaust administrative remedies, the Bureau of Prisons

treats the filing of the action as tolling the limitations period

for

filing the administrative grievance. . . . Where a prisoner neither

files

a grievance with prison officials nor files an action in the

federal

district court within twenty days, the Bureau of Prisons views the

grievance as time barred should the prisoner's action be dismissed

for failure to exhaust administrative remedies.

This framework makes little sense. To achieve tolling, an inmate must

file his federal action within twenty days. In our experience, few

litigants

could properly prepare a federal action within such a short time frame.

Moreover, even if the inmate is successful in doing so, the Bureau of

22

the area will have to develop--we note our understanding

that compliance with the administrative remedy scheme will

be satisfactory if it is substantial. See, e.g., Miller v. Tanner,

196 F.3d 1190, 1194 (11th Cir. 1999) (recognizing and

applying substantial compliance doctrine); Wyatt, 193 F.3d

at 879-80 (same).

D.

For the reasons detailed in the Section above, we are not

prepared to read the amended language in S 1997e(a) as

meaning anything other than what it says--i.e., that no

action shall be brought in federal court until such

administrative remedies as are available have been

exhausted. As Nyhuis admittedly failed to initiate, and

therefore exhaust, his available administrative remedies

(rather than those he believed would be effective), we will

affirm the District Court's order dismissing the action.

Since the Magistrate Judge, having properly dismissed the

action for failure to exhaust, should not have reached the

merits of Nyhuis's claim, that portion of the District Court's

decision will be vacated.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

Prisons can always undercut such an effort by asserting the exhaustion

defense. See supra Section II.C.3. The result: The inmate is back in the

administrative process. The more sensible rule, and the one we believe

Congress intended, is that inmates first test and exhaust the

administrative process, and then, if dissatisfied, take the time necessary

to file a timely federal action. This rule removes the guesswork and the

potential for unfairness that inheres in Justice Department's position.

23