John Lesesne v. John Doe

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2013 Decided April 9, 2013

No. 11-7120

JOHN B. LESESNE,

APPELLANT

v.

JOHN DOE, OFFICER, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00602)

Emily M. May, Student Counsel, argued the cause as amicus

curiae in support of appellant. With her on the briefs were Sean

E. Andrussier, appointed by the court, and John A. Cosgriff,

Jonathan P. Havens, and Matthew P. Mooney, Student Counsel.

John B. Lesesne, pro se, was on the brief for appellant.

Mary L. Wilson, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellees. With her on the brief were Irvin B. Nathan,

Attorney General, Todd S. Kim, Solicitor General, and Donna

M. Murasky, Deputy Solicitor General.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

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Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: When John Lesesne filed a

complaint against the District of Columbia and others regarding

the pretrial conditions of his confinement he was no longer

confined. Under the plain terms of the Prison Litigation Reform

Act (“PLRA”), 42 U.S.C. § 1997e(a), he therefore was no longer

required to exhaust administrative remedies before filing suit.

The District agrees that the PLRA exhaustion requirement did

not apply to Lesesne but urges the court nonetheless to affirm

the grant of summary judgment on his federal claims for failure

to exhaust because Lesesne failed to make this argument in the

district court. We decline to do so for the following reasons, and

we reverse as to his federal claims.

I.

According to the complaint, see Chandler v. D.C. Dep’t of

Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998), as a result of the

actions and inactions of District of Columbia employees,

Lesesne suffered permanent, life threatening injuries from a

pulmonary embolism requiring expensive permanent

therapeutical medical care and prescription drugs, constant pain

management, and pain and suffering and emotional distress.

Briefly, Lesesne was shot in the lower abdomen during an

altercation on March 30, 2008 and sustained neurological

damage to his leg. He was arrested and taken to Prince

George’s Hospital Center, where he underwent surgery. While

at the hospital, he was placed in the custody of D.C.

Metropolitan Police Department officers, who kept his wrist and

ankle cuffed to the bed. Within 48 hours, the Department of

Corrections assumed custody of Lesesne; correctional officers

continued cuffing his wrist and ankle to the hospital bed.

Because of the neurological damage to his leg, doctors

prescribed physical and occupational therapies and directed

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Lesesne to walk in the hospital hallway. Correctional officers

denied him this treatment and restrained movement of his

injured leg, despite knowledge of the injury and prescribed

treatment and even after hospital doctors faxed the

recommendations to Department administrators. Upon being

discharged from the hospital on April 8, 2008, Lesesne was

forced by correctional officers to walk in full restraints through

the parking lot to the transport vehicle. When the officers

attempted to lift him into the vehicle, he fell to the ground. He

was then placed in a police cruiser for transport to the D.C. Jail

infirmary. Showing signs of distress during transport and

afterwards, he was taken following an examination at the D.C.

Jail to the Greater Southeast Community Hospital, where he was

diagnosed with having suffered a pulmonary embolism.

Lesesne was placed in intensive care at the hospital and

correctional officers continued to cuff his injured leg. He was

discharged from the hospital on April 21, 2008 and transferred

to the D.C. Jail pending arraignment. Over the next four days,

Jail personnel failed to provide him with the medical treatment

prescribed by the hospital and his wounds became infected;

specifically, they did not give him prescribed medications,

change his bandages, or clean his gunshot wound and surgical

incision. On April 25, 2008, he was released from the Jail on

pre-trial release.

Two years later, on April 19, 2010, Lesesne, proceeding pro

se, filed a complaint against the District of Columbia, the

Department of Corrections, and corrections officials John Doe,

David Holmes, and Henry Lesansky, who were sued in their

individual capacities (together, “the District”). He alleged that

the District was deliberately indifferent to his medical needs and

allowed the wanton infliction of pain in violation of his

constitutional rights. He also alleged the intentional infliction

of emotional distress (“IIED”) under District of Columbia law.

He sought a declaration that the District had violated his

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constitutional rights and an award of compensatory and punitive

damages, as well as attorneys’ fees and costs. He also filed an

application to proceed in forma pauperis, averring that he was

not incarcerated, which the district court granted.

The District moved to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,

for partial summary judgment pursuant to Rule 56 on the ground

that Lesesne had failed to exhaust administrative remedies as the

PLRA required. Lesesne, still pro se, responded that he had

adequately stated his claims and that “special circumstances”

and the “non-existen[ce]” of administrative remedies justified

his failure to exhaust. He also moved, on September 15, 2010,

to amend his complaint, and the proposed amended complaint,

lodged on November 29, added factual details to Lesesne’s

federal claims but did not include an IIED claim. The District

opposed Lesesne’s motion on the ground that his amended

complaint suffered from the same defects as the original.

Lesesne replied that administrative remedies were unavailable

to him.

On December 17, 2010, the district court ordered the

District to submit additional briefing on the exhaustion issue and

specifically to address Lesesne’s arguments that he was

practically unable to file a grievance and that special

circumstances may have justified his failure to do so. In

response, the District filed exhibits including an affidavit by a

Department grievance coordinator stating that Lesesne’s D.C.

Jail medical records indicated that on April 24, 2008 he had

submitted a sick call slip requesting to be seen by a doctor. The

District argued, therefore, that the grievance system was

available to Lesesne. On September 30, 2011, the district court

granted summary judgment on Lesesne’s federal claims because

he had failed to exhaust administrative remedies as required by

the PLRA, dismissed Lesesne’s IIED claim pursuant to Rule

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12(b)(6) for failure to state a claim, and denied his motion to file

an amended complaint as futile given his failure to exhaust.

Lesesne appeals, and our review is de novo. See Douglas v.

Donovan, 559 F.3d 549, 551 (D.C. Cir. 2009); Chandler, 145

F.3d at 1360.

II.

On appeal, in his pro se brief Lesesne challenges the grant

of summary judgment on his federal claims on the grounds that

he was not required to exhaust administrative remedies under

the PLRA because those remedies were unavailable to him. In

his brief he also asserts, without elaboration, that the dismissal

of his IIED claim should be reversed. The District maintains in

its responsive brief that summary judgment on Lesesne’s federal

claims should be affirmed. It explains that although other circuit

courts of appeals have held the PLRA exhaustion requirement

does not apply where a plaintiff is no longer a prisoner when he

files his complaint, Lesesne forfeited the argument by failing to

argue in the district court that the PLRA was inapplicable by

reason of his release from the D.C. Jail. The District also offers

several reasons why the dismissal of Lesesne’s IIED claim

should be affirmed. By Order of July 12, 2012, this court

appointed amicus to present argument in support of Lesesne.1

Lesesne subsequently amended his brief to adopt the arguments

raised by amicus.

The exhaustion provision of the PLRA provides:

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

1

The court expresses its appreciation to amicus for its

assistance.

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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). “Prisoner” is defined as a “person

incarcerated or detained.” Id. § 1997e(h). By its plain terms,

exhaustion is not required of a plaintiff who is not so confined.

The courts of appeals to address the issue have so held,

indicating that the relevant time of confinement is when the

complaint is filed. See Talamantes v. Leyva, 575 F.3d 1021,

1023–24 (9th Cir. 2009); Cofield v. Bowser, 247 F. App’x 413,

414 (4th Cir. 2007) (unpublished opinion); Norton v. City of

Marietta, 432 F.3d 1145, 1150–51 (10th Cir. 2005); Nerness v.

Johnson, 401 F.3d 874, 876 (8th Cir. 2005); Ahmed v.

Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); Greig v. Goord,

169 F.3d 165, 167 (2d Cir. 1999); see also Harris v. Garner, 216

F.3d 970, 974–75 (11th Cir. 2000) (en banc) (interpreting

parallel language in 42 U.S.C. § 1997e(e)); Janes v. Hernandez,

215 F.3d 541, 543 (5th Cir. 2000) (interpreting § 1997e(d));

Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (interpreting

§ 1997e(e)). The statutory text supports this analysis by

referring to an “action . . . brought . . . by a prisoner confined in

any jail, prison, or other correctional facility.” 42 U.S.C.

§ 1997e(a). The District concedes that “both the language of the

exhaustion requirement . . . and the legislative history show that

the law applies only to prisoners confined when they file their

complaint.” Appellees’ Br. 15–16.

“The matter of what questions may be taken up and

resolved for the first time on appeal is one left primarily to the

discretion of the courts of appeals, to be exercised on the facts

of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121

(1976). As a general rule, “issues and legal theories not asserted

in the district court ordinarily will not be heard on appeal.”

Prime Time Int’l. Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir.

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2010) (internal quotation marks omitted). But the Supreme

Court has recognized that “[t]here may always be exceptional

cases or particular circumstances which will prompt a reviewing

or appellate court, where injustice might otherwise result, to

consider questions of law which were neither pressed nor passed

upon by the court or administrative agency below.” Hormel v.

Helvering, 312 U.S. 552, 557 (1941). So, for example, “a

federal appellate court is justified in resolving an issue not

passed on below. . . where the proper resolution is beyond any

doubt.” Singleton, 428 U.S. at 121. And “a court may consider

an issue antecedent to and ultimately dispositive of the dispute

before it, even an issue the parties fail to identify and brief.”

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508

U.S. 439, 447 (1993) (internal quotation marks and alteration

omitted). In light of the Supreme Court’s instruction, this court

has identified other examples of extraordinary circumstances

overcoming the general rule of forfeiture, such as when “a

novel, important, and recurring question of federal law” is

presented on appeal. Roosevelt v. E.I. Du Pont de Nemours &

Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992). The court has

expressed “no qualms” about reaching a new argument that a

particular “statute is clearly inapplicable.” Ranger Cellular v.

FCC, 333 F.3d 255, 261–62 (D.C. Cir. 2003). And the court has

resolved an issue not raised in the district court where it

“involve[d] a straightforward legal question, and both parties

have fully addressed the issue on appeal.” Prime Time Int’l, 599

F.3d at 686. Lesesne’s case fits this paradigm.

First, the proper interpretation of the PLRA’s exhaustion

requirement is a dispositive legal issue antecedent to its

application. See U.S. Nat’l Bank of Or., 508 U.S. at 447. It

involves an important question of first impression in this court

that is likely to recur. See Roosevelt, 958 F.2d at 419 n.5.

Second, it is an obvious, straightforward legal question that does

not require further factual development. See Prime Time Int’l,

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599 F.3d at 686. To the extent Lesesne’s forfeiture also

involved a factual issue – i.e., whether he was confined at the

time he filed his complaint – that fact is established by the

record and undisputed on appeal. Lesesne averred under penalty

of perjury in his March 2010 application to proceed in forma

pauperis that he was not incarcerated, and the first and last

pages of his pro se complaint listed a private street address,

rather than a correctional or detention facility. The District’s

motion to dismiss included a certificate of service that it had

mailed the motion to Lesesne at the private address listed in his

complaint. Third, both parties have had “ample opportunity to

address the issue” on appeal. See U.S. Nat’l Bank of Or., 508

U.S. at 448; Prime Time Int’l, 599 F.3d at 686. This court’s

order appointing amicus expressly directed briefing on the issue.

Notably, the District has not suggested that it would be

prejudiced if the court resolved the statutory issue; nor would it

be, considering the case is still at the pleading stage and the

District has not yet filed an answer.

For these reasons we exercise our discretion to decide the

antecedent statutory question. As in Prime Time International,

“[t]he proper resolution of the [PLRA] issue is beyond any

doubt . . . . The issue involves a straightforward legal question,

and both parties have fully addressed the issue on appeal.

Consequently, no injustice will be done if [the court] decide[s]

the issue.” 599 F.3d at 686. To the contrary, it would seem

unjust to allow a defendant to defeat a complaint based on an

affirmative defense, see Jones v. Bock, 549 U.S. 199, 216

(2007), that it concedes is inapplicable. Indeed, the District

could offer no explanation during oral argument how invoking

forfeiture would promote the ends of justice here.

We hold, joining our sister circuits, that the PLRA

exhaustion requirement does not apply because Lesesne was not

a “prisoner” at the time he filed his complaint. Summary

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judgment, based on Lesesne’s failure to exhaust administrative

remedies as the PLRA requires, was therefore inappropriately

granted on his federal claims.2 As to his IIED claim, we hold

that it has been abandoned because neither Lesesne’s proposed

amended complaint nor amicus’ brief, which he adopted,

reference the IIED claim, and his pro se appellate brief provides

no argument why the dismissal of it should be reversed. See

Woodruff v. Peters, 482 F.3d 521, 525 (D.C. Cir. 2007); Terry

v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996); Carducci v.

Regan, 714 F.3d 171, 177 (D.C. Cir. 1983). Accordingly, we

reverse in part and remand Lesesne’s federal claims to the

district court; otherwise we affirm.

2

In a footnote to its brief, the District suggests Lesesne has

abandoned his Fourth Amendment claim on appeal and that, in any

event, he failed to state a claim upon which relief can be granted. See

Appellee’s Br. 21 n.6. But neither Lesesne nor amicus had any reason

to discuss the specifics of his federal claims on appeal because the

district court granted summary judgment on exhaustion grounds; we

express no view on the merits of his claims. We also reject the

District’s suggestion, without supporting authority, that dismissal of

the complaint as to defendant Lesansky should be affirmed because he

was not referenced as an appellee in Lesesne’s notice of appeal. To

the extent there was error, but see FED. R. APP. P. 3(c)(1)(A); Appeal

of D.C. Nurses’ Ass’n v. Dist. of Columbia, 854 F.2d 1448, 1450 (D.C.

Cir. 1988), it was harmless as the dispositive order appealed applied

to all defendants and Lesansky is a public employee represented by the

same counsel as the named appellees, see Chathas v. Smith, 848 F.2d

93, 94 (7th Cir. 1988).