Opinion
No. 4:98CV3007.
June 11, 1999. Notice of Appeal: July 9, 1999
MEMORANDUM AND ORDER
This matter is before the court on the defendants' second motion to dismiss, (filing 74), in which the defendants assert that this matter should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Specifically, the defendants contend that because the plaintiffs did not exhaust their administrative remedies as required under 42 U.S.C. § 1997e(a), prior to filing this 42 U.S.C. § 1983 action, this court lacks subject matter jurisdiction over the plaintiffs' claims. For the reasons discussed below, I shall deny the motion to dismiss for lack of subject matter jurisdiction; however, I shall, nevertheless, dismiss this matter for failure to exhaust administrative remedies as required under 1997e (a).
The parties have consented to proceed before me, pursuant to 28 U.S.C. § 636. (Filing 70).
BACKGROUND
The plaintiffs are non-English speaking Mexican inmates incarcerated at the Nebraska State Penitentiary. They allege that the defendants have violated, and are violating, their due process rights by failing to provide qualified interpreters and/or no interpreters at disciplinary hearings. They further allege that the defendants have deprived them of meaningful access to, and participation in, vocational, educational and rehabilitative programs, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In lieu of filing an answer, the defendants have filed a motion to dismiss this action for lack of subject matter jurisdiction. (See filing 74). The plaintiffs have submitted a brief in opposition.DISCUSSION
The defendants argue that the plaintiffs' failure to exhaust their administrative remedies under the Nebraska Department of Correctional Services' Rules and Regulations, (see defendants' ex. A), prior to bringing this federal civil rights action precludes this court from obtaining jurisdiction over the plaintiffs' section 1983 claims. Defendants rely on section 1997e(a) which provides:
No 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. § 1997e(a). For the reasons discussed below, I reject the defendants' position and conclude that § 1997e(a)'s exhaustion requirement is not jurisdictional.
The United States Court of Appeals for the Eighth Circuit has not yet decided this issue; however, the Fifth Circuit Court of Appeals recently addressed it in Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), cert. denied, 1999 WL 322623 (U.S. May 24, 1999) (NO. 98-7852). In Underwood, the Fifth Circuit stated: "A statute requiring exhaustion of administrative remedies may be jurisdictional if it is 'more than a codified requirement of administrative exhaustion' and contains 'sweeping and direct' statutory language that goes beyond a requirement that only exhausted actions may be brought." Id. at 294 (quoting Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)). After examining a statutory scheme which had been held to impose a jurisdictional exhaustion requirement, the court concluded that § 1997e(a) contained "precisely the type of language held in Weinberger v. Salfi not to limit federal jurisdiction." Id. The court further found that sections 1997e(c) (1) and (2) also provided support for its conclusion. Id. at 294-95. Under 2997e(c)(1), a district court must screen prisoner complaints and dismiss those that fail to state a claim, are frivolous or malicious or seek monetary relief from a defendant immune from such relief. 42 U.S.C. § 1997e(c)(1). A court may also dismiss such claims without requiring the exhaustion of administrative remedies. Id. § 1997e (c)(2). The Fifth Circuit concluded that a federal court "would not be empowered to [review and dismiss such claims] if the exhaustion requirement provision deprived the court of jurisdiction over the action."Underwood, 151 F.3d at 295 (citation omitted). The court, therefore, found that § 1997e(a) does not deprive federal courts of jurisdiction. Id.; see Wright v. Morris, 111 F.3d 414, 420-21 (6th Cir.) (concluding that § 1997e(a) is not jurisdictional), cert. denied, 118 S.Ct. 263 (1997); Smith v. Stubblefield, 30 F. Supp.2d 1168, 1170-71 (E.D. Mo. 1998) (same);White v. Fauver, 19 F. Supp.2d 305, 318 n. 16 (D.N.J. 1998) (same);Lacey v. C.S.P. Solano Med. Staff, 990 F. Supp. 1199, 1202 (E.D. Cal. 1997) (same).
Other courts have concluded, or assumed, that § 1997e(a) is jurisdictional, see, e.g., Morgan v. Arizona Dep't of Corrections, 976 F. Supp. 892 (D. Ariz. 1997); however, I do not find these decisions to be persuasive. Instead, I agree with the analysis and the conclusion of the Fifth Circuit in Underwood, and hold that this court has subject matter jurisdiction over this action, regardless of whether the plaintiffs have exhausted their administrative remedies. Accordingly, the defendants' second motion to dismiss on the ground that this court lacks subject matter jurisdiction is denied.
Although § 1997e(a) is not jurisdictional, § 1997e(a), as amended, does make the exhaustion requirement mandatory rather than directory. Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997) (citing Historical and Statutory Notes, 42 U.S.C.A. § 1997e (West Supp. 1997)). As such, this court is obligated to determine whether the plaintiffs have exhausted their administrative remedies prior to filing this § 1983 action.See Brown v. Tombs, 139 F.3d 1102, 1104 (6th Cir.) ("District courts should enforce the exhaustion requirement sua sponte if not raised by the defendant."), cert. denied, 119 S.Ct. 88 (1998); Farver v. Capel, No. 99-1437, 1999 WL 203498 (8th Cir. April 12, 1999) (unpublished opinion) (affirming dismissal for failure to exhaust administrative remedies and citing Brown v. Tombs, supra). Here, the plaintiffs do not contend that they have exhausted their administrative remedies, (see plaintiffs' brief); instead, they argue that they were not required to exhaust them in this instance. I shall address the plaintiffs' arguments in turn.
See also Campbell v. Cambell, No. 97-4267, 1998 WL 658257 (8th Cir. Sept. 18, 1998) (unpublished opinion) (stating that because the prisoner failed to exhaust his administrative remedies, the district court properly dismissed the case without prejudice). I realize that unpublished opinions of the Eighth Circuit Court of Appeals are not binding precedent. Eighth Circuit Rule 28(k).
The plaintiffs first argue that because their amended complaint focuses on the duration of their confinement in prison, they are not required to exhaust their administrative remedies. In support of the their argument plaintiff cite 18 U.S.C. § 3626 (g) (2), which provides that "the term 'civil action with respect to prison conditions' means any civil proceeding arising under Federal law with respect to conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison." 18 U.S.C. § 3626 (g)(2).
Section 1997e does not provide a definition for "prison conditions." Other courts, however, have applied the definition of § 3626(g)(2) in determining whether the plaintiff was required to exhaust his administrative remedies. Stubblefield, 30 F. Supp.2d at 1171; Jones v. DeTella, 12 F. Supp.2d 824, 826 (N.D. Ill. 1998); Moore v. Smith, 18 F. Supp.2d 1360, 1363 (N.D. Ga. 1998); Lacey v. C.S.P. Solano Med. Staff, 990 F. Supp. at 1205 n. 6; Morgan, 976 F. Supp. at 895-96. Because both parties rely on § 3626(g)(2) in their briefs, I shall examine it in determining whether this instant action is a case within § 1997e.
Contrary to the plaintiffs' argument that their claims concern the duration of their confinement, this is a conditions-of-confinement case, not a habeas case, and therefore they must exhaust their administrative remedies. The alleged lack of qualified interpreters and/or lack of interpreters at the Nebraska State Penitentiary is a condition of their confinement. Although the plaintiffs argue that their inability to participate in self-betterment programs precludes eligibility for parole, the converse is not true; that is, the granting of the relief requested herein would not entitle them to parole or shorten their confinement. This civil action, therefore, falls within § 362G(g)(2)'s definition of a civil action with respect to prison conditions. I reject the plaintiffs' first argument.
If the plaintiffs were actually challenging the duration of their confinement their claims would have to be dismissed for failing to exhaust state remedies. See Preiser v. Rodriguez, 411 U.S. 475 (1973); Edwards v. Balisok, 520 U.S. 641 (1997); 28 U.S.C. § 2254.
The plaintiffs next argue that they are not required to exhaust their administrative remedies because such remedies are inadequate to provide redress for the plaintiffs' constitutional claims. I disagree. While several courts have held that a prisoner was not required to exhaust his administrative remedies where the prisoner was seeking only monetary relief, see Garret, 127 F.3d at 1266-67 (concluding that because the prisoner could not obtain the monetary relief that he sought through the prison grievance procedure, he was not required to exhaust his administrative remedies prior to filing a § 1983 action in which he sought only monetary relief); Fauver, 19 F. Supp.2d at 317 (same); Hollimon v. DeTella, 6 F. Supp.2d 968, 970 (N.D. Ill. 1998) (same), the plaintiffs in this case are seeking only equitable and declaratory relief, (see filing 57), and equitable relief is available to them under the Department of Correctional Services' Grievance Procedure, (see filing 75 ex. 1, attach. A) I therefore conclude that the department's grievance procedure is competent to provide the redress plaintiffs' seek. As such, the plaintiffs must exhaust their administrative remedies.
The plaintiffs' third argument is that administrative remedies are unavailable to them because they lack English proficiency. In support of their argument the plaintiffs have submitted typed correspondence from plaintiff Santiago Felix to Jean Lovell of the Board of Parole and an interview request form submitted by plaintiff Felix to a Dr. William. (See filing 76, exs. A B). This evidence fails to demonstrate that the plaintiffs' lack of English proficiency imposed a barrier to them seeking redress through the grievance procedure. Although another inmate apparently assisted plaintiff Felix in preparing the letter and request form, (see plaintiffs' brief at 6), this fact alone does not establish that the grievance vance procedure is unavailable to the plaintiffs. Rather, it is evidence that the plaintiffs' alleged lack of English proficiency does not hinder their access to the grievance procedure. As such, I reject the plaintiffs' third argument.
The plaintiffs' final argument is that requiring them to exhaust their administrative remedies would result in an inefficient use of the court's resources. They also argue that it would delay justice. Plaintiffs may be correct, but Congress has determined that prisoners must exhaust their administrative remedies prior to filing suit regarding their conditions of confinement. See 42 U.S.C. § 1997e(a). In accordance with that congressional directive, I reject the plaintiffs' final argument.
CONCLUSION
For the foregoing reasons, I conclude that this court has subject matter jurisdiction over this action. However, I also find that the plaintiffs have not exhausted their administrative remedies as required under § 1997e(a); as such, this action is dismissed without prejudice, so that the plaintiffs may exhaust their administrative remedies.
IT THEREFORE HEREBY IS ORDERED:
1. The defendants' second motion to dismiss, (filing 74), for lack of subject matter jurisdiction is denied.
2. Plaintiffs' claims are dismissed, without prejudice, for failure to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a). Judgment shall be entered by a separate order.
3. The plaintiffs' "Motion to Request Change of Date Setting in Paragraph 15 of Progression Order", (filing 79), is denied as moot.
JUDGMENT
IT IS ORDERED, in accordance with the Memorandum and Order filed this day, this action is dismissed without prejudice for failure to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a).
NOTICE OF APPEAL
Notice is hereby given that Raul A. Castano, Miguel Martinez, Pedro Sanchez, Pedro Retamoza, Gustavo G. Guzman, Juan Navarette, Hector Blanco, Santiago Felix and Cesar Gonzalez-Linares, individually and on behalf of all Mexican inmates of the Nebraska State Penitentiary, plaintiffs in the above named case, appeal to the United States Court of Appeals for the Eighth Circuit the Judgment entered in this action on the 11th day of June, 1999 under a Memorandum and Order entered on the 11th day of June, 1999, dismissing the plaintiffs' action. A copy of the Judgment and Order are attached as Exhibits A and B, respectfully.
By __________________________ Robert M. Slovek #17798 Jonathan Nash Jr. #20528 Attorneys for plaintiffs Kutak Rock The Omaha Building 1650 Farnam Street Omaha, NE 68102-2186 (402) 346-6000
CERTIFICATE OF SERVICE
This certifies that the undersigned attorney has caused service of Notice of Appeal, Appellant's Form A (Appeal Information Form) and Appellee's Form B (Appeal Information Form) pursuant to Fed.R.Civ.P. 5(b) and (d) by mailing by ordinary first-class mail, postage prepaid, to the last known address of the following attorneys representing parties to this action, on this 9 day of July, 1999:
Melanie Whittamore-Mantzios Assistant Attorney General 2115 State Capitol Building Lincoln, NE 68509 (402) 471-2682 __________________________ Jonathan Nash, Jr. #17798