Opinion
No. 4:01-CV-504-Y
January 25, 2002
ORDER OF DISMISSAL
Plaintiff Santos Hernandez-Salazar, a federal inmate presently incarcerated at the Eden Detention Center in Eden, Texas has filed suit against the Federal Medical Center-Fort Worth, and nineteen employees and officials at FMC-Fort Worth and the Department of Justice, individually. 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 second amended complaint, Hernandez-Salazar complains of delay and denial of medical care while he was housed at FMC-Fort Worth. (Sec. Amend. Compl. § V; attachment pages 4a-4c.) Hernandez-Salazar seeks compensatory and punitive damages, and he seeks both declaratory and injunctive relief. (Compl. at ¶ VI-Relief.)
Plaintiff initially filed suit against 66 defendants in the Northern District of Texas, San Angelo division, in cause number 6:01-CV-021-c. This case was ordered severed out of that action and transferred to the docket of this the Fort Worth division by order entered on June 15, 2001. Plaintiff has since filed a second amended complaint clarifying his claims against the defendants, and Plaintiff has now added as defendants both Attorney General, John Ashcroft and former Attorney General Janet Reno.
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 he also challenges the defendants' actions in an official capacity. Although the plaintiff has not expressly asserted his claims under Bivens or under the Federal Tort Clams Act (FTCA), it appears that he is pursuing relief under either or both, so 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, the 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
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 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
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 Rourke v. Thompson, 11 F.3d 47, 50 (5th Cir. 1993) (federal prisoner who initiates a Bivens action seeking only injunctive relief must first exhaust the inmate grievance procedure); 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).
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). levels.
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, Hernandez-Salazar answered "Yes," and he provided evidence that he sought administrative review of some of his claims in copies of documents attached to his original complaint. (Orig. Compl. attached pages 1-6.) Hernandez-Salazar has not, however, shown that he resolved all levels of the administrative-review process as to such claims, and he has not shown evidence of any effort to exhaust the allegations made the basis of this suit against each of the twenty-two defendants listed in the second amended complaint.
In this case, Hernandez-Salazar expressly seeks declaratory and injunctive relief and monetary damages. Even if he sought only money damages, the fact that the Bureau of Prisons may not have afforded him monetary damages 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 Plaintiff's refiling after he has exhausted 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).