Opinion
CIVIL ACTION NO. 4:01-CV-621-Y
March 28, 2002
ORDER OF DISMISSAL
Plaintiff Phillip Lang, a federal inmate presently incarcerated at FMC-Fort Worth, has filed suit against FMC-Fort Worth, Lieutenant Kelly, Lieutenant Quisenberry, an unnamed FBI agent, and an unnamed Secret Service agent. (Compl. at 1.) Plaintiff is a prisoner, his complaint is subject to review under U.S.C. § 1915A. In his complaint, Lang complains that while he was administratively segregated at FMC-Fort Worth, he was not regularly seen by anyone, including medical personnel, and as a result developed "gangreen [sic] and subsequently amputation was done." (Compl. at 3.) He also complains that he has not been allowed to have telephone contact, visits of any kind, free access to his trust account, and has not been allowed to transfer to a Bureau of Prisons facility closer to home. (Compl. at 3.) Lang seeks both monetary damages and injunctive relief. (Compl. at 3.)
This Court ordered Lang to file an amended complaint by no later than March 1, 2002. Although Lang responded to some of the questions in this Court's order, he expressly declined to file an amended complaint. (Feb. 22, 2002 Resp. to Court Order.) Thus, although the case is ripe for dismissal on the basis of lack of prosecution, the court will also address Lang's obligation to exhaust administrative remedies.
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 the possibility of a monetary award, 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.
More recently, the Supreme Court has clarified that the 1997e(a) exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."
Porter v. Nussle, No. 00-853, 2002 WL 261683, at 10 (U.S. Feb. 26, 2002).
Plaintiff Lang has sued both FMC-Fort Worth and individual defendants. Although Lang has expressly asserted his claims under Bivens, even if he also intends to assert claims under the Federal Tort Clams Act (FTCA), he must first exhaust administrative remedies on all of these 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); if dissatisfied, he must next 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 levels.
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 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).
See 28 U.S.C. § 2671, et seq. (West 1994).
See Porter, 2002 WL 261683, at 6 ("federal prisoners suing under Bivens must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit); 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).
Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir. 1994), cert denied, 516 U.S. 835 (1995).
In response to this Court's order, Lang contends that he followed the steps through the regional office, but he does not claim that he sought review to the national office, and he does not expressly show that he exhausted his claims as to each particular defendant. (Feb. 22, 2002 Resp. to Court's Order.) Thus, Plaintiff's claims must be dismissed without prejudice pending exhaustion of any administrative remedies.
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).