F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE EDWIN FLORENCE,
Plaintiff-Appellant,
v. No. 98-3153
(D.C. No. 97-CV-3480)
J.W. BOOKER, JR., Warden, USP- (D. Kan.)
Leavenworth; SARA MCKEE, Mail
Room Supervisor, USP-Leavenworth,
both individually and in their official
capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
George Edwin Florence appeals the district court’s dismissal of his Bivens
claim for failure to exhaust administrative remedies. We affirm in part, reverse in
part, and remand for further proceedings.
Florence, a federal inmate, brought this action alleging officials at the
facility violated his constitutional rights by opening legal mail outside his
presence. Both facility policy and 28 C.F.R. § 540.18 direct that such “Special
mail,” if properly designated, be opened only in the presence of the inmate. The
district court dismissed the action on the ground that Florence had not complied
with The Prison Litigation Reform Act, 42 U.S.C. § 1997e, 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.” It is not disputed that Florence, who seeks both injunctive relief and
monetary damages, did not seek administrative relief before filing his complaint.
On appeal, Florence contends the district court erred in ignoring Garrett v.
Hawk , 127 F.3d 1263 (10th Cir. 1997). He is correct in part. In Garrett , this
court held a plaintiff bringing a Bivens claim against prison officials for monetary
damages was not required to exhaust administrative remedies because no such
remedies were available via the prison grievance system. See id. at 1266-67. The
court did not adopt the broader proposition urged by Florence that all Bivens
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claims are excluded from the exhaustion requirement of § 1997e. Instead, the
court’s limited opinion turned on the fact that while Congress intended § 1997e to
encompass Bivens claims for monetary damages, it had “to date failed to provide
any administrative remedies that must or even could be exhausted before a Bivens
suit may be brought by prisoners against prison officials.” Id. at 1267.
Here, the district court did not distinguish between Florence’s monetary
and injunctive claims. It is apparent from Garrett , however, that the court erred
in dismissing Florence’s Bivens claim for monetary damages as there are
currently no available administrative remedies to be exhausted. In contrast,
appropriate administrative remedies are available to Florence with respect to his
claim for injunctive relief. See 28 C.F.R. § 542; see also Russo v. Palmer , 990 F.
Supp. 1047, 1050 (N.D. Ill. 1998). As such, that claim was properly dismissed
pursuant to § 1997e for failure to exhaust administrative remedies.
We REVERSE the district court’s dismissal of Florence’s Bivens claim for
monetary damages, AFFIRM the dismissal of Florence’s claim for injunctive
relief, and remand for further proceedings. Florence’s motion for a temporary
restraining order filed September 15, 1998, is DENIED as moot.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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Florence v. Booker
Combined Opinion