Steele v. Federal Bureau of Prisons

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 29 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

VICTOR STEELE,

Plaintiff-Appellant,

v. No. 02-1492

FEDERAL BUREAU OF PRISONS;
WARDEN HOLT; CHRISTINE
COOPER; DARYL KOSIAK, and
UNKNOWN BOP PERSONS,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 01-B-2289 (MJW))

Submitted on the briefs *
:

Victor Steele, pro se.

John W. Suthers, United States Attorney, and John M. Hutchins, Assistant United
States Attorney, Denver, Colorado, for Defendants-Appellees.

Before HARTZ , BALDOCK , and McCONNELL , 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
BALDOCK , Circuit Judge.

A provision of the Prison Litigation Reform Act (PLRA) directs that “[n]o

action shall be brought with respect to prison conditions” until a prisoner exhausts

his available administrative remedies. 42 U.S.C. § 1997e(a) (amended by Pub. L.

104-134, Title I, § 101(a), 110 Stat. 1321-71 (1996)). In this case, the district

court dismissed the lost-property claims of plaintiff Victor Steele, a federal

prisoner proceeding pro se and in forma pauperis, for failure to exhaust

administrative remedies. We affirm the judgment of the district court and, in

doing so, resolve several procedural issues relating to PLRA exhaustion.

I.

For disciplinary reasons, Steele was taken from his cell and placed in the

special housing unit at the United States Penitentiary in Florence, Colorado.

Bureau of Prisons (BOP) employees detained the personal items he left in his cell.

Upon his release from the special housing unit, Steele’s belongings were missing.

Steele, who valued his missing property at $247.10, filed an administrative tort

claim alleging the loss of property within a BOP institution as a result of BOP

staff negligence. He did not commence a grievance under the separate

administrative procedure for complaints about prison conditions. See Hylton v.

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Fed. Bureau of Prisons , No. CV 00-5747(RR), 2002 WL 720605, at *2 (E.D.N.Y.

Mar. 11, 2002) (describing difference between grievance processes for

prison-condition complaints and for tort claims). The BOP offered to settle the

administrative tort claim for $9.30, but Steele declined the offer.

Steele then filed this action in district court, using the form for prisoners’

civil-rights complaints provided by the District of Colorado. On the complaint

form, he answered “yes” to a question asking whether he had “exhausted available

administrative remedies.” R., Doc. 4 at 5. He did not “explain the steps taken,”

as directed, but he did attach documents relating to his tort claim for proof of

exhaustion. Id. at 5, 5a-5c.

The complaint, construed liberally, asserted a tort claim under the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80, and a civil-rights

claim brought pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics , 403 U.S. 388 (1971). It named as defendants the BOP and

BOP employees Warden Holt, Christine Cooper (the paralegal specialist who

conveyed the settlement offer to Steele), Daryl Kosiak (the regional counsel who

authorized the settlement offer), and other unknown BOP personnel. Alleging

that defendants abused the tort-claim process and conspired to violate his property

rights, Steele sought compensatory damages or replacement of the missing

property.

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 Defendants moved to dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P.

12(b)(6). They asserted that the court lacked subject matter jurisdiction over the

FTCA claim because the government had not waived its sovereign immunity in

connection with the detention of goods by law enforcement officers. Concerning

the Bivens claim, defendants argued that Steele had failed to exhaust his

administrative remedies, as required by 42 U.S.C. § 1997e(a), and therefore could

not pursue the claim in federal court. In support of their motion, defendants

submitted affidavits and other evidentiary material which confirmed that Steele

had filed an administrative tort claim, but had not pursued administrative

remedies concerning a prison-conditions claim.

In response, Steele did not claim that he had completed the grievance

process applicable to a prison-conditions claim or that he had been prevented

from participating in the process. Instead, he asserted that the grievance

procedure is generally inaccessible to inmates because the mandatory first step

requires cooperation of a staff member. He contended that the court should

consider the exhaustion requirement satisfied due to a combination of factors:

staff’s lack of incentive to process a grievance, administrative time limitations,

and his following of instructions in connection with the administrative tort claim.

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 On referral, the magistrate judge recommended that the dismissal motion be

granted for nonexhaustion, without specifying the applicable provision of the

federal rules of civil procedure. As an additional ground, the magistrate judge

recommended dismissal with prejudice for failure to state a constitutional

violation. After conducting a de novo review of the recommendation, the district

court adopted it and dismissed the entire action with prejudice. Steele filed this

appeal.

II.

The Supreme Court has held that § 1997e(a) makes exhaustion “mandatory”

for all “inmate suits about prison life.” Porter v. Nussle , 534 U.S. 516, 524, 532

(2002); see also Booth v. Churner , 532 U.S. 731, 741 n.6 (2001). The

administrative review by correction officials is intended “to reduce the quantity

and improve the quality of prisoner suits.” Porter , 534 U.S. at 524. It should

correct problems in meritorious cases, “filter out some frivolous claims,” and, in

any event, facilitate adjudication by “clarif[ying] the contours of the controversy.”

Id. at 525 (quotation omitted).

Under the plain statutory language and the Supreme Court case law, the

substantive meaning of § 1997e(a) is clear: “resort to a prison grievance process

must precede resort to a court,” id. at 529. The procedural framework applicable

to § 1997e(a), however, is not so apparent. We take this opportunity to resolve

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procedural and practical aspects of the PLRA which are not directly addressed in

either the statute or Supreme Court case law. 1

A.

At the outset, we consider whether a failure to meet the exhaustion

requirement of § 1997e(a) deprives the federal courts of subject matter

jurisdiction over a prisoner’s claim. Every federal appellate court faced with the

issue has concluded that the § 1997e(a) exhaustion requirement is not a

jurisdictional bar. Wyatt v. Terhune , 315 F.3d 1108, 1117 n.9 (9th Cir. 2003);

Casanova v. Dubois , 289 F.3d 142, 147 (1st Cir. 2002) ( Casanova I ); Ali v.

District of Columbia , 278 F.3d 1 (D.C. Cir. 2002); Chelette v. Harris , 229 F.3d

684, 688 (8th Cir. 2000); Wright v. Hollingsworth , 260 F.3d 357, 358 n.2 (5th Cir.

2001); Massey v. Helman , 196 F.3d 727, 732 (7th Cir. 1999); Nyhuis v. Reno,

204 F.3d 65, 69 n.4 (3d Cir. 2000); Curry v. Scott , 249 F.3d 493, 501 n.2 (6th Cir.

2001); see also Basham v. Uphoff , No. 98-8013, 1998 WL 847689, at *3 (10th

Cir. Dec. 8, 1998) (unpublished).

1
We note the comment of a district court that “the PLRA’s enigmatic
exhaustion requirement, intended to reduce the perceived burdensome flow of
prisoner litigation, has had the perverse effect of generating extensive litigation.
Indeed, the law on the narrow subject of the PLRA’s exhaustion requirements
continues to evolve month by month.” McCoy v. Goord , 255 F. Supp. 2d 233,
240 (S.D.N.Y. 2003) (footnotes, quotations, and brackets omitted).

-6-
 There are numerous reasons for the circuit courts’ unanimity. The most

compelling lies within the structure of the statute itself. Through enactment of

§ 1997e(a), Congress required exhaustion of all available remedies. However,

another PLRA provision, 42 U.S.C. § 1997e(c)(2), gives district courts the power

to dismiss some claims on their merits even when administrative remedies have

not been exhausted. 2
“Without jurisdiction the court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and when it ceases to exist, the

only function remaining to the court is that of announcing the fact and dismissing

the cause.” Steel Co. v. Citizens for Better Env’t , 523 U.S. 83, 94 (1998)

(quotation omitted). “If exhaustion under the PLRA were jurisdictional, [section

1997e(c)(2)] and the power it gives district courts would make no sense.” Nyhuis,

204 F.3d at 70 n.4. “Because the existence of jurisdiction is a prerequisite to the

evaluation and dismissal of a claim on its merits, it follows that that jurisdiction

is not divested by the failure to exhaust administrative remedies.” Chelette ,

229 F.3d at 687.

2
Section 1997e(c) provides:

In the event that a claim is, on its face, frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such relief, the court
may dismiss the underlying claim without first requiring the
exhaustion of administrative remedies.

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 Another reason for determining that § 1997e(a) is not jurisdictional arises

from an application of the Supreme Court’s decision in Weinberger v. Salfi ,

422 U.S. 749 (1975), in which the Court held that 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 be

brought.” Underwood v. Wilson , 151 F.3d 292, 294 (5th Cir. 1998) (quoting

Weinberger , 422 U.S. at 757). Section 1997e(a) “contains neither the sweeping

and direct language of [the statute at issue in Weinberger ] nor that statute’s

explicit bar to district court jurisdiction.” Wright v. Morris , 111 F.3d 414, 421

(6th Cir. 1997).

Agreeing with our sister circuits, we hold that § 1997e(a) simply codifies

the administrative exhaustion doctrine in order to “govern the timing of

federal-court decisionmaking,” McCarthy v. Madigan , 503 U.S. 140, 144 (1992).

The provision “‘does not defeat federal-court jurisdiction, it merely defers it.’”

Thomas v. Woolum, 337 F.3d 720, 730 (6th Cir. 2003) (quoting Patsy v. Bd. of

Regents of Fla. , 457 U.S. 496, 532 (1982) (Powell, J., dissenting)).

As a consequence, a motion under Fed. R. Civ. P. 12(b)(1) is not an

appropriate avenue for questioning an inmate’s exhaustion of administrative

remedies. Rule 12(b)(1) is designed “for challenges to the court’s subject-matter

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jurisdiction.” Davis ex rel. Davis v. United States , 343 F.3d 1282, 1294 (10th

Cir. 2003). It does not apply to issues of exhaustion under PLRA.

B.

The next question concerns the procedural characterization of exhaustion: is

it an essential allegation of a prisoner’s claim or is it a defendant’s affirmative

defense? Because we believe that a prisoner must plead exhaustion in his

complaint, we part company with the many circuits which have held that

exhaustion is an affirmative defense to be raised and proven by a defendant. See

e.g. Wyatt, 315 F.3d at 1117 (collecting cases). 3

Our contrary conclusion is compelled by the Supreme Court’s emphasis on

the mandatory nature of exhaustion, implications of the PLRA statutory scheme,

the structure of the Rules of Civil Procedure and our own precedent. We decline

to characterize exhaustion as an affirmative defense because it cannot be waived.

Under Federal Rule of Civil Procedure 8(c), a “[f]ailure to plead an affirmative

defense results in a waiver of that defense.” Bentley v. Cleveland County Bd. of

3
Cases holding that § 1997e(a) exhaustion is an affirmative defense include
Wyatt , 315 F.3d at 1119; Casanova v. Dubois , 304 F.3d 75, 77 n.3 (1st Cir. 2002)
(Casanova II ); Ray v. Kertes , 285 F.3d 287, 295 (3d Cir. 2002); Foulk v.
Charrier , 262 F.3d 687, 697 (8th Cir. 2001); Jackson v. District of Columbia , 254
F.3d 262, 267 (D.C. Cir. 2001) (by implication); Massey, 196 F.3d at 735; Jenkins
v. Haubert , 179 F.3d 19, 28-29 (2d Cir. 1999). Although we disagree with the
procedural characterization reached by these cases, they provide helpful analyses
of other aspects of exhaustion.

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County Comm’rs , 41 F.3d 600, 604 (10th Cir. 1994). If affirmative defenses are

“not affirmatively pleaded, asserted with a motion under Rule 12(b) or tried by the

express or implied consent of the parties, such defenses are deemed to have been

waived and may not thereafter be considered as triable issues in the case.” Radio

Corp. of Am. v. Radio Station KYFM, Inc ., 424 F.2d 14, 17 (10th Cir. 1970).

In other words, classification of the PLRA’s exhaustion requirement as an

affirmative defense means that defendants may choose to ignore it for their own

strategic reasons. See Perez v. Wis. Dep’t of Corr. , 182 F.3d 532, 536 (7th Cir.

1999) (“Filing suit before exhausting prison remedies . . . is not the sort of defect

that judges must notice even if the defendant is happy to contest the suit on the

merits.”). This court, however, has warned against “trivializ[ing] the Supreme

Court’s holding . . . that exhaustion is now mandatory.” Jernigan v. Stuchell ,

304 F.3d 1030, 1033 (10th Cir. 2002). In fact, we have perhaps implicitly

concluded that PLRA exhaustion is not an affirmative defense in Beaudry v.

Corrections Corp. of America , 331 F.3d 1164, 1168 n.5 (10th Cir. 2003), petition

for cert. filed (U.S. Oct. 18, 2003) (No. 03-7129), by approving a district court’s

resolution of an exhaustion issue raised “on the eve of trial.”

Further, we see no inequity in placing the burden of pleading exhaustion on

the prisoner. “[C]onsiderations of policy [and] fairness” are relevant to classifying

a matter as an affirmative defense. Charles Alan Wright and Arthur R. Miller,

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5 Fed. Prac. & Proc. Civ. 2d § 1271, at 444 (1990). According to those authors,

“‘[f]airness’” is “shorthand” for a “judgment that all or most of the relevant

information on a particular element of a claim is within the control of one party or

that one party has a unique nexus with the issue in question and therefore that

party should bear the burden of affirmatively raising the matter.” Id. at 445.

The prisoner outlines his own grievance in the prison administrative system

and frames his allegations in federal court. Consequently, it is the prisoner who

can best assert the relationship between his administrative grievance and court

filing. A showing of exhaustion does not rely solely on the maintenance of an

efficient filing and retrieval system. In fact, it is more dependent upon insight into

the administrative claim and its relationship with the federal suit. We disagree

with the Third Circuit’s determination in Ray v. Kertes , 285 F.3d 287, 295 (3d Cir.

2002), “that it is considerably easier for a prison administrator to show a failure to

exhaust than it is for a prisoner to demonstrate exhaustion.”

For these reasons, we cannot view § 1997e(a) exhaustion as an affirmative

defense to be specially pleaded or waived. Instead, we conclude that § 1997e(a)

imposes a pleading requirement on the prisoner.

Thus, a complaint “that fails to allege the requisite exhaustion of remedies is

tantamount to one that fails to state a claim upon which relief may be granted.”

Rivera v. Allin , 144 F.3d 719, 731 (11th Cir. 1998). A prisoner must: (1) plead

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his claims with “a short and plain statement . . . showing that [he] is entitled to

relief,” in compliance with Fed. R. Civ. P. 8(a)(2), and (2) “attach[] a copy of the

applicable administrative dispositions to the complaint, or, in the absence of

written documentation, describe with specificity the administrative proceeding and

its outcome,” Knuckles El v. Toombs , 215 F.3d 640, 642 (6th Cir. 2000) (citing

Brown v. Toombs , 139 F.3d 1102, 1104 (6th Cir. 1998)).

These requirements are consistent with both the PLRA’s provisions and

generally applicable Federal Rules of Civil Procedure. Every plaintiff must offer

“‘a short and plain statement of the claim’ that will give the defendant fair notice

of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v.

Gibson , 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)) (footnote

omitted). Every prisoner must comply with the exhaustion requirement of

§ 1997e(a). A comprehensible statement of the prisoner’s claim, coupled with

supporting information on prison grievance proceedings, will best effectuate the

purposes of § 1997e(a) by affording a basis for the district court’s sua sponte

review of a prison-condition complaint. See 28 U.S.C. § 1915(e)(2) (concerning

review of in forma pauperis actions); 28 U.S.C. § 1915A (requiring courts to

screen prisoner complaints “as soon as practicable after docketing,” to determine,

among other things, whether they state claims on which relief may be granted);

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42 U.S.C. § 1997e(c)(1) (requiring courts to dismiss actions which fail to state a

claim, even without a defense motion).

We emphasize that the requirements listed above do not amount to a

judicially-created heightened pleading requirement, in contravention of the

Supreme Court holding in Swierkiewicz v. Sorema N.A. , 534 U.S. 506 (2002). In

that case, the Court held that a plaintiff’s employment discrimination complaint

need not contain specific facts establishing a prima facie case of discrimination

under the framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 802 (1973). Swierkiewicz , at 515. The Court explained that “Rule 8(a)’s

simplified pleading standard applies to all civil actions, with limited exceptions,”

such as the express Rule 9(b) requirement of “particularity in all averments of

fraud or mistake.” Id. at 513. “A requirement of greater specificity for particular

claims is a result that ‘must be obtained by the process of amending the Federal

Rules, and not by judicial interpretation.’” Id. at 515 (quoting Leatherman v.

Tarrant County Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 168

(1993)).

Here, however, the need to plead exhaustion with specificity “does not take

its authority from the Federal Rules of Civil Procedure, but from the Prison

Litigation Reform Act.” Baxter v. Rose , 305 F.3d 486, 490 (6th Cir. 2002). We

agree with the Sixth Circuit that

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 [t]he PLRA established an unique procedure under which the court,
not the parties, is required to evaluate whether a claim on which relief
may be granted is stated. Unlike in typical civil litigation, courts
discharging their screening duties under the PLRA must not wait until
the complementary rules of civil procedure, such as civil discovery or
responsive motions, are implemented by the defendant. While the
Federal Rules of Civil Procedure shift the burden of obtaining clarity
to the defendant, the PLRA shifts that burden to the courts.

Id. Requiring prisoners to provide courts with information on prison grievance

proceedings “effectuates the PLRA’s screening requirement. Courts would be

unable to screen cases effectively if plaintiffs were able, through ambiguous

pleading, to avoid dismissal of claims on which relief could not be granted.” Id.

In short, Congress, not this court, has required a prisoner to plead specific

exhaustion information.

The pleading requirement we announce today will not result in a major

change in the practice of district courts in this Circuit. We take judicial notice of

the forms supplied by the district courts for prisoner civil-rights complaints. See

Fed. R. Evid. 201(f) (“Judicial notice may be taken at any stage of the

proceeding”). Each of the forms asks for the prisoner to provide a clear statement

of the important facts supporting his claim and to explain his attempts to exhaust

available administrative remedies. Several forms instruct the prisoner to attach

proof of exhaustion; others ask the prisoner to describe the steps taken. Thus, the

district courts have routinely expected prisoners to provide a short and plain

statement of their claims, as well as specific information on exhaustion.

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 We simply underscore the mandate of § 1997e(a). “In the absence of

particularized averments concerning exhaustion showing the nature of the

administrative proceeding and its outcome, the action must be dismissed under

§ 1997e.” Knuckles El , 215 F.3d at 642. To ensure compliance with the statute, a

prisoner must provide a comprehensible statement of his claim and also either

attach copies of administrative proceedings or describe their disposition with

specificity. These requirements facilitate the district court’s sua sponte review on

the exhaustion issue.

There will be cases, however, in which the correct resolution of an

exhaustion issue will not become apparent during the district court’s screening

process. For instance, a prisoner may allege exhaustion and either attach

ambiguous documents arising from the grievance process or submit a misleading

declaration. If the case is not otherwise subject to dismissal on its face as

“frivolous, malicious” or because it “fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such

relief,” the case should go forward. 42 U.S.C. § 1997e(c). But § 1997e(a) “gives

prisons and their officials a valuable entitlement–the right not to face a decision

on the merits.” Perez , 182 F.3d at 536. Defendants with a colorable argument

based on lack of exhaustion, therefore, may raise it in a dispositive motion, to be

addressed promptly by the court. See id.

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 The proper procedural mechanism for such a dispositive motion will vary

with the circumstances of the case. In many instances, a motion to dismiss under

Fed. R. Civ. P. 12(b)(6) will be appropriate. As we have stated, the final

administrative decision is central to a prisoner’s claim, so that the prisoner is

required to plead exhaustion and provide evidence of exhaustion. If he does not,

he has failed to state a claim and the complaint is vulnerable to dismissal.

In deciding a Rule 12(b)(6) motion based on exhaustion, the court may

consider the attached administrative materials. See Oxendine v. Kaplan, 241 F.3d

1272, 1275 (10th Cir. 2001) (holding that court may look both to complaint itself

and to any documents attached as exhibits to complaint). And if the prisoner

“does not incorporate by reference or attach” the administrative decision, “a

defendant may submit an indisputably authentic copy to the court to be considered

on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc .,

130 F.3d 1381, 1384 (10th Cir. 1997). “If the rule were otherwise, a plaintiff with

a deficient claim could survive a motion to dismiss simply by not attaching a

dispositive document upon which the plaintiff relied.” Id. at 1385. Accordingly,

the court may determine from the complaint, as supplemented by administrative

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documents or a declaration, that a prisoner has failed to exhaust his prison

remedies and may dismiss the action pursuant to Rule 12(b)(6). 4

In other cases, however, a factual dispute may preclude dismissal under

Rule 12(b)(6). Exhaustion may not be clear from the prisoner’s complaint,

supporting materials, and the legal argument. A motion for summary judgment

limited to the narrow issue of exhaustion and the prisoner’s efforts to exhaust

would then be appropriate. See McCoy v. Goord , 225 F. Supp. 2d 233, 251

(S.D.N.Y. 2003). If the defendant files a motion to dismiss requiring

consideration of additional factual material, the court should convert the motion to

one for summary judgment and ensure that the prisoner is given proper notification

of the conversion. See Whitesel v. Sengenberger , 222 F.3d 861, 866 (10th Cir.

2000).

C.

Another procedural matter concerns whether dismissal for lack of

exhaustion should be made with or without prejudice. Though a dismissal under

Rule 12(b)(6) for failure to state a claim is generally with prejudice, see Sheldon v.

Vermonty, 269 F.3d 1202, 1207 (10th Cir. 2001), there are exceptions to the rule.

4
Normally, the defendant should raise the exhaustion issue as early as
possible in the litigation. If, however, the defendant submits a motion to dismiss
after filing an answer, the motion should be treated as a motion for judgment on
the pleadings. Lowe v. Town of Fairland , 143 F.3d 1378, 1381 n.5 (10th Cir.
1998); see also Fed. R. Civ. P. 12(c), (h)(2).

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See Fottler v. U.S ., 73 F.3d 1064, 1065 (10th Cir. 1996). For example, when a

§ 1983 claim is dismissed under Heck v. Humphrey , 512 U.S. 477, 486-87 (1994),

for failure to invalidate a conviction before bringing the civil-rights action, the

dismissal should be without prejudice. If the plaintiff is later successful in

overturning his conviction, he is allowed to bring his § 1983 action at that time.

Id. As we have stated, “[p]articularly where deficiencies in a complaint are

attributable to oversights likely the result of an untutored pro se litigant’s

ignorance of special pleading requirements, dismissal of the complaint without

prejudice is preferable.” Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir.

1990).

Similarly,

[f]ailure to exhaust administrative remedies is often a temporary,
curable, procedural flaw. If the time permitted for pursuing
administrative remedies has not expired, a prisoner who brings suit
without having exhausted these remedies can cure the defect simply
by exhausting them and then reinstituting his suit (in the event the
administrative claim fails to afford him the desired relief).

Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999). A dismissal based on

lack of exhaustion, therefore, should ordinarily be without prejudice.

Nevertheless, the dismissal may constitute a strike for purposes of 28 U.S.C.

§ 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775,

778-81 (10th Cir. 1999) (describing rules applicable to § 1915(g)).

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 III.

We now apply the substantive law and our procedural determinations to

Steele’s appeal. He argues that the district court erred in: (1) failing to conclude

that the government waived its sovereign immunity with regard to his tort claim;

(2) determining that he had not exhausted his administrative remedies for his

Bivens claim; (3) dismissing his case with prejudice; and (4) dismissing his case

without a hearing, because he had the right to confront the witness against him. 5

This court reviews de novo the district court’s rulings on sovereign immunity and

the applicability of an FTCA exception, Tippett v. United States , 108 F.3d 1194,

1196-97 (10th Cir. 1997); a prisoner’s failure to exhaust under § 1997e(a),

Jernigan , 304 F.3d at 1032; and the legal sufficiency of plaintiff’s Bivens claim,

Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

5
In his principal brief, Steele argues that the PLRA exhaustion of remedies
requirement is unconstitutional and, in his reply brief, adds a theory that the
PLRA three-strikes provision is also unconstitutional. “[A]bsent extraordinary
circumstances, we will not consider arguments raised for the first time on appeal.
This is true whether an appellant is attempting to raise a bald-faced new issue or a
new theory on appeal that falls under the same general category as an argument
presented at trial.” McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th
Cir. 2002) (citations and quotations omitted). We note, however, that the
Supreme Court has twice interpreted and enforced the rule of 42 U.S.C.
§ 1997e(a) that prisoners must exhaust administrative remedies before filing in
federal court. See Porter, 534 U.S. at 524-25; Booth , 532 U.S. at 739-41 & n.5-6.
Further, this court has explicitly rejected a prisoner’s equal protection and due
process challenges to § 1915(g), founded upon a First Amendment claim of right
of access to the courts. White v. Colorado , 157 F.3d 1226, 1232 (10th Cir. 1998).

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 With direct relevance to Steele’s tort claim, 28 U.S.C. § 2680(c) provides

that the FTCA does not apply to a “claim arising in respect of . . . the detention of

any goods, merchandise, or other property by any . . . law enforcement officer.”

Steele’s claim arose from the detention of his goods by prison employees, who are

law enforcement officers. See Hatten v. White , 275 F.3d 1208, 1210 (10th Cir.

2002) (applying § 2680(c) to bar claim against prison officials for mishandling

property). Accordingly, the government has not waived its sovereign immunity

and the district court lacked subject matter jurisdiction to consider the claim.

Contrary to Steele’s contentions, neither the BOP’s suggestion that he take his tort

claim to district court if he decided to refuse the settlement offer nor the district

court’s acceptance of his action for filing amounts to a waiver of sovereign

immunity. The district court properly dismissed the tort claim with prejudice.

Concerning the Bivens claim, Steele admitted in the district court that he did

not exhaust the grievance procedure as related to this claim and he did not contend

that prison staff foreclosed his own attempt to file a grievance. The Supreme

Court has refused to “‘read futility or other exceptions into’” the § 1997e(a)

exhaustion requirement. Yousef v. Reno , 254 F.3d 1214, 1221 (10th Cir. 2001)

(quoting Booth , 532 U.S. at 741 n.6). The exhaustion mandate applies even if a

prisoner “understood that the claims put forth in [his] complaint were

‘non-grievable’ under prison policy,” Beaudry , 331 F.3d at 1166, or if he felt that

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a prison official’s statement “frustrated his ability to proceed with administrative

remedies,” Yousef , 254 F.3d at 1221-22. The district court properly rejected

Steele’s arguments concerning confusion and timing difficulties arising from the

BOP’s separate tracks for tort and civil-rights claims. The Bivens claim was ripe

for dismissal under Rule 12(b)(6).

Moreover, under the circumstances of this case, the court was correct in

dismissing the Bivens claim with prejudice, rather than without prejudice. First, a

Bivens claim cannot be brought against the BOP, as a federal agency, or the other

defendants in their official capacities. Farmer v. Perrill , 275 F.3d 958, 963 (10th

Cir. 2001). Second, the complaint’s allegations concerning the individual

defendants do not come close to the necessary direct, personal participation

required to establish Bivens liability. See Kite v. Kelley , 546 F.2d 334, 338 (10th

Cir. 1976). Third, factual allegations of merely negligent conduct on the part of

defendants do not amount to a constitutional claim. See Daniels v. Williams ,

474 U.S. 327, 328-31 (1986). Steele’s conclusory allegations concerning a

conspiracy to deprive him of his property are insufficient to state a claim of

constitutional dimensions. The district court was correct in reaching the merits of

the case and in deciding to dismiss it with prejudice. We agree with the district

court that Mr. Steele cannot frame a valid Bivens claim.

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 Finally, we conclude that the district court’s decision to dismiss the action

without holding a hearing was well within its discretion, particularly since only

questions of law were before the court. We note that there is no right to an oral

hearing under Rule 12(b)(6). Greene v. WCI Holdings Corp ., 136 F.3d 313,

315-316 (2d Cir. 1998). Whether to grant such a hearing is left to the discretion of

the district court judge. Id. at 316; cf. Geear v. Boulder Cmty. Hosp. , 844 F.2d

764, 766 (10th Cir. 1988) (holding that hearing requirement for summary judgment

motions is satisfied by court’s review of documents submitted by parties).

For the foregoing reasons, we AFFIRM the district court’s dismissal

of Steele’s claims. We have reviewed the submissions captioned “Presentation of

Evidence,” “Presentation and Clarification,” “Memorandum,” and “Belated

Presentation of Evidence.” We decline to accept these filings as supplements to

Steele’s appellate briefs. See Fed. R. App. P. 28 (providing for appellant’s

submission of a brief and reply brief). Plaintiff is reminded that he must continue

making partial payments on court fees and costs previously assessed until they

have been paid in full. The dismissal counts as a strike for purposes of the PLRA,

28 U.S.C. § 1915(g). The mandate shall issue forthwith.

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02-1492 - Steele v. Federal Bureau of Prisons

HARTZ, Circuit Judge, concurring:

I join Judge Baldock’s opinion, but add a note regarding why I agree with

our dismissal with prejudice of the claims for which the district court lacked

subject-matter jurisdiction (the FTCA claim and the Bivens claims against the

Bureau of Prisons and against the individual defendants in their official

capacities).

There is substantial authority that a dismissal for lack of jurisdiction must

be without prejudice. See, e.g., Textile Productions, Inc. v. Mead Corp., 134 F.3d

1481, 1486 (Fed. Cir. 1998); Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 769

(11th Cir. 1984). The reason for this practice apparently has been the belief that a

dismissal with prejudice has claim-preclusive effects that cannot be afforded a

decision by a court without jurisdiction. See 9 Wright & Miller, Federal Practice

and Procedure § 2373, at 396-98 (2d ed. 1995). See generally Stephen B.

Burbank, Semtek, Forum Shopping, and Federal Common Law, 77 Notre Dame L.

Rev. 1027, 1042-46 (2002) (discussing history of Fed. R. Civ. P. 41). (That is not

to say, however, that a dismissal without prejudice has no preclusive effects.

Under the doctrine of direct estoppel (a species of issue preclusion), a dismissal

without prejudice for, say, lack of subject-matter jurisdiction, would still preclude

relitigation of the issue of subject-matter jurisdiction in the absence of newly
arising facts or law. See 18 Wright, Miller & Cooper § 4418, at 467-69 (2002);

Restatement (Second) of Judgments § 12 cmt. c (1982).)

A recent Supreme Court decision, however, has undermined this view. In

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001), the Court

wrote: “The primary meaning of ‘dismissal without prejudice,’ we think, is

dismissal without barring the plaintiff from returning later, to the same court, with

the same underlying claim.” I would infer that when a court rules that a dismissal

is “with prejudice,” it is saying only that the claim cannot be refiled in that court.

See id. at 506; Burbank, supra, at 1042. Whether a dismissal with prejudice has

preclusive effects in other courts will depend on additional matters, such as

whether the dismissing court passed on the substance of the claim. See Semtek at

501-03; Restatement, supra, § 20 cmt. d (court’s denominating a dismissal as

“with prejudice” ordinarily has no effect on preclusive effect of the dismissal).

Thus, by saying that this dismissal is with prejudice, we mean only that

these claims cannot be filed again by Mr. Steele in federal court. We are not

asserting any claim-preclusive effects of our decision in other jurisdictions. There

may be such effects, but they would not derive from our use of the words “with

prejudice.” For example, we may sometimes dismiss with prejudice for lack of

subject-matter jurisdiction when state law may recognize a cause of action. Our

dismissal with prejudice in such a case might not preclude the plaintiff from

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proceeding in state court, even though “[s]tate courts are bound to apply federal

rules in determining the preclusive effect of federal-court decisions on issues of

federal law,” Heck v. Humphrey, 512 U.S. 477, 488 n.9 (1994).

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