F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 1, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RON SIMMAT,
Plaintiff-Appellant,
v. No. 03-3361
UNITED STATES BUREAU OF
PRISONS; G.F. JACKSON, Dentist,
U.S. Bureau of Prisons; and REID
ELDEN STEMPEL, Dentist, U.S.
Bureau of Prisons,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(NO. 02-CV-3410-JWL)
Ron Simmat filed briefs pro se.
Janet Koven Levit, Associate Professor, University of Tulsa College of Law,
Tulsa, Oklahoma, for Plaintiff-Appellant.
Emily B. Metzger, Assistant United States Attorney, (Eric F. Melgren, United
States Attorney, with her on the briefs) Wichita, Kansas, for Defendants-
Appellees.
Before KELLY, HARTZ, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
At least since Estelle v. Gamble, 429 U.S. 97, 104–06 (1976), federal courts
have recognized the right of prisoners to relief if prison officials deny them basic
medical care, in violation of the Eighth Amendment. In the case of state
prisoners, the vehicle for such suits is 42 U.S.C. § 1983, with its jurisdictional
predicate, 28 U.S.C. § 1343. See Simmat; Hunt v. Uphoff, 199 F.3d 1220 (10th
Cir. 1999). In the case of federal prisoners, surprisingly, the vehicle is not so
clear. In Farmer v. Brennan, 511 U.S. 825, 846 (1994), the Supreme Court stated
only that the courts could “grant appropriate relief” on a federal prisoner’s Eighth
Amendment claim for damages and injunctive relief against prison officials in
their individual and official capacities. Some courts have treated such actions as
Bivens actions, even when the inmate seeks injunctive relief against officials in
their official capacities. See Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). 1 Others have assumed that there exists
1
See Boyce v. Ashcroft, 251 F.3d 911 (10th Cir. 2001) (affirming dismissal
of a federal prisoner’s habeas petition seeking transfer, noting that constitutional
challenges to conditions not affecting the fact or duration of confinement, “e.g.
conditions of confinement, must proceed under Section 1983 or Bivens”), vacated
as moot, 268 F.3d 953 (10th Cir. 2001); id. at 918 n.4 (“Petitioner indeed has
filed a Bivens action, seeking an injunction which directs the BOP to transfer him
to FCI Sheridan.”); see also Smith v. Fed. BOP, 300 F.3d 721 (6th Cir. 2002) (per
curiam) (considering jurisdiction over a federal prisoner’s suit to enforce a
(continued...)
2
a non-statutory basis for injunctive action, perhaps coupled with declaratory relief
under the Declaratory Judgment Act, or civil actions in the nature of mandamus. 2
In the latter cases, the question arises whether the actions are barred by sovereign
immunity. Very often the nature of the claim and the basis for rejecting sovereign
immunity are not addressed. 3 We believe clarification would be useful.
This case involves an action against prison dentists in their official capacity
for injunctive relief. The defendants, the prison dentists and the United States
Bureau of Prisons (“BOP”), assert that the action is barred by sovereign
immunity. We hold that jurisdiction exists under 28 U.S.C. §§ 1331 or 1361, that
1
(...continued)
settlement agreement to be proper under § 1331, the settlement agreement itself,
and “pursuant to the doctrine announced in Bivens”); Kane v. Winn, 319 F. Supp.
2d 162, 213 (D. Mass. 2003) (“One can also seek injunctive relief via a
Bivens action.”) (citing Farmer v. Brennan, 511 U.S. at 851).
2
See Rourke v. Thompson, 11 F.3d 47 (5th Cir. 1993) (construing a federal
prisoner’s habeas petition based on denial of medical care and arbitrary
disciplinary sanctions as “a complaint requesting injunctive relief from violation
of his federal constitutional rights”) (citing Bell v. Hood, 327 U.S. 678, 684
(1946), and Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 395–97 (1971), in support of a non-statutory cause of
action); Bono v. Saxbe, 450 F. Supp. 934 (E.D. Ill. 1978) (predicating jurisdiction
on § 1331 and granting injunctive relief in a federal prisoner class action raising
Eighth Amendment and due process claims).
3
See, e.g., Thornburg v. Abbott, 490 U.S. 401 (1989) (prisoners’ class
action for injunctive relief mounting facial and as-applied First Amendment
challenges to a BOP policy governing “outside” publications); Kimberlin v.
United States Dept. of Justice, 318 F.3d 228 (D.C. Cir. 2003) (per curiam)
(rejecting federal prisoners’ First Amendment challenge to a BOP regulation
prohibiting electric instruments).
3
the case is properly denominated an action for relief in the nature of mandamus,
authorized under 28 U.S.C. § 1361, and that sovereign immunity is not a bar. We
also hold, however, that plaintiff’s suit against the prison dentists must be
dismissed without prejudice for failure to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. §
1997e(a), and that his claims against the Bureau of Prisons are not properly
before us.
I. Background and Facts
Plaintiff-Appellant Ron Simmat was convicted of second degree murder
and sentenced by the State of Connecticut to life imprisonment in 1962. Since
January 21, 1995, he has been incarcerated in the United States Penitentiary at
Leavenworth, Kansas (“USP Leavenworth”). The precise facts and circumstances
bearing on Mr. Simmat’s problems are not clear on this record, but because Mr.
Simmat appeals a grant of summary judgment for the defendants, we will recount
the facts in the light most favorable to his case. See Simms v. Oklahoma ex rel.
Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999).
Mr. Simmat suffers from a variety of dental problems, including gum
disease, several cavities, and a root that protrudes from his gums. In August
1999, he submitted a request to BOP staff to be placed on the treatment list to see
4
the dentist about a cavity. Dr. Jackson informed him that he had been placed on
the list. In November 1999, before getting treatment, Mr. Simmat asked to be
placed on the treatment list for a second cavity. Dr. Jackson again informed him
that he had been placed on the list. In February 2000, still having received no
treatment, Mr. Simmat submitted a third request for an appointment, indicating
that he had been waiting since August 1999 and that two of his teeth needed to be
treated. Dr. Jackson told him that he was on the treatment list and would be
called soon. On April 9, 2000, Mr. Simmat submitted an Inmate Request to Staff
form to Dr. Jackson and the Health Services administrator stating that “one of my
problem teeth now gives me constant pain, which gets really bad when I lay
down.” This request concerned a third tooth—number thirty, his “lone chewing
molar.” Appellant’s Supp. Br. 9.
Dr. Jackson examined Mr. Simmat’s painful molar on April 13, 2000. He
ordered an x-ray, diagnosed periodontal involvement, and noted that the tooth
might need to be extracted. He put a “temporary restorative agent” on the tooth
and prescribed antibiotics and pain medication. Mr. Simmat alleges that when he
asked about a permanent filling, Dr. Jackson told him that he had been
“discouraged and reprimanded for providing permanent fillings.”
After he treated tooth number thirty, Dr. Jackson removed Mr. Simmat’s
name from the treatment list. Mr. Simmat saw Dr. Jackson for a follow-up x-ray
5
of tooth number thirty on August 30, 2000. Dr. Jackson did not treat any other
teeth at that time, and he asked Mr. Simmat to return for follow-up treatment in
two months. Mr. Simmat did not return for follow-up treatment, and he has not
seen Dr. Jackson for dental care at any time after August 30, 2000.
Mr. Simmat filed his pro se complaint on December 9, 2002, 4 alleging that
prison officials denied him adequate dental care in violation of the Eighth
Amendment. Complaint, R. Doc. 1 at 5. The complaint named as defendants Dr.
Jackson and Dr. Stempel, in their official capacities, as well as the BOP. 5 Mr.
Simmat alleged that the defendants’ refusal to provide proper dental care had
caused significant deterioration of his oral health, including multiple infected
teeth and, at molar number thirty, an “entire root, right out to its tip, sticking out
of [his] gum.” Id. Mr. Simmat sought “an order directed to both defendants, or
to their successors in office . . . specifying that all of plaintiff’s dental
deficiencies be made good, whether or not procedures required to accomplish that
are within currently approved dental procedures within the BOP for its prisoners.”
4
Mr. Simmat filed the complaint on behalf of himself and a co-plaintiff,
James Maass. The district court dismissed Mr. Maass’s claim as moot after he
was transferred to a state correctional facility in Wisconsin.
5
The complaint does not name the BOP separately; rather, it names “The
United States Bureau of Prisons, in the persons of” Dr. Jackson and Dr. Stempel.
R. Doc. 1. Given our obligation to construe pro se pleadings liberally, see, e.g.,
McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001), and because Mr. Simmat
alleges constitutional violations by the BOP as well as the individual defendants,
we conclude that Mr. Simmat has adequately named the BOP as a defendant.
6
Id. at 5–6. He did not seek damages.
The defendants moved to dismiss the complaint on the ground that
sovereign immunity deprived the court of subject matter jurisdiction. In the
alternative, the defendants moved for summary judgment on the ground that Mr.
Simmat failed to raise a genuine issue of fact on his Eighth Amendment claim. 6
The district court held that sovereign immunity did not deprive it of
jurisdiction because Mr. Simmat sought only injunctive relief from alleged
constitutional violations by federal officials. Nevertheless, the district court held
that Mr. Simmat failed to raise a genuine issue of fact regarding deliberate
indifference to a serious medical condition, the applicable standard for relief
under the Eighth Amendment. See Perkins v. Kan. Dept. of Corrections, 165 F.3d
803, 811 (10th Cir. 1999). Mr. Simmat appealed.
On September 3, 2004, this Court appointed counsel for Mr. Simmat and
ordered supplemental briefing addressing whether the court had jurisdiction over
claims for injunctive relief against prison officials in their official capacities or
6
The defendants also moved to dismiss for improper service of process,
lack of jurisdiction under the Federal Tort Claims Act, and failure to state a claim
for mandamus or injunctive relief. The court did not address the motion to dismiss
for improper service of process because it was conditioned on construction of Mr.
Simmat’s claims as individual-capacity claims, and Mr. Simmat had asserted only
official-capacity claims. The court held that the FTCA did not apply to Mr.
Simmat’s claim for injunctive relief, and it held that he alleged facts sufficient to
state a violation of the Eighth Amendment for purposes of a motion to dismiss
under Rule 12(b)(6). The defendants do not raise these arguments on appeal.
7
for injunctive relief against the BOP.
II. Mr. Simmat’s Claims Against the Prison Dentists
We turn first to Mr. Simmat’s action against the prison dentists, in their
official capacities. Until relatively recently, a suit like Mr. Simmat’s would have
faced serious obstacles deriving from the related doctrines of subject matter
jurisdiction and sovereign immunity. The legacy of those restrictions may well
account for the confusion courts still seem to experience regarding the legal forms
such litigation may take. As will be seen, however, Congress has expanded the
jurisdiction of federal district courts and narrowed the scope of sovereign
immunity, making suits for injunctive relief against federal officers for
constitutional derelictions far more straightforward than they used to be.
A. Jurisdictional Basis for Action Against Prison Officials
Mr. Simmat argues that his claims against the dentists are within the district
court’s federal question jurisdiction because they arise under the Constitution of
the United States. See 28 U.S.C. § 1331. In Bell v. Hood, the Supreme Court
explained that “where the complaint . . . is so drawn as to seek recovery directly
under the Constitution or laws of the United States, the federal court, but for two
possible exceptions . . . must entertain the suit.” 327 U.S. 678, 681–82 (1946).
The two “possible exceptions” are claims that “clearly appear[] to be immaterial
and made solely for the purpose of obtaining jurisdiction” and claims that are
8
“wholly insubstantial and frivolous.” Id. at 682–83
Mr. Simmat’s claim easily meets the basic requirements of federal question
jurisdiction. Mr. Simmat alleges that the defendants deprived him of adequate
medical care by deliberate indifference to his serious dental needs. This claim
arises directly under the Constitution. The Eighth Amendment prohibits the
government from incarcerating prisoners without providing adequate medical
care. See Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). “Prison
officials violate the Eighth Amendment when they are deliberately indifferent to
the serious medical needs of prisoners in their custody.” Perkins, 165 F.3d at 811
(citing Estelle v. Gamble, 429 U.S. 97, 104–06 (1976)). Mr. Simmat’s claim is
neither “immaterial” nor “frivolous.” It thus gives rise to general federal question
jurisdiction under 28 U.S.C. § 1331. But jurisdiction is not enough. To bring
suit, a plaintiff must also state a claim upon which relief may be granted, what
used to be called stating a cause of action. See, e.g., Lake Country Estates, Inc. v.
Tahoe Regional Planning Agency, 440 U.S. 391, 398 (1979) (distinguishing “the
cause-of-action argument,” which is directed at “the existence of a remedy,” from
jurisdictional questions).
B. Bivens
Some courts have characterized constitutional claims to enjoin federal
officials as Bivens claims. See note 1, above. Bivens was a landmark decision
9
holding that plaintiffs may sue federal officials in their individual capacities for
damages for Fourth Amendment violations, even in the absence of an express
statutory cause of action analogous to 42 U.S.C. § 1983. Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395–97 (1971);
see also Carlson v. Green, 446 U.S. 14, 18 (1980) (recognizing a parallel cause of
action for Eighth Amendment violations). The defendants are correct, however,
that a Bivens claim lies against the federal official in his individual capacity—not,
as here, against officials in their official capacity. As this Court has explained, an
official-capacity claim
contradicts the very nature of a Bivens action. There is no such
animal as a Bivens suit against a public official tortfeasor in his or
her official capacity. Instead, any action that charges such an official
with wrongdoing while operating in his or her official capacity as a
United States agent operates as a claim against the United States.
Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). Moreover, as we shall see,
there is no reason to rely on a court-created remedy, like Bivens, when Congress
has created an adequate means for obtaining legal redress.
C. Injunction
Another possibility is a claim for an injunction, based on the federal courts’
equity jurisdiction, to enforce the dictates of the Eighth Amendment. Federal
courts have long exercised the traditional powers of equity, in cases within their
jurisdiction, to prevent violations of constitutional rights. See, e.g., Osborne v.
10
Bank of the United States, 22 U.S. (9 Wheat.) 738, 858-59 (1824) (Marshall,
C.J.); Davis v. Gray, 83 U.S. 203, 220 (1873) (“A Circuit Court of the United
States, in a proper case in equity, may enjoin a State officer from executing a
State law in conflict with the Constitution or a statute of the United States, when
such execution will violate the rights of the complainant.”); Ex Parte Young, 209
U.S. 123, 151–56 (1908) (tracing the history of the doctrine holding that state
officers “may be enjoined by a Federal court of equity” from enforcing
unconstitutional statutes); Bell v. Hood, 327 U.S. 678, 684 (1946) (recognizing
the “jurisdiction of federal courts to issue injunctions to protect rights
safeguarded by the Constitution”); Bolling v. Sharpe, 347 U.S. 497 (1954)
(holding that the Fifth Amendment and § 1331 created a remedy for
unconstitutional racial discrimination in the D.C. public school system). In his
concurring opinion in Bivens, Justice Harlan cited “the presumed availability of
federal equitable relief, if a proper showing can be made in terms of the ordinary
principles governing equitable remedies” as a factor distinguishing equitable
relief from money damages. Bivens, 403 U.S. at 400. Equity thus provides the
basis for relief – the cause of action, so to speak – in appropriate cases within the
court’s jurisdiction.
There was not much scope for exercise of equitable powers by federal
courts, however, until enactment of general federal question jurisdiction—the
11
precursor of 28 U.S.C. § 1331—in 1875. Judiciary Act of 1875, ch. 137 § 1, 18
Stat. 470. 7 That Act granted jurisdiction to federal district courts over “all suits
of a civil nature at common law or in equity, where the matter in dispute exceeds,
exclusive of costs, the sum or value of five hundred dollars, and arising under the
Constitution or laws of the United States, or treaties made . . . under their
authority.” Section 1331 thus provides jurisdiction for the exercise of the
traditional powers of equity in actions arising under federal law. No more
specific statutory basis is required. See John F. Duffy, Administrative Common
Law in Judicial Review, 77 Texas L. Rev. 113, 147–48 (1998) (“[A] litigant
having no other statutory authority for judicial review may unabashedly point to
Section 1331 as the basis for injunctive relief against agency officers . . . .”). As
already noted, the Supreme Court in Bell v. Hood held that suits for relief directly
under the Constitution fall within this grant of jurisdiction.
The difficulty with grounding claims for affirmative injunctions requiring
federal officers to take action required by the Constitution, after Bell, was not
cause of action or subject matter jurisdiction but sovereign immunity. Although
nominally brought against the prison dentists, Mr. Simmat’s claim is in reality
against the United States. See Kentucky v. Graham, 473 U.S. 159, 165 (1985)
7
Osborn v. Bank of the United States, for example, arose under the statute
incorporating the Bank, which included a grant of federal court jurisdiction in
cases involving the Bank. 22 U.S. at 818.
12
(“Official-capacity suits . . . ‘generally represent only another way of pleading an
action against an entity of which an officer is an agent.’”) (quoting Monell v.
Dept. of Social Services, 436 U.S. 658, 690, n.55 (1978)). In Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682 (1949), the Supreme Court appeared to
restrict the availability of injunctive relief against federal officials. 8 Larson
recognized the traditional exception to sovereign immunity, commonly referred to
as the ultra vires doctrine, permitting suits for prospective relief when
government officials act beyond the limits of statutory authority or when the
statute from which government officials derive their authority is itself
unconstitutional. See id. at 690. But Larson reasserted the importance of the line
between injunctions prohibiting illegal action and injunctions requiring officials
to act. Larson explained that
a suit may fail, as one against the sovereign, even if it is claimed that
the officer being sued has acted unconstitutionally or beyond his
statutory powers, if the relief requested can not be granted by merely
ordering the cessation of the conduct complained of but will require
affirmative action by the sovereign or the disposition of
unquestionably sovereign property.
Id. at 691 n.11. The defendants in this case argue that Larson blocks Mr.
8
For descriptions of sovereign immunity doctrine prior to Larson, see Roger
C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for
Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties
Defendant, 68 Mich. L. Rev. 387, 400-04 (1970); David C. Currie, T HE
C ONSTITUTION IN THE S UPREME C OURT : T HE F IRST H UNDRED Y EARS , 1789-1888,
at 416-28 (1985).
13
Simmat’s suit, which, in their view, would “require affirmative action by the
sovereign,” namely provision of dental care. Aple. Supp. Br. 23–24.
The defendants’ interpretation of Larson would leave prisoners without a
remedy for federal prison officials’ failure to carry out their constitutional duties,
violating the basic principle that “where federally protected rights have been
invaded, it has been the rule from the beginning that courts will be alert to adjust
their remedies so as to grant the necessary relief . . . .” Bell v. Hood, 327 U.S.
678, 684 (1946) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); see
also Farmer v. Brennan, 511 U.S. 825, 846 (1994) (stating that the courts could
“grant appropriate relief” on a federal prisoner’s Eighth Amendment claim for
damages and injunctive relief against prison officials in their individual and
official capacities).
Aware of the impact of the doctrine of sovereign immunity on vindication
of constitutional and other legal rights, Congress passed legislation in 1976 to
waive sovereign immunity in most suits for nonmonetary relief:
An action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or
under color of legal authority shall not be dismissed nor relief therein
be denied on the ground that it is against the United States or that the
United States is an indispensable party.
5 U.S.C. § 702. This waiver is not limited to suits under the Administrative
Procedure Act. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1329 (D.C.
14
Cir. 1996) (“The APA’s waiver of sovereign immunity applies to any suit whether
under the APA or not.”); see also United States v. Murdock Mach. & Engr. Co.,
81 F.3d 922, 930 n.8 (10th Cir. 1996) (describing § 702 as “a general waiver of
the government’s sovereign immunity from injunctive relief”). Sovereign
immunity is therefore not a bar to Mr. Simmat’s action for injunctive relief
against the prison dentists. 9
D. Relief in the nature of mandamus
The district court also had jurisdiction under 28 U.S.C. § 1361, which
provides:
The district courts shall have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.
Mandamus is the traditional writ designed to compel government officers to
9
We do not address the question of whether, or under what circumstances,
Mr. Simmat could assert a claim against the prison dentists under the APA. Mr.
Simmat expressly states that he does not seek “judicial review under the APA but
rather under the Eighth Amendment.” Aplt. Supp. Reply Br. 12. In the first
place, it does not appear that Mr. Simmat wishes to obtain review of any
administrative proceeding, see Olenhouse v. Commodity Credit Corp., 42 F.3d
1560, 1573–74 (10th Cir. 1994), but to file an original proceeding in which he
could take discovery, introduce evidence, and make arguments for the first time in
court. Moreover, he appears to concede that his claim does not satisfy the APA’s
requirement of “final agency action.” See 5 U.S.C. § 704. Agency action is not
“final” for purposes of § 704 until “an aggrieved party has exhausted all
administrative remedies expressly prescribed by statute or agency rule.” Darby v.
Cisneros, 509 U.S. 137, 146 (1993). As explained below, Mr. Simmat has not
exhausted administrative remedies as required by the Prison Litigation Reform
Act, see infra section II.B.
15
perform nondiscretionary duties. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
168–69 (1803). Significantly, application of the mandamus remedy to require a
public official to perform a duty imposed upon him in his official capacity is not
limited by sovereign immunity. In Houston v. Ormes, the Court held that suits to
compel federal officers “‘to perform some ministerial duty imposed upon them by
law, and which they wrongfully neglect or refuse to perform . . . would not be
deemed suits against the United States within the rule that the Government cannot
be sued except by its consent.’” 252 U.S. 469, 472-73 (1920) (quoting Minnesota
v. Hitchcock, 185 U.S. 373, 386 (1902)); see also, e.g., Roberts v. United States
ex rel. Valentine, 176 U.S. 221 (1900) (granting mandamus against the United
States Treasurer); Washington Legal Foundation v. U.S. Sentencing Comm’n, 89
F.3d 897, 901 (D.C. Cir. 1996).
In federal courts, however, mandamus has had a curious history, which may
account for its relative disuse. In Marbury, the Court held that the Supreme Court
did not have original jurisdiction to issue writs of mandamus, impliedly
suggesting that the writ might be available in the district courts. In 1813,
however, the Court held that the Judiciary Act did not grant jurisdiction to federal
courts to issue writs of mandamus except in aid of their jurisdiction. M’Intire v.
Wood, 11 U.S. (7 Cranch) 504, 506 (1813); cf. 28 U.S.C. § 1651. That position,
16
possibly a reflection of Jeffersonian notions of separation of powers, 10 lasted only
25 years. In Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524,
619–22 (1838), the Court held, ingeniously, without overruling M’Intire, that the
federal circuit court for the District of Columbia had inherited the common law
jurisdiction of the courts of Maryland, and thus had power to issue writs of
mandamus. That meant that mandamus was available against federal officials, but
only in the District Court for the District of Columbia. Obviously, that was
inconvenient for plaintiffs in other parts of the country, and discouraged use of
the writ. By enactment of the Mandamus and Venue Act of 1962, P.L. 87-748, §
1(a), 76 Stat. 744 (codified at 28 U.S.C. § 1361), Congress ended this historical
anomaly and extended mandamus jurisdiction to all federal district courts.
To be sure, with the abolition of the traditional common law forms of
action, the writ of mandamus is no longer technically available. But Federal Rule
of Civil Procedure 81(b) provides, “Relief heretofore available by mandamus . . .
may be obtained by appropriate action or by appropriate motion under the practice
10
Jefferson, through his Attorney General, Caesar Rodney, insisted that it
was a violation of separation of powers for the courts to direct the exercise of an
executive function through such means as writs of mandamus. See Report of the
Attorney General of the United States, July 15, 1808, in Aurora General
Advertiser, No. 5464, at 2-3 (Aug. 9, 1808) (William J. Duane & Co., pub.),
quoted and discussed in Michael W. McConnell, The Story of Marbury v.
Madison: Making Defeat Look Like Victory, in Constitutional Law Stories 13, 29
(Michael C. Dorf ed. 2004). M’Intire was written by Jeffersonian appointee
Justice William Johnson.
17
prescribed in these rules.” The generic “civil action” of the new rules, see Fed.
R. Civ. P. 2, provides the form of action in which mandamus relief is now
available. Congress confirmed the availability of relief “in the nature of
mandamus” with the passage of the Mandamus and Venue Act, which grants the
district courts “original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.
Federal courts have often invoked § 1361 as the jurisdictional basis for
challenges to federal prison conditions. See, e.g., Kahane v. Carlson, 527 F.2d
492, 496 (2d Cir. 1975) (considering a First Amendment challenge to prison food
services and ordering federal officials to provide “a diet sufficient to sustain the
prisoner in good health without violating the Jewish dietary laws”); Workman v.
Mitchell, 502 F.2d 1201, 1205 (9th Cir. 1974) (upholding jurisdiction under §
1361 to consider a due process challenge to prison disciplinary proceedings);
Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973) (per curiam) (exercising
jurisdiction under § 1361 to consider a suit by Black Muslim inmates to compel
accommodation of worship services and service of at least one pork-free meal a
day); Taylor v. Blackwell, 418 F.2d 199 (5th Cir. 1969) (holding that § 1361
provided jurisdiction over a federal inmate’s claim alleging wrongful denial of
good-time credits) (citing Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966)). We
18
endorse this practice for challenges to the failure of prison officials to carry out
nondiscretionary duties.
Mandamus relief is available only to compel a government officer to
perform a duty that is “ministerial, clearly defined, and peremptory” as opposed to
duties within the officer’s discretion. Carpet, Linoleum & Resilient Tile Layers,
Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir. 1981) (quoting
Schulke v. United States, 544 F.2d 453, 455 (10th Cir. 1976)). But the fact that
an official’s duty entails some discretion does not necessarily shield him from
mandamus. As Chief Justice Taft explained,
Mandamus issues to compel an officer to perform a purely ministerial
duty. It cannot be used to compel or control a duty in the discharge
of which by law he is given discretion. The duty may be
discretionary within limits. He can not transgress those limits, and if
he does so, he may be controlled by injunction or mandamus to keep
within them. The power of the court to intervene, if at all, thus
depends upon what statutory discretion he has.
Work v. United States ex rel. Rives, 267 U.S. 175, 177 (1925).
Mr. Simmat’s claim falls within this domain. His claim is not one to
control or override the discretion of the prison dentists, but simply to be examined
by the dentists and to receive whatever care they believe is necessary in their
professional judgment, and under the Eighth Amendment. See Complaint, R.
Doc. 1 at 5–6. This is not to say that Mr. Simmat is entitled to the full measure of
relief demanded in his complaint, namely, an order “specifying that all of
19
plaintiff’s dental deficiencies be made good, whether or not procedures required
to accomplish that are within currently approved dental procedures within the
BOP for its prisoners.” Id. Not only does this relief demand action beyond
routine dental care under BOP policy; it exceeds the scope of Mr. Simmat’s
alleged injuries. We do hold, however, that Mr. Simmat is not barred by
sovereign immunity from obtaining judicial relief on his constitutional claim.
In sum, as a result of congressional action in 1875 (creating general federal
question jurisdiction), 1962 (extending mandamus jurisdiction to all federal
district courts), and 1976 (waiving sovereign immunity in cases for nonmonetary
relief against federal officials and agencies), federal district courts now have
jurisdiction over claims by federal prisoners against federal prison officials
seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or
28 U.S.C. § 1361, and may obtain relief in the nature of either injunction or
mandamus. In many cases, these forms of relief may be interchangeable. See,
e.g., Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318 (1958)
(concluding, in a suit to compel a federal entity to fix new tolls, that “[t]he
principle is no different than if mandamus were sought”); Fallini v. Hodel, 783
F.2d 1343, 1345 (9th Cir. 1986) (“In effect, the injunction is no different than the
mandamus. When the effect of a mandatory injunction is equivalent to the
issuance of mandamus it is governed by similar considerations.”); Carpet,
20
Linoleum, and Resilient Tile Layers, 656 F.2d at 567 (“A mandatory injunction
such as the one sought here is essentially in the nature of mandamus.”). In cases
seeking specific relief of a nondiscretionary nature, mandamus would seem to be
the more closely tailored avenue for relief.
E. Exhaustion of Administrative Remedies
Although the district court had jurisdiction over his claims for nonmonetary
relief against the prison dentists, Mr. Simmat failed to state a claim upon which
relief may be granted because he did not exhaust his administrative remedies.
The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under
section 1979 of the Revised Statutes of the United States (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.
42 U.S.C. 1997e(a). Mr. Simmat is a prisoner confined in USP Leavenworth, and
this is an action “with respect to prison conditions” brought under federal law.
The district court correctly determined that the PLRA required him to exhaust his
administrative remedies. See Order of Jan. 9, 2003, R. Doc. 3 at 1.
Shortly after the complaint was filed, the district court ordered Mr.
Simmat’s former co-plaintiff, James Maass, to supplement his complaint with a
statement of exhaustion of administrative remedies. See Order of Jan. 9, 2003, R.
Doc. 3 at 2. This order did not extend to Mr. Simmat because the complaint
21
states that he exhausted his administrative remedies. Id. at 1. The complaint
alleges that “Plaintiff Simmat has exhausted administrative remedies in Case
Number 212339-A1 of the United States Bureau of Prisons,” Complaint, R. Doc.
1 at 1, and that “though Simmat subsequently filed for administrative remedy to
be put on said [treatment] list, defendants have taken assertive action to block
Simmat’s name from said list.” Id. at 5. Although the complaint states that Mr.
Simmat exhausted his administrative remedies, neither the complaint nor the
record provides information sufficient to satisfy the exhaustion requirement.
To satisfy the PLRA’s exhaustion requirement, a prisoner must do more
than allege that he has exhausted his administrative remedies. To state a claim
for relief, a prisoner must (1) make a “short and plain statement of the claim,”
Fed. R. Civ. P. 8, 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.” Steele
v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003) (quoting
Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000)). Unlike his co-
plaintiff, Mr. Simmat did not provide documentation of his pursuit of
administrative remedies. As a result, the record does not indicate how he
attempted to address the injuries underlying his complaint. The record includes
Mr. Simmat’s Inmate Request to Staff forms, but the documents submitted by Mr.
22
Maass indicate that additional review was available to inmates. Furthermore, the
Inmate Request to Staff forms filed by Mr. Simmat did not allege denial of
treatment; they requested that he be placed on the treatment list. Mr. Simmat
provides no evidence that he pursued the relief he now seeks through available
administrative channels. The Court thus has no basis to determine whether he
exhausted his administrative remedies for the claims raised in his complaint.
At oral argument, Mr. Simmat’s appointed counsel suggested, by way of
explanation for his failure to exhaust, that Mr. Simmat “felt stuck.” The question,
however, is not whether he felt stuck, but whether he was stuck. We do not mean
to criticize counsel, whose explanation for Mr. Simmat’s delinquency is entirely
plausible, and who was unquestionably stuck with the record below. We mean
only to stress that the BOP provided a mechanism for administrative review, and
the PLRA obligated Mr. Simmat to use it before coming to federal court. See 28
C.F.R. § 542.10–.19 (outlining the federal prisons’ Administrative Remedy
Program for claims arising out of prison conditions).
Mr. Simmat argues that his claim should be subject only to the common law
doctrine of exhaustion, a matter of judicial discretion. See United Tribe of
Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001) (explaining,
in a tribe’s suit to compel recognition by the Bureau of Indian Affairs, that “in
cases not governed by the APA, the doctrine of exhaustion applies as a matter of
23
judicial discretion”). But this argument applies only to cases where there is no
other statutory exhaustion requirement. Prison conditions litigation is not one of
these.
Exhaustion is not some arbitrary hurdle to make it difficult for prisoners to
sue. It serves “the twin purposes of protecting administrative agency authority
and promoting judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145
(1992). By giving the agency a chance to correct its own errors, administrative
review often obviates the need for litigation. Agency review typically moves
much more quickly than federal litigation. See, e.g., Thomas v. Woolum, 337 F.3d
720, 732 (6th Cir. 2003) (“[I]t is in the prison grievance process that inmates will,
for most practical purposes, receive their swiftest and most effective remedies.”).
Indeed, Mr. Simmat’s claim is an excellent illustration of why exhaustion is
essential to the efficient resolution of claims. Mr. Simmat has litigated this case
in court for well over two years, presumably without receiving dental care. Had
he pursued administrative remedies, Mr. Simmat almost certainly would have
received dental treatment by now, or an explanation why not.
Developing the factual record through administrative review is particularly
important in pro se prison litigation, where exhaustion “serves the same purpose
and is very similar to discovery in ordinary litigation.” Brice v. Day, 604 F.2d
664, 667 (10th Cir. 1979) (per curiam), disapproved on other grounds by
24
McCarthy v. Madigan, 503 U.S. 140 (1992). At the very least, the administrative
remedy process would have given Mr. Simmat a definitive answer to his request
for treatment, explaining why the prison believes he is not entitled to what he
seeks. Because Mr. Simmat’s claims against the prison dentists did not pass
through the administrative review process, the scant record of this case sheds no
light on what happened after his final dental examination in August 2000. We
can only guess why Mr. Simmat was unable to get dental treatment. Was this the
result of his own failure to show up for an appointment? Was it due to overwork
and understaffing in the Leavenworth dental department? Was it just a
bureaucratic snafu? Was it the product of malicious dental neglect, or a secret
and unstated BOP policy against providing proper dental care, as Mr. Simmat
claims? If Mr. Simmat had pursued his administrative remedies, he would have
received either relief or an explanation, and the courts would have something to
review.
Exhaustion is a pleading requirement rather than an affirmative defense.
Steele, 355 F.3d at 1210. Mr. Simmat’s failure to adequately plead exhaustion
therefore amounts to a failure to state a claim upon which relief can be granted.
Id. When a prisoner fails to state a claim, the PLRA requires the court to dismiss
the complaint sua sponte:
The court shall on its own motion or on the motion of a party dismiss
any action brought with respect to prison conditions . . . if the court
25
is satisfied that the action is 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.
42 U.S.C. § 1997e(c)(1). Because Mr. Simmat failed to exhaust his
administrative remedies, we must dismiss the complaint for failure to state a
claim.
III. Mr. Simmat’s Claim Against the Bureau of Prisons
In his briefs in this Court, Mr. Simmat also claims that the BOP violated
his Eighth Amendment right to adequate medical treatment by following a de
facto policy against routine dental care. The BOP’s dental care policy, recorded
in a BOP Policy Statement, provides that prisoners shall receive both routine and
emergency dental care. See Policy Statement 6000.05 § 5(c)(1), (2). Emergency
care is available at sick call on a twenty-four-hour basis. Id. § 5(c)(1). The BOP
provides routine care “as resources of staff, time, and materials are available and
commensurate with the inmate’s ability to maintain good oral health.” Id. §
5(c)(2). Mr. Simmat alleges that the BOP failed to follow its written policy,
instead refusing to provide routine care to inmates.
The BOP argues that Mr. Simmat’s claim is barred by sovereign immunity.
Mr. Simmat argues that the United States, and therefore the BOP, waived
sovereign immunity in the APA, which provides:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
26
of a relevant statute, is entitled to judicial review thereof. . . . The
United States may be named as a defendant in any such action [for
relief other than money damages], and a judgment or decree may be
entered against the United States: Provided, That any mandatory or
injunctive decree shall specify the Federal officer or officers (by
name or by title), and their successors in office, personally
responsible for compliance.
Id. § 702. If the BOP is an agency within the meaning of the APA, Mr. Simmat
can pursue a claim against the BOP itself.
The language of the APA indicates that the BOP is an agency within the
meaning of the statute. For purposes of the APA, “‘agency’ means each authority
of the Government of the United States, whether or not it is within or subject to
review by another agency.” 5 U.S.C. § 551(1) (excepting certain entities,
including Congress and the federal courts, but not including the BOP).
Interpreting § 551(1), the Seventh Circuit held, “The Bureau of Prisons is part of
the Department of Justice, and thus undeniably an ‘agency’ if this language be
taken literally.” White v. Henman, 977 F.2d 292, 293 (7th Cir. 1992); see also
Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002) (“The APA applies to the
Bureau of Prisons . . . and therefore may be the appropriate way to contest the
Bureau's implementation of [a Program Statement]”). The D.C. Circuit reached
the same conclusion in Ramer v. Saxbe, in which federal prisoners sought
declaratory, injunctive, and mandamus relief against the Attorney General and the
Director of the BOP. 522 F.2d 695, 697 (D.C. Cir. 1975); see also Krilich v.
27
Bureau of Prisons, 346 F.3d 157, 159 (6th Cir. 2003) (dismissing a federal
prisoner’s challenge to prison conditions because “the APA falls within the broad
sweep of claims subject to the exhaustion requirements of the PLRA”);
Gunderson v. Hood, 268 F.3d 1149, 1152–54 (9th Cir. 2001) (analyzing a BOP
program statement under the APA); but cf. Clardy v. Levi, 545 F.2d 1241, 1245
(9th Cir. 1976) (holding that the APA does not apply to prison disciplinary
proceedings, but acknowledging that neither the text of the statute nor its
legislative history suggest that unexpressed exceptions to its coverage exist).
Because the BOP is an agency within the meaning of the APA, sovereign
immunity does not bar Mr. Simmat’s claim. 11
We nonetheless are unable to reach Mr. Simmat’s claim against the BOP
because he did not raise it in the district court. Not only did Mr. Simmat fail to
raise the claim below; he specifically denied having raised it. In his response to
the defendants’ Motion to Dismiss, Mr. Simmat stated:
Plaintiffs consider the dental policy of the United States
11
The defendants argue that sovereign immunity bars Mr. Simmat’s claim
against the BOP because the Program Statement, as an internal agency guideline
not adopted under APA procedures, does not create enforceable entitlements. See
Miller v. Henman, 804 F.2d 421, 426 (7th Cir. 1986) (holding that a BOP program
manual “not promulgated under the Administrative Procedure Act or published in
the Code of Federal Regulations . . . does not create legally enforceable
entitlements”). Mr. Simmat does not rely on an entitlement created by the Policy
Statement. He relies on a constitutional right that USP Leavenworth allegedly
denied by following an unwritten policy against routine dental care. Whether the
Policy Statement was adopted under APA procedures is not relevant to his claim.
28
Bureau of Prisons to be very good, having read it in its entirety, and
made no complaint about it, nor do they so complain now. The issue
in the instant action . . . is that the good doctors have failed to meet
that policy, and misused it, and subverted it.
Response, R. Doc. 31, at 16. Mr. Simmat changes course on appeal, complaining
that the BOP had a de facto policy against routine dental care and refused to
provide treatment unless a prisoner experienced pain. See Supp. Br. 42. A
litigant is not entitled to disavow a claim before one court only to spring it on his
opponent at the next stage of the proceedings. See Tele-Communications, Inc. v.
Comm’r, 104 F.3d 1229, 1232–33 (10th Cir. 1997) (explaining that review of
issues not raised below “would undermine the need for finality in litigation and
conservation of judicial resources . . . and would often allow a party to raise a
new issue on appeal when that party invited the alleged error below”). Mr.
Simmat failed to present his claim against the BOP to the district court, and we
will not address it for the first time on appeal.
V. Conclusion
The district court had subject matter jurisdiction in this case under 28
U.S.C. § 1331 or 1361. The cause of action arose directly under the Eighth
Amendment, and relief against the prison dentists would take the form of a
mandatory injunction or, more precisely, relief in the nature of mandamus.
Sovereign immunity does not deprive this Court of jurisdiction over Mr. Simmat’s
claims. However, because he failed to present his claim against the BOP in the
29
district court, and because he failed to exhaust administrative remedies for his
claim against the prison dentists, Mr. Simmat fails to state a claim upon which
relief can be granted. The district court’s decision is therefore REVERSED with
instructions to DISMISS WITHOUT PREJUDICE.
30