United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 3, 2001 Decided January 29, 2002
No. 00-5282
Abdus-Shahid M.S. Ali,
Appellant
v.
District of Columbia, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01348)
Robert N. Weiner, appointed by the court, argued the cause
and filed the briefs as amicus curiae for appellant.
Abdus-Shahid M.S. Ali, appearing pro se, was on the briefs
for appellant.
Mark R. Davis, Senior Assistant Attorney General, State
of Virginia, argued the cause and filed the brief for appellees
Commonwealth of Virginia, et al.
Robert R. Rigsby, Corporation Counsel, Charles L. Reis-
chel, Deputy Corporation Counsel, and Carl J. Schifferle,
Assistant Corporation Counsel, filed the brief for appellees
District of Columbia, et al.
Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: A District of Columbia inmate claims
that following his transfer from the District's Lorton Correc-
tional Facility to a Virginia prison pursuant to an interstate
compact, Virginia officials used excessive force in restraining
him, required him to register under his birth name rather
than his religiously inspired legal name, and neglected to give
him the insulin he required, resulting in his leg becoming
dangerously infected. The inmate also claims that the Dis-
trict denied him access to the courts by failing to transport
certain legal documents with him to the Virginia prison,
sending them instead to his home. The inmate filed suit in
the United States District Court for the District of Columbia,
naming as defendants the Commonwealth of Virginia, various
Virginia officials, the District of Columbia, various District
officials, and the Attorney General of the United States.
Affirming the district court's dismissal of the complaint, we
find that (1) all claims against Virginia, its agencies and its
officers in their official capacities are either barred by sover-
eign immunity or mooted by the inmate's transfer back to a
District prison, (2) the district court lacked personal jurisdic-
tion over Virginia officials in their personal capacities, (3) the
inmate lacks standing to bring a denial of court access claim,
and (4) neither the District nor its officials can be held liable
for torts committed by Virginia officials.
I.
Appellant Abdus-Shahid M.S. Ali is a District of Columbia
inmate serving concurrent sentences for first-degree murder
convictions in 1964 and again in 1986. Ali's claims arise from
his April 1999 transfer from the District's Lorton Central
Facility, located in Lorton, Virginia, to Virginia's Sussex II
prison in Waverly, Virginia. The transfer took place pursu-
ant to a contract, authorized by the Interstate Corrections
Compact, Va. Code Ann. s 53.1-216; D.C. Code Ann.
s 24-1001, between the District of Columbia Department of
Corrections and the Virginia Department of Corrections.
According to Ali, during a strip-search undertaken in prep-
aration for his transfer, Virginia prison official D. Davis "hit
[him] in the stomach," prompting Ali to punch Davis, at which
point several other officers leapt on Ali and wrestled him to
the ground. Compl. p p 10-11. Ali claims that his "face was
swollen up and at least four teeth were loosened of which one
had to be pulled...." Pl.'s Opp'n. to Va. Defs.' Mot. to
Dismiss p 30.
Ali also contends that Virginia prison officials humiliated
him when, after he arrived at Sussex II, they held a stun gun
to his head and forced him to register under his birth name,
James C. Long, rather than his legal name, Abdus-Shahid
M.S. Ali. Although originally convicted under his birth name,
Ali changed his name in 1979 for religious reasons. Accord-
ing to Ali, not only did he find the registration under his birth
name religiously offensive, but as a result of his incarceration
under the name James Long, Sussex II officials neglected for
fifteen days to give him the insulin shots required to treat his
diabetes. Sussex II medical staff apparently confused anoth-
er inmate's file, labeled "James Long #268-200" and contain-
ing no diabetes diagnosis, with Ali's file, labeled "Ali #136-
476." Compl.p 16. As a result of this "medical malpractice,"
Ali alleges, his fingers became "numb," Compl. p p 16,17, and
his right leg, which became infected, "burst open" and "may
(in time) ... require amputation," Pl's Opp'n. to Va. Defs.'
Mot. to Dismiss p 11.
Finally, Ali contends that District prison officials "forced
him" to send certain legal documents home rather than
transporting them along with his other belongings to the
Sussex II prison. Compl. p 22. As a result, he experienced a
"set-back" in litigation pending in the District of Columbia
Superior Court. Compl. p 23.
Based on these allegations, Ali filed suit in the United
States District Court for the District of Columbia against
three categories of defendants: (1) the Commonwealth of
Virginia and the Virginia Department of Corrections, as well
as the Attorney General, the Governor, the Chief Warden of
the Sussex II State Prison, and Corrections Officer D. Davis
in their personal and official capacities; (2) the Mayor of
Washington, D.C., the Warden of the Lorton Central Facility,
and the District of Columbia Department of Corrections; and
(3) the Attorney General of the United States. While Ali's
handwritten complaint contains many claims, he alleges es-
sentially four causes of action: (1) that corrections officers
used excessive force in violation of his Eighth Amendment
right to be free from cruel and unusual punishment; (2) that
the denial of insulin also violated his Eighth Amendment
rights; (3) that forcing him to sign his birth name violated the
First Amendment and the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. ss 2000bb to 2000bb-4; and (4) that
the failure to transfer all his legal papers to the Virginia
prison violated his First Amendment right to court access.
The district court dismissed Ali's complaint with prejudice.
With respect to his claims against the Virginia defendants
(except for the claim relating to the use of his birth name),
the court concluded that Ali failed to exhaust his administra-
tive remedies as required by the Prison Litigation Reform
Act (PLRA). As to the birth name issue, the district court
held that "the mere fact that correctional authorities maintain
an inmate's records in the name he used when convicted
implicates no constitutional right." Ali v. District of Colum-
bia, No. 99-1348, slip op. at 5 (D.D.C. July 11, 2000). Finding
the claims against the District defendants and the Attorney
General of the United States based on the actions of Virginia
prison officials, the district court dismissed these claims as
well. The district court also noted that "to the extent" Ali
sought "injunctive and declaratory relief," such claims were
"moot" in light of Ali's "transfer[ ] back to Lorton." Id. at 4.
Ali, supported by the amicus we appointed, now appeals the
dismissal of his two Eighth Amendment claims (excessive
force and denial of insulin), his First Amendment and RFRA
claims (use of his birth name) and his access to court claim.
Our review is de novo. See Moore v. Valder, 65 F.3d 189, 192
(D.C. Cir.1995) (reviewing "de novo a dismissal for failure to
state a claim upon which relief can be granted").
II.
We begin with Ali's claims against the Virginia defendants.
According to Virginia, the district court lacked subject matter
jurisdiction because Ali failed to exhaust his administrative
remedies as required by the PLRA. See 42 U.S.C.
s 1997e(a) ("No action shall be brought ... until such admin-
istrative remedies as are available are exhausted."). Virginia
argues that although Ali filed a complaint pursuant to the
prison's grievance procedures, because he filed suit before
those procedures were completed, he failed to exhaust his
administrative remedies. See Jackson v. District of Colum-
bia, 254 F.3d 262, 269 (D.C. Cir. 2001) (holding that remedies
must be exhausted at the time the complaint is filed). Alter-
natively, Virginia argues that the doctrine of sovereign immu-
nity bars Ali's claims against the Commonwealth and its
officials in their official capacities and that the district court
lacked personal jurisdiction over the individual defendants in
their personal capacities.
We start, as we generally do, by making sure we possess
subject matter jurisdiction. See Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 587-88 (1999) (explaining that courts
generally address subject matter jurisdiction even before
personal jurisdiction unless the subject matter question raises
a "difficult and novel" question of law). Virginia's subject
matter jurisdiction argument depends on reading the PLRA's
exhaustion requirement as a jurisdictional bar. Although we
have never directly ruled that the requirement is not jurisdic-
tional, in Jackson we rejected inmates' argument that the
defendants had waived their exhaustion defenses, 254 F.3d at
267 (D.C. Cir. 2001), an issue we never would have considered
if exhaustion were jurisdictional. Removing any doubt, we
now hold, as has every circuit to have considered the matter,
that the PLRA's exhaustion requirement simply "governs the
timing of the action" and does not contain the type of
" 'sweeping and direct' " language that would indicate a juris-
dictional bar rather than a "mere codification[ ] of administra-
tive exhaustion requirements." Chelette v. Harris, 229 F.3d
684, 688 (8th Cir. 2000) (quoting Weinberger v. Salfi, 422 U.S.
749, 757 (1975)). See also Wright v. Hollingsworth, 260 F.3d
357, 358 n.2 (5th Cir. 2001) ("The 42 U.S.C. s 1997e exhaus-
tion requirement is not jurisdictional."); accord Basham v.
Uphoff, No. 98-8013, 1998 WL 847689, at *3 (10th Cir. Dec. 8,
1998); Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999);
Rumbles v. Hill, 182 F.3d 1064, 1067 (9th 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).
Having found the PLRA's exhaustion requirement not jur-
isdictional, we have no reason to consider the merits of the
Virginia defendants' exhaustion defense because Ali's claims
against them are barred on other grounds: sovereign immu-
nity and lack of personal jurisdiction. As to the first, the
Eleventh Amendment bars all suits in federal court against a
state by citizens of another state. See U.S. Const. Amend. XI.
When plaintiffs sue state officials in their official capacities
for monetary damages, the suits are, in substance, suits
against the state and also barred by sovereign immunity.
Edelman v. Jordan, 415 U.S. 651, 663 (1974). Congress may
abrogate state sovereign immunity through a legitimate exer-
cise of its Fourteenth Amendment, section five, enforcement
powers. Alden v. Maine, 527 U.S. 706, 756 (1999). States
can also waive their sovereign immunity, but "we will find
waiver only where stated by the most express language or by
such overwhelming implications from the text as [will] leave
no room for any other reasonable construction." Edelman,
415 U.S. at 673 (citation and internal quotations omitted).
Applying these principles to this case, we note first that it
makes no difference that Ali may be a District of Columbia
resident rather than a citizen of "another state," as the
Eleventh Amendment provides. See 13B Charles Wright &
Arthur R. Miller, Federal Practice and Procedure s 3618,
at 568-570 (2d ed. 1984) (General rule is that prisoner retains
residency had at time of incarceration). In Alden v. Maine,
the Supreme Court held that "the sovereign immunity of the
States neither derives from, nor is limited by the terms of the
Eleventh Amendment. Rather, [it] is a fundamental aspect
of sovereignty which the States enjoyed before the ratifica-
tion of the Constitution, and which they retain today ...
except as altered by the plan of the Convention or certain
constitutional Amendments." 527 U.S. at 713. Cf. also Hans
v. Louisiana, 134 U.S. 1, 5 (1890) (holding despite the literal
language of Eleventh Amendment that the doctrine of sover-
eign immunity bars suit in Federal Court against a state by a
citizen of that same state.)
The question, then, is whether Ali has pled a cause of
action arising under a federal statute that abrogates Virgi-
nia's sovereign immunity. He has not. RFRA does not
apply to the states, City of Boerne v. Flores, 521 U.S. 507, 536
(1997), and the Supreme Court has held that section 1983
does not abrogate state sovereign immunity, Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 (1989). Nor has
Virginia waived its sovereign immunity simply because the
Interstate Corrections Compact, adopted by the Common-
wealth, provides that "[t]he fact of confinement in a receiving
state shall not deprive any inmate so confined of any legal
rights which said inmate would have had if confined in an
appropriate institution of the sending state." Va. Code Ann.
s 53.1-216, Article IV(e); see also id. at Article I (defining
"state" as including the District of Columbia). Not only does
this language fall far short of the required "most express
waiver," Edelman, 415 U.S. at 673, but we see no basis for
finding that the "overwhelming implication," id., of the Com-
pact's text is that Virginia intended to waive sovereign immu-
nity. Even assuming the Compact creates rights enforceable
by individual inmates, the Compact says nothing about how
inmates may enforce these rights. A "reasonable construc-
tion," id., of the Compact would suggest that Virginia intend-
ed inmates to vindicate any rights through the traditional
methods of either prospective injunctive relief against Com-
monwealth officials, see id. at 664, 668 (holding Eleventh
Amendment bars "equitable restitution" but not prospective
injunctive relief having only an "ancillary effect on the state
treasury"), or damage suits against Commonwealth officials in
their personal capacities, see Hafer v. Melo, 502 U.S. 21, 30-
31 (1991) ("Eleventh Amendment does not erect a barrier
against suits to impose 'individual and personal liability' on
state officials under s 1983" (quoting Scheuer v. Rhodes, 416
U.S. 232, 238 (1974))), neither of which requires waiver of
sovereign immunity. See Alden, 527 U.S. at 732 (noting the
difference between the existence of a legal right under Feder-
al law and the "implementation of the law in a manner
consistent with the constitutional sovereignty of the States"
(emphasis added)). We thus conclude that the doctrine of
sovereign immunity bars Ali's claims against the Common-
wealth of Virginia and the Virginia Department of Correc-
tions, as well as his claims against the Attorney General, the
Governor, the Chief Warden of the Sussex II State Prison
and Officer Davis to the extent that Ali seeks damages from
these individuals in their official capacities.
Because the district court found all claims for injunctive
relief moot in light of Ali's return to the Lorton facility and
because Ali does not appeal this determination, the next
question with respect to the Virginia defendants is whether
the district court had personal jurisdiction over the individual
officials in their personal capacities. Amicus argues that
jurisdiction is proper under the District of Columbia long-arm
statute either because the defendants "transact[ed]" business
in the District, "contract[ed]" to do so, or "caus[ed] tortious
injury in the District ... by an act or omission outside the
District...." D.C. Code Ann. s 13-423(a)(1), -(2), -(3). We
disagree. Nowhere in his complaint does Ali allege that any
defendants acting in their individual capacities either trans-
acted business in the District or contracted to do so. It is
true, as amicus points out, that Virginia has contracts with
the District, makes reports to the District concerning District
inmates it houses, and receives money from the District.
Virginia officials, however, undertake all such actions in their
official capacities. In addition, because the District's Lorton
facility, the site of the alleged assault, is located in Virginia,
no tortious acts took place in the District.
III.
Turning to the remaining defendants, we begin with Ali's
court access claim against the District of Columbia defen-
dants, the only claim not based on the actions of Virginia
officials. To maintain a court access claim, an inmate must
demonstrate "actual injury," that is the inmate must show
"that an actionable claim ... which he desired to bring has
been lost or rejected, or that the presentation of such a claim
is currently being prevented...." Lewis v. Casey, 518 U.S.
343, 356 (1996). This Ali has failed to do. He alleges neither
that he actually lost any otherwise valid legal claim nor that
he is unable to raise such a claim in any other proceeding.
He alleges only that he has an "open case" in the District of
Columbia Superior Court that has been "set back." Compl.
p 23. Without more, this claim is insufficient to give rise to
Article III standing. See, e.g., Hudson v. Robinson, 678 F.2d
462, 466 (3d Cir. 1982) (mere delay in filing papers in court
not enough to establish actual injury to court access if papers
ultimately filed or accepted and considered by court).
Ali's remaining claims against District officials--his Eighth
Amendment and religious freedom claims--all rest on the
actions of Virginia officials. In Monell v. New York City
Dep't of Social Servs., the Supreme Court, interpreting sec-
tion 1983, held that while the word "person" includes a
municipality, the phrase "any person who ... subjects ...
any citizen" implies a strict causal relationship. Accordingly,
the Court held that plaintiffs suing municipalities under sec-
tion 1983 may not rely on a respondeat superior theory;
rather, they must show that municipality agents or employees
acted "pursuant to official municipal policy of some nature."
Monell, 436 U.S. 658, 691 (1978). Ali makes no allegation
that could give rise to liability under Monell. For example,
although he claims mistreatment by Virginia officials, Ali
never alleges that the District had a policy of sending inmates
to Virginia prisons that routinely mistreat inmates. See, e.g.,
Jackson v. District of Columbia, 254 F.3d 262, 265 (D.C. Cir.
2001) (inmates alleged that the District had a practice of
sending them to prisons with grooming policies that violated
their religious beliefs). Amicus argues that Monell is inappli-
cable to this case because the Virginia officials acted as
agents for the District. Monell, however, expressly states
that "a local government may not be sued under s 1983 for
an injury inflicted solely by its employees or agents." Mo-
nell, 436 U.S. at 694 (emphasis added).
Ali's failure to state a section 1983 claim against the
District defendants does not end our inquiry, for while Ali's
complaint states no RFRA claim against the District, amicus
argues that he constructively amended his complaint to in-
clude such a claim by citing the statute in his Opposition to
the Virginia Defendants' Motion to Dismiss. Even construing
Ali's pleadings "liberally," Richardson v. United States, 193
F.3d 545, 548 (D.C. Cir. 1999), and assuming that he "recog-
nized the need" to amend his complaint, id. at 549, we think a
single citation to RFRA in a filing responding to Virginia's
motion to dismiss insufficient to put the District on notice
that it faced a RFRA claim. See Sinclair v. Kleindienst, 711
F.2d 291, 293 (D.C. Cir. 1983) (holding that complaint must
give "defendant fair notice of the plaintiff's claim and the
grounds upon which it rests"). Indeed, even the district
court seems not to have realized that Ali intended to raise a
RFRA claim against the District of Columbia. See Ali, No.
99-1348, slip op. at 2-4. Under these circumstances, we
decline to find that Ali constructively amended his complaint
to state a RFRA claim against the District and its officials.
Finally, we reject Ali's claims against the Attorney General
of the United States. The district court's reasons for dismiss-
ing these claims are entirely correct.
IV.
Amicus argues that if Ali can sue neither District nor
Virginia officials, the District, by "transferring prisoners to
other states," can "deprive them of remedies for constitution-
al violations." Amicus's Reply at 12. Not so. Although we
affirm the district court's dismissal with prejudice of all
claims against the Virginia officials in their individual capaci-
ties, we emphasize that this action merely "acts as res
judicata for the jurisdictional issue." Posner v. Essex Ins.
Co., 178 F.3d 1209, 1221 (11th Cir. 1999). Thus, nothing in
either this opinion or the actions of the district court prevents
Ali from filing suit against Virginia officials in their personal
capacities in the appropriate federal district court in Virginia.
This is precisely the remedy that section 1983 gives every
Virginia inmate, whether transferred from the District or not.
The decision of the district court is affirmed.
So ordered.