Rourke v. Thompson

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                         _____________________

                             No. 93-1249
                        _____________________

                           JOHN FRANCIS ROURKE,

                                                    Petitioner-Appellant,

                                   VERSUS

                             R. G. THOMPSON,

                                                       Respondent-Appellee.

       ____________________________________________________

            Appeal from the United States District Court
                 for the Northern District of Texas
       _____________________________________________________
                         (December 17, 1993)

Before GARWOOD and BARKSDALE, Circuit Judges, and SHAW1, District
Judge.

BARKSDALE, Circuit Judge:

      The principal issue before us is whether a federal prison

inmate must exhaust the Bureau of Prisons' administrative remedies

before he may attempt to secure injunctive relief in federal court.

John Francis Rourke challenges the dismissal of his petition by the

district   court,   contending     that   it   erred    in    requiring   such

exhaustion.   We AFFIRM.

                                     I.

      Rourke, incarcerated at the Federal Correctional Institute in

Seagoville, Texas, filed a pro se, in forma pauperis petition,

pursuant to 28 U.S.C. § 2241, alleging that prison officials denied

him   adequate   medical    care    and     arbitrarily      imposed   various

1
     Chief Judge of the Western District of Louisiana, sitting by
designation.
disciplinary      sanctions      against     him    in     violation       of   his

constitutional rights.        He sought "injunctive relief" from these

alleged constitutional violations.             A magistrate judge, after

finding   that    Rourke   admitted     that   he    had    not    exhausted    his

administrative      remedies,2      recommended     that     the     petition    be

dismissed without prejudice.3           The district judge adopted the

report and recommendation over Rourke's objections, and dismissed

the petition without prejudice.4

     After the entry of the judgment, Rourke sought leave to amend

to bring a Bivens5 action solely for monetary damages.                          The

district court denied this motion.

                                      II.

                                       A.

     Rourke      challenges   the    dismissal      for    failure    to   exhaust

administrative remedies.         The district court dismissed Rourke's

petition prior to service of process on the defendants; thus, we

find that it dismissed the petition as frivolous under 28 U.S.C. §


2
     The administrative remedies provided by the Bureau of Prisons
are set forth in 28 C.F.R. § 542 (1993).
3
     As Rourke stated in his objections to the magistrate judge's
report and recommendation, Rourke filed a brief with the magistrate
judge in which he (Rourke) admitted that "`he has begun but not
fully exhausted his administrative remedies'".
4
     As discussed infra, note 10, Rourke's positions regarding
whether he had, in fact, exhausted administrative remedies have
been difficult to grasp.      In his written objections, Rourke
principally contended that he need not exhaust those remedies, but
never contended that the magistrate judge's finding that he had not
exhausted those remedies was erroneous.
5
     Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

                                     - 2 -
1915(d).    See Spears v. McCotter, 766 F.2d 179, 181 n.3 (5th Cir.

1985).     We previously have "assume[d] arguendo that a pauper's

complaint may ... be dismissed prior to service of process for ...

failure to exhaust administrative remedies if the deficiency is so

clear that it renders plaintiff's attempt to prosecute the suit

frivolous." Holloway v. Gunnell, 685 F.2d 150, 152 (5th Cir. 1982)

(footnote omitted).      This is in accord with "the general rule that

parties exhaust prescribed administrative remedies before seeking

relief from the federal courts". See McCarthy v. Madigan, ___ U.S.

___, ___, 112 S. Ct. 1081, 1086 (1992).         Accordingly, if the action

is one in which exhaustion of administrative remedies can be

required, a district court may dismiss it under § 1915(d) if such

remedies have not been exhausted.

     Concerning      whether   Rourke's     petition   is   amenable   to   the

exhaustion requirement, this court has determined that a § 2241

petitioner "must first exhaust his administrative remedies through

the Bureau of Prisons."        United States v. Gabor, 905 F.2d 76, 78

n.2 (5th Cir. 1990) (citations omitted); see also Lundy v. Osborn,

555 F.2d 534, 534-35 (5th Cir. 1977) ("[G]rievances of prisoners

concerning prison administration should be presented to the Bureau

[of Prisons] through the available administrative channels.                 Only

after such remedies are exhausted will the court entertain the

application    for   relief    in   an   appropriate    case.")   (citations




                                    - 3 -
omitted).6        To    the     extent    that   Rourke's        pleading   can     be

characterized as a § 2241 petition, dismissal was thus appropriate.

     But,    it    is    unclear     whether     Rourke's        petition   can    be

characterized as a § 2241 petition, because he seeks injunctive

relief regarding only the conditions of his confinement.                     Rourke

cannot avail himself of the writ of habeas corpus when seeking

injunctive relief unrelated to the cause of his detention.                         See

Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976) ("Simply

stated, habeas is not available to review questions unrelated to

the cause of detention.") (emphasis added).7

     Liberally construed, Rourke's pro se petition may be described

as a complaint requesting injunctive relief from violation of his

federal constitutional rights.            See Bell v. Hood, 327 U.S. 678, 684

(1946)   (noting       the    "established   practice"      of    sustaining      "the

jurisdiction of federal courts to issue injunctions to protect

rights safeguarded by the Constitution") (footnote omitted); see


6
     Similarly, a state prisoner must exhaust state administrative
remedies prior to seeking habeas relief. E.g., Smith v. Thompson,
937 F.2d 217, 219 (5th Cir. 1991); Baxter v. Estelle, 614 F.2d
1030, 1031-32 (5th Cir. 1980), cert. denied, 449 U.S. 1085 (1981).
Likewise, the Civil Rights of Institutionalized Persons Act, 42
U.S.C. § 1997, grants federal district courts the discretion to
require the exhaustion of state administrative remedies for a state
prisoner who files a civil rights action under 42 U.S.C. § 1983,
subject to various requirements concerning the state administrative
procedures. 42 U.S.C. § 1997(e).
7
     Coincidentally, this court has addressed a § 2241 claim filed
by another Seagoville prisoner who presented, inter alia, claims
concerning overcrowding and denial of medical treatment.       See
Hernandez v. Garrison, 916 F.2d 291, 292-93 (5th Cir. 1990). In
that case, the prisoner sought a transfer to another correctional
facility. Id. at 293. We noted that "[t]his type of injunctive
relief is not a proper subject for a habeas corpus petition." Id.

                                         - 4 -
also Bivens, 403 U.S. at 395-97 (citing Bell with approval and

holding that a non-statutory right of action exists against federal

officials who violate the Fourth Amendment).          We now examine

whether exhaustion of the Bureau of Prisons' remedies is required

before a federal prisoner may file such a complaint.

     Recently, the Supreme Court determined that a federal prisoner

need not exhaust those remedies prior to filing a Bivens action

"solely for money damages." McCarthy, 112 S. Ct. at 1084, 1086-91.

After carefully analyzing McCarthy, we conclude that the converse

is true when a federal prisoner seeks only injunctive relief.

     The linchpin of the McCarthy holding was the failure of the

prescribed administrative remedies to provide for the monetary

damages sought by the prisoner.    See id. at 1091 ("We conclude that

the absence of any monetary remedy in the grievance procedure also

weighs heavily against imposing an exhaustion requirement."). This

concern is not implicated by actions, such as Rourke's, that seek

only injunctive relief.    Indeed, the McCarthy Court specifically

noted that the result might well have been different had the

federal prisoner sought injunctive relief.      Id. at 1091 n.5; see

also id. at 1092-93 (Rehnquist, J., concurring in judgment) (joined

by Scalia and Thomas, JJ.) (contending that McCarthy's result is

correct   only   because   the   prisoner   sought   monetary   damages

unavailable through the administrative process).

     The Court also expressed concern that the "rapid filing

deadlines" required by the Bureau of Prisons' remedies created "the

peril of forfeiting [a prisoner's] claim for money damages."        Id.


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at 1091 (emphasis added).        But, the Court specifically noted that

"because of the continuing nature of conduct subject to injunctive

relief, the short filing deadlines would pose less difficulty

because the limitations period would be triggered anew by ongoing

conduct."    Id. at 1091 n.5 (emphasis added).

     In   sum,     the   concerns   voiced   in   McCarthy   are   seriously

diminished, if not absent, when a federal prisoner seeks injunctive

relief.     Balancing "the interest of the individual in retaining

prompt access to a federal judicial forum against countervailing

institutional interests favoring exhaustion", see id. at 1087, we

conclude that judicial efficiency8 and respect for administrative

authority tip the scales in favor of requiring exhaustion. See id.

at 1086-87 (noting the institutional interests, such as judicial

efficiency and respect for agencies, that counsel in favor of

exhaustion); see also Patsy v. Board of Regents, 457 U.S. 496, 518

(1982) (White, J., concurring in part) ("exhaustion is a rule of

judicial administration, and unless Congress directs otherwise,

rightfully subject to crafting by judges") (internal quotation and

citation omitted).        Therefore, we hold that a federal prisoner

seeking     only    injunctive      relief   must    first    exhaust   the

8
     For example, approximately 30% of the appeals in this Circuit
are brought by prisoners. During court year 1992-93, 28.8% of the
appeals in this Circuit were by prisoners (27.3% of the appeals
were by prisoners without counsel).     For July through November
1993, the figure hovers at 31.5% (29.1% by prisoners without
counsel). Numbers alone do not tell the whole story, because of
the settled rule that pro se pleadings must be construed liberally,
e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A great deal
of judicial resources are consumed in simply trying to determine
the relief sought and the bases claimed for it, much less ruling on
the merits.

                                    - 6 -
administrative   remedies   provided    by   the   Bureau   of   Prisons.9

Rourke's complaint was properly dismissed for failure to exhaust

them.10

9
     This case does not involve a mixed claim for both injunctive
and monetary relief; accordingly, we express no opinion as to the
proper result in such a case.
10
     Rourke contends that he did, in fact, exhaust those remedies.
Of course, any exhaustion which may have occurred subsequent to the
district court's ruling is not relevant; thus, Rourke's assertion
that, "[a]s a matter of interest", an administrative appeal has
been denied since the district court rendered judgment is not
relevant. Rourke's other assertions regarding this contention are,
to say the least, inconsistent. But, he did not object to the
magistrate judge's determination that he had not exhausted his
administrative remedies, as discussed supra, note 3.          After
judgment, Rourke did contend that he had exhausted his
administrative remedies, but that contention was internally
inconsistent; Rourke stated in a post-judgment motion: "Although
Petitioner contends he has exhausted his administrative remedies,
he continues to prosecute the two outstanding requests for
administrative relief." (Emphasis added.) He also stated that
those two remaining requests were "redundant" with his petition.
(Emphasis added.)     If Rourke had, in fact, exhausted some
administrative remedies, his own statements admit that two had not
been exhausted (even after the district court entered judgment),
and the subject matter of those two remedies duplicated his
petition. A § 1915(d) dismissal is reviewed only for an abuse of
discretion, see Denton v. Hernandez, ___ U.S. ___, ___, 112 S. Ct.
1728, 1734 (1992), and we find none here.

     Rourke also contends that he made a "substantial effort to
obtain an administrative remedy", which should allow him access to
federal court. See Holloway, 685 F.2d at 154; see also Shah v.
Quinlin, 901 F.2d 1241, 1244 (5th Cir. 1990).        The exception
excuses pro se litigants from the exhaustion requirement when the
litigant has failed to exhaust the Bureau of Prisons' remedies
either because of a lack of familiarity with the technicalities of
such procedures or an allegation that the Bureau's own procedural
irregularities caused the failure. See Shah, 901 F.2d at 1244;
Holloway, 685 F.2d at 154. The district court did not abuse its
discretion in refusing to apply this "substantial effort" exception
to Rourke.     He is plainly familiar with the administrative
grievance procedure, and does not contend that inadvertence on his
part in that process has foreclosed his access to the federal
courts.   Given that the district court's dismissal was without
prejudice, Rourke may file his action if the two administrative
appeals are resolved against him. In short, we do not believe that

                                - 7 -
                                     B.

     Rourke also contends that the district court erred in refusing

to allow him to amend his petition.           Final judgment (dismissal

without prejudice) was entered on February 26, 1993.          On March 8,

1993, Rourke sought leave to amend his petition from a § 2241

petition to an action "for money damages only" ($100,000) under 28

U.S.C. § 1331.    The district court denied that motion.         (It also

denied   by   separate   order    Rourke's   motion   to   reconsider   the

judgment; that motion was filed one day after his motion to amend

the petition.)

     Because Rourke's motion to amend his complaint was filed after

the entry of final judgment, the "threshold question is whether we

are reviewing the denial under the standards applicable to Rule

59(e) -- which favor the denial of motions to alter or amend a

judgment -- or under Rule 15 -- which favor granting leave to

amend.   Under either rule we review the district court's decision

only to determine whether it was an abuse of discretion."        Southern

Constructors Group v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.

1993) (footnote omitted).        When judgment has been entered on the

pleadings, as is the case here, the Rule 15 standards apply.            Id.

Yet even under Rule 15, "leave to amend ... is by no means

automatic, and we have affirmed denials when the moving party

engaged in undue delay or attempted to present theories of recovery



the "substantial effort" exception need be applied when the
prisoner's efforts are ongoing and give rise to the possibility of
success. To do so would eviscerate the administrative exhaustion
requirement.

                                   - 8 -
seriatim to the district court."   Id. at 612 (footnotes omitted).

We find no abuse of discretion in the district court's refusal to

allow Rourke to amend.11

                               III.

     For the foregoing reasons, the judgment is

                            AFFIRMED.




11
     Rourke's motion to amend appeared to hinge on the claim that
no Rule 58 final judgment had yet been entered, a contention that
was erroneous, as a separate judgment had been entered; indeed, the
"Court's records reflect ... that a copy of the judgment was mailed
to [Rourke]." (Rourke denies that a judgment had been served on
him, but, as noted, on the day after filing the motion to amend,
Rourke filed a Rule 59(e) motion. There, he asserted that he had
not received a judgment, but he acknowledged that he had received
the district court's February 26 Memorandum and Order adopting the
magistrate judge's report and overruling Rourke's objections to
it.) Thus, the district court also may have been concerned that
Rourke's motion to amend had been made, at least in substantial
part, in bad faith, which is a legitimate reason to deny leave to
amend. See Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).


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