United States Court of Appeals,
Fifth Circuit.
No. 94-30151.
Hubert ARVIE, Bro., Plaintiff-Appellant,
v.
Richard L. STALDER, Warden, Wade Correctional Center, et al.,
Defendants-Appellees.
June 2, 1995.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Hubert Arvie (Arvie) appeals the district
court's dismissal of his 42 U.S.C. § 1983 suit for failure to
exhaust administrative remedies under 42 U.S.C. § 1997e(a)(1). We
affirm.
Facts and Proceedings Below
Arvie, an inmate at the Dixon Correctional Institute in
Jackson, Louisiana, filed this section 1983 suit on January 27,
1993, against numerous prison officials, alleging various
constitutional violations associated with his confinement.1 In his
1
On April 5, 1993, Arvie filed an amended complaint. Arvie
named some thirty-five defendants, including the prison
basketball coach, the mayors of Jackson, Louisiana, and Baton
Rouge, Louisiana, a fellow inmate, and a "Ms. John Doe," the
mother of the fellow inmate. Arvie alleged, inter alia, that he
was denied access to the courts and the right to correspond in
violation of the First Amendment; that he was denied adequate
medical care, ventilation, sanitation, and recreation in
violation of the Eighth Amendment; that prison officials
retaliated against him for exercising his constitutional rights;
and that prison officials conspired to deny him his
1
pro se complaint, Arvie sought both monetary and injunctive
relief.2 The district court referred Arvie's case to a magistrate
judge, who, on April 14, 1993, issued a 90-day stay order pursuant
to 42 U.S.C. § 1997e, ordering Arvie to exhaust the administrative
remedies provided by the Louisiana Department of Public Safety and
Corrections. This order informed Arvie that failure to exhaust
these administrative remedies would result in the dismissal of his
suit with prejudice. After the 90-day period expired, Defendants
filed a Notice of Failure to Exhaust Administrative Remedies and
the affidavit of Carlos Messina (Messina), the General
Administrator of the Louisiana Department of Public Safety and
Corrections, Administrative Remedy Procedure. In his affidavit,
Messina averred that Arvie had failed to exhaust his administrative
constitutional rights.
2
In his prayer for relief in his original complaint, Arvie
requested that the court:
"(1) issue a permanent injunction against the state
officials in their official capacity from implementing
additional unconstitutional violations of federally
protected rights, and state local laws giving rise to
due process of law; (2) a declaratory judgment enter
[sic] declaring the rights of DCI prisoners violated
[sic]; (3) require the defendants, in their personal
capacities, to hereby pay money damages in the amount
of nine hundred million dollars ($900.000.000), or a
sum reasonable in the premises jointly, severally, and
in solido for any damages caused (e.g., lost [sic] of
valuable evidence) or otherwise to the prisoners of DCI
or otherwise; (4) permit monetary damages; (5)
equitable relief or any other relief deemed appropriate
here; and (6) require the named defendants to advance
all costs of the proceeding, together with judicial
interest collectively, it is so prayed."
In his amended complaint, Arvie requested that "the court
grant the relief requested in the initial pleading."
2
remedies.
On July 23, 1993, the magistrate judge issued an order
directing Arvie to show cause why his complaint should not be
dismissed for failure to exhaust administrative remedies as
required under 42 U.S.C. § 1997e(a)(1). Rejecting Arvie's
arguments to the contrary, the magistrate judge determined that he
had "not made a good faith attempt to exhaust the administrative
remedy procedure" and recommended that the district court dismiss
his complaint pursuant to 42 U.S.C. § 1997e(a)(1). On February 15,
1994, the district court adopted the magistrate judge's report and
recommendation and dismissed Arvie's complaint with prejudice.
Arvie filed a timely notice of appeal March 10, 1994. This Court
granted Arvie's motion to proceed in forma pauperis on appeal.
Discussion
Arvie argues that he exhausted his administrative remedies,
and in the alternative, that he made a good faith effort to exhaust
his administrative remedies; therefore, he contends that the
district court erred in dismissing his suit under section 1997e.
Because we find that the magistrate judge properly determined that
Arvie failed to make a good faith attempt to exhaust his
administrative remedies, we reject these arguments. We now turn to
an issue that Arvie does not raise in his pro se brief: whether,
in light of McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117
L.Ed.2d 291 (1992), the district court properly invoked section
1997e's exhaustion requirement to dismiss Arvie's section 1983 suit
seeking both injunctive and monetary relief.
3
Section 1997e(a)(1) of the Civil Rights of Institutionalized
Persons Act of 1980 provides,
"[I]n any action brought pursuant to section 1983 of this
title by an adult convicted of a crime confined in any jail,
prison, or other correctional facility, the court shall, if
the court believes that such a requirement would be
appropriate and in the interests of justice, continue such
case for a period of not to exceed 180 days in order to
require exhaustion of such plain, speedy, and effective
administrative remedies as are available." 42 U.S.C. §
1997e(a)(1).3
In Rocky v. Vittorie, 813 F.2d 734 (5th Cir.1987), we held that
"district courts have power to dismiss [section 1983] suits,
following a section 1997e continuance, if a prisoner fails to
pursue his administrative remedies." Id. at 736. The court in
Rocky also held that, before dismissing a suit with prejudice under
section 1997e, the district court must determine whether the
plaintiff "made a good faith attempt to exhaust his administrative
remedies." Id. at 737. We reasoned that this additional
requirement was consistent with congressional intent, pointing to
the statutory language that continuances be granted "in the
interests of justice" and section 1997e(a)(2)'s requirement that
the administrative grievance procedures must meet minimum federal
standards. Id. at 736. See Martin v. Catalanotto, 895 F.2d 1040,
1042 (5th Cir.1990) (recognizing that the prison grievance
procedures set up by the Louisiana Department of Public Safety and
Corrections meet section 1997e's minimal requirements).
In light of the Supreme Court's decision in McCarthy v.
3
Section 1997e originally provided for a 90-day continuance.
In September 1994, Congress amended the statute to change the
length of the continuance to 180 days.
4
Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), we
need to reconsider our case law interpreting section 1997e's
exhaustion requirement. In McCarthy, a federal prisoner filed a
Bivens suit against prison officials, seeking monetary damages for
alleged deliberate indifference to his serious medical needs. No
injunctive or declaratory relief was sought. The district court
dismissed the suit because the plaintiffs failed to exhaust
administrative remedies. The Tenth Circuit affirmed, reasoning
that courts may impose an exhaustion requirement for the filing of
Bivens complaints. The Supreme Court reversed. Because the facts
of McCarthy involved a Bivens claim asserted by a federal prisoner,
the exhaustion requirement of section 1997e did not apply.
Nevertheless, the defendants in McCarthy argued that section 1997e
represented a congressional policy favoring exhaustion of prison
grievance procedures before filing constitutional claims against
prison officials in federal court. Rejecting this argument, the
Court noted that section 1997e specifically conditioned the
exhaustion requirement on the existence of "effective
administrative remedies" and emphasized that the prison grievance
procedures at issue did not provide for the award of monetary
damages. Id. at 150, 153-54, 112 S.Ct. at 1089, 1091. Thus, the
Court held that a district court cannot require exhaustion of
administrative remedies if a prisoner files a Bivens suit seeking
only monetary damages and the prison grievance system does not
afford such a remedy. Id. at 155, 112 S.Ct. at 1092.
Although McCarthy involved a Bivens suit by a federal
5
prisoner, we have applied its reasoning to other types of prisoner
suits. Thus, in Rourke v. Thompson, 11 F.3d 47 (5th Cir.1993), we
affirmed a district court's dismissal of a prisoner's in forma
pauperis petition under 28 U.S.C. § 2241 seeking injunctive relief
for various asserted constitutional violations for failure to
exhaust administrative remedies. Because the district court
dismissed the suit before service of process, we characterized the
district court's action as the dismissal of a frivolous petition
under 28 U.S.C. § 1915(d). Id. at 49. Noting that the plaintiff
in Rourke sought only injunctive relief, we distinguished McCarthy
and held that "a federal prisoner seeking only injunctive relief
must first exhaust the administrative remedies provided by the
Bureau of Prisons." Id. at 50. In so holding, the Rourke panel
specifically stated that "we express no opinion as to the proper
result" in a case involving "a mixed claim for both injunctive and
monetary relief." Id. at 50 & n. 9.
The Rourke panel reasoned that its holding was consistent with
McCarthy, emphasizing that "the result [in McCarthy ] might well
have been different had the federal prisoner sought injunctive
relief." Id. at 50. Although Rourke did not involve a section
1983 suit, its holding that inmates must exhaust administrative
remedies before filing suit for injunctive relief in the federal
court properly applies to section 1983 suits by state prisoners
seeking injunctive relief. Thus, pursuant to section 1997e, a
district court may dismiss a prisoner's section 1983 suit seeking
only injunctive and/or declaratory relief if the plaintiff has
6
failed to make a good faith attempt to exhaust administrative
remedies.4
Arvie's suit presents the precise issue left open by the court
in Rourke: whether section 1997e's exhaustion requirement applies
to an inmate's section 1983 suit seeking both injunctive and
monetary relief. Id. at 50 & n. 9. In McCarthy, the Supreme Court
noted that "On the first page of his [the prisoner's] complaint he
wrote: "This Complaint seeks Money Damages Only.' " Id. at 142,
4
We note that there is dicta in McCarthy that calls into
question the power of a district court to dismiss a prisoner's
suit under section 1997e. Emphasizing that the purpose of
section 1997e is to permit the district court to stay the action
while the plaintiff exhausts his administrative remedies, the
Court in McCarthy stated that "§ 1997e does not authorize
dismissal of an action for failure to exhaust." Id. at 150, 112
S.Ct. at 1089. In Rourke, a post-McCarthy decision, we held that
a district court "may dismiss [a prisoner's suit] under § 1915(d)
if [administrative] remedies have not been exhausted." Rourke,
11 F.3d at 49.
Because Rourke did not involve a section 1997e
dismissal, we did not specifically consider whether a
district court, after McCarthy, has the power under section
1997e to dismiss a section 1983 suit for failure to exhaust
administrative remedies. Today we follow our pre-McCarthy
holding that a district court may dismiss an inmate's
section 1983 suit under section 1997e for failure to exhaust
administrative remedies. Rocky, 813 F.2d at 736. We
continue to adhere to the reasoning of the panel in Rocky:
"The structure and purpose of section 1997e persuades
us that Congress intended that district courts have
power to dismiss suits, following a section 1997e
continuance, if a prisoner fails to pursue his
administrative remedies. Without the prospect of such
a dismissal, a prisoner could circumvent the exhaustion
requirement by simply doing nothing for ninety days and
then resuming his litigation in the district court. To
further Congress's intent to foster expeditious and
congenial resolution of prisoner grievances, we believe
a district court must have the power to enforce the
exhaustion requirement with the threat of a dismissal
with prejudice." Id.
7
112 S.Ct. at 1085 (emphasis added). See also id. ("he sought only
money damages"); id. at 152, 112 S.Ct. at 1090 ("the prisoner
seeking only money damages has everything to lose and nothing to
gain from being required to exhaust") (emphasis added). In
rejecting the contention that nonmonetary administrative relief
might adequately respond to the prisoner's concerns, McCarthy
observed: "... we cannot presume, as a general matter, that when
a litigant has deliberately foregone injunctive relief and has
singled out discrete past wrongs, specifically requesting monetary
compensation only, that he is likely to be interested in "other
things.' " Id. at 154, 112 S.Ct. at 1091 (emphasis added).
Finally, McCarthy states: "Petitioner concedes that if his
complaint contained a prayer for injunctive relief, exhaustion
principles would apply differently. Brief for Petitioner 20, n.
20. Were injunctive relief sought, the grievance procedure
probably would be capable of producing the type of corrective
action desired." Id. at 153 n. 5, 112 S.Ct. at 1091 n. 5. Taken
together, the implication of these statements is that exhaustion
could properly have been required in McCarthy, had the complaint
sought both damages and injunctive relief.
The Eleventh Circuit has addressed this issue in two
post-McCarthy cases involving Bivens actions by federal prisoners.
In Caraballo-Sandoval v. Honsted, 35 F.3d 521 (11th Cir.1994), the
court affirmed a district court's dismissal of one of the plaintiff
inmate's claims seeking injunctive and monetary damages because he
failed to exhaust administrative remedies. Id. at 525 ("Because
8
Caraballo-Sandoval requested more than just money damages, the
district court properly dismissed his claim for failure to exhaust
administrative remedies.").5 See also Irwin v. Hawk, 40 F.3d 347,
348 (11th Cir.1994) (reasoning that the rule of Caraballo-Sandoval
requiring an inmate seeking both injunctive and monetary relief to
exhaust administrative remedies before filing suit in federal court
is not inconsistent with McCarthy ).6 Although Irwin and
Caraballo-Sandoval both involved Bivens actions, their reasoning
applies equally to section 1983 suits by state prisoners. We agree
with the reasoning of the Eleventh Circuit and therefore hold that
the exhaustion requirement of section 1997e applies to a prisoner's
section 1983 suit seeking both monetary and injunctive relief.7
5
The district court's dismissal in Caraballo-Sandoval was
"without prejudice pending the exhaustion of administrative
remedies." Caraballo-Sandoval, 35 F.3d at 524. This dismissal
without prejudice is the functional equivalent of the continuance
ordered by the district court here.
6
See also Young v. Quinlan, 960 F.2d 351, 357, 356 & n. 8
(3d Cir.1992) (post-McCarthy decision stating in dicta that
prisoner seeking both injunctive and monetary relief in Bivens
suit must exhaust administrative remedies before filing suit in
federal court).
7
Arvie does not argue that he cannot recover monetary
damages through the prison administrative procedures, and the
record does not reflect whether monetary damages are available
through the Louisiana prison administrative procedures. Our
research, however, indicates that the Louisiana Department of
Public Safety and Corrections administrative procedures now
permit prisoners to recover monetary damages for some claims.
See LSA-RS 15:1171 (stating that prison administrative procedures
provide for monetary, declaratory, and injunctive relief for
prisoners' complaints about conditions of confinement, medical
malpractice, personal injuries, time computations, and challenges
to rules, regulations, policies, or statutes); Bellard v.
Louisiana Correctional & Indus. Sch., 647 So.2d 1237, 1239
(La.Ct.App.3d Cir.1994) (stating that Louisiana prison
administrative remedies were amended in 1989 to provide the
9
Because Arvie failed to make a good faith effort to exhaust his
administrative remedies, the district court properly dismissed his
suit under section 1997e.
Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
Louisiana Department of Public Safety and Corrections with the
authority to award monetary damages in personal injury claims by
inmates).
While it appears that Louisiana prison administrative
procedures would permit Arvie to recover money damages for
some of his claims (at least for his claims related to the
conditions of his confinement), we note that a district
court may require exhaustion of administrative remedies
under section 1997e whenever an inmate seeks both injunctive
and monetary relief, regardless of whether monetary relief
is available. See Caraballo-Sandoval, 40 F.3d at 525
("Because Caraballo-Sandoval requested more than just money
damages, the district court properly dismissed his claim for
failure to exhaust administrative remedies.").
10