UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40536
KEVIN UNDERWOOD,
Plaintiff-Appellant,
VERSUS
MICHAEL WILSON, Senior Warden, Michael Unit; ROBERT HERRERA,
Assistant Warden, Michael Unit; ALTON D. CASKEY, Assistant Warden
Michael Unit; EDWARD L. GALLOWAY, Chief of Classification, Michael
Unit, DOUGLAS W. SATTERFIELD, Administrative Tech III, Michael
Unit; RAYMOND BYRD, Major, Michael Unit,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
August 14, 1998
Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
On October 8, 1996, Kevin Underwood, Texas prisoner #579650,
filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against
various officials of the Michael Unit, alleging that the defendants
assigned him to jobs which forced him to perform work beyond his
physical capabilities and medical work restrictions. He sought
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monetary and injunctive relief.
Beginning on October 15, 1996, through March 18, 1997, the
district court entered numerous orders continuing the case to allow
Underwood to exhaust his administrative remedies. On March 31,
1997, the magistrate judge recommended that Underwood’s complaint
be dismissed without prejudice for failure to exhaust
administrative remedies.
Underwood objected, arguing that the magistrate judge failed
to determine whether he had made a reasonable and good-faith effort
to pursue his administrative remedies, and failed to determine
whether the remedies were “adequate and speedy.” He argued that
after filing suit he had attempted to exhaust his administrative
remedies.
The district court overruled Underwood’s objections and noted
that 42 U.S.C. § 1997e had been amended and no longer provides the
court the opportunity to continue cases until a prisoner has
exhausted his administrative remedies, but it requires that such a
case be dismissed. The district court conceded that the
administrative grievance procedure is often slow, but found that
Underwood had failed to provide “a meritorious reason for failing
to exhaust his administrative remedies prior to bringing a
lawsuit.” The district court ordered that the complaint be
dismissed with prejudice for purposes of proceeding in forma
pauperis pursuant to 28 U.S.C. § 1915(d). Underwood filed a timely
notice of appeal. The district court granted him leave to proceed
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IFP on appeal and entered a payment schedule.
ANALYSIS
Underwood argues on appeal that the district court erred in
dismissing his complaint with prejudice for failure to exhaust his
prison administrative remedies. Underwood argues that before
dismissing his complaint with prejudice, the district court was
required to determine whether he had made a good-faith attempt to
exhaust his administrative remedies. He also argues that the
district court erred in dismissing his complaint without
determining whether the available administrative remedies were
“adequate and speedy” and certified to be in compliance with
statutory minimum standards.
Until the enactment of the Prison Litigation Reform Act of
1995(“PLRA”), Pub. L. No. 104-134, § 803, 110 Stat. 1321 (Apr. 26,
1996), § 1997e provided that in any action brought under § 1983 by
a prisoner,
the court shall, if the court believes that such a
requirement would be appropriate and in the interests of
justice, continue such a case for a period not to exceed
180 days in order to require exhaustion of such plain,
speedy, and effective administrative remedies as are
available. (2) The exhaustion of administrative remedies
under paragraph (1) may not be required unless the
attorney general has certified or the court has
determined that such administrative remedies are in
substantial compliance with the minimum acceptable
standards promulgated under subsection (b) of the section
or are otherwise fair and effective.
1997e(a)(West 1994).
This court has held that a district court can dismiss a § 1983
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suit following a continuance if the prisoner fails to pursue his
administrative remedies. See Rocky v. Vittorie, 813 F.2d 734, 736
(5th Cir. 1987). Before dismissing a § 1983 suit with prejudice
under this former version of § 1997e, the district court was
required to determine whether the plaintiff had “made a good-faith
attempt to exhaust his administrative remedies.” See id. at 737.
The court has also held that § 1997e’s exhaustion requirement
applies to a prisoner’s § 1983 suit seeking both injunctive and
monetary relief. Arvie v. Stalder, 53 F.3d 702, 706 (5th Cir.
1995).
However, as part of the PLRA, Congress amended § 1997e which
now provides that
no action shall be brought with respect to prison
conditions under § 1983 . . . by a prisoner confined in
any jail, prison, or other correctional facility until
such administrative remedies as are available are
exhausted.
§ 1997e(a)(West Supp. 1997). Because Underwood filed his complaint
after April 26, 1996, the PLRA’s amendment to § 1997e applies to
his complaint.
The Tenth Circuit recently explained that
Congress amended § 1997e to make the “exhaustion
provisions mandatory rather than directory.” Historical
and Statutory Notes, 42 U.S.C.A. § 1997e (West Supp.
1997). Under the pre-PLRA version of § 1997e, courts
were directed to stay actions not administratively
exhausted. If the court believe[d] that such a
requirement would be appropriate and in the interests of
justice.” 42 U.S.C. §1997e(a)(1)(1994)(amended 1996).
Under the current version, by contrast, courts are
directed that “[n]o action shall be brought . . . until
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such administrative remedies as are available are
exhausted.” 42 U.S.C.A. § 1997e(a)(West Supp. 1997).
Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997).
Under the present version of § 1997e, the district court is no
longer required to determine whether a prisoner such as Underwood
has reasonably and in good-faith pursued his administrative
remedies. Thus, Underwood’s argument that the district court erred
in failing to make such a finding, lacks an arguable basis in law.
Similarly, the current version of § 1997e requires exhaustion of
“such administrative remedies as are available.” It no longer
requires “exhaustion of such plain, speedy, and effective
administrative remedies as are available.” § 1997e(a)(1)(1994).
Nor does it require certification or determination that such
administrative remedies comply with minimal standards. Compare §
1997e (West Supp. 1997), with § 1997e(a)(2)(1994).
Our task is to determine what the revised version of § 1997e
requires of Underwood and whether he has met those requirements.
1. The jurisdictional implications of amended § 1997e.
A statute requiring exhaustion of administrative remedies may
be jurisdictional if it is “more than a codified requirement of
administrative exhaustion” and contains “sweeping and direct”
statutory language that goes beyond a requirement that only
exhausted actions be brought. See Weinberger v. Salfi, 422 U.S.
749, 757 (1975). For example, the Supreme Court has held that
language in the Social Security Act mandating utilization of
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administrative procedures is jurisdictional. Id. That
determination turned on the fact that cited portions of the statute
in question made the administrative decision of the Secretary
“binding,” set forth limited procedures for judicial review, and
denied the existence of any civil cause of action arising under the
Social Security Act. Id. (reading 42 U.S.C. § 405(h) to dictate
that “[n]o action . . . shall be brought under 28 U.S.C. § 1331).
In contrast, § 1997e(a) contains no such sweeping and direct
language barring federal question jurisdiction under 28 U.S.C. §
1331. Rather than proscribing the existence of a federal cause of
action, the Civil Rights Act specifically creates a civil cause of
action. See 42 U.S.C. § 1983 (“Every person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by
the constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proceeding for redress
. . .”). Section 1997e(a) merely provides that “[n]o action shall
be brought . . . until such administrative remedies as are
available are exhausted.” This is precisely the type of language
held in Weinberger v. Salfi not to limit federal jurisdiction. See
Zipes v. TransWorld Airlines, 455 U.S. 385, 393 (1982)(holding that
under Title VII the filing of a timely charge with the EEOC is not
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a jurisdictional prerequisite to suit in federal court but rather
a requirement, like a statute of limitations, that is subject to
waiver, estoppel, and equitable tolling.); cf. Sharpe v. FDIC, 126
F.3d 1147, 1155 (9th Cir. 1997)(finding the administrative
exhaustion requirement imposed by FIRREA to be a jurisdictional bar
in light of the broad language -- “no court shall have
jurisdiction” -- contained in 12 U.S.C. § 1821(d)(12)(D)).
Other courts have concluded that § 1997e does not deprive
federal courts of jurisdiction. See Write v. Morris, 111 F.3d 414,
421 (6th Cir. 1997)(“Section 1997e(a), in contrast, contains
neither the sweeping and direct language of [42 U.S.C.] § 405(b)
nor that statute’s explicit bar to district court jurisdiction.”),
cert. denied, 118 S. Ct. 263 (1997); see also Lacey v. C.S.P.
Solano Medical Staff, ___ F.Supp.___, 1997 WL 819927 (E.D.Cal. Dec.
22, 1997). This conclusion is further supported by 42 U.S.C. §
1997e(c)(1)&(2). Under these provisions, a district court must
screen prisoner complaints and dismiss those that are frivolous or
malicious and those that fail to state a claim or seek monetary
relief from a defendant who is immune from such relief. See §
1997e(c)(1). The statute provides that the court may dismiss such
claims without requiring the exhaustion of administrative remedies.
See § 1997e(c)(2). The court would not be empowered to do so if
the exhaustion provision deprived the court of jurisdiction over
the action. See Lacey, 1997 WL 819927, at *9 n.4.
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We therefore conclude that § 1997e does not impose exhaustion
of administrative remedies as a prerequisite to jurisdiction.
Accordingly, the district court had subject matter jurisdiction
over Underwood’s claim.
2. Defining “available” and exhaustion
We now turn to the task of statutory construction and begin
by examining the language of the statute itself. See United States
v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994). In the absence of
definition within the statute, statutory terms are to be construed
in accordance with their ordinary meaning. See Asgrow Seed Co. v.
Winterboer, 513 U.S. 179, 187 (1995).
Nowhere in the PLRA did Congress provide a definition of “such
administrative remedies as are available.” See § 1997e(a).
Webster’s New International Dictionary defines “available” as
“capable of availing; having sufficient power or force to achieve
an end,” “such as may be availed of: capable of use for the
accomplishment of a purpose: immediately utilizable,” and “that is
accessible or may be obtained: personally obtainable.” Webster’s
New Int’l Dictionary, 150 (3rd ed. 1981). “Exhaust” is defined as
“to take complete advantage of (legal remedies).” Id. at 796.
During the time period relevant to this case, TDCJ had a three
step grievance process. There is no dispute that Underwood timely
filed his grievances and appeals at each step of the TDCJ process.
Underwood alleged that, under the TDCJ Grievance Procedures, the
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Deputy Director of TDCJ “is to render a final decision on a step
three grievance within twenty-six days of receipt by the Unit
Grievance Coordinator from the inmate.” Underwood alleged in
pleadings before the district court that his step-three grievance
was filed on March 3, 1997 and he had not received a response as of
April 8, 1997, more that twenty-six days later. The district
court, adopting the recommendation of the magistrate judge, held
that plaintiff had not exhausted his administrative remedies. The
court rejected Underwood’s position that the administrative
remedies were exhausted at the end of the twenty-sixth day after
the filing of a step-three grievance. There is nothing in the
record of this court that indicates that there is any TDCJ
grievance procedure available to Underwood after the time set for
a step-three grievance response. The court “noted” that it
“receives hundreds of cases each year where inmates have exhausted
their administrative remedies. The prison system processes each
and every grievance filed properly, albeit somewhat slowly at
times.” It appears that the district court held that either the
prison has unlimited time to respond to grievances or that the
district court has discretion to extend the prison’s self-imposed
time limits. Because Congress clearly intended to limit district
court’s discretion when it amended § 1997e, see supra, we hold that
available administrative remedies are exhausted when the time
limits for the prison’s response set forth in the prison Grievance
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Procedures have expired. See Rourke v. Thompson, 11 F.3d 47, 51
n.10 (5th Cir. 1993) (noting the “substantial effort exception” to
the exhaustion requirement); Shah v. Quinlin, 901 F.2d 1241, 1244
(5th Cir. 1990) (commenting that prisoner may be excused from
exhausting administrative remedy where “irregularities in the
administrative process itself” prohibited him from so doing);
Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982) (commenting
that administrative remedy is inadequate where prison officials
ignore or interfere with prisoner’s pursuit of relief). Therefore,
on April 8, 1997 Underwood had exhausted TDCJ’s available
administrative remedies.
The magistrate judge’s finding that “[t]he plaintiff has not
shown proof that he has exhausted his administrative remedies” is
inapposite. Dismissal under § 1997e is made on pleadings without
proof. As long as the plaintiff has alleged exhaustion with
sufficient specificity, lack of admissible evidence in the record
does not form the basis for dismissal.
Next, because we may affirm the dismissal on valid alternative
grounds, we must determine whether the fact that Underwood’s
administrative remedies were exhausted after he filed his § 1983
suit, rather than before, justifies the dismissal. Because § 1997e
requires exhaustion of administrative remedies before an action is
brought in federal court, a strict reading of the statute would
dictate dismissal of Underwood’s claims. However, a non-
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jurisdictional exhaustion requirement may, in certain rare
instances, be excused, particularly where dismissal would be
inefficient and would not further the interests of justice or the
Congressional purposes behind the PLRA. See McCarthy v. Madigan,
503 U.S. 140, 146-49 (1992). According to Senate sponsor Orrin
Hatch, the PLRA “will help bring relief to a civil justice system
overburdened by frivolous prisoner lawsuits. . . . Our legislation
will also help restore balance to prison conditions litigation and
will ensure that Federal Court Orders are limited to remedying
actual violations of prisoners’ rights.” 141 Cong.Rec. S14, 408
(daily ed. Sept. 27, 1995)(statement of Sen Hatch). Because
Underwood has now complied with the requirement to exhaust
administrative remedies, dismissing the suit and requiring him to
refile is inefficient. However, dismissal may serve as a deterrent
to premature filing by Underwood and other potential litigants,
thus serving the Congressional purpose of providing relief from
frivolous prisoner litigation. Therefore, we cannot say that in
the circumstances of this case, the district court erred in
refusing to suspend § 1997e’s pre-filing exhaustion requirement.
We therefore affirm the district court’s dismissal of
Underwood’s § 1983 claim.
3. With or without prejudice
Underwood also argues that the district court erred in
dismissing his complaint with prejudice instead of without
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prejudice.
The district court dismissed Underwood’s complaint with
prejudice “for purposes of proceeding in an in forma pauperis
proceeding pursuant to 28 U.S.C. § 1915(d).” We review that ruling
for abuse of discretion. Marts v. Hines, 117 F.3d 1504, 1506 (5th
Cir. 1997) (en banc), cert. denied, 118 S. Ct. 716 (1998).
“Dismissals under the [IFP] statute are in a class of their own,
acting not as dismissals on the merits but, rather, as denials of
[IFP] status. Typically, but not exclusively, such dismissals may
serve as res judicata for subsequent in forma pauperis filings, but
they effect no prejudice to the subsequent filing of a fee-paid
complaint making the same allegations.” Id. at 1505. In Marts,
the court determined that dismissals as frivolous or malicious
under 28 U.S.C. § 1915(e)(2) should be deemed to be dismissals with
prejudice unless the district court specifically dismisses without
prejudice. Id. at 1506. We must now determine whether the
district court abused its discretion in dismissing Underwood’s suit
with prejudice to the refiling with IFP status based on his failure
to exhaust administrative remedies.
By choosing to file and pursue his suit prior to exhausting
administrative remedies as required, Underwood sought relief to
which he was not entitled -- that is, federal court intervention in
prison affairs prior to the prison having had the opportunity to
address the complaint within its grievance procedures. We
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therefore affirm the district court’s order dismissing Underwood’s
action with prejudice for purposes of proceeding IFP.
CONCLUSION
For the foregoing reasons, the district court’s order is
affirmed.
AFFIRMED.
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