F I L E D
United States Court of Appeals
Tenth Circuit
MAY 18 2000
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
RICHARD J. MILLER,
Plaintiff-Appellant,
v.
JOHN MENGHINI, President, Impact
Design, Inc.; JOSEPH MENGHINI,
General Manager, Impact Design, Inc.;
DAVID MENGHINI, Supervisor,
Impact Design, Inc.; IMPACT
DESIGN, INC.; LEONARD L.
ELWELL, Director of Administration,
Kansas Correctional Industries;
DAVID R. MCKUNE, Warden, No. 99-3401
Lansing Correctional Facility;
CHARLES E. SIMMONS, Secretary,
Department of Corrections; KANSAS
DEPARTMENT OF CORRECTIONS,
Landon State Office Building, A.
DOE, Assistant Warden of Operations,
Lansing Correctional Facility; B.
DOE, Assistant Warden of Programs,
Lansing Correctional Facility; C.
DOE, C. Doe through P. Doe, Lansing
Correctional Facility; C. DOE, C. Doe
through P. Doe, Impact Design,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 99-3249-GTV)
Submitted on the briefs: *
Richard J. Miller, Pro Se.
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
SEYMOUR, Chief Judge.
Richard Miller, a pro se prisoner, brought this civil rights complaint under
42 U.S.C. § 1983 asserting numerous constitutional claims related to his private
prison industry work assignment. He seeks monetary and injunctive relief. The
district court sua sponte dismissed the action under 42 U.S.C. § 1997e(a) based on
Mr. Miller’ failure to exhaust administrative remedies. We affirm in part, reverse
in part, and remand for further proceedings.
Mr. Miller’s complaint is governed by section 1997e(a) as amended by the
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 803, 110 Stat. 1321
(1996) (PLRA). That section now provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
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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. Miller contends that in light of Garrett v. Hawk, 127 F.3d
1263 (10th Cir. 1997), dismissal under section 1997e(a) was improper because he
is seeking money damages and no administrative procedures are available to
provide that relief. We review de novo a dismissal pursuant to section 1997e(a).
Id. at 1264.
We addressed section 1997e(a) in Garrett with respect to a Bivens claim
brought by a federal prisoner seeking money damages for the alleged violation of
his constitutional rights under the Eighth Amendment. We pointed out that under
the current version of the statute, exhaustion of administrative remedies is
mandatory. Id. at 1265. We further held, however, that if no administrative
remedies are available, dismissal under that provision is improper. Id. at 1266.
We reversed the dismissal in that case because the plaintiff sought money
damages, a remedy that the available administrative procedures did not provide.
We concluded “that no exhaustion of administrative remedies is required under
PLRA in this case because no such remedies exist to be exhausted.” Id. at 1267.
Although in Garrett the plaintiff sought only money damages, we have
applied its holding, albeit in unpublished dispositions, in cases where as here the
plaintiff seeks both monetary and injunctive relief. See Fever v. Booker, No. 98-
-3-
3239, 1999 WL 136922 (10th Cir. Mar. 15, 1999); Florence v. Booker, No. 98-
3153, 1998 WL 694521 (10th Cir. Oct. 6, 1998). 1 In those cases, we reversed the
dismissal of the monetary claims. While unpublished cases do not constitute
precedent, see 10th Cir. R. 36.3, we find these cases persuasive. Although
Garrett, Fever and Florence involved Bivens claims brought by federal prisoners
in which federal administrative procedures are at issue, we see no reason why
their analysis is not also applicable to state prisoners bringing civil rights claims
under section 1983 since section 1997e(a) covers both kinds of lawsuits. Accord
Booth v. Churner, 206 F.3d 289, 300 (3d Cir. 2000); Rumbles v. Hill, 182 F.3d
1064, 1069 (9th Cir. 1999).
1
The courts have varied widely in applying the exhaustion requirement of
section 1997e(a) to claims for money damages when administrative remedies do
not provide monetary relief. Compare Wright v. Hollingsworth, 201 F.3d 663,
665-66 (5th Cir. 2000) (section 1983 claim seeking only monetary relief may not
be dismissed for failure to exhaust administrative remedies that do not provide
money damages); and Rumbles v. Hill, 182 F.3d 1064, 1066-70 (9th Cir. 1999)
(same, recognizing circuit split), with Booth v. Churner, 206 F.3d 289, 300 (3d
Cir. 2000) (section 1983 claimant seeking both injunctive and monetary relief
must exhaust administrative remedies even if they do not provide money
damages); Lavista v. Beeler, 195 F.3d 254, 256-57 (6th Cir. 1999) (same applied
to Bivens claimant); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 537-
38 (7th Cir. 1999) (section 1983 claimant seeking only monetary relief must
exhaust administrative remedies even if they do not provide money damages); and
Alexander v. Hawk, 159 F.3d 1321, 1325-27 (11th Cir. 1998) (Bivens claimant
seeking both injunctive and monetary relief must exhaust administrative remedies
that do not provide money damages). See also Liner v. Goord, 196 F.3d 132, 135
(2d Cir. 1999) (noting unsettled state of law, reversing sua sponte dismissal of
section 1983 claim for failure to exhaust administrative remedies, and remanding
for answer from defendants and more complete record).
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Mr. Miller is not required to exhaust his claim against state prison officials
for monetary damages because no available state administrative procedures
provide that remedy. In dismissing the entire action, the district court did not
distinguish between Mr. Miller’s monetary and injunctive claims and did not
address the existence or adequacy of state procedures with respect to Mr. Miller’s
monetary claims. Accordingly, dismissal of those claims was improper.
Dismissal of Mr. Miller’s claims for injunctive relief, however, was appropriate.
See Florence, 1998 WL 694521 at *2.
We REVERSE with respect to Mr. Miller’s claims for monetary relief and
REMAND those claims for further consideration in light of this ruling. We
AFFIRM the dismissal of Mr. Miller’s claim for injunctive relief.
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