UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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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).
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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
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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.
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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.
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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
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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.
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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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