111 F.3d 414 (6th Cir. 1997), 95-1837, Wright v. Morris

Docket Nº:95-1837, 95-6451, 95-4160, 95-6366.
Citation:111 F.3d 414
Party Name:John L. WRIGHT, Plaintiff-Appellant, v. Terry L. MORRIS, et al., Defendants-Appellees.
Case Date:April 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 414

111 F.3d 414 (6th Cir. 1997)

John L. WRIGHT, Plaintiff-Appellant,


Terry L. MORRIS, et al., Defendants-Appellees.

Nos. 95-1837, 95-6451, 95-4160, 95-6366.

United States Court of Appeals, Sixth Circuit.

April 11, 1997

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[Copyrighted Material Omitted]

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Thaddeus-X, briefed, Jackson, MI, pro se.

Paul D. Reingold, argued and briefed, Michigan Clinical Law Program, Ann Arbor, MI, for plaintiffs in No. 95-1837.

Earnest Bee, Jr. Jackson, MI, pro se.

Landis Y. Lain, briefed, Susan Przekop Shaw, argued, Office of Atty. Gen., Correction Div., Lansing, MI, for defendants in No. 95-1837.

Susan L. Kay, argued, Vanderbilt Legal Clinic, Nashville, TN, for plaintiff in No. 95-6451.

Edward R. Corley, briefed, Nashville, TN, pro se.

Lisa T. Kirkham, Asst. Atty. Gen., Nashville, TN, for defendants in No. 95-6451.

Eugene F. Mooney, argued and briefed, Mooney, Mooney & Mooney, Lexington, KY, for plaintiff in No. 95-6366.

Tanaka Lee Birdo, briefed, West Liberty, KY, pro se.

John T. Damron, Office of Gen. Counsel, Dept. of Correction, Frankfort, KY, for defendant in No. 95-6366.

Benson A. Wolman, Moots, Cope & Stanton, Columbus, OH, J. Dean Carro, argued and briefed, C. Michael Walsh, briefed, University of Akron School of Law, Appellate Review Office, Akron, OH, for plaintiff in No. 95-4160.

John L. Wright, briefed, Chillicothe, OH, pro se.

Gary D. Andarka, briefed, Todd R. Marti, argued and briefed, Office of Atty. Gen., Corrections Lit. Section, Columbus, OH, for defendants Terry L. Morris, William B. Carmien, Susan Dunn, Roger T. Overberg, Nick J. Sanborn, Don Lubbering, Nancy Howard, Tracy Palmorous, Chris Garen, in No. 95-4160.

Jeffrey Paul Hopkins, briefed, Office of U.S. Atty., Columbus, OH, for defendants Director Bureau of Prisons, Federal Property Resources Service, Director Bureau of Land Management in No. 95-4160.

John H. Burtch, briefed, Karen E. Sheffer, Baker & Hostetler, Columbus, OH, for defendant Donald Roller in No. 95-4160.

John H. Burtch, Baker & Hostetler, Columbus, OH, for defendant Larry A. Pavey in No. 95-4160.

Before ENGEL, MERRITT, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which ENGEL, J., joined. MERRITT, J. (pp. 423-26), delivered a separate dissenting opinion.

MOORE, Circuit Judge.

These four consolidated cases present the question of whether the administrative exhaustion requirement of the Prison Litigation Reform Act of 1996, 1 Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, applies to prisoner civil rights cases that were pending before this court when the Act took effect. For the reasons discussed below, we hold that the administrative exhaustion requirement does not apply to appeals already pending on the enactment date.


We address the merits of plaintiffs' claims in separate opinions; it is therefore sufficient for the purposes of this opinion to

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note that each of the four plaintiffs is an inmate in one of the four state prison systems in this circuit 2 who filed a pro se suit in the appropriate United States district court under 42 U.S.C. § 1983 challenging the conditions of his confinement. None of the inmates contends that he has exhausted all of the administrative remedies which were available at the time of the alleged violations. 3 The cases were filed between 1993 and 1995 and were dismissed by the district courts in 1995. The plaintiffs filed timely appeals.

While these appeals were pending in this court, Congress passed the Prison Litigation Reform Act of 1996 [hereinafter "PLRA" or "Act"], which requires inter alia that inmates exhaust "such administrative remedies as are available" before filing suit challenging prison conditions under § 1983. PLRA § 803(d) (amending 42 U.S.C. § 1997e(a)). The new law was signed by the President on April 26, 1996, and went into effect that same day. See Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066 (6th Cir.1997) (statutes become effective when enacted absent indication to contrary). The clerk of this court chose one case from each state within this circuit and asked attorneys who were involved with prisoner civil rights litigation and attorneys for the four states to submit briefs on the issue of whether the new administrative exhaustion provision applies to these pending cases. 4


We have jurisdiction over these § 1983 cases under 28 U.S.C. §§ 1331, 1291. We examine de novo the purely legal question of whether a new statute applies to pending cases. 5 Lyons, 105 F.3d at 1065-66.


Before this year, prisoners challenging the conditions of their confinement under 42 U.S.C. § 1983 were not, as a rule, required to exhaust administrative remedies before filing suit. Although 42 U.S.C. § 1997e allowed district courts to "continue such case[s] 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," exhaustion was only to be required "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) (1995). See Patsy v. Board of Regents, 457 U.S. 496, 502-07, 102 S.Ct. 2557, 2560-63, 73 L.Ed.2d 172 (1982) (discussing § 1983); id. at 508-12, 102 S.Ct. at 2563-66 (discussing § 1997e). The PLRA, however, amended § 1997e to require that prisoners seeking to bring such claims first exhaust any available administrative remedies. 42 U.S.C. § 1997e(a). The question before us is whether this new requirement should be applied to cases which were filed, dismissed by the district courts, and appealed to this court before the PLRA was signed into law.

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The Supreme Court has determined that, in deciding whether a new statute should be applied to pending cases,

the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, ... it does not govern absent clear congressional intent favoring such a result.

Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). Accordingly, we "first look to the statute's text for an expression that the [Act] should, or should not, apply to pending cases." Lyons, 105 F.3d at 1065.

  1. Textual Analysis

    The PLRA amended 42 U.S.C. § 1997e to read, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other 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) (emphasis added). We believe that Congress, by its use of the highlighted language, "has expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505. The statute expressly governs the bringing of new actions, not the disposition of pending cases. Actions brought before the statute was enacted are not affected by the new administrative exhaustion requirement.

    The Seventh Circuit has used similar reasoning to find that another provision of the PLRA does not apply to pending cases. In Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996), that court had to decide whether a case filed before the PLRA's enactment could be dismissed under the new 28 U.S.C. § 1915(g), which states that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if" he has brought three previous frivolous actions or appeals. 28 U.S.C. § 1915(g) (1996). Judge Easterbrook held for the court that the case should not be dismissed because "[s]ection 1915(g) governs bringing new actions or filing new appeals ... rather than the disposition of existing cases." 91 F.3d at 1025. Similarly, because § 1997e(a) governs only the bringing of actions, it does not affect pending cases.

    Section 802 of the PLRA, which delineates the courts' authority to order prospective relief with respect to prison conditions, lends some additional support to this textual analysis. This section specifically states that the amendment in that section to 18 U.S.C. § 3626 "shall apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title." PLRA § 802(b)(1). Plaintiffs argue expressio unius est exclusio alterius: that because Congress specified that one part of the PLRA applies to pending actions, it must have intended that the rest of the Act does not. Such an argument would usually not be dispositive by itself. See Landgraf, 511 U.S. at 259, 114 S.Ct. at 1493-94; Lyons, 105 F.3d at 1067. Here, however, the text of the new requirement plainly states that "[n]o action shall be brought" without exhaustion of administrative remedies. Thus, it is likely that had Congress intended the new requirement to pertain to pending cases it would have employed the same language as it used in § 802(b)(1) to make that intent clear. This strengthens our conclusion that the text of the PLRA indicates that the new administrative exhaustion requirement applies only to cases filed after the Act's passage.

  2. Impermissible Retroactive Effect

    Even if the language of the statute did not mandate that administrative exhaustion be required only in actions brought after the effective date of the Act, the...

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