159 F.3d 1321 (11th Cir. 1998), 96-3752, Alexander v. Hawk

Docket Nº:96-3752.
Citation:159 F.3d 1321
Party Name:Michael ALEXANDER, Plaintiff-Appellant, v. Kathleen HAWK, Director, Federal Bureau of Prisons, et al., Defendants-Appellees.
Case Date:November 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1321

159 F.3d 1321 (11th Cir. 1998)

Michael ALEXANDER, Plaintiff-Appellant,


Kathleen HAWK, Director, Federal Bureau of Prisons, et al.,


No. 96-3752.

United States Court of Appeals, Eleventh Circuit

November 5, 1998

Page 1322

Allan F. Brooke, II, Bedell, Dittmar, Devault, Pillans & Coxe, P.A., Jacksonville, FL, for Plaintiff-Appellant.

Peter R. Maier, Barbara L. Herwig, Appellate Staff, Civil Division, Dept. of Justice, Washington, DC, for Amicus Curiae United States.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, HULL, Circuit Judge, and MOORE [*], District Judge.

HULL, Circuit Judge:

Michael Alexander, a federal prisoner, brought suit against prison officials claiming that their enforcement of new federal legislation restricting prisoners' access to magazines which are sexually explicit or feature nudity violates his First Amendment rights. Alexander appeals the district court's dismissal of his action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a) (1996). After review, we affirm.

I. Facts

Since 1979, the Federal Bureau of Prisons' ("BOP") regulations have prohibited inmates from receiving sexually explicit materials deemed potentially detrimental to security, good order, or discipline, such as materials depicting sadomasochism, bestiality, or involving children. See 28 C.F.R. §§ 540.70-540.71. In 1996, Congress enacted the Ensign Amendment further prohibiting the BOP from using funds "to distribute or make available ... to a prisoner" any commercially published information or material that "is sexually explicit or features nudity," as follows:

None of the funds made available in this Act to the Federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the federal official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity.

Pub. L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996). 1

In response to the Ensign Amendment, the BOP enacted Program Statement Number 5266.07 and regulations in 28 C.F.R. § 540.72. Section 540.72 defines the Ensign Amendment's terms, such as "nudity," "features," and "sexually explicit." § 540.72(b)(1)-(4). Section 540.72 also explains the BOP's process for returning prohibited materials and for notifying the sender, publisher, and inmate of that action. § 540.72(a).

The Program Statement provides greater detail about how the BOP will determine whether a publication "features nudity" or "is sexually explicit" and how the prohibited materials will be returned. For example, the Program Statement specifically mentions that National Geographic, the Sports Illustrated swimsuit issue, and Victoria's Secret catalog are not considered to "feature nudity," but warns that even these publications could be prohibited if the "current practices" of their publishers change. Id. at 7. The Program Statement provides that "inmates may use the Administrative Remedy Program to appeal return of the material." Id. at 6.

On November 5, 1996, BOP officials notified inmates that these new restrictions would become effective on December 1, 1996, and advised inmates to cancel their subscriptions to any prohibited materials. On November 15, 1996, Alexander filed this Bivens action against the defendants, challenging not only the constitutionality of the Ensign Amendment but also the BOP's interpretation and implementation of the Ensign Amendment through its regulations and Program Statement. Alexander sought an injunction,

Page 1323

declaratory relief, and monetary damages.

On November 20, 1996, the district court sua sponte dismissed without prejudice Alexander's action for failure to exhaust administrative remedies as required by section 1997e(a) of the PLRA. 42 U.S.C. § 1997e(a) (1996). 2 The district court also denied Alexander's motion for injunctive relief due to non-compliance with Federal Rule of Civil Procedure 65 and Local Rules 4.05 and 4.06. Alexander timely appealed. 3

II. Standard of Review

The pre-PLRA section 1997e(a) granted district courts discretion whether to require a prisoner to exhaust his administrative remedies. 4 A district court's dismissal for failure to exhaust was reviewed only for abuse of discretion. See Irwin v. Hawk, 40 F.3d 347, 348 (11th Cir.1994); see also McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992) (noting, in the pre-PLRA context, that "where Congress has not clearly required exhaustion, sound judicial discretion governs").

As outlined in detail later, Congress now has mandated exhaustion in the PLRA. 42 U.S.C. § 1997e(a). Other circuits have held that the standard of review of dismissals for failure to exhaust under the PLRA is de novo. See Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir.1998) (exercising "plenary review" of a district court's dismissal for failure to exhaust administrative remedies under PLRA's section 1997e(a)); White v. McGinnis, 131 F.3d 593, 595 (6th Cir.1997) (reviewing de novo district court's dismissal pursuant to PLRA's section 1997e(a) for failure to exhaust remedies); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir.1997) (same).

While this issue has not been addressed, this Circuit repeatedly has held that a district court's interpretation and application of a statute are subject to de novo review. See, e.g., Ochran v. United States, 117 F.3d 495, 499 (11th Cir.1997) ("We review de novo the district court's ... interpretation and application of the statutory provisions."); Powers v. United States, 996 F.2d 1121, 1123 (11th Cir.1993) ("We review de novo a district court's interpretation and application of a statute."). Thus, we likewise conclude that the district court's interpretation of section 1997e(a)'s exhaustion requirements and application of section 1997e(a) to Alexander's claims are subject to de novo review.

III. Discussion

  1. Section 1997e(a) of the PLRA

    Section 1997e(a) of the PLRA mandates that "no action shall be brought" by a prisoner under any federal law until the prisoner has exhausted all "administrative remedies as are available," as follows:

    No 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

    Page 1324

    remedies as are available are exhausted.

    Id. The PLRA's exhaustion requirement applies because Alexander's Bivens complaint was filed after the April 26, 1996 effective date of the PLRA.

    Congress enacted this mandatory exhaustion requirement in section 1997e(a) as part of the PLRA's effort to curtail frivolous and abusive prisoner litigation. See, e.g., Rivera v. Allin, 144 F.3d 719, 727-28 (11th Cir.1998). As this Court observed in Rivera, "Congress did not enact the PLRA in a vacuum. It held hearings and rendered findings, concluding that prisoners file more frivolous lawsuits than any other class of persons." Id. at 728. Congress found that the number of prisoner lawsuits "has grown astronomically--from 6,600 in 1975 to more than 39,000 in 1994." 141 Cong. Rec. S14408-01, *S14413 (daily ed. Sept. 27, 1995). Indeed, by 1995 more than twenty-five percent of the suits filed in federal district court were brought by prisoners. Roller v. Gunn, 107 F.3d 227, 230 (4th Cir.1997) (citing Administrative Office of the United States Courts, 1995 Federal Court Management Statistics 167). Congress intended section 1997e(a) to "curtail the ability of prisoners to bring frivolous and malicious lawsuits by forcing prisoners to exhaust all administrative remedies before bringing suit in Federal court." 141 Cong. Rec. H1472-06, *H1480 (daily ed. Feb. 9, 1995).

  2. Section 1997e(a) Applies to Federal Prisoners

    Alexander's first contention that section 1997e(a) applies only to state prisoners lacks merit. The pre-PLRA statute did apply only to state prisoners because it addressed only section 1983 actions involving state action. 42 U.S.C. § 1997e(a)(1) (1994) (amended 1996). 5 McCarthy v. Madigan, 503 U.S. 140, 150, 112 S.Ct. 1081, 1089, 117 L.Ed.2d 291 (1992). 6 However, the text of the current section 1997e(a) expressly provides that its exhaustion requirement applies to actions brought "under section 1983 ... or any other Federal law." Thus, section 1997e(a) by its own terms clearly applies to Alexander's Bivens action.

    The Tenth Circuit reached this same conclusion in Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997), where a federal prisoner brought a Bivens action alleging deliberate indifference to his medical needs and use of excessive force. Garrett held that "[b]ecause § 1997e pertains to 'any action brought ... under ... any [ ] Federal law, by a prisoner confined in any jail, prison or other correctional facility,' the exhaustion requirements now apply to Bivens suits brought by federal prisoners against federal officials as well." Id. (citation omitted). 7

    In addition, legislative history makes clear that Congress intended PLRA section 1997e(a) to apply to both state and federal prisoners. See Garrett, 127 F.3d at 1265. Remarks during the floor debate on the PLRA criticized the McCarthy decision and

    Page 1325

    mentioned that since that decision restricting exhaustion to state prisoners "a total of 1,365 new Bivens cases [have been] filed in Federal court tying up the time of Federal judges and lawyers for the Bureau of Prisons at a time when we already have overcrowded dockets." 141 Cong. Rec. H14078-02, *H14105 (daily ed. Dec. 6, 1995). 8 Further remarks were made to the effect that "[t]he new administrative exhaustion language in H.R.2076 [the PLRA] will require that all cases brought by...

To continue reading