355 F.3d 1204 (10th Cir. 2003), 02-1492, Steele v. Federal Bureau of Prisons

Docket Nº:02-1492.
Citation:355 F.3d 1204
Party Name:Victor STEELE, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS; Warden Holt; Christine Cooper; Daryl Kosiak, and Unknown BOP Persons, Defendants-Appellees.
Case Date:December 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1204

355 F.3d 1204 (10th Cir. 2003)

Victor STEELE, Plaintiff-Appellant,


FEDERAL BUREAU OF PRISONS; Warden Holt; Christine Cooper; Daryl Kosiak, and Unknown BOP Persons, Defendants-Appellees.

No. 02-1492.

United States Court of Appeals, Tenth Circuit

December 29, 2003

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[Copyrighted Material Omitted]

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Submitted on the briefs [*]: Victor Steele, pro se.

John W. Suthers, United States Attorney, and John M. Hutchins, Assistant United States Attorney, Denver, CO, for Defendants-Appellees.

Before HARTZ, BALDOCK, and McCONNELL, Circuit Judges.

BALDOCK, Circuit Judge.

A provision of the Prison Litigation Reform Act (PLRA) directs that "[n]o action shall be brought with respect to prison conditions" until a prisoner exhausts his available administrative remedies. 42 U.S.C. § 1997e(a) (amended by Pub.L. 104-134, Title I, § 101(a), 110 Stat. 1321-71 (1996)). In this case, the district court dismissed the lost-property claims of plaintiff Victor Steele, a federal prisoner proceeding pro se and in forma pauperis, for failure to exhaust administrative remedies. We affirm the judgment of the district court and, in doing so, resolve several procedural issues relating to PLRA exhaustion.


For disciplinary reasons, Steele was taken from his cell and placed in the special housing unit at the United States Penitentiary in Florence, Colorado. Bureau of Prisons (BOP) employees detained the personal items he left in his cell. Upon his release from the special housing unit, Steele's belongings were missing. Steele, who valued his missing property at $247.10, filed an administrative tort claim alleging the loss of property within a BOP institution as a result of BOP staff negligence. He did not commence a grievance under the separate administrative procedure for complaints about prison conditions. See Hylton v. Fed. Bureau of Prisons, No. CV 00-5747 (RR), 2002 WL 720605, at *2 (E.D.N.Y. Mar. 11, 2002) (describing difference between grievance processes for prison-condition complaints and for tort claims). The BOP offered to settle the administrative tort claim for $9.30, but Steele declined the offer.

Steele then filed this action in district court, using the form for prisoners' civil-rights complaints provided by the District of Colorado. On the complaint form, he answered "yes" to a question asking whether he had "exhausted available administrative remedies." R., Doc. 4 at 5. He did not "explain the steps taken," as directed, but he did attach documents relating to his tort claim for proof of exhaustion. Id. at 5, 5a-5c.

The complaint, construed liberally, asserted a tort claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80, and a civil-rights claim brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). It named as defendants the BOP and BOP employees Warden Holt, Christine Cooper (the paralegal specialist who conveyed the settlement offer to Steele), Daryl Kosiak (the regional counsel who authorized the settlement offer), and other unknown BOP personnel. Alleging that defendants abused the tort-claim process and conspired to violate his property rights, Steele sought compensatory damages or replacement of the missing property.

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Defendants moved to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They asserted that the court lacked subject matter jurisdiction over the FTCA claim because the government had not waived its sovereign immunity in connection with the detention of goods by law enforcement officers. Concerning the Bivens claim, defendants argued that Steele had failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a), and therefore could not pursue the claim in federal court. In support of their motion, defendants submitted affidavits and other evidentiary material which confirmed that Steele had filed an administrative tort claim, but had not pursued administrative remedies concerning a prison-conditions claim.

In response, Steele did not claim that he had completed the grievance process applicable to a prison-conditions claim or that he had been prevented from participating in the process. Instead, he asserted that the grievance procedure is generally inaccessible to inmates because the mandatory first step requires cooperation of a staff member. He contended that the court should consider the exhaustion requirement satisfied due to a combination of factors: staff's lack of incentive to process a grievance, administrative time limitations, and his following of instructions in connection with the administrative tort claim.

On referral, the magistrate judge recommended that the dismissal motion be granted for nonexhaustion, without specifying the applicable provision of the federal rules of civil procedure. As an additional ground, the magistrate judge recommended dismissal with prejudice for failure to state a constitutional violation. After conducting a de novo review of the recommendation, the district court adopted it and dismissed the entire action with prejudice. Steele filed this appeal.


The Supreme Court has held that § 1997e(a) makes exhaustion "mandatory" for all "inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 524, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The administrative review by correction officials is intended "to reduce the quantity and improve the quality of prisoner suits." Porter, 534 U.S. at 524, 122 S.Ct. 983. It should correct problems in meritorious cases, "filter out some frivolous claims," and, in any event, facilitate adjudication by "clarif[ying] the contours of the controversy." Id. at 525, 122 S.Ct. 983 (quotation omitted).

Under the plain statutory language and the Supreme Court case law, the substantive meaning of § 1997e(a) is clear: "[R]esort to a prison grievance process must precede resort to a court," id. at 529, 122 S.Ct. 983. The procedural framework applicable to § 1997e(a), however, is not so apparent. We take this opportunity to resolve procedural and practical aspects of the PLRA which are not directly addressed in either the statute or Supreme Court case law. 1

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At the outset, we consider whether a failure to meet the exhaustion requirement of § 1997e(a) deprives the federal courts of subject matter jurisdiction over a prisoner's claim. Every federal appellate court faced with the issue has concluded that the § 1997e(a) exhaustion requirement is not a jurisdictional bar. Wyatt v. Terhune, 315 F.3d 1108, 1117 n. 9 (9th Cir. 2003); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002) (Casanova I); Ali v. District of Columbia, 278 F.3d 1 (D.C.Cir. 2002); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000); Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001); Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999); Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000); Curry v. Scott, 249 F.3d 493, 501 n. 2 (6th Cir. 2001); see also Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *3 (10th Cir. Dec.8, 1998) (unpublished).

There are numerous reasons for the circuit courts' unanimity. The most compelling lies within the structure of the statute itself. Through enactment of § 1997e(a), Congress required exhaustion of all available remedies. However, another PLRA provision, 42 U.S.C. § 1997e(c)(2), gives district courts the power to dismiss some claims on their merits even when administrative remedies have not been exhausted. 2 "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). "If exhaustion under the PLRA were jurisdictional, [section 1997e(c)(2)] and the power it gives district courts would make no sense." Nyhuis, 204 F.3d at 70 n. 4. "Because the existence of jurisdiction is a prerequisite to the evaluation and dismissal of a claim on its merits, it follows that that jurisdiction is not divested by the failure to exhaust administrative remedies." Chelette, 229 F.3d at 687.

Another reason for determining that § 1997e(a) is not jurisdictional arises from an application of the Supreme Court's decision in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), in which the Court held that 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." Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998) (quoting Weinberger, 422 U.S. at 757, 95 S.Ct. 2457). Section 1997e(a) "contains neither the sweeping and direct language of [the statute at issue in Weinberger] nor that statute's explicit bar to district court jurisdiction." Wright v. Morris, 111 F.3d 414, 421 (6th Cir. 1997).

Agreeing with our sister circuits, we hold that § 1997e(a) simply codifies the administrative exhaustion doctrine in order to "govern the timing of federal-court decisionmaking," McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). The provision " 'does not defeat federal-court jurisdiction, it merely defers it.' " Thomas v. Woolum, 337 F.3d 720, 730 (6th Cir. 2003)

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(quoting Patsy v.Bd. of Regents of Fla., 457 U.S. 496, 532, 102 S.Ct. 2557...

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