517 F.2d 295 (5th Cir. 1975), 75-1099, Hardwick v. Ault

Docket Nº:75-1099
Citation:517 F.2d 295
Party Name:Bobby HARDWICK, Plaintiff-Appellant, v. Dr. Allen AULT, Commissioner, State Board of Offender Rehabilitation, et al., etc., Defendants-Appellees.
Case Date:August 08, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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517 F.2d 295 (5th Cir. 1975)

Bobby HARDWICK, Plaintiff-Appellant,


Dr. Allen AULT, Commissioner, State Board of Offender

Rehabilitation, et al., etc., Defendants-Appellees.

No. 75-1099


United States Court of Appeals, Fifth Circuit

August 8, 1975

Bobby Hardwick, pro se.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, BELL and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff filed an action under 42 U.S.C. § 1983 seeking damages from named prison officials, alleging that they

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interfered with his right to receive newspapers, books, and writing materials sent him by a correspondent. This appeal comes before us from the action of the district court, dismissing the complaint without prejudice pending the plaintiff's exhaustion of state administrative remedies by submission of his grievance to a newly devised administrative procedure in the Georgia state prisons for processing inmate grievances. The district court took this action in compliance with an earlier order in this case entered September 18, 1974, by another panel of this Court. That panel has now withdrawn and vacated the order of September 18, 1974.

It is, of course, true that the federal courts have imposed upon federal prisoners the requirement that they "exhaust their administrative remedies in accordance with Bureau of Prisons policy". Jones v. Carlson, 5 Cir. 1974, 495 F.2d 209, 210. See also Paden v. United States, 5 Cir. 1970, 430 F.2d 882; Thompson v. Prison Industries, 5 Cir. 1974, 492 F.2d 1082. A federal prisoner typically brings his suit in mandamus. When he does, this Court has required that administrative remedies available within the prison system itself be exhausted before such actions will be entertained. See, e. g., Knight v. Henderson, 5 Cir. 1974, 500 F.2d 389.

The rule for state prisoners is different. The starting point for any discussion of the requirement of exhaustion of administrative remedies under 42 U.S.C. § 1983 is, of course, Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. There it was established that "the federal remedy is supplementary to the state remedy, and the latter need not to be first sought and refused before the federal one is invoked." 365 U.S. at 183, 81 S.Ct. at 482. A line of per curiam opinions of the Supreme Court followed and reinforced the non-exhaustion rule. In the area of administrative remedies generally, the most important of these was perhaps McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. There the Court held that the exhaustion of administrative remedies was not a prerequisite to maintaining the suit, particularly when it appeared that the administrative remedy was not "sufficiently adequate". 373 U.S. at 674, 83 S.Ct. at 1437. But as Justice Harlan pointed out in his dissent, "There is nothing that leaves room for serious doubt as to the efficacy of the administrative remedy which Illinois has provided." 373 U.S. at 677, 83 S.Ct. at 1439.

With the advent of prisoner litigation challenging the conditions of confinement, the Court first faced the problem of exhaustion in the prisoner's rights area in Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319. In Houghton, the state prisoner's § 1983 action was based upon the alleged deprivation of legal materials that he was using to prepare an appeal of his conviction. The Court noted that to require a prisoner to appeal the prison confiscation rules as applied to him to the state attorney general would be "futile". But the Court held: "In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape . . . ; and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647."

Later, in Wilwording v. Swenson, 1971, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418, the Court made it clear that its holding in Houghton did not depend on the adequacy of the state administrative remedies. The Court explicitly stated that "state prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs", and that "although the probable futility of such administrative appeals (in Houghton) was noted, we held that in 'any event, resort to these remedies is unnecessary.' " 404 U.S. at 251-52, 92 S.Ct. at 409.

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In Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, the Court drew a distinction between suits challenging the fact and duration of confinement and those challenging the conditions pertaining to confinement. It noted that the prisoners "could have sought and obtained fully effective relief through federal habeas corpus proceedings". 411 U.S. at 488, 93 S.Ct. at 1835. The Court held that prisoners seeking restoration of good time credits must exhaust adequate and available state remedies as 28 U.S.C. § 2254(b) provides. But, the Court cautioned, its holding extended only to prisoners who "sought no damages, but only equitable relief restoration of their good time credits". "If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release the traditional...

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