Brice v. Day, s. 77-2083
| Citation | 604 F.2d 664 |
| Decision Date | 27 September 1979 |
| Docket Number | 78-1161,Nos. 77-2083,s. 77-2083 |
| Parties | Ted BRICE, Plaintiff-Appellant, v. Warden I. DAY, FCI, El Reno, Charles Hughes, Regional Director of Bureau of Prisons, Norman G. Carlson, Director of Bureau of Prisons, Griffin Bell, Attorney General of the United States, Bureau of Prisons, et al., Defendants-Appellees. Wayne Ray GOWLER, Plaintiff-Appellant, v. Irl E. DAY, Warden FCI, El Reno, Oklahoma, Doug W. Davis, Chief of Classification & Parole FCI, El Reno, Oklahoma, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
William C. McClearn and Barbara Salomon, of Holland & Hart, Denver, Colo., filed briefs on behalf of plaintiffs-appellants.
Larry D. Patton, U. S. Atty., and S. Paul Richards, Asst. U. S. Atty., Oklahoma City, Okl., filed brief on behalf of defendants-appellees.
Before SETH, Chief Judge, and McWILLIAMS and LOGAN, Circuit Judges.
These consolidated appeals are from orders of the trial court which dismissed each action for failure to exhaust administrative remedies. Counsel were appointed for petitioners, and they have been most helpful to the court.
Appellant, Ted Brice, was a prisoner at the Federal Correctional Institution, El Reno, Oklahoma, at the time he filed his pro se complaint. The relief sought was monetary damages from each defendant and "what other relief the court deems fair." His complaint alleged that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment due to overcrowded conditions at the El Reno Institution. More specifically, he asserted that the overcrowding had overtaxed the water system, dining hall, and hospital facility, and that he had suffered mental anguish and medical problems as a result. The Government's position in the district court was that Brice's action should be dismissed for failure to resort to administrative remedies available through the Bureau of Prisons. Brice responded that such exhaustion cannot be required where a prisoner alleges violation of the Constitution. The district court dismissed the action for failure to affirmatively allege use of administrative remedies.
Wayne Ray Gowler's action arose from his brief confinement at the Federal Correctional Institution, El Reno, Oklahoma, as a "transient" or "holdover" inmate from July 19, 1977, to August 2, 1977, and from August 20, 1977, to September 6, 1977. Relief sought included declaratory and injunctive relief and monetary damages, both compensatory and punitive. Gowler's complaint listed five separate claims based on overcrowded conditions at the prison. The action was defended on the ground that Bureau of Prisons' Policy Statement No. 2001.6A (1974) sets forth procedures for formal review of all prisoner complaints, and because Gowler admittedly had not used administrative remedies, summary judgment should be granted the defendants. Gowler's argument in opposition was that the brevity of his stay at El Reno effectively precluded use of administrative remedies. He also urges that monetary damages cannot be obtained through the administrative procedures urged by the Government. The district court granted summary judgment for the reason that Gowler had not used administrative remedies.
Appellants apparently concede that to the extent they sought injunctive, declaratory, or mandamus relief, the district court properly required exhaustion of administrative remedies. They do contend, however, that the doctrine has no application where damages are sought for a constitutional violation. They contend that the Bureau of Prisons' review procedure does not provide for an award of monetary damages. Therefore, they argue, the instant situation is one where exhaustion is not required because the administrative remedy is inadequate or wholly lacking. Furthermore, they style their action after the type recognized by the Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
Davis v. Passman, --- U.S. ----, 99 S.Ct. 2264, 60 L.Ed.2d 846, is the most recent restatement of the criteria set forth in Bivens. Thus a person seeking to recover damages must first assert a constitutionally protected right which has been violated. The violation must, of course, meet the applicable case law standards. See Bell v. Wolfish, --- U.S. ----, 99 S.Ct. 1861, 60 L.Ed.2d 447. Also the complaining party must be entitled to relief which was explained in Davis as a person alleging violation of his constitutional rights and "who at the same time (has) no effective means other than the judiciary to enforce these rights." Furthermore, the complaining party, even after establishing his cause of action, will have his suit dismissed unless he can show that compensatory relief is necessary or appropriate to vindicate the constitutional violation. This last criterion embodies the Supreme Court's cautionary instruction in Bivens that damages are appropriate if there are "no special factors counselling hesitation in the absence of affirmative action by Congress," and an absence of affirmative action by Congress. See also Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895.
Thus with the Court's cautionary instructions in Bivens, and considering Davis v. Passman and Bell v. Wolfish, we must note the extended conditions and requirements for a Bivens cause of action. To determine whether these requirements have been met necessitates some considerable and preliminary examination of the facts, remedies, and other circumstances. The requirements are strict and in the instances before us, it is apparent that preliminary fact-finding would be necessary to determine whether there is a possible Bivens cause of action. In this connection, we note again the requirement in Davis v. Passman that the plaintiff at the time have no effective means other than the judiciary to enforce his rights. The facts necessary for a determination whether these conditions have been met for a Bivens cause of action would be revealed by discovery in the typical case, and in the typical case there is no administrative remedy available. Here, however, these facts have to be otherwise developed and in a manner appropriate to the conditions in which the prospective plaintiff has placed himself.
Thus if we assume that the petitions before us could indicate a Bivens cause of action as the appellants argue, we must nevertheless require an initial administrative inquiry.
The Second Circuit in Hernandez v. Lattimore, --- F.2d ---- (2nd Cir.) (No. 78-2098, June 7, 1979),...
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