Hessbrook v. Lennon, 84-1075

• Decision Date: 04 December 1985
• Docket Number: No. 84-1075,84-1075
• Citation: 777 F.2d 999
• Parties: Dan S. HESSBROOK, Plaintiff-Appellant, v. M.C. LENNON, Jr., D.A. French, and J. Saxman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 999

777 F.2d 999

Dan S. HESSBROOK, Plaintiff-Appellant, v. M.C. LENNON, Jr., D.A. French, and J. Saxman, Defendants-Appellees.

No. 84-1075.

United States Court of Appeals Fifth Circuit.

Dec. 4, 1985.

Rehearing Denied Jan. 30, 1986.

Dan S. Hessbrook, pro se.

Edward C. Prado, U.S. Atty., Hugh P. Shovlin, Asst. U.S. Atty., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RANDALL, JOHNSON, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant is a federal prisoner. His Bivens ¹ action seeking monetary damages, and no other relief, for an alleged violation of his Eighth Amendment rights was dismissed without prejudice by the federal district court for his failure to exhaust administrative remedies. We affirm the holding that exhaustion is required, but remand for consideration of whether the suit should be held in abeyance, with jurisdiction retained, pending exhaustion, rather than being presently dismissed.

Facts and Proceedings Below

Appellant Dan S. Hessbrook is a federal prisoner incarcerated in the Federal Correction Institution (FCI) at Bastrop, Texas. On June 17, 1982, acting pro se, he filed this civil suit in the court below alleging violations of his Eighth Amendment rights. He asserted that he had been denied adequate medical attention, and that he had been provided with an inadequate and ill-suited pair of shoes, which aggravated a prior foot injury and a tendency, caused by diabetes, for his feet to swell. ² The complaint alleges "medical and mental damage being to the extent of $1,500,000 all being a severe deprivation of Plaintiff's Right to protection under the 8th Amendment to the U.S. Constitution." The only relief sought is that the "Court find Defendants ... at fault; and thereby grant Plaintiff Judgment in the amount of $1,500,000; to be paid in equal shares by said Defendants herein." The court referred the matter to a magistrate.

On August 30, 1982, appellees filed a motion to dismiss, alleging Hessbrook's failure to exhaust administrative remedies, and his failure to file a Federal Tort Claims Act (FTCA) claim. On March 8, 1983, the district court directed appellant to show cause why his suit should not be dismissed for nonexhaustion. Appellant responded by arguing that he should be excused from the exhaustion requirement because the administrative remedies available to him were inadequate. He predicated this assertion primarily on the contention that prison officials had no authority to award money damages for constitutional torts. Appellant did acknowledge that he might be able to obtain compensatory damages under the FTCA, but not punitive damages. The magistrate recommended dismissal for appellant's failure to exhaust, basing his recommendation in part upon a determination that a federal prisoner "challenging the conditions of his confinement" must first seek redress through the Federal Bureau of Prisons, which has been charged with primary responsibility for the supervision of prisoners. The magistrate also found that Hessbrook had failed to show that he had no effective means other than through the judiciary to remedy the alleged infringement of his constitutional rights, a prerequisite for a Bivens action. Over appellant's objections to the magistrate's recommendations, the district court, on December 6, 1983, dismissed appellant's suit without prejudice. This appeal followed.

Exhaustion of Administrative Remedies

Federal Tort Claims Act and Bivens claims are not mutually exclusive. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The district court dismissed the case without prejudice over appellant's contention that, by asserting a Bivens action for money damages, he was not required to exhaust administrative remedies. We must determine whether the legal independence of FTCA- and Bivens-type claims suffices to excuse a federal prisoner from a requirement that he exhaust available administrative remedies before asserting his Bivens claim for money damages in the federal courts. ³ We conclude that, even where only money damages are sought, maintenance of a Bivens claim by a federal prisoner, at least where he complains of his treatment as a prisoner by the prison authorities and the allegedly tortious conduct is not clearly wholly outside the FTCA, does not alone suffice to excuse the requirement that the prisoner exhaust possibly available administrative remedies.

The Nature of the Cause of Action

Bivens actions are "premised on the theory that victims of a constitutional violation by a federal agent have an implied right of action to recover damages against the official absent any statute conferring such a right." Muhammad v. Carlson, 739 F.2d 122, 124 (3d Cir.1984) (citation omitted).

The FTCA provides a remedy for a "negligent or wrongful act or omission" by an officer or employee of the federal government acting within the scope of his employment. 28 U.S.C. Sec. 2672. Certain specific kinds of tort claims, however, are expressly excluded from the FTCA. 28 U.S.C. Sec. 2680(h). Thus, broadly speaking, the FTCA provides a waiver of the sovereign immunity of the United States for negligence actions, but not for certain intentional torts, ⁴ which, if they violated a constitutional right, would often be actionable instead by a Bivens-type suit. Congress amended the FTCA exclusions section in 1974 to expressly retain a subset of the otherwise excluded torts, when committed by federal "investigative or law enforcement officers." ⁵

Appellant's complaint does not expressly predicate his suit upon the FTCA. Instead it asserts a violation of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated. But the FTCA exclusions in section 2680 do not obviously and clearly preclude an FTCA cause of action by appellant, and on brief appellant suggests that he "probably does have a valid tort claim within the scope of the FTCA." Appellant recites further that he "firmly believes he also has a valid claim arising directly under the Constitution and has chosen that implied cause of action to address the wrongs done him. He may not be relegated to FTCA with its attendant [exhaustion] requirements.... His failure to file an administrative claim ... is irrelevant." (Emphasis added.) Reading the complaint broadly and as a whole, it is by no means wholly clear that only an intentional tort of the kind excluded from the FTCA is alleged. ⁶ We cannot find, therefore, as a matter of law, even accepting all the allegations of appellant's complaint as true, that appellant's claim necessarily falls outside actions covered by the FTCA, even if it might also be properly maintained as a Bivens-type action.

The Exhaustion Requirement

The exhaustion of administrative remedies doctrine requires not that only administrative remedies selected by the complainant be first exhausted, but instead that all those prescribed administrative remedies which might provide appropriate relief be pursued prior to seeking relief in the federal courts. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); see also McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 1662-63, 1664, 23 L.Ed.2d 194 (1969); Patsy v. Florida International University, 634 F.2d 900, 903-04 (5th Cir.1981) (en banc), rev'd and remanded on other grounds sub nom. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Such a policy is echoed by the FTCA itself, which requires that claims asserted under that Act be first submitted to the relevant agency. 28 U.S.C. Sec. 2675(a); see also 28 C.F.R. Sec. 14.2(b)(1). We perceive no reason, in a case where, as here, the FTCA appears to hold open the possibility of providing some relief, why the mere election to proceed under a substantially similar, if independent, cause of action should permit a federal prisoner to circumvent a clearly enunciated congressional policy favoring administrative settlement of tort claims against the United States or its employees or officers, see S.Rep. No. 1327, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 2515, 2518 ("Another objective ... is to reduce unnecessary congestion in the courts."), and so to artificially avoid the procedural prerequisites to maintaining such a suit in the federal courts.

Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action. See, e.g., Patsy v. Florida International University, 634 F.2d at 903-04.

Appellant asserts that the Bureau's own regulations preclude the administrative consideration of tort claims. He points to language respecting the Bureau's "Administrative Remedy Procedure" ⁷ contained in Subpart B of 28 C.F.R. Part 542: "Filings will not be accepted under the Administrative Remedy Procedure for tort claims ..." 28 C.F.R. Sec. 542.12. We think, however, that appellant misconstrues the scope of this prohibition. In particular, we note that Subpart C of Part 543--a provision wholly distinct from Subpart B of Part 542--provides expressly for Bureau consideration of FTCA claims, including a mandate that "[t]he Bureau of Prisons shall consider administrative claims asserted under the Federal Tort Claims Act in accordance with the provisions of 28 CFR 14.1 et seq." 28 C.F.R. Sec. 543.30. ⁸ We think it clear, therefore, that the tort claim prohibition contained in 28 C.F.R. Sec. 542.12 is not applicable to FTCA claims. ⁹ We reject appellant's assertion that to require him to exhaust administrative remedies is to require him to seek remedies unavailable to him through the administrative process, that is, to engage in a patently futile course of action.

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