Holloway v. Gunnell

• Decision Date: 09 September 1982
• Docket Number: No. 81-2344,81-2344
• Citation: 685 F.2d 150
• Parties: Winston HOLLOWAY, Plaintiff-Appellant, v. Robert GUNNELL, Warden, FCI, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 150

685 F.2d 150

Winston HOLLOWAY, Plaintiff-Appellant, v. Robert GUNNELL, Warden, FCI, et al., Defendants-Appellees.

No. 81-2344

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Sept. 9, 1982.

Claude R. Treece (court appointed not under Act), Houston, Tex., for plaintiff-appellant.

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

Before CLARK, Chief Judge, REAVLEY and RANDALL, Circuit Judges.

REAVLEY, Circuit Judge:

This is a pro se action by a federal prisoner against several officers of the federal prison in Texarkana, Texas. Plaintiff claims that during a brief stay in the Texarkana prison these officers (1) subjected him to cruel and unusual punishment, (2) denied him access to the courts, and (3) placed him in disciplinary confinement without due process of law. The district court permitted plaintiff to file his complaint in forma pauperis, but it dismissed the complaint prior to service of process on the defendants. The defendants have never appeared in this action and have not filed a brief in this appeal.

The district court based its dismissal on the grounds (1) that plaintiff was making some of his allegations in an improper venue; (2) that plaintiff failed to exhaust his administrative remedies; (3) that the complaint did not state claims of constitutional dimension. We conclude that the district court's dismissal on the first two grounds was premature. We also conclude that dismissal of plaintiff's claims of "disciplinary confinement without due process" and "denial of access to the courts" was premature. We agree with the district court, however, that plaintiff's claim of cruel and unusual punishment is frivolous. Therefore, we affirm the dismissal of the Eighth Amendment claim, and we reverse and remand for further proceedings on plaintiff's other two claims. ¹

I. The Complaint-A Brief Overview

We assume that the plaintiff's allegations are true. He is an inmate in a federal prison in Terre Haute, Indiana. In August of 1980, he was transferred for about two months to the federal prison in Texarkana so that he could attend court proceedings. He claims that on one occasion he has been, and will in the future be, transferred again for further court proceedings.

His complaint concerns allegedly unconstitutional conditions on the bus that takes him from Terre Haute to Texarkana, and in the prison at Texarkana. He seeks damages as well as declaratory and injunctive relief against the defendant prison officials.

II. Rules Governing Dismissal of the Complaint

The handling of in forma pauperis complaints is governed by 28 U.S.C. § 1915 and the rules established by this court in Watson v. Ault, 525 F.2d 886 (5th Cir. 1976). Generally, a pauper's complaint cannot be dismissed prior to service of process unless "frivolous or malicious" within the meaning of 28 U.S.C. § 1915(d). See Watson v. Ault, 525 F.2d at 892-93. While the question of "frivolousness" usually concerns the merits of the complaint, we assume arguendo that a pauper's complaint may also be dismissed prior to service of process for lack of venue or failure to exhaust administrative remedies if the deficiency is so clear that it renders plaintiff's attempt to prosecute the suit frivolous. ² We conclude, however, that the district court's conclusions concerning venue and exhaustion were in error.

III. Venue

The district court held that venue was improper for plaintiff's claims concerning occurrences on his bus rides. The court believed that plaintiff's only possible damage remedy was under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Under the FTCA's venue provisions an action "may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b). Because the occurrences on the bus took place in states other than Texas, the district court reasoned, venue was improper.

In Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), however, the Supreme Court held that the FTCA is not the sole damages remedy for unconstitutional prison conditions. The Court held that the prisoner has an implied cause of action under the Constitution itself against the responsible prison officials. In so holding, the Court stressed the differences between the implied constitutional remedy and the FTCA remedy, see id. at 18-24, 100 S.Ct. at 1472-74, and concluded, "Plainly FTCA is not a sufficient protector of the citizens' constitutional rights ...." Id. at 23, 100 S.Ct. at 1474.

Since plaintiff attempted to bring this suit against federal officers directly under the Constitution, his remedies are not limited by the requirements of the FTCA. Thus, the FTCA venue statute is not controlling. Because there is no specific venue statute for implied actions under the Constitution, the court must look to the general venue statutes, 28 U.S.C. §§ 1391-1393; see generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3804 (1976) (hereinafter Wright & Miller).

The general venue statutes allow a federal question case to be brought not only in the district where the acts or omissions occurred, but also, for example, in the district "where all defendants reside." 28 U.S.C. § 1391(b). It is possible that venue is proper in this case because of the residence of the defendants. ³ It would be inappropriate for this court to make a final determination on this issue, however, since plaintiff has made no allegations attempting to explain why the district is a proper venue. ⁴ Nor is he required to do so. 15 Wright & Miller, supra, § 3826, at 166-67. "(T) he burden is on the defendant to object in a proper and timely fashion if he thinks venue improper." Id. at 167. Since the district court has not yet required the defendants to answer, it would be inappropriate for the court to anticipate a venue problem under the general venue statutes.

We limit ourselves, therefore, to holding that the district court's conclusion concerning venue was in error.

IV. Exhaustion of Remedies

The district court held that the plaintiff had failed to exhaust his administrative remedies, but it did not specify what the unexhausted remedies were. The court's failure is troublesome because the complaint contains a detailed description of plaintiff's attempts to secure an administrative remedy. The problem is compounded by the lack of an adversary to show how plaintiff's attempts to exhaust were deficient.

The Bureau of Prisons' administrative remedy procedure is contained in part 542 of 28 C.F.R. The first step in the procedure is informal resolution. 28 C.F.R. § 542.13(a) (1981). If that fails, the inmate "may file a formal written complaint, on the appropriate form." Id. § 542.13(b). The "appropriate form" has been identified in Bureau of Prisons policy statements as a "BP-DIR-9." E.g., Thompson v. United States, 492 F.2d 1082, 1086 (5th Cir. 1974) (appendix). "If the inmate is not satisfied with the Warden's response" to the initial complaint,

that response may be appealed on the appropriate form to the Regional Director within twenty (20) calendar days of the date of the Warden's response. If the inmate is not satisfied with the Regional Director's response, that response may be appealed on the appropriate form to the General Counsel within thirty (30) calendar days from the date of the Regional Director's response.

28 C.F.R. § 542.15 (1981). The "appropriate form" for an appeal has been identified in Bureau of Prisons policy statements as a "BP-DIR-10." Thompson v. United States, 492 F.2d at 1086 (appendix).

Plaintiff alleges that the occurrences at issue began on August 22, 1980. He further alleges that he requested an informal resolution on August 29, and filed BP-DIR-9's on September 2 and September 5. He claims that the first complaint was returned to him on September 22 without a satisfactory resolution, and that the second complaint was never returned to him. He alleges that he then sent a BP-DIR-10 to the Regional Director, which was returned to him marked "REFUSED" on October 10.

Plaintiff alleges that he filed yet another DP-DIR-9 on October 16, which was returned by the warden without a response on October 20, shortly before the plaintiff returned to Terre Haute. Plaintiff says he resubmitted the same complaint to the warden by mail from Terre Haute, and that he received a response on November 12 informing him that his complaints concerning the Texarkana prison were moot.

Finally, plaintiff alleges that he appealed "all" of these responses to the General Counsel on November 18. He does not tell us what the General Counsel's response was.

These allegations indicate that plaintiff's attempts to exhaust his administrative remedies may have been deficient. While plaintiff's appeal to the Regional Director from the response to his early September complaints appears to have been timely, more than 30 days elapsed before plaintiff filed his final administrative appeal with the General Counsel. Plaintiff never sought an intermediate appeal of his October 20 complaint, but appealed directly to the General Counsel.

Nevertheless, we cannot conclude that the possible deficiencies revealed by plaintiff's complaint warrant dismissal of the complaint as "frivolous or malicious." First, we do not know on what basis the General Counsel rejected plaintiff's appeal. If the appeal was denied on its merits rather than on the ground that it was untimely or that an intermediate appeal had not been taken, there would be no reason for the court to refuse to consider the claim on its merits. Second, plaintiff drafted his own complaint, and we do not think that a pro se complaint should be dismissed on its face by a technical reading of the available administrative procedures when plaintiff has made detailed allegations showing a substantial effort to obtain an administrative remedy, cf. Estelle v. Gamble, 429...