Lavista v. Beeler, 97-6295

• Decision Date: 12 August 1999
• Docket Number: No. 97-6295,97-6295
• Citation: 195 F.3d 254
• Parties: (6th Cir. 1999) Paul Lavista, Plaintiff-Appellant, v. A.F. Beeler, et al., Defendants-Appellees. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 254

195 F.3d 254 (6th Cir. 1999)

Paul Lavista, Plaintiff-Appellant, v. A.F. Beeler, et al., Defendants-Appellees.

No. 97-6295

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: August 12, 1999

Decided and Filed: October 26, 1999

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington; No. 96-00404--Henry R. Wilhoit, Jr., Chief District Judge.

Thomas J. Banaszynski, GITTLEMAN & BARBER, Louisville, Kentucky, for Appellant.

Frances E. Catron, OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellees.

Before: MERRITT, KENNEDY, and DAUGHTREY, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Plaintiff Paul Lavista, a federal inmate confined at the Federal Medical Center-FMC Lexington at the time he filed this complaint, appeals the dismissal of his civil rights action for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). ¹ Plaintiff brought claims against named and unnamed defendants, all in their official and individual capacities, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Americans with Disabilities Act, 42 U.S.C. §§ 12101 - 12213, the Rehabilitation Act of 1973, 28 U.S.C. § 794(a), the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 and the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, alleging, inter alia, denial of medical care, sexual harassment and sexual assault, destruction of personal property and retaliation during his incarceration at FMC-Lexington.

Plaintiff is legally blind and wheelchair bound. His allegations of misconduct and violations of his constitutional rights during his incarceration are numerous and will be mentioned only briefly here. Many of his claims revolve around the allegation that the facility is not equipped for a visually-impaired person in violation of the Americans with Disabilities Act - for example plaintiff claims that he is repeatedly robbed by fellow inmates and staff at the facility because he cannot see, he is forced to sign documents he cannot read and he claims the facility is simply not equipped to provide for his needs or safety as a visually-impaired person. He also claims that he was sexually assaulted on at least two occasions by a prison employee and then threatened with retaliation if he reported the assaults. Plaintiff contends that he has suffered severe emotional distress as a result of the assaults and that the facility has been deliberately indifferent to his medical needs. Plaintiff also claims that he has had his tape recorder confiscated, and that he was "maliciously" placed in segregation. The defendants have denied all of plaintiff's allegations.

The district court, adopting the Magistrate Judge's Report and Recommendation, held that plaintiff's claims against the defendants in their official capacities for damages were dismissed as barred by the doctrine of sovereign immunity, ² and the claims for declaratory and injunctive relief, as well as the claims against prison employees in their individual capacities, were dismissed without prejudice on the basis of plaintiff's failure to exhaust administrative remedies. Order dated Sept. 17, 1997.

The primary issue presented in this appeal is whether a federal inmate filing a complaint pursuant to Bivens, seeking monetary, injunctive and declaratory relief, must first exhaust his or her administrative remedies under § 1997e(a) of the Prison Litigation Reform Act of 1996. Defendants contend that the exhaustion requirement applies to plaintiff's claims and his complaint was properly dismissed for failure to exhaust administrative remedies. Plaintiff argues that exhaustion of his administrative remedies through the Bureau of Prisons is not required and the district court erred in dismissing his complaint.

Plaintiff's first argument is that § 1997e does not apply to federal prisoners. Before passage of the Reform Act, § 1997e applied only to state prisoners because the statute addressed only state action. See McCarthy v. Madigan, 503 U.S. 140 (1992). However, the plain language of the new statute and the legislative history of the Reform Act indicate that Congress intended that all prisoners, including federal prisoners, be required to exhaust their available administrative remedies before bringing a Bivens claim in federal court. As one congressman stated during floor debate, "[t]he new administrative exhaustion language in [the Reform Act] will require that all cases brought by Federal inmates contesting any aspect of their incarceration be submitted to the administrative remedy process before proceeding to court." 141 Cong. Rec. H14078-02, H141105 (daily ed. Dec. 6, 1995) (remarks of Congressman Lobiondo); see also Garrett v. Hawk, 127 F.3d 1263, 1265-66 (10th Cir. 1997).

Plaintiff also contends that because he cannot receive monetary damages through the Bureau of Prisons Administrative Remedy Program he has no "available" remedy under the Reform Act. The case on which plaintiff relies, however, and under which he conducts his analysis, McCarthy v. Madigan, 503 U.S. 140 (1992), is no longer controlling in light of the exhaustion requirement in §1997e(a) as amended. McCarthy held that federal prisoners bringing a Bivens action that sought only money damages were not required to exhaust the Bureau of Prisons grievance procedure. McCarthy withheld ruling on whether exhaustion would be required where a federal prisoner sought injunctive or other relief, in addition to monetary relief, like the plaintiff herein. Finally, McCarthy recognized that when Congress specifically mandates exhaustion, it is required and the courts may not excuse the requirement. With the passage of the Reform Act, Congress has now specifically mandated the exhaustion of remedies through the prison grievance system. Even before passage of the Reform Act, this Court held that federal prisoners seeking injunctive relief must exhaust administrative remedies before coming to federal court, even if the prisoner also asserts a claim for monetary damages. Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir. 1987).

Every circuit court that has addressed the issue has held that if a federal prisoner asserts a Bivens claim seeking both injunctive and monetary relief, like plaintiff here, exhaustion through the Bureau of Prison's grievance procedure is required for at least those claims seeking nonmonetary relief. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999) (extending reasoning in prior Bivens action to § 1983 suit by state prisoner); Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); Whitley v. Hunt, 158 F.3d 882, 886 (1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). There is a split in the circuits regarding whether a federal prisoner seeking only monetary damages must exhaust administrative remedies before filing a Bivens action in federal court. Three circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997). In contrast, the Eleventh Circuit has held that even where the federal prison system denies review in such money damages cases, the federal prisoner must still attempt to have his complaint reviewed. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); see also Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 535 (7th Cir. 1999) (state prisoner seeking only monetary damages, which state system does not provide, must exhaust administrative remedies).

Although it may make sense to excuse exhaustion of the prisoner's complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints, even though it will not pay damages. Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir. Oct. 6, 1999). Here, because plaintiff seeks injunctive and declaratory relief, as well as monetary damages, he may be successful in having the Bureau of Prisons at least review its policies and procedures concerning disabled persons at their facilities. If so, presenting his claims to the Bureau of Prisons first would not be futile, even if he cannot receive monetary damages³.

Plaintiff also contends that because he commenced an...