Pratt v. Hurley

• Citation: 79 F.3d 601
• Decision Date: 18 March 1996
• Docket Number: 95-3440,Nos. 95-3327,s. 95-3327
• Parties: Anthony PRATT, Plaintiff-Appellant, v. John M. HURLEY, Warden, Federal Correctional Institution, Oxford, Wisconsin, Defendant-Appellee. Anthony PRATT, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 601

79 F.3d 601

Anthony PRATT, Plaintiff-Appellant, v. John M. HURLEY, Warden, Federal Correctional Institution, Oxford, Wisconsin, Defendant-Appellee.

Anthony PRATT, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS, et al., Defendants-Appellees.

Nos. 95-3327, 95-3440.

United States Court of Appeals Seventh Circuit.

Submitted Feb. 2, 1996.

Decided March 18, 1996.

Appeals from the United States District Court for the Western District of Wisconsin, Nos. 95-C-388-S & 95-C-561-S; John C. Shabaz, Chief Judge.

Anthony Pratt, submitted on briefs, Chicago, IL, pro se.

Leslie K. Herje, Office of U.S. Atty., Madison, WI, for defendant-appellee.

Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Anthony Pratt, a federal prisoner, filed two Bivens actions. The first seeks damages for inadequate library facilities, which Pratt alleges deprived him of access to the courts, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), by causing him to lose a state case. (Pratt says that the prison library does not have Wisconsin's rules of procedure in its collection, and that failure to comply with these rules led the state court to dismiss his suit.) The second, filed two months after the first, seeks damages on account of the defendants' decision not to place Pratt in a community corrections center. The district court allowed Pratt to proceed in forma pauperis in the first case but soon dismissed it for failure to exhaust remedies within the Bureau of Prisons. The court denied the request to proceed in forma pauperis in the second case, explaining: "Since the instant case is not of an exceptional or emergency nature, petitioner [sic] will be required to resolve his pending case before pursuing this one." Then the judge certified that appeals in both cases are frivolous. Pratt now asks us to certify that the appeals are not frivolous, so that he may pursue them. See 28 U.S.C. § 1915(a). We make that finding and on one appeal summarily reverse the dismissal.

There is no exhaustion rule for damages suits by federal prisoners. McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Pratt wants not only damages but also an injunction that would require the prison library to improve its collection, remain open for additional hours, and provide more assistance to prisoners. Citing a footnote in McCarthy, the district court held that the presence of an equitable claim leads to dismissal of legal and equitable claims alike. Yet the footnote does not say this. It reads:

Petitioner concedes that if his complaint contained a prayer for injunctive relief, exhaustion principles would apply differently. Were injunctive relief sought, the grievance procedure probably would be capable of producing the type of corrective action desired. Additionally, because of the continuing nature of conduct subject to injunctive relief, the short filing deadlines would pose less difficulty because the limitations period would be triggered anew by ongoing conduct.

503 U.S. at 153 n. 5, 112 S.Ct. at 1091 n. 5 (citation omitted). We may assume that the Bureau of Prisons' grievance procedures are "capable of producing the type of corrective action desired" to the extent Pratt wants more books, more help, and longer library hours, along the lines of Casey v. Lewis, 43 F.3d 1261 (9th Cir.1994), cert. granted, --- U.S. ----, 115 S.Ct. 1997, 131 L.Ed.2d 999 (1995) (argued Nov. 29, 1995). They are not capable of compensating Pratt for what he lost in the state case. Moreover, delay while Pratt pursues the multiple levels of administrative review creates a substantial risk that, by the time the Bureau of Prisons delivers its answer, the statute of limitations will have run on the request for damages.

Falcon v. U.S. Bureau of Prisons, 52 F.3d 137 (7th Cir.1995), on which the district court relied, does not hold that a Bivens suit combining a request for money on account of past injury, with a request for an injunction to prevent future injury, may be dismissed on exhaustion grounds. Falcon sought a writ of habeas corpus and disclaimed any request for either injunctive relief or damages. In passing the court declared that, if the suit had been recast as a demand for an injunction, exhaustion would have been required for the same reason it is required of petitioners who seek writs of habeas corpus. Falcon has nothing to do with cases seeking both damages and injunction. But there is support for the district court's position in other circuits. E.g., Caraballo-Sandoval v. Honsted, 35 F.3d 521 (11th Cir.1994); Irwin v. Hawk, 40 F.3d 347 (11th Cir.1994); see also Arvie v. Stalder, 53 F.3d 702, 705-06 (5th Cir.1995) (approving these cases, albeit in a suit governed by 42 U.S.C. § 1997e).

These decisions, and equivalent unpublished orders in two other circuits, rely on footnote 5 of McCarthy. Both the opinions and the unpublished orders assume that the court has only two options: (a) entertain the requests for damages and injunction without requiring exhaustion, or (b) dismiss the entire suit, requiring the prisoner to exhaust. It is understandable that the courts thought (b) the preferable course, given the ability of the administrative process to avoid the need for the judicial branch to intervene in the management of prisons. Yet there are at least two other options: (c) entertain the request for damages while requiring exhaustion of the demand for prospective relief; and (d) stay proceedings on the request for damages while the prisoner pursues administrative relief. Option (d) has the support of cases such as Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988), which held that when a federal court abstains to let state judges have first crack at a question, the court must stay rather than dismiss a federal suit seeking damages, if the state tribunal cannot award damages. Just so here, for the Bureau of Prisons cannot give Pratt the damages he seeks. See McCarthy, 503 U.S. at 156-57, 112 S.Ct. at 1092-93 (Rehnquist, C.J., concurring). As in both McCarthy and Deakins, dismissal puts injured parties at risk of losing their damages claims (on limitations...