Underwood v. Wilson

• Decision Date: 14 August 1998
• Docket Number: No. 97-40536,97-40536
• Citation: 151 F.3d 292
• Parties: Kevin UNDERWOOD, Plaintiff-Appellant, v. Michael WILSON, Senior Warden, Michael Unit; Robert Herrera, Assistant Warden, Michael Unit; Alton D. Caskey, Assistant Warden Michael Unit; Edward L. Galloway, Chief of Classification, Michael Unit, Douglas W. Satterfield, Administrative Tech III, Michael Unit; Raymond Byrd, Major, Michael Unit, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 292

151 F.3d 292

Kevin UNDERWOOD, Plaintiff-Appellant, v. Michael WILSON, Senior Warden, Michael Unit; Robert

Herrera, Assistant Warden, Michael Unit; Alton D. Caskey,

Assistant Warden Michael Unit; Edward L. Galloway, Chief of

Classification, Michael Unit, Douglas W. Satterfield,

Administrative Tech III, Michael Unit; Raymond Byrd, Major,

Michael Unit, Defendants-Appellees.

No. 97-40536.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 1998.

Kevin Underwood, Tennessee Colony, TX, pro se.

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

Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

On October 8, 1996, Kevin Underwood, Texas prisoner # 579650, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against various officials of the Michael Unit, alleging that the defendants assigned him to jobs which forced him to perform work beyond his physical capabilities and medical work restrictions. He sought monetary and injunctive relief.

Beginning on October 15, 1996, through March 18, 1997, the district court entered numerous orders continuing the case to allow Underwood objected, arguing that the magistrate judge failed to determine whether he had made a reasonable and good-faith effort to pursue his administrative remedies, and failed to determine whether the remedies were "adequate and speedy." He argued that after filing suit he had attempted to exhaust his administrative remedies.

Underwood to exhaust his administrative remedies. On March 31, 1997, the magistrate judge recommended that Underwood's complaint be dismissed without prejudice for failure to exhaust administrative remedies.

The district court overruled Underwood's objections and noted that 42 U.S.C. § 1997e had been amended and no longer provides the court the opportunity to continue cases until a prisoner has exhausted his administrative remedies, but it requires that such a case be dismissed. The district court conceded that the administrative grievance procedure is often slow, but found that Underwood had failed to provide "a meritorious reason for failing to exhaust his administrative remedies prior to bringing a lawsuit." The district court ordered that the complaint be dismissed with prejudice for purposes of proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(d). Underwood filed a timely notice of appeal. The district court granted him leave to proceed IFP on appeal and entered a payment schedule.

ANALYSIS

Underwood argues on appeal that the district court erred in dismissing his complaint with prejudice for failure to exhaust his prison administrative remedies. Underwood argues that before dismissing his complaint with prejudice, the district court was required to determine whether he had made a good-faith attempt to exhaust his administrative remedies. He also argues that the district court erred in dismissing his complaint without determining whether the available administrative remedies were "adequate and speedy" and certified to be in compliance with statutory minimum standards.

Until the enactment of the Prison Litigation Reform Act of 1995("PLRA"), Pub.L. No. 104-134, § 803, 110 Stat. 1321 (Apr. 26, 1996), § 1997e provided that in any action brought under § 1983 by a prisoner,

the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such a case for a period not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available. (2) The exhaustion of administrative remedies under paragraph (1) may not be required unless the attorney general has certified or the court has determined that such administrative remedies are in substantial compliance with the minimum acceptable standards promulgated under subsection (b) of the section or are otherwise fair and effective.

1997e(a)(West 1994).

This court has held that a district court can dismiss a § 1983 suit following a continuance if the prisoner fails to pursue his administrative remedies. See Rocky v. Vittorie, 813 F.2d 734, 736 (5th Cir.1987). Before dismissing a § 1983 suit with prejudice under this former version of § 1997e, the district court was required to determine whether the plaintiff had "made a good-faith attempt to exhaust his administrative remedies." See id. at 737. The court has also held that § 1997e's exhaustion requirement applies to a prisoner's § 1983 suit seeking both injunctive and monetary relief. Arvie v. Stalder, 53 F.3d 702, 706 (5th Cir.1995).

However, as part of the PLRA, Congress amended § 1997e which now provides that

no action shall be brought with respect to prison conditions under § 1983 ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

§ 1997e(a)(West Supp.1997). Because Underwood filed his complaint after April 26, 1996, the PLRA's amendment to § 1997e applies to his complaint.

The Tenth Circuit recently explained that

Congress amended § 1997e to make the "exhaustion provisions mandatory rather than directory." Historical and Statutory Notes, 42 U.S.C.A. § 1997e (West Supp.1997). Under the pre-PLRA version of § 1997e, courts were directed to stay actions not administratively exhausted. If Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997).

the court believe[d] that such a requirement would be "appropriate and in the interests of justice." 42 U.S.C. § 1997e(a)(1)(1994)(amended 1996). Under the current version, by contrast, courts are directed that "[n]o action shall be brought ... until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a)(West Supp.1997).

Under the present version of § 1997e, the district court is no longer required to determine whether a prisoner such as Underwood has reasonably and in good-faith pursued his administrative remedies. Thus, Underwood's argument that the district court erred in failing to make such a finding, lacks an arguable basis in law. Similarly, the current version of § 1997e requires exhaustion of "such administrative remedies as are available." It no longer requires "exhaustion of such plain, speedy, and effective administrative remedies as are available." § 1997e(a)(1)(1994). Nor does it require certification or determination that such administrative remedies comply with minimal standards. Compare § 1997e (West Supp.1997), with § 1997e(a)(2)(1994).

Our task is to determine what the revised version of § 1997e requires of Underwood and whether he has met those requirements.

1. The jurisdictional implications of amended § 1997e.

A statute requiring exhaustion of administrative remedies may be jurisdictional if it is "more than a codified requirement of administrative exhaustion" and contains "sweeping and direct" statutory language that goes beyond a requirement that only exhausted actions be brought. See Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). For example, the Supreme Court has held that language in the Social Security Act mandating utilization of administrative procedures is jurisdictional. Id. That determination turned on the fact that cited portions of the statute in question made the administrative decision of the Secretary "binding," set forth limited procedures for judicial review, and denied the existence of any civil cause of action arising under the Social Security Act. Id. (reading 42 U.S.C. § 405(h) to dictate that "[n]o action ... shall be brought under 28 U.S.C. § 1331)."

In contrast, § 1997e(a) contains no such sweeping and direct language barring federal question jurisdiction under 28 U.S.C. § 1331. Rather than proscribing the existence of a federal cause of action, the Civil Rights Act specifically creates a civil cause of action. See 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress ..."). Section 1997e(a) merely provides that "[n]o action shall be brought ... until such administrative remedies as are available are exhausted." This is precisely the type of language held in Weinberger v. Salfi not to limit federal jurisdiction. See Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)(holding that under Title VII the filing of a timely charge with the EEOC is not a jurisdictional prerequisite to suit in federal court but rather a requirement, like a statute of limitations, that is subject to waiver, estoppel, and equitable tolling.); cf. Sharpe v. FDIC, 126 F.3d 1147, 1155 (9th Cir.1997)(finding the administrative exhaustion requirement imposed by FIRREA to be a jurisdictional bar in light of the broad language--"no court shall have jurisdiction"--contained in 12 U.S.C. § 1821(d)(12)(D)).

Other courts have concluded that § 1997e does not deprive federal courts of jurisdiction. See Wright v. Morris, 111 F.3d 414, 421 (6th Cir.1997)("Section 1997e(a), in contrast, contains neither the sweeping and direct language of [42 U.S.C.] § 405(b) nor that statute's explicit bar to district court jurisdiction."), cert. denied, --- U.S. ----, 118 S.Ct. 263, 139 L.Ed.2d 190 (1997); see also Lacey v.C.S.P. Solano Medical Staff, 990 F.Supp. 1199 (E.D.Cal. 1997). This conclusion is further We therefore conclude that § 1997e does not impose exhaustion of administrative remedies as a prerequisite to jurisdiction. Accordingly, the district court had subject matter jurisdiction over Underwood's claim.

supported by 42 U.S.C. § 1997e(c)(1) & (2). Under these provisions, a district court must screen prisoner...