Yousef v. Reno

• Decision Date: 02 July 2001
• Docket Number: No. 99-1504,99-1504
• Citation: 254 F.3d 1214
• Parties: (10th Cir. 2001) RAMZI AHMED YOUSEF, Plaintiff-Appellant, v. JANET RENO, Attorney General of the United States, individually and in her official capacity; KATHLEEN HAWK SAWYER, Director of the Federal Bureau of Prisons, individually and in her official capacity; JOHN M. HURLEY, Warden of F.C.I. Administrative Maximum, Florence, Colorado, individually and in his official capacity, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1214

254 F.3d 1214 (10th Cir. 2001)

RAMZI AHMED YOUSEF, Plaintiff-Appellant, v. JANET RENO, Attorney General of the United States, individually and in her official capacity; KATHLEEN HAWK SAWYER, Director of the Federal Bureau of Prisons, individually and in her official capacity; JOHN M. HURLEY, Warden of F.C.I. Administrative Maximum, Florence, Colorado, individually and in his official capacity, Defendants-Appellees.

No. 99-1504

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 98-D-2008)

[Copyrighted Material Omitted] Steven Z. Legon, Esq., New York, New York (Bernard V. Kleinman, Esq. Purchase, New York, (Bernard V. Kleinman, Esq., West Harrison, New York, with him on the briefs), for appellant.

Peter R. Maier, United States Department of Justice, Washington, D.C., (David W. Ogden, Assistant Attorney General, Washington, D.C., Tom Strickland, United States Attorney, Denver Colorado, and Barbara L. Herwig, United States Department of Justice, Washington, D.C., with him on the briefs), for appellees.

Before HENRY, and MURPHY, Circuit Judges and VAN BEBBER, District Judge.^*

HENRY, Circuit Judge.

Mr. Ramzi Ahmed Yousef, a prisoner in Florence, Colorado's maximum security prison ("ADX"), appeals the district court's dismissal without prejudice of his claims for declaratory and injunctive relief brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).¹ The district court adopted the report and recommendation of the magistrate judge, who determined that Mr. Yousef had not exhausted the statutorily mandated administrative remedies. For the reasons set forth below, we affirm.

I. BACKGROUND

On January 8, 1997, following his convictions for conspiracy to blow up aircraft owned by U.S. carriers and for participation in the World Trade Center complex bombing, Mr. Yousef was sentenced to life plus 240 years incarceration at a maximum security institution, as well as fines and restitution of more than $250 million. Upon his arrival at ADX in January 1998, Mr. Yousef was placed into administrative segregation in an isolated soundproof cell.

Because of Mr. Yousef's association with terrorist activities, the Attorney General authorized the Bureau of Prisons ("BOP") to implement "special administrative measures" ("SAMs"), to protect Mr. Yousef, other prisoners, and prison personnel from the risk of death or serious bodily injury. See Bureau of Prisons Regulations, 28 C.F.R. 501.3. On March 31, 1998, the BOP implemented various SAMs pursuant to 501.3. It restricted Mr. Yousef's access to mail, telephone, media, and visitors and limited his carrying of religious materials, recreation, and exercise time.

Mr. Yousef filed both an informal and a formal application seeking review of the SAMs, both of which were denied. He then filed this Bivens action in federal district court, alleging that the SAMs and other conditions of his confinement violated his right to due process, his Eighth Amendment right to be free from cruel and unusual punishment, his Sixth Amendment right to counsel, his First Amendment right to the free exercise of his religion, and his First Amendment right to freedom of speech. Initially, Mr. Yousef sought only declaratory and injunctive relief. However, he later amended his complaint to seek relief for monetary damages.

In response, the Attorney General filed a motion to dismiss, contending Mr. Yousef had not exhausted his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a) ("no action shall be brought" by a prisoner under any federal law until the prisoner has exhausted "administrative remedies as are available"). Specifically, the Attorney General argued that the exhaustion duty imposed by 1997e(a) applies to any suit involving claims for both monetary and non-monetary relief.

In his report and recommendation, the magistrate judge agreed as to Mr. Yousef's failure to exhaust administrative remedies pertaining to declaratory and injunctive relief. He noted that, under Tenth Circuit precedent, which predated the Supreme Court's decision in Booth v. Churner, U.S., 121 S.Ct. 1819, 149 L.Ed.2d 958(2001), a prisoner who seeks only money damages lacks an available remedy under the BOP's grievance system before bringing an action under federal law. See Garrett, 127 F.3d at 1267 (stating that "until an administrative remedy is provided for Bivens claims for monetary damages, we must conclude that no exhaustion of administrative remedies is required under PLRA in this case because no such remedies exist to be exhausted"). But because Mr. Yousef sought declaratory and injunctive relief as well as damages, he concluded that 1997e(a) required exhaustion of the BOP's grievance system before he could bring an action for non-monetary relief. The district court adopted the magistrate judge's report and recommendation, and retained jurisdiction over the claims seeking monetary damages.

On appeal, Mr. Yousef argues that he did not exhaust these remedies because such remedies were effectively unavailable. Specifically, he maintains that: (1) there were no administrative remedies available to him; (2) under our case law, the exhaustion of administrative remedies is not required; (3) his letter to the Attorney General fulfilled any remaining exhaustion requirements, and (4) his initial attempts to seek relief obviated the need to exhaust remaining administrative remedies.

II. INITIAL MATTERS

A. Jurisdiction

Both parties contend that we have jurisdiction over this appeal under 28 U.S.C. 1291, which provides that "[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States." Under 1291, an order denying a motion to dismiss is not a final appealable order if it "ensures that litigation will continue in the District Court." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988). However, there is a "'small class' of decisions that are appealable under 1291 even though they do not terminate the underlying litigation." Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)) (setting out the requirements of the collateral order doctrine).

In particular, an order that does not finally resolve a case is appealable under the collateral order doctrine when it: (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. See id. at 546; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867-68 (1994) ("We have accordingly described the conditions for collateral order appeal as stringent."); Gulfstream Aerospace Corp., 485 U.S. at 276; Osage Tribal Council v. United States Dep't of Labor, 187 F.3d 1174, 1179 (10th Cir. 1999) ("In limited circumstances, the collateral order doctrine allows interlocutory appeal of an order that does not actually end the litigation.").

In our recent decision in Miller, 213 F.3d 1245-46, we directed the district court to retain jurisdiction over a Bivens claims seeking monetary damages.² However, we affirmed the court's dismissal without prejudice of the unexhausted claims seeking declaratory and injunctive relief.

In Johnson v. Texas, 878 F.2d 904 (5th Cir. 1989), the Fifth Circuit examined an analogous situation. The district court held the plaintiff's 1983 action in abeyance pending exhaustion of his state habeas corpus remedies. The plaintiff had alleged he had been falsely imprisoned by the defendants, that he had been reindicted on a charge that had been dismissed for a speedy trial violation, and that the state had used perjured testimony against him. The court stated:

The disputed question is whether the claims made in the 1983 suit are claims which must be first made the subject of habeas corpus proceedings and the exhaustion of state remedies in those proceedings. The court conclusively determined that issue by holding that the 1983 claims were subject to the exhaustion requirement. Next, the court resolved an important issue which was completely separate from the merits of the action because the habeas corpus claims are entirely separate claims in the contemplation of law from the civil rights claims based upon the same alleged misconduct of the public officials. Finally, the issue is obviously effectively unreviewable on appeal from a final judgment because once Johnson goes through the requirement of exhausting his state remedies by way of habeas corpus, the issue whether he was required to do so or not will be moot.

Id. at 905 (emphasis supplied). The court held that, because the plaintiff had "no alternative but to proceed to exhaust state remedies without further recourse to the district court before those remedies were exhausted," the order was appealable. Id. at 906.

Similarly in this case, the district court's dismissal without prejudice and stay of the claim for monetary relief disposed of the injunctive and declaratory claims until the exhaustion of Mr. Yousef's administrative remedies. See id. The district court's order places Mr. Yousef in the same position as though the entire action had been dismissed without prejudice. Cf. id. at 906 (noting that "[w]hile the district court's order in this case is not an obvious final judgment as is a dismissal without prejudice, it placed Johnson in the same situation as if there had been dismissal without prejudice in that he could not return to federal court with his 1983 claims until he had exhausted state remedies as ordered by the district court.").

Accordingly, we conclude that we have jurisdiction to consider this appeal. The district court's order clearly determined that Mr. Yousef was required to exhaust the remedies provided by the BOP's Administrative...