                                                                [ PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              AUGUST 21, 2000
                        ________________________
                                                             THOMAS K. KAHN
                                                                  CLERK
                               No. 99-8055
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 97-03080-CV-GET-1


GREG HIGGINBOTTOM,

                                                        Plaintiff-Appellant,

     versus


ALAN CARTER,
DEPARTMENT OF CORRECTIONS, et al.,

                                                        Defendants-Appellees.

                       __________________________

              Appeal from the United States District Court for the
                         Northern District of Georgia
                        _________________________
                             (August 21, 2000)


Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
                                           I.

      Appellant Greg Higginbottom (“Higginbottom”) appeals from the district

court’s order dismissing his civil rights complaint for failure to exhaust his state

administrative remedies pursuant to 42 U.S.C. § 1997e(a). Higginbottom filed his

complaint after April 26, 1996; therefore, the requirements of the Prison Litigation

Reform Act of 1995 (“PLRA”) (effective April 26, 1996), apply to his complaint.

      On appeal, Higginbottom raises an issue of first impression in our circuit:

whether his excessive-use-of-force claim is subject to the PLRA’s exhaustion

requirements. Higginbottom also raises several other challenges on appeal: (1) that

there are no administrative remedies available to him, because he challenged

actions of the Commissioner of the Department of Corrections, Wayne Gardner;

(2) that the administrative remedies are not “available” to provide the monetary

damages that he seeks in this lawsuit; (3) that 42 U.S.C. § 1997e(a) is “complex,”

“not clear,” and “vague,” as evidenced by interpretive splits among the circuits and

district courts; (4) that the claims asserted in his brief “are not grievable”; and (5)

that the district court erred by vacating a four-month-old order. For the first time

on appeal, Higginbottom contends that the prison’s grievance procedures are

unconstitutionally “vague,” and that the attorney general’s office should not

represent defendants accused of a “known . . . constitutional wrong.”



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                                          II.

      We review de novo the district court’s interpretation of section 1997e(a)’s

exhaustion requirements and application of that section to Higginbottom’s claims.

See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998). Issues raised for

the first time on appeal are not properly before this court unless one of five

exceptions applies. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).

None of these five exceptions applies in this case.

                                         III.

      Higginbottom argues that the PLRA’s exhaustion requirements do not apply

to his excessive-use-of-force claim because the claim did not challenge “prison

conditions” as defined in the PLRA. See 18 U.S.C. § 3626(g)(2). Title 18 U.S.C.

§ 3626(g)(2), which was amended as part of the same legislation as § 1997e,

provides that the term “civil action with respect to prison conditions” means any

civil action arising under federal law “with respect to the conditions of

confinement or the effects of actions by government officials on the lives of

persons confined in prison.” Thus, the plain language of the statute does include

claims alleging excessive force. See Freeman v. Francis, 196 F.3d 641, 643-44

(6th Cir. 1999). See also Booth v. Churner, C.O., 206 F.3d 289 (3rd Cir. 2000),

petition for cert. filed, (U.S. June 5, 2000) (No. 99-1964). Furthermore, reading



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the term “prison conditions” to include excessive-use-of-force claims is supported

by the purpose and legislative history of the Act. Congress passed the PLRA to

reduce frivolous prisoner lawsuits. See Freeman, 196 F.3d at 644. “A broad

exhaustion requirement that includes excessive force claims effectuates this

purpose and maximizes the benefits of requiring prisoners to use prison grievance

procedures before coming to federal court.” Id.

       Moreover, the exhaustion requirement cannot be waived based upon the

prisoner’s belief that pursuing administrative procedures would be futile. See

Alexander, 159 F.3d at 1323. “The plain language of the statute makes exhaustion

a precondition to filing an action in federal court.” Freeman, 196 F.3d at 645.

Accordingly, since the PLRA’s exhaustion requirements encompass excessive-use-

of-force claims, Higginbottom was required to exhaust his administrative remedies

before filing suit.

       We see no merit to any of Higginbottom’s remaining arguments. A review

of the record demonstrates that the district court did not err by vacating its order

denying dismissal, despite the fact that the order was four months old, because the

vacatur occurred only six weeks after new, binding case law was issued. In

addition, we hold that § 1997e(a) is not unconstitutionally “vague” because the

plain language of the statute adequately puts prisoners on notice that they must



                                           4
exhaust their administrative remedies before pursuing prison-related civil actions

in federal court. Finally, Higginbottom offers no arguments supporting his

assertion that his claims were “not grievable.”

      For the foregoing reasons, we affirm the district court’s judgment of

dismissal.

      AFFIRMED.




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