                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2000

Booth v. Churner
Precedential or Non-Precedential:

Docket 97-7487




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"Booth v. Churner" (2000). 2000 Decisions. Paper 46.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/46


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 7, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-7487, 97-7488

TIMOTHY BOOTH,
Appellant

v.

CHURNER, C.O.; WORKENSHER, Sgt.;
RIKUS, Lt.; W. GARDNER, Capt.

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 3: CV-97-0611)
District Judge: William J. Nealon

Argued: September 27, 1999

Before: BECKER, Chief Judge, MCKEE,
and NOONAN,* Circuit Judges.

(Filed March 7, 2000)

       NANCY WINKELMAN, ESQUIRE
        (ARGUED)
       RALPH SIANNI, ESQUIRE
       Schnader Harrison Segal &
        Lewis, LLP
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103-7286

Attorneys for Appellant



_________________________________________________________________
*Honorable John T. Noonan, Jr., Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.


       D. MICHAEL FISHER, ATTORNEY
        GENERAL
       GWENDOLYN T. MOSLEY, ESQUIRE
        (ARGUED)
       Senior Deputy Attorney General
       JOHN G. KNORR, III,
       Chief Deputy Attorney General
       Office of Attorney General
       15th Floor, Strawberry Square
       Harrisburg, PA 17120
       Attorneys for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal by Timothy Booth from an order of the
District Court dismissing his prisoner's civil rights action
presents two important questions about the meaning of the
mandatory administrative exhaustion requirement in the
Prison Litigation Reform Act of 1996 (the PLRA). Booth
alleges that while he was confined in the Commonwealth of
Pennsylvania's State Correctional Institute at Smithfield,
several prison guards, on several occasions, punched him
in the face, threw cleaning material in his face, shoved him
into a shelf, and tightened and twisted his handcuffs in
such a manner as to injure him. Asserting his Eighth
Amendment right to be free of cruel and unusual
punishment, Booth, acting pro se, brought this 42 U.S.C.
S 1983 excessive force action in the District Court for the
Middle District of Pennsylvania, requesting various forms of
monetary and injunctive relief. He did so withoutfirst
exhausting the administrative remedies available to him at
Smithfield. Because of this failure to exhaust his
administrative remedies, the District Court dismissed his
action pursuant to 42 U.S.C. S 1997e(a).

As amended by the PLRA, S 1997e(a) provides that "[n]o
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other

                                 2


correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. S 1997e(a)
(amended by Pub. L. 104-134, Title I, S101(a), 110 Stat.
1321-71 (1996)). The first question raised by Booth's appeal
concerns the applicability of S 1997e(a) toS 1983 excessive
force actions; i.e., whether excessive force is a"prison
condition" for purposes of the PLRA. This important and
difficult question is a matter of first impression for this
court. Booth contends that S 1997e(a)'s "action . . . with
respect to prison conditions" language applies only to
complaints about the physical conditions in prisons, and
does not apply to his S 1983 excessive force action.
Therefore, he concludes, the District Court erred in
analyzing his action under S 1997e(a). We reject this
argument and hold that S 1997e(a) applies to excessive
force actions. We base this decision on the plain meaning
of the language of the PLRA, case law from our sister
circuits, and recent Supreme Court precedent interpreting
similar prisoner litigation legislation.

The second question raised by Booth's appeal has to do
with the application of S 1997e(a)'s exhaustion requirement.
Booth argues that even if S 1997e(a) applies to his action,
exhaustion would have been futile, because the available
administrative process could not provide him with the
monetary relief he seeks. Accordingly, he contends, his
failure to exhaust such procedures is not mandated by
S 1997e(a), which only requires the exhaustion of
administrative remedies "as are available."

Our recent decision in Nyhuis v. Reno, No. 98-3543, 2000
WL 157531, at *11 (3d Cir. Feb. 15, 2000), rejected this
argument. Nyhuis was a Bivens action brought by a federal
inmate, in which we held that "the PLRA amended
S 1997e(a) in such a way as to make exhaustion of all
administrative remedies mandatory--whether or not they
provide the inmate-plaintiff with the relief he says he
desires in his federal action." Id. at *1. The reasoning of
Nyhuis applies equally in the S 1983 context, as S 1997e(a)
treats Bivens actions and S 1983 actions as functional
equivalents. Nyhuis is therefore controlling in this case.

Accordingly, even though this is an excessive force
action, and even though the Commonwealth of

                               3


Pennsylvania's inmate grievance process could not provide
Booth with the money damages he sought, we hold that
Booth was required by S 1997e(a) to exhaust the
administrative remedies available to him prior tofiling this
action. Because he admittedly has not done so, we will
affirm the judgment of the District Court.1

I.

On April 21, 1997, Booth began this action in the District
Court, using a form provided by the court to prisoners filing
pro se complaints under 42 U.S.C. S 1983. He named
Corrections Officer Churner, Sergeant Workensher,
Lieutenant Rikus, and Captain W. Gardner as defendants.
He stated that he had presented the facts of the case in the
state prisoner grievance procedure and that his allegations
were "dismissed or covered up." He added,"There isn't any
help because of retaliation because I spoke up about abuse
and corruption." In the space provided for "Parties" he
added Superintendent Morgan to the list of defendants. In
the space labeled "Statement of Claim" he wrote nothing. In
the space labeled "Relief " he asked both for a "preliminary
injunction," and for a "protection order for transfer to
another prison as my safety and life is at stake."
In a handwritten document filed with his form complaint,
Booth alleged the following facts, which gave rise to his
S 1983 action. He first complained that, in April 1996, he
had been "assaulted by a Sgt Robinson and a C/O named
Thomas . . . ." As a result of that assault, he alleges, he has
"a shoulder that slips in and out." Subsequent to that
incident, he contends, he was denied an operation on his
shoulder with "deliberate indifference to [his] shoulder and
back." Booth next averred that on February 6, 1997, he
threw water on Corrections Officer Thomas, who then took
him to a storage room and threw a cup of cleaning material
in his face.

Booth further claimed that on February 7, 1997, after an
_________________________________________________________________

1. We express our appreciation to Nancy Winkelman, Esquire, who,
acting pro bono at the request of the court, represented Mr. Booth both
ably and zealously.

                               4


exchange of words with Lieutenant Rikus, Rikus shoved
him into the shelf in the storage room and Thomas pushed
him into a door, while Sergeant White looked on. He alleges
that shortly thereafter he was taken back to his cell, where
Thomas tightened and twisted his handcuffs in such a way
that bruised his wrists. Booth last complained that, on
March 23, 1997, Corrections Officer Churner punched him
in the face and mouth, while Sergeant Workensher and
Corrections Officer Kulian watched. As a result, he
contends, his mouth "was busted open" and he received
three stitches. Booth ended this narrative, "I need out of
this jail before they kill me. And I want each and every
officer to be punished for assaulting me. Please, I'm in fear
of my life."

In a document dated May 19, 1997, he petitioned"To
Show Cause for Appointment of Counsel, To Keep Top
Officials as Defendants, Amending Relief Plaintiff Seeks." In
this petition, he asked for "an injunction to stop the
continuous beating," an order "to get operation," a transfer
to another prison, and "money damages $750,000
(permanent damages)." In later paragraphs, he again asked
for an injunction, a transfer, and for money damages in
different amounts; he also asked for an order to improve
the prison law library and to fine prison officials for
contempt of court, for an order to hire paralegal assistance
for himself, and for "money damages $300,000." In
"Plaintiff 's Amendment to Specific Relief," filed the next
day, he asked for a protective order to be transferred to
another jail, appointment of counsel, a pretrial hearing, a
disclosure order for prison records, and $400,000 for
"nominal, punitive, exemplary, and compensatory"
damages.

The District Court, acting sua sponte and without
requiring an answer from the Defendants, dismissed
Booth's action without prejudice on May 30, 1997, as it had
the power to do under 42 U.S.C. S 1997e(c). The rationale
for the Court's order was that Booth had failed to exhaust
his administrative remedies pursuant to 42 U.S.C.
S 1997e(a) before filing his S 1983 action. The Court
observed that at the time Booth filed his action the
Pennsylvania Department of Corrections had a three-step

                               5


grievance procedure. Booth had taken the first step in the
process but made no showing that he had taken the second
and third steps, which required that he appeal the decision
reached by the prison officials in the first step.2 The court
_________________________________________________________________

2. The Commonwealth of Pennsylvania's Department of Corrections
Consolidated Inmate Grievance System consists of a three-part
administrative process. Grievances must be submitted, in writing, for
initial review to the Facility/Regional Grievance Coordinator, within
fifteen days after the events upon which the claims are based. See
Commonwealth of Pennsylvania, Department of Corrections,
Consolidated Inmate Grievance Review System, Policy No. DC-ADM 804
SS VI.A.1, VI.B.2. (Oct. 20, 1994). Extensions of this time period may be
granted for good cause. See id. S VI.B.2.

The procedures for filing such a claim are straightforward. Once
submitted, the grievance is investigated and persons having personal
knowledge of the subject matter may be interviewed. See id. S VI.B.3. If
the grievant requests a personal interview, the policy provides that one
"shall" be granted. Id. Within ten working days of receipt of the
grievance

by the Grievance Officer, the policy provides that"the grievant shall be
provided a written response to the grievance to include a brief rationale,
summarizing the conclusions and any action taken or recommended to
resolve the issues raised by the grievance." Id. S VI.B.2.

Within five days of the receipt of this initial determination, the
grievant

may appeal the determination to the appropriate intermediate review
personnel. See id. SS VI.C.1, 2. The intermediate review personnel have
ten working days after the receipt of the appeal to notify the grievant of
their decision. See id. S VI.C.4."This decision may consist of approval,
disapproval, modification, reversal, remand or reassignment for further
fact finding, and must include a brief statement of the reasons for the
decision." Id. In the third, and final, step of the process, "[a]ny inmate
who is dissatisfied with the disposition of an Appeal from an Initial
Review decision, may, within seven (7) days of receiving the decision,
appeal [to the Central Office Review Committee (the CORC)] . . . for final
review." Id. S VI.D.1. Absent good cause, final review is not permitted if
a grievant has not complied with the procedures governing Initial Review
and Appeal from Initial Review. See id.S VI.D.2. On final review, the
CORC (1) has the power to require additional investigation before it
makes its determination, see id. S VI.D.5; (2) may consider matters
related to the initial grievance, see id.S VI.D.6; and (3) may, in its
final
decision, approve, disapprove, modify, reverse, remand or reassign the
grievance for further fact finding, see id. S VI.D.7. The CORC must issue
its decision within twenty-one days after receipt of an appeal, and it
must include a brief statement of the reasons for the decision it reaches.
See id. As noted above, Booth concedes that he did not avail himself of
either the intermediate or final review process.

                               6


concluded that as Booth had not exhausted his available
remedies, dismissal was required by S 1997e(a). In reaching
this conclusion, the District Court assumed, without
discussion, that Booth's excessive force action was
governed by S 1997e(a).

On June 9, 1997, Booth moved for reconsideration of this
order. On July 3, the District Court denied this motion.
Booth moved to amend his complaint, and on July 17,
1997, this motion was "dismissed as moot, as plaintiff 's
case was closed on May 30, 1997." Booth thereafter
appealed. The District Court had jurisdiction pursuant to
28 U.S.C. S 1331. We have appellate jurisdiction pursuant
to 28 U.S.C. S 1291.3

II.

We first examine whether the words "action . . . with
respect to prison conditions" in S 1997e(a) were intended to
apply to excessive force actions such as Booth's. Section
1997e(a) provides that

       [n]o action shall be brought with respect to prison
       conditions under section 1983 of this title, or any other
       Federal law, by a prisoner confined in any jail, prison,
       or other correctional facility until such administrative
       remedies as are available are exhausted.
_________________________________________________________________

3. The District Court dismissed Booth's S 1983 claim without prejudice.
To be appealable under 28 U.S.C. S 1291, an order of dismissal must
ordinarily be with prejudice. See, e.g. , Bahtla v. U.S. Capital Corp.,
990
F.2d 780 (3d Cir. 1993). In Garber v. Lego, 11 F.3d 1197, 1198 n.1 (3d
Cir. 1993), we recognized an exception to that general rule. We noted
that a plaintiff can appeal from a dismissal without prejudice when he
declares his intention to stand on his complaint or when he cannot cure
the defect in his complaint. See id.; see also Bethel v. McAllister Bros.,
Inc., 81 F.3d 376, 381 (3d Cir. 1996) (recognizing the same exceptions);
Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 874, 878 (3d Cir. 1990)
(same). These two conjunctive preconditions are clearly met in this case.
In briefing this issue and at oral argument, Booth's counsel stated that
Booth had elected "to stand on his complaint without amendment."
Additionally, both parties agree that the time is long past for Booth to
pursue his normal administrative remedies; therefore, he cannot cure
the defect in his complaint on which the District Court based its
dismissal.

                                7


42 U.S.C. S 1997e(a) (emphasis added). Booth argues that
his S 1983 excessive force action is not governed by
S 1997e(a) for three reasons. First, he contends that the
words "prison conditions" simply cannot be read to include
a prison guard's intentional act of violence. Second, he
argues that, when one reads the PLRA and its legislative
history as a whole, there is no basis to conclude that
S 1997e(a) was meant to reference claims of excessive force.
Third, Booth points to two recent Supreme Court cases, in
which the Court has drawn a line between excessive force
actions, which involve intentional acts of violence, and
conditions-of-confinement actions, which do not. Booth
submits that, in enacting the PLRA, Congress evinced no
intent to disturb this distinction when it employed the
"prison conditions" language it did in S 1997e(a). We take
up these arguments in turn.

A.

We would normally begin our analysis of S 1997e(a) by
looking to the plain meaning of the words "action. . . with
respect to prison conditions" that Congress employed in
drafting that section. Congress, however, defined the term
"civil action with respect to prison conditions" in another
section of the PLRA, 18 U.S.C. S 3626(g)(2), and thus
spared us from that inquiry, see Freeman v. Francis, 196
F.3d 641, 644 (6th Cir. 1999) (holding that "the scope of
S 1997e(a)'s exhaustion requirement is determined by the
definition of a `civil action with respect to prison conditions'
as set forth in S 3626(g)(2)").

To borrow from the Supreme Court in Sullivan v. Stroop,
"[t]he substantial relation between the two[provisions in
the PLRA] presents a classic case for application of the
normal rule of statutory construction that identical words
used in different parts of the same act are intended to have
the same meaning." 496 U.S. 478, 484 (1990) (citations and
internal quotations omitted). The PLRA not only amended
42 U.S.C. S 1997e to include various limitations on actions
such as the mandatory exhaustion requirement in
S 1997e(a), it also created 18 U.S.C. S 3626, which in many
subsections, prevents federal courts from ordering broad
prospective relief in "any civil action with respect to prison

                               8


conditions." Like S 1997e, S 3626 curbs the extent to which
federal prison litigation interferes with the states' and the
federal government's administration of their own prisons.
Because these two sections of the PLRA are directed toward
similar ends and are thus substantially related, it follows
from the canon of interpretation invoked in Stroop that the
identical terms used in the two sections should be read as
conveying the same meaning. See Freeman, 196 F.3d at
644.

Section 3626(g)(2) provides that

       the term "civil action with respect to prison conditions"
       means any civil proceeding 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, but does not include
       habeas corpus proceedings challenging the fact or
       duration of confinement in prison.

18 U.S.C. S 3626(g)(2) (emphasis added).

As a matter of common sense, we understand the
"conditions of confinement" language preceding the "or" to
include complaints such as those regarding cell
overcrowding, poor prison construction, inadequate medical
facilities, and incomplete law libraries. Put differently,
actions arising under this clause relate to the environment
in which prisoners live, the physical conditions of that
environment, and the nature of the services provided
therein. Booth's allegations that prison guards used
excessive force against him do not naturally fall into this
class of actions.

Booth's action does, however, fit neatly into the language
in S 3626(g)(2) following the "or," which refers to any civil
action with respect to "the effects of actions by government
officials on the lives of persons confined in prison." 18
U.S.C. S 3626(g)(2). We read this clause to refer to civil
actions ranging from excessive force actions, such as
Booth's, to actions "with respect to" a prison official's
decision not to make basic repairs in the prison, or
intentionally to deny a prisoner food, heating, or medical
attention. All of these actions affect the lives of prisoners
similarly: They make their lives worse.

                               9


B.

This common sense reading of the language in
S 3626(g)(2) comports with the manner in which the
Supreme Court has read similar language in statutes
dealing with prison litigation. In McCarthy v. Bronson, 500
U.S. 136, 137 (1991), the Court was faced with a similar
provision in a prison litigation statute, 28 U.S.C.
S 636(b)(1)(B), which authorized the nonconsensual
reference to magistrate judges of "prisoner petitions
challenging conditions of confinement." In ruling on the
scope of S 636(b)(1)(B), the unanimous Court interpreted
the section's "conditions of confinement" language--one
half of the definition of "prison conditions" in S 3626(g)(2)--
to include all inmate petitions, not only those regarding
"continuous conditions," but "isolated episodes of
unconstitutional conduct," such as the petitioner's claim of
excessive force, as well. McCarthy, 500 U.S. at 139. In
reaching this conclusion, the Court wrote:

        We do not quarrel with petitioner's claim that the
       most natural reading of the phrase "challenging
       conditions of confinement," when viewed in isolation,
       would not include suits seeking relief from isolated
       episodes of unconstitutional conduct. However,
       statutory language must always be read in its proper
       context. . . .

        The text of the statute does not define the term
       "conditions of confinement" or contain any language
       suggesting that prisoner petitions should be divided
       into subcategories. On the contrary, when the relevant
       section is read in its entirety, it suggests that Congress
       intended to authorize the nonconsensual reference of
       all prisoner petitions to a magistrate.

Id. at 139 (citations omitted) (emphasis added).

As compared to the statute in McCarthy, Congress, in the
PLRA, made its intent to subject all prisoner actions (save
for habeas petitions) to S 1997e(a)'s exhaustion
requirements even more clear. It did so by employing the
language it did in S 3626(g)(2). In S 3626(g)(2), Congress
included both the "conditions of confinement" language,
which was enough in McCarthy to encompass all prisoner

                               10
petitions, and the "effects of actions by government
officials" language, which, on natural reading, more closely
refers to isolated episodes of unconstitutional conduct at
the hands of prison officials--such as the instances of
unconstitutional excessive force alleged in the case at bar.
The addition of the language in S 3626(g)(2) avoids the plain
meaning problem with the statute at issue in McCarthy,
and it clarifies Congress's intent to subject all inmate
actions to the PLRA's exhaustion requirement.

The context of the PLRA supports this conclusion. The
PLRA was plainly intended, at least in part, to"reduce the
intervention of federal courts into the management of the
nation's prison systems." Freeman v. Francis , 196 F.3d 641,
644 (6th Cir. 1999). Congress would only undermine this
objective by carving out certain types of actions from the
aegis of the PLRA. Therefore, we believe that the expansive
and somewhat overlapping language Congress employed in
S 3626(g)(2) must be read--naturally and in its proper
context--to encompass all prisoner petitions.

The only court of appeals explicitly to address the
question agrees with our conclusion. Relying on McCarthy
and the definition of "action with respect to prison
conditions" in S 3626(g)(2), the Court of Appeals for the
Sixth Circuit recently held "that the term `prison conditions'
as used in S 1997e includes claims of excessive force . . . ."
Freeman, 196 F.3d at 644. The Courts of Appeals for the
Fifth and Tenth Circuits have implicitly reached the same
conclusion--that excessive force actions are "prison
conditions" actions and subject to the exhaustion
requirements set forth in S 1997e(a)--without discussing
the precise argument raised by Booth and adopted by the
dissent. See Wendell v. Asher, 162 F.3d 887, 889, 891-92
(5th Cir. 1998) (applying S 1997e(a)'s exhaustion
requirement to inmate-plaintiff 's excessive force claim);
Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir. 1997)
(same).4 In the margin, we respond, in part, to the dissent's
_________________________________________________________________

4. The other courts of appeals that have been presented with the issue
have declined to resolve it for different reasons. See Miller v. Tanner,
196
F.3d 1190, 1191 n.1 (11th Cir. 1999) (declining to resolve the issue in
light of the fact that the court disposed of the appeal on other grounds);

                               11


adoption of Booth's position.5
_________________________________________________________________
Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (recognizing that the
law concerning the PLRA's "action . . . with respect to prison conditions"
language was in flux, but refusing to resolve the question "without the
benefit of a more complete record"); Rumbles v. Hill, 182 F.3d 1064,
1066 n.2 (9th Cir. 1999) (declining to address the issue because "it was
not raised below"). District courts are split on the issue. Those holding
that excessive force actions fall under S 1997e(a) include the District
Court in the present appeal, Beeson v. Fishkill Correctional Facility, 28
F.
Supp. 2d 884 (S.D.N.Y. 1998) (Mukasey, J.), and Johnson v. Garraghty,
57 F. Supp. 2d 321 (E.D. Va. 1999) (Ellis, J.). These courts rely on
McCarthy and the definition of "action with respect to prison conditions"
in S 3626(g)(2) to support their holding. District courts holding to the
contrary include White v. Fauver, 19 F. Supp. 2d 305 (D. N.J. 1998)
(Orlofsky, J.), and Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL
14014 (S.D.N.Y. Jan. 14, 1999) (Koeltl, J.).

5. Without addressing McCarthy, except to mention our reliance on it,
the dissent advances plain meaning and legislative history arguments to
support its position. The dissent parses the phrase"prison conditions" in
S 1997e(a)--looking to its definition in Webster's and in 28 U.S.C.
S 3626(g)(2)--and concludes that the phrase does not encompass claims
of excessive force. As do we in addressing S 3626(g)(2)'s definition, the
dissent divides the section's language into its two components. It opines
that the "statutory phrase `conditions of confinement' [in S 3626(g)(2)]
do[es] not encompass specific batteries." Dissent at 22. As noted above,
we take no exception to the dissent's understanding of this clause. See
supra Section II.A. If Congress had only used the "conditions of
confinement" language in S 3626(g)(2), we would be forced, as was the
Court in McCarthy, 500 U.S. at 139-44, to query whether this language
was employed in the context of the statute to connote something other
than its most natural meaning. See supra Section II.B. (The dissent
engages in this "contextual" analysis of the PLRA, but for reasons
explained in note 9, infra, we are unconvinced by its reading.)

Addressing the second half of the definition provided in S 3626(g)(2),
the dissent continues: "A guard hits you on the mouth. Would you report
the blow by saying, `A government official has taken an action having an
effect on my life?' No speaker of English would use such a
circumlocution." Dissent at 23. Relying on what it concedes are
"[s]nippets of legislative history," id., the dissent concludes that the
statutory phrase "effects of actions by government officials on the lives
of persons confined in prisons," 28 U.S.C.S 3626(g)(2), was intended to
refer only to actions by prison officials such as"[the delivery of]

                               12


C.

Booth attempts to buttress his reading of S 1997e(a) by
pointing to Supreme Court precedent that has drawn a
distinction between excessive force claims and prison
condition claims. When pressed by logic, however, this
argument proves as brittle as the analysis it was erected to
support.

A familiar maxim of statutory construction provides that
" `[w]here Congress uses terms that have accumulated
settled meaning under either equity or the common law, a
court must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
these terms.' " United States v. Rosero , 42 F.3d 166, 171
(3d Cir. 1994) (quoting NLRB v. Amax Coal Co. , 453 U.S.
322, 329 (1981)). Invoking this maxim, Booth cites two
recent Supreme Court cases in which the Court
distinguished between conditions-of-confinement claims
and excessive force claims, and treated the two types of
claims differently. See Farmer v. Brennan, 511 U.S. 825,
832 (1994); Hudson v. McMillian, 503 U.S. 1, 9 (1992).6
_________________________________________________________________

lukewarm food; . . . employ[ing] unlicensed barbers; . . . admit[ting]
more

prisoners than the prison was designed for; . . . . decid[ing] to provide
creamy peanut butter instead of chunky; . . . decid[ing] not to offer
salad

bars or weekend brunches; [or] . . . decid[ing] to play classical music on
the prison stereo system"--not a punch in the jaw or a blow to the body.
Id. at 22-23 (citing 141 Cong. Rec. S14611-01, S14627 (Sept. 29, 1995)).

We find this reading of the second half of S 3626(g)(2) unconvincing.
For us as for the court in Freeman, 196 F.3d at 644, the phrase
naturally references isolated acts taken by prison officials that affect
prisoners' rights, including alleged acts of excessive force, see supra
Section II.A. If one were to accept the dissent's narrower reading of
S 3626(g)(2), the two clauses employed inS 3626(g)(2) would be narrower
than the lone "conditions of confinement" clause employed by Congress
in McCarthy, 500 U.S. at 139-44. See supra Section II.B (discussing
McCarthy). The claim that the addition of the"effects of acts of
government officials" clause renders the scope of S 3626(g)(2) narrower
than the provision at issue in McCarthy is unconvincing, especially when
the additional clause in S 3626(g)(2) clearly broadens the scope of the
section.

6. In Hudson, 503 U.S. at 9, the Supreme Court distinguished the
"extreme deprivations" that are necessary to make out a "conditions-of-

                                 13


From the distinction drawn   by the Court in Farmer and
Hudson, Booth reasons that   if Congress intended to
eliminate that distinction   in S 1997e(a) between excessive
force and prison condition   claims it would have made its
intentions explicit.
There are four things wrong with this argument. First,
and most obvious, Congress made its intentions clear
regarding what "actions with respect to prison conditions"
meant in S1997e(a), by defining that term expressly and
expansively in S 3626(g)(2). Congress's explicit language in
the PLRA, therefore, obviates the need to resort to the
maxim. See NLRB, 453 U.S. at 329.

Second, if we were to ignore the import of S 3626(g)(2)'s
definition and apply the maxim based on language in
Farmer and Hudson, we would ignore the difference in the
nature of the power allocated to the courts and Congress in
our tripartite federal system. As Judge Mukasey noted in
his forceful opinion in Beeson v. Fishkill Correctional
Facility, which held that S 1997e(a) applied to excessive
force claims, "a court's responsibility in reading S 1997e is
to determine the intent of Congress when it referred to
`prison conditions' in the statute, not the intent of the
Supreme Court when it used a similar, but not identical,
term in a case decided before the statute was passed." 28
F. Supp. 2d 884, 890 (S.D.N.Y. 1998) (referring to Farmer
and Hudson).

Third, there is no evidence, other than the Court's use of
similar language in Farmer and in Hudson , that the term
"prison conditions" has a well-settled meaning, firmly
established in the annals of the common law. In fact,
Farmer and Hudson refer to "conditions of confinement"
claims, not "prison conditions" claims.7 The difference
_________________________________________________________________

confinement claim" from the lesser showing necessary to make out an
excessive force claim. In Farmer, 511 U.S. at 835-36, the Court again
relied upon this distinction to hold that the mental state necessary to
make out an excessive force claim was lesser than the showing required
to establish a conditions-of-confinement claim.

7. In Hudson, the Court wrote, "[E]xtreme deprivations are required to
make out a conditions-of-confinement claim. . . . In the excessive force

                               14


between the terms of art invoked in Farmer and Hudson
and in this case makes resort to maxim even more
unreliable.

Fourth, as evidenced by the Supreme Court's opinion in
McCarthy, the phrase "conditions of confinement," which
Booth would have us equate with the phrase "prison
conditions," is not so commonly understood. In McCarthy--
which was decided near the time that Farmer and Hudson
were, but prior to the PLRA's enactment--the Supreme
Court had to interpret the phrase "petitions challenging
conditions of confinement" in 28 U.S.C. S 636(b)(1)(B). As
noted above, the Court read the phrase to include
challenges not only to ongoing prison conditions, but also
to isolated episodes of allegedly unconstitutional conduct
by prison officials, such as assault. See id. at 141-43.
Judge Mukasey put it well in Beeson when he wrote, "the
Court [in McCarthy] made absolutely no mention of the
supposedly familiar distinction between excessive force
claims and conditions of confinement claims, despite
effectively being presented with the issue squarely." 28 F.
Supp. 2d at 891 (citation omitted). The fact that the terms
"prison conditions" and "conditions of confinement" seem to
have different meanings in different contexts again makes
invocation of the maxim of interpretation inappropriate.

With Farmer and Hudson cast in their proper light, we
are confident in holding that S 1997e(a)'s exhaustion
requirement does apply to excessive force claims. 8 As we
_________________________________________________________________

context, society's expectations are different." 503 U.S. at 9 (emphasis
added). In Farmer, the Court wrote, "In its prohibition of `cruel and
unusual punishments,' the Eighth Amendment places restraints on
prison officials, who may not, for example use excessive physical force
against prisoners. The Amendment also imposes duties on these officials,
who must provide humane conditions of confinement . . . ." 511 U.S. at
832 (citation omitted) (emphasis added).

8. In reading Farmer and Hudson, we do not believe that we have blurred
the distinction drawn by these cases between excessive force actions and
conditions-of-confinement actions. Those distinctions, of course, still
obtain in substantive eighth amendment jurisprudence. However, for the
many reasons detailed in the text, that distinction appeared not to be on
Congress's mind--nor did it control Congress's hand--when it crafted
the procedural bars it did in the PLRA.

                               15


hold that Booth's S 1983 excessive force action is governed
by S 1997e(a), we turn our attention to whether S 1997e(a)'s
exhaustion requirement bars it. Before doing so, we
address (in the margin) another argument advanced by the
dissent in support of Booth's reading of the "prison
conditions" language in the PLRA.9
_________________________________________________________________

9. The dissent reasons that in enacting the PLRA Congress was
concerned only with frivolous prisoner lawsuits, such as those
enumerated in note 5, supra, rather than" `brutal violations of prisoners'
rights,' " Dissent at 24 (quoting 141 Cong. Rec. S14408-01, S14418
(Sept. 27, 1995) (Sen. Hatch)). Therefore, it concludes, S 1997e(a) was
not intended to encompass excessive force claims. Wefind three things
wrong with this argument.

First, in recounting the large number of lawsuits brought by prisoners
in the few years preceding the passage of the PLRA, several members of
Congress cited statistical evidence regarding the number of actions filed
by prisoners, and the crushing burden these suits have on federal
courts. See Blas v. Endicott, 31 F. Supp. 2d 1131, 1133 n.4 (E.D. Wis.
1999) (collecting examples of this legislative history). The statistical
studies they cited did not distinguish between conditions-of-confinement
actions and excessive force actions, or even those addressing the brutal
violations of prisoners' rights. See, e.g., 141 Cong. Rec. S3703 (daily
ed.

Apr. 19, 1996) (statement of Sen. Abraham) (noting that "[i]n 1995,
65,000 prisoner lawsuits were filed in federal courts alone" without
distinguishing among the many types of suits filed); 141 Cong. Rec.
S14626-27 (daily ed. Sept, 27, 1995) (statement of Sen. Hatch)
(cataloguing the some 39,000 non-habeas lawsuitsfiled by inmates in
federal courts in 1994, and, as with Sen. Abraham, not distinguishing
between conditions-of-confinement actions and excessive force actions).
The way this data was presented supports the conclusion that S 1997e(a)
applies to all prisoner lawsuits, all of which have the potential to be
frivolous and unduly burden courts, rather than a particular
subcategory of claims, as the dissent contends.

Second, examination of the PLRA's legislative history reveals that
opponents of the PLRA objected to it on the ground that it would
frustrate prisoners in their attempts to pursue meritorious S 1983
excessive force actions. See 141 Cong. Rec. S14628 (1995) (statement of
Sen. Biden) (discussing two prison assault cases as examples of
meritorious suits that would be hindered by passage of the PLRA). These
remonstrations--and Congress's failure to heed them--suggest that, in
enacting the PLRA, Congress knew what it was doing, and intended that
excessive force actions be subject to the exhaustion requirements in
S 1997e(a).

                               16


III.

Turning our attention to the application of S 1997e(a) to
Booth's action, Booth concedes that he did not take full
advantage of the administrative procedures available to him
at Smithfield. After he was allegedly assaulted by the
Defendants, he filed several administrative grievances with
the Commonwealth of Pennsylvania's Department of
Corrections Consolidated Inmate Grievance System (the
Inmate Grievance System). When his requests for relief
were denied, however, he failed to appeal those decisions as
_________________________________________________________________

Third, sections of the PLRA other than S 1997e(a) address the
frivolous/non-frivolous lawsuit distinction to which the dissent is so
attuned. See Dissent at 22-24. For example, 42 U.S.C. S 1997e(c)(1)
empowers district courts to dismiss frivolous claims, of the chunky
peanut butter variety, sua sponte. Similarly, 28 U.S.C. S 1915(b)
discourages inmates from filing frivolous suits by forcing inmate-
plaintiffs proceeding in forma pauperis to pay court costs and filing
fees.

Lastly, 28 U.S.C. S 1915(g) closes the door, absent exceptional
circumstances, to inmate-plaintiffs who previously have brought three
frivolous lawsuits. 42 U.S.C. S 1997e(a), by contrast, makes no mention
of the word "frivolous." Nor does it except from its broad swath actions
with respect to " `brutal violations of prisoners' rights,' " Dissent at 5
(citation omitted), as other sections of the PLRA, such as 28 U.S.C.
S 1915(g), explicitly do, see 28 U.S.C. S 1915(g) (allowing a inmate-
plaintiff who has previously brought three frivolous actions to bring a
subsequent civil action if he is "under imminent danger of serious
physical injury").

If anything, S 1997e(a)'s mandatory exhaustion requirement enables
district courts hearing these prisoner claims to distinguish better
between frivolous and meritorious ones. As we noted recently in Nyhuis
v. Reno, "The administrative process can serve to create a record for
subsequent proceedings, it can be used to help focus and clarify poorly
pled or confusing claims, and it forces the prison to justify or explain
its
internal procedures." No. 98-3543, 2000 WL 157531, at *10 (3d Cir. Feb.
15, 2000). The administrative process therefore makes prisoner litigation
claims more transparent and easier to review. Operating effectively, the
administrative process should also afford district courts more time to
address the serious concerns raised by meritorious claims. As Nyhuis
further noted, S 1997e(a)'s exhaustion requirement was, in part, designed
to provide federal courts more time to deal with such actions. See id. at
*7-10.

                                17


was his right under the Inmate Grievance System. See
supra note 2 (discussing the two-stage appellate process).
Again, S 1997e(a) provides that

       No action shall be brought with respect to prison
       conditions under section 1983 of this title, or any other
       federal law, by a prisoner confined in any jail, prison,
       or other correctional facility until such administrative
       remedies as are available are exhausted.

42 U.S.C. S 1997e(a) (emphasis added).

Booth reads this language to mean that he did not need
to take advantage of the Inmate Grievance System's
administrative procedures because they could not provide
him with the monetary relief that he sought in his federal
action. For this proposition he cites, among other cases,
Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), Lunsford v.
Jumao-As, 155 F.3d 1178 (9th Cir. 1998), and Garrett v.
Hawk, 127 F.3d 1263 (10th Cir. 1997). These cases hold
that when a prison's internal grievance procedure cannot
provide an inmate-plaintiff with the pure money damages
relief he seeks in his federal action, exhaustion of those
administrative remedies would be futile.10
_________________________________________________________________

10. The Defendants argue that Booth requested only injunctive relief in
his complaint, and thus he did not request remedies"not available" in
the state's administrative process. Although Booth's pro se complaint
form does not include a specific request for damages, the thirty some
pages attached thereto make several references to personal injuries and
make three separate claims for monetary relief. See supra Part I.
Construing Booth's pro se complaint liberally, as we must, see, e.g.,
Urrutia v. Harrisburg County Police Dep't., 91 F.3d 451, 456 (3d Cir.
1996), we conclude that he did request monetary relief in his original
complaint, when that complaint is viewed as a whole. Moreover, even if
Booth's initial complaint failed to allege money damages, the record
shows that he amended his complaint to include a request for damages,
as was his right under FED. R. CIV. PRO. 15(a). In separate pleadings
filed

seven days and a month after his original complaint, Booth again made
reference to his allegations regarding money damages. FED. R. CIV. PRO.
15(a) provides that "[a] party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is served . . .
."
Judging from the docket entries, the Defendants served no responsive
pleadings between the time Booth filed his April 21, 1997 complaint and
the time that he filed these later pleadings.

                               18


Our recent opinion in Nyhuis v. Reno, No. 98-3543, 2000
WL 157531, at *5 (3d Cir. Feb. 15, 2000), rejected the
narrow futility exception recognized in Whitley , Lunsford,
and Garrett; and the rule announced in Nyhuis is
dispositive in this case. In Nyhuis, we held that "the PLRA
amended S 1997e(a) in such a way as to make exhaustion
of all administrative remedies mandatory--whether or not
they provide the inmate-plaintiff with the relief he says he
desires in his federal action." Id. at *1. In a lengthy opinion,
we detailed the many arguments supporting our position,
and ultimately rejected the approach taken by courts
recognizing the futility exception. See id. at *5-11.

Although Nyhuis involved a Bivens action brought by a
federal inmate, the rule we announced in Nyhuis has equal
force in the S 1983 context, for S 1997e(a), which applies to
actions brought by a prisoner "under section 1983 of this
title, or any other federal law," treats Bivens actions and
S 1983 actions as functional equivalents. See Nyhuis, 2000
WL 157531, at *3; Lavista v. Beeler, 195 F.3d 254, 256 (6th
Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1324-25
(11th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66
(10th Cir. 1997). Indeed, the Nyhuis rule has even greater
force with respect to S 1983 actions. First, as we explained
in Nyhuis, additional comity considerations obtain in the
S 1983 context--which are not implicated by a Bivens
action--given the strength of the interest that state prisons'
and state courts' have in resolving complaints filed by state
prisoners. See Nyhuis, 2000 WL 157531, at *9 n.11 (citing
Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973)
(discussing these comity concerns)).

Second, additional federalism and efficiency
considerations are implicated when reviewing S 1983
actions--as compared to Bivens actions--because of the
greater difficulty federal courts may have in interpreting
and/or predicting the contours of state law and state
administrative regulations and practices. See id. at *9 n.10
and accompanying text. As we noted in Nyhuis, the
Supreme Court has "made it clear that `in the absence of a
plain indication to the contrary,' Congress should not be
understood to `mak[e] the application of[a] federal act
dependent on state law.' " Id. at *9 n.10 (quoting Mississippi

                               19


Choctaw Indian Band v. Holyfield, 490 U.S. 30, 43 (1989))
(emphasis added by Nyhuis) (citations and internal
quotations omitted). In drafting the PLRA, "Congress gave
no indication--let alone a `plain indication'--that
application of S 1997e(a) should depend on the vagaries of
state law." Id. For these reasons, we therefore hold that the
rule we announced in Nyhuis applies here.

As in Nyhuis, because Booth "failed . . . to exhaust his
available administrative remedies (rather than those he
believed would be effective)" before filing hisS 1983 action,
the District Court appropriately dismissed his action
without prejudice. Id. at *11. Accordingly, the order of the
District Court will be affirmed.

                               20


NOONAN, Circuit Judge, concurring and dissenting:

The crux of the case is what Congress meant by the
statutory term "prison conditions." Of the two words,
"conditions" is the key. The noun is plural. It is equivalent
to "circumstances." It does not identify a single or
momentary matter. Webster's provides us with six
definitions. Five are not germane. The relevant definition is
"existing state of affairs," as in the common phrases "living
conditions," "playing conditions," "adverse weather
conditions." A slight variant of this definition is "something
needing remedy," as in the sentence, "Trains were late to
Philadelphia because of conditions on the Main Line." As
these instances suggest, "conditions" are circumstances
affecting everyone in the area affected by them.
"Conditions" affect populations, large or small.

The statute thus gives us a noun of established meaning
and frequent use. This noun is modified by a second noun,
"prison." No ambiguity exists as to its meaning. It identifies
the affected population. We have, then, a statutory term
"prison conditions" that can only mean "a state of affairs in
a prison" or "something needing remedy in a prison." The
slight variation does not alter the sense conveyed by
"conditions" of more than a momentary event;"conditions"
means something that has continued in effect for a period.

A punch on the jaw is not "conditions." A punch in the
jaw in prison is not "prison conditions." A punch on the jaw
is an act. Churner's alleged busting of Booth's mouth is not
a state of affairs. Circumstances in the plural are not at
issue. No population is affected. An individual alone is
involved. That Churner's alleged blow took place in a prison
does not make it "prison conditions." Reading the statute as
it is written it is next to impossible to characterize Booth's
complaint of a specific battery as a suit "with respect to
prison conditions."

The court rightly notes that we may aid our reading by
consulting another section of the statute where Congress
has defined "prison conditions" for another purpose. It
makes good sense to assume that the definition applies
throughout the statute and to use the definition whenever
"prison conditions" are mentioned.

                               21


In S 3626(g)(2) Congress defined "prison conditions" as
"conditions of confinement or the effects of actions by
government officials on the lives of persons confined in
prison." The definition is good evidence that when Congress
wanted to extend the meaning of "prison conditions"
beyond the ordinary sense of the phrase it knew how to do
so. In this definition, Congress did not extend the meaning
of "prison conditions" to include acts of battery carried out
by officers of a prison. The statutory phrase"conditions of
confinement" does not encompass specific batteries.
"Conditions of confinement" is no more apt than "prison
conditions" to designate an act of battery. The use of
"conditions" constrains the sense so that what is meant is
a continuing state of affairs. The court concedes that this
part of the statutory definition has no application here.

The court invokes McCarthy v. Bronson, 500 U.S. 136
(1991), but then does not rely on the statutory language
there construed but on the alternative definition afforded by
the statute. This definition defines prison conditions as "the
effects of actions by government officials on the lives of
persons confined in prison." What are actions by
government officials that impact the lives of prisoners and
appropriately fit within the framework of conditions?
Illustrations are afforded by a proponent of the PLRA,
Senator Abraham: "how warm the food is, how bright the
lights are, whether there are electric lights in each cell,
whether the prisoners' hair cut is by licensed barbers,"
these are "the conditions" regarding which prisoner
litigation has occurred and courts have intervened because
of the effect of these conditions on prisoners' lives. 142
Cong. Rec. S10576-02, S10576 (Sept. 16, 1996). To take
another illustration, "even worse" according to Senator
Abraham, is a judge releasing prisoners "to keep the prison
population down to what the judge considered an
appropriate level." Id. In each of these instances an action
by a government official -- to provide a kitchen or delivery
service leading to lukewarm food; or to save on electricity;
or to employ unlicensed barbers; or to admit more
prisoners than the prison was designed for -- has an
impact on prisoners' lives and creates conditions that, but
for the PLRA, might become the subject of a suit. Other
actions having an effect on prisoners' lives and referenced

                                22


by Senator Reid, are these: a prison official decides to
provide creamy peanut butter instead of chunky or provides
chunky peanut butter instead of creamy; a prison official
decides not to offer salad bars or weekend brunches; a
prison official decides to play classical music on the prison
stereo system. 141 Cong. Rec. S14611-01, S14627 (Sept.
29, 1995). These actions indubitably had an effect on
prisoners' lives by creating conditions that, prior to passage
of the PLRA, gave rise to prison litigation. In no way are any
of these actions comparable to specific acts of intentional
violence. Brutal batteries are far removed from what the
sponsors said was on their minds. The senators chose
language for the statute mirroring their concerns.

Snippets of legislative history such as these are not
necessary to explain the statutory phrase. They are,
however, to the point in a way that interpretations of the
legislation offered in by its opponents in debate are not.
They are, moreover, illuminating as to why Congress had to
use fifteen words in a seemingly elephantine way to define
the suits Congress wanted to restrain. The multitude of
trivial occasions that might affect prisoners' lives could only
be captured by a calculated comprehensiveness that
excludes individual acts of rape or beating.

A guard hits you on the mouth. Would you report the
blow by saying, "A government official has taken an action
having an effect on my life?" No speaker of English would
use such a circumlocution. Why should we attribute such
circuitousness to Congress? When bones are broken or
mouths are mauled, no one on earth, educated or
uneducated, would use such roundabout phraseology to
express the blow.

The supposition that Congress spoke so ineptly may be
sustained by the suspicion that Congress wanted to get rid
of all prisoner litigation, therefore Congress must have
intended to embrace allegations of specific acts of battery.
As a guess at unarticulated policy, such speculation has its
attraction. The suspicion is dispelled by leading sponsors of
the PRLA such as the chairman of the Senate Judiciary
Committee, Senator Hatch. As he put it when offering the
bill for the first time in 1995: "Our legislation will also help
restore balance to prison conditions litigation and will

                                23


ensure that federal court orders are limited to remedying
brutal violations of prisoners' rights." 141 Cong. Rec.
S14408-01, S14418 (Sept. 27, 1995). As he summarized
the sponsors' intent: "I do not want to prevent inmates from
raising legitimate claims. This legislation will not prevent
those claims from being raised." 141 Cong. Rec. S14611-
01, S14662 (Sept. 29, 1995). The sponsors of the bill were
neither inhumane nor insensitive nor determined to
foreclose federal fora to claims of unconstitutional acts of
cruelty.

The legislative history serves to refute a suspicion
unsupported by the statutory text. As a guide to a fair
reading of the English language in the statute before us,
the suspicion is mischievous. It leads to a construction of
language that cannot be sustained. The canons of
construction of our native tongue should not be contorted
to deny a remedy that a conscientious Congress continues
to provide.

There are, to be sure, issues raised as to prison
conditions in Booth's amended complaint -- the state of the
prison library, for example, Booth's need for a paralegal, or
the failure of prison authorities to prevent alleged beatings.
No cause of action against Superintendent Morgan, Captain
Gardner or Sergeant Workensher can be discerned that
does not fall within the meaning of prison conditions. These
complaints Booth should have processed through the
prison grievance system. Failing to do so, Booth cannot
pursue them now. As to these claims, I concur with the
court. But that he put these matters into his complaint
does not mean that he forfeits the claims whose treatment
was not required to begin administratively. As to Lieutenant
Rikus, no specific injury is alleged for which compensation
is asked. The complaint here, too, is properly dismissed.
The allegations against Churner, Robinson and Thomas
survive. As to them I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               24
