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


2-15-2000

Nyhuis v. Reno
Precedential or Non-Precedential:

Docket 98-3543




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Filed February 15, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-3543

DOUGLAS NYHUIS, Appellant

v.

JANET RENO, Attorney General;
ERIC HOLDER, Deputy Attorney General;
KATHLEEN HAWK, DIRECTOR-BOP;
JOHN HAHN, WARDEN

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 97-cv-00324E)
District Judge: Honorable Sean J. McLaughlin

Argued: January 11, 2000

Before: BECKER, Chief Judge, ALITO and BARRY,
Circuit Judges.

(Filed: February 15, 2000)

       JOSEPH M. RAMIREZ, ESQUIRE
        (ARGUED)
       Eckert, Seamans, Cherin & Mellott,
        LLC
       600 Grant Street, 44th Floor
       Pittsburgh, PA 15219

        Counsel for Appellant




       DAVID W. OGDEN, ESQUIRE
       Acting Assistant Attorney General
       BARBARA L. HERWIG, ESQUIRE
       PETER R. MAIER, ESQUIRE
        (ARGUED)
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D Street, NW
       Room 9012
       Washington, DC 20530-0001

       BONNIE R. SCHLUETER, ESQUIRE
       TINA M. OBERDORF, ESQUIRE
       Office of the United States Attorney
       633 United States Post Office &
        Courthouse
       Pittsburgh, PA 15219

        Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

Given the large number of prisoner lawsuits filed in the
federal courts each year, the case at bar raises an
important question of statutory interpretation regarding the
mandatory exhaustion requirement governing prisoner
lawsuits. As amended by the Prison Litigation Reform Act of
1996 (the PLRA), 42 U.S.C. 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
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)) (emphasis added).

Douglas Nyhuis, an inmate at the Federal Correctional
Institution McKean (FCI McKean), brought this Bivens
action--alleging several violations of his property rights,
and seeking monetary, declaratory, and injunctive relief--
without first exhausting the administrative process

                                2


available to him at FCI McKean. He argues that he did not
avail himself of the administrative process because it could
not provide him with two of the three forms of relief that he
seeks in the present action--specifically, the monetary and
declaratory relief. Accordingly, he argues, because pursuit
of his administrative remedies would have been for the
most part futile, S 1997e(a)'s exhaustion requirement
should not bar his action.

Several of our sister circuits have accepted this argument
in cases in which exhaustion of administrative remedies is
truly futile; i.e. the administrative process cannot provide
the inmate-plaintiff with any form of the relief he seeks.
The Defendants in this case have suggested in their briefing
and at oral argument that such a futility exception may be
appropriate under certain circumstances. Other courts,
including two courts of appeals, have rejected the notion
that there is ever a futility exception to S 1997e(a)'s
mandatory exhaustion requirement.

Subscribing to the minority position among courts of
appeals, and rejecting arguments advanced by Nyhuis and
the Defendants, we hold 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. This conclusion is supported by the plain
language of S 1997e(a), by analogous Supreme Court
precedent, and by the policy considerations animating the
principle of administrative exhaustion. Therefore, because
Nyhuis failed to exhaust the administrative remedies
available to him, we hold that his action is barred by
S 1997e(a) and was appropriately dismissed by the District
Court. Accordingly, we affirm the District Court's order.1

I.

Nyhuis alleges that prison officials at FCI McKean
confiscated several items of his personal property, including
_________________________________________________________________

1. We express our appreciation to Joseph M. Ramirez, Esquire, who,
acting pro bono at the request of the court, represented Mr. Nyhuis both
ably and zealously.

                                3


a tan bath robe that he purchased in a prison store; several
pairs of shoes; two electric fans; an assortment of clothes,
towels, and blankets; a calculator; and a Timex watch.
These items were confiscated pursuant to the Bureau of
Prisons' Inmate Personal Property Program Statement (P.S.)
5580.05 and Institutional Supplement 5580.05, which
limited the types and amounts of items prisoners could
have in their personal possession pursuant to P.S. 5580.03.
Although Nyhuis objected to the confiscation of his
property, he concedes that he did not pursue the
administrative processes in place at FCI McKean in order to
remedy these deprivations. See infra note 12 (describing the
administrative process).

Instead, Nyhuis filed this pro se action, pursuant to
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971), in the District Court for the Western District of
Pennsylvania. In his complaint, he alleged that the
Defendants--Janet Reno, Attorney General of the United
States; Eric Holder, Deputy Attorney General of the United
States; Kathleen M. Hawk, Director of the Federal Bureau
of Prisons; and John E. Hahn, Warden at FCI McKean--
through their control and regulation of federal prisons and
in their implementation of federal law regarding prisoners'
living conditions, had violated his constitutional rights by
depriving him of property without due process of law,
without just compensation, and in violation of substantive
due process. He contended, inter alia, that the FCI officials
at FCI McKean arbitrarily and unreasonably deprived him
of his personal property, some of which he had purchased
from the prison store, without giving him a hearing or
affording him a sufficient post-deprivation remedy. Nyhuis
also advanced a Fourth Amendment claim, but he has
abandoned this contention on appeal. In terms of relief, he
asked for (1) compensatory and punitive damages; (2) an
injunction ordering both that his property be returned, and
that P.S. 5580.03 be grandfathered for inmates such as
himself; and (3) a declaratory judgment, ruling, inter alia,
that the portion of the Congressional statute that gave rise
to P.S. 5580.05 is unconstitutional.

Defendants moved under FED. R. CIV . PRO. 12(b)(6) to
dismiss Nyhuis's complaint. They advanced several

                                4


arguments, including the contention that, because he had
failed to exhaust his available administrative remedies
before filing his action in federal court, his action was
barred procedurally by 42 U.S.C. S 1997e(a). Nyhuis
contended that since the Bureau of Prisons' administrative
process could not afford the monetary or declaratory relief
he requested, exhaustion would essentially be futile, and
thus, S 1997e(a) should not bar his action. In her Report
and Recommendation, the Magistrate Judge to whom the
case had been referred accepted the Defendants' procedural
bar argument and rejected Nyhuis's futility argument.

Rather than merely dismiss the case at that point, so
that Nyhuis might go back and exhaust his administrative
remedies, she reached the merits of Nyhuis's action so as to
dispose of the issues should Nyhuis refile his action after
exhausting the administrative process. See Nyhuis v. Reno,
No. 97-324, at 5 (W.D. Pa. July 24, 1998) ("[A]s this court
only has the power to dismiss this complaint without
prejudice, only to have it filed again when[Nyhuis] has
exhausted his administrative remedies, the substantive
allegations raised in the complaint are reviewed below.")
(bold in original). Framing the merits question as one of
standing, see id. at 7-8, and not allowing for discovery or
the development of a factual record before ruling on
Nyhuis's claims, the Magistrate Judge opined that Nyhuis
had failed to demonstrate that he had a cognizable property
interest in his personal property, see id. at 9.

Nyhuis filed a timely objection to the Magistrate Judge's
report and recommendation. The District Court adopted the
Magistrate Judge's report and recommendation as its
opinion and ordered that the Defendant's motion to dismiss
be granted. Nyhuis timely appealed. The District Court had
jurisdiction pursuant to 28 U.S.C. S 1331. We have
jurisdiction under 28 U.S.C. S 1291.2
_________________________________________________________________

2. 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, 786 (3d Cir. 1993). Though the District Court may have
dismissed Nyhuis's action without prejudice, in this situation, that
description is anomalous for two reasons. First, the"without prejudice"
description is in tension with the Magistrate Judge's reaching the merits.

                               5


II.

Our analysis focuses on whether S 1997e(a), as amended
by the PLRA, contemplates a futility exception in cases in
which the applicable administrative process cannot afford
the inmate-plaintiff with the relief he seeks in his federal
action, and whether such an exception applies in this case.
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.

42 U.S.C. S 1997e(a). As the statutory language makes
clear, S 1997e(a) applies equally to S 1983 actions and to
Bivens actions. See, e.g., Lavista v. Beeler, 195 F.3d 254,
256 (6th Cir. 1999). Bivens actions are by definition
"brought . . . under . . . Federal law," 42 U.S.C. S 1997e(a),
and Congress clearly intended to sweep Bivens actions into
the auspices of the S1997e(a) when it enacted the PLRA, see
Lavista, 195 F.3d at 256 (collecting legislative history); see
also Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir.
1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th
Cir. 1997) (same).
_________________________________________________________________

Had Nyhuis exhausted his remedies and refiled his action, the
Magistrate Judge (and the District Court by adopting her report and
recommendation) would have no doubt dismissed Nyhuis's action on the
merits; her report says as much. Therefore, in a sense, Nyhuis had no
reason to cure the defect in his complaint. Second, Nyhuis did not
attempt to cure his complaint by availing himself of the administrative
process; instead, he filed this appeal, raising the argument that
exhausting his administrative remedies would be futile. In doing so, he
effectively stands on his original complaint. Under either of these
circumstances, appellate review from a dismissal without prejudice is
appropriate. See Garber v. Lego, 11 F.3d 1197, 1198 n.1 (3d Cir. 1993)
(noting that plaintiff can appeal from a dismissal without prejudice when
plaintiff cannot cure the defect in his complaint or when plaintiff
declares his intention to stand on the complaint); see also Bethel v.
McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996); Trevino-Barton v.
Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir. 1990).

                               6


Several courts of appeals have addressed the exhaustion
and futility question with which we are faced. Two general
lines of authority have emerged from these cases. In cases
in which a prison's internal grievance procedure cannot
provide money damages and the plaintiff asks only for
money damages arising only out of isolated past harms, a
number of courts have recognized and applied a futility
exception to 1997e(a)'s exhaustion requirement.3 These
courts, and the district courts that agree with them, reason
that it is senseless to force a prisoner to engage in the
"empty formality" of petitioning the prison administrative
process for a form of relief that it cannot provide. White v.
_________________________________________________________________

3. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998) (not requiring
exhaustion before filing Bivens action requesting monetary damages
when exhaustion would be futile because no monetary administrative
remedies were available); Lunsford v. Jumao-As, 155 F.3d 1178, 1179
(9th Cir. 1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1266-67 (10th
Cir. 1997) (same; noting that if Congress created an administrative
process that could provide monetary relief, the futility exception would
not apply); see also Rumbles v. Hill, 182 F.3d 1064, 1068-69 (9th Cir.
1999) (applying Lunsford's futility exception to a S 1983 action). The
Seventh Circuit can likely be included in this list as well. Judge
Easterbrook's opinion in Perez v. Wisconsin Dep't of Corrections, 182
F.3d 532, 538 (7th Cir. 1999), a S 1983 action, held that "pursuit of
administrative remedies is necessary no matter what relief the plaintiff
seeks." He noted, however,

       It is possible to imagine cases in which the harm is done and no
       further administrative action could supply any "remedy." Perhaps
       Lunsford [cited supra] met that description. Suppose the prisoner
       breaks his leg and claims delay in setting the bone is cruel and
       unusual punishment. If the injury has healed by the time suit
       begins, nothing other than damages could be a "remedy," and if the
       administrative process cannot provide compensation then there is
       no administrative remedy to exhaust. Perez, unlike Lunsford,
alleges

       that his medical problems are ongoing and that his treatment
       remains deficient, so Wisconsin can provide him with some "remedy"
       whether or not its administrative process offers damages.

Id. (emphasis in original). A subsequent panel for the Seventh Circuit
Court of Appeals cast doubt on the extent of this exception, calling it
dicta and not applying it in the case at bar, but did not rule that such
an exception would not apply in the precise factual context about which
Judge Easterbrook hypothesized. See Massey v. Helman, 196 F.3d 727,
734 (7th Cir. 1999).

                               7


Fauver, 19 F. Supp. 2d 305, 317 (D.N.J. 1998) (Orlofsky, J.)
("Any other interpretation would compel the conclusion that
`Congress intended to erect meaningless barriers to suit.' ")
(citation omitted).

These courts, as do others, see infra note 4, also
conclude that S 1997e(a) is not a jurisdictional requirement,
which by definition cannot be subject to a futility exception.
Rather, they hold that S 1997e(a) is a codification within the
PLRA of the doctrine of exhaustion of administrative
remedies, which before the PLRA was enacted had a futility
exception grafted upon it. See, e.g., Rumbles, 182 F.3d
1067-68. Therefore, they conclude, it is appropriate to
apply the futility exception when it is warranted, much in
the same way a court would equitably toll a statute of
limitations.4

Two courts of appeals and several district courts have
refused to apply a futility exception to S 1997e(a) in light of
the way the PLRA amended the section. See, e.g., Wyatt v.
Leonard, 193 F.3d 876, 878 (6th Cir. 1999); Alexander v.
Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998); Beeson v.
Fishkill Correctional Facility, 28 F. Supp. 2d 884, 896
(S.D.N.Y. 1998). The amendment replaced the requirement
that plaintiff-inmates exhaust "plain, speedy, and effective
remedies as are available" with the requirement that
_________________________________________________________________

4. Although we disagree that the futility exception survives the
enactment of the PLRA, see infra Section II.C, we agree with the clear
majority of courts that S 1997e(a) is not a jurisdictional requirement,
such that failure to comply with the section would deprive federal courts
of subject matter jurisdiction. See, e.g., Massey v. Hellman, 196 F.3d
727, 732 (7th Cir. 1999); Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.
1999); Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998);
Basham v. Uphoff, 1998 WL 847689, No. 98-8013, at *3 (10th Cir. Dec.
8, 1998). Section 1997e(c)(2), also enacted as part of the PLRA, provides
that "[i]n the event that a claim is, on its face, frivolous, malicious,
fails
to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such relief, the court may
dismiss the underlying claim without first requiring the exhaustion of
administrative remedies." 42 U.S.C.A. S 1997e(c)(2) (West Supp. 1999)
(emphasis added). If exhaustion under the PLRA were jurisdictional, this
section and the power it gives district courts would make no sense. See
Underwood, 151 F.3d at 295.
                               8


inmate-plaintiffs exhaust "such administrative remedies as
are available."5 These courts reason that the elimination of
the words "plain, speedy, and effective" from S 1997e(a)
precludes application of a futility exception, and that the
word "available" refers to any remedy the prison supplies,
rather than one of the prisoner's choosing. See, e.g.,
Alexander, 159 F.3d at 1326; Beeson, 28 F. Supp. 2d at
893.

Nyhuis's Bivens action is distinguishable from both lines
of cases because he requests a mix of remedies, some of
which were and some which were not available under the
Bureau of Prisons' administrative process. Nyhuis has
requested money damages and declaratory relief, which are
not available from the Bureau of Prisons, see 28
C.F.R. S 542.12(b) (1999); see also BOP Program Statement
1330.13, P 6(b)(1)-(3) (1996) (refusing to consider claims for
monetary relief), and a request for injunctive relief, which is
available from the Bureau, see 28 C.F.R. S 542.10 (1999).
Therefore, unlike the cases recognizing the futility
exception, in which the inmate asked the district court only
for remedies unavailable to him in the administrative
process, Nyhuis's action is a mixed claim, in which he asks
the District Court both for available and unavailable
remedies.
_________________________________________________________________

5. To set forth the full text, before it was amended by the PLRA,
S 1997e(a) provided that

       (1) Subject to the provisions of paragraph (2), in any action
       brought pursuant to section 1983 of this title by an adult
convicted

       of a crime confined in any jail, prison, or other correctional
facility,
       the court shall, if the court believes that such a requirement
would

       be appropriate and in the interests of justice, continue such case
       . . . to require exhaustion of such plain, speedy, and effective
       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 this section or are otherwise
       fair and effective.
42 U.S.C. S 1997e(a) (1994) (amended 1996) (emphasis added).

                               9


B.

No court of appeals interpreting the PLRA has recognized
a futility exception to S 1997e(a)'s exhaustion requirement
in a mixed claim case. Alexander and Beeson would of
course require exhaustion in the mixed claim scenario;
both cases require exhaustion in every case, whether it is
futile or not. See Alexander, 159 F.3d at 1325 (also noting
that in cases decided prior to the enactment of the PLRA,
courts required exhaustion when plaintiff's claims were
mixed); Beeson, 28 F. Supp. 2d at 896. Those courts of
appeals that have recognized the futility exception, see
supra note 3, have not extended the exception to mixed
claims actions: Two courts have explicitly rejected the
futility exception's application in mixed claim cases,6 while
the other courts have impliedly rejected its application in
similar circumstances.7
_________________________________________________________________

6. In Whitley, 158 F.3d at 887, the Court of Appeals for the Fifth Circuit
applied the futility exception in a case in which the plaintiff asked for
money damages that were not available under administrative scheme.
The court noted, however, that it would have required exhaustion had
the plaintiff in the case not amended his pleading to drop his claim for
injunctive relief, which he could have obtained in the available
administrative process. See id. In Lavista v. Beller, the Court of Appeals
for the Sixth Circuit wrote:

       Although it may make sense to excuse exhaustion of the
       prisoner's complaint where the prison system has aflat rule
       declining jurisdiction over [claims involving only money damages],
it
       does not make sense to excuse the failure to exhaust when the
       prison system will hear the case and attempt to correct legitimate
       complaints, even though it will not pay damages. Here, because
       plaintiff seeks injunctive and declaratory relief, as well as
monetary
       damages, he may be successful in having the Bureau of Prisons at
       least review its policies and procedures concerning disabled
persons

       at their facilities. If so, presenting his claims to the Bureau of
       Prisons first would not be futile, even if he cannot receive
monetary
       damages.

195 F.3d 254, 257 (6th Cir. 1999) (citation and footnote omitted).
7. See Rumbles, 182 F.3d at 1069 ("Exhaustion of administrative
remedies under S 1997e(a) is not required if a prisoner's section 1983
claim seeks only money damages and if the correctional facility's
administrative grievance process does not allow for such an award.")

                               10


Such a rule makes particular sense in a case such as the
one at bar. Nyhuis admits that if we were to award him the
declaratory relief he seeks, his claims for injunctive relief
would be "essentially superfluous." Reply Brief at 3. The
converse, of course, is also true. If, in the available
administrative process, the Bureau of Prisons were to give
him the injunctive relief he requests, several of his claims
for declaratory relief would be rendered moot. Allowing the
federal courts to fashion prison remedies before the prisons
themselves have had the opportunity (and have the ability)
to do so, is surely not what Congress intended when it
enacted the PLRA. Cf. Perez, 182 F.3d at 536-37 ("No one
can know [ex ante] whether administrative requests will be
futile; the only way to find out is to try.""[Otherwise] the
_________________________________________________________________

(emphasis added); Lunsford, 155 F.3d at 1179 ("Lunsford . . . seeks only
damages . . . . He does not request that the Bureau of Prisons be
required to take further corrective action. . . .[He is] therefore not
required to exhaust his administrative remedies before filing this lawsuit
. . . in light of the fact that the Administrative Remedy Program only
provides for injunctive relief.") (emphasis added); Garrett v. Hawk, 127
F.3d at 1266 (focusing on fact that inmate sought"purely monetary
damages," which were not available under the current administrative
process, and not injunctive relief as well).

In cases arising before or outside of the PLRA context, this court has
treated mixed claim actions similarly. See, e.g., Muhammad v. Carlson,
739 F.2d 122, 125 (3d Cir. 1984) ("Because a prisoner asserting only a
claim for damages under Bivens apparently can obtain no relief from the
Bureau of Prisons, it would serve little purpose to require him to exhaust
administrative remedies before coming into the courts.") (emphasis
added). In this line of cases, the futility exception did not apply in
cases
in which the petitioner asked both for money damages, which were not
available in the administrative process, and for injunctive relief, which
was available. See Young v. Quinlan, 960 F.2d 351, 356 n.8 (3d Cir.
1992) (Bivens action) (citing Veteto v. Miller, 794 F.2d 98, 100 (3d Cir.
1986) (holding "that the requirement for exhaustion of the administrative
remedy provided by the [administrative process] applies to a prisoner's
suit for injunctive or mandatory relief whether or not it carries an added
claim for damages")). As explained below, we believe that the PLRA did
away with the futility exception altogether. See infra Section I.C.
Therefore, the PLRA rendered, for the most part, irrelevant the
distinction that Muhammad and Young drew between mixed claim
actions and those only involving requests for money damages.
                               11


simplicity of S 1997e(a) would be lost . . . .") (emphasis in
original).

Accordingly, under either the across-the-board
exhaustion approach or the mixed-claim approach adopted
by courts of appeals recognizing a futility exception to
S 1997e(a), Nyhuis's action, as pleaded, is barred because of
his failure to exhaust his available administrative remedies.
That said, we are of the opinion that S 1997e(a), as
amended by the PLRA, completely precludes a futility
exception to its mandatory exhaustion requirement.
Therefore, we will affirm the District Court's judgment not
on the ground that the futility exception was not applicable
in this case, but on the ground that it is not applicable in
any case.

C.

There are four principal reasons why we are convinced
that the most sensible reading of S 1997e(a) is that the
futility exception is not applicable in any case.

1.

The first reason is the plain-reading argument,
mentioned above, regarding the manner in which Congress
amended the language in S 1997e(a). As Judge Mukasey
noted in Beeson, 28 F. Supp. 2d at 893, the PLRA amended
"S 1997e(a) by, inter alia, deleting the phrase `plain, speedy,
and effective' and removing all references to Attorney
General certification or court approval of available
administrative remedies." See supra note 5 (reproducing
S 1997e(a) as it read before its amendment by the PLRA). In
interpreting the alteration in language, we must presume,
as always, that this amendment was intended to have"real
and substantial effect." Stone v. I.N.S., 514 U.S. 386, 397
(1995).

In Alexander, the Eleventh Circuit persuasively described
the effect of this amendment. The court wrote, "The removal
of the qualifiers `plain, speedy, and effective' from the
PLRA's mandatory exhaustion requirement indicates that
Congress no longer wanted courts to examine the

                               12


effectiveness of administrative remedies but rather to focus
solely on whether an administrative remedy program is
`available' in the prison involved." Alexander, 159 F.3d at
1326; accord Perez, 182 F.3d at 537. Concomitantly, Judge
Mukasey wrote in Beeson, 28 F. Supp. 2d at 893 (citations
and quotations omitted), the amendment "suggests strongly
that `Congress now conditions prisoner suits on the
exhaustion of such administrative remedies as are
available, without regard to whether those remedies are
`effective,' without regard to whether they substantially
comply with `minimum acceptable standards,' and without
regard to whether they are `just and effective,' " as
S 1997e(a) had required before it was amended by the
PLRA, see supra note 5 (reproducing S 1997e(a) prior to its
amendment by the PLRA).

The Court of Appeals for the Fifth Circuit, as have other
courts, attempts to refute this argument, suggesting that
the retention of the word "available" in S 1997e(a) implies
that the judicially created futility exception survives the
passage of the PLRA, which merely codified existing
exhaustion doctrine. See Whitley, 158 F.3d at 886-87.
Invoking Webster's definition of the word "available" as it
applies to a remedy--"a remedy is `available' when it can be
availed `for the accomplishment of a purpose' or`is
accessible or may be obtained' "--the court held that if
prisoner sought a remedy that he could not obtain in
accessible administrative procedures, pursuant to
S 1997e(a), he need not avail himself of those futile
procedures before bringing an action in federal court. Id. at
887 (quoting WEBSTER'S NEW INT'L DICTIONARY 150 (3d ed.
1981)).

Several courts have exposed the three weaknesses of this
argument. First, as Judge Mukasey writes, "[R]eading
S 1997e(a) to apply only where an administrative scheme
provides adequate relief would "essentially reintroduce[ ]
the requirement of an `effective administrative remedy' after
Congress deleted it." Beeson, 28 F. Supp. 2d at 893
(citation omitted) (alteration in original). Nyhuis and other
prisoners in similar cases, indeed, do not complain that the
prisons in which they are confined do not provide internal
remedies that can be availed "for the accomplishment of a

                               13


purpose"--as Webster's defines "available"--they merely
dispute that the internal remedies which are available do
not allow them to accomplish all of their own purposes.
This is true even in the non-mixed-claim scenario where
the prisoner asks for unavailable monetary relief, and the
prison can possibly ameliorate some of the prisoner's
concerns with internal remedies. See infra Section II.C.4
(describing several of these alternative remedies). By
eliminating the "effective" language in S 1997e(a), Congress
saved federal courts from inquiring into whether the
particular administrative remedies available comported with
inmate-plaintiff's individualized and immediate desires for
relief.

Second, by leaving the word "available" inS 1997e(a)
Congress merely meant to convey that if a prison provided
no internal remedies, exhaustion would not be required.
The fact that the word survived the changes that the PLRA
wrought does not necessarily mean that the futility
exception survives. See Alexander, 159 F.3d at 1326-27
("Some state penal institutions may not have an
administrative remedy program to address prison
conditions, and thus there are no `available' administrative
remedies to exhaust. Section 1997e(a) permits these
prisoners to pursue their claims directly in federal court.");
accord Perez, 182 F.3d at 537; see also Moore v. Smith, 18
F. Supp. 2d 1360, 1364 (N.D. Ga. 1998) (Murphy, J.) ("The
most natural reading of [S 1997e(a), as it was amended by
the PLRA,] leads to the conclusion that Congress was not
asking courts to evaluate the sufficiency of the
administrative remedies, but merely intended to require
prisoners to utilize the existing administrative remedies,
whether the grievance procedure will produce the precise
remedy that the prisoner seeks or some other remedy.").

Third, by amending S 1997e(a) in the way that it did,
Congress not only eliminated the futility exception, it
foreclosed the opportunity for courts to read the exception
back into the statute. The courts that have attempted to
resurrect the futility exception and justify their inquiry into
the efficacy of the available prison administrative process
ignore Supreme Court precedent cautioning against such a
move. As Judge Mukasey noted in Beeson, the Supreme

                                14


Court has drawn a "sharp distinction between statutory
and judicial exhaustion: `Where Congress specifically
mandates, exhaustion is required. But where Congress has
not clearly required exhaustion, sound judicial discretion
governs.' " 28 F. Supp. 2d at 894 (quoting McCarthy v.
Madigan, 503 U.S. 140, 144 (1992)). Before S 1997e(a) was
amended, it did not require exhaustion, but rather, vested
power in the federal courts to make such determinations.
See supra note 5. Therefore, the "sound discretion" of
courts governed, McCarthy, 503 U.S. at 144, and courts
were free to recognize a futility exception.

Section 1997e(a), as amended, however, eliminates such
discretion. It "specifically mandates" that inmate-plaintiffs
exhaust their available administrative remedies, id., by
providing that "[n]o action shall be brought" until the
inmate-plaintiff has done so, 42 U.S.C. S 1997e(a).
Accordingly, as Congress has now "clearly required"
exhaustion in S 1997e(a), McCarthy, 503 U.S. at 144, "it is
beyond the power of this court--or any other--to excuse
compliance with the exhaustion requirement, whether on
the ground of futility, inadequacy or any other basis."
Beeson, 28 F. Supp. 2d at 894-95 (citing Weinberger v.
Salfi, 422 U.S. 749, 766 (1975) (holding that where
exhaustion is statutorily mandated, "[t]he requirement . . .
may not be dispensed with merely by a judicial conclusion
of futility"); Patsy v. Florida Bd. of Regents, 457 U.S. 496,
512 (1982) (stating that courts do not have authority "to
alter the balance struck by Congress in establishing the
procedural framework for bringing actions underS 1983")).

2.

The second argument in favor of our reading of S 1997e(a)
has a great deal to do with the nature of prison litigation
and Congress's intent in enacting the PLRA. As the court
stated in Alexander, "Congress amended section 1997e(a)
largely in response to concerns about the heavy volume of
frivolous prison litigation in the federal courts." 159 F.3d at
1326 n.11 (citing 141 Cong. Rec. H14078-02, H14105
(daily ed. Dec. 6, 1995)). The court went on to note,
"Congress desired `to wrest control of our prisons from the
lawyers and the inmates and return that control to

                               15


competent administrators appointed to look out for society's
interests as well as the legitimate needs of prisoners.' " Id.
(quoting 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept.
27, 1995)). Inmate-plaintiffs often file claims which are
untidy, repetitious, and redolent of legal language. The very
nature of such complaints necessitates that courts expend
significant and scarce judicial resources to review and
refine the nature of the legal claims presented."With these
considerations in mind, Congress mandated that prisoners
exhaust administrative remedies and eliminated courts'
conducting case-by-case inquiries until after a prisoner has
presented his claims to a particular administrative remedy
program, which often helps focus and clarify the issues for
the court." Alexander, 159 F.3d at 1326 n.11.

Exempting claims for monetary relief from the exhaustion
requirement in S 1997e(a) would frustrate this purpose. It
would enable prisoners, as they became aware of such an
exemption, to evade the exhaustion requirement, merely by
limiting their complaints to requests for money damages.
See Wyatt, 193 F.3d at 878. The PLRA "is designed to deter
frivolous lawsuits and this purpose would be undermined if
prisoners could avoid the law simply by asking for
monetary damages." Id. Such a result, would "do little to
`stem the tide of meritless prisoner cases,' as Congress
intended." Beeson, 28 F. Supp. 2d at 893 (citing 141 Cong.
Rec. S7525 (May 25, 1995)).

3.

The third argument militating in favor of our position
arises from the justifiable assumption, that in amending
S 1997e(a), Congress intended to save courts from spending
countless hours, educating themselves in every case, as to
the vagaries of prison administrative processes, state or
federal. An interpretation of S 1997e(a) that conditioned
exhaustion on whether an administrative scheme grants
the relief requested would have the effect of making the
application of S 1997e(a) dependent upon the peculiarities
of such processes. Such an interpretation would involve
federal courts in the tedious and intrusive process of
evaluating each prisoner's cause of action and the
underlying administrative scheme in each prison--

                                16


something Congress was plainly guarding against when it
enacted the PLRA. See Wyatt, 193 F.3d at 878-79; see also
141 Cong. Rec. S7498-01, S7526-27 (May 25, 1995)
(statement of Sen. Kyl) ("Statistics compiled by the
Administrative Office of the U.S. Courts . . . show that
inmate suits are clogging the courts and draining precious
judicial resources . . . . The volume of prisoner litigation
represents a large burden on the judicial system, which is
already overburdened by increases in nonprisoner
litigation . . . . An exhaustion requirement is appropriate for
prisoners given the burden that their cases place on the
Federal court system . . . .").

The statements made at oral argument by the lawyer
from the Appellate Staff of the Civil Division of the
Department of Justice in Washington (representing all of
the Defendants) strengthen our belief that we reach the
correct result. Counsel advised us that each of the
institutions in the Bureau of Prisons can and sometimes
does treat claims for money damages differently. 8 According
to counsel, in many cases the local Bureau of Prisons
institution will reject out of hand a prisoner grievance that
includes a claim for money damages so that the grievance
would get effectively no review. (This treatment is
consonant with the Bureau's stated policy. See 28
C.F.R. S 542.12(b) (1999); see also BOP Program Statement
1330.13, P 6(b)(1)-(3) (1996).) In such a case, counsel
suggested, resort to administrative processes would be
futile.

But not always. Counsel also stated that the Bureau of
Prisons reserved its right to argue that, had the inmate
triggered the administrative process and presented a
meritorious claim, the local institution would have reviewed
the inmate's claim and fashioned some form of relief other
than money damages. (We presume that the institutions
_________________________________________________________________

8. There are ninety four such institutions, see Federal Bureau of
Prisons, Federal Bureau of Prisons Quick Facts P 1 (Jan. 18, 1999; last
updated Nov. 30, 1999) http://www.bop.gov/fact0598.html>, housing
some 136,163 inmates, Federal Bureau of Prisons, Weekly Population
Report, at *3 (Jan. 18, 1999; last updated Jan. 7, 1999)
http://www.bop.gov/weekly.html >.

                               17


sometimes do that.) In other words, the inmate seeking only
money damages, thinking he has no administrative remedy,
can proceed to federal court and wait and see whether a
motion to dismiss is filed, and if it is, he would then know
that he should have pursued his administrative remedies.
Of course, by this time, the time limit to file such a
grievance may have well passed. See infra note 12
(discussing this possibility).

The Defendants' suggested approach to these cases
would require prisoners to act as seers, and judges to act
as detectives as they attempted to discover whether the
local administrative process could have, would have, or
might have afforded the inmate relief. The bright-line rule
that we adopt makes things clear for inmates and insures
that our time is saved for more important matters, as
Congress intended. See Perez, 182 F.3d at 536-37. Our
bright-line rule is that inmate-plaintiffs must exhaust all
available administrative remedies.9 Under such an
approach, federal courts need not waste their time
evaluating whether those remedies provide the federal
prisoner with the relief he desires. As detailed in the
margin, this argument has equal, if not greater import, in
42 U.S.C. S 1983 actions brought by state prisoners against
state prison officials.10
_________________________________________________________________

9. Obviously, for the administrative process to constitute a bar, it must
be capable of addressing the events that could generate a lawsuit or
have some relevance to that lawsuit. If, for example, the only grievance
procedure available dealt exclusively with work assignments, it would
not have to be exhausted unless the subsequent lawsuit was related
thereto. But see discussion in Section II.C.4, infra.

10. In Mississippi Choctaw Indian Band v. Holyfield, the Supreme Court
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.' " 490 U.S. 30, 43 (1989) (emphasis
added) (citations omitted). Congress gave no indication--let alone a
"plain indication"--that application of S 1997e(a) should depend on the
vagaries of state law. In fact, as Judge Mukasey noted in Beeson,

       [T]he deletion of the language making exhaustion dependent on the
       effectiveness of state remedies, and the removal of the provisions
       governing assessment of states' remedial schemes by the Attorney
       General and courts, is a fairly "plain indication" that Congress

                               18


4.

The last argument supporting our holding relies upon the
policies underlying exhaustion requirements in general.
Courts have recognized myriad policy considerations in
favor of exhaustion requirements. They include (1) avoiding
premature interruption of the administrative process and
giving the agency a chance to discover and correct its own
errors; (2) conserving scarce judicial resources, since the
complaining party may be successful in vindicating his
rights in the administrative process and the courts may
never have to intervene; and (3) improving the efficacy of
the administrative process. Each of these policies, which
Congress seems to have had in mind in enacting the PLRA,
is advanced by the across-the-board, mandatory exhaustion
requirement in S 1997e(a).

As the courts in Wyatt, 193 F.3d at 878, Alexander, 159
F.3d at 1327, and Beeson, 28 F. Supp. 2d at 895, noted, a
comprehensive exhaustion requirement better serves the
policy of granting an agency the "opportunity to correct its
own mistakes with respect to the programs it administers
before it is haled into federal court." McCarthy v. Madigan,
503 U.S. 140, 145 (1992); see also Perez, 182 F.3d at 537.11
Moreover, "even if the complaining prisoner seeks only
money damages, the prisoner may be successful in having
the [prison] halt the infringing practice" or fashion some
other remedy, such as returning personal property,
_________________________________________________________________

       intended the opposite: to impose one uniform standard requiring
       prisoners to pursue their claims initially through the
administrative
       process, without regard to the nature or extent of the relief
offered
       by that process in each state.

Beeson, 28 F. Supp. 2d at 893 (citations omitted). When one considers
the enormous amount of time federal courts spend reviewing actions
filed by inmate-plaintiffs, this argument makes a great deal of sense.
11. The Supreme Court has recognized that this policy is especially
important where it implicates agencies of state government. See Preiser
v. Rodriguez, 411 U.S. 475, 491-92 (1973) (emphasizing the strength of
state prisons' and state courts' interests in resolving complaints filed
by

state prisoners). Therefore, this argument has even more strength in the
S 1983 context.

                               19


reforming personal property policies, firing an abusive
prison guard, or creating a better screening process for
hiring such guards. Alexander, 159 F.3d at 1327; see also
Wyatt, 193 F.3d at 878 ("A purpose of the [PLRA] was to
insure that prisons have notice of complaints and are given
the opportunity to respond to prisoner complaints,
particularly legitimate complaints, so that injuries are
prevented in the future."). And when a prisoner obtains
some measure of affirmative relief, he may elect not to
pursue his claim for damages. In either case, local actors
are given the chance to address local problems, and at the
very least, the time frame for the prisoner's damages is
frozen or the isolated acts of abuse are prevented from
recurring. See Perez, 182 F.3d at 537-38; Alexander, 159
F.3d at 1327.

An across-the-board exhaustion requirement also
promotes judicial efficiency. As Judge Mukasey noted, "A
prisoner may use the threat of money damages as a
bargaining chip to obtain relief that he really wants, and
may then be satisfied when he gets that relief from the
prison." Beeson, 28 F. Supp. 2d at 895. Moreover, even if
only a small percentage of cases settle, the federal courts
are saved the time normally spent hearing such actions and
multiple appeals thereto. See id. ("Each case settled
through the administrative process is one less case that
must be litigated in federal court, with the attendant costs
--not only to the judicial system, but also to the parties
and to administrative independence--saved.").

In cases in which inmate-plaintiffs exhaust their
remedies in the administrative process and continue to
pursue their claims in federal court, there is still much to
be gained. 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. See Wyatt, 193 F.3d at 878-79; Perez, 182 F.3d
at 537-38. All of these functions help courts navigate the
sea of prisoner litigation in a manner that affords a fair
hearing to all claims.
Finally, applying S 1997e(a) without exception promotes
the efficacy of the administrative process itself, which in

                               20


our view can be a meaningful and constructive procedure.
Operating at its best, which it admittedly sometimes does
not, a prison administrative grievance procedure will afford
an inmate with the sense of respect. If prison officials treat
his claims with seriousness and care, they may well
discover that he can be easily satisfied. For example, in
Nyhuis's case, returning some of his personal belongings or
revising the prison policy in question may suffice to
ameliorate some of his concerns. In other cases, a letter of
apology, transfer to a more favorable cell block, or
disciplining the prison official who wronged the inmate may
suffice. And if the inmate sees his meritorious claims
handled with care by his jailers, he is more likely to respect
their rules and serve his time in a manner that is as
productive as possible. Most importantly, it is to be hoped
that, under the regime of this case and the PLRA, prison
grievance procedures will receive enhanced attention and
improved administration.

It is also important to observe that, if in the long run,
something of a cooperative ethos can be achieved between
inmate and jailer, the internal administrative process could
prove a less hostile and adversarial forum than that of
federal court. Of course, to serve these purposes, grievance
procedures must be understandable to the prisoner,
expeditious, and treated seriously. Although not necessary
to the holding we reach, as explained in the margin, the
procedures at issue in this case appear to meet these
requirements.12 Without embellishing--for the case law in

(Text continued on page 23)
_________________________________________________________________

12. An inmate "may seek formal review of an issue which relates to any
aspect of [his] confinement" under 28 C.F.R. S 542.10 (1999). The
procedure requires that the inmate first address his complaint to the
institution staff, see id. S 542.14(c)(4), within twenty calendar days
following the date on which the basis for the complaint occurred, see id.
S 542.14(a). The staff has twenty calendar days to respond to the
inmate's complaint. See id. S 542.18. If dissatisfied with the response at
that level, the inmate has twenty days to appeal his complaint to the
Regional Director of the Bureau of Prisons. See id. S 542.15(a). The
Regional Director has thirty calendar days to respond. See id. S 542.18.
Finally, the inmate may appeal his case, within thirty calendar days, to
the General Counsel in the Central Office of the Bureau of Prisons,
which is the "final administrative appeal." Id. S 542.15(a). The General
                               21


Counsel has forty calendar days to respond the inmate's petition. See id.
S 542.18. All told, the process should take no longer than one hundred
and eighty days. In fact, counsel for the Defendants has represented that
"absent an extension of time granted to the prisoner, the grievance
process in 1999 took no more than an average of 162.05 days to
complete from the day the grievance arose."

The procedure also insures that inmates are aware of their rights, and
that their rights are not forfeited unfairly. It provides that inmates may
obtain assistance from other prisoners, institution staff, or outside
sources, such as family members or attorneys, infiling their grievances.
See id. S 542.16(a). It also imposes the duty on wardens that they "shall
insure that assistance is available for inmates who are illiterate,
disabled, or who are not functionally literate in English." Id. S
542.16(b).
At each stage of the process, if an inmate is late in filing his
complaint,

these time limits may be extended when the inmate demonstrates a valid
reason for delay. See id. SS 542.14(b); 542.15(a).

At oral argument, we asked the Justice Department to check with the
Bureau of Prisoners whether there would be a tolling of the
administrative statutory period when an inmate filed his federal action
thinking his administrative remedies were futile, but later the Bureau of
Prisons asserted a S 1997e(a) exhaustion defense and the District Court
dismissed the inmate's action on this ground. In a letter memorandum,
counsel for the Justice Department represented that 28 C.F.R.
S 542.14(a) requires that "a prisoner file a formal Administrative Remedy
Request within twenty days of the date on which the basis for relief
arose. . . ." He further indicated that it was the Bureau of Prisons'
(apparently informal) policy that

       [w]here a prisoner files an action in federal court within the
twenty-
       day period and the court subsequently dismisses that action for
       failure to exhaust administrative remedies, the Bureau of Prisons
       treats the filing of the action as tolling the limitations period
for
       filing the administrative grievance. . . . Where a prisoner neither
files
       a grievance with prison officials nor files an action in the
federal

       district court within twenty days, the Bureau of Prisons views the
       grievance as time barred should the prisoner's action be dismissed
       for failure to exhaust administrative remedies.

This framework makes little sense. To achieve tolling, an inmate must
file his federal action within twenty days. In our experience, few
litigants
could properly prepare a federal action within such a short time frame.
Moreover, even if the inmate is successful in doing so, the Bureau of

                               22


the area will have to develop--we note our understanding
that compliance with the administrative remedy scheme will
be satisfactory if it is substantial. See, e.g., Miller v. Tanner,
196 F.3d 1190, 1194 (11th Cir. 1999) (recognizing and
applying substantial compliance doctrine); Wyatt, 193 F.3d
at 879-80 (same).

D.

For the reasons detailed in the Section above, we are not
prepared to read the amended language in S 1997e(a) as
meaning anything other than what it says--i.e., that no
action shall be brought in federal court until such
administrative remedies as are available have been
exhausted. As Nyhuis admittedly failed to initiate, and
therefore exhaust, his available administrative remedies
(rather than those he believed would be effective), we will
affirm the District Court's order dismissing the action.
Since the Magistrate Judge, having properly dismissed the
action for failure to exhaust, should not have reached the
merits of Nyhuis's claim, that portion of the District Court's
decision will be vacated.

A True Copy:
Teste:

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

Prisons can always undercut such an effort by asserting the exhaustion
defense. See supra Section II.C.3. The result: The inmate is back in the
administrative process. The more sensible rule, and the one we believe
Congress intended, is that inmates first test and exhaust the
administrative process, and then, if dissatisfied, take the time necessary
to file a timely federal action. This rule removes the guesswork and the
potential for unfairness that inheres in Justice Department's position.

                               23
