                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1998

Jenkins v. Morton
Precedential or Non-Precedential:

Docket 97-5801




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Recommended Citation
"Jenkins v. Morton" (1998). 1998 Decisions. Paper 148.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/148


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Filed June 30, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5801

HASSAN JENKINS,

       Appellant

v.

WILLIS MORTON, as an individual and in his official
capacity as Administrator, New Jersey State Prison;
SHIRLEY TYLER, as an individual and in her
official capacity as Assistant Superintendent,
New Jersey State Prison;
J. MCGOVERN, as an individual and in his official
capacity as Disciplinary Hearing Officer

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 97-03159)

Submitted under Third Circuit LAR 34.1(a)
June 11, 1998

BEFORE: GREENBERG, SCIRICA, and NYGAARD,
Circuit Judges

(Filed: June 30, 1998)

       Hassan Jenkins

        Appellant pro se
       Peter Verniero
       Attorney General of New Jersey
       Mary C. Jacobson
       Assistant Attorney General
       Ronald L. Bollheimer
       Deputy Attorney General
       Office of Attorney General of
       New Jersey
       Department of Law & Public Safety
       Division of Criminal Justice
       Richard J. Hughes Justice Complex
       Trenton, NJ 08625

        Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellant Hassan Jenkins, an inmate at the New Jersey
State Prison, proceeding in forma pauperis under 28 U.S.C.
S 1915, brought this action under 42 U.S.C. S 1983 on
August 13, 1997, against appellees Willis E. Morton,
individually and as administrator of the prison, Shirley
Tyler, individually and as assistant superintendent of the
prison, and James McGovern, individually and as a
disciplinary hearing officer. The complaint asserted that the
appellees had violated Jenkins' due process and equal
protection rights in disciplinary proceedings in which
sanctions were imposed. The original sanction period
imposed in those proceedings was reduced on Jenkins'
administrative appeal. It is undisputed that the
administrative appeal exhausted Jenkins' conventional
administrative remedies, and it is also undisputed that
Jenkins did not appeal from the imposition of the reduced
sanctions to the Superior Court of New Jersey, Appellate
Division, as authorized as of right by N.J. Ct. R. 2:2-3(a)(2).

The summons and complaint were served on Morton and
Tyler but McGovern was not served. Morton and Tyler
moved to dismiss the complaint pursuant to the Prison
Litigation Reform Act of 1996, which, insofar as germane
here, provides:

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       No action shall be brought with respect to prison
       conditions under [42 U.S.C. S 1983], 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). The district court, in ruling on the
motion to dismiss, explained that the New Jersey
Administrative Code provides a grievance procedure for
challenging disciplinary decisions and that once the
"inmate has exhausted the remedies provided by the
Administrative Code, he has an automatic right to appeal
the decision to the Superior Court of New Jersey, Appellate
Division" under N.J. Ct. R. 2:2-3(a)(2).1

The court then indicated:

       that the sanction imposed upon the plaintiff by the
       Department of Corrections was a final agency decision
       and as such, upon exhausting the remedies available
       to him through the Administrative Code, plaintiff's
       next remedy was to challenge the decision with the
       Appellate Division. This Court further notes, that
       plaintiff failed in this case to challenge the decision in
       the Superior Court of New Jersey, Appellate Division.
       As such, plaintiff has failed to exhaust all
       administrative remedies available to him.

Accordingly, the court concluded that inasmuch as Jenkins
had "failed to exhaust all administrative remedies available
to him, [his] complaint must be dismissed in accordance
with the [Prison Litigation Reform Act of 1996]." Thus, the
court entered an order on November 21, 1997, dismissing
the complaint as to all defendants and closing the case.
Jenkins then appealed. We exercise plenary review on this
appeal.

This appeal raises a narrow but important point: did
Congress intend to include appeals to the state judicial
system within the administrative remedies which a prisoner
_________________________________________________________________

1. The Administrative Code provisions for appeal of disciplinary decisions
are set forth in N.J. Admin. Code tit. 10A, S 4-11.1 et seq. (1996). We
need not describe them in detail as appellees do not contend that
Jenkins did not exhaust them.

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must exhaust before bringing an action described in section
1997e(a)?2 We recognize that it might be sensible for
Congress to provide that a prisoner first exhaust both his
state administrative and judicial remedies before bringing
an action described within section 1997e(a). But the
problem with our observation, and thus with the district
court's opinion, is that there is a well-established
distinction between administrative and judicial remedies
and Congress, in terms, did not mandate that the prisoner
must exhaust his administrative remedies and exhaust his
right to judicial appellate review before bringing an action
within section 1997e(a). McCarthy v. Madigan, 503 U.S.
140, 112 S.Ct. 1081 (1992), highlights the distinction
between administrative and judicial remedies because the
Court, in discussing exhaustion of administrative remedies,
explained:

       [E]xhaustion promotes judicial efficiency in at least two
       ways. When an agency has the opportunity to correct
       its own errors, a judicial controversy may well be
       mooted, or at least piecemeal appeals may be avoided.
       And, even where a controversy survives administrative
       review, exhaustion of the administrative procedure may
       produce a useful record for subsequent judicial
       consideration, especially in a complex or technical
       factual context.

Id. at 146, 112 S.Ct. at 1086-87 (citations omitted).

We also observe that the Supreme Court has stated that
"policy considerations alone cannot justify judicially
imposed exhaustion unless exhaustion is consistent with
congressional intent." Patsy v. Board of Regents, 457 U.S.
496, 513, 102 S.Ct. 2557, 2566 (1982). Moreover, Patsy
makes clear that exhaustion of administrative remedies
ordinarily is not required before a plaintiff may bring a 42
U.S.C. S 1983 action. Thus, the exhaustion requirements in
section 1997e(a) run counter to the general rule under 42
U.S.C. S 1983. In the circumstances, we naturally are
reluctant to apply section 1997e(a) to mean other than
what it says: the prisoner must exhaust his "administrative
_________________________________________________________________

2. We note that the appellees do not contend that this action is not a
type of case governed by section 1997e(a).

                               4
remedies" as that term is conventionally understood, but
need not exhaust state judicial remedies before bringing an
action governed by that section.

The little direct judicial precedent germane under section
1997e(a) supports our result. Thus, in Alexandroai v.
California Dep't of Corrections, 985 F. Supp. 968 (S.D. Cal.
1997), the court described exhaustion under section
1997e(a) as follows:

       Before refiling, Plaintiff must exhaust all available
       administrative remedies pursuant to 42 U.S.C.
       S 1997e(a). Thus, in addition to filing his inmate appeal
       forms, Plaintiff must submit a formal appeal for second
       level review. If unsuccessful at that level, Plaintiff must
       then submit a formal appeal for third level review to
       the director of the California Department of Corrections
       or the director's designee. Only after Plaintiff has gone
       through each of these steps may he be said to have
       exhausted his available administrative remedies.

Id. at 970. Similarly in Hobson v. DeTella, 1997 WL 619822
(N.D. Ill. Sept. 30, 1997), the court described exhaustion
under section 1997e(a) as follows:

        The formal grievance procedure allows an inmate to
       file a written grievance addressed to the Grievance
       Officer. 20 Ill. Adm. Code. Sec. 504.810. Upon
       reviewing the written grievance, the Grievance Officer
       makes a recommendation to the warden of the facility
       or his designee. The inmate then receives a decision.
       20 Ill. Adm. Code Sec. 504.830.

        If the inmate feels that the Grievance Officer did not
       resolve the matter to his satisfaction, the inmate can
       appeal to the Director of the Department of Corrections
       (`Director'). The Director determines if the grievance
       requires a hearing before the Administrative Review
       Board (`Board'). If a hearing is required, the Board
       schedules one and submits its findings to the Director.
       The Director reviews the findings and makes afinal
       determination about the grievance. 20 Ill. Adm. Code
       Sec. 504.850. Once the Board issues a final decision,
       the inmate has exhausted all available administrative

                                5
       remedies. See Rhoden v. Detella, No. 95 C. 6585, 1996
       WL 5566975 *4 n.2 (N.D. Ill. Sept. 27, 1996).

Id. at *2. It will be noted that neither court mentioned that
judicial review was an administrative remedy.

For the foregoing reasons we will reverse the order of the
district court entered November 21, 1997, and will remand
the case to that court for further proceedings consistent
with this opinion. Obviously we do not imply that we have
a view on whether this action is meritorious. The parties
will bear their own costs on this appeal.

A True Copy:
Teste:

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

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