Booth v. Churner, 206 F.3d 289 (3d Cir. 03/07/2000)

[1] U.S. Court of Appeals, Third Circuit


[2] Nos. 97-7487, 97-7488


[3] 206 F.3d 289, 2000


[4] March 07, 2000


[5] TIMOTHY BOOTH, APPELLANT
v.
CHURNER, C.O.; WORKENSHER, SGT.; RIKUS, LT.; W. GARDNER, CAPT.


[6] 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


[7] Nancy Winkelman, Esquire (argued) Ralph Sianni, Esquire Schnader Harrison Segal & Lewis, Llp 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Attorneys for Appellant 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


[8] Before: Becker, Chief Judge, Mckee, and Noonan,* Circuit Judges. *Honorable John T. Noonan, Jr., Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.


[9] The opinion of the court was delivered by: Becker, Chief Judge.


[10] Argued: September 27, 1999


[11] (Filed March 7, 2000)


[12] OPINION OF THE COURT


[13] 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).


[14] 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 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.


[15] 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."


[16] 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.


[17] Accordingly, even though this is an excessive force action, and even though the Commonwealth of 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.*fn1


[18] I.


[19] 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."


[20] 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.


[21] Booth further claimed that on February 7, 1997, after an 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."


[22] 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.


[23] 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 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.*fn2 The court 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).


[24] 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.*fn3


[25] II.


[26] 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


[27] [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) (emphasis added).


[28] 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.


[29] A.


[30] 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)").


[31] 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 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.


[32] Section 3626(g)(2) provides that


[33] 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).


[34] 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.


[35] 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.


[36] B.


[37] 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:


[38] 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. . . .


[39] 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).


[40] 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 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.


[41] 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.


[42] 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).*fn4 In the margin, we respond, in part, to the dissent's adoption of Booth's position.*fn5


[43] C.


[44] 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.


[45] 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).*fn6 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.


[46] 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.


[47] 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).


[48] 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.*fn7 The difference between the terms of art invoked in Farmer and Hudson and in this case makes resort to maxim even more unreliable.


[49] 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.


[50] 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. *fn8 As we 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.*fn9


[51] III.


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


[53] 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).


[54] 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.*fn10 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.


[55] 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)).


[56] 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 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.


[57] 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.


[58] NOONAN, Circuit Judge, concurring and dissenting:


[59] 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.


[60] 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.


[61] 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."


[62] 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.


[63] 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.


[64] 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 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.


[65] 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.


[66] 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.


[67] 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 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.


[68] 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.


[69] 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.


[70] A True Copy: Teste:


[71] Clerk of the United States Court of Appeals for the Third Circuit



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Opinion Footnotes

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[72] *fn1 . 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.


[73] *fn2 . 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.


[74] *fn3 . 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.


[75] *fn4 . 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); 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.).


[76] *fn5 . 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] 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.


[77] *fn6 . In Hudson, 503 U.S. at 9, the Supreme Court distinguished the "extreme deprivations" that are necessary to make out a "conditions-of-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.


[78] *fn7 . In Hudson, the Court wrote, "[E]xtreme deprivations are required to make out a conditions-of-confinement claim. . . . In the excessive force 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).


[79] *fn8 . 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.


[80] *fn9 . 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). 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.


[81] *fn10 . 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.

Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 02/15/2000)

[1] U.S. Court of Appeals, Third Circuit


[2] NO. 98-3543


[4] February 15, 2000


[5] DOUGLAS NYHUIS, APPELLANT
v.
JANET RENO, ATTORNEY GENERAL; ERIC HOLDER, DEPUTY ATTORNEY GENERAL; KATHLEEN HAWK, DIRECTOR-BOP; JOHN HAHN, WARDEN


[6] 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


[7] 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


[8] Before: Becker, Chief Judge, Alito and Barry, Circuit Judges.


[9] The opinion of the court was delivered by: Becker, Chief Judge.


[10] Argued: January 11, 2000


[11] (Filed: February 15, 2000)


[12] OPINION OF THE COURT


[13] 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).


[14] 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 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.


[15] 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.


[16] 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.*fn1


[17] I.


[18] Nyhuis alleges that prison officials at FCI McKean confiscated several items of his personal property, including 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).


[19] 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.


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


[21] 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.


[22] 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.*fn2


[23] II.


[24] 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


[25] [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.


[26] 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).


[27] 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.*fn3 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. 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).


[28] 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.*fn4


[29] 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 inmate-plaintiffs exhaust "such administrative remedies as are available."*fn5 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.


[30] 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.


[31] B.


[32] 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,*fn6 while the other courts have impliedly rejected its application in similar circumstances.*fn7


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


[34] 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.


[35] C.


[36] 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.


[37] 1.


[38] 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).


[39] 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 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).


[40] 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)).


[41] 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 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.


[42] 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.").


[43] 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 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.


[44] 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")).


[45] 2.


[46] 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 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.


[47] 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)).


[48] 3.


[49] 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-- 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 . . . .").


[50] 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. *fn8 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.


[51] 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 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).


[52] 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.*fn9 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.*fn10


[53] 4.


[54] 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).


[55] 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.*fn11 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, 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.


[56] 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.").


[57] 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.


[58] Finally, applying S 1997e(a) without exception promotes the efficacy of the administrative process itself, which in 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.


[59] 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.*fn12 Without embellishing--for the case law in


[60] 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).


[61] D.


[62] 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.


[63] A True Copy: Teste:


[64] Clerk of the United States Court of Appeals for the Third Circuit



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Opinion Footnotes

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[65] *fn1 . 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.


[66] *fn2 . 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. 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).


[67] *fn3 . 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).


[68] *fn4 . 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.


[69] *fn5 . 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).


[70] *fn6 . 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).


[71] *fn7 . 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.") (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.


[72] *fn8 . 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 >.


[73] *fn9 . 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.


[74] *fn10 . 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 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.


[75] *fn11 . 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.


[76] *fn12 . 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 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 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.


20000215

206 F.3D 289

TIMOTHY BOOTH, Appellant v. CHURNER, C.O.; WORKENSHER, Sgt.; RIKUS, Lt.; W. GARDNER, Capt.

Nos. 97-7487, 97-7488

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

206 F.3d 289; 2000 U.S. App.

September 27, 1999, Argued
March 7, 2000, Filed


SUBSEQUENT HISTORY: [**1] Certiorari Granted October 30, 2000, Reported at: 2000 U.S. LEXIS 7005.

PRIOR HISTORY: 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.

DISPOSITION: Affirmed.




COUNSEL: NANCY WINKELMAN, ESQUIRE (ARGUED), RALPH SIANNI, ESQUIRE, Schnader Harrison Segal & Lewis, LLP, Philadelphia, PA, Attorneys for Appellant.

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, Harrisburg, PA, Attorneys for Appellees.

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

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

OPINIONBY: BECKER

OPINION:
[*290] 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 [**2] 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 [*291] 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. § 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 without first 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. § 1997e(a).
As amended by the PLRA, § 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. § 1997e [**3] (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 § 1997e(a) to § 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 § 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 § 1983 excessive force action. Therefore, he concludes, the District Court erred in analyzing his action under § 1997e(a). We reject this argument and hold that § 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 § 1997e(a)'s exhaustion requirement. Booth argues that even if § 1997e(a) applies to his action, exhaustion would have been futile, because the available administrative [**4] process could not provide him with the monetary relief he seeks. Accordingly, he contends, his failure to exhaust such procedures is not mandated by § 1997e(a), which only requires the exhaustion of administrative remedies "as are available."
Our recent decision in Nyhuis v. Reno, 204 F.3d 65, 2000 U.S. App. LEXIS 2044, 2000 WL 157531, at *11 (3d Cir. 2000), rejected this argument. Nyhuis was a Bivens action brought by a federal inmate, in which we held that "the PLRA amended § 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 § 1983 context, as § 1997e(a) treats Bivens actions and § 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 Pennsylvania's inmate grievance process could not provide Booth with the money damages he sought, we hold that Booth was required by § 1997e(a) to exhaust the administrative remedies available to him prior to filing this [**5] action. Because he admittedly has not done so, we will affirm the judgment of the District Court. n1

n1 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.

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. § 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 [*292] 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 [**6] 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 § 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 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 [**7] 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, [**8] 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. § 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. § 1997e(a) before filing his § 1983 action. The Court observed that at the time Booth filed his action the Pennsylvania Department of Corrections had a three-step 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. n2 The [*293] court concluded that as Booth had not exhausted his available remedies, dismissal was required by § 1997e(a). In reaching this conclusion, the District Court assumed, without discussion, that Booth's excessive force action was governed by § 1997e(a).

n2 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 § § VI.A.1, VI.B.2. (Oct. 20, 1994). Extensions of this time period may be granted for good cause. See id. § 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. § 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. § 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. § § 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. § 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, "any 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. § 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. § VI.D.2. On final review, the CORC (1) has the power to require additional investigation before it makes its determination, see id. § VI.D.5; (2) may consider matters related to the initial grievance, see id. § 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. § 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.

[**9]
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. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. n3

n3 The District Court dismissed Booth's § 1983 claim without prejudice. To be appealable under 28 U.S.C. § 1291, an order of dismissal must ordinarily be with prejudice. See, e.g., Bhatla 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.

[**10]
II.
We first examine whether the words "action . . . with respect to prison conditions" in § 1997e(a) were intended to apply to excessive force actions such as Booth's. Section 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.
[*294] 42 U.S.C. § 1997e(a) (emphasis added). Booth argues that his § 1983 excessive force action is not governed by § 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 § 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 [**11] that, in enacting the PLRA, Congress evinced no intent to disturb this distinction when it employed the "prison conditions" language it did in § 1997e(a). We take up these arguments in turn.
A.
We would normally begin our analysis of § 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. § 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 § 1997e(a)'s exhaustion requirement is determined by the definition of a 'civil action with respect to prison conditions' as set forth in § 3626(g)(2)").
To borrow from the Supreme Court in Sullivan v. Stroop, "the 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, 110 L. Ed. 2d 438, 110 S. Ct. 2499 (1990) [**12] (citations and internal quotations omitted). The PLRA not only amended 42 U.S.C. § 1997e to include various limitations on actions such as the mandatory exhaustion requirement in § 1997e(a), it also created 18 U.S.C. § 3626, which in many subsections, prevents federal courts from ordering broad prospective relief in "any civil action with respect to prison conditions." Like § 1997e, § 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 [*295] government officials on the lives of persons confined in prison, but [**13] does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.

18 U.S.C. § 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 § 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. § 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 [**14] 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.
B.
This common sense reading of the language in § 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, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991), the Court was faced with a similar provision in a prison litigation statute, 28 U.S.C. § 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 § 636(b)(1)(B), the unanimous Court interpreted the section's "conditions of confinement" language--one half of the definition of "prison [*296] conditions" in § 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, [**15] 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 § 1997e(a)'s exhaustion requirements even more clear. It did so by employing the language it did in § 3626(g)(2). In § 3626(g)(2), Congress included both the "conditions of confinement" language, which was enough in McCarthy to encompass all prisoner petitions, and the "effects of [**16] 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 § 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 § 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 [**17] with respect to prison conditions" in § 3626(g)(2), the Court of Appeals for the Sixth Circuit recently held "that the term 'prison conditions' as used in § 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 § 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 § 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). n4 In the margin, we respond, in part, to the dissent's adoption of Booth's position. n5

n4 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); 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 § 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 § 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, 1999 U.S. Dist. LEXIS 178, No. 98 Civ. 2664(JGK), 1999 WL 14014 (S.D.N.Y. Jan. 14, 1999) (Koeltl, J.).
[**18]


n5 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 § 1997e(a)--looking to its definition in Webster's and in 28 U.S.C. § 3626(g)(2)--and concludes that the phrase does not encompass claims of excessive force. As do we in addressing § 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 § 3626(g)(2)] does 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 § 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 § 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 "snippets 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. § 3626(g)(2), was intended to refer only to actions by prison officials such as"[the delivery of] lukewarm food; . . . employing unlicensed barbers; . . . admitting more prisoners than the prison was designed for; . . . . deciding to provide creamy peanut butter instead of chunky; . . . deciding not to offer salad bars or weekend brunches; [or] . . . deciding 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 § 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 § 3626(g)(2), the two clauses employed in § 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 § 3626(g)(2) narrower than the provision at issue in McCarthy is unconvincing, especially when the additional clause in § 3626(g)(2) clearly broadens the scope of the section.

[**19]
[*297] C.
Booth attempts to buttress his reading of § 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 " 'where 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, 31 V.I. 317, 42 F.3d 166, 171 (3d Cir. 1994) (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 69 L. Ed. 2d 672, 101 S. Ct. 2789 (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, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Hudson v. McMillian, 503 U.S. 1, 9, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). n6 From [**20] the distinction drawn by the Court in Farmer and Hudson, Booth reasons that if Congress intended to eliminate that distinction in § 1997e(a) between excessive force and prison condition claims it would have made its intentions explicit.

n6 In Hudson, 503 U.S. at 9, the Supreme Court distinguished the "extreme deprivations" that are necessary to make out a "conditions-of-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.

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 § 1997e(a), by defining that term expressly and expansively in § 3626(g)(2). Congress's explicit language in the PLRA, [**21] 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 § 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 § 1997e(a) applied to excessive force claims, "a court's responsibility in reading § 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. n7 The [**22] difference between the terms [*298] of art invoked in Farmer and Hudson and in this case makes resort to maxim even more unreliable.

n7 In Hudson, the Court wrote, "Extreme deprivations are required to make out a conditions-of-confinement claim. . . . In the excessive force 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).

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 [**23] 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. § 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 500 U.S. 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 § 1997e(a)'s exhaustion requirement does apply to excessive force claims. n8 As we hold that Booth's § 1983 excessive force action is governed by § 1997e(a), [**24] we turn our attention to whether § 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. n9

n8 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.
n9 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, § 1997e(a) was not intended to encompass excessive force claims. We find 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 "in 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 lawsuits filed 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 § 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 § 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 § 1997e(a).
Third, sections of the PLRA other than § 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. § 1997e(c)(1) empowers district courts to dismiss frivolous claims, of the chunky peanut butter variety, sua sponte. Similarly, 28 U.S.C. § 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. § 1915(g) closes the door, absent exceptional circumstances, to inmate-plaintiffs who previously have brought three frivolous lawsuits. 42 U.S.C. § 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. § 1915(g), explicitly do, see 28 U.S.C. § 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, § 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." 204 F.3d 65, 76, 2000 WL 157531, at *10 (3d Cir. 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, § 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.

[**25]
[*299] III.
Turning our attention to the application of § 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 was his right under the Inmate Grievance System. See supra note 2 (discussing the two-stage appellate process). Again, § 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. § 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 [**26] 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. n10

n10 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.

[**27]
[*300] Our recent opinion in Nyhuis v. Reno, 204 F.3d 65, 2000 WL 157531, at *5 (3d Cir. 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 § 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 § 1983 context, for § 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 § 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); [**28] Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir. 1997). Indeed, the Nyhuis rule has even greater force with respect to § 1983 actions. First, as we explained in Nyhuis, additional comity considerations obtain in the § 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, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973) (discussing these comity concerns)).
Second, additional federalism and efficiency considerations are implicated when reviewing § 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 'make the application of a federal act dependent on state law.' " Id. at [**29] *9 n.10 (quoting Mississippi Choctaw Indians Band v. Holyfield, 490 U.S. 30, 43, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (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 § 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 his § 1983 action, the District Court appropriately dismissed his action without prejudice. Id. at *11. Accordingly, the order of the District Court will be affirmed.

CONCURBY: John T. Noonan, Jr.

DISSENTBY: John T. Noonan, Jr.

DISSENT:
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. [**30] The relevant definition is "existing state of affairs," as in the common phrases "living conditions," [*301] "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 [**31] 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.
In § 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" [**32] 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, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (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 [**33] 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 [*302] creates conditions that, but for the PLRA, might become the subject of a suit. Other actions having an effect on prisoners' lives and referenced 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 [**34] 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 [**35] 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 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 [**36] 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 [*303] 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 [**37] against Churner, Robinson and Thomas survive. As to them I respectfully dissent.