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1 of 100 DOCUMENTS
UNITED STATES CODE SERVICE
Copyright © 2004 Matthew Bender & Company, Inc.,
one of the LEXIS Publishing (TM) companies
All rights reserved
*** CURRENT THROUGH P.L. 108-279, APPROVED 7/22/04 ***
*** WITH GAPS OF P.L. 108-271 and 108-276 ***
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21. CIVIL RIGHTS
INSTITUTIONALIZED PERSONS
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
42 USCS § 1997e (2004)
§ 1997e. Suits by prisoners
(a) Applicability of administrative remedies. No action shall be brought with
respect to prison conditions under section 1979 of the Revised Statutes of the
United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.
(b) Failure of State to adopt or adhere to administrative grievance procedure.
The failure of a State to adopt or adhere to an administrative grievance
procedure shall not constitute the basis for an action under section 3 or 5 of
this Act [42 USCS § 1997a or 1997c].
(c) Dismissal.
(1) The court shall on its own motion or on the motion of a party dismiss any
action brought with respect to prison conditions under section 1979 of the
Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility
if the court is satisfied that the action is 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.
(2) In 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
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claim without first requiring the exhaustion of administrative remedies.
(d) Attorney's fees.
(1) In any action brought by a prisoner who is confined to any jail, prison,
or other correctional facility, in which attorney's fees are authorized under
section 2 of the Revised Statutes of the United States (42 U.S.C. 1988), such
fees shall not be awarded, except to the extent that-(A) the fee was directly and reasonably incurred in proving an actual
violation of the plaintiff's rights protected by a statute pursuant to which a
fee may be awarded under section 2 of the Revised Statutes; and
(B)
(i) the amount of the fee is proportionately related to the court
ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the
relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in
paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be
applied to satisfy the amount of attorney's fees awarded against the defendant.
If the award of attorney's fees is not greater than 150 percent of the judgment,
the excess shall be paid by the defendant.
(3) No award of attorney's fees in an action described in paragraph (1) shall
be based on an hourly rate greater than 150 percent of the hourly rate
established under section 3006A of title 18, United States Code, for payment of
court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into
an agreement to pay an attorney's fee in an amount greater than the amount
authorized under this subsection, if the fee is paid by the individual rather
than by the defendant pursuant to section 2 of the Revised Statutes of the
United States (42 U.S.C. 1988).
(e) Limitation on recovery. No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental
or emotional injury suffered while in custody without a prior showing of
physical injury.
(f) Hearings.
(1) To the extent practicable, in any action brought with respect to prison
conditions in Federal court pursuant to section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility, pretrial
proceedings in which the prisoner's participation is required or permitted shall
be conducted by telephone, video conference, or other telecommunications
technology without removing the prisoner from the facility in which the prisoner
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is confined.
(2) Subject to the agreement of the official of the Federal, State, or local
unit of government with custody over the prisoner, hearings may be conducted at
the facility in which the prisoner is confined. To the extent practicable, the
court shall allow counsel to participate by telephone, video conference, or
other communications technology in any hearing held at the facility.
(g) Waiver of reply.
(1) Any defendant may waive the right to reply to any action brought by a
prisoner confined in any jail, prison, or other correctional facility under
section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) or
any other Federal law. Notwithstanding any other law or rule of procedure, such
waiver shall not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply has been
filed.
(2) The court may require any defendant to reply to a complaint brought under
this section if it finds that the plaintiff has a reasonable opportunity to
prevail on the merits.
(h) "Prisoner" defined. As used in this section, the term "prisoner" means any
person incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or diversionary
program.
HISTORY: (May 23, 1980, P.L. 96-247, § 7, 94 Stat 352; Sept. 13, 1994, P.L.
103-322, Title II, Subtitle D, § 20416(a), 108 Stat. 1833; April 26, 1996, P.L.
104-134, Title I [Title VIII, § 803(d)], 110 Stat. 1321-71; May 2, 1996, P.L.
104-140, § 1(a), 110 Stat. 1327.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes:
Act May 2, 1996, P.L. 104-140, § 1(a), 110 Stat. 1327, inserted the heading
"TITLE I--OMNIBUS APPROPRIATIONS" after the enacting clause of Act April 26,
1996, P.L. 104-134.
Amendments:
1994. Act Sept. 13, 1994 (effective on enactment as provided by § 20416(b) of
such Act, which appears as a note to this section), in subsec. (a), in para.
(1), substituted "180 days" for "ninety days", in para. (2), inserted "or are
otherwise fair and effective"; and, in subsec. (c), in para. (1), inserted "or
are otherwise fair and effective", and, in para. (2), inserted "or is no longer
fair and effective".
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1996. Act April 26, 1996 substituted this section for one which read:
"Exhaustion of remedies
"(a) Applicability of administrative remedies.
(1) Subject to the provisions of paragraph (2), in any action brought
pursuant to section 1979 of the Revised Statutes of the United States (42 U.S.C.
1983) 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 for a period of not to exceed 180 days in order to require exhaustion of
such plain, speedy, and effective administrative 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) or are
otherwise fair and effective.
"(b) Minimum standards for development and implementation of system for
resolution of grievances of confined adults; consultation, promulgation,
submission, etc., by Attorney General of standards.
(1) No later than one hundred eighty days after the date of enactment of
this Act, the Attorney General shall, after consultation with persons, State and
local agencies, and organizations with background and expertise in the area of
corrections, promulgate minimum standards for the development and implementation
of a plain, speedy, and effective system for the resolution of grievances of
adults confined in any jail, prison, or other correctional facility. The
Attorney General shall submit such proposed standards for publication in the
Federal Register in accordance with section 553 of title 5, United States Code.
Such standards shall take effect thirty legislative days after publication
unless, within such period, either House of Congress adopts a resolution of
disapproval of such standards.
"(2) The minimum standards shall provide-"(A) for an advisory role for employees and inmates of any jail,
prison, or other correctional institution (at the most decentralized level as is
reasonably possible), in the formulation, implementation, and operation of the
system;
"(B) specific maximum time limits for written replies to grievances
with reasons thereto at each decision level within the system;
"(C) for priority processing of grievances which are of an emergency
nature, including matters in which delay would subject the grievant to
substantial risk of personal injury or other damages;
"(D) for safeguards to avoid reprisals against any grievant or
participant in the resolution of a grievance; and
"(E) for independent review of the disposition of grievances, including
alleged reprisals, by a person or other entity not under the direct supervision
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or direct control of the institution.
"(c) Procedure for review and certification of systems for resolution of
grievances of confined adults for determination of compliance with minimum
standards; suspension or withdrawal of certification for noncompliance;
development, etc. by Attorney General.
(1) The Attorney General shall develop a procedure for the prompt review
and certification of systems for the resolution of grievances of adults confined
in any jail, prison, or other correctional facility, or pretrial detention
facility, to determine if such systems, as voluntarily submitted by the various
States and political subdivisions, are in substantial compliance with the
minimum standards promulgated under subsection (b) or are otherwise fair and
effective.
"(2) The Attorney General may suspend or withdraw the certification under
paragraph (1) at any time that he has reasonable cause to believe that the
grievance procedure is no longer in substantial compliance with the minimum
standards promulgated under subsection (b) or is no longer fair and effective.
"(d) Failure of State to adopt or adhere to administrative grievance
procedure. The failure of a State to adopt or adhere to an administrative
grievance procedure consistent with this section shall not constitute the basis
for an action under section 3 or 5 of this Act.".
Other provisions:
Effective date of Sept. 13, 1994 amendments. Act Sept. 13, 1994, P.L.
103-322, Title II, Subtitle D, § 20416(b), 108 Stat. 1834, provides: "The
amendments made by subsection (a) [amending this section] shall take effect on
the date of enactment of this Act.".
Disclosure of financial records and other personal information in prisoners'
actions under 42 USCS § 1983. Act Oct. 21, 1998, P.L. 105-277, § 101(b) [Title
I, § 127], 112 Stat. 2681-74, provides:
"Notwithstanding any other provision of law, in any action brought by a
prisoner under section 1979 of the Revised Statutes (42 U.S.C. 1983) against a
Federal, State, or local jail, prison, or correctional facility, or any employee
or former employee thereof, arising out of the incarceration of that prisoner-"(1) the financial records of a person employed or formerly employed by
the Federal, State, or local jail, prison, or correctional facility, shall not
be subject to disclosure without the written consent of that person or pursuant
to a court order, unless a verdict of liability has been entered against that
person; and
"(2) the home address, home phone number, social security number, identity
of family members, personal tax returns, and personal banking information of a
person described in paragraph (1), and any other records or information of a
similar nature relating to that person, shall not be subject to disclosure
without the written consent of that person, or pursuant to a court order.".
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Applicability of provision relating to disclosure of financial records and
other personal information in prisoners' actions under 42 USCS § 1983. For
provision that § 127 of Title I of § 101(b) of Act Oct. 21, 1998, P.L. 105-277
(note to this section), shall apply to fiscal year 2000 and thereafter, see §
109 of H.R. 3421, as enacted into law by § 1000(a)(1) of Act Nov. 29, 1999, P.L.
106-113, which appears as 28 USCS § 524 note.
NOTES:
CODE OF FEDERAL REGULATIONS
Department of Justice--Standards for inmate grievance procedures, 28 CFR Part
40.

RESEARCH GUIDE
Federal Procedure:
6 Fed Proc L Ed, Civil Rights §§ 11:13, 947-949.
Am Jur:
15 Am Jur 2d, Civil Rights §§ 97, 159.
53 Am Jur 2d, Mentally Impaired Persons § 88.
60 Am Jur 2d, Penal and Correctional Institutions § 135.
Annotations:
Attorney's Fees Awards under § 803(d) of Prison Litigation Reform Act (42
U.S.C.A. § 1997e(d)[42 USCS § 1997e(d)]). 165 ALR Fed 551.
Sufficiency of Access to Legal Research Facilities Afforded Defendant
Confined in State Prison or Local Jail. 98 ALR5th 445.
Constitutional and Statutory Validity of Judicial Videoconferencing. 115
ALR5th 509.
Rights of Prisoners in Private Prisons. 119 ALR5th 1.
Nonconsensual treatment of involuntarily committed mentally ill persons with
neuroleptic or antipsychotic drugs as violative of state constitutional
guaranty. 74 ALR4th 1099.
Law Review Articles:
Lay. Exhaustion of Grievance Procedures for State Prisoners Under § 1997e of
the Civil Rights Act. 71 Iowa L Rev 935, May 1986.

INTERPRETIVE NOTES AND DECISIONS
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1. Generally
2. Constitutionality
3. Applicability
4. Exhaustion of administrative remedies
4.5. Grounds
5. --Particular circumstances
6. Hearing
7. Limitation on damages
8. Dismissal
9. Attorneys' fees
10. Appeal and review
1. Generally
Congress enacted 42 USCS § 1997e(a)--which precluded bringing of any action
with respect to prison conditions under 42 USCS § 1983, or any other federal
law, by state prisoner confined in any jail, prison, or other correctional
facility until available administrative remedies were exhausted--to reduce
quantity and improve quality of prisoner suits; to this purpose, Congress
afforded corrections officials time and opportunity to address complaints
internally before allowing initiation of federal case. Porter v Nussle (2002)
534 US 516, 152 L Ed 2d 12, 122 S Ct 983, 2002 CDOS 1753, 15 FLW Fed S 121.
Although former version of 42 USCS § 1997e provided that states may
voluntarily submit grievance procedures for certification, state's failure to do
so did not give prisoner cause of action. Mann v Adams (1988, CA9 Ariz) 846 F2d
589, reh, en banc, den (1988, CA9 Ariz) 855 F2d 639 and cert den (1988) 488 US
898, 102 L Ed 2d 231, 109 S Ct 242.
Prisoner who had not sought leave to file an out-of-time grievance after his
grievance was denied because it was untimely cannot be considered to have
exhausted his administrative remedies, for purposes of 42 USCS § 1997e. Harper v
Jenkin (1999, CA11 Ga) 179 F3d 1311, 12 FLW Fed C 989.
In cases governed by Prison Litigation Reform Act of 1996, prisoner's failure
to exhaust administrative remedies is an affirmative defense to be pleaded by
the defendant. Ray v Kertes (2002, CA3 Pa) 285 F3d 287.
Inmates' action against corrections officers was remanded to district court
for development of record regarding exhaustion of administrative remedies;
exhaustion was not jurisdictional, but it was nevertheless mandatory. Casanova v
Dubois (2002, CA1 Mass) 289 F3d 142.
In forma pauperis inmate's § 1983 claims of retaliation and improper urine
testing conditions are dismissed without prejudice pursuant to 42 USCS § 1997e
(a), where all matters relating to prison conditions may be grieved, because,
although court is sympathetic to serious nature of inmate's allegations, his
failure to meet requirements of § 1997e(a) is fatal to his claims. Giano v Goord
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(1998, WD NY) 9 F Supp 2d 235.
Prisoner's actions concerning his grievance against prison officials met
requirement for exhaustion of administrative remedies under 42 USCS § 1997e,
where prisoner filed grievance within 6 months and later appealed decision to
proper authority, and prisoner twice contacted Administrative Review Board after
hearing and did not receive response. Jones v Detella (1998, ND Ill) 12 F Supp
2d 824.
Application of attorney's fees provisions of amendments to 42 USCS § 1997e
here will not have impermissible retroactive effect, even though case was filed
several months prior to effective date of amendments, where attorney was not
appointed for filer until almost 2 years after amendments took effect, because
applying fee provisions in this situation will not "impair rights, increase
liability for past conduct, or attach new duties to completed transactions."
Roberson v Brassell (1998, SD Tex) 29 F Supp 2d 346, op withdrawn, motion gr
(1999, SD Tex) 1999 US Dist LEXIS 12406.
Inmate's § 1983 action against prison officials is dismissed without
prejudice, where administrative exhaustion requirements of 42 USCS § 1997e(a)
apply even to prisoner claims for monetary relief only, because inmate took
initial steps in grievance process but his efforts were incomplete and did not
constitute exhaustion. Smith v Stubblefield (1998, ED Mo) 30 F Supp 2d 1168
(criticized in Royster v United States (1999, SD NY) 1999 US Dist LEXIS 18252).
Pro se prisoner's § 1983 complaint is dismissed without prejudice, where he
admits he did not file any prior complaint regarding alleged beating by 2 prison
officers with prison grievance program or in state court, because recent
amendment to 42 USCS § 1997e makes exhaustion requirement mandatory rather than
directory. Harris v Gunderman (1999, SD NY) 30 F Supp 2d 664.
Inmate's claim for improper treatment of hernia must be dismissed, where he
does not even allege that he has pursued prison administrative remedies,
focusing rather on speculative ultimate ineffectiveness of such remedies,
because, under current version of 42 USCS § 1997e(a), Congress intended for
prisoners to resort initially to administrative remedial procedures without
regard to effectiveness of such procedures in providing specific relief
requested. Massey v Helman (1999, CD Ill) 35 F Supp 2d 1110, affd (1999, CA7
Ill) 196 F3d 727 and (criticized in Royster v United States (1999, SD NY) 1999
US Dist LEXIS 18252).
Prisoner's claim that prison officials used race-based considerations to make
housing assignments for temporary prisoners is not barred by 42 USCS § 1997e(e),
even though statute can be read to bar all claims for mental or emotional
injury, where majority view has been to confine statute's applicability to
Eighth Amendment context, because court will not adopt interpretation that gives
rise to serious constitutional problems and will adopt narrower interpretation
of § 1997e(e) under which statute does not apply to Fourteenth Amendment equal
protection claims. Mason v Schriro (1999, WD Mo) 45 F Supp 2d 709.
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Requirement of 42 USCS § 1997e(a) that prisoner exhaust "such administrative
remedies as are available" applied to prisoner's § 1983 claims against
corrections official seeking monetary damages. Langford v Couch (1999, ED Va) 50
F Supp 2d 544.
Requirement under 42 USCS § 1997e(c) that federal prisoner exhaust his
administrative remedies before bringing action challenging prison conditions
mandates good-faith, bona fide effort to comply with Bureau of Prisons
procedures for obtaining administrative remedy. Zolicoffer v Scott (1999, ND Ga)
55 F Supp 2d 1372.
Because nominal and punitive damages can be recovered for certain
constitutional violations without showing of actual or physical injury, 42 USCS
§ 1997e(e) does not bar recovery. Hock v Thipedeau (2002, DC Conn) 238 F Supp 2d
446, on reconsideration, vacated, in part, on other grounds (2003, DC Conn) 245
F Supp 2d 451.
Court rejected city's and corrections officer's argument that there was
heightened pleading standard requiring inmate to allege that inmate had
exhausted prison's administrative remedies; however, court found that inmate had
not presented any evidence, direct or indirect, to challenge city's and
corrections officer's evidence that inmate did not pursue administrative
remedies, so city's and corrections officer's motion for summary judgment for
failure to exhaust administrative remedies, as required by Prison Litigation
Reform Act of 1996, 42 USCS 1997e(a), was granted. Harvey v City of Philadelphia
(2003, ED Pa) 253 F Supp 2d 827.
2. Constitutionality
42 USCS § 1997e neither nullifies Eighth Amendment by leaving violations
without remedy nor violates Equal Protection Clause, as statute is rationally
related to stated purpose of Congress to limit frivolous lawsuits. Zehner v
Trigg (1997, CA7 Ind) 133 F3d 459.
Language of 42 USCS § 1997e(a) is not unconstitutionally vague. Higginbottom
v Carter (2000, CA11 Ga) 223 F3d 1259, 13 FLW Fed C 1087.
Cap on attorney's fee award under 42 USCS § 1997e(d)(2) did not violate equal
protection component of Fifth Amendment, as government could rationally choose
to deter filing of marginal civil rights claims and to protect the public fisc
by decreasing attorney's fee awards. Walker v Bain (2001, CA6 Mich) 257 F3d 660,
2001 FED App 232P.
Restrictions on attorney's fees in 42 USCS § 1997e(d) did not violate
prisoner's right to equal protection under Fifth Amendment because 42 USCS §
1997e(d) was rationally related to legitimate government interest of decreasing
marginal or trivial lawsuits, and prisoner failed to negate every conceivable
basis which might have supported 42 USCS § 1997e(d); therefore, 42 USCS § 1997e
(d) survived rational basis review. Jackson v State Bd. of Pardons & Paroles
(2003, CA11 Ga) 331 F3d 790, 16 FLW Fed C 608.
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Successful prisoner litigant is not limited to $ 629 attorney's fee award,
even though government argues limit is necessary to deter frivolous filings and
protect public fisc, because provision of 42 USCS § 1997e(d)(2) limiting
attorney's fee award under 42 USCS § 1988 to 150 percent of judgment awarded in
prisoner cases is not rationally related to any legitimate governmental interest
and violates equal protection component of Fifth Amendment. Walker v Bain (1999,
ED Mich) 65 F Supp 2d 591 (criticized in Morrison v Davis (2000, SD Ohio) 88 F
Supp 2d 799).
42 USCS § 1997e(d)(A) did not violate equal protection rights of prisoners in
relation to other claimants who could recover fees if their suit was catalyst
for government action producing extrajudicial relief, where separate treatment
of prisoners was rationally related to goal of deterring frivolous litigation.
Waterman v Farmer (2000, DC NJ) 84 F Supp 2d 579.
3. Applicability
Provision of Prison Litigation Reform Act of 1995 (PLRA), as amended (42 USCS
§ 1997e(a))--which (1) precluded bringing of any action with respect to prison
conditions under 42 USCS § 1983, or any other federal law, by state prisoner
confined in any jail, prison, or other correctional facility until available
administrative remedies had been exhausted; but (2) did not define "prison
conditions"--applied to all inmate suits seeking redress for prison
circumstances or occurrences, whether suits involved general circumstances or
particular episodes, and whether suits alleged excessive force or some other
wrong. Porter v Nussle (2002) 534 US 516, 152 L Ed 2d 12, 122 S Ct 983, 2002
CDOS 1753, 15 FLW Fed S 121.
Exhaustion requirement under 42 USCS § 1997e applied to inmate's 42 USCS §
1983 suit seeking both injunctive and monetary relief. Arvie v Stalder (1995,
CA5 La) 53 F3d 702.
Administrative exhaustion requirement of amendment to 42 USCS § 1997e(a) does
not apply to appeals already pending on enactment date, as statute expressly
governs bringing of new actions rather than disposition of pending cases. Wright
v Morris (1997, CA6 Ohio) 111 F3d 414, 1997 FED App 122P, subsequent app (1997,
CA6 Ohio) 111 F3d 132, reported in full (1997, CA6) 1997 US App LEXIS 7301 and
cert den, motion gr (1997) 522 US 906, 139 L Ed 2d 190, 118 S Ct 263.
Limitations on attorney's fee awards under 42 USCS § 1997e applied to fees
awarded to group of incarcerated juveniles who successfully challenged
constitutionality of juvenile prison conditions in South Carolina, and fee
provisions of § 1997e applied retroactively to fee awards for work performed but
not compensated prior to its enactment. Alexander S. v Boyd (1997, CA4 SC) 113
F3d 1373, cert den (1998, US) 139 L Ed 2d 869, 118 S Ct 880 and (criticized in
Glover v Johnson (1998, CA6 Mich) 138 F3d 229, 1998 FED App 72P) and (criticized
in Hadix v Johnson (1998, CA6 Mich) 143 F3d 246, 1998 FED App 117P) and
(criticized in Inmates of D.C. Jail v Jackson (1998, App DC) 332 US App DC 451,
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158 F3d 1357) and (criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413).
42 USCS § 1997e would not be applied to an award of attorney's fees for legal
assistance completed prior to enactment of PLRA. Glover v Johnson (1998, CA6
Mich) 138 F3d 229, 1998 FED App 72P, remanded (1998, CA6 Mich) 143 F3d 246, 1998
FED App 117P (criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413) and
(criticized in Collins v Montgomery County Bd. of Prison Inspectors (1999, CA3
Pa) 1999 US App LEXIS 9037) and reh, en banc, den (1998, CA6) 1998 US App LEXIS
13682.
42 USCS § 1997e(e) did not apply to action brought by prisoner after he was
released on parole, as prisoner was no longer "confined in a jail, prison, or
other correctional facility". Kerr v Puckett (1998, CA7 Wis) 138 F3d 321.
Attorney's fee limitation section of PLRA, 42 USCS § 1997e(d), pertaining to
civil rights actions by prisoners, does not apply to fee petitions for work
performed prior to or after enactment of PLRA, in case filed before enactment
date. Hadix v Johnson (1998, CA6 Mich) 143 F3d 246, 1998 FED App 117P
(criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413) and (criticized in
Collins v Montgomery County Bd. of Prison Inspectors (1999, CA3 Pa) 1999 US App
LEXIS 9037).
42 USCS § 1997e(e) does not apply to First Amendment claims, regardless of
form of relief sought, as deprivation of First Amendment rights entitles
plaintiff to judicial relief wholly aside from any physical, mental, or
emotional injury incurred. Canell v Lightner (1998, CA9 Or) 143 F3d 1210, 98
CDOS 3490, 98 Daily Journal DAR 4827.
PLRA limitations would not necessarily be applied to fee awards made after
effective date of PLRA, for purposes of 42 USCS § 1983 action by attorneys who
provided legal work for prisoner before effective date of PLRA but who were
awarded fees after effective date. Blissett v Casey (1998, CA2 NY) 147 F3d 218.
42 USCS § 1997e(a) does not apply retroactively to claims filed prior to its
enactment. Bishop v Lewis (1998, CA9 Ariz) 155 F3d 1094, 98 CDOS 7037, 98 Daily
Journal DAR 9731.
42 USCS § 1997e(e) does not apply to action brought before enactment of PLRA.
Swan v Banks (1998, CA9 Cal) 160 F3d 1258, 98 CDOS 8664, 98 Daily Journal DAR
12041.
42 USCS § 1997e(e) does not apply retroactively to cases filed prior to
passage of Prison Litigation Reform Act, as language "may be brought" in §
1997e(e) clearly indicates that statute applies only to cases commenced after
its enactment. Craig v Eberly (1998, CA10 Colo) 164 F3d 490, 1999 Colo J C A R
745.
42 USCS § 1997e(e) did not preclude claims for injunctive relief in action
where prisoner sought relief for mental and emotional injury resulting from
requirement that he wear face mask and from denial of outdoor exercise. Perkins
v Kansas Dep't of Corrections (1999, CA10 Kan) 165 F3d 803.
Attorney's fees limitations of PLRA applied to all hours worked on case after
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date of passage of PLRA, where inmate brought civil rights action under 42 USCS
§ 1983 prior to enactment of PLRA. Winters v Sissel (1999, CA8 Iowa) 167 F3d
413.
Fee cap under 42 USCS § 1997e applied to attorneys appointed after Prison
Litigation Reform Act's enactment, even where action was filed before effective
date of PLRA, as attorneys were on notice of hourly rate they could expect under
cap. Chatin v Coombe (1999, CA2 NY) 186 F3d 82.
Term "prison conditions" as used in 42 USCS § 1997e(a) applies to claims of
excessive force or equal protection. Hartsfield v Vidor (1999, CA6 Mich) 199 F3d
305, 1999 FED App 406P.
Term "prison conditions" as used in 42 USCS § 1997e(a) includes claims of
excessive force, thereby subjecting inmate's 42 USCS § 1983 claim that he was
assaulted by corrections officer to administrative exhaustion requirement. Wolff
v Moore (1999, CA6 Ohio) 199 F3d 324, 1999 FED App 410P.
Provision of PLRA directing that no federal civil action may be brought by
prisoner for mental or emotional injury suffered while in custody without prior
showing of physical injury applied to constitutional torts as well as
non-constitutional tort claims. Cassidy v Indiana Dep't of Corrections (2000,
CA7 Ind) 199 F3d 374, 10 AD Cas 106.
Spanish-speaking inmates' challenge to adequacy of prison's provision of
interpreters for Spanish-speaking inmates was challenge to prison conditions
subject to exhaustion of administrative remedies requirement of 42 USCS § 1997e
(a). Castano v Nebraska Dep't of Corrections (2000, CA8 Neb) 201 F3d 1023, reh,
en banc, den (2000, CA8) 2000 US App LEXIS 6234.
Detainee who was civilly committed to state hospital under state's Sexually
Violent Predators Act after he served time for criminal conviction was not a
"prisoner" within meaning Prison Litigation Reform Act, and thus was not subject
to financial account statement and exhaustion requirements. Page v Torrey (2000,
CA9 Cal) 201 F3d 1136, 2000 CDOS 355, 2000 Daily Journal DAR 489.
42 USCS § 1997e(a)'s exhaustion requirement applies to excessive force
claims. Booth v Churner (2000, CA3 Pa) 206 F3d 289 (criticized in Giannattasio v
Artuz (2000, SD NY) 2000 US Dist LEXIS 3907).
42 USCS § 1997e does not apply to alien detainee awaiting deportation, and
thus previous decisions of court regarding federal prisoners and exhaustion of
administrative remedies were not directly applicable to alien detainee's
challenge to disciplinary hearing procedures and punishment. Edwards v Johnson
(2000, CA5 La) 209 F3d 772.
42 USCS § 1997e did not apply to arrestee confined after arrest for traffic
offenses, as arrestee was not prisoner when complaint was filed, and Prison
Litigation Reform Act applies only to suits filed by prisoners. Janes v
Hernandez (2000, CA5 Tex) 215 F3d 541.
42 USCS § 1997e(e) applies to lawsuits filed while plaintiff is a confined
prisoner but which are not decided until after prisoner is released from
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confinement, as term "brought" in § 1997e(e) refers to filing or commencement of
a lawsuit, not to its continuation. Harris v Garner (2000, CA11 Ga) 216 F3d 970,
13 FLW Fed C 755.
Excessive force claim by prisoner against prison guard was subject to
statutory exhaustion requirement under 42 USCS § 1997e(a). Camp v Brennan (2000,
CA3 Pa) 219 F3d 279.
Prison Litigation Reform Act's exhaustion requirements applied to inmate's
excessive use of force claim, and exhaustion requirement cannot be waived based
on prisoner's belief that pursuing administrative remedies would be futile.
Higginbottom v Carter (2000, CA11 Ga) 223 F3d 1259, 13 FLW Fed C 1087.
Exhaustion requirement of the Prison Litigation Reform Act does not apply to
allegations of particular instances of excessive force or assault by prison
employees. Nussle v Willette (2000, CA2 Conn) 224 F3d 95.
Statutory cap of defendants' liability for attorneys' fees under Prison
Litigation Reform Act at 150 percent of the judgment applies to awards of
nominal damages. Boivin v Black (2000, CA1 Me) 225 F3d 36.
Exhaustion requirement under 42 USCS § 1997e(a) of Prison Litigation Reform
Act does not apply to cases pending on date of enactment of statute. Ghana v
Holland (2000, CA3 Pa) 226 F3d 175.
Inmate who was issued a series of misbehavior tickets in retaliation for his
complaints to prison authorities was not required to exhaust administrative
remedies under 42 USCS § 1997e(a), as exhaustion requirement referring to
"prison conditions" does not apply to cases alleging individualized retaliation.
Lawrence v Goord (2001, CA2 NY) 238 F3d 182.
Provision of 42 USCS § 1997e eliminating recovery for mental or emotional
injury suffered while in custody without a prior showing of physical injury
applied to plaintiff inmate's claim that prison officials violated his First
Amendment right to free exercise of religion by denying him approval for a
kosher diet. Searles v Van Bebber (2001, CA10 Kan) 251 F3d 869, 2001 Colo J C A
R 2447.
Prisoner's complaints that he was harassed and retaliated against by
correctional officers after he won a lawsuit against Department of Corrections
for unreasonably refusing to authorize liver transplant for prisoner were
"prison conditions" subject to exhaustion requirement under 42 USCS § 1997e(a).
Johnson v Litscher (2001, CA7 Wis) 260 F3d 826.
Term in 42 USCS § 1997e(a), "with respect to prison conditions," applied to
inmate's excessive force claim filed after he was beaten by guards. Larkin v
Galloway (2001, CA7 Ill) 266 F3d 718, reh den (2001, CA7 Ill) 2001 US App LEXIS
22898.
42 USCS § 1997e(e) applies to claims in which a plaintiff alleged
constitutional violations, such that plaintiff cannot recover damages for mental
or emotional injury for a constitutional violation in absence of a showing of
actual physical injury, but § 1997e(e) does not prevent a prisoner from
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obtaining injunctive or declaratory relief. Thompson v Carter (2002, CA2 NY) 284
F3d 411.
42 USCS § 1997e(e) does not apply to state-law claims that are unrelated to
prison conditions, are filed by prisoners in state court, and are removed to
federal court solely on basis of diversity jurisdiction. Mitchell v Brown &
Williamson Tobacco Corp. (2002, CA11 Ala) 294 F3d 1309, 15 FLW Fed C 675.
Where federal prisoner brought personal injury action against cigarette
manufacturers, in state court and exclusively under state law, and case was
removed to federal court on basis of diversity jurisdiction, 42 USCS § 1997e(e)
had no application to prisoner's case, which was clearly not federal civil
action when it was brought, since it was filed in state court and based solely
on state law. Mitchell v Brown & Williamson Tobacco Corp. (2002, CA11 Ala) 294
F3d 1309, 15 FLW Fed C 675.
Although former inmate would have been free of strictures of Prison
Litigation Reform Act (PLRA), 42 USCS § 1997e, if he had filed timely 42 USCS §
1983 complaint against prison officers after his release from prison, he was
bound by PLRA because he filed his complaint almost three years before he was
released from prison, even though he was released during pendancy of action.
Ahmed v Dragovich (2002, CA3 Pa) 297 F3d 201.
Dismissal of prisoner's Eighth Amendment claims was vacated because prisoner
's allegations, if true, could only lead to conclusion that prison guards
conducted strip search in manner designed to demean and humiliate, and although
42 USCS § 1997e(e) would bar recovery of compensatory damages "for" mental and
emotional injuries suffered, statute was inapplicable to awards of nominal or
punitive damages for Eighth Amendment violation itself. Calhoun v Detella (2003,
CA7 Ill) 319 F3d 936.
Phrase "any action brought by prisoner" in 42 USCS § 1997e(d) means all
lawsuits that are filed by prisoner and is not restricted to lawsuits
challenging "prison conditions" that are filed by prisoner. Jackson v State Bd.
of Pardons & Paroles (2003, CA11 Ga) 331 F3d 790, 16 FLW Fed C 608.
Phrase "any action brought by prisoner" in 42 USCS § 1997e(d) means all
lawsuits that are filed by prisoner and is not restricted to lawsuits
challenging "prison conditions" that are filed by prisoner; accordingly, §
1997e(d) applied to prisoner's underlying 42 USCS § 1983 action, and thus, his
motion for attorney's fees and his supplemental application for attorney's fees.
Jackson v State Bd. of Pardons & Paroles (2003, CA11 Ga) 331 F3d 790, 16 FLW Fed
C 608.
Prison officials are not immune from attorney's fees award based on 42 USCS §
1997e(d)(1)(A), where prisoner proved that failure to remedy smoking situation
at prison would result in Eighth Amendment violation and officials then changed
policy and banned smoking, because that provision should not be applied
retroactively and would not be applicable here, since fees were directly and
reasonably incurred in proving actual violation of prisoner's rights at
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preliminary injunction hearing. Weaver v Clarke (1996, DC Neb) 933 F Supp 831,
affd (1997, CA8 Neb) 120 F3d 852, cert den (1998) 522 US 1098, 139 L Ed 2d 884,
118 S Ct 898.
Request cannot be granted as submitted, because cap on attorney's fees
established by 42 USCS § 1997e applied to work performed by attorneys in prison
litigation after statute's effective date. Hadix v Johnson (1996, ED Mich) 947 F
Supp 1113.
42 USCS § 1997e(e) did not apply retroactively to inmate's pending § 1983
claim, where inmate was entitled to seek compensatory damages without suffering
physical injury when he filed complaint, and application of statute to pending
cases would eliminate claims that were legally cognizable and attach new legal
consequences to events completed before enactment of statute. Thomas v Hill
(1997, ND Ind) 963 F Supp 753.
Civil rights action brought by inmate and inmate's nonprisoner husband
seeking declaratory and injunctive relief to permit husband to attend birth of
his child was not suit "brought by prisoner" within meaning of 42 USCS § 1997e
(d). Turner v Wilkinson (1999, SD Ohio) 92 F Supp 2d 697.
42 USCS § 1997e(e) did not preclude § 1983 action in which inmate sought
injunctive relief and damages, but did not allege physical injury or ask for
damages for mental or emotional distress. Jones-Bey v Cohn (2000, ND Ind) 115 F
Supp 2d 936.
Where harm to prisoner that is constitutionally actionable is physical or
emotional injury occasioned by violation of rights, 42 USCS § 1997e(e) applies,
but where such harm is violation of intangible rights, regardless of actual
physical or emotional injury, statute does not govern. Shaheed-Muhammad v
Dipaolo (2001, DC Mass) 138 F Supp 2d 99 (criticized in Searles v Van Bebber
(2001, CA10 Kan) 251 F3d 869, 2001 Colo J C A R 2447).
42 USCS § 1997e(e) did not bar state inmate's claims for declaratory and
injunctive relief with respect to alleged efforts of corrections officers to
incite physical confrontations between inmate and other prisoners. Montero v
Crusie (2001, SD NY) 153 F Supp 2d 368.
42 USCS § 1997e(e) did not apply retroactively, and, thus, did not foreclose
state prisoner from recovering for mental or emotional damages in suit brought
against state officials under Americans with Disabilities Act and Rehabilitation
Act before provision's effective date. Key v Grayson (2001, ED Mich) 163 F Supp
2d 697, accepted, in part, mod, claim dismissed (2001, ED Mich) 163 F Supp 2d
697.
Requirement of 42 USCS § 1997e(a) that inmate exhaust his administrative
remedies before bringing § 1983 action with respect to prison conditions did not
retroactively apply to state prisoner's § 1983 action for violation of his
Eighth Amendment right to be free from deliberate indifference to his medical
needs that was pending before enactment of exhaustion requirement. Torrence v
Pelkey (2001, DC Conn) 164 F Supp 2d 264, affd, on reconsideration, motion gr
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(2001, DC Conn) 164 F Supp 2d 264.
Former inmates are entitled to summary judgment declaration of
unconstitutionality of strip-search procedure at county jail, even though they
have not alleged physical injury, where plaintiffs filed claims following their
detention, because 42 USCS § 1997e(e) "physical injury" requirement does not
apply to claims brought by former inmates. Doan v Watson (2001, SD Ind) 168 F
Supp 2d 932.
Plaintiff's claim that as pretrial detainee he should not have been placed on
punitive pod without due process and/or solely as punishment was non-frivolous.
Davis v Milwaukee County (2002, ED Wis) 225 F Supp 2d 967.
Plaintiff's claim that he had to pay too much for postage on his letters
because jail had no meter mail service to weigh them was frivolous, but his
claim that jail and sheriff had rejected his mail without notifying him was
non-frivolous. Davis v Milwaukee County (2002, ED Wis) 225 F Supp 2d 967.
Plain language of Prison Litigation Reform Act suggests that former prisoners
do not fall within its scope as 42 USCS § 1997e(a), (e), and (h) speak of those
prisoners confined in jail, prison or other correction facility or incarcerated
or detained, status to be determined at time suit is brought. Smith v Franklin
County (2002, ED Ky) 227 F Supp 2d 667.
Physical injury requirement of 42 USCS § 1997e(e) did not apply where inmate
's claims regarding placement in keeplock were based on First Amendment
violations, rather than 42 USCS § 1983 claims for mental or emotional injury.
Auleta v LaFrance (2002, ND NY) 233 F Supp 2d 396.
Defendants in inmate's excessive force suit were entitled to amend their
answer following U.S. Supreme Court decision that 42 USCS § 1997e(a) exhaustion
of administrative remedies requirement applied to all prisoners seeking redress
for prison circumstances or occurrences; although defendants were presumably
aware of § 1997e(a) exhaustion requirement at time they filed their answer, it
would have been futile for them to have asserted exhaustion defense at that time
given that law in Second Circuit was that exhaustion requirement did not apply
to claims pertaining to isolated incidents affecting particular inmates.
Livingston v Piskor (2003, WD NY) 215 FRD 84.
Some courts have concluded that 42 USCS § 1997e(d)(2) gives district court
discretion to determine what constitutes proper portion, up to 25 per cent;
statute is not model of clarity, but more plausible interpretation, especially
given other limits that § 1997e places on both prisoners and courts, is that
court must automatically apply plaintiff's fee award against his damages to
extent that it does not exceed 25 per cent of damages. Jackson v Austin (2003,
DC Kan) 267 F Supp 2d 1059.
Illinois General Assembly had not adopted Prison Litigation Reform Act, 42
USCS § 1997 (2000), and Supreme Court of Illinois refused to do so by judicial
fiat to resolve action filed by inmate against Illinois Department of
Corrections officials. Beahringer v Page (2003) 204 Ill 2d 363, 789 NE2d 1216.
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4. Exhaustion of administrative remedies
It can be fairly inferred that Congress, by amending the exhaustion of
administrative remedies requirement of 42 USCS § 1997e(a) so as to eliminate the
qualification that such remedies be "effective," meant to preclude the result in
McCarthy v Madigan (1992) 503 US 140, 117 L Ed 2d 291, 112 S Ct 1081, which held
that exhaustion was not required under previous version of § 1997e(a) when an
inmate sought only monetary relief and the administrative process offered none.
Booth v Churner (2001) 532 US 731, 149 L Ed 2d 958, 121 S Ct 1819, 2001 CDOS
4277, 2001 Daily Journal DAR 5257, 2001 Colo J C A R 2679, 14 FLW Fed S 281, 69
USLW 4387.
District Courts have power to enforce exhaustion requirement under former
version of 42 USCS § 1997e by dismissal with prejudice, following continuance
granted under § 1997e if prisoner fails to pursue administrative remedies.
Rocky v Vittorie (1987, CA5 La) 813 F2d 734, 93 ALR Fed 699.
Exhaustion requirement under 42 USCS § 1997e applied to inmate's 42 USCS §
1983 suit seeking both injunctive and monetary relief. Arvie v Stalder (1995,
CA5 La) 53 F3d 702.
Administrative exhaustion requirement of amendment to 42 USCS § 1997e(a) does
not apply to appeals already pending on enactment date, as statute expressly
governs bringing of new actions rather than disposition of pending cases. Wright
v Morris (1997, CA6 Ohio) 111 F3d 414, 1997 FED App 122P, subsequent app (1997,
CA6 Ohio) 111 F3d 132, reported in full (1997, CA6) 1997 US App LEXIS 7301 and
cert den, motion gr (1997) 522 US 906, 139 L Ed 2d 190, 118 S Ct 263.
42 USCS § 1997e does not impose exhaustion of administrative remedies as
prerequisite to jurisdiction, and available administrative remedies are
exhausted for purposes of prisoner's civil rights action when the time limits
for the prison's response set forth in prison Grievance Procedures have expired.
Underwood v Wilson (1998, CA5 Tex) 151 F3d 292, cert den (1999, US) 67 USLW
3716.
42 USCS § 1997e(a) does not apply retroactively to claims filed prior to its
enactment. Bishop v Lewis (1998, CA9 Ariz) 155 F3d 1094, 98 CDOS 7037, 98 Daily
Journal DAR 9731.
Pro se in forma pauperis claim under 42 USCS § 1983 by prisoner alleging
excessive force by prison officers was properly dismissed for failure to exhaust
administrative remedies prior to filing suit as required by 42 USCS § 1997e,
where prisoner did not raise any valid excuse for failing to exhaust available
administrative remedies, and prisoner would be able to refile action once he
exhausted his remedies under § 1997e. Wendell v Asher (1998, CA5 Tex) 162 F3d
887.
Litigants who file prison condition actions after release from confinement
are no longer "prisoners" for purposes of 42 USCS § 1997e(a), and therefore they
need not satisfy the exhaustion requirements of that provision. Greig v Goord
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(1999, CA2 NY) 169 F3d 165.
Exhaustion requirement of amended 42 USCS § 1997e(a) would not be applied to
action pending as of effective date of Prison Litigation Reform Act. Salahuddin
v Mead (1999, CA2 NY) 174 F3d 271.
Inmate exhausted administrative remedies as required under 42 USCS § 1997e
(a), where record demonstrated that inmate's grievance under 42 USCS § 1983
against policy prohibiting him from wearing his hair in dreadlocks had been
denied by warden and Assistant Director of correctional facility at time court
ruled. Williams v Norris (1999, CA8 Ark) 176 F3d 1089.
Prisoners who filed 42 USCS § 1983 claim that prison officials failed to
protect him and tried to cover up their failure by issuing false disciplinary
charge exhausted his administrative remedies under 42 USCS § 1997e(a), where
inmate followed two-step grievance procedure, and state's time for responding
thereto had expired. Powe v Ennis (1999, CA5 Tex) 177 F3d 393.
Failure to exhaust administrative remedies under 42 USCS § 1997e does not
deprive federal court of subject matter jurisdiction where money damages is sole
relief sought and money damages are not available through prison's
administrative grievance process. Rumbles v Hill (1999, CA9 Cal) 182 F3d 1064,
99 CDOS 5232, 99 Daily Journal DAR 6703.
Federal inmate filing Bivens complaint must exhaust administrative remedies
under 42 USCS § 1997e(a) before filing claim. Lavista v Beeler (1999, CA6 Ky)
195 F3d 254, 1999 FED App 371P.
Prisoner was required to exhaust administrative remedies as required under 42
USCS § 1997e, even though inmate sought money damages not provided by state
prison grievance procedures. Freeman v Francis (1999, CA6 Ohio) 196 F3d 641,
1999 FED App 372P.
Under 42 USCS § 1997e, where prison has internal administrative grievance
system through which a prisoner can seek to correct a problem, prisoner must
utilize that administrative system before filing 42 USCS § 1983 claim, and
potential effectiveness of administrative response or whether prisoner's
preferred remedy is available has no relationship to requirements of § 1997e.
Massey v Helman (1999, CA7 Ill) 196 F3d 727.
State claims brought in federal court pursuant to diversity jurisdiction are
not exempted from exhaustion requirement under 42 USCS § 1997e(a). Hartsfield v
Vidor (1999, CA6 Mich) 199 F3d 305, 1999 FED App 406P.
42 USCS § 1997e(a) requires mandatory exhaustion of all administrative
remedies, whether or not they provide inmate-plaintiff with relief sought in
federal action. Nyhuis v Reno (2000, CA3 Pa) 204 F3d 65.
Statute of limitations which applied to prisoner's 42 USCS § 1983 claim of
denial of court access would be tolled for period during which his available
state remedies were being exhausted. Brown v Morgan (2000, CA6 Ky) 209 F3d 595,
2000 FED App 127P.
Where prison had administrative process that would review prisoner's 42 USCS
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§ 1983 complaint, prisoner must exhaust administrative remedies even though
money damages were not available. Knuckles El v Toombs (2000, CA6 Mich) 215 F3d
640, 2000 FED App 202P.
Failure to exhaust administrative remedies under 42 USCS § 1997e(a) does not
deprive federal court of jurisdiction, as statutory language is insufficient to
create a jurisdictional requirement, and other portions of the PLRA indicate
that federal courts do have jurisdiction in cases where administrative remedies
remain. Chelette v Harris (2000, CA8 Ark) 229 F3d 684, reh, en banc, den (2000,
CA8) 2000 US App LEXIS 29604.
Failure to exhaust administrative remedies under 42 USCS § 1997e(a) does not
deprive federal court of jurisdiction, as statutory language is insufficient to
create a jurisdictional requirement, and other portions of the PLRA indicate
that federal courts do have jurisdiction in cases where administrative remedies
remain. Chelette v Harris (2000, CA8 Ark) 229 F3d 684, reh, en banc, den (2000,
CA8) 2000 US App LEXIS 29604.
Prisoner is required to exhaust administrative remedies pursuant to 42 USCS §
1997e(a) only if challenged conduct on part of correctional employees was
conduct which was either clearly mandated by prison policy or undertaken
pursuant to systemic practice. Marvin v Goord (2001, CA2 NY) 255 F3d 40.
Accumulation of water in cell and exposure of defendant to second-hand smoke
in cell are examples of "prison conditions" for which 42 USCS § 1997(e) requires
exhaustion of administrative remedies. Gibson v Goord (2002, CA2 NY) 280 F3d
221.
PLRA's exhaustion requirement under 42 USCS § 1997e(a) is affirmative
defense. Wyatt v Terhune (2002, CA9 Cal) 280 F3d 1238, 2002 CDOS 1430, 2002
Daily Journal DAR 1726.
Failure to comply with exhaustion requirement under 42 USCS § 1997e is
affirmative defense to be pleaded by defendant. Ray v Kertes (2002, CA3 Pa) 285
F3d 287.
Where plaintiff was no longer prisoner at time of his appeal, and thus could
not exhaust his administrative claims, it did not excuse his failure to comply
with exhaustion requirement of Prison Litigation Reform Act of 1995, as
exhaustion was precondition to filing of complaint in federal court. Dixon v
Page (2002, CA7 Ill) 291 F3d 485.
Fact that inmate happened to be prisoner in various locations, and under
custody of different officials, did not affect his obligation to exhaust his
administrative remedies before filing suit. Medina-Claudio v Rodriguez-Mateo
(2002, CA1 Puerto Rico) 292 F3d 31.
District court had erred in finding that plaintiff inmate had failed to
exhaust his remedies in prison disciplinary system, and inmate's right to pursue
claims under Eighth Amendment was not limited to or by contents of his
intra-prison grievances. Strong v David (2002, CA7 Ill) 297 F3d 646.
District court's dismissal of prisoner's suit without prejudice was proper,
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since failure to protect claim was action brought with respect to prison
conditions; thus, it was subject to Prison Litigation Reform Act's
administrative exhaustion requirements. Clifford v Gibbs (2002, CA5 La) 298 F3d
328.
District court properly dismissed prisoner's complaint against Federal Bureau
of Prisons for lack of exhaustion; Prison Litigation Reform Act of 1995 requires
prisoner to exhaust all available administrative remedies before filing any
federal lawsuit challenging prison conditions, including suit brought to enforce
settlement agreement and superseding that agreement's provision on exhaustion.
Smith v Fed. Bureau of Prisons (2002, CA6 Ky) 300 F3d 721, 2002 FED App 277P.
Where state inmate filed grievance against prison official for failing to
protect inmate from attack by cellmate, grievance was denied, prison policy
provided for 30-day period to appeal, and inmate, rather than filing timely
appeal, waited for promised responses to various requests that never came, his
federal civil rights claim was properly dismissed under Prison Litigation Reform
Act of 1995 for failure to exhaust administrative remedies; neither substantial
compliance exception nor equitable estoppel applied to inmate's situation. Lewis
v Washington (2002, CA7 Ill) 300 F3d 829.
Where plaintiff did not receive timely response to prison administrative
grievance, and did not follow up on deficiency as required by director of
department of corrections on appeal, plaintiff did not exhaust all of available
administrative remedies, and plaintiff's 42 USCS § 1983 action was properly
dismissed. Jernigan v Stuchell (2002, CA10 Okla) 304 F3d 1030.
Prisoner may not amend 42 USCS § 1983 complaint to cure failure to plead
exhaustion of administrative remedies, if action is covered by Prison Litigation
Reform Act of 1995. Baxter v Rose (2002, CA6 Tenn) 305 F3d 486, 2002 FED App
328P.
Where prison grievance procedure was available, plaintiff was aware of it,
and plaintiff chose not to follow it, judgment for plaintiff in his civil rights
action was reversed based on exhaustion requirement in 42 USCS § 1997e(a). Lyon
v Vande Krol (2002, CA8 Iowa) 305 F3d 806.
Summary judgment in favor of wardens was vacated because non-exhaustion under
Prison Litigation Reform Act of 1995, specifically 42 USCS § 1997e(a), did not
impose pleading requirement, but rather, created defense and wardens failed to
show that inmate did not exhaust administrative remedies. Wyatt v Terhune (2002,
CA9 Cal) 305 F3d 1033, 2002 CDOS 9748, 2002 Daily Journal DAR 10997.
For purposes of exhausting administrative remedies, remedy need not be
formally adopted through regulations to be considered administrative remedy
within scope of 42 USCS § 1997e(a)'s exhaustion requirement. Concepcion v Morton
(2002, CA3 NJ) 306 F3d 1347.
Prisoner's alleged blindness clearly did not prevent him from filing 42 USCS
§ 1983 action, from appealing disciplinary hearing, or from filing prison
grievances after his transfer to another facility, and his quarrel with any
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details of detention center grievance procedure was irrelevant, inasmuch as he
never attempted to utilize procedure and was well aware of general procedural
requirements described in inmate handbook; therefore, prisoner had failed to
exhaust his administrative remedies pursuant to Prison Litigation Reform Act, 42
USCS § 1997e(a), before bringing this action. Ferrington v La. Dep't of Corr.
(2002, CA5 La) 315 F3d 529.
District court's dismissal of prisoner's conditions-of-confinement claim, for
failure to exhaust administrative remedies, was premature; under 42 USCS 1997e
(c), failure to exhaust was not permissible basis for sua sponte dismissal.
Mitchell v Horn (2003, CA3 Pa) 318 F3d 523.
Summary judgment was affirmed for corrections officers when inmate alleged
that inmate was required to work in excessive heat because inmate had not
exhausted administrative remedies as required by 42 USCS § 1997e. Martin v
Shelton (2003, CA8 Ark) 319 F3d 1048, reh den (2003, CA8 Ark) 2003 US App LEXIS
5351.
Facts as alleged by prisoner indicated that his injury actually prevented him
from timely filing grievance and that his untimely grievance was returned
unprocessed; thus, under circumstances, prisoner sufficiently alleged that,
prior to filing 42 USCS § 1983 suit, he exhausted administrative remedies, as
required by 42 USCS § 1997e, that were personally available to him as
administrative remedies were deemed unavailable when (1) inmate's untimely
filing of grievance was because of physical injury and (2) grievance system
rejected inmate's subsequent attempt to exhaust his remedies based on untimely
filing of grievance. Days v Johnson (2003, CA5 Tex) 322 F3d 863.
Where plaintiff's complaint raised complex issues concerning informal
exhaustion of remedies under Prison Litigation Reform Act (PLRA), Pub. L. No.
104-134, 110 Stat. 1321-66 (1996), and whether "total exhaustion" of all claims
was required before any one exhausted claim could be addressed, appellate court
retained jurisdiction over appeal, and ordered that counsel be appointed for
plaintiff, if he so chose. Ortiz v McBride (2003, CA2 NY) 323 F3d 191.
Where inmate did not exhaust administrative remedies on inmate's
failure-to-supervise claim against warden in 42 USCS § 1983 action, pursuant to
42 USCS § 1997e, inmate failed to exhaust all available administrative remedies
as to all of claims. Kozohorsky v Harmon (2003, CA8 Ark) 332 F3d 1141, 55 FR
Serv 3d 1168.
Inmate's complaint is dismissed without prejudice to renewal of viable
claims, if any, following exhaustion of administrative remedies, even though he
seeks monetary damages for assault by prison guards, because Congress intended,
under 42 USCS § 1997e, to apply exhaustion requirement to all actions brought by
prisoners with respect to prison conditions, including claims alleging excessive
force or assault by prison guards, and regardless of what relief is sought.
Beeson v Fishkill Correctional Facility (1998, SD NY) 28 F Supp 2d 884
(criticized in Carter v Kiernan (1999, SD NY) 1999 US Dist LEXIS 178).
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Section 1983 action challenging conditions of plaintiff's confinement by
state youth authority may proceed, even though grievance procedure was in place
at facility and had been explained to plaintiff, where he was no longer
suffering wrongs alleged at time complaint was filed, because he sought only
money damages, and no administrative remedy was "available" to him under
grievance procedure within meaning of 42 USCS § 1997e(a). Plasencia v California
(1998, CD Cal) 29 F Supp 2d 1145.
Notice of claim procedure contained in state statute requiring service upon
attorney general for purposes of encouraging possible settlement did not qualify
as "administrative remedy" under exhaustion requirement of 42 USCS § 1997e(a).
Blas v Endicott (1999, ED Wis) 31 F Supp 2d 1131.
42 USCS § 1997e(a) did not impose total exhaustion requirement on prisoner
civil rights litigation and, thus, prisoner civil rights action, including both
exhausted and unexhausted claims, would not be dismissed in its entirety without
prejudice, rather than simply dismissing without prejudice unexhausted claims.
Jenkins v Toombs (1999, WD Mich) 32 F Supp 2d 955.
Where prisoner is pursuing only monetary damages and prison grievance
procedure does not provide for monetary relief, exhaustion requirement of 42
USCS § 1997e(a)(1) does not apply. Davis v Woehrer (1999, ED Wis) 32 F Supp 2d
1078.
Inmate's Bivens claim against federal correctional institution officials was
subject to 42 USCS § 1997e(a), and thus he was required to exhaust institutional
administrative remedies before bringing suit in federal court, even though he
was seeking money damages and institution could not provide monetary relief.
Sallee v Joyner (1999, ED Va) 40 F Supp 2d 766.
42 USCS § 1997e(e) operated as bar to inmate's claims under ADA and
Rehabilitation Act, to extent that inmate asserted claims for mental or
emotional injury. Cassidy v Indiana Dep't of Correction (1999, SD Ind) 59 F Supp
2d 787, affd (2000, CA7 Ind) 199 F3d 374, 10 AD Cas 106.
If inmate had attempted to use administrative grievance procedure within
30-day time limit, as claimed, but received no response, such that he was unable
to appeal because of regulation requiring written resolution of claims before
appeals process could be used, then inmate would have exhausted his "available"
administrative remedies, as required by 42 USCS § 1997e(a). Taylor v Barnett
(2000, ED Va) 105 F Supp 2d 483.
In cases governed by provisions of 42 USCS § 1997e(a), prisoner must
demonstrate that all available administrative remedies have been exhausted.
Rivera v Garcia (2000, DC Puerto Rico) 192 FRD 57.
In forma pauperis prisoner's failure to exhaust administrative remedies does
not constitute failure to state claim under 42 USCS § 1997e(a). Henry v Med. Dep
't at SCI-Dallas (2001, MD Pa) 153 F Supp 2d 553.
Dismissal was mandatory, where prisoner failed to exhaust available
administrative remedies, even though prisoner attempted to overcome the
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exhaustion requirement by insisting that prisoner never received copy of the
jail handbook and, therefore, was unaware of procedure set forth for filing
grievance; while it was not entirely clear whether prisoner knew of the
existence of complaint forms, there was no indication that prisoner had made any
effort to submit any form of written complaint. Floyd v Shelby County (2001, WD
Tenn) 197 F Supp 2d 1101.
In an action by inmates for damages based on the violation of their civil
rights by prison officials, under Prison Litigation Reform Act, 42 USCS § 1997e,
even when the inmates sought relief not available in grievance proceedings,
notably money damages, exhaustion was a prerequisite to suit for all actions
brought with respect to prison conditions. Webb v Goord (2002, SD NY) 192 F Supp
2d 208.
Inmate's claims of retaliation against certain prison officials were
dismissed under 42 USCS § 1997e(a) where inmate failed to exhaust available
administrative remedies by challenging term of special confinement and failed to
allege any cognizable basis for holding supervising prison officials liable.
Richardson v Hillman (2002, SD NY) 201 F Supp 2d 222.
Exhaustion requirement of Prison Litigation Reform Act of 1995 (42 USCS §
1997e(a)) applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive
force or some other wrong; dismissal of any claim of excessive force by prison
inmate is mandated if inmate has failed to exhaust his administrative remedies
with respect to that claim. White v Sassi (2002, SD NY) 202 F Supp 2d 195.
Litigants who file prison condition actions after release from confinement
are no longer prisoners for purposes of 42 USCS § 1997e(a) and, therefore, need
not satisfy its exhaustion requirements. Morris v Eversley (2002, SD NY) 205 F
Supp 2d 234.
Prisoner failed to file grievance for alleged denial of medical treatment,
and so prisoner failed to exhaust his administrative remedies. Rodriguez v Hahn
(2002, SD NY) 209 F Supp 2d 344.
After prison superintendent denied prisoner's claim of excessive force,
prisoner then submitted appeal statement to central office review committee
(CORC); however, merely submitting appeal statement was insufficient for
exhaustion of available remedies without final disposition from CORC. Rodriguez
v Hahn (2002, SD NY) 209 F Supp 2d 344.
Former county jail inmate was ordered to show cause why 42 USCS § 1983 claims
against county board of supervisors arising from inmate's fall in county jail
kitchen and subsequent care and treatment should not have been dismissed for
failure to exhaust administrative remedies under 42 USCS § 1997e(a), where court
's pretrial order did not reflect that inmate had exhausted administrative
remedies. Smith v Bd. of County Comm'rs (2002, DC Kan) 216 F Supp 2d 1209.
Corrections officers' motion for summary judgment was granted and inmate's 42
USCS § 1983 civil rights complaint was dismissed without prejudice because,
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while inmate wrote to superintendent and contacted inspector general's office,
inmate failed to exhaust administrative remedies, neither filing formal
grievance nor properly initiating harassment grievance procedure. Houze v
Segarra (2002, SD NY) 217 F Supp 2d 394.
Where inmate alleged wrongful supervision and training of corrections
officers, but there was no grievance procedure available to inmate, government
was required to advise innate of whether administrative remedies were available.
Barnard v D.C. (2002, DC Dist Col) 223 F Supp 2d 211.
Detainee's 42 USCS § 1983 claim against jail officers failed as claims were
not exhausted as required under Prison Litigation Reform Act, except as to claim
that denial of phone access interfered with detainee's bail rights, and this
claim failed as mail was reasonable alternative. Simpson v Gallant (2002, DC Me)
223 F Supp 2d 286.
Defendant jail and sheriff interfered with plaintiff detainee's ability to
exhaust in three ways; first, because of absence of any legal materials at jail,
detainee was unable to learn about newly enacted Prison Litigation Reform Act
(PLRA) and its requirement that he exhaust; second, even if detainee had known
about PLRA, absence of materials at jail about grievance procedure itself would
have prevented him from knowing how to fully exhaust; and third, when defendants
rejected detainee's grievance they advised him that it was not grievable
situation, causing him not to pursue matter further. Davis v Milwaukee County
(2002, ED Wis) 225 F Supp 2d 967.
Because inmate did not attempt to resolve his retaliation claims informally,
nor did he file remedy request with warden and even though inmate reasonably
believed that attempting to resolve his grievances at institutional level would
have been waste of time, he could not bypass those stages unless agency agreed
with him; accordingly, inmate failed to exhaust his administrative remedies.
Jeanes v United States DOJ (2002, DC Dist Col) 231 F Supp 2d 48.
Civil rights claims of prisoner who partially failed to exhaust
administrative remedies in prison grievance system were dismissed without
prejudice. Smeltzer v Hook (2002, WD Mich) 235 F Supp 2d 736 (criticized in
Hattley v Goord (2003, SD NY) 2003 US Dist LEXIS 4856).
Because grievance procedure applicable to inmate's claim constituted all of
"available remedies," and that procedure nowhere required or provided for appeal
of unanswered grievance, inmate had exhausted all available administrative
remedies for purposes of Prison Litigation Reform Act. Abney v County of Nassau
(2002, ED NY) 237 F Supp 2d 278.
Prisoner's motion for reconsideration, which was based upon assertion that
prisoner did not need to exhaust grievance procedure remedies because matters
were being reviewed by state inspector general, was denied because even if
matters were before inspector general, prisoner still had obligation to exhaust
available administrative remedies. Berry v Kerik (2002, SD NY) 237 F Supp 2d
450.
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In suit by inmate against prison officials, where officials moved for
dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to exhaust
administrative remedies under Prison Litigation Reform Act (PLRA), 42 USCS §
1997e(a), district court applied Second Circuit rule that failure to exhaust
administrative remedies under PLRA was affirmative defense and thus not ground
for dismissal under Rule 12(b)(6) (although court noted that dismissal would
have been proper had failure to exhaust been readily apparent from inmate's
pleadings, and in such case, court would have dismissed case, sua sponte and
without prejudice). Torrence v Pesanti (2003, DC Conn) 239 F Supp 2d 230.
Inmate's action under 42 USCS § 1983 against three corrections officers was
dismissed without prejudice because inmate had not exhausted administrative
remedies when inmate had not gone through entire three level prison grievance
procedure set forth in N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7. Santos v
Hauck (2003, WD NY) 242 F Supp 2d 257.
Where department of correctional services employees moved to dismiss inmate's
42 USCS § 1983 complaint pursuant to Fed. R. Civ. P. 12(b)(6) on ground that
inmate failed to exhaust inmate's administrative remedies as required by 42 USCS
§ 1997e(a), part of Prison Litigation Reform Act of 1995, employees' motion was
properly construed as motion to dismiss complaint for lack of jurisdiction over
subject matter pursuant to Fed. R. Civ. P. 12(b)(1) because employees were
raising challenge to court's jurisdiction. Harris v Totten (2003, SD NY) 244 F
Supp 2d 229 (criticized in Arnold v Goetz (2003, SD NY) 245 F Supp 2d 527).
Department of correctional services employees' Fed. R. Civ. P. 12(b)(1)
motion to dismiss inmate's 42 USCS § 1983 complaint was granted and complaint
was dismissed without prejudice to inmate refiling it once inmate exhausted
inmate's administrative remedies where (1) inmate conceded that inmate did not
present inmate's claims through inmate grievance procedure, even though inmate
was aware of its existence, (2) inmate's various letters to superintendent did
not satisfy exhaustion requirement of 42 USCS § 1997e(a), part of Prison
Litigation Reform Act of 1995 (PLRA), because inmate failed to follow
established grievance procedures, (3) inmate's subsequent filing of grievance
did not satisfy exhaustion requirement because there had been no final
disposition of grievance at administrative level, and PLRA required inmate to
exhaust administrative remedies prior to commencing federal action, and (4)
inmate put forth no additional arguments or evidence that excused inmate's
failure to exhaust administrative remedies. Harris v Totten (2003, SD NY) 244 F
Supp 2d 229 (criticized in Arnold v Goetz (2003, SD NY) 245 F Supp 2d 527).
As inmate made no attempt to initiate and follow to end prescribed grievance
procedures, any responsive action taken by state department of correction to
resolve problem brought to its attention, regardless of its source or who took
part in its resolution, could not be basis for determining that exhaustion
requirement was satisfied; inmate was obliged to exhaust administrative
procedures and she did not; consequently, inmate's Eighth Amendment claim should
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have been dismissed due to her failure to satisfy exhaustion requirement of 42
USCS § 1997e(a). Hock v Thipedeau (2003, DC Conn) 245 F Supp 2d 451.
Court denied correction officers' motion to dismiss inmate's 42 USCS § 1983
action under Fed. R. Civ. P. 12(b)(1), holding that inmate's failure to exhaust
administrative remedies in accordance with Prison Litigation Reform Act, 42 USCS
§ 1997e(a), did not divest federal court of jurisdiction, as defendant's claim
that inmate failed to comply with exhaustion requirement was properly assessed
as affirmative defense. Arnold v Goetz (2003, SD NY) 245 F Supp 2d 527.
Because of ambiguity concerning inmate's efforts to complete exhaustion
process, as required by 42 USCS § 1997e(a), part of Prison Litigation Reform Act
of 1995, before filing his Eighth Amendment claims against several prison
guards, prison guards' summary judgment motion was denied. Evans v Jonathan
(2003, WD NY) 253 F Supp 2d 505.
Inmate did not file prison grievance until after inmate had brought civil
rights suit in federal court; therefore, inmate had failed to exhaust available
remedies and claims were subject to dismissal on summary judgment. Rivera v
Goord (2003, SD NY) 253 F Supp 2d 735.
District Court did not need to address issue of whether prison nurse's acts
arose to level of deliberate indifference, or whether she was entitled to invoke
qualified immunity, because Court concluded that inmate did not exhaust his
available administrative remedies, as required by 42 USCS 1997e(a). Long v Lafko
(2003, SD NY) 254 F Supp 2d 444.
For purposes of Prison Litigation Reform Act of 1995, District Court holds
that if nonexhaustion of prisoner's claims is clear from face of complaint (and
incorporated documents), motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to exhaust should be granted. McCoy v Goord (2003, SD NY) 255 F Supp
2d 233.
For purposes of Prison Litigation Reform Act of 1995, District Court holds
that if nonexhaustion is not clear from face of prisoner's complaint, defendant
's motion to dismiss should be converted, pursuant to Fed. R. Civ. P. 12(b), to
one for summary judgment limited to narrow issue of exhaustion and relatively
straightforward questions about prisoner's efforts to exhaust, whether remedies
were available, or whether exhaustion might be, in very limited circumstances,
excused. McCoy v Goord (2003, SD NY) 255 F Supp 2d 233.
Prison officials' Fed. R. Civ. P. 12(b)(6) motion to dismiss former state
inmate's 42 USCS § 1983 claims was converted to summary judgment motion where it
was not clear from face of complaint whether inmate failed to exhaust available
prison grievance procedures as required by 42 USCS § 1997e(a), and court was
required to look to extrinsic materials to determine exhaustion McCoy v Goord
(2003, SD NY) 255 F Supp 2d 233.
Pursuant to 42 USCS § 1997e(a), former inmate failed to exhaust available
administrative remedies before bringing civil rights claims against prison
official and employees where inmate had only appealed disciplinary determination
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and had not filed grievances for all of claims raised. McCoy v Goord (2003, SD
NY) 255 F Supp 2d 233.
Prisoner's constitutional claims against certain correctional employees were
dismissed for failure to exhaust administrative remedies as required under 42
USCS § 1997e where prisoner failed to specifically complain about their action
or inaction during either step of prison's two-step grievance procedure.
Thompson v Eason (2003, ND Tex) 258 F Supp 2d 508.
Prisoner had exhausted available administrative remedies for purposes of 42
USCS § 1997e where complaint about one correctional employee's action was raised
in both steps of two-step grievance procedure and prisoner may have assumed that
raising complaint about another correctional employee in first step of grievance
procedure was sufficient. Thompson v Eason (2003, ND Tex) 258 F Supp 2d 508.
Inmate did not exhaust inmate's administrative remedies at appropriate time
where inmate filed grievance six weeks after filing civil rights action alleging
Eighth Amendment violations. Burgess v Morse (2003, WD NY) 259 F Supp 2d 240.
Prisoner's Fourth Amendment claim arose while prisoner was incarcerated and
was directly related to prisoner's incarceration, so prisoner was required to
exhaust administrative remedies pursuant to Prison Litigation Reform Act of
1995. Morgan v Maricopa County (2003, DC Ariz) 259 F Supp 2d 985.
In 42 USCS § 1983 action by inmate against doctors alleging alleging
deliberate indifference to his medical needs in violation of U.S. Const. amend.
VIII, doctors' motion to dismiss pursuant to, inter alia, 42 USCS § 1997e(a) and
(c), 28 USCS § 1915(e)(2)(B)(i), and Fed. R. Civ. P. 12(b)(1) was denied where
inmate exhausted his administrative remedies as required by 42 USCS § 1997e(a)
due to his complaints about not receiving proper medical care and alleging
improper transfer. Sulton v Wright (2003, SD NY) 265 F Supp 2d 292.
One class member's exhaustion of administrative remedies satisfied exhaustion
requirement of Prison Litigation Reform Act, 42 USCS § 1997e(a), as to entire
class. Lewis v Washington (2003, ND Ill) 265 F Supp 2d 939.
In inmate's action against prison officials alleging violation of his
constitutional rights due to officials' application of prison directive
prohibiting inmates from receiving or possessing obscene material, inmate failed
to exhaust his administrative remedies pursuant to 42 USCS § 1997e(a) regarding
his as applied challenge to prison officials' prison reading library purge.
Cline v Fox (2003, ND W Va) 266 F Supp 2d 489.
4.5. Grounds
Inmate's allegation that he was not "breathing normally" during time cell
windows were shut, and that he needed to use his inhaler to help him breathe
normally, was insufficient assertion of physical injury to maintain suit under
42 USCS § 1997e to recover for alleged mental or emotional injury. Sarro v Essex
County Correctional Facility (2000, DC Mass) 84 F Supp 2d 175.
County jail inmate could not recover compensatory damages for emotional
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distress arising from alleged assault by guards, where inmate's counsel in §
1983 action sent letter to opposing counsel waiving inmate's claims for physical
injury, and inmate was required by 42 USCS § 1997e to show physical injury to
claim mental or emotional injury. Jessamy v Ehren (2001, SD NY) 153 F Supp 2d
398.
5. --Particular circumstances
Under 42 USCS § 1997e(a) as amended by Prison Litigation Reform Act of
1995--which requires prisoner to exhaust "such administrative remedies as are
available" before suing over prison conditions--a prisoner who seeks only money
damages must complete prison administrative process even though the process has
no provision for recovery of money damages. Booth v Churner (2001) 532 US 731,
149 L Ed 2d 958, 121 S Ct 1819, 2001 CDOS 4277, 2001 Daily Journal DAR 5257,
2001 Colo J C A R 2679, 14 FLW Fed S 281, 69 USLW 4387.
In cases covered by 42 USCS § 1997e(a)--which precludes bringing of any
action with respect to prison conditions under 42 USCS § 1983, or any other
federal law, by state prisoner confined in any jail, prison, or other
correctional facility until available administrative remedies are exhausted--all
available remedies, including those that do not meet federal standards or are
not plain, speedy, and effective, must be exhausted; even when prisoner seeks
relief not available in grievance proceedings, notably money damages, exhaustion
is prerequisite to suit. Porter v Nussle (2002) 534 US 516, 152 L Ed 2d 12, 122
S Ct 983, 2002 CDOS 1753, 15 FLW Fed S 121.
Pro se prisoner's 42 USCS § 1983 complaint was properly dismissed where
prisoner had failed to pursue prison grievance proceeding authorized by former
version of 42 USCS § 1997e after court order requiring that prisoner exhaust
prison remedies on pain of dismissal with prejudice. Lay v Anderson (1988, CA5
La) 837 F2d 231.
Inmate's personal injury claim under 42 USCS § 1983, which was based on
alleged deliberate indifference to her medical needs after she slipped and fell
in prison, was properly dismissed under 42 USCS § 1997e, where administrative
remedies could have afforded monetary relief sought, and inmate failed to
exhaust administrative remedies. Marsh v Jones (1995, CA5 La) 53 F3d 707.
Federal prisoner who brought civil rights action alleging violations of
Eighth Amendment was required to exhaust prison administrative remedies under 42
USCS § 1997e. Garrett v Hawk (1997, CA10 Colo) 127 F3d 1263, 1997 Colo J C A R
2635.
For purposes of exhaustion requirement under 42 USCS § 1997e, federal
prisoners pressing Bivens claims against federal officials need not pursue
prison remedies when they are seeking exclusively monetary relief, and no prison
remedies afford monetary relief. Whitley v Hunt (1998, CA5 Tex) 158 F3d 882, 42
FR Serv 3d 121.
42 USCS § 1997e(a) required prisoner to submit his claims for monetary and
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injunctive relief through available prison grievance program, even if relief
offered by that program did not appear to be "plain, speedy, and effective,"
before filing claims in federal court, and judicially created futility and
inadequacy doctrines would not survive mandatory exhaustion requirement.
Alexander v Hawk (1998, CA11 Fla) 159 F3d 1321, reh, en banc, den (1999, CA11
Ga) 1999 US App LEXIS 9153 and (criticized in Fever v Booker (1999, CA10 Kan)
1999 Colo J C A R 1455).
Prisoner's 42 USCS § 1983 action seeking damages for alleged cruel and
unusual punishment when state refused to authorize back surgery and instead
recommended conservative approach including exercise and physical therapy was
properly dismissed under 42 USCS § 1997e, where prisoner did not exhaust
administrative remedies for complaints regarding deficient medical care, and
prisoner's claim that he sought only money damages or that exhaustion would be
futile would not alter exhaustion requirements under § 1997e. Perez v Wisconsin
Dep't of Corrections (1999, CA7 Wis) 182 F3d 532.
Exhaustion of administrative remedies under 42 USCS § 1997e(a) is not
required if prisoner's 42 USCS § 1983 claim seeks only money damages and
correctional facility's administrative grievance process does not allow for such
an award. Rumbles v Hill (1999, CA9 Cal) 182 F3d 1064, 99 CDOS 5232, 99 Daily
Journal DAR 6703.
Although under 42 USCS § 1997e prisoners must exhaust prison's grievance
procedures before filing suit in federal court even though damages remedy sought
is not available remedy in administrative process, inmate who was raped
substantially complied with exhaustion requirement as result of numerous
complaints he filed with prison officials and contacts he had with prison
officials about injury, where § 1997e(a) was not yet law when rape occurred or
complaints were made. Wyatt v Leonard (1999, CA6 Ohio) 193 F3d 876, 1999 FED App
356P.
Prisoner's 42 USCS § 1983 excessive force claim involved a "prison condition"
within the meaning of 42 USCS § 1997e(a). Freeman v Francis (1999, CA6 Ohio) 196
F3d 641, 1999 FED App 372P.
Inmate did not fail to exhaust his administrative remedies as required by 42
USCS § 1997e when he failed to sign or date his grievance form, where directions
to sign and date grievances were not included in written requirements in
grievance standard operating procedures for prison, and neither did inmate fail
to exhaust administrative remedies when he failed to file appeal after being
told unequivocally that appeal of an institutional-level denial was precluded.
Miller v Tanner (1999, CA11 Ga) 196 F3d 1190, 13 FLW Fed C 166.
For purposes of claim under 42 USCS § 1997e, even if prisoner did file
initial grievance, he was required to continue to next step in grievance process
within proper time frame, if no response was received from prison officials or
if prisoner was not satisfied with response; inmate cannot simply fail to file
grievance or abandon process before completion and claim he has exhausted
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remedies or that it is futile for him to do so. Hartsfield v Vidor (1999, CA6
Mich) 199 F3d 305, 1999 FED App 406P.
In 42 USCS § 1983 action by inmate alleging that he was assaulted by
corrections officer, where claim arose before passage of PLRA but claim was
filed after effective date, exhaustion precondition was satisfied by substantial
compliance with applicable administrative process, where inmate participated in
four investigations of corrections officers' actions. Wolff v Moore (1999, CA6
Ohio) 199 F3d 324, 1999 FED App 410P.
Inmate seeking only monetary relief in 42 USCS § 1983 action was not required
to exhaust administrative remedies prior to filing suit, where prison grievance
procedure did not permit an award of monetary damages. Wright v Hollingsworth
(2000, CA5 Tex) 201 F3d 663.
Inmate was required to exhaust administrative procedures under 42 USCS §
1997e(a), even where procedures did not provide him with monetary relief he
sought in his civil rights action alleging excessive force. Booth v Churner
(2000, CA3 Pa) 206 F3d 289 (criticized in Giannattasio v Artuz (2000, SD NY)
2000 US Dist LEXIS 3907).
District court erred in dismissing prisoner's 42 USCS § 1983 complaint for
failure to exhaust administrative remedies under 42 USCS § 1997e(a) because he
did not name warden or commissioner in two administrative grievances, as §
1997e(a) required prisoner to provide only as much relevant information about
his claims, including the identity of those directly involved in the alleged
deprivations, as prisoner reasonably could provide. Brown v Sikes (2000, CA11
Ga) 212 F3d 1205, 13 FLW Fed C 682.
Inmate asserting constitutional claims related to his private prison industry
work assignment was not required to exhaust administrative remedies under 42
USCS § 1997e(a), to extent that inmate sought money damages, as no
administrative procedures were available to provide monetary relief. Miller v
Menghini (2000, CA10 Kan) 213 F3d 1244.
Prisoner did not satisfy his burden of showing that he exhausted available
administrative remedies as required by 42 USCS § 1997e(a), where although
prisoner submitted to court evidence indicating that his administrative remedies
to at least one of his claims may have been exhausted before he filed his 42
USCS § 1983 action, prisoner neither attached this evidence to his § 1983
complaint nor alleged full exhaustion in his complaint. McAlphin v Morgan (2000,
CA8 Ark) 216 F3d 680.
Inmates' 42 USCS § 1983 claim challenging conditions of confinement was
properly dismissed under 42 USCS § 1997e(a) for failure to exhaust available
prison administrative remedies, where prison grievances were in process when
suit was filed, and some of claims were not fully exhausted at time district
court dismissed action without prejudice. Graves v Norris (2000, CA8 Ark) 218
F3d 884.
Prisoner's allegation that prison's restrictions on prisoners' unmonitored
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telephone calls violated their constitutional rights was properly dismissed
under 42 USCS § 1997e, where prisoner did not plead that he exhausted all
administrative remedies, but instead averred that there were no available
administrative remedies and that any administrative remedies claimed to exist
were a sham, as there was no futility exception to PLRA exhaustion requirement.
Massey v Wheeler (2000, CA7 Ill) 221 F3d 1030.
Prisoner was not prevented from claiming he had religious beliefs from
combination of Buddhism and Christianity, for purposes of inmate's request for
pastoral visit by Christian minister after inmate called himself Buddhist for
purposes of receiving special diet, on basis that inmate failed to adequately
explain during administrative appeals that he had beliefs in both Christianity
and Buddhism, as litigant's failure to raise religious beliefs issue during
administrative appeal was not failure to exhaust administrative remedies under
42 USCS § 1997e(a), where prison did not require inmates to register under a
certain religion for purposes of receiving pastoral visits. Kikumura v Hurley
(2001, CA10 Colo) 242 F3d 950, 2001 Colo J C A R 1350.
Inmates challenging practice by which prison and jail granted one phone
company the exclusive right to provide telephone service to inmates in return
for 50 percent of revenues generated by service failed to exhaust their
administrative remedies as required by 42 USCS § 1997e(a), notwithstanding
inmates' claim that they had no remedy against exorbitant phone bills, as court
would reject "futility" exception to requirement of exhaustion. Arsberry v State
(2001, CA7 Ill) 244 F3d 558, 2001-1 CCH Trade Cases P 73205.
Allegations in motion to reinstate 42 USCS § 1983 action were sufficient to
raise inference that prisoner had exhausted his "available" remedies, where
prisoner claimed that he had requested in writing administrative forms for
filing a grievance but Department of Corrections did not respond to his requests
for forms. Miller v Norris (2001, CA8 Ark) 247 F3d 736.
District court's refusal to dismiss excessive force claim of inmates against
corrections officers on exhaustion grounds under 42 USCS § 1997e(a) was not
erroneous, where inmates provided documentation of their efforts to pursue
grievance process of prison to its completion, and challenged conduct either
predated effective date of PLRA or occurred almost simultaneously. Curry v Scott
(2001, CA6 Ohio) 249 F3d 493, 2001 FED App 139P.
Challenge to drug testing procedures in prison is made "with respect to
prison conditions", for purposes of exhaustion requirement under 42 USCS § 1997e
(a). Giano v Goord (2001, CA2 NY) 250 F3d 146.
Inmate's claim that he was beaten by prison guards was not exempt from PLRA's
exhaustion requirement; an exception for particularized instances of force
directed at specific inmate would be cumbersome to apply, assault by prison
guard could be by-product of systemic problems and management failure, rather
than random act of violence, restricting frivolous claims was not only purpose
or benefit of 42 USCS § 1997e, and requiring administrative review did not
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foreclose prisoner's ability to file suit, but rather created necessary
precondition. Smith v Zachary (2001, CA7 Ill) 255 F3d 446.
Prisoner who had delay in treatment of abdominal hernia and who failed to use
prison's four-step administrative review procedure to raise grievance regarding
his medical care failed to exhaust administrative remedies under 42 USCS § 1997e
(a), notwithstanding claims that grievance procedure could not provide prisoner
with money damages, which was only form of relief sought, and that prison
wardens would have dual status as decision-makers in grievance proceedings and
as defendants in prisoner's lawsuit, where prisoner offered no evidence of bias.
Massey v Helman (2001, CA7 Ill) 259 F3d 641, reh den (2001, CA7 Ill) 2001 US App
LEXIS 21759.
Prisoner's 42 USCS § 1983 action was properly dismissed because he failed to
exhaust administrative remedies under 42 USCS § 1997e, notwithstanding prisoner
's claims that he did not need to exhaust administrative remedies if money
damages were unavailable through grievance procedure, and that he substantially
complied with administrative procedures by filing a Step One grievance, which
put prison on notice of his complaint, but he did not pursue grievance remedy to
conclusion, as required by statute. Wright v Hollingsworth (2001, CA5 Tex) 260
F3d 357.
Prisoner's action was properly dismissed pursuant to 42 USCS § 1997e(a),
where although prisoner stated that his counselor refused to give him a
grievance form, prisoner did not allege that there was no other source for
obtaining a grievance form or that he made any other attempt to obtain a form or
to file a grievance without a form. Jones v Smith (2001, CA6) 266 F3d 399, 12 AD
Cas 511, 2001 FED App 338P, reh den (2001, CA6) 2001 US App LEXIS 26406.
Prisoner failed to exhaust remedies within meaning of 42 USCS § 1997e, where
although § 1997e was enacted several months after inmate was injured by beatings
by guards, inmate never submitted formal, written complaint within 20 days of
alleged offense or demonstrated valid reason for delay, as required by prison's
grievance policy. McCoy v Gilbert (2001, CA7 Ill) 270 F3d 503, reh den (2002,
CA7 Ill) 2002 US App LEXIS 1089.
Claim by inmate who alleged he was not permitted to attend Jewish services
and possess Jewish items was barred by 42 USCS § 1997e(a), where inmate failed
to exhaust his available administrative remedies. Walker v Maschner (2001, CA8
Iowa) 270 F3d 573, reh, en banc, den, reh den (2002, CA8) 2002 US App LEXIS 357.
Exhaustion requirements of PLRA did not apply to prisoner's retaliation
claims. Morales v Mackalm (2002, CA2 NY) 278 F3d 126.
Prison inmate's claims of verbal abuse, and his claim that he was forced to
once beg for food that he eventually received, were not actionable because
neither claim alleged physical injury to inmate. Calhoun v Hargrove (2002, CA5
Tex) 312 F3d 730.
Dismissal of inmates' action under 42 USCS § 1983 was affirmed because
inmates did not exhaust their administrative remedies as required by Prison
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Litigation Reform Act, 42 USCS § 1997e(a), because exhaustion requirement was
applicable even if inmates were seeking money damages. Beaudry v Corr. Corp. of
Am. (2003, CA10 Okla) 331 F3d 1164.
Inmate challenging grooming policies of prison did not exhaust his
administrative remedies under 42 USCS § 1997e, where although inmate complained
to three prison officials, and warden told prisoner to file in court, no
unequivocal statement was made that prisoner had exhausted the prison's
grievance procedures, no one alleged that prisoner risked discipline if he
pursued grievance, and prisoner in fact did file an informal complaint with his
unit manager, and after receiving a negative response, filed an initial level
formal grievance and appeal. Jackson v District of Columbia (2001, App DC) 254
F3d 262.
Prisoner was required by 42 USCS § 1997e(a) to exhaust his administrative
remedies before bringing § 1983 action, where prisoner brought action alleging
that prison officials had endangered him by identifying him as homosexual and
child molester to prison population and then failed to protect him from attacks,
and argued that exhaustion of administrative remedies was not necessary because
assaults did not constitute "prison condition" under statute, because prisoner's
action, which arose under federal law, encompassed effects of actions by state
corrections officials. Morgan v Arizona Dep't of Corrections (1997, DC Ariz) 976
F Supp 892 (criticized in Plasencia v California (1998, CD Cal) 29 F Supp 2d
1145).
Pro se federal inmate's Bivens claim alleging Eighth Amendment violation of
his right to medical and mental health treatment is dismissed for failure to
complete administrative exhaustion of claim, although no court has yet squarely
ruled that new exhaustion requirement of 42 USCS § 1997e is applicable to this
type of claim, because it is clear that Bureau of Prisons' 4-step process for
resolution of prisoner complaints could be used to resolve inmate's complaint.
Gibbs v Bureau of Prison Office (1997, DC Md) 986 F Supp 941.
Prisoner's suit complaining about humiliating strip search is not subject to
dismissal under 42 USCS § 1997e(e), even though he has not pursued in-house
grievance procedure, where his complaint alleges single incident and seeks money
damages, because § 1997e(e) exhaustion requirement is inapplicable since
grievance procedure does not allow recovery of monetary damages. Hollimon v
DeTella (1998, ND Ill) 6 F Supp 2d 968.
Inmate's § 1983 claim for monetary damages premised on allegations that he
received inadequate medical care survives but injunctive aspect of case is
dismissed, where inmate failed to follow through with grievance by filing it
with grievance officer, because 42 USCS § 1997e(a) requires exhaustion of prison
administrative remedies when available, and injunctive relief was available
through grievance process. Russo v Palmer (1998, ND Ill) 990 F Supp 1047.
Inmate's § 1983 complaint is dismissed without prejudice pursuant to 42 USCS
§ 1997e(a), even though he has met statutory requirements of 28 USCS § 1915(a),
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filed Authorization with respect to filing fee, and been granted request to
proceed in forma pauperis, because his "failure-to-protect" claim is grievable,
and he has not exhausted his administrative remedies regarding it. Soto v Elston
(1998, WD NY) 993 F Supp 163.
Inmate's § 1983 due process claim is dismissed without prejudice for failure
to exhaust available state administrative remedies, even though remedy available
under state code of regulations does not explicitly provide for monetary relief
and inmate prays for $ 5,000 compensatory and $ 5,000 punitive damages in his
suit, because Congress recently amended 42 USCS § 1997e(a) to delete language
making exhaustion requirement dependent on effectiveness of state remedy. Spence
v Mendoza (1998, ED Cal) 993 F Supp 785, 98 Daily Journal DAR 4336 (criticized
in Plasencia v California (1998, CD Cal) 29 F Supp 2d 1145) and (criticized in
York v Huerta-Garcia (1999, SD Cal) 36 F Supp 2d 1231).
Even if prisoner's complaint stated viable claim that his constitutional
rights had been violated, his § 1983 action was subject to dismissal for failure
to exhaust administrative remedies, as required by 42 USCS § 1997e(a). Payton v
Horn (1999, ED Pa) 49 F Supp 2d 791.
Inmate's "failure to protect" claim is dismissed without prejudice for
failure to exhaust administrative remedies, even though federal administrative
remedy program does not authorize prison officials to grant monetary and
declaratory relief that inmate seeks, because, based on legislative history,
best interpretation of 42 USCS § 1997e is one which requires exhaustion even
where inmate only seeks relief which cannot be obtained through administrative
procedures. Odumosu v Keller (1999, ND NY) 53 F Supp 2d 545.
Prisoner's § 1983 excessive force claim against guards may proceed, even if
he cannot document his pursuit of administrative redress, because excessive
force claim does not address "prison conditions" and exhaustion of
administrative remedies is not required under 42 USCS § 1997e(a). Wright v Dee
(1999, SD NY) 54 F Supp 2d 199.
Inmate's pro se civil rights complaint for money damages under § 1983 is
dismissed for failure to exhaust administrative remedies, where he alleges he
was denied prescribed drugs, medical treatment, and therapy needed for his
HIV-positive condition during 6-day period, because complaint relates to his
prison conditions, he clearly was familiar with administrative process for
filing grievances, having previously used it, but he did not first challenge
this alleged deprivation via that process as required under 42 USCS § 1997e(a).
Overton v Claussen (1999, DC Colo) 65 F Supp 2d 1165.
State inmate claiming retaliation against him in violation of First Amendment
sufficiently alleged exhaustion of administrative remedies under 42 USCS § 1997e
(a) with respect to rescission of offer of prison library employment, where he
maintained that he filed informal grievance with deputy superintendent, that it
was resolved in his favor, although no action had yet been taken on it, and that
there was no opportunity for further appeal. McGrath v Johnson (1999, ED Pa) 67
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F Supp 2d 499.
Inmate's appeal of guilty finding in disciplinary proceeding to prison
superintendent satisfied exhaustion-of-administrative-remedies requirement under
42 USCS § 1997e with respect to claim of retaliatory discipline, despite claim
that he had to seek certiorari relief to satisfy statutory requirement, since
state statute providing for certiorari relief was not administrative remedy
within meaning of federal statute. Shabazz v Cole (1999, DC Mass) 69 F Supp 2d
177.
Federal prisoner's § 1983 action alleging that he suffered various harms and
damages as result of state corrections officials' refusal to act upon their
detainer/warrant in timely fashion amounted to "civil action with respect to
prison conditions" within meaning of 42 USCS § 1997e(a), and, thus, was subject
to exhaustion requirements of statute. Onapolis v Lamanna (1999, ND Ohio) 70 F
Supp 2d 809.
For purposes of exhaustion requirement imposed on inmate civil rights
litigation under 42 USCS § 1997e(a), excessive force by correctional officers
most assuredly constitutes effects of actions by government officials on lives
of persons confined in prison. Diezcabeza v Lynch (1999, SD NY) 75 F Supp 2d
250.
Inmates' complaint about inadequate medical treatment is dismissed, where
inmate's request for administrative claim forms was tardy and ineffective, even
though money damages they seek are unavailable through administrative procedure,
because inmates have not yet even attempted to exhaust administrative remedies
as required by 42 USCS § 1997e(a). Massey v Helman (1999, CD Ill) 78 F Supp 2d
806.
Inmate's § 1983 case alleging deliberate indifference to his medical needs
may proceed in federal court, where New York attorney general now insists that
formal hearing procedures involving counsel and transcript record are not
available under inmate grievance program, because, regarding past and
irreducible injuries, grievance procedures are empty formality and are not
"available" administrative remedy under 42 USCS § 1997e(a). Cruz v Jordan (1999,
SD NY) 80 F Supp 2d 109.
Inmate's claim concerning lost personal property must fail, where he failed
to exhaust his available administrative remedies when he omitted to file appeal
of initial disposition of his grievance, because 42 USCS § 1997e(a) provision
that "no action shall be brought" becomes operative and requires dismissal of
inmate's claim. Gonzalez Feliciano v Servicios Correccionales (2000, DC Puerto
Rico) 79 F Supp 2d 31.
Inmate's § 1983 abuse claim against prison mental health counselor and others
is dismissed without prejudice, even though it appears that he filed some sort
of complaint with legal services office, where he has not shown any compliance
with grievance procedure outlined in standard operating procedures, because 42
USCS § 1997e(a) exhaustion requirement applies to claims of abuse or excessive
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force. Dillard v Jones (2000, ND Ga) 89 F Supp 2d 1362.
Fact that monetary damages that prisoner sought were not available through
administrative remedy scheme did not eliminate requirement under 42 USCS § 1997e
(a) that he exhaust his administrative remedies before suing based on claim that
his access to certain legal materials was intentionally delayed during course of
his then-pending civil suit against New York Department of Corrections. Royster
v United States (2000, SD NY) 91 F Supp 2d 626.
Inmate's § 1983 action against state seeking injunction and damages for
personal injuries sustained while performing his duties as inmate electrician
was barred in its entirety under 42 USCS § 1997e(a), even though inmate could
not recover damages in state administrative proceedings. Thorp v Kepoo (2000, DC
Hawaii) 100 F Supp 2d 1258.
Fact that inmate complaining of medical care had been transferred to another
prison facility did not necessarily render moot requirement of 42 USCSA § 1997e(
a) that he exhaust available administrative remedies before bringing § 1983
suit. Rodriguez v Senkowski (2000, ND NY) 103 F Supp 2d 131.
Inmate failed to exhaust administrative remedies as required by 42 USCS §
1997e(a) before filing § 1983 cruel and unusual punishment suit against
correctional officers, thereby requiring dismissal of action, where inmate filed
action before filing appeal from initial grievance response and before seeking
final administrative review. Ahmed v Sromovski (2000, ED Pa) 103 F Supp 2d 838.
Prisoners who challenged Department of Corrections' dismissal of their
complaint under inmate complaint review system, were not required to seek
declaratory ruling pursuant to state statute giving administrative agencies
discretionary authority to make declaratory rulings of issues raised by affected
parties in order to satisfy exhaustion requirement of 42 USCS § 1997e(a). Aiello
v Litscher (2000, WD Wis) 104 F Supp 2d 1068.
Prisoner must pursue his claim through grievance program to administrative
exhaustion, where he complains of violation of his First Amendment rights by
confiscation of newspaper, because it is claim "with respect to prison
conditions" under 42 USCS § 1997e(a), and exhaustion is required even though
monetary relief sought is unavailable through grievance procedure. Majid v
Wilhelm (2000, SD NY) 110 F Supp 2d 251.
Inmate's § 1983 claim asserting inadequate provision of educational programs
is dismissed for failure to exhaust administrative remedies, where jail
maintains detailed formal grievance policy of which inmate never availed
herself, because term "prison conditions," as intended in 42 USCS § 1997e,
includes quality and availability of institution's educational programs,
activities, and opportunities. A.N.R. v Caldwell (2000, MD Ala) 111 F Supp 2d
1294.
Inmate claiming correctional captain beat him while interrogating him about
allegedly fraternizing with female officer need not file prisoner grievance
before proceeding with § 1983 claim, where there is no relief he could receive
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through administrative appeals process for this incident, because mandatory
exhaustion under 42 USCS § 1997e(a) in this case would be useless act wasting
time of both inmate and prison official. Wells v Payne (2000, ND Ind) 114 F Supp
2d 795.
Section 1983 Eighth Amendment claim of one-legged prisoner is dismissed, even
though he filed 2 inmate grievances in 1998, where neither alleged anything
other than disability discrimination resulting in his being removed from prison
storehouse position, because 42 USCS § 1997e requires him to exhaust
administrative remedies with respect to his claims of inadequate medical
assistance, inaccessible facilities, and unsafe conditions. Parkinson v Goord
(2000, WD NY) 116 F Supp 2d 390.
State prisoner failed to exhaust administrative remedies before filing suit,
as required by 42 USCS § 1997e(a), even if letter listing complaints satisfied
requirement of filing grievance complaint, where suit was filed on same date as
letter was sent, since prisoner did not give prison officials adequate time to
investigate and hear grievances raised in letter. Graham v Perez (2000, SD NY)
121 F Supp 2d 317.
Death row inmates' "as applied" free-speech challenge to state corrections
department's policy prohibiting oral final statements, and requiring instead
submission of written statements to be read only after execution, was not
subject to exhaustion requirement of 42 USCS § 1997e(a), where inmates
challenged actions that would occur both before and after their deaths, and,
thus, challenged actions did not exclusively concern "prison conditions." Treesh
v Taft (2000, SD Ohio) 122 F Supp 2d 887.
Exhaustion requirement of 42 USCS § 1997e(a) did not apply to inmate's due
process claim against correctional institution officials, where inmate's ability
to exhaust administrative remedies expired before enactment of amended version
of Prisoner Litigation Reform Act that mandated exhaustion of administrative
remedies. Williams v Wilkinson (2000, SD Ohio) 122 F Supp 2d 894, motion den, in
part, motion gr, in part, injunction gr, in part (2001, SD Ohio) 2001 US Dist
LEXIS 1770.
Prisoner's § 1983 excessive force claims may proceed, where state prison's
attempt to fill void by establishing grievance process in its handbook is
unavailing, because state department of corrections has failed to enact
administrative remedy for grievances in state prison system and thus there is no
"administrative" remedy capable of being exhausted under 42 USCS § 1997e(a).
Concepcion v Morton (2000, DC NJ) 125 F Supp 2d 111.
Pro se inmate's § 1983 action alleging that he was subjected to supervisory
indifference, abuse of governmental authority, conspiratorial abuses, excessive
uses of force, deliberate indifference to his serious medical needs, failure of
officials to protect him from known dangers, and unlawful retaliation need not
be dismissed, even if complaint contains both exhausted and unexhausted claims,
where any attempt by inmate to further exhaust such claims under Adult Inmate
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Grievance Procedure would be futile, because 42 USCS § 1997e(a) has not been
found by Fourth Circuit courts to impose exhaustion of administrative remedies
as prerequisite to jurisdiction. Johnson v True (2000, WD Va) 125 F Supp 2d 186.
Prisoner's § 1983 claim of malicious use of force against him may proceed,
even though grievance coordinator claims he filed 2 separate grievance forms
that were returned to him for failure to first file informal complaint, because
prisoner has attached carbon copy of informal complaint and original regular
grievance form demonstrating, at least facially, that he did exhaust his
administrative remedies prior to filing this suit. Velasco v Head (2000, WD Va)
166 F Supp 2d 1100.
"No action shall be brought," as provided in 42 USCS § 1997e(a), extends to
claims for monetary damages. Rivera v Garcia (2000, DC Puerto Rico) 192 FRD 57.
Prison officials' motion to dismiss is granted for inmate's failure to
exhaust administrative remedies, where he allegedly was attacked and sodomized
by other inmates, even though prison grievance procedure does not provide for
monetary damages he seeks, because court is convinced, by language and
legislative history of 42 USCS § 1997e, that Congress intended to make
exhaustion mandatory when administrative procedure is available and not only
when such procedure furnishes effective remedy. Torres v Alvarado (2001, DC
Puerto Rico) 143 F Supp 2d 172, dismd without prejudice, judgment entered (2001,
DC Puerto Rico) 2001 US Dist LEXIS 12083.
Inmate's § 1983 excessive force and deliberate-indifference-to-safety claims
are dismissed for failure to exhaust administrative remedies under 42 USCS §
1997e(a), even though he argues these are not claims "with respect to prison
conditions," where prisoner's safety is condition of confinement, because such
claims are subject to administrative exhaustion requirement. Freytes v Laboy
(2001, DC Puerto Rico) 143 F Supp 2d 187.
Inmate's admission that he failed to exhaust institutional remedies before
bringing § 1983 action alleging that he was deprived of necessary medical
treatment mandated dismissal of action pursuant to 42 USCS § 1997e(a), even
though inmate sought only money damages and such relief could not be granted
administratively. Sonds v St. Barnabas Hosp. Corr. Health Servs. (2001, SD NY)
151 F Supp 2d 303.
Prisoner did not satisfy requirement of 42 USCS § 1997e that he exhaust
administrative remedies before bringing civil rights suit with respect to prison
employee who was not identified or referred to in any of prisoner's prison
grievances. Gibbs v Bolden (2001, ED Mich) 151 F Supp 2d 854.
Inmate's multifaceted § 1983 complaint will be dismissed without prejudice,
where he asserts claims under First, Eighth, and Fourteenth Amendments, some of
which he has exhausted and some of which he has not, because plain language of
42 USCS § 1997e(a), as well as legislative intent and policy reasons behind it,
compels "total exhaustion" rule. Rivera v Whitman (2001, DC NJ) 161 F Supp 2d
337.
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State inmate's grievances alleging that he had been sprayed with pesticide
sufficiently exhausted his administrative remedies under 42 USCS § 1997e(a)
against personnel responsible for spraying, even though they were not
specifically named in grievances, where grievances presented relevant factual
circumstances giving rise to potential claim and requested identities of
individuals responsible for spraying pesticide, facts were investigated and
developed, and nothing indicated that officials would have done anything
differently if inmate had pursued more specific claims against those
individuals. Irvin v Zamora (2001, SD Cal) 161 F Supp 2d 1125.
Pregnant inmate's § 1983 sexual assault claim will not be dismissed under 42
USCS § 1997e(a), even though plaintiff inmate must exhaust administrative
remedies under statute, where record indicates she filed grievance form over
alleged incident and prison failed to respond, because court finds she has
exhausted her administrative remedies. Goode v Corr. Med. Servs. (2001, DC Del)
168 F Supp 2d 289.
Prisoner was required by 42 USCS § 1997e(a) to exhaust administrative
remedies before bringing § 1983 action for damages related to prison conditions,
even though he contended that grievance procedure in place did not provide
adequate remedy. Serrano v Alvarado (2001, DC Puerto Rico) 169 F Supp 2d 14.
Pro se inmate has habeas petition dismissed without prejudice, and court
extends time for him to file administrative appeal to regional director, where
inmate is trying, on his own, to arrange for kidney transplant, and it appears
likely that excusable confusion has occurred, because he must be allowed to
exhaust administrative remedies as required by 42 USCS § 1997e. Cardona v Winn
(2001, DC Mass) 170 F Supp 2d 131.
Prisoner's § 1983 Eighth Amendment claim is not barred pursuant to 42 USCS §
1997e(a), where he pursued his administrative remedies by filing grievance form,
even though he allegedly failed to appeal rejection of his form, because
corrections officials have presented insufficient evidence to suggest he was
adequately notified of rejection and his obligation to appeal. Santiago v Fields
(2001, DC Del) 170 F Supp 2d 453.
Inmate's § 1983 excessive-force claim is not barred by 42 USCS § 1997e(a),
where he filed grievance form over alleged incident but prison officials failed
to respond, because court finds that inmate has exhausted his administrative
remedies. Amaro v Taylor (2001, DC Del) 170 F Supp 2d 460.
Fact that one inmate exhausted his administrative remedies with respect to
claim at issue at preliminary injunction hearing in inmates' class action
against prison officials under § 1983 regarding supermaximum prison conditions
was sufficient to satisfy exhaustion requirement of 42 USCS § 1997e(a) for other
class members. Jones 'El v Berge (2001, WD Wis) 172 F Supp 2d 1128, injunction
gr, in part, motion gr (2001, WD Wis) 164 F Supp 2d 1096.
Inmate's § 1983 claim of deliberate indifference to his hepatitis infection
may proceed, even though he did not pursue internal grievance procedure to
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highest level of appeal, where he indicated during interview at second level
review that his concerns about lack of treatment had been addressed, because
inmate adequately exhausted his claim of inadequate medical treatment under 42
USCS § 1997e(a). Gomez v Winslow (2001, ND Cal) 177 F Supp 2d 977.
Even if inmate failed to exhaust administrative remedies, his § 1983 claim
alleging denial of access to courts was not subject to 42 USCS § 1997e(a), where
claim did not relate to prison-wide policy categorizing photocopied currency as
contraband, but, rather, alleged that he was singularly subjected to
unconstitutional treatment while all other prisoners with pending drug charges
were permitted to receive photocopied currency. John v N.Y.C. Dep't of Corr.
(2002, SD NY) 183 F Supp 2d 619.
Inmate's failure to exhaust administrative remedies before bringing § 1983
action alleging deliberate indifference to medical needs warranted dismissal of
complaint under 42 USCS § 1997e(a), even if inmate had filed grievances to which
he received no reply, since he could have and should have appealed grievance in
accordance with grievance procedures. Martinez v Williams (2002, SD NY) 186 F
Supp 2d 353.
Inmate alleged more than de minimis injury where he alleged he had been
sexually assaulted for two hours, suffered cuts, bruises and abrasions, and was
so physically ill that he vomited and was in shock for hours afterward. Kemner v
Hemphill (2002, ND Fla) 199 F Supp 2d 1264.
Prisoner did not allege physical injury, but he did bring suit for alleged
violations of his First Amendment rights, rather than for mental or emotional
injury; accordingly, 42 USCS § 1997e(e) did not present obstacle to action.
Cancel v Mazzuca (2002, SD NY) 205 F Supp 2d 128, reconsideration den, motions
ruled upon (2002, SD NY) 2002 US Dist LEXIS 15201.
Inmate failed to set forth cause of action for alleged sexual harassment by
prison guard and dismissal was proper when female guard allegedly peeped through
inmate's window and made obscene gestures, but there was no allegation of
physical injury. Johnson v Medford (2002, WD NC) 208 F Supp 2d 590, affd (2002,
CA4 NC) 37 Fed Appx 622.
Former county jail inmate's Eighth Amendment inadequate conditions of
confinement claims against county board of supervisors were subject to dismissal
where inmate failed to show that delay in four or five occasions in providing
clean clothing or bedding caused inmate any physical injury as required by 42
USCS § 1997e(e). Smith v Bd. of County Comm'rs (2002, DC Kan) 216 F Supp 2d
1209.
To extent inmate sought compensatory and punitive damages premised upon
violation of his Eighth Amendment right to be free from cruel and unusual
punishment, 42 USCS § 1997e(e) barred claim because inmate presented no evidence
of physical injury resulting from prison officials' alleged failure to protect
inmate from other inmates. Wolff v Hood (2002, DC Or) 242 F Supp 2d 811.
Defendants in inmate's excessive force suit were not entitled to summary
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judgment on grounds that inmate had not exhausted administrative remedies
pursuant to 42 USCS § 1997e(a), as inmate claimed that inmate's habit was to
file grievance as to any incident that happened to inmate and that grievances
often were not responded to or were returned; although defendants alleged that
they were unable to find any record of grievance, that did not necessarily mean
that none was filed. Livingston v Piskor (2003, WD NY) 215 FRD 84.
Because administrative process of Connecticut Department of Correction
provided prison officials with authority to take some form of action in response
to inmate's complaint, had she filed one, remedial scheme was available to her;
consequently, no futility exception could be read into 42 USCS § 1997e(a) under
these circumstances. Hock v Thipedeau (2003, DC Conn) 245 F Supp 2d 451.
In petitioner inmate's action challenging her transfer from community
confinement center to prison in another state due to retroactively applied
Bureau of Prison's policy change, exhaustion of administrative remedies was not
required, because any such attempt would be futile, as it was clear that claim
would be rejected by Bureau, given Bureaus insistence that former policy was
illegal. Howard v Ashcroft (2003, MD La) 248 F Supp 2d 518.
Where inmate sued corrections officers under Eighth and Fourteenth Amendments
for failure to protect inmate from other prisoners, claims were dismissed
without prejudice for failure to exhaust administrative remedies under 42 USCS §
1997e(a); inmate apparently attempted to bypass both initial state grievance
resolution process and first level appeal. Labounty v Johnson (2003, WD NY) 253
F Supp 2d 496.
Where inmate sued corrections officers for retaliation in violation of inmate
's First Amendment rights by identifying inmate as gang member after inmate
successfully pursued grievance against officers, court declined to dismiss claim
for failure to exhaust administrative remedies under 42 USCS § 1997e(a);
discovery was required to resolve issue whether inmate was precluded from
meaningful appeal, as inmate's grievance had been consolidated under another
prisoner's name and inmate was confused by initial decision in grievance
process. Labounty v Johnson (2003, WD NY) 253 F Supp 2d 496.
Especially in light of inmate's prior experience in filing grievances, court
could not accept inmate's argument that inmate's reporting of incident involving
inmate's altercation with corrections officer to prisoner volunteer group
constituted properly filed grievance with prison officials; thus, city's and
corrections officer's motion for summary judgment for failure to exhaust
administrative remedies, as required by Prison Litigation Reform Act of 1996, 42
USCS 1997e(a), was granted. Harvey v City of Philadelphia (2003, ED Pa) 253 F
Supp 2d 827.
6. Hearing
Court erred in dismissing 42 USCS § 1983 action under Civil Rights of
Institutionalized Persons Act (42 USCS §§ 1997 et seq.) without holding hearing
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or giving notice of its intent to rule, where inmate who had reasonably and in
good faith pursued administrative remedies promptly attempted to secure relief
from prison authorities, and only because of prison's requirement that prisoner
submit grievance letter rather than federal complaint that timeliness became an
issue, and on remand prisoner should have opportunity to present evidence in
support of contention that grievance letter was mailed within 30 day limit
required by prison rule. Rocky v Vittorie (1987, CA5 La) 813 F2d 734, 93 ALR
Fed 699.
In absence of particularized averments concerning exhaustion of
administrative remedies showing nature of administrative proceeding and its
outcome, 42 USCS § 1983 action must be dismissed under 42 USCS § 1997e, as
district courts should not have to hold time-consuming evidentiary hearings in
order to determine whether court should reach merits or decline under mandatory
language of § 1997e. Knuckles El v Toombs (2000, CA6 Mich) 215 F3d 640, 2000 FED
App 202P.
7. Limitation on damages
42 USCS § 1997e(e) did not apply to action brought by prisoner after he was
released on parole, as prisoner was no longer "confined in a jail, prison, or
other correctional facility". Kerr v Puckett (1998, CA7 Wis) 138 F3d 321.
42 USCS § 1997e(e) does not apply to First Amendment claims, regardless of
form of relief sought, as deprivation of First Amendment rights entitles
plaintiff to judicial relief wholly aside from any physical, mental, or
emotional injury incurred. Canell v Lightner (1998, CA9 Or) 143 F3d 1210, 98
CDOS 3490, 98 Daily Journal DAR 4827.
Claim by prisoner seeking compensatory damages for mental or emotional harm
suffered for alleged violation of his First Amendment rights to practice his
religion in prison was barred by 42 USCS § 1997e(e), where no physical injury
was alleged, but claims for nominal damages were not barred by § 1997e(e), and
to the extent that prisoner's claims for punitive damages were premised on
alleged violation of his right to free exercise of religion rather than on any
emotional or mental distress suffered as result of violation, claims were not
barred under § 1997e(e). Allah v Al-Hafeez (2000, CA3 Pa) 226 F3d 247.
Subsec. (e) of 42 USCS § 1997e requires more than de minimis physical injury
before emotional injury may be alleged; prisoner's allegations in his
conditions-of-confinement claim--that he was deprived of food, drink, and sleep
for four days--were insufficient to state claim for physical injury, but
prisoner was granted leave to amend his complaint in order to cure deficiency.
Mitchell v Horn (2003, CA3 Pa) 318 F3d 523.
Bivens claims are held to be claims within meaning of any other Federal law
under 42 USCS § 1997e(a). Stoutt v Banco Popular de P.R. (2003, CA1 Puerto Rico)
320 F3d 26.
Section 1983 complaint seeking damages for alleged emotional and mental
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injuries must be dismissed without prejudice, where plaintiffs cannot show at
this time any physical injuries, because prisoners and former prisoners may not
obtain such damages for injuries occurring while in custody without showing
"physical injury" within meaning of new 42 USCS § 1997e(e). Zehner v Trigg
(1997, SD Ind) 952 F Supp 1318 (criticized in Hollimon v DeTella (1997, ND Ill)
1997 US Dist LEXIS 1083) and (criticized in Calhoun v DeTella (1997, ND Ill)
1997 US Dist LEXIS 1745) and affd (1997, CA7 Ind) 133 F3d 459.
42 USCS § 1997e(e) did not apply retroactively to inmate's pending § 1983
claim, where inmate was entitled to seek compensatory damages without suffering
physical injury when he filed complaint, and application of statute to pending
cases would eliminate claims that were legally cognizable and attach new legal
consequences to events completed before enactment of statute. Thomas v Hill
(1997, ND Ind) 963 F Supp 753.
Pro se inmate's claim against prison officials must fail under 42 USCS §
1997e(e), even if he has demonstrated failure to protect him against threats and
assaults upon him as "snitch," where record only supports finding of cuts and
bruises lasting no longer than 2 or 3 days, because such injuries are de minimis
and not actual physical injury required to sustain claim. Luong v Hatt (1997, ND
Tex) 979 F Supp 481.
Inmate's § 1983 claims for mental and emotional injuries are dismissed with
leave to amend, where only alleged physical contact is that he had "bodily
fluids thrown on" him, because in order to recover for mental or emotional
injury he must allege prior physical injury pursuant to 42 USCS § 1997e(e).
Evans v Allen (1997, ND Ill) 981 F Supp 1102.
Allegations by military prisoners that they had been sexually assaulted by
prison staff established "physical injury" for showing under 42 USCS § 1997e(e)
of prior physical injury before prisoner could bring federal civil action to
recover for mental or emotional injury suffered while in custody. Marrie v
Nickels (1999, DC Kan) 70 F Supp 2d 1252.
State prisoners' § 1983 claims against prison officials are dismissed, to
extent they seek damages for "mental and emotional distress among adherents of
Sunni Muslim community" at prison, because 42 USCS § 1997e(e) states "no federal
civil action may be brought by prisoner . . . for mental or emotional injury
suffered while in custody without prior showing of physical injury." Craig v
Cohn (2000, ND Ind) 80 F Supp 2d 944.
42 USCS § 1997e(e) is meant to exclude recovery for mere emotional or mental
distress. Lewis v Washington (2000, ND Ill) 197 FRD 611.
Malicious prosecution claims of federal inmate are barred by 42 USCS § 1997e
(e), even though he alleges his wrongful prosecution for assault was part of
conspiracy to cover up officers' planned physical assault of him, because he has
failed to show physical injury in connection with his malicious prosecution
claims. Turner v Schultz (2001, DC Colo) 130 F Supp 2d 1216.
Inmate has failed to establish any constitutionally significant physical
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injury resulting from jail officials' alleged conduct, where he claims they did
not shower or "debug" inmates or test them for communicable diseases before
double bunking and mixing them with general population, because inmate's toe
fungus, even if attributable to "sanitation," was treated with medication and
was, at most, minor irritation. Canell v Multnomah County (2001, DC Or) 141 F
Supp 2d 1046.
Provision of Litigation Reform Act, 42 USCS § 1997e(d), imposing cap on
attorney's fees recoverable by prisoner litigants pursuing civil rights
complaints does not violate equal protection. Sallier v Scott (2001, ED Mich)
151 F Supp 2d 836.
Reasoning of Greig cannot be extended to physical injury requirement of 42
USCS § 1997e(e) which is substantive limitation on type of actions that can be
brought by prisoners; its purpose is to weed out frivolous claims where only
emotional injuries are alleged--this purpose is accomplished whether § 1997e(e)
is applied to suits brought by inmates incarcerated at time of filing or by
former inmates incarcerated at time of alleged injury but subsequently released.
Cox v Malone (2002, SD NY) 199 F Supp 2d 135.
Inmate was not barred from filing action for violation of his Fourteenth
Amendment rights; however, he was barred from recovering compensatory damages
for mental or emotional injuries stemming because his physical injuries did not
pass Prison Litigation Reform Act, specifically 42 USCS § 1997e(e), de minimus
test. Todd v Graves (2002, SD Iowa) 217 F Supp 2d 958.
8. Dismissal
Although court possesses inherent authority to dismiss inmate's 42 USCS §
1983 pro se in forma pauperis complaint on its own motion based on failure to
comply with exhaustion requirement under 42 USCS § 1997e, court was first
obligated to provide plaintiff notice and opportunity to be heard, as existence
of administrative procedure may be matter of fact, but whether procedure
qualifies as an administrative remedy that must be exhausted under § 1997e is
question of law. Snider v Melindez (1999, CA2 NY) 199 F3d 108.
42 USCS § 1997e(c)(1) did not change procedures that district court
previously adopted regarding the dismissal of a complaint without granting leave
to amend. Shane v Fauver (2000, CA3 NJ) 213 F3d 113.
Impact of language "while in custody" in Prison Litigation Reform Act (PLRA),
42 USCS 1997e(e) was that PLRA covered all federal civil lawsuits filed by
prisoners concerning emotional or mental injury suffered while in past or
present custody, even if subject of filed lawsuits was unrelated to current
imprisonment; therefore, district court did not abuse its discretion by
dismissing prisoner's complaint under 42 USCS § 1983 because PLRA forbade
litigation of this lawsuit while prisoner was imprisoned, as he complained of
injury occurring while he was in custody as result of mistaken arrest, and he
did not allege physical injury arising from actions of deputies. Napier v
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Preslicka (2002, CA11 Fla) 314 F3d 528, 16 FLW Fed C 114, reh, en banc, den
(2003, CA11 Fla) 16 FLW Fed C 638.
Prisoner's civil rights complaint alleging that collection of DNA sample by
appellee prison officials for registration in DNA database pursuant to Tex. Gov
't Code Ann. § 411.148 violated prisoner's rights under Fourth Amendment was
properly dismissed as frivolous pursuant to 28 USCS §§ 1915A and 1915(e)(2) and
42 USCS § 1997e(c)(1). Velasquez v Woods (2003, CA5 Tex) 329 F3d 420.
Dismissal of inmate's 42 USCS § 1983 civil rights action for failure to
exhaust administrative remedies with respect to claims against warden, pursuant
to 42 USCS § 1997e, was reversed and remanded to grant inmate's motion to amend
complaint to strike claims against warden where (1) inmate's request to amend
complaint and dismiss warden would have cured defect necessitating dismissal,
(2) deletion of warden as defendant would not have required any additional
discovery or changed any of pretrial deadlines or trial schedule, (3) inmate was
not attempting to add any claims or defendants, and (4) inmate had not
previously amended complaint, and it did not appear that inmate showed any bad
faith in failing to dismiss warden earlier; district court's implicit denial of
inmate's motion to amend was abuse of discretion. Kozohorsky v Harmon (2003, CA8
Ark) 332 F3d 1141, 55 FR Serv 3d 1168.
Rule permitting plaintiff to file amended habeas corpus petition, which
includes only exhausted claims after district court dismisses action due to
unexhausted claims, is applicable in 42 USCS § 1983 action where 42 USCS § 1997e
mandates dismissal due to unexhausted claims. Kozohorsky v Harmon (2003, CA8
Ark) 332 F3d 1141, 55 FR Serv 3d 1168.
Inmate's claim against prison doctor is dismissed sua sponte under 42 USCS §
1997e(c)(1), even though inmate suffered extreme pain after accidentally
dropping 30-pound weight on his thumb, where doctor treated inmate several
times, ordered X-ray to determine if thumb was broken, and prescribed
antibiotics when infection became apparent, because complaint clearly sounds in
medical malpractice/negligence and fails to state claim under § 1983. Proctor v
Vadlamudi (1998, ND NY) 992 F Supp 156.
There was no suggestion that prisoner was qualified for premium-pay jobs that
existed at prisoner's current place of confinement, and even absent any
discrimination, it was likely that prisoner would not have premium-pay job, so
prisoner could not establish physical injury. Arlt v Mo. Dep't of Corr. (2002,
ED Mo) 229 F Supp 2d 938.
9. Attorneys' fees
Limitations on attorney's fee awards under 42 USCS § 1997e applied to fees
awarded to group of incarcerated juveniles who successfully challenged
constitutionality of juvenile prison conditions in South Carolina, and fee
provisions of § 1997e applied retroactively to fee awards for work performed but
not compensated prior to its enactment. Alexander S. v Boyd (1997, CA4 SC) 113
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F3d 1373, cert den (1998, US) 139 L Ed 2d 869, 118 S Ct 880 and (criticized in
Glover v Johnson (1998, CA6 Mich) 138 F3d 229, 1998 FED App 72P) and (criticized
in Hadix v Johnson (1998, CA6 Mich) 143 F3d 246, 1998 FED App 117P) and
(criticized in Inmates of D.C. Jail v Jackson (1998, App DC) 332 US App DC 451,
158 F3d 1357) and (criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413).
42 USCS § 1997e would not be applied to an award of attorney's fees for legal
assistance completed prior to enactment of PLRA. Glover v Johnson (1998, CA6
Mich) 138 F3d 229, 1998 FED App 72P, remanded (1998, CA6 Mich) 143 F3d 246, 1998
FED App 117P (criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413) and
(criticized in Collins v Montgomery County Bd. of Prison Inspectors (1999, CA3
Pa) 1999 US App LEXIS 9037) and reh, en banc, den (1998, CA6) 1998 US App LEXIS
13682.
Attorney's fee limitation section of PLRA, 42 USCS § 1997e(d), pertaining to
civil rights actions by prisoners, does not apply to fee petitions for work
performed prior to or after enactment of PLRA, in case filed before enactment
date. Hadix v Johnson (1998, CA6 Mich) 143 F3d 246, 1998 FED App 117P
(criticized in Winters v Sissel (1999, CA8 Iowa) 167 F3d 413) and (criticized in
Collins v Montgomery County Bd. of Prison Inspectors (1999, CA3 Pa) 1999 US App
LEXIS 9037).
Attorney who has successfully represented prisoner in civil rights action is
entitled to attorney's fees under Prison Litigation Reform Act for time spent on
fee petition. Hernandez v Kalinowski (1998, CA3 Pa) 146 F3d 196.
PLRA limitations would not necessarily be applied to fee awards made after
effective date of PLRA, for purposes of 42 USCS § 1983 action by attorneys who
provided legal work for prisoner before effective date of PLRA but who were
awarded fees after effective date. Blissett v Casey (1998, CA2 NY) 147 F3d 218.
Juvenile pretrial detainee was not prisoner within meaning of 42 USCS §
1997e, and thus limitation of attorney's fee award to juvenile in suit filed
after he was raped and beaten as pretrial detainee would not be limited by terms
of § 1997e. Doe by & Through Doe v Washington County (1998, CA8 Ark) 150 F3d
920.
Attorney's fee limitations under Prison Litigation and Reform Act apply to
all post-enactment awards of fees, regardless of when case was filed, and PLRA,
as it limits amount of fees paid to prisoner's counsel but not to non-prisoner's
counsel, does not violate equal protection rights of prisoners, as statute is
rationally related to state intent to curtail frivolous suits and to minimize
costs associated with suits by prisoners. Madrid v Gomez (1998, CA9 Cal) 150 F3d
1030, 98 CDOS 5249, 98 Daily Journal DAR 7389 (criticized on other grounds in
Winters v Sissel (1999, CA8 Iowa) 167 F3d 413).
Attorney's fees limitation provisions of PLRA predicated on hourly rates and
the amount of judgment do not have retroactive effect where court applies them
solely to limit fees awarded for services performed after effective date of PLRA
based on judgment entered after that date. Collins v Montgomery County Bd. of
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Prison Inspectors (1999, CA3 Pa) 176 F3d 679.
Attorney's fees limitations in PLRA would not be applied to award for
services performed prior to enactment of PLRA, although fee award was ordered
after effective date of PLRA. Madrid v Gomez (1999, CA9 Cal) 190 F3d 990, 99
CDOS 7090, 99 Daily Journal DAR 9049.
Limits under PLRA apply to attorney's fees that may be recovered by
non-prisoner who intervened in case originally brought by prisoner. Montcalm
Publ. Corp. v Virginia (1999, CA4 Va) 199 F3d 168.
Attorneys' fee cap of Prison Litigation Reform Act did not violate Equal
Protection Clause of Fifth Amendment, for purposes of 42 USCS § 1983 action, by
distinguishing between hourly rates for attorneys' fees for prisoners' attorneys
and hourly rates for other civil rights plaintiffs free to recover "reasonable"
attorneys' fees, as Congress could have rationally concluded that civil rights
litigation by prisoners leads to fees which are often disproportionate, and that
circumstances specific to prisoners may increase the number of trivial or
frivolous allegations filed as compared with non-prisoners. Hadix v Johnson
(2000, CA6) 230 F3d 840, 2000 FED App 351P.
Nominal damages are included within meaning of monetary awards under 42 USCS
§ 1997e(d)(2), and attorney's fee cap under PLRA was properly applied to $ 1.00
nominal damages award, resulting in maximum attorney's fee under PLRA of $ 1.50.
Foulk v Charrier (2001, CA8 Mo) 262 F3d 687.
District court abused its discretion by using common lodestar method when it
awarded attorney's fees and expenses not directly and reasonably incurred in
successfully proving Eighth Amendment excessive force claim against prison
guards, in violation of 42 USCS § 1997e(d)(1)(A) requirement that fees and
expenses awarded to prisoner should be directly and reasonably incurred in
proving an actual violation of plaintiff's rights. Johnson v Breeden (2002, CA11
Ga) 280 F3d 1308, 15 FLW Fed C 251.
Claim for attorney's fees for work done in securing TRO prohibiting state
from executing defendant as scheduled pending a ruling on defendant's
application for a preliminary injunction would be denied, as district court
issued only a TRO and never finally adjudicated question of whether defendant's
rights were violated, and thus defendant could not be said to have incurred fees
in proving an actual violation of his rights, as required under Prison
Litigation Reform Act, 42 USCS § 1997e(d)(1). Siripongs v Davis (2002, CA9 Cal)
282 F3d 755, 2002 CDOS 2174, 2002 Daily Journal DAR 2699, amd (circa 2002, CA9
Cal) 2002 CDOS 3297.
Post judgment attorney's fees requested by successful plaintiff whose
attorneys had performed legal services to enforce court's orders and terms of
consent decree resulting from successful § 1983 action alleging unconstitutional
jail overcrowding were compensable under Prison Litigation Reform Act, as fees
were directly incurred in enforcing court ordered relief instituted to correct
violations of plaintiff's constitutional rights. Webb v Ada County (2002, CA9
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Idaho) 285 F3d 829, 2002 CDOS 2941, 2002 Daily Journal DAR 3601.
Where inmates, after prevailing on their civil rights claims, sought attorney
's fees under Prison Litigation Reform Act of 1995, 42 USCS § 1997e, the
provisions of Act applied both to work done on the merits of the case and for
postjudgment enforcement of the court's order where the enforcement work was
necessary to correct violations of the inmates' constitutional rights. Webb v
Ada County (2002, CA9 Idaho) 285 F3d 829, 2002 CDOS 2941, 2002 Daily Journal DAR
3601.
Where inmates, after prevailing on their civil rights claims, sought attorney
's fees under Prison Litigation Reform Act of 1995, 42 USCS § 1997e, the correct
baseline hourly rate was the rate established under 18 USCS § 3006A. Webb v Ada
County (2002, CA9 Idaho) 285 F3d 829, 2002 CDOS 2941, 2002 Daily Journal DAR
3601.
Prison Litigation Reform Act, 18 USCS § 1997e(d)(1), did not bar attorneys'
fee award in prisoners' civil rights action against prison officials because
class's efforts to prolong efficacy of consent decree and negotiating settlement
agreement concerning termination of decree was time spent enforcing decree and
were fully compensable. Cody v Hillard (2002, CA8 SD) 304 F3d 767.
Where juvenile inmates and prison officials settled inmates' class action
suit regarding conditions of confinement, 42 USCS § 1997e(d), part of Prison
Litigation Reform Act of 1995 (PLRA), applied to limit award of attorney's fees
to those incurred in proving actual violation of inmates's statutory rights,
which was not case where case was settled by parties; further, PLRA's use of
word "prison" in limiting provision included juvenile facilities such as one
where inmates were confined. Christina A. v Bloomberg (2003, CA8 SD) 315 F3d
990.
Plaintiffs, class of present and future California state prisoners and
parolees with disabilities, were entitled to attorney's fees for prevailing in
their action brought pursuant to Americans with Disabilities Act of 1990 (ADA),
42 USCS § 12101 et seq., § 504 (29 USCS § 794) of Rehabilitation Act of 1973
(RA), 29 USCS § 701 et seq., and Fourteenth Amendment; district court did not
abuse its discretion by not applying Prison Litigation Reform Act's cap on
attorney's fees. Armstrong v Davis (2003, CA9 Cal) 318 F3d 965, 2003 CDOS 1229,
2003 Daily Journal DAR 1560, subsequent app (2003, CA9 Cal) 2003 US App LEXIS
2423.
It was well-settled that fees-on-fees were permitted under 42 USCS § 1988
even though Congress did not explicitly provide for fees-on-fees therein;
therefore, because 42 USCS § 1988(b)'s language permitting fees-on-fees did not
differ significantly from 42 USCS § 1997e(d)(1)(A)'s language, fees-on-fees were
recoverable under 42 USCS § 1997e(d). Jackson v State Bd. of Pardons & Paroles
(2003, CA11 Ga) 331 F3d 790, 16 FLW Fed C 608.
Prison officials are not immune from attorney's fees award based on 42 USCS §
1997e(d)(1)(A), where prisoner proved that failure to remedy smoking situation
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at prison would result in Eighth Amendment violation and officials then changed
policy and banned smoking, because that provision should not be applied
retroactively and would not be applicable here, since fees were directly and
reasonably incurred in proving actual violation of prisoner's rights at
preliminary injunction hearing. Weaver v Clarke (1996, DC Neb) 933 F Supp 831,
affd (1997, CA8 Neb) 120 F3d 852, cert den (1998) 522 US 1098, 139 L Ed 2d 884,
118 S Ct 898.
Request cannot be granted as submitted, because cap on attorney's fees
established by 42 USCS § 1997e applied to work performed by attorneys in prison
litigation after statute's effective date. Hadix v Johnson (1996, ED Mich) 947 F
Supp 1113.
Inmate's attorney is entitled to award of fees and costs totaling $ 7,921.96,
where jury found that defendants violated inmate's Eighth Amendment right to be
free from cruel and unusual punishment and awarded him $ 10,000 in damages,
because fee was directly and reasonably incurred in proving actual violation of
inmate's rights and amount of fee is proportionately related to court-ordered
relief for violation in accordance with 42 USCS § 1997e(d)(1)(A) and (B). Clark
v Phillips (1997, ND NY) 965 F Supp 331.
Prevailing prison inmate is granted request for hourly rates of $ 30 for
legal assistant and $ 45 for law clerk, even though he does not provide evidence
of prevailing market rates, where 1998 award in this district approved hourly
rates of $ 55 for law clerk and $ 65 for paralegal, because requested rates are
not only reasonable, but also reflect reduction that is appropriate in light of
restrictions in 42 USCS § 1997e(d)(3). Searles v Van Bebber (1999, DC Kan) 64 F
Supp 2d 1033.
Pretrial detainee is awarded attorney's fee of $ 3,892.50, even though
correctional officer argues that his liability for attorney's fee is limited by
42 USCS § 1997e(d)(2) to $ 1.50 or 150 percent of $ 1 nominal damages awarded
detainee for improper placement in restraint chair, where award sought here is
eminently reasonable for vindication of important constitutional principle,
because nominal damage award does not constitute "monetary judgment" within
meaning of § 1997e(d)(2). Boivin v Merrill (1999, DC Me) 66 F Supp 2d 50.
Inmate bringing successful claim against prison guard for use of excessive
force could make supplementary claim for attorney's fees reflecting time
incurred by counsel in preparing and litigating motion requesting fees and costs
recoverable under 42 USCS § 1997e(d)(1)(B). McLindon v Russell (1999, SD Ohio)
108 F Supp 2d 842.
Only $ 1 of civil rights attorney's fee award is assessed against $ 15,000
judgment of prisoner beaten by corrections officer, where $ 3,000 of judgment
was in punitive damages, and court interprets 42 USCS § 1997e(d)(2) to allow it
to apply any portion of judgment between 0 and 25 percent, because assessment of
mere .0000666 percent of judgment is warranted in light of facts of case,
constitutional rights implicated, and jury's clear signal that defendants should
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be punished. Morrison v Davis (2000, SD Ohio) 88 F Supp 2d 799 (criticized in
Wolff v Moore (2000, SD Ohio) 104 F Supp 2d 892).
Under equal protection principles, government's goal of protecting public
fisc could not be achieved through provision of 42 USCS § 1997e(d) limiting
attorney's fees recoverable by prevailing prisoners in civil rights actions,
given government's failure to explain relevance of distinction drawn between
prisoners and nonprisoners. Johnson v Daley (2000, WD Wis) 117 F Supp 2d 889.
Successful prisoner litigant's counsel's fees are capped at $ 22,500, even
though court agrees that 42 USCS § 1997e(d)(2)'s 150 percent of judgment fee cap
would not necessarily restrict total fee amount in cases in which both monetary
and injunctive relief are sought in complaint and obtained, because prisoner's
complaint sought only monetary relief, action was litigated through trial
seeking only monetary relief, prisoner obtained $ 15,000 in settlement, and
counsel's billing records do not separate out time spent obtaining Hepatitis B
immunization for prisoner in settlement agreement. Carbonell v Acrish (2001, SD
NY) 154 F Supp 2d 552.
In context of consent decree, attorney fees cannot be considered prospective
relief under Prison Litigation Reform Act since 42 USCS § 1997e(d) distinguishes
attorney fees from relief. Carruthers v Jenne (2002, SD Fla) 209 F Supp 2d 1294,
15 FLW Fed D 358.
Because plaintiffs' attorney was performing monitoring of county jail
conditions pursuant to consent decree, monitoring fees were not prospective
relief because they were essentially attorney fees and were therefore
distinguished from relief under Prison Litigation Reform Act, 42 USCS § 1997e
(d). Carruthers v Jenne (2002, SD Fla) 209 F Supp 2d 1294, 15 FLW Fed D 358.
$ 40,374 was reasonable fee and $ 1,509 was reasonable award for plaintiff
inmate's expenses; in addition, said fees and expenses were directly and
reasonably incurred in proving actual violation of his rights; fee award was
sufficiently proportional to inmate's relief. Jackson v Austin (2003, DC Kan)
267 F Supp 2d 1059.
10. Appeal and review
Appeals from dismissal for failure to state civil rights claim under 42 USCS
§ 1997e should be reviewed de novo on appeal. Bazrowx v Scott (1998, CA5 Tex)
136 F3d 1053, cert den (1998, US) 142 L Ed 2d 128, 119 S Ct 156.
Appeal of district court's denial of defendant's motion to dismiss in action
challenging prison conditions and seeking to avoid PLRA's exhaustion requirement
was interlocutory order, and plaintiffs were not entitled to immediate appellate
review. Davis v Streekstra (2000, CA7 Wis) 227 F3d 759.
Appeal of district court's denial of defendant's motion to dismiss in action
challenging prison conditions and seeking to avoid PLRA's exhaustion requirement
was interlocutory order, and plaintiffs were not entitled to immediate appellate
review. Davis v Streekstra (2000, CA7 Wis) 227 F3d 759.
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