2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-7-2000

Booth v. Churner

Precedential or Non-Precedential:

Docket 97-7487

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Recommended Citation

"Booth v. Churner" (2000). 2000 Decisions. Paper 46.

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Filed March 7, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-7487, 97-7488 

TIMOTHY BOOTH, 

Appellant 

v. 

CHURNER, C.O.; WORKENSHER, Sgt.; 

RIKUS, Lt.; W. GARDNER, Capt. 

On Appeal From the United States District Court 

For the Middle District of Pennsylvania 

(D.C. Civ. No. 3: CV-97-0611) 

District Judge: William J. Nealon 

Argued: September 27, 1999 

Before: BECKER, Chief Judge, MCKEE, 

and NOONAN,* Circuit Judges. 

(Filed March 7, 2000) 

 NANCY WINKELMAN, ESQUIRE 

 (ARGUED) 

 RALPH SIANNI, ESQUIRE 

 Schnader Harrison Segal & 

 Lewis, LLP 

 1600 Market Street, Suite 3600 

 Philadelphia, PA 19103-7286 

Attorneys for Appellant 

_________________________________________________________________ 

*Honorable John T. Noonan, Jr., Circuit Judge of the United States 

Court of Appeals for the Ninth Circuit, sitting by designation. 

 D. MICHAEL FISHER, ATTORNEY 

 GENERAL 

 GWENDOLYN T. MOSLEY, ESQUIRE 

 (ARGUED) 

 Senior Deputy Attorney General 

 JOHN G. KNORR, III, 

 Chief Deputy Attorney General 

 Office of Attorney General 

 15th Floor, Strawberry Square 

 Harrisburg, PA 17120 
 Attorneys for Appellees 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This appeal by Timothy Booth from an order of the 

District Court dismissing his prisoner's civil rights action 

presents two important questions about the meaning of the 

mandatory administrative exhaustion requirement in the 

Prison Litigation Reform Act of 1996 (the PLRA). Booth 

alleges that while he was confined in the Commonwealth of 

Pennsylvania's State Correctional Institute at Smithfield, 

several prison guards, on several occasions, punched him 

in the face, threw cleaning material in his face, shoved him 

into a shelf, and tightened and twisted his handcuffs in 

such a manner as to injure him. Asserting his Eighth 

Amendment right to be free of cruel and unusual 

punishment, Booth, acting pro se, brought this 42 U.S.C. 

S 1983 excessive force action in the District Court for the 

Middle District of Pennsylvania, requesting various forms of 

monetary and injunctive relief. He did so withoutfirst 

exhausting the administrative remedies available to him at 

Smithfield. Because of this failure to exhaust his 

administrative remedies, the District Court dismissed his 

action pursuant to 42 U.S.C. S 1997e(a). 

As amended by the PLRA, S 1997e(a) provides that "[n]o 

action shall be brought with respect to prison conditions 

under section 1983 of this title, or any other Federal law, 

by a prisoner confined in any jail, prison, or other 

 2 

correctional facility until such administrative remedies as 

are available are exhausted." 42 U.S.C. S 1997e(a) 

(amended by Pub. L. 104-134, Title I, S101(a), 110 Stat. 

1321-71 (1996)). The first question raised by Booth's appeal 

concerns the applicability of S 1997e(a) toS 1983 excessive 

force actions; i.e., whether excessive force is a"prison 

condition" for purposes of the PLRA. This important and 

difficult question is a matter of first impression for this 

court. Booth contends that S 1997e(a)'s "action . . . with 

respect to prison conditions" language applies only to 

complaints about the physical conditions in prisons, and 

does not apply to his S 1983 excessive force action. 

Therefore, he concludes, the District Court erred in 

analyzing his action under S 1997e(a). We reject this 

argument and hold that S 1997e(a) applies to excessive 

force actions. We base this decision on the plain meaning 

of the language of the PLRA, case law from our sister 

circuits, and recent Supreme Court precedent interpreting 
similar prisoner litigation legislation. 

The second question raised by Booth's appeal has to do 

with the application of S 1997e(a)'s exhaustion requirement. 

Booth argues that even if S 1997e(a) applies to his action, 

exhaustion would have been futile, because the available 

administrative process could not provide him with the 

monetary relief he seeks. Accordingly, he contends, his 

failure to exhaust such procedures is not mandated by 

S 1997e(a), which only requires the exhaustion of 

administrative remedies "as are available." 

Our recent decision in Nyhuis v. Reno, No. 98-3543, 2000 

WL 157531, at *11 (3d Cir. Feb. 15, 2000), rejected this 

argument. Nyhuis was a Bivens action brought by a federal 

inmate, in which we held that "the PLRA amended 

S 1997e(a) in such a way as to make exhaustion of all 

administrative remedies mandatory--whether or not they 

provide the inmate-plaintiff with the relief he says he 

desires in his federal action." Id. at *1. The reasoning of 

Nyhuis applies equally in the S 1983 context, as S 1997e(a) 

treats Bivens actions and S 1983 actions as functional 

equivalents. Nyhuis is therefore controlling in this case. 

Accordingly, even though this is an excessive force

action, and even though the Commonwealth of 

 3 

Pennsylvania's inmate grievance process could not provide 

Booth with the money damages he sought, we hold that 

Booth was required by S 1997e(a) to exhaust the 

administrative remedies available to him prior tofiling this 

action. Because he admittedly has not done so, we will 

affirm the judgment of the District Court.1 

I. 

On April 21, 1997, Booth began this action in the District 

Court, using a form provided by the court to prisoners filing 

pro se complaints under 42 U.S.C. S 1983. He named 

Corrections Officer Churner, Sergeant Workensher, 

Lieutenant Rikus, and Captain W. Gardner as defendants. 

He stated that he had presented the facts of the case in the 

state prisoner grievance procedure and that his allegations 

were "dismissed or covered up." He added,"There isn't any 

help because of retaliation because I spoke up about abuse 

and corruption." In the space provided for "Parties" he 

added Superintendent Morgan to the list of defendants. In 

the space labeled "Statement of Claim" he wrote nothing. In 

the space labeled "Relief " he asked both for a "preliminary 

injunction," and for a "protection order for transfer to 

another prison as my safety and life is at stake." 
In a handwritten document filed with his form complaint, 

Booth alleged the following facts, which gave rise to his 

S 1983 action. He first complained that, in April 1996, he 

had been "assaulted by a Sgt Robinson and a C/O named 

Thomas . . . ." As a result of that assault, he alleges, he has 

"a shoulder that slips in and out." Subsequent to that 

incident, he contends, he was denied an operation on his 

shoulder with "deliberate indifference to [his] shoulder and 

back." Booth next averred that on February 6, 1997, he 

threw water on Corrections Officer Thomas, who then took 

him to a storage room and threw a cup of cleaning material 

in his face. 

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

_________________________________________________________________ 

1. We express our appreciation to Nancy Winkelman, Esquire, who, 

acting pro bono at the request of the court, represented Mr. Booth both 

ably and zealously. 

 4 

exchange of words with Lieutenant Rikus, Rikus shoved 

him into the shelf in the storage room and Thomas pushed 

him into a door, while Sergeant White looked on. He alleges 

that shortly thereafter he was taken back to his cell, where 

Thomas tightened and twisted his handcuffs in such a way 

that bruised his wrists. Booth last complained that, on 

March 23, 1997, Corrections Officer Churner punched him 

in the face and mouth, while Sergeant Workensher and 

Corrections Officer Kulian watched. As a result, he

contends, his mouth "was busted open" and he received 

three stitches. Booth ended this narrative, "I need out of 

this jail before they kill me. And I want each and every 

officer to be punished for assaulting me. Please, I'm in fear 

of my life." 

In a document dated May 19, 1997, he petitioned"To 

Show Cause for Appointment of Counsel, To Keep Top 

Officials as Defendants, Amending Relief Plaintiff Seeks." In 

this petition, he asked for "an injunction to stop the 

continuous beating," an order "to get operation," a transfer 

to another prison, and "money damages $750,000 

(permanent damages)." In later paragraphs, he again asked 

for an injunction, a transfer, and for money damages in 

different amounts; he also asked for an order to improve 

the prison law library and to fine prison officials for 

contempt of court, for an order to hire paralegal assistance 

for himself, and for "money damages $300,000." In 

"Plaintiff 's Amendment to Specific Relief," filed the next 

day, he asked for a protective order to be transferred to 

another jail, appointment of counsel, a pretrial hearing, a 
disclosure order for prison records, and $400,000 for 

"nominal, punitive, exemplary, and compensatory" 

damages. 

The District Court, acting sua sponte and without 

requiring an answer from the Defendants, dismissed 

Booth's action without prejudice on May 30, 1997, as it had 

the power to do under 42 U.S.C. S 1997e(c). The rationale 

for the Court's order was that Booth had failed to exhaust 

his administrative remedies pursuant to 42 U.S.C. 

S 1997e(a) before filing his S 1983 action. The Court 

observed that at the time Booth filed his action the 

Pennsylvania Department of Corrections had a three-step 

 5 

grievance procedure. Booth had taken the first step in the 

process but made no showing that he had taken the second 

and third steps, which required that he appeal the decision 

reached by the prison officials in the first step.2 The court 

_________________________________________________________________ 

2. The Commonwealth of Pennsylvania's Department of Corrections 

Consolidated Inmate Grievance System consists of a three-part 

administrative process. Grievances must be submitted, in writing, for 

initial review to the Facility/Regional Grievance Coordinator, within 

fifteen days after the events upon which the claims are based. See 

Commonwealth of Pennsylvania, Department of Corrections, 

Consolidated Inmate Grievance Review System, Policy No. DC-ADM 804 

SS VI.A.1, VI.B.2. (Oct. 20, 1994). Extensions of this time period may be 

granted for good cause. See id. S VI.B.2. 

The procedures for filing such a claim are straightforward. Once 

submitted, the grievance is investigated and persons having personal 

knowledge of the subject matter may be interviewed. See id. S VI.B.3. If 

the grievant requests a personal interview, the policy provides that one 

"shall" be granted. Id. Within ten working days of receipt of the 

grievance 

by the Grievance Officer, the policy provides that"the grievant shall be 

provided a written response to the grievance to include a brief rationale, 

summarizing the conclusions and any action taken or recommended to 

resolve the issues raised by the grievance." Id. S VI.B.2. 

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

grievant 

may appeal the determination to the appropriate intermediate review 

personnel. See id. SS VI.C.1, 2. The intermediate review personnel have 

ten working days after the receipt of the appeal to notify the grievant of 

their decision. See id. S VI.C.4."This decision may consist of approval, 

disapproval, modification, reversal, remand or reassignment for further 

fact finding, and must include a brief statement of the reasons for the 
decision." Id. In the third, and final, step of the process, "[a]ny inmate 

who is dissatisfied with the disposition of an Appeal from an Initial 

Review decision, may, within seven (7) days of receiving the decision, 

appeal [to the Central Office Review Committee (the CORC)] . . . for final 

review." Id. S VI.D.1. Absent good cause, final review is not permitted if 

a grievant has not complied with the procedures governing Initial Review 

and Appeal from Initial Review. See id.S VI.D.2. On final review, the 

CORC (1) has the power to require additional investigation before it 

makes its determination, see id. S VI.D.5; (2) may consider matters 

related to the initial grievance, see id.S VI.D.6; and (3) may, in its 

final 

decision, approve, disapprove, modify, reverse, remand or reassign the 

grievance for further fact finding, see id. S VI.D.7. The CORC must issue 

its decision within twenty-one days after receipt of an appeal, and it 

must include a brief statement of the reasons for the decision it reaches. 

See id. As noted above, Booth concedes that he did not avail himself of 

either the intermediate or final review process. 

 6 

concluded that as Booth had not exhausted his available 

remedies, dismissal was required by S 1997e(a). In reaching 

this conclusion, the District Court assumed, without 

discussion, that Booth's excessive force action was

governed by S 1997e(a). 

On June 9, 1997, Booth moved for reconsideration of this 

order. On July 3, the District Court denied this motion. 

Booth moved to amend his complaint, and on July 17,

1997, this motion was "dismissed as moot, as plaintiff 's 

case was closed on May 30, 1997." Booth thereafter 

appealed. The District Court had jurisdiction pursuant to 

28 U.S.C. S 1331. We have appellate jurisdiction pursuant 

to 28 U.S.C. S 1291.3 

II. 

We first examine whether the words "action . . . with 

respect to prison conditions" in S 1997e(a) were intended to 

apply to excessive force actions such as Booth's. Section 

1997e(a) provides that 

 [n]o action shall be brought with respect to prison 

 conditions under section 1983 of this title, or any other 

 Federal law, by a prisoner confined in any jail, prison, 

 or other correctional facility until such administrative 

 remedies as are available are exhausted. 

_________________________________________________________________ 

3. The District Court dismissed Booth's S 1983 claim without prejudice. 

To be appealable under 28 U.S.C. S 1291, an order of dismissal must 

ordinarily be with prejudice. See, e.g. , Bahtla v. U.S. Capital Corp., 

990 
F.2d 780 (3d Cir. 1993). In Garber v. Lego, 11 F.3d 1197, 1198 n.1 (3d 

Cir. 1993), we recognized an exception to that general rule. We noted 

that a plaintiff can appeal from a dismissal without prejudice when he 

declares his intention to stand on his complaint or when he cannot cure 

the defect in his complaint. See id.; see also Bethel v. McAllister Bros., 

Inc., 81 F.3d 376, 381 (3d Cir. 1996) (recognizing the same exceptions); 

Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 874, 878 (3d Cir. 1990) 

(same). These two conjunctive preconditions are clearly met in this case. 

In briefing this issue and at oral argument, Booth's counsel stated that 

Booth had elected "to stand on his complaint without amendment." 

Additionally, both parties agree that the time is long past for Booth to 

pursue his normal administrative remedies; therefore, he cannot cure 

the defect in his complaint on which the District Court based its 

dismissal. 

 7 

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

his S 1983 excessive force action is not governed by 

S 1997e(a) for three reasons. First, he contends that the 

words "prison conditions" simply cannot be read to include 

a prison guard's intentional act of violence. Second, he 

argues that, when one reads the PLRA and its legislative 

history as a whole, there is no basis to conclude that 

S 1997e(a) was meant to reference claims of excessive force. 

Third, Booth points to two recent Supreme Court cases, in 

which the Court has drawn a line between excessive force 

actions, which involve intentional acts of violence, and 

conditions-of-confinement actions, which do not. Booth 

submits that, in enacting the PLRA, Congress evinced no 

intent to disturb this distinction when it employed the 

"prison conditions" language it did in S 1997e(a). We take 

up these arguments in turn. 

A. 

We would normally begin our analysis of S 1997e(a) by 

looking to the plain meaning of the words "action. . . with 

respect to prison conditions" that Congress employed in 

drafting that section. Congress, however, defined the term 

"civil action with respect to prison conditions" in another 

section of the PLRA, 18 U.S.C. S 3626(g)(2), and thus 

spared us from that inquiry, see Freeman v. Francis, 196 

F.3d 641, 644 (6th Cir. 1999) (holding that "the scope of 

S 1997e(a)'s exhaustion requirement is determined by the 

definition of a `civil action with respect to prison conditions' 

as set forth in S 3626(g)(2)"). 

To borrow from the Supreme Court in Sullivan v. Stroop, 

"[t]he substantial relation between the two[provisions in 

the PLRA] presents a classic case for application of the 

normal rule of statutory construction that identical words 
used in different parts of the same act are intended to have 

the same meaning." 496 U.S. 478, 484 (1990) (citations and 

internal quotations omitted). The PLRA not only amended 

42 U.S.C. S 1997e to include various limitations on actions 

such as the mandatory exhaustion requirement in 

S 1997e(a), it also created 18 U.S.C. S 3626, which in many 

subsections, prevents federal courts from ordering broad 

prospective relief in "any civil action with respect to prison 

 8 

conditions." Like S 1997e, S 3626 curbs the extent to which 

federal prison litigation interferes with the states' and the 

federal government's administration of their own prisons. 

Because these two sections of the PLRA are directed toward 

similar ends and are thus substantially related, it follows 

from the canon of interpretation invoked in Stroop that the 

identical terms used in the two sections should be read as 

conveying the same meaning. See Freeman, 196 F.3d at 

644. 

Section 3626(g)(2) provides that 

 the term "civil action with respect to prison conditions" 

 means any civil proceeding arising under Federal law 

 with respect to the conditions of confinement or the 

 effects of actions by government officials on the lives of 

 persons confined in prison, but does not include 

 habeas corpus proceedings challenging the fact or 

 duration of confinement in prison. 

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

As a matter of common sense, we understand the 

"conditions of confinement" language preceding the "or" to 

include complaints such as those regarding cell 

overcrowding, poor prison construction, inadequate medical 

facilities, and incomplete law libraries. Put differently, 

actions arising under this clause relate to the environment 

in which prisoners live, the physical conditions of that 

environment, and the nature of the services provided 

therein. Booth's allegations that prison guards used 

excessive force against him do not naturally fall into this 

class of actions. 

Booth's action does, however, fit neatly into the language 

in S 3626(g)(2) following the "or," which refers to any civil 

action with respect to "the effects of actions by government 

officials on the lives of persons confined in prison." 18 

U.S.C. S 3626(g)(2). We read this clause to refer to civil 

actions ranging from excessive force actions, such as 

Booth's, to actions "with respect to" a prison official's 

decision not to make basic repairs in the prison, or 
intentionally to deny a prisoner food, heating, or medical 

attention. All of these actions affect the lives of prisoners 

similarly: They make their lives worse. 

 9 

B. 

This common sense reading of the language in 

S 3626(g)(2) comports with the manner in which the 

Supreme Court has read similar language in statutes

dealing with prison litigation. In McCarthy v. Bronson, 500 

U.S. 136, 137 (1991), the Court was faced with a similar 

provision in a prison litigation statute, 28 U.S.C.

S 636(b)(1)(B), which authorized the nonconsensual 

reference to magistrate judges of "prisoner petitions 

challenging conditions of confinement." In ruling on the 

scope of S 636(b)(1)(B), the unanimous Court interpreted 

the section's "conditions of confinement" language--one 

half of the definition of "prison conditions" in S 3626(g)(2)-- 

to include all inmate petitions, not only those regarding 

"continuous conditions," but "isolated episodes of 

unconstitutional conduct," such as the petitioner's claim of 

excessive force, as well. McCarthy, 500 U.S. at 139. In 

reaching this conclusion, the Court wrote: 

 We do not quarrel with petitioner's claim that the 

 most natural reading of the phrase "challenging 

 conditions of confinement," when viewed in isolation, 

 would not include suits seeking relief from isolated 

 episodes of unconstitutional conduct. However, 

 statutory language must always be read in its proper 

 context. . . . 

 The text of the statute does not define the term 

 "conditions of confinement" or contain any language 

 suggesting that prisoner petitions should be divided 

 into subcategories. On the contrary, when the relevant 

 section is read in its entirety, it suggests that Congress 

 intended to authorize the nonconsensual reference of 

 all prisoner petitions to a magistrate. 

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

As compared to the statute in McCarthy, Congress, in the 

PLRA, made its intent to subject all prisoner actions (save 

for habeas petitions) to S 1997e(a)'s exhaustion 

requirements even more clear. It did so by employing the 

language it did in S 3626(g)(2). In S 3626(g)(2), Congress 

included both the "conditions of confinement" language, 

which was enough in McCarthy to encompass all prisoner 

 10 
petitions, and the "effects of actions by government 

officials" language, which, on natural reading, more closely 

refers to isolated episodes of unconstitutional conduct at 

the hands of prison officials--such as the instances of 

unconstitutional excessive force alleged in the case at bar. 

The addition of the language in S 3626(g)(2) avoids the plain 

meaning problem with the statute at issue in McCarthy, 

and it clarifies Congress's intent to subject all inmate 

actions to the PLRA's exhaustion requirement. 

The context of the PLRA supports this conclusion. The 

PLRA was plainly intended, at least in part, to"reduce the 

intervention of federal courts into the management of the 

nation's prison systems." Freeman v. Francis , 196 F.3d 641, 

644 (6th Cir. 1999). Congress would only undermine this 

objective by carving out certain types of actions from the 

aegis of the PLRA. Therefore, we believe that the expansive 

and somewhat overlapping language Congress employed in 

S 3626(g)(2) must be read--naturally and in its proper 

context--to encompass all prisoner petitions. 

The only court of appeals explicitly to address the

question agrees with our conclusion. Relying on McCarthy 

and the definition of "action with respect to prison 

conditions" in S 3626(g)(2), the Court of Appeals for the 

Sixth Circuit recently held "that the term `prison conditions' 

as used in S 1997e includes claims of excessive force . . . ." 

Freeman, 196 F.3d at 644. The Courts of Appeals for the 

Fifth and Tenth Circuits have implicitly reached the same 

conclusion--that excessive force actions are "prison 

conditions" actions and subject to the exhaustion 

requirements set forth in S 1997e(a)--without discussing 

the precise argument raised by Booth and adopted by the 

dissent. See Wendell v. Asher, 162 F.3d 887, 889, 891-92 

(5th Cir. 1998) (applying S 1997e(a)'s exhaustion 

requirement to inmate-plaintiff 's excessive force claim); 

Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir. 1997) 

(same).4 In the margin, we respond, in part, to the dissent's 

_________________________________________________________________ 

4. The other courts of appeals that have been presented with the issue 

have declined to resolve it for different reasons. See Miller v. Tanner, 

196 

F.3d 1190, 1191 n.1 (11th Cir. 1999) (declining to resolve the issue in 

light of the fact that the court disposed of the appeal on other grounds); 

 11 

adoption of Booth's position.5 

_________________________________________________________________ 
Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (recognizing that the 

law concerning the PLRA's "action . . . with respect to prison conditions" 

language was in flux, but refusing to resolve the question "without the 

benefit of a more complete record"); Rumbles v. Hill, 182 F.3d 1064, 

1066 n.2 (9th Cir. 1999) (declining to address the issue because "it was 

not raised below"). District courts are split on the issue. Those holding 

that excessive force actions fall under S 1997e(a) include the District 

Court in the present appeal, Beeson v. Fishkill Correctional Facility, 28 

F. 

Supp. 2d 884 (S.D.N.Y. 1998) (Mukasey, J.), and Johnson v. Garraghty, 

57 F. Supp. 2d 321 (E.D. Va. 1999) (Ellis, J.). These courts rely on 

McCarthy and the definition of "action with respect to prison conditions" 

in S 3626(g)(2) to support their holding. District courts holding to the 

contrary include White v. Fauver, 19 F. Supp. 2d 305 (D. N.J. 1998) 

(Orlofsky, J.), and Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 

14014 (S.D.N.Y. Jan. 14, 1999) (Koeltl, J.). 

5. Without addressing McCarthy, except to mention our reliance on it, 

the dissent advances plain meaning and legislative history arguments to 

support its position. The dissent parses the phrase"prison conditions" in 

S 1997e(a)--looking to its definition in Webster's and in 28 U.S.C. 

S 3626(g)(2)--and concludes that the phrase does not encompass claims 

of excessive force. As do we in addressing S 3626(g)(2)'s definition, the 

dissent divides the section's language into its two components. It opines 

that the "statutory phrase `conditions of confinement' [in S 3626(g)(2)] 

do[es] not encompass specific batteries." Dissent at 22. As noted above, 

we take no exception to the dissent's understanding of this clause. See 

supra Section II.A. If Congress had only used the "conditions of 

confinement" language in S 3626(g)(2), we would be forced, as was the 

Court in McCarthy, 500 U.S. at 139-44, to query whether this language 

was employed in the context of the statute to connote something other 

than its most natural meaning. See supra Section II.B. (The dissent 

engages in this "contextual" analysis of the PLRA, but for reasons 

explained in note 9, infra, we are unconvinced by its reading.) 

Addressing the second half of the definition provided in S 3626(g)(2), 

the dissent continues: "A guard hits you on the mouth. Would you report 

the blow by saying, `A government official has taken an action having an 

effect on my life?' No speaker of English would use such a 

circumlocution." Dissent at 23. Relying on what it concedes are 

"[s]nippets of legislative history," id., the dissent concludes that the 

statutory phrase "effects of actions by government officials on the lives 

of persons confined in prisons," 28 U.S.C.S 3626(g)(2), was intended to 

refer only to actions by prison officials such as"[the delivery of] 

 12 

C. 

Booth attempts to buttress his reading of S 1997e(a) by 

pointing to Supreme Court precedent that has drawn a 

distinction between excessive force claims and prison 

condition claims. When pressed by logic, however, this 
argument proves as brittle as the analysis it was erected to 

support. 

A familiar maxim of statutory construction provides that 

" `[w]here Congress uses terms that have accumulated 

settled meaning under either equity or the common law, a 

court must infer, unless the statute otherwise dictates, that 

Congress means to incorporate the established meaning of 

these terms.' " United States v. Rosero , 42 F.3d 166, 171 

(3d Cir. 1994) (quoting NLRB v. Amax Coal Co. , 453 U.S. 

322, 329 (1981)). Invoking this maxim, Booth cites two 

recent Supreme Court cases in which the Court 

distinguished between conditions-of-confinement claims 

and excessive force claims, and treated the two types of 

claims differently. See Farmer v. Brennan, 511 U.S. 825, 

832 (1994); Hudson v. McMillian, 503 U.S. 1, 9 (1992).6 

_________________________________________________________________ 

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

more 

prisoners than the prison was designed for; . . . . decid[ing] to provide 

creamy peanut butter instead of chunky; . . . decid[ing] not to offer 

salad 

bars or weekend brunches; [or] . . . decid[ing] to play classical music on 

the prison stereo system"--not a punch in the jaw or a blow to the body. 

Id. at 22-23 (citing 141 Cong. Rec. S14611-01, S14627 (Sept. 29, 1995)). 

We find this reading of the second half of S 3626(g)(2) unconvincing. 

For us as for the court in Freeman, 196 F.3d at 644, the phrase 

naturally references isolated acts taken by prison officials that affect 

prisoners' rights, including alleged acts of excessive force, see supra 

Section II.A. If one were to accept the dissent's narrower reading of 

S 3626(g)(2), the two clauses employed inS 3626(g)(2) would be narrower 

than the lone "conditions of confinement" clause employed by Congress 

in McCarthy, 500 U.S. at 139-44. See supra Section II.B (discussing 

McCarthy). The claim that the addition of the"effects of acts of 

government officials" clause renders the scope of S 3626(g)(2) narrower 

than the provision at issue in McCarthy is unconvincing, especially when 

the additional clause in S 3626(g)(2) clearly broadens the scope of the 

section. 

6. In Hudson, 503 U.S. at 9, the Supreme Court distinguished the 

"extreme deprivations" that are necessary to make out a "conditions-of- 

 13 

From the distinction drawn by the Court in Farmer and 

Hudson, Booth reasons that if Congress intended to 

eliminate that distinction in S 1997e(a) between excessive 

force and prison condition claims it would have made its 

intentions explicit. 
There are four things wrong with this argument. First, 

and most obvious, Congress made its intentions clear 

regarding what "actions with respect to prison conditions" 

meant in S1997e(a), by defining that term expressly and 

expansively in S 3626(g)(2). Congress's explicit language in 

the PLRA, therefore, obviates the need to resort to the 

maxim. See NLRB, 453 U.S. at 329. 

Second, if we were to ignore the import of S 3626(g)(2)'s 

definition and apply the maxim based on language in

Farmer and Hudson, we would ignore the difference in the 

nature of the power allocated to the courts and Congress in 

our tripartite federal system. As Judge Mukasey noted in 

his forceful opinion in Beeson v. Fishkill Correctional 

Facility, which held that S 1997e(a) applied to excessive 

force claims, "a court's responsibility in reading S 1997e is 

to determine the intent of Congress when it referred to 

`prison conditions' in the statute, not the intent of the 

Supreme Court when it used a similar, but not identical, 

term in a case decided before the statute was passed." 28 

F. Supp. 2d 884, 890 (S.D.N.Y. 1998) (referring to Farmer 

and Hudson). 

Third, there is no evidence, other than the Court's use of 

similar language in Farmer and in Hudson , that the term 

"prison conditions" has a well-settled meaning, firmly 

established in the annals of the common law. In fact, 

Farmer and Hudson refer to "conditions of confinement" 

claims, not "prison conditions" claims.7 The difference 

_________________________________________________________________ 

confinement claim" from the lesser showing necessary to make out an 

excessive force claim. In Farmer, 511 U.S. at 835-36, the Court again 

relied upon this distinction to hold that the mental state necessary to 

make out an excessive force claim was lesser than the showing required 

to establish a conditions-of-confinement claim. 

7. In Hudson, the Court wrote, "[E]xtreme deprivations are required to 

make out a conditions-of-confinement claim. . . . In the excessive force 

 14 

between the terms of art invoked in Farmer and Hudson 

and in this case makes resort to maxim even more 

unreliable. 

Fourth, as evidenced by the Supreme Court's opinion in 

McCarthy, the phrase "conditions of confinement," which 

Booth would have us equate with the phrase "prison 

conditions," is not so commonly understood. In McCarthy-- 

which was decided near the time that Farmer and Hudson 

were, but prior to the PLRA's enactment--the Supreme 
Court had to interpret the phrase "petitions challenging 

conditions of confinement" in 28 U.S.C. S 636(b)(1)(B). As 

noted above, the Court read the phrase to include 

challenges not only to ongoing prison conditions, but also 

to isolated episodes of allegedly unconstitutional conduct 

by prison officials, such as assault. See id. at 141-43. 

Judge Mukasey put it well in Beeson when he wrote, "the 

Court [in McCarthy] made absolutely no mention of the 

supposedly familiar distinction between excessive force 

claims and conditions of confinement claims, despite 

effectively being presented with the issue squarely." 28 F. 

Supp. 2d at 891 (citation omitted). The fact that the terms 

"prison conditions" and "conditions of confinement" seem to 

have different meanings in different contexts again makes 

invocation of the maxim of interpretation inappropriate. 

With Farmer and Hudson cast in their proper light, we 

are confident in holding that S 1997e(a)'s exhaustion 

requirement does apply to excessive force claims. 8 As we 

_________________________________________________________________ 

context, society's expectations are different." 503 U.S. at 9 (emphasis 

added). In Farmer, the Court wrote, "In its prohibition of `cruel and 

unusual punishments,' the Eighth Amendment places restraints on 

prison officials, who may not, for example use excessive physical force 

against prisoners. The Amendment also imposes duties on these officials, 

who must provide humane conditions of confinement . . . ." 511 U.S. at 

832 (citation omitted) (emphasis added). 

8. In reading Farmer and Hudson, we do not believe that we have blurred 

the distinction drawn by these cases between excessive force actions and 

conditions-of-confinement actions. Those distinctions, of course, still 

obtain in substantive eighth amendment jurisprudence. However, for the 

many reasons detailed in the text, that distinction appeared not to be on 

Congress's mind--nor did it control Congress's hand--when it crafted 

the procedural bars it did in the PLRA. 

 15 

hold that Booth's S 1983 excessive force action is governed 

by S 1997e(a), we turn our attention to whether S 1997e(a)'s 

exhaustion requirement bars it. Before doing so, we

address (in the margin) another argument advanced by the 

dissent in support of Booth's reading of the "prison 

conditions" language in the PLRA.9 

_________________________________________________________________ 

9. The dissent reasons that in enacting the PLRA Congress was 

concerned only with frivolous prisoner lawsuits, such as those 

enumerated in note 5, supra, rather than" `brutal violations of prisoners' 

rights,' " Dissent at 24 (quoting 141 Cong. Rec. S14408-01, S14418 

(Sept. 27, 1995) (Sen. Hatch)). Therefore, it concludes, S 1997e(a) was 

not intended to encompass excessive force claims. Wefind three things 
wrong with this argument. 

First, in recounting the large number of lawsuits brought by prisoners 

in the few years preceding the passage of the PLRA, several members of 

Congress cited statistical evidence regarding the number of actions filed 

by prisoners, and the crushing burden these suits have on federal 

courts. See Blas v. Endicott, 31 F. Supp. 2d 1131, 1133 n.4 (E.D. Wis. 

1999) (collecting examples of this legislative history). The statistical 

studies they cited did not distinguish between conditions-of-confinement 

actions and excessive force actions, or even those addressing the brutal 

violations of prisoners' rights. See, e.g., 141 Cong. Rec. S3703 (daily 

ed. 

Apr. 19, 1996) (statement of Sen. Abraham) (noting that "[i]n 1995, 

65,000 prisoner lawsuits were filed in federal courts alone" without 

distinguishing among the many types of suits filed); 141 Cong. Rec. 

S14626-27 (daily ed. Sept, 27, 1995) (statement of Sen. Hatch) 

(cataloguing the some 39,000 non-habeas lawsuitsfiled by inmates in 

federal courts in 1994, and, as with Sen. Abraham, not distinguishing 

between conditions-of-confinement actions and excessive force actions). 

The way this data was presented supports the conclusion that S 1997e(a) 

applies to all prisoner lawsuits, all of which have the potential to be 

frivolous and unduly burden courts, rather than a particular 

subcategory of claims, as the dissent contends. 

Second, examination of the PLRA's legislative history reveals that 

opponents of the PLRA objected to it on the ground that it would 

frustrate prisoners in their attempts to pursue meritorious S 1983 

excessive force actions. See 141 Cong. Rec. S14628 (1995) (statement of 

Sen. Biden) (discussing two prison assault cases as examples of 

meritorious suits that would be hindered by passage of the PLRA). These 

remonstrations--and Congress's failure to heed them--suggest that, in 

enacting the PLRA, Congress knew what it was doing, and intended that 

excessive force actions be subject to the exhaustion requirements in 

S 1997e(a). 

 16 

III. 

Turning our attention to the application of S 1997e(a) to 

Booth's action, Booth concedes that he did not take full 

advantage of the administrative procedures available to him 

at Smithfield. After he was allegedly assaulted by the 

Defendants, he filed several administrative grievances with 

the Commonwealth of Pennsylvania's Department of 

Corrections Consolidated Inmate Grievance System (the 

Inmate Grievance System). When his requests for relief 

were denied, however, he failed to appeal those decisions as 

_________________________________________________________________ 

Third, sections of the PLRA other than S 1997e(a) address the 

frivolous/non-frivolous lawsuit distinction to which the dissent is so 
attuned. See Dissent at 22-24. For example, 42 U.S.C. S 1997e(c)(1) 

empowers district courts to dismiss frivolous claims, of the chunky 

peanut butter variety, sua sponte. Similarly, 28 U.S.C. S 1915(b) 

discourages inmates from filing frivolous suits by forcing inmateplaintiffs proceeding in forma pauperis to pay court costs and filing 

fees. 

Lastly, 28 U.S.C. S 1915(g) closes the door, absent exceptional 

circumstances, to inmate-plaintiffs who previously have brought three 

frivolous lawsuits. 42 U.S.C. S 1997e(a), by contrast, makes no mention 

of the word "frivolous." Nor does it except from its broad swath actions 

with respect to " `brutal violations of prisoners' rights,' " Dissent at 5 

(citation omitted), as other sections of the PLRA, such as 28 U.S.C. 

S 1915(g), explicitly do, see 28 U.S.C. S 1915(g) (allowing a inmateplaintiff who has previously brought three frivolous actions to bring a 

subsequent civil action if he is "under imminent danger of serious 

physical injury"). 

If anything, S 1997e(a)'s mandatory exhaustion requirement enables 

district courts hearing these prisoner claims to distinguish better 

between frivolous and meritorious ones. As we noted recently in Nyhuis 

v. Reno, "The administrative process can serve to create a record for 

subsequent proceedings, it can be used to help focus and clarify poorly 

pled or confusing claims, and it forces the prison to justify or explain 

its 

internal procedures." No. 98-3543, 2000 WL 157531, at *10 (3d Cir. Feb. 

15, 2000). The administrative process therefore makes prisoner litigation 

claims more transparent and easier to review. Operating effectively, the 

administrative process should also afford district courts more time to 

address the serious concerns raised by meritorious claims. As Nyhuis 

further noted, S 1997e(a)'s exhaustion requirement was, in part, designed 

to provide federal courts more time to deal with such actions. See id. at 

*7-10. 

 17 

was his right under the Inmate Grievance System. See 

supra note 2 (discussing the two-stage appellate process). 

Again, S 1997e(a) provides that 

 No action shall be brought with respect to prison 

 conditions under section 1983 of this title, or any other 

 federal law, by a prisoner confined in any jail, prison, 

 or other correctional facility until such administrative 

 remedies as are available are exhausted. 

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

Booth reads this language to mean that he did not need 

to take advantage of the Inmate Grievance System's 

administrative procedures because they could not provide 

him with the monetary relief that he sought in his federal 

action. For this proposition he cites, among other cases, 
Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), Lunsford v. 

Jumao-As, 155 F.3d 1178 (9th Cir. 1998), and Garrett v. 

Hawk, 127 F.3d 1263 (10th Cir. 1997). These cases hold 

that when a prison's internal grievance procedure cannot 

provide an inmate-plaintiff with the pure money damages 

relief he seeks in his federal action, exhaustion of those 

administrative remedies would be futile.10 

_________________________________________________________________ 

10. The Defendants argue that Booth requested only injunctive relief in 

his complaint, and thus he did not request remedies"not available" in 

the state's administrative process. Although Booth's pro se complaint 

form does not include a specific request for damages, the thirty some 

pages attached thereto make several references to personal injuries and 

make three separate claims for monetary relief. See supra Part I. 

Construing Booth's pro se complaint liberally, as we must, see, e.g., 

Urrutia v. Harrisburg County Police Dep't., 91 F.3d 451, 456 (3d Cir. 

1996), we conclude that he did request monetary relief in his original 

complaint, when that complaint is viewed as a whole. Moreover, even if 

Booth's initial complaint failed to allege money damages, the record 

shows that he amended his complaint to include a request for damages, 

as was his right under FED. R. CIV. PRO. 15(a). In separate pleadings 

filed 

seven days and a month after his original complaint, Booth again made 

reference to his allegations regarding money damages. FED. R. CIV. PRO. 

15(a) provides that "[a] party may amend the party's pleading once as a 

matter of course at any time before a responsive pleading is served . . . 

." 

Judging from the docket entries, the Defendants served no responsive 

pleadings between the time Booth filed his April 21, 1997 complaint and 

the time that he filed these later pleadings. 

 18 

Our recent opinion in Nyhuis v. Reno, No. 98-3543, 2000 

WL 157531, at *5 (3d Cir. Feb. 15, 2000), rejected the 

narrow futility exception recognized in Whitley , Lunsford, 

and Garrett; and the rule announced in Nyhuis is 

dispositive in this case. In Nyhuis, we held that "the PLRA 

amended S 1997e(a) in such a way as to make exhaustion 

of all administrative remedies mandatory--whether or not 

they provide the inmate-plaintiff with the relief he says he 

desires in his federal action." Id. at *1. In a lengthy opinion, 

we detailed the many arguments supporting our position, 

and ultimately rejected the approach taken by courts 

recognizing the futility exception. See id. at *5-11. 

Although Nyhuis involved a Bivens action brought by a 

federal inmate, the rule we announced in Nyhuis has equal 

force in the S 1983 context, for S 1997e(a), which applies to 

actions brought by a prisoner "under section 1983 of this 

title, or any other federal law," treats Bivens actions and 
S 1983 actions as functional equivalents. See Nyhuis, 2000 

WL 157531, at *3; Lavista v. Beeler, 195 F.3d 254, 256 (6th 

Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1324-25 

(11th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66 

(10th Cir. 1997). Indeed, the Nyhuis rule has even greater 

force with respect to S 1983 actions. First, as we explained 

in Nyhuis, additional comity considerations obtain in the 

S 1983 context--which are not implicated by a Bivens 

action--given the strength of the interest that state prisons' 

and state courts' have in resolving complaints filed by state 

prisoners. See Nyhuis, 2000 WL 157531, at *9 n.11 (citing 

Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) 

(discussing these comity concerns)). 

Second, additional federalism and efficiency 

considerations are implicated when reviewing S 1983

actions--as compared to Bivens actions--because of the 

greater difficulty federal courts may have in interpreting 

and/or predicting the contours of state law and state 

administrative regulations and practices. See id. at *9 n.10 

and accompanying text. As we noted in Nyhuis, the 

Supreme Court has "made it clear that `in the absence of a 

plain indication to the contrary,' Congress should not be 

understood to `mak[e] the application of[a] federal act 

dependent on state law.' " Id. at *9 n.10 (quoting Mississippi 

 19 

Choctaw Indian Band v. Holyfield, 490 U.S. 30, 43 (1989)) 

(emphasis added by Nyhuis) (citations and internal 

quotations omitted). In drafting the PLRA, "Congress gave 

no indication--let alone a `plain indication'--that

application of S 1997e(a) should depend on the vagaries of 

state law." Id. For these reasons, we therefore hold that the 

rule we announced in Nyhuis applies here. 

As in Nyhuis, because Booth "failed . . . to exhaust his 

available administrative remedies (rather than those he 

believed would be effective)" before filing hisS 1983 action, 

the District Court appropriately dismissed his action 

without prejudice. Id. at *11. Accordingly, the order of the 

District Court will be affirmed. 

 20 

NOONAN, Circuit Judge, concurring and dissenting: 

The crux of the case is what Congress meant by the 

statutory term "prison conditions." Of the two words, 

"conditions" is the key. The noun is plural. It is equivalent 

to "circumstances." It does not identify a single or 

momentary matter. Webster's provides us with six 
definitions. Five are not germane. The relevant definition is 

"existing state of affairs," as in the common phrases "living 

conditions," "playing conditions," "adverse weather

conditions." A slight variant of this definition is "something 

needing remedy," as in the sentence, "Trains were late to 

Philadelphia because of conditions on the Main Line." As 

these instances suggest, "conditions" are circumstances 

affecting everyone in the area affected by them. 

"Conditions" affect populations, large or small. 

The statute thus gives us a noun of established meaning 

and frequent use. This noun is modified by a second noun, 

"prison." No ambiguity exists as to its meaning. It identifies 

the affected population. We have, then, a statutory term 

"prison conditions" that can only mean "a state of affairs in 

a prison" or "something needing remedy in a prison." The 

slight variation does not alter the sense conveyed by 

"conditions" of more than a momentary event;"conditions" 

means something that has continued in effect for a period. 

A punch on the jaw is not "conditions." A punch in the 

jaw in prison is not "prison conditions." A punch on the jaw 

is an act. Churner's alleged busting of Booth's mouth is not 

a state of affairs. Circumstances in the plural are not at 

issue. No population is affected. An individual alone is 

involved. That Churner's alleged blow took place in a prison 

does not make it "prison conditions." Reading the statute as 

it is written it is next to impossible to characterize Booth's 

complaint of a specific battery as a suit "with respect to 

prison conditions." 

The court rightly notes that we may aid our reading by 

consulting another section of the statute where Congress 

has defined "prison conditions" for another purpose. It 

makes good sense to assume that the definition applies 

throughout the statute and to use the definition whenever 

"prison conditions" are mentioned. 

 21 

In S 3626(g)(2) Congress defined "prison conditions" as 

"conditions of confinement or the effects of actions by 

government officials on the lives of persons confined in 

prison." The definition is good evidence that when Congress 

wanted to extend the meaning of "prison conditions"

beyond the ordinary sense of the phrase it knew how to do 

so. In this definition, Congress did not extend the meaning 

of "prison conditions" to include acts of battery carried out 

by officers of a prison. The statutory phrase"conditions of 

confinement" does not encompass specific batteries.

"Conditions of confinement" is no more apt than "prison 

conditions" to designate an act of battery. The use of 

"conditions" constrains the sense so that what is meant is 
a continuing state of affairs. The court concedes that this 

part of the statutory definition has no application here. 

The court invokes McCarthy v. Bronson, 500 U.S. 136

(1991), but then does not rely on the statutory language 

there construed but on the alternative definition afforded by 

the statute. This definition defines prison conditions as "the 

effects of actions by government officials on the lives of 

persons confined in prison." What are actions by 

government officials that impact the lives of prisoners and 

appropriately fit within the framework of conditions? 

Illustrations are afforded by a proponent of the PLRA, 

Senator Abraham: "how warm the food is, how bright the 

lights are, whether there are electric lights in each cell, 

whether the prisoners' hair cut is by licensed barbers," 

these are "the conditions" regarding which prisoner

litigation has occurred and courts have intervened because 

of the effect of these conditions on prisoners' lives. 142 

Cong. Rec. S10576-02, S10576 (Sept. 16, 1996). To take 

another illustration, "even worse" according to Senator 

Abraham, is a judge releasing prisoners "to keep the prison 

population down to what the judge considered an 

appropriate level." Id. In each of these instances an action 

by a government official -- to provide a kitchen or delivery 

service leading to lukewarm food; or to save on electricity; 

or to employ unlicensed barbers; or to admit more 

prisoners than the prison was designed for -- has an 

impact on prisoners' lives and creates conditions that, but 

for the PLRA, might become the subject of a suit. Other 

actions having an effect on prisoners' lives and referenced 

 22 

by Senator Reid, are these: a prison official decides to 

provide creamy peanut butter instead of chunky or provides 

chunky peanut butter instead of creamy; a prison official 

decides not to offer salad bars or weekend brunches; a 

prison official decides to play classical music on the prison 

stereo system. 141 Cong. Rec. S14611-01, S14627 (Sept. 

29, 1995). These actions indubitably had an effect on 

prisoners' lives by creating conditions that, prior to passage 

of the PLRA, gave rise to prison litigation. In no way are any 

of these actions comparable to specific acts of intentional 

violence. Brutal batteries are far removed from what the 

sponsors said was on their minds. The senators chose 

language for the statute mirroring their concerns. 

Snippets of legislative history such as these are not 

necessary to explain the statutory phrase. They are, 

however, to the point in a way that interpretations of the 

legislation offered in by its opponents in debate are not. 

They are, moreover, illuminating as to why Congress had to 

use fifteen words in a seemingly elephantine way to define 
the suits Congress wanted to restrain. The multitude of 

trivial occasions that might affect prisoners' lives could only 

be captured by a calculated comprehensiveness that 

excludes individual acts of rape or beating. 

A guard hits you on the mouth. Would you report the

blow by saying, "A government official has taken an action 

having an effect on my life?" No speaker of English would 

use such a circumlocution. Why should we attribute such 

circuitousness to Congress? When bones are broken or 

mouths are mauled, no one on earth, educated or 

uneducated, would use such roundabout phraseology to 

express the blow. 

The supposition that Congress spoke so ineptly may be 

sustained by the suspicion that Congress wanted to get rid 

of all prisoner litigation, therefore Congress must have 

intended to embrace allegations of specific acts of battery. 

As a guess at unarticulated policy, such speculation has its 

attraction. The suspicion is dispelled by leading sponsors of 

the PRLA such as the chairman of the Senate Judiciary 

Committee, Senator Hatch. As he put it when offering the 

bill for the first time in 1995: "Our legislation will also help 

restore balance to prison conditions litigation and will 

 23 

ensure that federal court orders are limited to remedying 

brutal violations of prisoners' rights." 141 Cong. Rec. 

S14408-01, S14418 (Sept. 27, 1995). As he summarized 

the sponsors' intent: "I do not want to prevent inmates from 

raising legitimate claims. This legislation will not prevent 

those claims from being raised." 141 Cong. Rec. S14611- 

01, S14662 (Sept. 29, 1995). The sponsors of the bill were 

neither inhumane nor insensitive nor determined to 

foreclose federal fora to claims of unconstitutional acts of 

cruelty. 

The legislative history serves to refute a suspicion 

unsupported by the statutory text. As a guide to a fair 

reading of the English language in the statute before us, 

the suspicion is mischievous. It leads to a construction of 

language that cannot be sustained. The canons of 

construction of our native tongue should not be contorted 

to deny a remedy that a conscientious Congress continues 

to provide. 

There are, to be sure, issues raised as to prison 

conditions in Booth's amended complaint -- the state of the 

prison library, for example, Booth's need for a paralegal, or 

the failure of prison authorities to prevent alleged beatings. 

No cause of action against Superintendent Morgan, Captain 

Gardner or Sergeant Workensher can be discerned that 
does not fall within the meaning of prison conditions. These 

complaints Booth should have processed through the 

prison grievance system. Failing to do so, Booth cannot 

pursue them now. As to these claims, I concur with the 

court. But that he put these matters into his complaint 

does not mean that he forfeits the claims whose treatment 

was not required to begin administratively. As to Lieutenant 

Rikus, no specific injury is alleged for which compensation 

is asked. The complaint here, too, is properly dismissed. 

The allegations against Churner, Robinson and Thomas 

survive. As to them I respectfully dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 24