### 2000 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-7-2000 

# B o oth v . C h ur ne r

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-7487

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2000

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2000 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" Booth v . C h ur ne r " (2000). 2000 D e cisio n s

. P a pe r 46.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2000/46Filed 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 th e 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 17120Attorneys 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 righ ts action presents two important questions about the meaning of the mandatory administrative exhaustion requirement in the Prison Litigation Reform Act of 1996 (the PLRA). Bo oth alleges that while he was confined in the Commonwea lth of Pennsylvania's State Correctional Institute at Smit hfield, several prison guards, on several occasions, punche d him in the face, threw cleaning material in his face, s hoved him into a shelf, and tightened and twisted his handcuf fs in such a manner as to injure him. Asserting his Eight h 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 withoutfi rst exhausting the administrative remedies available to him at

Smithfield. Because of this failure to exhaust his administrative remedies, the District Court dismiss ed 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 cond itions under section 1983 of this title, or any other Fede ral law, by a prisoner confined in any jail, prison, or othe r

2

correctional facility until such administrative rem edies 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 e xcessive force actions; i.e., whether excessive force is a"p rison 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 i n analyzing his action under S 1997e(a). We reject th is argument and hold that S 1997e(a) applies to excess ive force actions. We base this decision on the plain m eaning of the language of the PLRA, case law from our sist er circuits, and recent Supreme Court precedent interp retingsimilar prisoner litigation legislation.

The second question raised by Booth's appeal has to do with the application of S 1997e(a)'s exhaustion req uirement. Booth argues that even if S 1997e(a) applies to his action, exhaustion would have been futile, because the avai lable administrative process could not provide him with t he 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 f ederal inmate, in which we held that "the PLRA amended S 1997e(a) in such a way as to make exhaustion of a ll administrative remedies mandatory--whether or not t hey provide the inmate-plaintiff with the relief he say s he

desires in his federal action." Id. at *1. The reas oning of Nyhuis applies equally in the S 1983 context, as S 1997e(a)

treats Bivens actions and S 1983 actions as functio nal equivalents. Nyhuis is therefore controlling in thi s case.

Accordingly, even though this is an excessive force action, and even though the Commonwealth of

3

Pennsylvania's inmate grievance process could not p rovide Booth with the money damages he sought, we hold tha t Booth was required by S 1997e(a) to exhaust the administrative remedies available to him prior tofi ling this action. Because he admittedly has not done so, we w ill affirm the judgment of the District Court.1

I.

On April 21, 1997, Booth began this action in the D istrict Court, using a form provided by the court to prison ers 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 defenda nts. He stated that he had presented the facts of the ca se in the state prisoner grievance procedure and that his all egations were "dismissed or covered up." He added,"There isn 't any help because of retaliation because I spoke up abou t abuse and corruption." In the space provided for "Parties " he added Superintendent Morgan to the list of defendan ts. In the space labeled "Statement of Claim" he wrote not hing. In the space labeled "Relief " he asked both for a "pr eliminary injunction," and for a "protection order for transf er to another prison as my safety and life is at stake."In a handwritten document filed with his form compl aint,

Booth alleged the following facts, which gave rise to his S 1983 action. He first complained that, in April 1 996, he had been "assaulted by a Sgt Robinson and a C/O nam ed Thomas . . . ." As a result of that assault, he all eges, he has "a shoulder that slips in and out." Subsequent to t hat incident, he contends, he was denied an operation o n his shoulder with "deliberate indifference to [his] sho ulder 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 m aterial

in his face.

Booth further claimed that on February 7, 1997, aft er an

___________________________________________________ ______________

1. We express our appreciation to Nancy Winkelman, Esquire, who, acting pro bono at the request of the court, repres ented Mr. Booth both ably and zealously.

4

exchange of words with Lieutenant Rikus, Rikus shov ed him into the shelf in the storage room and Thomas p ushed him into a door, while Sergeant White looked on. He alleges that shortly thereafter he was taken back to his ce ll, 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 an d Corrections Officer Kulian watched. As a result, he contends, his mouth "was busted open" and he receiv ed 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 damage s in different amounts; he also asked for an order to im prove the prison law library and to fine prison officials for contempt of court, for an order to hire paralegal a ssistance 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 transfer red to another jail, appointment of counsel, a pretrial he aring, adisclosure order for prison records, and $400,000 f or

"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, a s it had the power to do under 42 U.S.C. S 1997e(c). The rat ionale

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 Cou rt
observed that at the time Booth filed his action th e 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 s econd 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 submitte d, in writing, for initial review to the Facility/Regional Grievance C oordinator, within fifteen days after the events upon which the claims are based. See Commonwealth of Pennsylvania, Department of Correct ions, Consolidated Inmate Grievance Review System, Policy No. DC-ADM 804 SS VI.A.1, VI.B.2. (Oct. 20, 1994). Extensions of t his time period may be granted for good cause. See id. S VI.B.2.

The procedures for filing such a claim are straight forward. Once submitted, the grievance is investigated and person s having personal knowledge of the subject matter may be interviewed. See id. S VI.B.3. If the grievant requests a personal interview, the pol icy 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 inc lude 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 det ermination, the grievant

may appeal the determination to the appropriate int ermediate review personnel. See id. SS VI.C.1, 2. The intermediate r eview 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 reas signment for further fact finding, and must include a brief statement of the reasons for thedecision." Id. In the third, and final, step of the process, "[a]ny inmate

who is dissatisfied with the disposition of an Appe al from an Initial Review decision, may, within seven (7) days of rece iving the decision, appeal [to the Central Office Review Committee (the CORC)] . . . for final review." Id. S VI.D.1. Absent good cause, final rev iew is not permitted if a grievant has not complied with the procedures gov erning 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 invest igation 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, rem and 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 o f an appeal, and it

must include a brief statement of the reasons for t he 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 avail able remedies, dismissal was required by S 1997e(a). In reaching this conclusion, the District Court assumed, withou t 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 mo tion. Booth moved to amend his complaint, and on July 17, 1997, this motion was "dismissed as moot, as plaint iff 's case was closed on May 30, 1997." Booth thereafter appealed. The District Court had jurisdiction pursu ant to 28 U.S.C. S 1331. We have appellate jurisdiction pu rsuant
to 28 U.S.C. S 1291.3

II.

We first examine whether the words "action . . . wi th respect to prison conditions" in S 1997e(a) were in tended to apply to excessive force actions such as Booth's. S ection 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 j ail, prison, or other correctional facility until such ad ministrative

remedies as are available are exhausted.

___________________________________________________ ______________

3. The District Court dismissed Booth's S 1983 clai m without prejudice. To be appealable under 28 U.S.C. S 1291, an order o f dismissal must ordinarily be with prejudice. See, e.g. , Bahtla v. U.S. Capital Corp.,

990F.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 gene ral rule. We noted that a plaintiff can appeal from a dismissal withou t 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 Beth el 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 87 4, 878 (3d Cir. 1990) (same). These two conjunctive preconditions are cle arly 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 withou t amendment." Additionally, both parties agree that the time is l ong past for Booth to pursue his normal administrative remedies; therefor e, he cannot cure the defect in his complaint on which the District C ourt 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 b y S 1997e(a) for three reasons. First, he contends th at the words "prison conditions" simply cannot be read to include a prison guard's intentional act of violence. Secon d, he argues that, when one reads the PLRA and its legisl ative history as a whole, there is no basis to conclude t hat S 1997e(a) was meant to reference claims of excessi ve force. Third, Booth points to two recent Supreme Court cas es, 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. Bo oth submits that, in enacting the PLRA, Congress evince d 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 employe d in drafting that section. Congress, however, defined t he term "civil action with respect to prison conditions" in another section of the PLRA, 18 U.S.C. S 3626(g)(2), and th us spared us from that inquiry, see Freeman v. Francis , 196 F.3d 641, 644 (6th Cir. 1999) (holding that "the sc ope of S 1997e(a)'s exhaustion requirement is determined b y the definition of a `civil action with respect to priso n conditions' as set forth in S 3626(g)(2)").

To borrow from the Supreme Court in Sullivan v. Str oop, "[t]he substantial relation between the two[provisi ons in the PLRA] presents a classic case for application o f the normal rule of statutory construction that identica l wordsused in different parts of the same act are intende d to have

the same meaning." 496 U.S. 478, 484 (1990) (citati ons and internal quotations omitted). The PLRA not only ame nded

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 respec t to prison

8

conditions." Like S 1997e, S 3626 curbs the extent to which federal prison litigation interferes with the state s' and the federal government's administration of their own pr isons.

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 a t
644.

Section 3626(g)(2) provides that

the term "civil action with respect to priso n conditions" means any civil proceeding arising under Fed eral law with respect to the conditions of confinemen t or the effects of actions by government officials o n the lives of persons confined in prison, but does not inc lude habeas corpus proceedings challenging the fa ct 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 diffe rently, actions arising under this clause relate to the env ironment in which prisoners live, the physical conditions of that environment, and the nature of the services provide d therein. Booth's allegations that prison guards use d excessive force against him do not naturally fall i nto this

class of actions.

Booth's action does, however, fit neatly into the l anguage in S 3626(g)(2) following the "or," which refers to any civil action with respect to "the effects of actions by g overnment officials on the lives of persons confined in priso n." 18 U.S.C. S 3626(g)(2). We read this clause to refer t o civil actions ranging from excessive force actions, such as Booth's, to actions "with respect to" a prison offi cial's decision not to make basic repairs in the prison, o rintentionally 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. Bron son, 500 U.S. 136, 137 (1991), the Court was faced with a si milar 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 petitio ns challenging conditions of confinement." In ruling o n the scope of S 636(b)(1)(B), the unanimous Court interp reted 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 reg arding "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 t hat the most natural reading of the phrase "challeng ing conditions of confinement," when viewed in i solation, would not include suits seeking relief from isolated episodes of unconstitutional conduct. Howeve r, statutory language must always be read in it s proper

context. . . .

The text of the statute does not define the term "conditions of confinement" or contain any l anguage suggesting that prisoner petitions should be divided into subcategories. On the contrary, when th e relevant section is read in its entirety, it suggests that Congress

intended to authorize the nonconsensual refe rence of all prisoner petitions to a magistrate.

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

As compared to the statute in McCarthy, Congress, i n the PLRA, made its intent to subject all prisoner actio ns (save for habeas petitions) to S 1997e(a)'s exhaustion requirements even more clear. It did so by employin g the language it did in S 3626(g)(2). In S 3626(g)(2), C ongress included both the "conditions of confinement" langu age, which was enough in McCarthy to encompass all priso ner

10petitions, and the "effects of actions by governmen t

officials" language, which, on natural reading, mor e closely refers to isolated episodes of unconstitutional con duct at the hands of prison officials--such as the instance s of unconstitutional excessive force alleged in the cas e at bar. The addition of the language in S 3626(g)(2) avoids the plain meaning problem with the statute at issue in McCart hy, and it clarifies Congress's intent to subject all i nmate actions to the PLRA's exhaustion requirement.

The context of the PLRA supports this conclusion. T he PLRA was plainly intended, at least in part, to"red uce 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 f rom the aegis of the PLRA. Therefore, we believe that the e xpansive and somewhat overlapping language Congress employed in S 3626(g)(2) must be read--naturally and in its pro per context--to encompass all prisoner petitions.

The only court of appeals explicitly to address the question agrees with our conclusion. Relying on McC arthy and the definition of "action with respect to priso n conditions" in S 3626(g)(2), the Court of Appeals f or the Sixth Circuit recently held "that the term `prison conditions'

as used in S 1997e includes claims of excessive for ce . . . ." Freeman, 196 F.3d at 644. The Courts of Appeals for the Fifth and Tenth Circuits have implicitly reached th e same conclusion--that excessive force actions are "priso n conditions" actions and subject to the exhaustion requirements set forth in S 1997e(a)--without discu ssing the precise argument raised by Booth and adopted by the dissent. See Wendell v. Asher, 162 F.3d 887, 889, 8 91-92 (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 prese nted 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 ap peal on other grounds);

11

adoption of Booth's position.5

___________________________________________________ ______________Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (r ecognizing that the

law concerning the PLRA's "action . . . with respec t to prison conditions" language was in flux, but refusing to resolve the q uestion "without the benefit of a more complete record"); Rumbles v. Hil l, 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 th e issue. Those holding that excessive force actions fall under S 1997e(a) include the District Court in the present appeal, Beeson v. Fishkill Cor rectional Facility, 28

F. Supp. 2d 884 (S.D.N.Y. 1998) (Mukasey, J.), and Joh nson v. Garraghty, 57 F. Supp. 2d 321 (E.D. Va. 1999) (Ellis, J.). The se 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 30 5 (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 o ur 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 no t 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 confineme nt' [in S 3626(g)(2)] do[es] not encompass specific batteries." Dissent a t 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 whe ther this language was employed in the context of the statute to conno te 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 i ts reading.)

Addressing the second half of the definition provid ed in S 3626(g)(2), the dissent continues: "A guard hits you on the mou th. Would you report the blow by saying, `A government official has take n 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 disse nt 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 pris on condition claims. When pressed by logic, however, t hisargument proves as brittle as the analysis it was e rected to

support.

A familiar maxim of statutory construction provides that " `[w]here Congress uses terms that have accumulate d settled meaning under either equity or the common l aw, a court must infer, unless the statute otherwise dict ates, that Congress means to incorporate the established meani ng of these terms.' " United States v. Rosero , 42 F.3d 1 66, 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 cla ims and excessive force claims, and treated the two typ es of claims differently. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Hudson v. McMillian, 503 U.S. 1, 9 (199 2).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 o r a blow to the body. Id. at 22-23 (citing 141 Cong. Rec. S14611-01, S146 27 (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 excess ive force, see supra Section II.A. If one were to accept the dissent's n arrower reading of S 3626(g)(2), the two clauses employed inS 3626(g)( 2) would be narrower

than the lone "conditions of confinement" clause em ployed by Congress in McCarthy, 500 U.S. at 139-44. See supra Section II.B (discussing McCarthy). The claim that the addition of the"effec ts of acts of government officials" clause renders the scope of S 3626(g)(2) narrower than the provision at issue in McCarthy is unconvin cing, especially when the additional clause in S 3626(g)(2) clearly broad ens the scope of the

section.

6. In Hudson, 503 U.S. at 9, the Supreme Court dist inguished the "extreme deprivations" that are necessary to make o ut a "conditions-of-

13

From the distinction drawn by the Court in Farmer a nd Hudson, Booth reasons that if Congress intended to eliminate that distinction in S 1997e(a) between ex cessive force and prison condition claims it would have mad e its intentions explicit.There are four things wrong with this argument. Fir st,

and most obvious, Congress made its intentions clea r regarding what "actions with respect to prison cond itions" meant in S1997e(a), by defining that term expressly and expansively in S 3626(g)(2). Congress's explicit la nguage 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 i n the nature of the power allocated to the courts and Con gress in our tripartite federal system. As Judge Mukasey not ed in his forceful opinion in Beeson v. Fishkill Correcti onal Facility, which held that S 1997e(a) applied to exc essive force claims, "a court's responsibility in reading S 1997e is to determine the intent of Congress when it referre d to `prison conditions' in the statute, not the intent of the Supreme Court when it used a similar, but not ident ical, term in a case decided before the statute was passe d." 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, fir mly

established in the annals of the common law. In fac t,
Farmer and Hudson refer to "conditions of confineme nt" claims, not "prison conditions" claims.7 The differ ence

___________________________________________________ ______________

confinement claim" from the lesser showing necessar y to make out an excessive force claim. In Farmer, 511 U.S. at 835-3 6, the Court again relied upon this distinction to hold that the menta l state necessary to

make out an excessive force claim was lesser than t he showing required

to establish a conditions-of-confinement claim.

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

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

14

between the terms of art invoked in Farmer and Huds on 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," w hich Booth would have us equate with the phrase "prison conditions," is not so commonly understood. In McCa rthy--

which was decided near the time that Farmer and Hud son were, but prior to the PLRA's enactment--the Suprem eCourt had to interpret the phrase "petitions challe nging

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, b ut also to isolated episodes of allegedly unconstitutional conduct by prison officials, such as assault. See id. at 1 41-43. Judge Mukasey put it well in Beeson when he wrote, "the Court [in McCarthy] made absolutely no mention of t he supposedly familiar distinction between excessive f orce claims and conditions of confinement claims, despit e effectively being presented with the issue squarely ." 28 F. Supp. 2d at 891 (citation omitted). The fact that t he terms "prison conditions" and "conditions of confinement" seem to have different meanings in different contexts again makes invocation of the maxim of interpretation inappropr iate.

With Farmer and Hudson cast in their proper light, we are confident in holding that S 1997e(a)'s exhausti on 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 prohibi tion of `cruel and unusual punishments,' the Eighth Amendment places r estraints on prison officials, who may not, for example use exce ssive physical force against prisoners. The Amendment also imposes dutie s 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 excess ive force actions and

conditions-of-confinement actions. Those distinctio ns, of course, still obtain in substantive eighth amendment jurisprudenc e. 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 1 997e(a)'s exhaustion requirement bars it. Before doing so, we address (in the margin) another argument advanced b y the dissent in support of Booth's reading of the "priso n conditions" language in the PLRA.9

___________________________________________________ ______________

9. The dissent reasons that in enacting the PLRA Co ngress was concerned only with frivolous prisoner lawsuits, su ch as those enumerated in note 5, supra, rather than" `brutal v iolations of prisoners' rights,' " Dissent at 24 (quoting 141 Cong. Rec. S1 4408-01, S14418 (Sept. 27, 1995) (Sen. Hatch)). Therefore, it concl udes, S 1997e(a) was not intended to encompass excessive force claims. W efind three thingswrong with this argument.

First, in recounting the large number of lawsuits b rought by prisoners in the few years preceding the passage of the PLRA, several members of Congress cited statistical evidence regarding the n umber of actions filed by prisoners, and the crushing burden these suits h ave on federal courts. See Blas v. Endicott, 31 F. Supp. 2d 1131, 1133 n.4 (E.D. Wis. 1999) (collecting examples of this legislative hist ory). The statistical studies they cited did not distinguish between cond itions-of-confinement actions and excessive force actions, or even those addressing the brutal violations of prisoners' rights. See, e.g., 141 Con g. Rec. S3703 (daily

ed.

Apr. 19, 1996) (statement of Sen. Abraham) (noting that "[i]n 1995, 65,000 prisoner lawsuits were filed in federal cour ts 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 lawsuitsfil ed by inmates in federal courts in 1994, and, as with Sen. Abraham, not distinguishing

between conditions-of-confinement actions and exces sive force actions). The way this data was presented supports the conclu sion 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 p articular subcategory of claims, as the dissent contends.

Second, examination of the PLRA's legislative histo ry reveals that opponents of the PLRA objected to it on the ground that it would frustrate prisoners in their attempts to pursue mer itorious 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 exhaustio n 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 availabl e to him at Smithfield. After he was allegedly assaulted by the Defendants, he filed several administrative grievan ces with the Commonwealth of Pennsylvania's Department of Corrections Consolidated Inmate Grievance System (t he Inmate Grievance System). When his requests for rel ief were denied, however, he failed to appeal those dec isions as

___________________________________________________ ______________

Third, sections of the PLRA other than S 1997e(a) a ddress the frivolous/non-frivolous lawsuit distinction to whic h the dissent is soattuned. See Dissent at 22-24. For example, 42 U.S. C. S 1997e(c)(1)

empowers district courts to dismiss frivolous claim s, 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 cour t 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 contra st, makes no mention of the word "frivolous." Nor does it except from it s 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 frivolou s actions to bring a subsequent civil action if he is "under imminent da nger of serious physical injury").

If anything, S 1997e(a)'s mandatory exhaustion requ irement enables district courts hearing these prisoner claims to di stinguish better

between frivolous and meritorious ones. As we noted recently in Nyhuis v. Reno, "The administrative process can serve to c reate a record for subsequent proceedings, it can be used to help focu s 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 mak es prisoner litigation claims more transparent and easier to review. Opera ting 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 su ch actions. See id. at

*7-10.

17

was his right under the Inmate Grievance System. Se e supra note 2 (discussing the two-stage appellate pr ocess). Again, S 1997e(a) provides that

No action shall be brought with respect to p rison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any j ail, prison, or other correctional facility until such ad ministrative

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 n eed to take advantage of the Inmate Grievance System's administrative procedures because they could not pr ovide 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), Luns ford v.

Jumao-As, 155 F.3d 1178 (9th Cir. 1998), and Garret t v. Hawk, 127 F.3d 1263 (10th Cir. 1997). These cases h old that when a prison's internal grievance procedure c annot provide an inmate-plaintiff with the pure money dam ages relief he seeks in his federal action, exhaustion o f 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 damage s, the thirty some pages attached thereto make several references to p ersonal injuries and make three separate claims for monetary relief. See supra Part I. Construing Booth's pro se complaint liberally, as w e 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 rel ief in his original complaint, when that complaint is viewed as a whole . Moreover, even if Booth's initial complaint failed to allege money da mages, the record shows that he amended his complaint to include a re quest 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 damage s. 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 pl eading is served . . .

." Judging from the docket entries, the Defendants ser ved 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 , L unsford, 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 exhaust ion of all administrative remedies mandatory--whether o r not they provide the inmate-plaintiff with the relief h e says he

desires in his federal action." Id. at *1. In a len gthy opinion, we detailed the many arguments supporting our posit ion, and ultimately rejected the approach taken by court s recognizing the futility exception. See id. at *5-1 1.

Although Nyhuis involved a Bivens action brought by a federal inmate, the rule we announced in Nyhuis ha s equal force in the S 1983 context, for S 1997e(a), which applies to actions brought by a prisoner "under section 1983 o f this title, or any other federal law," treats Bivens act ions andS 1983 actions as functional equivalents. See Nyhui s, 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, 1 264-66 (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 Biven s action--given the strength of the interest that sta te prisons' and state courts' have in resolving complaints file d 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 inter preting and/or predicting the contours of state law and sta te administrative regulations and practices. See id. a t *9 n.10 and accompanying text. As we noted in Nyhuis, the Supreme Court has "made it clear that `in the absen ce 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, "Congres s gave no indication--let alone a `plain indication'--that application of S 1997e(a) should depend on the vaga ries of state law." Id. For these reasons, we therefore hol d that the rule we announced in Nyhuis applies here.

As in Nyhuis, because Booth "failed . . . to exhaus t his available administrative remedies (rather than thos e he believed would be effective)" before filing hisS 19 83 action, the District Court appropriately dismissed his acti on without prejudice. Id. at *11. Accordingly, the ord er 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 word s, "conditions" is the key. The noun is plural. It is equivalent to "circumstances." It does not identify a single o r momentary matter. Webster's provides us with sixdefinitions. Five are not germane. The relevant def inition is

"existing state of affairs," as in the common phras es "living conditions," "playing conditions," "adverse weather conditions." A slight variant of this definition is "something needing remedy," as in the sentence, "Trains were l ate to Philadelphia because of conditions on the Main Line ." As these instances suggest, "conditions" are circumsta nces affecting everyone in the area affected by them. "Conditions" affect populations, large or small.

The statute thus gives us a noun of established mea ning 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;"condit ions" 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 o n the jaw is an act. Churner's alleged busting of Booth's mou th is not a state of affairs. Circumstances in the plural are not at issue. No population is affected. An individual alo ne is involved. That Churner's alleged blow took place in a prison does not make it "prison conditions." Reading the s tatute as it is written it is next to impossible to character ize Booth's complaint of a specific battery as a suit "with res pect to prison conditions."

The court rightly notes that we may aid our reading by consulting another section of the statute where Con gress has defined "prison conditions" for another purpose . It makes good sense to assume that the definition appl ies throughout the statute and to use the definition wh enever "prison conditions" are mentioned.

21

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

"conditions of confinement or the effects of action s by government officials on the lives of persons confin ed 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 c arried out by officers of a prison. The statutory phrase"condi tions of confinement" does not encompass specific batteries. "Conditions of confinement" is no more apt than "pr ison conditions" to designate an act of battery. The use of

"conditions" constrains the sense so that what is m eant isa continuing state of affairs. The court concedes t hat 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 lan guage there construed but on the alternative definition a fforded by the statute. This definition defines prison conditi ons as "the effects of actions by government officials on the l ives of persons confined in prison." What are actions by government officials that impact the lives of priso ners and appropriately fit within the framework of condition s? Illustrations are afforded by a proponent of the PL RA, Senator Abraham: "how warm the food is, how bright the lights are, whether there are electric lights in ea ch cell, whether the prisoners' hair cut is by licensed barb ers," these are "the conditions" regarding which prisoner litigation has occurred and courts have intervened because of the effect of these conditions on prisoners' liv es. 142 Cong. Rec. S10576-02, S10576 (Sept. 16, 1996). To t ake another illustration, "even worse" according to Sen ator Abraham, is a judge releasing prisoners "to keep th e 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 ele ctricity; or to employ unlicensed barbers; or to admit more prisoners than the prison was designed for -- has a n impact on prisoners' lives and creates conditions t hat, but for the PLRA, might become the subject of a suit. O ther actions having an effect on prisoners' lives and re ferenced

22

by Senator Reid, are these: a prison official decid es to provide creamy peanut butter instead of chunky or p rovides chunky peanut butter instead of creamy; a prison of ficial

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 (Se pt. 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 int entional

violence. Brutal batteries are far removed from wha t the sponsors said was on their minds. The senators chos e language for the statute mirroring their concerns.

Snippets of legislative history such as these are n ot 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 a re not. They are, moreover, illuminating as to why Congress had to use fifteen words in a seemingly elephantine way to definethe suits Congress wanted to restrain. The multitud e of

trivial occasions that might affect prisoners' live s 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 o r mouths are mauled, no one on earth, educated or uneducated, would use such roundabout phraseology t o 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 speculatio n has its attraction. The suspicion is dispelled by leading s ponsors of

the PRLA such as the chairman of the Senate Judicia ry Committee, Senator Hatch. As he put it when offerin g the bill for the first time in 1995: "Our legislation w ill also help restore balance to prison conditions litigation and will

23

ensure that federal court orders are limited to rem edying brutal violations of prisoners' rights." 141 Cong. Rec. S14408-01, S14418 (Sept. 27, 1995). As he summarize d the sponsors' intent: "I do not want to prevent inm ates from raising legitimate claims. This legislation will no t prevent those claims from being raised." 141 Cong. Rec. S14 611- 01, S14662 (Sept. 29, 1995). The sponsors of the bi ll were

neither inhumane nor insensitive nor determined to

foreclose federal fora to claims of unconstitutiona l acts of cruelty.

The legislative history serves to refute a suspicio n unsupported by the statutory text. As a guide to a fair reading of the English language in the statute befo re us, the suspicion is mischievous. It leads to a constru ction of language that cannot be sustained. The canons of construction of our native tongue should not be con torted to deny a remedy that a conscientious Congress cont inues to provide.

There are, to be sure, issues raised as to prison conditions in Booth's amended complaint -- the stat e of the prison library, for example, Booth's need for a par alegal, or the failure of prison authorities to prevent allege d beatings. No cause of action against Superintendent Morgan, C aptain Gardner or Sergeant Workensher can be discerned tha tdoes not fall within the meaning of prison conditio ns. These

complaints Booth should have processed through the prison grievance system. Failing to do so, Booth ca nnot pursue them now. As to these claims, I concur with the court. But that he put these matters into his compl aint

does not mean that he forfeits the claims whose tre atment was not required to begin administratively. As to L ieutenant Rikus, no specific injury is alleged for which comp ensation is asked. The complaint here, too, is properly dism issed. The allegations against Churner, Robinson and Thoma s survive. As to them I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24