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. e du/thir dc ir c uit_1998/148Filed June 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5801

HASSAN JENKINS,

Appellant

v.

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

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

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

BEFORE: GREENBERG, SCIRICA, and NYGAARD, Circuit Judges

(Filed: June 30, 1998)

Hassan Jenkins

Appellant pro sePeter Verniero

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

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

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

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

2No action shall be brought with respect to p rison

conditions under [42 U.S.C. S 1983], 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). The district court, in ruling on the motion to dismiss, explained that the New Jersey Administrative Code provides a grievance procedure for challenging disciplinary decisions and that once th e "inmate has exhausted the remedies provided by the Administrative Code, he has an automatic right to a ppeal the decision to the Superior Court of New Jersey, A ppellate Division" under N.J. Ct. R. 2:2-3(a)(2).1

The court then indicated:

that the sanction imposed upon the plaintiff by the Department of Corrections was a final agency decision and as such, upon exhausting the remedies av ailable to him through the Administrative Code, plai ntiff's next remedy was to challenge the decision wi th the Appellate Division. This Court further notes , that plaintiff failed in this case to challenge t he decision in the Superior Court of New Jersey, Appellate Division. As such, plaintiff has failed to exhaust all
administrative remedies available to him.

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

This appeal raises a narrow but important point: di d Congress intend to include appeals to the state jud icial system within the administrative remedies which a p risoner

___________________________________________________ ______________

1. The Administrative Code provisions for appeal of disciplinary decisions are set forth in N.J. Admin. Code tit. 10A, S 4-11. 1 et seq. (1996). We need not describe them in detail as appellees do no t contend that
Jenkins did not exhaust them.

3must exhaust before bringing an action described in section

1997e(a)?2 We recognize that it might be sensible f or Congress to provide that a prisoner first exhaust b oth his state administrative and judicial remedies before b ringing an action described within section 1997e(a). But th e problem with our observation, and thus with the dis trict court's opinion, is that there is a well-establishe d distinction between administrative and judicial rem edies and Congress, in terms, did not mandate that the pr isoner
must exhaust his administrative remedies and exhaus t his right to judicial appellate review before bringing an action within section 1997e(a). McCarthy v. Madigan, 503 U .S. 140, 112 S.Ct. 1081 (1992), highlights the distinct ion between administrative and judicial remedies becaus e the Court, in discussing exhaustion of administrative r emedies, explained:

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

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

We also observe that the Supreme Court has stated t hat "policy considerations alone cannot justify judicia lly imposed exhaustion unless exhaustion is consistent with congressional intent." Patsy v. Board of Regents, 4 57 U.S. 496, 513, 102 S.Ct. 2557, 2566 (1982). Moreover, Pa tsy
makes clear that exhaustion of administrative remed ies ordinarily is not required before a plaintiff may b ring a 42 U.S.C. S 1983 action. Thus, the exhaustion requirem ents in section 1997e(a) run counter to the general rule un der 42 U.S.C. S 1983. In the circumstances, we naturally a re reluctant to apply section 1997e(a) to mean other t han what it says: the prisoner must exhaust his "admini strative

___________________________________________________ ______________

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

4remedies" as that term is conventionally understood , but

need not exhaust state judicial remedies before bri nging an action governed by that section.

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

Before refiling, Plaintiff must exhaust all available administrative remedies pursuant to 42 U.S.C

. S 1997e(a). Thus, in addition to filing his inmate appeal forms, Plaintiff must submit a formal appeal for second level review. If unsuccessful at that level, Plaintiff must then submit a formal appeal for third level review to the director of the California Department of Corrections or the director's designee. Only after Plain tiff has gone through each of these steps may he be said t o have
exhausted his available administrative remed ies.

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

The formal grievance procedure allows an in mate to file a written grievance addressed to the Gr ievance Officer. 20 Ill. Adm. Code. Sec. 504.810. Up on reviewing the written grievance, the Grievan ce Officer
makes a recommendation to the warden of the facility or his designee. The inmate then receives a decision.
20 Ill. Adm. Code Sec. 504.830.

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

5remedies. See Rhoden v. Detella, No. 95 C. 6 585, 1996

WL 5566975 *4 n.2 (N.D. Ill. Sept. 27, 1996)

.

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

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

A True Copy:

Teste:

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

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