1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-1998

Jenkins v. Morton

Precedential or Non-Precedential:

Docket 97-5801

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Recommended Citation

"Jenkins v. Morton" (1998). 1998 Decisions. Paper 148.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/148
Filed 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 se 
 Peter 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 Jersey 

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, Shirley 

Tyler, individually and as assistant superintendent of the 

prison, and James McGovern, individually and as a 

disciplinary hearing officer. The complaint asserted that the 

appellees had violated Jenkins' due process and equal 

protection rights in disciplinary proceedings in which 

sanctions were imposed. The original sanction period 

imposed in those proceedings was reduced on Jenkins' 

administrative appeal. It is undisputed that the 

administrative appeal exhausted Jenkins' conventional 

administrative remedies, and it is also undisputed that 

Jenkins did not appeal from the imposition of the reduced 

sanctions to the Superior Court of New Jersey, Appellate 

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 Prison 

Litigation Reform Act of 1996, which, insofar as germane 

here, provides: 

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 No action shall be brought with respect to prison 

 conditions under [42 U.S.C. S 1983], or any other 

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

 or other correctional facility until such administrative 

 remedies as are available are exhausted. 

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 the 

"inmate has exhausted the remedies provided by the 

Administrative Code, he has an automatic right to appeal 

the decision to the Superior Court of New Jersey, Appellate 

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 available 

 to him through the Administrative Code, plaintiff's 

 next remedy was to challenge the decision with the 

 Appellate Division. This Court further notes, that 

 plaintiff failed in this case to challenge the 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 Jenkins 

had "failed to exhaust all administrative remedies available 

to him, [his] complaint must be dismissed in accordance 

with the [Prison Litigation Reform Act of 1996]." Thus, the 

court entered an order on November 21, 1997, dismissing 

the complaint as to all defendants and closing the case. 

Jenkins then appealed. We exercise plenary review on this 

appeal. 

This appeal raises a narrow but important point: did 

Congress intend to include appeals to the state judicial 

system within the administrative remedies which a prisoner 

_________________________________________________________________ 

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 not contend that 

Jenkins did not exhaust them. 

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must exhaust before bringing an action described in section 

1997e(a)?2 We recognize that it might be sensible for 

Congress to provide that a prisoner first exhaust both his 

state administrative and judicial remedies before bringing 

an action described within section 1997e(a). But the 

problem with our observation, and thus with the district 

court's opinion, is that there is a well-established 

distinction between administrative and judicial remedies 

and Congress, in terms, did not mandate that the prisoner 

must exhaust his administrative remedies and exhaust 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 distinction 

between administrative and judicial remedies because the 

Court, in discussing exhaustion of administrative remedies, 

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 well be 

 mooted, or at least piecemeal appeals may be avoided. 

 And, even where a controversy survives administrative 

 review, exhaustion of the administrative procedure may 

 produce a useful record for subsequent judicial 

 consideration, especially in a complex or technical 

 factual context. 

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

We also observe that the Supreme Court has stated that 

"policy considerations alone cannot justify judicially 

imposed exhaustion unless exhaustion is consistent with 

congressional intent." Patsy v. Board of Regents, 457 U.S. 

496, 513, 102 S.Ct. 2557, 2566 (1982). Moreover, Patsy 

makes clear that exhaustion of administrative remedies 

ordinarily is not required before a plaintiff may bring a 42 

U.S.C. S 1983 action. Thus, the exhaustion requirements in 

section 1997e(a) run counter to the general rule under 42 

U.S.C. S 1983. In the circumstances, we naturally are 

reluctant to apply section 1997e(a) to mean other than 

what it says: the prisoner must exhaust his "administrative 

_________________________________________________________________ 

2. We note that the appellees do not contend that this action is not a 

type of case governed by section 1997e(a). 

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remedies" as that term is conventionally understood, but 

need not exhaust state judicial remedies before bringing 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 Plaintiff has gone 

 through each of these steps may he be said to have 

 exhausted his available administrative remedies. 

Id. at 970. Similarly in Hobson v. DeTella, 1997 WL 619822 

(N.D. Ill. Sept. 30, 1997), the court described exhaustion 

under section 1997e(a) as follows: 

 The formal grievance procedure allows an inmate to 

 file a written grievance addressed to the Grievance 

 Officer. 20 Ill. Adm. Code. Sec. 504.810. Upon 

 reviewing the written grievance, the Grievance 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 Officer 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, the Board 

 schedules one and submits its findings to the Director. 

 The Director reviews the findings and makes afinal 

 determination about the grievance. 20 Ill. Adm. Code 

 Sec. 504.850. Once the Board issues a final decision, 

 the inmate has exhausted all available administrative 

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 remedies. See Rhoden v. Detella, No. 95 C. 6585, 1996 

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

Id. at *2. It will be noted that neither court mentioned 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 consistent 

with this opinion. Obviously we do not imply that we have 

a view on whether this action is meritorious. The parties 

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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