1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40536

KEVIN UNDERWOOD,

Plaintiff-Appellant,

VERSUS

MICHAEL WILSON, Senior Warden, Michael Unit; ROBERT HERRERA,

Assistant Warden, Michael Unit; ALTON D. CASKEY, Assistant Warden

Michael Unit; EDWARD L. GALLOWAY, Chief of Classification, Michael

Unit, DOUGLAS W. SATTERFIELD, Ad ministrative Tech III, Michael

Unit; RAYMOND BYRD, Major, Michael Unit,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

August 14, 1998

Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

On October 8, 1996, Kevin Underwood, Texas prisoner #579650,

filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against

various officials of the Michael Unit, alleging that the defendants

assigned him to jobs which forced him t o perform work beyond his

phy sical capabilities and medical work restrictions. He sought2

monetary and injunctive relief.

Beginning on October 15, 1996, through March 18, 1997, the

district court entered numerous orders continuing the case to allow

Underwood to exhaust his administrative remedies. On March 31,

1997, the magistrate judge recommended that Underwood’s complaint

be dismissed without prejudice for failure to exhaust

administrative remedies.

Underwood objected, arguing that the magistrate judge failed

to determine whether he had made a reasonable and good-faith effort

to pursue his administrative remedies, and failed to determine

whether the remedies were “adequate and speedy.” He argued that

after filing suit he had attempted to exhaust his administrative

remedies.

The district court overruled Underwood’s objections and noted

that 42 U.S.C. § 1997e had been amended and no longer provides the

court the opportunity to continue cases until a prisoner has

exhausted his administrative remedies, but it requires that such a

case be dismissed. The district court conceded that the

administrative grievance procedure is often slow, b ut found that

Underwood had failed to provide “a meritorious reason for failing

to exhaust his administrative rem edies prior to bringing a

lawsuit.” The district court ordered that the complaint be

dismissed with prejudice for pu rposes of proceeding in forma

pauperis pursuant to 28 U.S.C. § 1915(d). Underwood filed a timely

notice of appeal. The district court granted him leave to proceed3

IFP on appeal and entered a payment schedule.

ANALYSIS

Underwood argues on appea l that the district court erred in

dismissing his complaint with prejudice for failure to exhaust his

prison administrative reme d ies. Underwood argues that before

dismissing his complaint with preju dice, the district court was

required to determine whether he had made a good-faith attempt to

exhaust his administrative remedies. He also argues that the

district court erred in dismiss ing his complaint without

determining whether the available administrative remedies were

“adequate and speed y” and certified to be in compliance with

statutory minimum standards.

Until the enactment of the Prison Litigation Reform Act of

1995(“PLRA”), Pub. L. No. 104-134, § 803, 110 Stat. 1321 (Apr. 26,

1996), § 1997e provided that in any action brought under § 1983 by

a prisoner,

the court shall, if the court belie ves that such a

requirement would be appropriate and in the interests of

justice, continue such a case for a period not to exceed

180 days in order to require exhaustion of such plain,

speedy, and effective administrative remedies as are

available. (2) The exhaustion of administrative remedies

und er paragraph (1) may not be required unless the

attorney general has certified or th e court has

determined that such administrative remedies are in

substantial compliance with the minimum acceptable

standards promulgated under subsection (b) of the section

or are otherwise fair and effective.

1997e(a)(West 1994).

This court has held that a district court can dismiss a § 19834

suit following a continuance if the prisoner fails to pursue his

administrative remedies. S ee Rocky v. Vittorie

, 813 F.2d 734, 736

(5th Cir. 1987). Before dismissing a § 1983 suit with prejudice

under this former version of § 1997e, the district court was

required to determine whether the plaintiff had “made a good-faith

attempt to exhaust his administrative remedies.” See id. at 737.

The co urt has also held that § 1997e’s exhaustion requirement

applies to a prisoner’s § 1983 suit seeking both injunctive and

monetary relie f. A rvie v. Stalder

, 53 F.3d 702, 706 (5th Cir.

1995).

However, as part of the PLRA, Congress amended § 1997e which

now provides that

no action shall be brought with respect to prison

conditions under § 1983 . . . by a prisoner confined in

any jail, prison, or othe r correctional facility until

such administrative remedies as are available are

exhausted.

§ 1997e(a)(West Supp. 1997). Because Underwood filed his complaint

after April 26, 1996, the PLRA’s amendment to § 1 997e applies to

his complaint.

The Tenth Circuit recently explained that

Congress amended § 1997e to make the “exhaustion

provisions mandatory rather than directory.” Historical

and Statutory N otes, 42 U.S.C.A. § 1997e (West Supp.

1997). Under the pre-PLRA version of § 1997e, courts

were directed to stay actions not administratively

exhausted. If the court believe[d] that such a

requirement would be appropriate and in the interests of

justice.” 42 U.S.C. §1997e(a)(1)(1994)(amended 1996).

Under the current version, by contrast, court s are

directed that “[n]o action shall be brought . . . until5

such administrative remedies as are available are

exhausted.” 42 U.S.C.A. § 1997e(a)(West Supp. 1997).

Garrett v. Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997).

Under the present version of § 1997e, the district court is no

longer required to determine whether a prisoner such as Underwood

h as reasonably and in good-faith pursued his administrative

remedies. Thus, Underwood’s argument that the district court erred

in failing to make such a finding, lacks an arguable basis in law.

Similarly, the current version o f § 1997e requires exhaustion of

“such administrative remedies as are available.” It no longer

r equires “exhaustion of such plain, speedy, and effectiv e

administrative remedies as are available.” § 1997e(a)(1)(1994).

Nor does it require certification or determination that such

administrative remedies comply with minimal standards. Compare §

1997e (West Supp. 1997), with § 1997e(a)(2)(1994).

Our task is to determine what the revised version of § 1997e

requires of Underwood and whether he has met those requirements.

1. The jurisdictional implications of amended § 1997e.

A statute requiring exhaustion of administrative remedies may

be jurisdictional if it is “more than a codified requirement of

administrative exhaustion” and contains “sweeping and direct”

stat utory language that goes beyond a requirement that only

exhausted actions be brought. S ee Weinberger v. Salfi

, 422 U.S.

749, 757 (1975). For example, the Supreme Court has held that

language in the Social Security Act mand ating utilization of6

administrative procedures is jurisdic tional. I d. T hat

determination turned on the fact that cited portions of the statute

in question made the administrative decision of the Secretary

“bi nding,” set forth limited procedures for judicial review, and

denied the existence of any civil cause of action arising under the

Social Security Act. I d. (reading 42 U.S.C. § 405(h) to dictate

that “[n]o action . . . shall be brought under 28 U.S.C. § 1331).

In contrast, § 1997e(a) contains no such sweeping and direct

language barring federal qu estion jurisdiction under 28 U.S.C. §

1331. Rather than proscribing the existence of a federal cause of

action, the Civil Rights Act specifically creates a civil cause of

action. S ee 42 U.S.C. § 198 3 (“Every person who, under color of

any statute, ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by

the constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proceeding for redress

. . .”). Section 1997e(a) merely provides that “[n]o action shall

be brought

. . . until such administrative remedies as are

available are exhausted.” This is precisely the type of language

held in Weinberger v. Salfi not to limit federal jurisdiction. S ee

Zipes v. TransWorld Airlines

, 455 U.S. 385, 393 (1982)(holding that

under Title VII the filing of a timely charge with the EEOC is not7

a jurisdictional prerequisite to suit in federal court but rather

a requirement, like a statute of limitations, that is subject to

waiver, estoppel, and equitable tolling.); cf. Sharpe v. FDIC

, 126

F.3d 1147, 1155 (9th Cir. 1997)(finding the administrative

exhaustion requirement imposed by FIRREA to be a jurisdictional bar

in light of the broad language

-- “no court shall have

jurisdiction” -- contained in 12 U.S.C. § 1821(d)(12)(D)).

Other courts have concluded that § 1997e does not deprive

federal courts of jurisdiction. S ee Write v. Morris

, 111 F.3d 414,

421 (6th Cir. 1997)(“Section 1997e(a), in con trast, contains

neither the sweeping and direct language of [42 U.S.C.] § 405(b)

nor that statute’s explicit bar to district court jurisdiction.”),

cert. denied

, 118 S. Ct. 263 (1997) ; see also Lacey v. C.S.P.

Solano Medical Staff

,

___ F.Supp.___, 1997 WL 819927 (E.D.Cal. Dec.

22, 1 997). This conclusion is further supported by 42 U.S.C. §

1997e(c)(1)&(2). Under these provisions, a district court must

screen prisoner complaints and dismiss those that are frivolous or

maliciou s and those that fail to state a claim or seek monetary

relief from a defendant who is i mmune from such relief. S ee §

1997e(c)(1). The statute provides that the court may dismiss such

claims without requiring the exhaustion of administrative remedies.

See § 1997e(c)(2). The court would not be empowered to do so if

the exhaustion provision deprived the court of jurisdiction over

the action. See Lacey , 1997 WL 819927, at *9 n.4.8

We therefore conclude that § 1997e does not impose exhaustion

of administra t ive remedies as a prerequisite to jurisdiction.

Accordingly, the district court had subject matter jurisdiction

over Underwood’s claim.

2. Defining “available” and exhaustion

We now turn to the task of statutory construction and begin

by examining the language of the statute itself. S ee United States

v. Alvarez-Sanchez

, 511 U.S. 350, 356 (1994). In the absence of

definition within the statute, statutory terms are to be construed

in accordance with their ordinary meaning. S ee Asgrow Seed Co. v.

Winterboer , 513 U.S. 179, 187 (1995).

Nowhere in the PLRA did Congress provide a definition of “such

administrative remedies as are available.” S ee § 1997e(a).

Webster’s New International Dictionary defines “available” as

“capable of availing; having sufficient power or force to achieve

an end,” “such as may be availed of: capable of use for the

accomplishment of a purpose: immediately utilizable,” and “that is

accessible or may be obtained: personally obtainable.” Webster’s

New Int’l Dictionary, 150 (3rd ed. 1981). “Exhaust” is defined as

“to take complete advantage of (legal remedies).” Id. at 796.

During the time period relevant to this case, TDCJ had a three

step grievance process. There is no dispute that Underwood timely

filed his grievances and appeals at each step of the TDCJ process.

Underwood alleged that, under the TDCJ Grievanc e Procedures, the9

Deputy Director of TDCJ “is to render a final decision on a step

three grievan ce within twenty-six days of receipt by the Unit

Grievance Coordinator from the inmate.” Underwood alleged in

pleadings before the district court that his step-three grievance

was filed on March 3, 1997 and he had not received a response as of

April 8, 1997, more that twenty-six days later. The district

court, adopting the recommendation of the magistrate judge, held

that plaintiff had not exhausted his administrative remedies. The

court rejected Underwood’s position that the administrative

remedies were exhausted at the end of the twenty-sixth day after

the filing of a step-thre e grievance. There is nothing in the

record of this court that indicates that there is any TDCJ

grievance procedure available to Underwood after the time set for

a step-three grievance response. The court “noted” that it

“receives hundreds of cases each year where inmates have exhausted

their administrative remedies. The prison system processes each

and every grievance filed properly, albeit somewhat slowly at

times.” It appears that the district court held that either the

prison has unlimited time to respond to grievances or that the

district court has discretion to extend the prison’s self-imposed

time limits. Because Congress clearly intended to limit district

court’s discretion when it amended § 1997e, see supra

, we hold that

available administrative remedies are exhausted w h en the time

limits for the prison’s response set forth in the prison Grievance10

Pr ocedures have expired. S ee Rourke v. Thompson

, 11 F.3d 47, 51

n.10 (5th Cir. 1993) (noting the “substantial effort exception” to

the exhaustion requirement); Shah v. Quinlin , 901 F.2d 1241, 1244

(5th Cir. 1990) (commenting that prisoner may be excus ed from

exhausting administrative remedy where “irregularities in the

administrative process itself” prohibited him from so doing);

Holloway v. Gunnell

, 685 F.2d 150, 154 (5th Cir. 1982) (commenting

that administ rative remedy is inadequate where prison officials

ignore or interfere with prisoner’s pursuit of relief). Therefore,

on April 8, 1997 Underwood had exhausted TDCJ’s available

administrative remedies.

The magistrate judge’s finding that “[t]he plaintiff has not

shown proof that he has exhausted his administrative remedies” is

inapposite. Dismissal under § 1997e is made on pleadings without

proof. As long as the plaintiff has alleged exhaustion with

sufficient specificity, lack of admissible evidence in the record

does not form the basis for dismissal.

Next, because we may affirm the dismissal on valid alternative

grounds, we must determine whether the fact t hat Underwood’s

administrative remedies were exhausted after he filed his § 1983

suit, rather than before, justifies the dismissal. Because § 1997e

requires exhaustion of administrative remedies before an action is

brought in federal court, a strict reading of the statute would

dictate dismissal of Underwood’s claims. However, a non-11

jurisdictional exhaustion requirement may, in certain rare

instances, be excused, pa rticularly where dismissal would be

inefficient and would not further the interests of justice or the

Congressional purposes behind the PLRA. See McCarthy v. Madigan

,

503 U.S. 140, 146-49 (1992). According to Senate sponsor Orrin

Hatch, the PLRA “will help bring relief to a civil justice system

overburdened by frivolous prisoner lawsuits.

. . . Our legislation

will also help restore balance to prison conditions litigation and

will ensure that Federal Court Orders are limited to remedying

actual violations of prisoners’ rights.” 141 Cong.Rec. S14, 408

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

Underwood has now complied with the requirement to exhaust

administrative remedies, dismissing the suit and requiring him to

refile is inefficient. However, dismissal may serve as a deterrent

to premature filing by Underwood and other potenti al litigants,

thus serving the Congressional purpose of providing relief from

frivolous prisoner litigation. Therefore, we cannot say that in

the circumstances of this case, the district court erred in

refusing to suspend § 1997e’s pre-filing exhaustion requirement.

We therefore affirm the district court’s dismissal of

Underwood’s § 1983 claim.

3. With or without prejudice

Underwood als o argues that the district court erred in

dismissing his complaint with prejudice instead of without12

prejudice.

The district court dismissed Underwood’s complaint with

p rejudice “for purposes of proceeding in an in forma paupe ris

proceeding pursuant to 28 U.S.C. § 1915(d).” We review that ruling

for abuse of discretion. M arts v. Hines

, 117 F.3d 1504, 1506 (5th

Cir. 1997) (en banc), cert. denied, 118 S. Ct. 716 (1998).

“Dismis sals under the [IFP] statute are in a class of their own,

acting not as dismissals on the merits but, rather, as denials of

[IFP] status. Typically, but not exclusively, such dismissals may

serve as res judicata for subsequent in forma pauperis filings, but

they effect no prejudice to the subsequent filing of a fee-paid

complaint making the same al legations.” I d. at 1505. In M arts

,

the cou rt determined that dismissals as frivolous or malicious

under 28 U.S.C. § 1915(e)(2) should be deemed to be dismissals with

prejudice unless the district court specifically dismisses without

prejudic e. I d. at 1506. We must now determine whether the

district court abused its discretion in dismissing Underwood’s suit

with prejudice to the refiling with IFP status based on his failure

to exhaust administrative remedies.

By choosing to file and pursue his suit prior to exhausting

administrat ive remedies as required, Underwood sought relief to

which he was not entitled

-- that is, federal court intervention in

prison affairs prior to the prison having had the opportunity to

address the complaint withi n its grievance procedures. We13

therefore affirm the district court’s order dismissing Underwood’s

action with prejudice for purposes of proceeding IFP.

CONCLUSION

For the foregoing reasons, the district court’s order is

affirmed.

AFFIRMED.