## F I L E D United States Court of Appeals Tenth Circuit 

### July 1, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RON SIMMAT,

Plaintiff-Appellant,

v. No. 03-3361 UNITED STATES BUREAU OF PRISONS; G.F. JACKSON, Dentist, U.S. Bureau of Prisons; and REID ELDEN STEMPEL, Dentist, U.S. Bureau of Prisons,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (NO. 02-CV-3410-JWL )

Ron Simmat filed briefs pro se. Janet Koven Levit, Associate Professor, University of Tulsa College of Law, Tulsa, Oklahoma, for Plaintiff-Appellant. Emily B. Metzger, Assistant United States Attorney, (Eric F. Melgren, United States Attorney, with her on the briefs) Wichita, K ansas, for DefendantsAppellees.

Before KELLY , HARTZ , and McCONNELL , Circuit Judges.1 See Boyce v. Ashcroft , 251 F.3d 911 (10th Cir. 2001) (affirming dismissa l

of a federal prisoner’s habeas petition seeking transfer, noting that constitutional challenges to conditions not affecting the fact or duration of confinement, “e.g. conditions of confinement, must proceed under Secti on 1983 or Bivens ”), vacated as moot , 268 F.3d 953 (10th Cir. 2001); id. at 918 n.4 (“Petitioner indeed has filed a Bivens action, seeking an injunction which directs the BO P to transfer him to FCI Sheridan.”); see also Smith v. Fed. BOP , 300 F.3d 721 (6th Cir. 2002) (per curiam) (considering jurisdiction over a federal pr isoner’s suit to enforce a (continued...) 2 McCONNELL , Circuit Judge.

At least since Estelle v. Gamble , 429 U.S. 97, 104–06 (1976), federal courts have recognized the right of prisoners to relief if prison officials deny them basic medical care, in violation of the Eighth Amendment. In the case of state prisoners, the vehicle for such suits is 42 U.S.C. § 1983, with its jurisdictional predicate, 28 U.S.C. § 1343. See Simmat; Hunt v. Uphoff , 199 F.3d 1220 (10th Cir. 1999). In the case of federal prisoners, surp risingly, the vehicle is not so clear. In Farmer v. Brennan , 511 U.S. 825, 846 (1994), the Supreme Court state d only that the courts could “grant appropriate relie f” on a federal prisoner’s Eighth Amendment claim for damages and injunctive relief a gainst prison officials in their individual and official capacities. Some cou rts have treated such actions as
Bivens actions, even when the inmate seeks injunctive rel ief against officials in their official capacities. See Bivens v. Six Unknown Named Agents of the Feder al Bureau of Narcotics , 403 U.S. 388 (1971). 1 Others have assumed that there exists1 (...continued)

settlement agreement to be proper under § 1331, the settlement agreement itself, and “pursuant to the doctrine announced in Bivens ”); Kane v. Winn , 319 F. Supp. 2d 162, 213 (D. Mass. 2003) (“One can also seek inj unctive relief via a Bivens action.”) (citing Farmer v. Brennan , 511 U.S. at 851).

2 See Rourke v. Thompson , 11 F.3d 47 (5th Cir. 1993) (construing a federal prisoner’s habeas petition based on denial of medic al care and arbitrary disciplinary sanctions as “a complaint requesting i njunctive relief from violation of his federal constitutional rights”) (citing Bell v. Hood, 327 U.S. 678, 684 (1946), and Bivens v. Six Unknown Named Agents of the Federal B ureau of Narcotics , 403 U.S. 388, 395–97 (1971), in support of a non- statutory cause of action); Bono v. Saxbe , 450 F. Supp. 934 (E.D. Ill. 1978) (predicating ju risdiction on § 1331 and granting injunctive relief in a feder al prisoner class action raising Eighth Amendment and due process claims).

3 See, e.g. , Thornburg v. Abbott , 490 U.S. 401 (1989) (prisoners’ class action for injunctive relief mounting facial and as -applied First Amendment challenges to a BOP policy governing “outside” publ ications); Kimberlin v. United States Dept. of Justice , 318 F.3d 228 (D.C. Cir. 2003) (per curiam) (rejecting federal prisoners’ First Amendment chall enge to a BOP regulation prohibiting electric instruments). 3 a non-statutory basis for injunctive action, perhap s coupled with declaratory relief under the Declaratory Judgment Act, or civil action s in the nature of mandamus. 2 In the latter cases, the question arises whether th e actions are barred by sovereign immunity. Very often the nature of the claim and t he basis for rejecting sovereign immunity are not addressed. 3 We believe clarification would be useful. This case involves an action against prison dentist s in their official capacity for injunctive relief. The defendants, the prison dentists and the United States Bureau of Prisons (“BOP”), assert that the action i s barred by sovereign immunity. We hold that jurisdiction exists under 2 8 U.S.C. §§ 1331 or 1361, that4

the case is properly denominated an action for reli ef in the nature of mandamus, authorized under 28 U.S.C. § 1361, and that soverei gn immunity is not a bar. We also hold, however, that plaintiff’s suit against t he prison dentists must be dismissed without prejudice for failure to exhaust his administrative remedies, as required by the Prison Litigation Reform Act of 199 5 (“PLRA”), 42 U.S.C. § 1997e(a), and that his claims against the Bureau of Prisons are not properly before us. I. Background and Facts Plaintiff-Appellant Ron Simmat was convicted of sec ond degree murder and sentenced by the State of Connecticut to life i mprisonment in 1962. Since January 21, 1995, he has been incarcerated in the U nited States Penitentiary at Leavenworth, Kansas (“USP Leavenworth”). The preci se facts and circumstances bearing on Mr. Simmat’s problems are not clear on this record, but because Mr. Simmat appeals a grant of summary judgment for the defendants, we will recount the facts in the light most favorable to his case. See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Mr. Simmat suffers from a variety of dental problem s, including gum disease, several cavities, and a root that protrude s from his gums. In August 1999, he submitted a request to BOP staff to be pla ced on the treatment list to see5

the dentist about a cavity. Dr. Jackson informed h im that he had been placed on the list. In November 1999, before getting treatme nt, Mr. Simmat asked to be placed on the treatment list for a second cavity. Dr. Jackson again informed him that he had been placed on the list. In February 2 000, still having received no treatment, Mr. Simmat submitted a third request foran appointment, indicating that he had been waiting since August 1999 and thattwo of his teeth needed to be treated. Dr. Jackson told him that he was on the t reatment list and would be called soon. On April 9, 2000, Mr. Simmat submitte d an Inmate Request to Staff form to Dr. Jackson and the Health Services adminis trator stating that “one of my problem teeth now gives me constant pain, which get s really bad when I lay down.” This request concerned a third tooth—numberthirty, his “lone chewing molar.” Appellant’s Supp. Br. 9. Dr. Jackson examined Mr. Simmat’s painful molar on April 13, 2000. He ordered an x-ray, diagnosed periodontal involvement , and noted that the tooth might need to be extracted. He put a “temporary re storative agent” on the tooth and prescribed antibiotics and pain medication. Mr . Simmat alleges that when he asked about a permanent filling, Dr. Jackson told h im that he had been “discouraged and reprimanded for providing permanent fillings.” After he treated tooth number thirty, Dr. Jackson r emoved Mr. Simmat’s name from the treatment list. Mr. Simmat saw Dr. J ackson for a follow-up x-ray4 Mr. Simmat filed the complaint on behalf of himse lf and a co-plaintiff,

James Maass. The district court dismissed Mr. Maas s’s claim as moot after he was transferred to a state correctional facility in Wisconsin.

5 The complaint does not name the BOP separately; r ather, it names “The United States Bureau of Prisons, in the persons of” Dr. Jackson and Dr. Stempel. R. Doc. 1. Given our obligation to construe pro se pleadings liberally, see, e.g. , McBride v. Deer , 240 F.3d 1287, 1290 (10th Cir. 2001), and because Mr. Simmat alleges constitutional violations by the BOP as wel l as the individual defendants, we conclude that Mr. Simmat has adequately named th e BOP as a defendant. 6 of tooth number thirty on August 30, 2000. Dr. Jac kson did not treat any other teeth at that time, and he asked Mr. Simmat to retu rn for follow-up treatment in two months. Mr. Simmat did not return for follow-up treatment, and he has not seen Dr. Jackson for dental care at any time after August 30, 2000. Mr. Simmat filed his pro se complaint on December 9 , 2002, 4 alleging that prison officials denied him adequate dental care in violation of the Eighth Amendment. Complaint, R. Doc. 1 at 5. The complai nt named as defendants Dr. Jackson and Dr. Stempel, in their official capaciti es, as well as the BOP. 5 Mr. Simmat alleged that the defendants’ refusal to prov ide proper dental care had caused significant deterioration of his oral health , including multiple infected teeth and, at molar number thirty, an “entire root, right out to its tip, sticking out of [his] gum.” Id . Mr. Simmat sought “an order directed to both def endants, or to their successors in office . . . specifying thatall of plaintiff’s dental deficiencies be made good, whether or not procedure s required to accomplish that are within currently approved dental procedures within the BOP for its prisoners.”6 The defendants also moved to dismiss for improperservice of process,

lack of jurisdiction under the Federal Tort Claims Act, and failure to state a claim for mandamus or injunctive relief. The court did no t address the motion to dismiss for improper service of process because it was cond itioned on construction of Mr. Simmat’s claims as individual-capacity claims, and Mr. Simmat had asserted only official-capacity claims. The court held that the FTCA did not apply to Mr. Simmat’s claim for injunctive relief, and it held t hat he alleged facts sufficient to state a violation of the Eighth Amendment for purpo ses of a motion to dismiss under Rule 12(b)(6). The defendants do not raise these arguments on appeal. 7 Id. at 5–6. He did not seek damages. The defendants moved to dismiss the complaint on th e ground that sovereign immunity deprived the court of subject matter jurisdiction. In the alternative, the defendants moved for summary judgm ent on the ground that Mr. Simmat failed to raise a genuine issue of fact on h is Eighth Amendment claim. 6 The district court held that sovereign immunity did not deprive it of jurisdiction because Mr. Simmat sought only injunct ive relief from alleged constitutional violations by federal officials. Ne vertheless, the district court held that Mr. Simmat failed to raise a genuine issue of fact regarding deliberate indifference to a serious medical condition, the ap plicable standard for relief under the Eighth Amendment. See Perkins v. Kan. Dept. of Corrections , 165 F.3d 803, 811 (10th Cir. 1999). Mr. Simmat appealed. On September 3, 2004, this Court appointed counsel for Mr. Simmat and ordered supplemental briefing addressing whether th e court had jurisdiction over claims for injunctive relief against prison officia ls in their official capacities or8

for injunctive relief against the BOP. II. Mr. Simmat’s Claims Against the Prison Dentists We turn first to Mr. Simmat’s action against the pr ison dentists, in their official capacities. Until relatively recently, a s uit like Mr. Simmat’s would have faced serious obstacles deriving from the related d octrines of subject matter jurisdiction and sovereign immunity. The legacy of those restrictions may well account for the confusion courts still seem to expe rience regarding the legal forms such litigation may take. As will be seen, however , Congress has expanded the jurisdiction of federal district courts and narrowe d the scope of sovereign immunity, making suits for injunctive relief agains t federal officers for constitutional derelictions far more straightforwar d than they used to be. A. Jurisdictional Basis for Action Against Prison Officials Mr. Simmat argues that his claims against the denti sts are within the district court’s federal question jurisdiction because they arise under the Constitution of the United States. See 28 U.S.C. § 1331. In Bell v. Hood, the Supreme Court explained that “where the complaint . . . is so drawn as to seek recovery directly under the Constitution or laws of the United States , the federal court, but for two possible exceptions . . . must entertain the suit.” 327 U.S. 678, 681–82 (1946). The two “possible exceptions” are claims that “clea rly appear[] to be immaterial and made solely for the purpose of obtaining jurisd iction” and claims that are9

“wholly insubstantial and frivolous.” Id. at 682–83 Mr. Simmat’s claim easily meets the basic requireme nts of federal question jurisdiction. Mr. Simmat alleges that the defendan ts deprived him of adequate medical care by deliberate indifference to his seri ous dental needs. This claim arises directly under the Constitution. The Eighth Amendment prohibits the government from incarcerating prisoners without pro viding adequate medical

care. See Oxendine v. Kaplan , 241 F.3d 1272, 1276 (10th Cir. 2001). “Prison officials violate the Eighth Amendment when they ar e deliberately indifferent to the serious medical needs of prisoners in their cus tody.” Perkins , 165 F.3d at 811 (citing Estelle v. Gamble , 429 U.S. 97, 104–06 (1976)). Mr. Simmat’s claim is neither “immaterial” nor “frivolous.” It thus give s rise to general federal question jurisdiction under 28 U.S.C. § 1331. But jurisdict ion is not enough. To bring suit, a plaintiff must also state a claim upon whic h relief may be granted, what used to be called stating a cause of action. See, e.g. , Lake Country Estates, Inc. v. Tahoe Regional Planning Agency , 440 U.S. 391, 398 (1979) (distinguishing “the cause-of-action argument,” which is directed at “th e existence of a remedy,” from jurisdictional questions).
B. Bivens Some courts have characterized constitutional claim s to enjoin federal officials as Bivens claims. See note 1, above. Bivens was a landmark decision10

holding that plaintiffs may sue federal officials i n their individual capacities for damages for Fourth Amendment violations, even in th e absence of an express statutory cause of action analogous to 42 U.S.C. § 1983. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388, 395–97 (1971); see also Carlson v. Green , 446 U.S. 14, 18 (1980) (recognizing a parallel ca use of action for Eighth Amendment violations). The defen dants are correct, however, that a Bivens claim lies against the federal official in his indi vidual capacity—not, as here, against officials in their official capaci ty. As this Court has explained, an official-capacity claim contradicts the very nature of a Bivens action. There is no such animal as a Bivens suit against a public official tortfeasor in his o r her official capacity. Instead, any action that ch arges such an official with wrongdoing while operating in his or her offic ial capacity as a United States agent operates as a claim against the United States. Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001). Moreover, as we shall see, there is no reason to rely on a court-created remedy, like Bivens , when Congress has created an adequate means for obtaining legal r edress.
C. Injunction Another possibility is a claim for an injunction, b ased on the federal courts’ equity jurisdiction, to enforce the dictates of the Eighth Amendment. Federal courts have long exercised the traditional powers o f equity, in cases within their jurisdiction, to prevent violations of constitution al rights. See, e.g. , Osborne v.11

Bank of the United States , 22 U.S. (9 Wheat.) 738, 858-59 (1824) (Marshall, C.J.); Davis v. Gray , 83 U.S. 203, 220 (1873) (“A Circuit Court of the United States, in a proper case in equity, may enjoin a St ate officer from executing a State law in conflict with the Constitution or a st atute of the United States, when such execution will violate the rights of the compl ainant.”); Ex Parte Young , 209 U.S. 123, 151–56 (1908) (tracing the history of the doctrine holding that state officers “may be enjoined by a Federal court of equ ity” from enforcing unconstitutional statutes); Bell v. Hood, 327 U.S. 678, 684 (1946) (recognizing the “jurisdiction of federal courts to issue injunc tions to protect rights safeguarded by the Constitution”); Bolling v. Sharpe , 347 U.S. 497 (1954) (holding that the Fifth Amendment and § 1331 create d a remedy for unconstitutional racial discrimination in the D.C. public school system). In his concurring opinion in Bivens , Justice Harlan cited “the presumed availability o f federal equitable relief, if a proper showing can b e made in terms of the ordinary principles governing equitable remedies” as a facto r distinguishing equitable relief from money damages. Bivens , 403 U.S. at 400. Equity thus provides the basis for relief – the cause of action, so to speak– in appropriate cases within the court’s jurisdiction. There was not much scope for exercise of equitable powers by federal courts, however, until enactment of general federal question jurisdiction—the7 Osborn v. Bank of the United States , for example, arose under the statute

incorporating the Bank, which included a grant of f ederal court jurisdiction in cases involving the Bank. 22 U.S. at 818. 12 precursor of 28 U.S.C. § 1331—in 1875. Judiciary A ct of 1875, ch. 137 § 1, 18
Stat. 470. 7That Act granted jurisdiction to federal districtcourts over “all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundre d dollars, and arising under the Constitution or laws of the United States, or treat ies made . . . under their authority.” Section 1331 thus provides jurisdictionfor the exercise of the traditional powers of equity in actions arising und er federal law. No more specific statutory basis is required. See John F. Duffy, Administrative Common Law in Judicial Review , 77 Texas L. Rev. 113, 147–48 (1998) (“[A] litigan t having no other statutory authority for judicial re view may unabashedly point to Section 1331 as the basis for injunctive relief aga inst agency officers . . . .”). As already noted, the Supreme Court in Bell v. Hood held that suits for relief directly under the Constitution fall within this grant of ju risdiction. The difficulty with grounding claims for affirmativ e injunctions requiring federal officers to take action required by the Con stitution, afterBell , was not cause of action or subject matter jurisdiction but sovereign immunity. Although nominally brought against the prison dentists, Mr. Simmat’s claim is in reality against the United States. See Kentucky v. Graham , 473 U.S. 159, 165 (1985)8 For descriptions of sovereign immunity doctrine pri or to Larson , see Roger

C. Cramton, Nonstatutory Review of Federal Administrative Actio n: The Need for Statutory Reform of Sovereign Immunity, Subject Mat ter Jurisdiction, and Parties Defendant , 68 Mich. L. Rev. 387, 400-04 (1970); David C. Currie, T HE C ONSTITUTION IN THE S UPREME C OURT : T HE F IRST H UNDRED Y EARS , 1789-1888, at 416-28 (1985). 13 (“Official-capacity suits . . . ‘generally represen t only another way of pleading an action against an entity of which an officer is an agent.’”) (quoting Monell v. Dept. of Social Services , 436 U.S. 658, 690, n.55 (1978)). In Larson v. Domestic & Foreign Commerce Corp. , 337 U.S. 682 (1949), the Supreme Court appeared t o restrict the availability of injunctive relief agai nst federal officials. 8 Larson recognized the traditional exception to sovereign i mmunity, commonly referred to as the ultra vires doctrine, permitting suits for prospective relief w hen government officials act beyond the limits of statu tory authority or when the statute from which government officials derive thei r authority is itself unconstitutional. See id. at 690. But Larson reasserted the importance of the line between injunctions prohibiting illegal action and injunctions requiring officials

to act. Larson explained that a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionallyor beyond his statutory powers, if the relief requested can not b e granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposit ion of unquestionably sovereign property. Id. at 691 n.11. The defendants in this case argue th at Larson blocks Mr.14

Simmat’s suit, which, in their view, would “require affirmative action by the sovereign,” namely provision of dental care. Aple. Supp. Br. 23–24. The defendants’ interpretation of Larson would leave prisoners without a remedy for federal prison officials’ failure to car ry out their constitutional duties, violating the basic principle that “where federally protected rights have been invaded, it has been the rule from the beginning th at courts will be alert to adjust their remedies so as to grant the necessary relief . . . .” Bell v. Hood, 327 U.S. 678, 684 (1946) (citing Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803)); see also Farmer v. Brennan , 511 U.S. 825, 846 (1994) (stating that the courts could “grant appropriate relief” on a federal prisoner’s Eighth Amendment claim for damages and injunctive relief against prison offici als in their individual and official capacities). Aware of the impact of the doctrine of sovereign im munity on vindication of constitutional and other legal rights, Congress passed legislation in 1976 to waive sovereign immunity in most suits for nonmonet ary relief: An action in a court of the United States seeking r elief other than money damages and stating a claim that an agency oran officer or employee thereof acted or failed to act in an offic ial capacity or under color of legal authority shall not be dismiss ed nor relief therein be denied on the ground that it is against the Unit ed States or that the United States is an indispensable party. 5 U.S.C. § 702. This waiver is not limited to suit s under the Administrative Procedure Act. See Chamber of Commerce v. Reich , 74 F.3d 1322, 1329 (D.C.9 We do not address the question of whether, or unde r what circumstances,

Mr. Simmat could assert a claim against the prison dentists under the APA. Mr. Simmat expressly states that he does not seek “judi cial review under the APA but rather under the Eighth Amendment.” Aplt. Supp. Re ply Br. 12. In the first place, it does not appear that Mr. Simmat wishes to obtain review of any administrative proceeding, see Olenhouse v. Commodity Credit Corp. , 42 F.3d 1560, 1573–74 (10th Cir. 1994), but to file an orig inal proceeding in which he could take discovery, introduce evidence, and make arguments for the first time in court. Moreover, he appears to concede that his cla im does not satisfy the APA’s requirement of “final agency action.” See 5 U.S.C. § 704. Agency action is not “final” for purposes of § 704 until “an aggrieved p arty has exhausted all administrative remedies expressly prescribed by statute or agency rule.” Darby v. Cisneros , 509 U.S. 137, 146 (1993). As explained below, Mr . Simmat has not exhausted administrative remedies as required by th e Prison Litigation Reform Act, see infrasection II.B. 15 Cir. 1996) (“The APA’s waiver of sovereign immunityapplies to any suit whether under the APA or not.”); see also United States v. Murdock Mach. & Engr. Co. , 81 F.3d 922, 930 n.8 (10th Cir. 1996) (describing § 702 as “a general waiver of the government’s sovereign immunity from injunctive relief”). Sovereign immunity is therefore not a bar to Mr. Simmat’s act ion for injunctive relief against the prison dentists. 9
D. Relief in the nature of mandamus The district court also had jurisdiction under 28 U .S.C. § 1361, which provides: The district courts shall have original jurisdictio n of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Mandamus is the traditional writ designed to compel government officers to16

perform nondiscretionary duties. See Marbury v. Madison , 5 U.S. (1 Cranch) 137, 168–69 (1803). Significantly, application of the m andamus remedy to require a public official to perform a duty imposed upon him in his official capacity is not limited by sovereign immunity. InHouston v. Ormes , the Court held that suits to compel federal officers “‘to perform some ministeri al duty imposed upon them by law, and which they wrongfully neglect or refuse to perform . . . would not be deemed suits against the United States within the rule that the Government cannot be sued except by its consent.’” 252 U.S. 469, 472 -73 (1920) (quoting Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902)); see also, e.g. , Roberts v. United States ex rel. Valentine , 176 U.S. 221 (1900) (granting mandamus against th e United States Treasurer); Washington Legal Foundation v. U.S. Sentencing Comm ’n , 89 F.3d 897, 901 (D.C. Cir. 1996). In federal courts, however, mandamus has had a curi ous history, which may account for its relative disuse. In Marbury , the Court held that the Supreme Court did not have original jurisdiction to issue writs o f mandamus, impliedly suggesting that the writ might be available in the district courts. In 1813, however, the Court held that the Judiciary Act did not grant jurisdiction to federal courts to issue writs of mandamus except in aid of their jurisdiction. M’Intire v. Wood, 11 U.S. (7 Cranch) 504, 506 (1813); cf. 28 U.S.C. § 1651. That position,10 Jefferson, through his Attorney General, Caesar Rod ney, insisted that it

was a violation of separation of powers for the cou rts to direct the exercise of an executive function through such means as writs of m andamus. See Report of the Attorney General of the United States, July 15, 180 8, in Aurora General Advertiser, No. 5464, at 2-3 (Aug. 9, 1808) (William J. Duane & Co., pub.), quoted and discussed in Michael W. McConnell, The Story of Marbury v. Madison : Making Defeat Look Like Victory , in Constitutional Law Stories 13, 29 (Michael C. Dorf ed. 2004). M’Intire was written by Jeffersonian appointee Justice William Johnson. 17 possibly a reflection of Jeffersonian notions of se paration of powers, 10 lasted only 25 years. In Kendall v. United States ex rel. Stokes , 37 U.S. (12 Pet.) 524, 619–22 (1838), the Court held, ingeniously, withoutoverruling M’Intire , that the federal circuit court for the District of Columbia had inherited the common law jurisdiction of the courts of Maryland, and thus ha d power to issue writs of mandamus. That meant that mandamus was available a gainst federal officials, but only in the District Court for the District of Colu mbia. Obviously, that was inconvenient for plaintiffs in other parts of the c ountry, and discouraged use of the writ. By enactment of the Mandamus and Venue A ct of 1962, P.L. 87-748, § 1(a), 76 Stat. 744 (codified at 28 U.S.C. § 1361), Congress ended this historical anomaly and extended mandamus jurisdiction to all f ederal district courts. To be sure, with the abolition of the traditional c ommon law forms of action, the writ of mandamus is no longer technical ly available. But Federal Rule of Civil Procedure 81(b) provides, “Relief heretofo re available by mandamus . . . may be obtained by appropriate action or by appropr iate motion under the practice18

prescribed in these rules.” The generic “civil act ion” of the new rules, see Fed. R. Civ. P. 2, provides the form of action in which mandamus relief is now available. Congress confirmed the availability of relief “in the nature of mandamus” with the passage of the Mandamus and Venu e Act, which grants the district courts “original jurisdiction of any actio n in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Federal courts have often invoked § 1361 as the jur isdictional basis for challenges to federal prison conditions. See, e.g. , Kahane v. Carlson , 527 F.2d 492, 496 (2d Cir. 1975) (considering a First Amendm ent challenge to prison food services and ordering federal officials to provide “a diet sufficient to sustain the prisoner in good health without violating the Jewis h dietary laws”); Workman v. Mitchell , 502 F.2d 1201, 1205 (9th Cir. 1974) (upholding ju risdiction under § 1361 to consider a due process challenge to prison disciplinary proceedings); Waddell v. Alldredge , 480 F.2d 1078 (3d Cir. 1973) (per curiam) (exerci sing jurisdiction under § 1361 to consider a suit by Bla ck Muslim inmates to compel accommodation of worship services and service of atleast one pork-free meal a day); Taylor v. Blackwell , 418 F.2d 199 (5th Cir. 1969) (holding that § 1361 provided jurisdiction over a federal inmate’s claim alleging wrongful denial of good-time credits) (citing Walker v. Blackwell , 360 F.2d 66 (5th Cir. 1966)). We19

endorse this practice for challenges to the failure of prison officials to carry out nondiscretionary duties. Mandamus relief is available only to compel a gover nment officer to perform a duty that is “ministerial, clearly define d, and peremptory” as opposed to duties within the officer’s discretion. Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown , 656 F.2d 564, 566 (10th Cir. 1981) (quoting Schulke v. United States , 544 F.2d 453, 455 (10th Cir. 1976)). But the fac t that an official’s duty entails some discretion does notnecessarily shield him from mandamus. As Chief Justice Taft explained, Mandamus issues to compel an officer to perform a p urely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty m ay be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or m andamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. Work v. United States ex rel. Rives , 267 U.S. 175, 177 (1925)

. Mr. Simmat’s claim falls within this domain. His c laim is not one to control or override the discretion of the prison de ntists, but simply to be examined by the dentists and to receive whatever care they b elieve is necessary in their professional judgment, and under the Eighth Amendme nt. See Complaint, R. Doc. 1 at 5–6. This is not to say that Mr. Simmat is entitled to the full measure of relief demanded in his complaint, namely, an order “specifying that all of20

plaintiff’s dental deficiencies be made good, wheth er or not procedures required to accomplish that are within currently approved de ntal procedures within the BOP for its prisoners.” Id. Not only does this relief demand action beyond routine dental care under BOP policy; it exceeds th e scope of Mr. Simmat’s alleged injuries. We do hold, however, that Mr. Si mmat is not barred by sovereign immunity from obtaining judicial relief o n his constitutional claim. In sum, as a result of congressional action in 1875 (creating general federal question jurisdiction), 1962 (extending mandamus ju risdiction to all federal district courts), and 1976 (waiving sovereign immun ity in cases for nonmonetary relief against federal officials and agencies), fed eral district courts now have jurisdiction over claims by federal prisoners again st federal prison officials seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the natu re of either injunction or mandamus. In many cases, these forms of relief maybe interchangeable. See,
e.g. , Panama Canal Co. v. Grace Line, Inc. , 356 U.S. 309, 318 (1958) (concluding, in a suit to compel a federal entity t o fix new tolls, that “[t]he principle is no different than if mandamus were sou ght”); Fallini v. Hodel , 783 F.2d 1343, 1345 (9th Cir. 1986) (“In effect, the in junction is no different than the mandamus. When the effect of a mandatory injunctio n is equivalent to the issuance of mandamus it is governed by similar cons iderations.”); Carpet,21

Linoleum, and Resilient Tile Layers , 656 F.2d at 567 (“A mandatory injunction such as the one sought here is essentially in the n ature of mandamus.”). In cases seeking specific relief of a nondiscretionary natur e, mandamus would seem to be the more closely tailored avenue for relief. E. Exhaustion of Administrative Remedies Although the district court had jurisdiction over h is claims for nonmonetary relief against the prison dentists, Mr. Simmat fail ed to state a claim upon which relief may be granted because he did not exhaust hi s administrative remedies. The Prison Litigation Reform Act provides: No action shall be brought with respect to prison c onditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner conf ined in any jail, prison, or other correctional facility until such a dministrative remedies as are available are exhausted. 42 U.S.C. 1997e(a). Mr. Simmat is a prisoner confi ned in USP Leavenworth, and this is an action “with respect to prison condition s” brought under federal law. The district court correctly determined that the PL RA required him to exhaust his administrative remedies. See Order of Jan. 9, 2003, R. Doc. 3 at 1. Shortly after the complaint was filed, the districtcourt ordered Mr. Simmat’s former co-plaintiff, James Maass, to suppl ement his complaint with a statement of exhaustion of administrative remedies. See Order of Jan. 9, 2003, R. Doc. 3 at 2. This order did not extend to Mr. Simm at because the complaint22

states that he exhausted his administrative remedie s. Id. at 1. The complaint alleges that “Plaintiff Simmat has exhausted admini strative remedies in Case Number 212339-A1 of the United States Bureau of Pri sons,” Complaint, R. Doc. 1 at 1, and that “though Simmat subsequently filed for administrative remedy to be put on said [treatment] list, defendants have ta ken assertive action to block Simmat’s name from said list.” Id. at 5. Although the complaint states that Mr. Simmat exhausted his administrative remedies, neith er the complaint nor the record provides information sufficient to satisfy the exhaustion requirement. To satisfy the PLRA’s exhaustion requirement, a pri soner must do more than allege that he has exhausted his administrativ e remedies. To state a claim for relief, a prisoner must (1) make a “short and p lain statement of the claim,” Fed. R. Civ. P. 8, and (2) “attach[] a copy of the applicable administrative dispositions to the complaint, or, in the absence o f written documentation, describe with specificity the administrative procee ding and its outcome.” Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1210 (10th Cir. 2003) (quoting Knuckles El v. Toombs , 215 F.3d 640, 642 (6th Cir. 2000)). Unlike his c oplaintiff, Mr. Simmat did not provide documentation of his pursuit of administrative remedies. As a result, the record d oes not indicate how he attempted to address the injuries underlying his co mplaint. The record includes Mr. Simmat’s Inmate Request to Staff forms, but the documents submitted by Mr.23

Maass indicate that additional review was available to inmates. Furthermore, the Inmate Request to Staff forms filed by Mr. Simmat d id not allege denial of treatment; they requested that he be placed on the treatment list. Mr. Simmat provides no evidence that he pursued the relief he now seeks through available administrative channels. The Court thus has no bas is to determine whether he exhausted his administrative remedies for the claim s raised in his complaint. At oral argument, Mr. Simmat’s appointed counsel su ggested, by way of explanation for his failure to exhaust, that Mr. Si mmat “felt stuck.” The question, however, is not whether he feltstuck, but whether he was stuck. We do not mean to criticize counsel, whose explanation for Mr. Sim mat’s delinquency is entirely plausible, and who was unquestionably stuck with th e record below. We mean only to stress that the BOP provided a mechanism fo r administrative review, and the PLRA obligated Mr. Simmat to use it before comi ng to federal court. See 28 C.F.R. § 542.10–.19 (outlining the federal prisons’ Administrative Remedy Program for claims arising out of prison conditions ). Mr. Simmat argues that his claim should be subject only to the common law doctrine of exhaustion, a matter of judicial discre tion. See United Tribe of Shawnee Indians v. United States , 253 F.3d 543, 550 (10th Cir. 2001) (explaining, in a tribe’s suit to compel recognition by the Bure au of Indian Affairs, that “in cases not governed by the APA, the doctrine of exhaustion applies as a matter of24

judicial discretion”). But this argument applies on ly to cases where there is no other statutory exhaustion requirement. Prison con ditions litigation is not one of these. Exhaustion is not some arbitrary hurdle to make it difficult for prisoners to sue. It serves “the twin purposes of protecting ad ministrative agency authority and promoting judicial efficiency.” McCarthy v. Madigan , 503 U.S. 140, 145 (1992). By giving the agency a chance to correct i ts own errors, administrative review often obviates the need for litigation. Age ncy review typically moves much more quickly than federal litigation. See, e.g. , Thomas v. Woolum , 337 F.3d 720, 732 (6th Cir. 2003) (“[I]t is in the prison gr ievance process that inmates will, for most practical purposes, receive their swiftestand most effective remedies.”). Indeed, Mr. Simmat’s claim is an excellent illustration of why exhaustion is essential to the efficient resolution of claims. M r. Simmat has litigated this case in court for well over two years, presumably without receiving dental care. Had he pursued administrative remedies, Mr. Simmat almo st certainly would have received dental treatment by now, or an explanation why not. Developing the factual record through administrativ e review is particularly important in pro se prison litigation, where exhaus tion “serves the same purpose and is very similar to discovery in ordinary litigation.” Brice v. Day , 604 F.2d 664, 667 (10th Cir. 1979) (per curiam), disapproved on other grounds by25

McCarthy v. Madigan , 503 U.S. 140 (1992). At the very least, the admi nistrative remedy process would have given Mr. Simmat a defini tive answer to his request for treatment, explaining why the prison believes h e is not entitled to what he seeks. Because Mr. Simmat’s claims against the pri son dentists did not pass through the administrative review process, the scant record of this case sheds no light on what happened after his final dental exami nation in August 2000. We can only guess why Mr. Simmat was unable to get dental treatment. Was this the result of his own failure to show up for an appointment? Was it due to overwork and understaffing in the Leavenworth dental departm ent? Was it just a bureaucratic snafu? Was it the product of maliciou s dental neglect, or a secret and unstated BOP policy against providing proper de ntal care, as Mr. Simmat claims? If Mr. Simmat had pursued his administrati ve remedies, he would have received either relief or an explanation, and the c ourts would have something to review. Exhaustion is a pleading requirement rather than an affirmative defense. Steele , 355 F.3d at 1210. Mr. Simmat’s failure to adequately plead exhaustion therefore amounts to a failure to state a claim upo n which relief can be granted. Id. When a prisoner fails to state a claim, the PLRA re quires the court to dismiss the complaint sua sponte: The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison condition s . . . if the court26

is satisfied that the action is frivolous, maliciou s, fails to state a claim upon which relief can be granted, or seeks mo netary relief from a defendant who is immune from such relief. 42 U.S.C. § 1997e(c)(1). Because Mr. Simmat failedto exhaust his administrative remedies, we must dismiss the compla int for failure to state a claim. III. Mr. Simmat’s Claim Against the Bureau of Prison s In his briefs in this Court, Mr. Simmat also claims that the BOP violated his Eighth Amendment right to adequate medical treatment by following a de facto policy against routine dental care. The BOP’ s dental care policy, recorded in a BOP Policy Statement, provides that prisoners shall receive both routine and emergency dental care. See Policy Statement 6000.05 § 5(c)(1), (2). Emergency care is available at sick call on a twenty-four-hou r basis. Id. § 5(c)(1). The BOP provides routine care “as resources of staff, time, and materials are available and commensurate with the inmate’s ability to maintain good oral health.” Id. § 5(c)(2). Mr. Simmat alleges that the BOP failed to follow its written policy, instead refusing to provide routine care to inmates

. The BOP argues that Mr. Simmat’s claim is barred bysovereign immunity. Mr. Simmat argues that the United States, and there fore the BOP, waived sovereign immunity in the APA, which provides: A person suffering legal wrong because of agency ac tion, or adversely affected or aggrieved by agency action wi thin the meaning27

of a relevant statute, is entitled to judicial revi ew thereof. . . . The United States may be named as a defendant in any su ch action [for relief other than money damages], and a judgment ordecree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officeror officers (by name or by title), and their successors in office, personally responsible for compliance. Id. § 702. If the BOP is an agency within the meaning of the A PA, Mr. Simmat can pursue a claim against the BOP itself. The language of the APA indicates that the BOP is a n agency within the meaning of the statute. For purposes of the APA, “ ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1) (exce pting certain entities, including Congress and the federal courts, but not including the BOP). Interpreting § 551(1), the Seventh Circuit held, “T he Bureau of Prisons is part of the Department of Justice, and thus undeniably an ‘ agency’ if this language be taken literally.” White v. Henman , 977 F.2d 292, 293 (7th Cir. 1992); see also
Bunn v. Conley , 309 F.3d 1002, 1009 (7th Cir. 2002) (“The APA app lies to the Bureau of Prisons . . . and therefore may be the ap propriate way to contest the Bureau's implementation of [a Program Statement]”). The D.C. Circuit reached the same conclusion in Ramer v. Saxbe , in which federal prisoners sought declaratory, injunctive, and mandamus relief agains t the Attorney General and the Director of the BOP. 522 F.2d 695, 697 (D.C. Cir. 1975); see also Krilich v.11 The defendants argue that sovereign immunity bars Mr. Simmat’s claim

against the BOP because the Program Statement, as an internal agency guideline not adopted under APA procedures, does not create e nforceable entitlements. See Miller v. Henman , 804 F.2d 421, 426 (7th Cir. 1986) (holding that aBOP program manual “not promulgated under the Administrative Pr ocedure Act or published in the Code of Federal Regulations . . . does not create legally enforceable entitlements”). Mr. Simmat does not rely on an ent itlement created by the Policy Statement. He relies on a constitutional right that USP Leavenworth allegedly denied by following an unwritten policy against routine dental care. Whether the Policy Statement was adopted under APA procedures i s not relevant to his claim. 28 Bureau of Prisons , 346 F.3d 157, 159 (6th Cir. 2003) (dismissing a federal prisoner’s challenge to prison conditions because “ the APA falls within the broad sweep of claims subject to the exhaustion requireme nts of the PLRA”); Gunderson v. Hood, 268 F.3d 1149, 1152–54 (9th Cir. 2001) (analyzing a BOP program statement under the APA); but cf. Clardy v. Levi , 545 F.2d 1241, 1245 (9th Cir. 1976) (holding that the APA does not appl y to prison disciplinary proceedings, but acknowledging that neither the text of the statute nor its legislative history suggest that unexpressed except ions to its coverage exist). Because the BOP is an agency within the meaning of the APA, sovereign immunity does not bar Mr. Simmat’s claim. 11
We nonetheless are unable to reach Mr. Simmat’s cla im against the BOP because he did not raise it in the district court. Not only did Mr. Simmat fail to raise the claim below; he specifically denied havin g raised it. In his response to the defendants’ Motion to Dismiss, Mr. Simmat state d:

Plaintiffs consider the dental policy of the United States29

Bureau of Prisons to be very good, having read it i n its entirety, and made no complaint about it, nor do they so complain now. The issue in the instant action . . . is that the good doctor s have failed to meet that policy, and misused it, and subverted it. Response, R. Doc. 31, at 16. Mr. Simmat changes co urse on appeal, complaining that the BOP had a de facto policy against routine dental care and refused to provide treatment unless a prisoner experienced pai n. See Supp. Br. 42. A litigant is not entitled to disavow a claim before one court only to spring it on his opponent at the next stage of the proceedings. See Tele-Communications, Inc. v.
Comm’r , 104 F.3d 1229, 1232–33 (10th Cir. 1997) (explaini ng that review of issues not raised below “would undermine the need f or finality in litigation and conservation of judicial resources . . . and would often allow a party to raise a new issue on appeal when that party invited the all eged error below”). Mr. Simmat failed to present his claim against the BOP to the district court, and we will not address it for the first time on appeal.
V. Conclusion The district court had subject matter jurisdiction in this case under 28 U.S.C. § 1331 or 1361. The cause of action arose d irectly under the Eighth Amendment, and relief against the prison dentists w ould take the form of a mandatory injunction or, more precisely, relief in the nature of mandamus. Sovereign immunity does not deprive this Court of j urisdiction over Mr. Simmat’s claims. However, because he failed to present his claim against the BOP in the30

district court, and because he failed to exhaust ad ministrative remedies for his claim against the prison dentists, Mr. Simmat fails to state a claim upon which relief can be granted. The district court’s decisi on is therefore REVERSED with instructions to DISMISS WITHOUT PREJUDICE.