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, Kansas, for DefendantsAppellees.

Before KELLY, HARTZ, and McCONNELL, Circuit Judges.
1

See Boyce v. Ashcroft, 251 F.3d 911 (10th Cir. 2001) (affirming dismissal

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 Section 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 BOP 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 prisoner’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, surprisingly, the vehicle is not so

clear. In Farmer v. Brennan, 511 U.S. 825, 846 (1994), the Supreme Court stated

only that the courts could “grant appropriate relief” on a federal prisoner’s Eighth

Amendment claim for damages and injunctive relief against prison officials in

their individual and official capacities. Some courts have treated such actions as

Bivens actions, even when the inmate seeks injunctive relief against officials in

their official capacities. See Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971).1 Others have assumed that there exists
1

(...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 injunctive 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 medical care and arbitrary

disciplinary sanctions as “a complaint requesting injunctive 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 Bureau 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 jurisdiction

on § 1331 and granting injunctive relief in a federal 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” publications); Kimberlin v.

United States Dept. of Justice, 318 F.3d 228 (D.C. Cir. 2003) (per curiam)

(rejecting federal prisoners’ First Amendment challenge to a BOP regulation

prohibiting electric instruments).

3

a non-statutory basis for injunctive action, perhaps coupled with declaratory relief

under the Declaratory Judgment Act, or civil actions in the nature of mandamus.2

In the latter cases, the question arises whether the actions are barred by sovereign

immunity. Very often the nature of the claim and the basis for rejecting sovereign

immunity are not addressed.3 We believe clarification would be useful.

This case involves an action against prison dentists in their official capacity

for injunctive relief. The defendants, the prison dentists and the United States

Bureau of Prisons (“BOP”), assert that the action is barred by sovereign

immunity. We hold that jurisdiction exists under 28 U.S.C. §§ 1331 or 1361, that
4

the case is properly denominated an action for relief in the nature of mandamus,

authorized under 28 U.S.C. § 1361, and that sovereign immunity is not a bar. We

also hold, however, that plaintiff’s suit against the prison dentists must be

dismissed without prejudice for failure to exhaust his administrative remedies, as

required by the Prison Litigation Reform Act of 1995 (“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 second degree murder

and sentenced by the State of Connecticut to life imprisonment in 1962. Since

January 21, 1995, he has been incarcerated in the United States Penitentiary at

Leavenworth, Kansas (“USP Leavenworth”). The precise 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 problems, including gum

disease, several cavities, and a root that protrudes from his gums. In August

1999, he submitted a request to BOP staff to be placed on the treatment list to see
5

the dentist about a cavity. Dr. Jackson informed him that he had been placed on

the list. In November 1999, before getting treatment, 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 2000, still having received no

treatment, Mr. Simmat submitted a third request for an appointment, indicating

that he had been waiting since August 1999 and that two of his teeth needed to be

treated. Dr. Jackson told him that he was on the treatment list and would be

called soon. On April 9, 2000, Mr. Simmat submitted an Inmate Request to Staff

form to Dr. Jackson and the Health Services administrator stating that “one of my

problem teeth now gives me constant pain, which gets really bad when I lay

down.” This request concerned a third tooth—number thirty, 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 restorative agent” on the tooth

and prescribed antibiotics and pain medication. Mr. Simmat alleges that when he

asked about a permanent filling, Dr. Jackson told him that he had been

“discouraged and reprimanded for providing permanent fillings.” 

After he treated tooth number thirty, Dr. Jackson removed Mr. Simmat’s

name from the treatment list. Mr. Simmat saw Dr. Jackson for a follow-up x-ray
4

 Mr. Simmat filed the complaint on behalf of himself and a co-plaintiff,

James Maass. The district court dismissed Mr. Maass’s claim as moot after he

was transferred to a state correctional facility in Wisconsin. 

5

 The complaint does not name the BOP separately; rather, 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 well as the individual defendants,

we conclude that Mr. Simmat has adequately named the BOP as a defendant.

6

of tooth number thirty on August 30, 2000. Dr. Jackson did not treat any other

teeth at that time, and he asked Mr. Simmat to return 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 complaint named as defendants Dr.

Jackson and Dr. Stempel, in their official capacities, as well as the BOP.5 Mr.

Simmat alleged that the defendants’ refusal to provide 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 defendants, or

to their successors in office . . . specifying that all of plaintiff’s dental

deficiencies be made good, whether or not procedures required to accomplish that

are within currently approved dental procedures within the BOP for its prisoners.” 
6

 The defendants also moved to dismiss for improper service 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 not address the motion to dismiss

for improper service of process because it was conditioned 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 that he alleged facts sufficient to

state a violation of the Eighth Amendment for purposes 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 the ground that

sovereign immunity deprived the court of subject matter jurisdiction. In the

alternative, the defendants moved for summary judgment on the ground that Mr.

Simmat failed to raise a genuine issue of fact on his Eighth Amendment claim.6

 

The district court held that sovereign immunity did not deprive it of

jurisdiction because Mr. Simmat sought only injunctive relief from alleged

constitutional violations by federal officials. Nevertheless, the district court held

that Mr. Simmat failed to raise a genuine issue of fact regarding deliberate

indifference to a serious medical condition, the applicable 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 the court had jurisdiction over

claims for injunctive relief against prison officials in their official capacities or
8

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 prison dentists, in their

official capacities. Until relatively recently, a suit like Mr. Simmat’s would have

faced serious obstacles deriving from the related doctrines of subject matter

jurisdiction and sovereign immunity. The legacy of those restrictions may well

account for the confusion courts still seem to experience regarding the legal forms

such litigation may take. As will be seen, however, Congress has expanded the

jurisdiction of federal district courts and narrowed the scope of sovereign

immunity, making suits for injunctive relief against federal officers for

constitutional derelictions far more straightforward than they used to be.

A. Jurisdictional Basis for Action Against Prison Officials 

Mr. Simmat argues that his claims against the dentists 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 “clearly appear[] to be immaterial

and made solely for the purpose of obtaining jurisdiction” and claims that are
9

“wholly insubstantial and frivolous.” Id. at 682–83 

Mr. Simmat’s claim easily meets the basic requirements of federal question

jurisdiction. Mr. Simmat alleges that the defendants deprived him of adequate

medical care by deliberate indifference to his serious dental needs. This claim

arises directly under the Constitution. The Eighth Amendment prohibits the

government from incarcerating prisoners without providing adequate medical

care. See Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). “Prison

officials violate the Eighth Amendment when they are deliberately indifferent to

the serious medical needs of prisoners in their custody.” 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 gives rise to general federal question

jurisdiction under 28 U.S.C. § 1331. But jurisdiction is not enough. To bring

suit, a plaintiff must also state a claim upon which 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 “the existence of a remedy,” from

jurisdictional questions).

B. Bivens

Some courts have characterized constitutional claims to enjoin federal

officials as Bivens claims. See note 1, above. Bivens was a landmark decision
10

holding that plaintiffs may sue federal officials in their individual capacities for

damages for Fourth Amendment violations, even in the 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 cause of

action for Eighth Amendment violations). The defendants are correct, however,

that a Bivens claim lies against the federal official in his individual capacity—not,

as here, against officials in their official capacity. 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 or

her official capacity. Instead, any action that charges such an official

with wrongdoing while operating in his or her official 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 redress.

C. Injunction

Another possibility is a claim for an injunction, based on the federal courts’

equity jurisdiction, to enforce the dictates of the Eighth Amendment. Federal

courts have long exercised the traditional powers of equity, in cases within their

jurisdiction, to prevent violations of constitutional 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 State officer from executing a

State law in conflict with the Constitution or a statute of the United States, when

such execution will violate the rights of the complainant.”); 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 equity” from enforcing

unconstitutional statutes); Bell v. Hood, 327 U.S. 678, 684 (1946) (recognizing

the “jurisdiction of federal courts to issue injunctions to protect rights

safeguarded by the Constitution”); Bolling v. Sharpe, 347 U.S. 497 (1954)

(holding that the Fifth Amendment and § 1331 created 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 of

federal equitable relief, if a proper showing can be made in terms of the ordinary

principles governing equitable remedies” as a factor 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—the
7Osborn v. Bank of the United States, for example, arose under the statute

incorporating the Bank, which included a grant of federal court jurisdiction in

cases involving the Bank. 22 U.S. at 818. 

12

precursor of 28 U.S.C. § 1331—in 1875. Judiciary Act of 1875, ch. 137 § 1, 18

Stat. 470.7 That Act granted jurisdiction to federal district courts 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 hundred dollars, and arising under the

Constitution or laws of the United States, or treaties made . . . under their

authority.” Section 1331 thus provides jurisdiction for the exercise of the

traditional powers of equity in actions arising under 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] litigant

having no other statutory authority for judicial review may unabashedly point to

Section 1331 as the basis for injunctive relief against 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 jurisdiction.

The difficulty with grounding claims for affirmative injunctions requiring

federal officers to take action required by the Constitution, after Bell, 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)
8For descriptions of sovereign immunity doctrine prior to Larson, see Roger

C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for

Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties

Defendant, 68 Mich. L. Rev. 387, 400-04 (1970); David C. Currie, THE

CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888,

at 416-28 (1985). 

13

(“Official-capacity suits . . . ‘generally represent 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 to

restrict the availability of injunctive relief against federal officials.8 Larson

recognized the traditional exception to sovereign immunity, commonly referred to

as the ultra vires doctrine, permitting suits for prospective relief when

government officials act beyond the limits of statutory authority or when the

statute from which government officials derive their 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 unconstitutionally or beyond his

statutory powers, if the relief requested can not be granted by merely

ordering the cessation of the conduct complained of but will require

affirmative action by the sovereign or the disposition of

unquestionably sovereign property.

Id. at 691 n.11. The defendants in this case argue that 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 carry out their constitutional duties,

violating the basic principle that “where federally protected rights have been

invaded, it has been the rule from the beginning that 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 officials in their individual and

official capacities). 

Aware of the impact of the doctrine of sovereign immunity on vindication

of constitutional and other legal rights, Congress passed legislation in 1976 to

waive sovereign immunity in most suits for nonmonetary relief:

An action in a court of the United States seeking relief other than

money damages and stating a claim that an agency or an officer or

employee thereof acted or failed to act in an official capacity or

under color of legal authority shall not be dismissed nor relief therein

be denied on the ground that it is against the United States or that the

United States is an indispensable party.

5 U.S.C. § 702. This waiver is not limited to suits 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 under what circumstances,

Mr. Simmat could assert a claim against the prison dentists under the APA. Mr.

Simmat expressly states that he does not seek “judicial review under the APA but

rather under the Eighth Amendment.” Aplt. Supp. Reply 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 original 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 claim 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 party 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 the Prison Litigation Reform

Act, see infra section II.B. 

15

Cir. 1996) (“The APA’s waiver of sovereign immunity applies 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 action 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 jurisdiction 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 to
16

perform nondiscretionary duties. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,

168–69 (1803). Significantly, application of the mandamus remedy to require a

public official to perform a duty imposed upon him in his official capacity is not

limited by sovereign immunity. In Houston v. Ormes, the Court held that suits to

compel federal officers “‘to perform some ministerial 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 the 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 curious 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 of 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,
10Jefferson, through his Attorney General, Caesar Rodney, insisted that it

was a violation of separation of powers for the courts to direct the exercise of an

executive function through such means as writs of mandamus. See Report of the

Attorney General of the United States, July 15, 1808, 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 separation 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, without overruling 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 had power to issue writs of

mandamus. That meant that mandamus was available against federal officials, but

only in the District Court for the District of Columbia. Obviously, that was

inconvenient for plaintiffs in other parts of the country, and discouraged use of

the writ. By enactment of the Mandamus and Venue Act 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 federal district courts.

To be sure, with the abolition of the traditional common law forms of

action, the writ of mandamus is no longer technically available. But Federal Rule

of Civil Procedure 81(b) provides, “Relief heretofore available by mandamus . . .

may be obtained by appropriate action or by appropriate motion under the practice
18

prescribed in these rules.” The generic “civil action” 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 Venue Act, which grants the

district courts “original jurisdiction 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.” 28 U.S.C. § 1361.

Federal courts have often invoked § 1361 as the jurisdictional basis for

challenges to federal prison conditions. See, e.g., Kahane v. Carlson, 527 F.2d

492, 496 (2d Cir. 1975) (considering a First Amendment challenge to prison food

services and ordering federal officials to provide “a diet sufficient to sustain the

prisoner in good health without violating the Jewish dietary laws”); Workman v.

Mitchell, 502 F.2d 1201, 1205 (9th Cir. 1974) (upholding jurisdiction under §

1361 to consider a due process challenge to prison disciplinary proceedings);

Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973) (per curiam) (exercising

jurisdiction under § 1361 to consider a suit by Black Muslim inmates to compel

accommodation of worship services and service of at least 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)). We
19

endorse this practice for challenges to the failure of prison officials to carry out

nondiscretionary duties.

Mandamus relief is available only to compel a government officer to

perform a duty that is “ministerial, clearly defined, 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 fact that

an official’s duty entails some discretion does not necessarily shield him from

mandamus. As Chief Justice Taft explained,

Mandamus issues to compel an officer to perform a purely 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 may be

discretionary within limits. He can not transgress those limits, and if

he does so, he may be controlled by injunction or mandamus 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 claim is not one to

control or override the discretion of the prison dentists, but simply to be examined

by the dentists and to receive whatever care they believe is necessary in their

professional judgment, and under the Eighth Amendment. 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 of
20

plaintiff’s dental deficiencies be made good, whether or not procedures required

to accomplish that are within currently approved dental procedures within the

BOP for its prisoners.” Id. Not only does this relief demand action beyond

routine dental care under BOP policy; it exceeds the scope of Mr. Simmat’s

alleged injuries. We do hold, however, that Mr. Simmat is not barred by

sovereign immunity from obtaining judicial relief on his constitutional claim.

In sum, as a result of congressional action in 1875 (creating general federal

question jurisdiction), 1962 (extending mandamus jurisdiction to all federal

district courts), and 1976 (waiving sovereign immunity in cases for nonmonetary

relief against federal officials and agencies), federal district courts now have

jurisdiction over claims by federal prisoners against 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 nature of either injunction or

mandamus. In many cases, these forms of relief may be 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 to fix new tolls, that “[t]he

principle is no different than if mandamus were sought”); Fallini v. Hodel, 783

F.2d 1343, 1345 (9th Cir. 1986) (“In effect, the injunction is no different than the

mandamus. When the effect of a mandatory injunction is equivalent to the

issuance of mandamus it is governed by similar considerations.”); 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 nature of mandamus.”). In cases

seeking specific relief of a nondiscretionary nature, mandamus would seem to be

the more closely tailored avenue for relief.

E. Exhaustion of Administrative Remedies

Although the district court had jurisdiction over his claims for nonmonetary

relief against the prison dentists, Mr. Simmat failed to state a claim upon which

relief may be granted because he did not exhaust his administrative remedies. 

The Prison Litigation Reform Act provides:

No action shall be brought with respect to prison conditions under

section 1979 of the Revised Statutes of the United States (42 U.S.C.

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. 1997e(a). Mr. Simmat is a prisoner confined in USP Leavenworth, and

this is an action “with respect to prison conditions” brought under federal law. 

The district court correctly determined that the PLRA 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 district court ordered Mr.

Simmat’s former co-plaintiff, James Maass, to supplement 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. Simmat because the complaint
22

states that he exhausted his administrative remedies. Id. at 1. The complaint

alleges that “Plaintiff Simmat has exhausted administrative remedies in Case

Number 212339-A1 of the United States Bureau of Prisons,” Complaint, R. Doc.

1 at 1, and that “though Simmat subsequently filed for administrative remedy to

be put on said [treatment] list, defendants have taken assertive action to block

Simmat’s name from said list.” Id. at 5. Although the complaint states that Mr.

Simmat exhausted his administrative remedies, neither the complaint nor the

record provides information sufficient to satisfy the exhaustion requirement. 

To satisfy the PLRA’s exhaustion requirement, a prisoner must do more

than allege that he has exhausted his administrative remedies. To state a claim

for relief, a prisoner must (1) make a “short and plain 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 of written documentation,

describe with specificity the administrative proceeding 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 coplaintiff, Mr. Simmat did not provide documentation of his pursuit of

administrative remedies. As a result, the record does not indicate how he

attempted to address the injuries underlying his complaint. 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 did 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 basis to determine whether he

exhausted his administrative remedies for the claims raised in his complaint.

At oral argument, Mr. Simmat’s appointed counsel suggested, by way of

explanation for his failure to exhaust, that Mr. Simmat “felt stuck.” The question,

however, is not whether he felt stuck, but whether he was stuck. We do not mean

to criticize counsel, whose explanation for Mr. Simmat’s delinquency is entirely

plausible, and who was unquestionably stuck with the record below. We mean

only to stress that the BOP provided a mechanism for administrative review, and

the PLRA obligated Mr. Simmat to use it before coming 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 discretion. 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 Bureau of Indian Affairs, that “in

cases not governed by the APA, the doctrine of exhaustion applies as a matter of
24

judicial discretion”). But this argument applies only to cases where there is no

other statutory exhaustion requirement. Prison conditions 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 administrative agency authority

and promoting judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145

(1992). By giving the agency a chance to correct its own errors, administrative

review often obviates the need for litigation. Agency 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 grievance process that inmates will,

for most practical purposes, receive their swiftest and most effective remedies.”).

Indeed, Mr. Simmat’s claim is an excellent illustration of why exhaustion is

essential to the efficient resolution of claims. Mr. Simmat has litigated this case

in court for well over two years, presumably without receiving dental care. Had

he pursued administrative remedies, Mr. Simmat almost certainly would have

received dental treatment by now, or an explanation why not.

Developing the factual record through administrative review is particularly

important in pro se prison litigation, where exhaustion “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 by
25

McCarthy v. Madigan, 503 U.S. 140 (1992). At the very least, the administrative

remedy process would have given Mr. Simmat a definitive answer to his request

for treatment, explaining why the prison believes he is not entitled to what he

seeks. Because Mr. Simmat’s claims against the prison 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 examination 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 department? Was it just a

bureaucratic snafu? Was it the product of malicious dental neglect, or a secret

and unstated BOP policy against providing proper dental care, as Mr. Simmat

claims? If Mr. Simmat had pursued his administrative remedies, he would have

received either relief or an explanation, and the courts 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 upon which relief can be granted. 

Id. When a prisoner fails to state a claim, the PLRA requires 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 conditions . . . if the court
26

is satisfied that the action is frivolous, malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief

from a defendant who is immune from such relief.

42 U.S.C. § 1997e(c)(1). Because Mr. Simmat failed to exhaust his

administrative remedies, we must dismiss the complaint for failure to state a

claim.

III. Mr. Simmat’s Claim Against the Bureau of Prisons

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-hour 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 by sovereign immunity. 

Mr. Simmat argues that the United States, and therefore the BOP, waived

sovereign immunity in the APA, which provides:

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning
27

of a relevant statute, is entitled to judicial review thereof. . . . The

United States may be named as a defendant in any such action [for

relief other than money damages], and a judgment or decree may be

entered against the United States: Provided, That any mandatory or

injunctive decree shall specify the Federal officer or 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 APA, Mr. Simmat

can pursue a claim against the BOP itself.

The language of the APA indicates that the BOP is an 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) (excepting certain entities,

including Congress and the federal courts, but not including the BOP). 

Interpreting § 551(1), the Seventh Circuit held, “The 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 applies to the

Bureau of Prisons . . . and therefore may be the appropriate 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 against 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 enforceable entitlements. See

Miller v. Henman, 804 F.2d 421, 426 (7th Cir. 1986) (holding that a BOP program

manual “not promulgated under the Administrative Procedure Act or published in

the Code of Federal Regulations . . . does not create legally enforceable

entitlements”). Mr. Simmat does not rely on an entitlement 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 is 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 requirements 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 apply to prison disciplinary

proceedings, but acknowledging that neither the text of the statute nor its

legislative history suggest that unexpressed exceptions 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 claim 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 having raised it. In his response to

the defendants’ Motion to Dismiss, Mr. Simmat stated:

Plaintiffs consider the dental policy of the United States
29

Bureau of Prisons to be very good, having read it in its entirety, and

made no complaint about it, nor do they so complain now. The issue

in the instant action . . . is that the good doctors have failed to meet

that policy, and misused it, and subverted it.

Response, R. Doc. 31, at 16. Mr. Simmat changes course on appeal, complaining

that the BOP had a de facto policy against routine dental care and refused to

provide treatment unless a prisoner experienced pain. 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) (explaining that review of

issues not raised below “would undermine the need for 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 alleged 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 directly under the Eighth

Amendment, and relief against the prison dentists would take the form of a

mandatory injunction or, more precisely, relief in the nature of mandamus.

Sovereign immunity does not deprive this Court of jurisdiction over Mr. Simmat’s

claims. However, because he failed to present his claim against the BOP in the
30

district court, and because he failed to exhaust administrative 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 decision is therefore REVERSED with

instructions to DISMISS WITHOUT PREJUDICE.