United States District Court, District of New Jersey
August 17, 2001
PETER JOE RIVERA, PLAINTIFF,
CHRISTINE TODD WHITMAN, JACK TERHUNE, DONALD E. LEWIS, M. SCHILLING, SGT. KERSHAW, S.C.O. PEREZ, STANLEY NUNN, SGT. WARREN, S.C.O. SHARP, S.C.O. MCCONNELLY, T. LOPEZ, JAMES F. BARBO, S.C.O. SCHWENK, S.C.O. WASICK, DEFENDANTS.
The opinion of the court was delivered by: Irenas, District Judge:
Presently before the Court is Defendants' Motion for Summary Judgment
of Plaintiff Peter Joe Rivera's § 1983 action. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343.
For the reasons set forth below, Plaintiffs' suit is dismissed without
Peter Joe Rivera ("Plaintiff") is an inmate presently incarcerated at
Northern State Prison in Newark, New Jersey. He brought this action
pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional
rights. Plaintiff named seventeen defendants in this action, including
Christine Todd Whitman, then-Governor of New Jersey; Jack Terhune,
the New Jersey Department of Corrections; Donald E.
Lewis, Administrator of Riverfront State Prison ("RSP"); W. Stanley
Nunn, Administrator of Southwoods State Prison ("Southwoods"); James F.
Barbo, Administrator of Northern State Prison ("NSP"); Correctional
Medical Services; three RSP corrections officers, Lieutenant M.
Schillig, Sergeant Kershaw and Officer Perez; two Southwoods corrections
officers, Sergeant Warren and Officer Sharp; three NSP corrections
officers, Lieutenant T. Lopez and Officers Schwenk and Wasik; S.
Larkins, a disciplinary hearing officer at NSP; and Chief Hearing Officer
McNeil of the New Jersey Department of Corrections. (Compl. 5-5k). The
claims against defendants Whitman, Larkins, McNeil, and Correctional
Medical Services, Inc., have already been dismissed. (See Orders
3/25/99, 6/22/99, 2/8/00).
Plaintiff asserts that on May 27, 1998, while he was incarcerated at
RSP, he was assaulted by defendants Perez and Kershaw, while Lieutenant
Schillig witnessed the incident but refused to intervene. (Compl.
6(c)-(e)). Defendants counter that, in preparing to escort Plaintiff to
TCC, they merely used necessary force after Plaintiff resisted being
handcuffed. (Defs.' Mot. Summ. J. Ex B. at ¶ 3). Plaintiff alleges
that he sustained cuts and bruises all over his body during the assault.
(Compl. at 6(c)). He claims that once he was in the detention unit, the
corrections officers there called the medical staff to care for his
injuries. (Id. at 6(f)). Rivera maintains that, after thirty minutes, a
nurse arrived and interviewed him through the detention cell's soundproof
door. (Id.). He states that the nurse would not treat his injuries, but
told him to wait until he was released from the detention area. (Id.).
Plaintiff alleges that the medical staff knew he had serious injuries but
refused to treat him in retaliation for a lawsuit plaintiff had
previously filed against an RSP physician. (Id. at 6(g)). Defendants
maintain that Plaintiff had only minor superficial abrasions. (Defs.'
Mot. Summ. J. Ex. C at D001).
Plaintiff was transferred to Southwoods in June of 1998. (Compl.
6(i)). He claims that many items of his personal property were lost
during the transfer and that property he sent to his family never
arrived. (Id. at 6(j)). Plaintiff also complains about the conditions
of his confinement after his transfer. (Id. at 6(i)-6(j)). Defendants
claim this complaint was resolved by a member of the warden's staff.
(Defs.' Mot. Summ. J. Ex. D at ¶ 2). Plaintiff next asserts that, on
July 31, 1998, Defendants Sergeant Warren and Officer Sharp along with a
group of other officers beat him as he was leaving the dining hall.
(Compl. 6(k)). Defendants counter that they confronted Plaintiff after
he was observed to have bulges in his front pockets, and restrained him
after he assaulted Warren, one of the confronting officers. (Defs.'
Mot. Summ. J. Ex. E at D004-D007). Plaintiff further alleges that medical
personnel again refused to provide treatment following the incident.
(Compl. 6(h)). Again, Defendants claim he suffered only minor
abrasions. (Defs.' Mot. Summ. J. Ex. C. at D002).
Plaintiff was transferred to NSP on or about August 2, 1998. (Compl.
6(m)-(n)). He claims that the transporting officer, McConnelly,
terrorized him throughout the trip to NSP. (Id. at 6(m)). He also
alleges that he was denied a meal when he arrived and was denied a
sanitary cell as well as clothes and cleaning supplies. (Id. at
6(n)-(o)). Plaintiff further maintains that he was abused by Wasik and
Schwenk once they learned that he had assaulted Warren at Southwoods.
(Id. at 6(p)-(v)). Plaintiff also included various complaints about the
law library services at NSP. (Id. at 6(r)-(s)).
Plaintiff contends that, during his disciplinary hearing on August 3,
1998, vis a vis his assault on Warren, he was denied his right to
cross-examine witnesses and that the hearing officer overlooked
evidence. (Compl. 6(x)-(y)). Plaintiff was found guilty on the
disciplinary charges, a decision upheld on appeal. (Defs.' Mot. Summ. J.
On March 25, 1999, Plaintiff filed the instant action pursuant to
§ 1983 alleging violations of his constitutional rights under the
First, Eighth, and Fourteenth Amendments. On June 29, 2001, Defendants
filed this Motion for Summary Judgment.
II. STANDARD OF REVIEW
"[S]ummary judgment is proper `if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed.R.Civ.P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.
1986). The role of the court is not "to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
A. § 1997e(a)
42 U.S.C. § 1997e(a) provides that:
No action shall be brought with respect to prison
conditions under section 1983 of this title, 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
This past term, the Supreme Court held that § 1997e(a) requires
exhaustion even if available administrative processes cannot grant the
desired remedy. Booth v. Churner, 531 U.S. 956 (2001). In the instant
matter, the issue is whether § 1997e(a) compels a rule of "total
exhaustion" — in other words, whether a district court must dismiss
a prisoner's § 1983 action if some but not all of the claims are
unexhausted or if it may dismiss just those claims which are
The issue is unsettled. The district courts that have addressed the
issue are split. Compare Julian-Bey v. Crowley, No. 2:99-cv-107, 2000
U.S. Dist. LEXIS 14071 (W.D.Mich. Sept. 21, 2000) (holding that plain
language and policy interests required "total exhaustion" rule); Thorp
v. Kepoo, 100 F. Supp.2d 1258 (D.Haw. 2000) (same); Keenan v. Twommey,
No. 1:97-cv-549, 1999 U.S. Dist. LEXIS 11829 (W.D.Mich. July 29, 1999)
(same); Keenan v. Twommey, No. 1:97-cv-549 (W.D.Mich. Sept. 4, 1998)
(same); Sanchez v. O.R. Agency for Santa Clara Cty., No. C 98-830
SI(PR), 1998 WL 283561 (N.D.Cal. May 27, 1998) (summarily dismissing
without prejudice pursuant to "total exhaustion" rule); Abenth v.
Palmer, No. C 96-3938 MHP, 1997 WL 255332 (N.D.Cal. Apr. 28, 1997)
(same); Estrada v. Gomez, No. C 97-297 SI PR, 1997 WL 220313 (N.D.Cal.
Apr. 22, 1997) (same); Eakins v. Stainer, No. C 97-694 SI (pr), 1997 WL
122866 (N.D.Cal. Mar. 5, 1997) (same), with Johnson v. True,
125 F. Supp.2d 186 (W.D.Va. 2000) (holding that "total exhaustion" rule
contradicts congressional intent); Cooper v. Garcia, 55 F. Supp.2d 1090
(S.D.Cal. 1999) (same); Jenkins v. Toombs, 32 F. Supp.2d 955 (W.D.Mich.
While two circuit courts have ruled on the issue, and come to contrary
conclusions, neither has analyzed the issue in any depth. Compare Graves
v. Norris, 218 F.3d 884
, 886 (8th Cir. 2000) (holding that "[w]hen
multiple prison condition claims have been joined . . . the plain
language of § 1997e(a) requires that all available prison grievance
remedies must be exhausted as to all of the claims"), with Riley v.
Richards, 210 F.3d 372 (6th Cir. 2000) (per curiam) ("If a complaint
contains exhausted and unexhausted, the district court may address the
merits of the exhausted claims and dismiss only those that are
unexhausted." (citing Hartsfield v. Vidor, 199 F.3d 305
, 309 (6th Cir.
The Third Circuit has yet to address the issue, and the
only district court in the circuit to deal with it did so without
analysis. Blackwell v. Vaughn, No. 97-CV-3467, 2001 WL 872777 (E.D.Pa.
July 3, 2001) (Brody, J.) (reaching merits of exhausted claims while
dismissing unexhausted claims under 1997e(a)).
1. Plain Meaning of the Statutory Language
A "familiar canon of statutory construction is that the starting point
for interpreting a statute is the language of the statute itself. Absent
a clearly expressed legislative intention to the contrary, that language
must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n
v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Moreover, "words will
be interpreted as taking their ordinary, contemporary, common meaning,"
Perrin v. United States, 444 U.S. 37, 42 (1979), such that "[i]n
construing a federal statute it is appropriate to assume that the
ordinary meaning of the language that Congress employed accurately
expresses the legislative purpose." Mills Music, Inc. v. Snyder,
469 U.S. 153, 164 (1985). Therefore, if the language of the statute is
unambiguous, the plain meaning of the text must be enforced. United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989).
The language of § 1997e(a) was amended in 1996 by the Prison
Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat.
1321, to make exhaustion mandatory rather than discretionary. By using
the term "action" rather than "claim," Congress made clear its intent
that prisoners be required to exhaust all claims before the action was
allowed to proceed. Indeed, Congress defined the term "action with regard
to prison conditions" in another provision of the PLRA as "any civil
proceeding . . . with respect to the conditions of confinement or the
effects of actions by government officials on the lives
of persons confined in prison. . . ." 18 U.S.C. § 3626(g)(2); see
Booth v. Churner, 206 F.3d 289, 294 (3d Cir. 2000) (holding that,
because § 1997e(a) and § 3626(g)(2) are substantially related, "it
follows from the canon of interpretation invoked in [Sullivan v. Stroop,
496 U.S. 478, 484 (1990)] that the identical terms used in
the two sections should be read as conveying the same meaning"), aff'd,
531 U.S. 956 (2001). The plain meaning of "action" and
"civil proceeding" are patently distinct from "claim."
Furthermore, comparison with other provisions of 1997e makes this
distinction even clearer. Section 1997e(c)(1) provides that a district
court shall dismiss any "action" which is frivolous or fails to state a
claim. In contrast, § 1997e(c)(2) provides that the district court
may dismiss a "claim" which is frivolous or fails to state a claim even
if that "claim" has not been exhausted. Congress's use of the different
terms indicates that it intended different meanings.
Some courts contend that the terms "action" and "claim" must be
construed as interchangeable because, otherwise, § 1997e(c)(1) and
§ 1997e(c)(2) would not be reconcilable. Jenkins, 32 F. Supp. d at
958. This argument is simply erroneous. In fact, the purpose of §
1997e(c)(2) is to reconcile § 1997e(a) with § 1997e(c)(1).
Congress recognized that mandating dismissal without prejudice for
failure to exhaust might prevent a court from dismissing with prejudice
for frivolousness. Section 1997e(c)(2) solves this problem by allowing a
court to dismiss an unexhausted claim as frivolous, thus preventing an
unexhausted claim from "holding up" the dismissal of a frivolous action
comprising otherwise exhausted claims.
Yet another provision of the PLRA provides further support that
Congress understood the semantic distinction. 28 U.S.C. § 1915A(b)(1)
mandates that a court "shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint if the complaint is
frivolous, malicious, or fails to state a claim. . . ." Again, the fact
that this provision was written contemporaneously with 1997e(a) evinces
Congress's awareness of alternate language and supports the conclusion
that Congress meant "action" when it said "action." Section 1915A is
also valuable in that it shows that those courts that dismiss individual
claims, rather than whole actions, as frivolous have authority to do so
under § 1915A rather than 1997e(c)(1).
Because the plain language compels a "total exhaustion" rule, "[a]bsent
a clearly expressed legislative intention to the contrary, that language
must ordinarily be regarded as conclusive." Consumer Prod. Safety
Comm'n, 447 U.S. at 108.
2. Legislative History and Policy Considerations
While there is no legislative history specifically on point, the
general intent of the PLRA and other important policy considerations
support a "total exhaustion" rule. As the Third Circuit stated in Nyhuis
v. Reno, 204 F.3d 65 (3d Cir. 2000), "Congress amended 1997e(a) largely
in response to concerns about the heavy volume of frivolous prison
litigation in the federal courts." Id. at 73 (quoting Alexander v.
Hawk, 159 F.3d 1321, 1326 n. 11 (6th Cir. 1999) (citing 141 Cong. Rec.
H14078-02, H14105 (daily ed. Dec. 6, 1995))). "Congress desired `to
wrest control of our prisons from the lawyers and the inmates and return
that control to competent administrators appointed to look out for
society's interests as well as the legitimate needs of prisoners.'"
Nyhuis, 204 F.3d at 73-74 (quoting Alexander, 159 F.3d at 1326 n. 11
Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995))).
First, a "total exhaustion" rule furthers the PLRA's goals of reducing
frivolous prison litigation and promoting judicial economy. As the Third
Circuit stated in Nyhuis, "Inmate-plaintiffs often file claims which are
untidy, repetitious, and redolent of legal language. The very nature of
such complaints necessitates that courts expend significant and scarce
judicial resources to review and refine the nature of the legal claims
presented." 204 F.3d at 74. "The administrative process can serve to
create a record for subsequent proceedings, it can be used to help focus
and clarify poorly pled or confusing claims, and it forces the prison to
justify or explain its internal procedures." Id. at 76 (citing Wyatt v.
Leonard, 193 F.3d 876, 878-79 (6th Cir. 1999)). Thus, by requiring that
all claims be exhausted before the federal court considers them, §
1997e(a) ensures that prisoner actions are more focused and that some
frivolous claims are screened out. Additionally, the provision frees the
federal court from the potentially difficult and time — consuming
process of determining precisely which of the often — entangled
claims have been exhausted and which have not. Keenan, 1999 U.S. Dist.
LEXIS 11829, at *8.
Furthermore, the "total exhaustion" rule deters the filing of
unexhausted or frivolous claims. First, as Congress intended, the threat
of dismissal of unexhausted or frivolous claims will encourage prisoners
to pursue all available administrative remedies. See Underwood v.
Wilson, 151 F.3d 292, 296 (5th Cir. 1998) ("[D]ismissal may serve as a
deterrent to premature filing by [prisoners], thus serving the
Congressional purpose of providing relief from frivolous prisoner
litigation."). Second, far from being unduly punitive, see Jenkins,
32 F. Supp.2d at 959, requiring a prisoner to pay a second filing fee
provides additional deterrence against the filing of unexhausted or
frivolous claims. Keenan, 1999 U.S. Dist. LEXIS 11829, at *9.
The "total exhaustion" rule also promotes judicial economy by
effectively reducing the number of cases that federal courts must
resolve. By dismissing actions which include unexhausted claims, §
1997e(a) gives the state administrative bodies another chance to remedy
the prisoner's grievances. The court in Jenkins counters, however, that
a "total exhaustion" rule would actually increase the number of suits
filed because prisoners would simply drop their unexhausted claims and
refile their exhausted claims. 32 F. Supp. d at 958-59. This
conclusion, while technically true, misses an important point. A suit
which is dismissed without prejudice and refiled is, for all intents and
purposes, one suit. The additional time required by the court to handle it
is marginally greater than if it had not been dismissed and refiled.
In contrast, what would markedly increase the court's work is if a
prisoner's claims proceeded in piecemeal fashion, with the exhausted
claims proceeding first, then the unexhausted exhausted claims proceeding
later after they have been exhausted. It is precisely this type of
piecemeal litigation that § 1997e(a) was intended to curb. Thorp,
100 F. Supp.2d at 1263 ("In requiring the exhaustion of prisoner grievances
through section 1997e(a), Congress most certainly did not intend the
inefficient result of permitting actions to proceed in part while other
claims remained to be tried only after they have been exhausted.").
Additionally, the "total exhaustion" rule promotes comity. As the
Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475
in the habeas corpus context:
Since these internal problems of state prisons involve
issues so peculiarly within state authority and
expertise, the States have an important interest in
not being bypassed in the correction of those
problems. Moreover, because most potential litigation
involving state prisoners arises on a day-to-day
basis, it is most efficiently and properly handled by
the state administrative bodies and state courts,
which are, for the most part, familiar with the
grievances of state prisoners and in a better physical
and practical position to deal with those grievances.
Id. at 492. While some courts reject the analogy to the habeas corpus
context, see Jenkins, 32 F. Supp.2d at 959 ("the policies behind the
exhaustion in habeas cases and prisoner civil rights actions are
different"), this criticism is misguided. Not only do § 1983 actions
implicate many of the same comity interests as habeas petitions, as
described in Preiser, but § 1997e(a) also irons out the juridical
wrinkle that would result from requiring full exhaustion in habeas corpus
cases involving life and liberty but not in § 1983 cases. Keenan,
1999 U.S. Dist. LEXIS 11829, at *11.
And as "[t]he PLRA was plainly intended, at least in part, to `reduce
the intervention of federal courts into the management of the nation's
prison systems,'" Booth, 206 F.3d at 295 (quoting Freeman v. Francis,
196 F.3d 641, 644 (6th Cir. 1999)), § 1997e(a) promotes this aim by
preventing federal courts from hearing prisoner actions until the state
administrative bodies have had a full opportunity to address, and
potentially remedy, the grievances. As discussed, this has additional
benefits for the federal courts in terms of more focused complaints and
more developed evidentiary records.
For the reasons stated above, the Court finds that the plain language
of the § 1997e(a), as well as the legislative intent and policy
interests behind it, compels a "total exhaustion" rule.
B. Plaintiff Has Not Exhausted All of His Claims
Defendants contend that Plaintiff has failed to exhaust his claims
regarding his alleged abuse by Schwenk and Wasik and the conditions of
his confinement at NSP. NSP utilizes an administrative procedure whereby
Plaintiff must submit his grievances to the Administrator's Office via an
Administrative Remedy Form, which are available from the housing unit
officer. (Defs.' Mot. Summ. J. at 33). Once received by the
Administrator's Office, an appropriate supervisor has ten days to respond
to the prisoner's grievance. (Id.). The Administrator of NSP then
reviews the proposed remedy, which, upon the Adminstrator's approval, is
conveyed to the prisoner. (Id.). At that point, the prisoner's claim is
In this case, James F. Barbo, the Administrator of NSP at the time,
submitted a sworn affidavit stating that the only correspondence he
received from Plaintiff involved allegations regarding damage to his
property, allegations which, upon investigation, were found to be
unsubstantiated. (Defs.' Mot. Summ. J. Ex. F). It does not appear from
the record that Plaintiff pursued the administrative remedies available
to him with regard to the conditions of his confinement or the alleged
abuse. As a result, he has not exhausted these claims.
Because Plaintiff's Complaint includes unexhausted claims, §
this court to dismiss the entire action without prejudice.*fn2
For the reasons set forth above, Plaintiff's action is dismissed
without prejudice for failure to exhaust. The Court will enter an