Jenkins v. Morton
148 F.3d 257
3rd Cir.
1998
Check Treatment

Hassan JENKINS, Appellant, v. Willis MORTON, as an individual and in his official capacity as Administrator, New Jersey State Prison; Shirley Tyler, as an individual and in her official capacity as Assistant Superintendent, New Jersey State Prison; J. McGovern, as an individual and in his official capacity as Disciplinary Hearing Officer.

No. 97-5801.

United States Court of Appeals, Third Circuit.

June 30, 1998

Submitted under Third Circuit LAR 34.1(a) June 11, 1998.

257-260

of the concerns about CBM‘s ad, might qualify as reasonable. We note, however, that SEPTA does not have a policy of protecting riders from “debated and dubious” speech generally, nor does SEPTA link this purported policy to its use of the forum.

In any event, we need not reach that question. Gambaccini did not testify to such a policy, implemented either before or after the removal of CBM‘s ad. Instead, when questioned if he would post an ad saying “women who choose abortion live longer and have less breast cancer,” he answered “[N]ot unless there was some credible evidence to support it.” (Appendix at 354-355). This is a different standard—a debatable advertisement may well be supported by credible evidence. And if this standard controlled, SEPTA was unreasonable because it failed to give CBM an opportunity to produce such evidence. Moreover, Gambaccini did not explain whether this standard applied generally, or just to ads on the topic of abortion and cancer. Nor did he explain SEPTA‘S grounds for adopting it. SEPTA has left us to guess why, in terms of the purpose of the forum, it excluded CBM‘s ad, and why, and to what extent, other ads will also be excluded. This makes it difficult to evaluate the extent of the governmental interest in excluding the speech from SEPTA‘s property.

Finally, as we have noted, SEPTA never asked CBM—the sponsor of the ad—to defend its accuracy, to explain the basis for the ad, or to clarify it. Instead, SEPTA removed the ad without contacting CBM—even though CBM had modified the poster in response to SEPTA‘s previous requests.

We conclude, therefore, that under the facts presented SEPTA‘s actions were not reasonable. SEPTA acted as a censor, limiting speech because it found it to be “misleading.” SEPTA argues that it cannot investigate the accuracy of medical claims in ads. For that reason, it relied on Dr. Lee‘s letter. We do not hold that SEPTA must hire its own cadre of experts to evaluate medical claims made in ads. It was SEPTA, however, which accepted advertising on a permitted topic, and then decided that CBM‘s ad was unacceptably misleading. Having decided to exclude the posters on this basis, SEPTA did not act reasonably when it failed to ask CBM to clarify the basis on which the claim was made. This is all the more true where SEPTA has failed to explain how its content-based distinctions are related to preserving the advertising space for its intended use, and where SEPTA has in place no policy, old or new, written or unwritten, governing the display of ads making contested claims.

VI. Conclusion

For the reasons set forth above, we will reverse district court‘s order granting judgment to SEPTA, and we will remand this case for further proceedings consistent with this opinion.

Hassan Jenkins, Appellant pro se.

Peter Verniero, Attorney General of New Jersey, Mary C. Jacobson, Assistant Attorney General, Ronald L. Bollheimer, Deputy Attorney General, Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Criminal Justice, Trenton, NJ, for Appellees.

Before: GREENBERG, SCIRICA, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellant Hassan Jenkins, an inmate at the New Jersey State Prison, proceeding in forma pauperis under 28 U.S.C. § 1915, brought this action under 42 U.S.C. § 1983 on August 13, 1997, against appellees Willis E. Morton, individually and as administrator of the prison, Shirley Tyler, individually and as assistant superintendent of the prison, and James McGovern, individually and as a disciplinary hearing officer. The complaint asserted that the appellees had violated Jenkins’ due process and equal protection rights in disciplinary proceedings in which sanctions were imposed. The original sanction period imposed in those proceedings was reduced on Jenkins’ administrative appeal. It is undisputed that the administrative appeal exhausted Jenkins’ conventional administrative remedies, and it is also undisputed that Jenkins did not appeal from the imposition of the reduced sanctions to the Superior Court of New Jersey, Appellate Division, as authorized as of right by N.J. Ct. R. 2:2-3(a)(2).

The summons and complaint were served on Morton and Tyler but McGovern was not served. Morton and Tyler moved to dismiss the complaint pursuant to the Prison Litigation Reform Act of 1996, which, insofar as germane here, provides:

No action shall be brought with respect to prison conditions under [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). The district court, in ruling on the motion to dismiss, explained that the New Jersey Administrative Code provides a grievance procedure for challenging disciplinary decisions and that once the “inmate has exhausted the remedies provided by the Administrative Code, he has an automatic right to appeal the decision to the Superior Court of New Jersey, Appellate Division” under N.J. Ct. R. 2:2-3(a)(2).1

The court then indicated:

that the sanction imposed upon the plaintiff by the Department of Corrections was a final agency decision and as such, upon exhausting the remedies available to him through the Administrative Code, plaintiff‘s next remedy was to challenge the decision with the Appellate Division. This Court further notes, that plaintiff failed in this case to challenge the decision in the Superior Court of New Jersey, Appellate Division. As such, plaintiff has failed to exhaust all administrative remedies available to him.

We need not describe them in detail as appellees do not contend that Jenkins did not exhaust them.

Accordingly, the court concluded that inasmuch as Jenkins had “failed to exhaust all administrative remedies available to him, [his] complaint must be dismissed in accordance with the [Prison Litigation Reform Act of 1996].” Thus, the court entered an order on November 21, 1997, dismissing the complaint as to all defendants and closing the case. Jenkins then appealed. We exercise plenary review on this appeal.

This appeal raises a narrow but important point: did Congress intend to include appeals to the state judicial system within the administrative remedies which a prisoner must exhaust before bringing an action described in section 1997e(a)?2 We recognize that it might be sensible for Congress to provide that a prisoner first exhaust both his state administrative and judicial remedies before bringing an action described within section 1997e(a). But the problem with our observation, and thus with the district court‘s opinion, is that there is a well-established distinction between administrative and judicial remedies and Congress, in terms, did not mandate that the prisoner must exhaust his administrative remedies and exhaust his right to judicial appellate review before bringing an action within section 1997e(a). , highlights the distinction between administrative and judicial remedies because the Court, in discussing exhaustion of administrative remedies, explained:

[E]xhaustion promotes judicial efficiency in at least two ways. When an agency has the opportunity to correct its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided. And, even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.

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

We also observe that the Supreme Court has stated that “policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent.” . Moreover, Patsy makes clear that exhaustion of administrative remedies ordinarily is not required before a plaintiff may bring a 42 U.S.C. § 1983 action. Thus, the exhaustion requirements in section 1997e(a) run counter to the general rule under 42 U.S.C. § 1983. In the circumstances, we naturally are reluctant to apply section 1997e(a) to mean other than what it says: the prisoner must exhaust his “administrative remedies” as that term is conventionally understood, but need not exhaust state judicial remedies before bringing an action governed by that section.

The little direct judicial precedent germane under section 1997e(a) supports our result. Thus, in , the court described exhaustion under section 1997e(a) as follows:

Before refiling, Plaintiff must exhaust all available administrative remedies pursuant to 42 U.S.C. § 1997e(a). Thus, in addition to filing his inmate appeal forms, Plaintiff must submit a formal appeal for second level review. If unsuccessful at that level, Plaintiff must then submit a formal appeal for third level review to the director of the California Department of Corrections or the director‘s designee. Only after Plaintiff has gone through each of these steps may he be said to have exhausted his available administrative remedies.

. Similarly in , the court described exhaustion under section 1997e(a) as follows:

The formal grievance procedure allows an inmate to file a written grievance addressed to the Grievance Officer. 20 Ill. Adm.Code. § 504.810. Upon reviewing the written grievance, the Grievance Officer makes a recommendation to the warden of section 1997e(a).

the facility or his designee. The inmate then receives a decision. 20 Ill. Adm.Code § 504.830.

If the inmate feels that the Grievance Officer did not resolve the matter to his satisfaction, the inmate can appeal to the Director of the Department of Corrections (‘Director‘). The Director determines if the grievance requires a hearing before the Administrative Review Board (‘Board‘). If a hearing is required, the Board schedules one and submits its findings to the Director. The Director reviews the findings and makes a final determination about the grievance. 20 Ill. Adm.Code § 504.850. Once the Board issues a final decision, the inmate has exhausted all available administrative remedies. See .

. It will be noted that neither court mentioned that judicial review was an administrative remedy.

For the foregoing reasons we will reverse the order of the district court entered November 21, 1997, and will remand the case to that court for further proceedings consistent with this opinion. Obviously we do not imply that we have a view on whether this action is meritorious. The parties will bear their own costs on this appeal.

Notes

1
The Administrative Code provisions for appeal of disciplinary decisions are set forth in N.J. Admin. Code tit. 10A, § 4-11.1 et seq. (1996).
2
We note that the appellees do not contend that this action is not a type of case governed by section 1997e(a).