Jenkins v. MortonJenkins v. Morton
GREENBERG, Circuit Judge.
Appellant Hassan Jenkins, an inmate at the New Jersey State Prison, proceeding in forma pauperis under
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.
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.
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). McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), 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.
Id. at 146, 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.” Patsy v. Board of Regents, 457 U.S. 496, 513, 102 S.Ct. 2557, 2566, 73 L.Ed.2d 172 (1982). Moreover, Patsy makes clear that exhaustion of administrative remedies ordinarily is not required before a plaintiff may bring a
The little direct judicial precedent germane under section 1997e(a) supports our result. Thus, in Alexandroai v. California Dep‘t of Corrections, 985 F.Supp. 968 (S.D.Cal.1997), 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.
Id. at 970. Similarly in Hobson v. DeTella, 1997 WL 619822 (N.D.Ill. Sept.30, 1997), 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
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 Rhoden v. Detella, No. 95 C 6585, 1996 WL 556975, at *4 n. 2 (N.D.Ill. Sept. 27, 1996).
Id. at *2. 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.