No. 01-0100
In the Supreme Court of the United States
WILLIAM STERNER, ET AL., PETITIONERS
v.
JOHN P. ROYSTER, SR.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
THEODORE B. OLSON
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e (Supp.
V 1999), requires an inmate to exhaust available administrative remedies
before filing an action "with respect to prison conditions." The
question presented is whether an action alleging that prison officials were
involved in an isolated incident of unlawful conduct directed at a particular
inmate constitutes an action "with respect to prison conditions"
within the meaning of Section 1997e.
PARTIES TO THE PROCEEDINGS
Petitioners are William Sterner, George Shu, Charles DeRosa, Theresa Richetts,
Michael Dellamarco, and Clinton Stroble. Respondent is John P. Royster,
Sr.
In the Supreme Court of the United States
No. 01-0100
WILLIAM STERNER, ET AL., PETITIONERS
v.
JOHN P. ROYSTER, SR.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf on William Sterner, George Shu, Charles
DeRosa, Theresa Richetts, Michael Dellamarco, and Clinton Stroble, respectfully
petitions for a writ of certiorari to review the judgment of the United
States Court of Appeals for the Second Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-6a) is not yet reported.
The opinion of the district court (App., infra, 7a-11a) is reported at 91
F. Supp. 2d 626.
JURISDICTION
The judgment of the court of appeals was entered on April 16, 2001. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISION INVOLVED
Title 42, Section 1997e, provides that "[n]o 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 exhausted." 42 U.S.C. 1997e (Supp. V 1999).
STATEMENT
1. On June 11, 1998, John P. Royster (respondent) filed a complaint in the
United States District Court for the Southern District of New York, asserting
claims against prison officials who had been in charge of his confinement
in state and federal prison. App., infra, 3a. Respondent's complaint was
eventually narrowed to a single claim-that in December 1997, federal prison
officials at the Metropolitan Correctional Center denied respondent access
to five boxes of legal documents that were allegedly critical to a civil
suit he had filed against the Department of Corrections in federal court.
Ibid. Respondent named as defendants seven federal prison officials-Michael
Lopez, William Sterner, George Shu, Charles DeRosa, Theresa Richetts, Michael
Dellamarco, and Clinton Stroble. Ibid.
The district court dismissed respondent's claim against defendant Lopez
on the ground that respondent had not alleged that Lopez was personally
involved in the incident. App., infra, 7a-8a. The district court dismissed
the claims against the other defendants (petitioners) pursuant to the PLRA
exhaustion provision, which directs that "[n]o action shall be brought
with respect to prison conditions * * * by a prisoner
* * * until such administrative remedies as are available are exhausted."
42 U.S.C. 1997e (Supp. V 1999). The district court held that respondent's
action was one "with respect to prison conditions," and that respondent
had failed to exhaust available remedies. App., infra, 8a-11a.
Addressing the meaning of the phrase "with respect to prison conditions,"
the district court concluded that "the mere fact that the alleged seizure
of [respondent's] legal materials was an isolated, unlawful incident does
not preclude application of the PLRA's exhaustion requirement." App.,
infra, 10a. The court reasoned that because the goal of the exhaustion requirement
is to "giv[e] prison officials and administrators the initial opportunity
to evaluate challenges to how a prisoner is being treated and to correct
mistakes in this treatment," it "does not matter whether the prisoner's
challenge is to a systemic problem or to one that is individual, or, for
that matter, to whether the alleged misconduct is pursuant to a prison policy
or ultra vires." Ibid.
2. The court of appeals affirmed in part, vacated in part, and remanded.
App., infra, 1a-6a. The court affirmed the district court's order dismissing
respondent's claim against defendant Lopez. Id. at 6a. The court vacated
the district court's order dismissing the case against petitioners on the
basis of the PLRA's exhaustion requirement and remanded for further proceedings
on that issue. Ibid.
On the exhaustion issue, the court noted that it had recently held in Nussle
v. Willette, 224 F.3d 95, 105-106 (2d Cir. 2000), cert. granted sub nom.
Porter v. Nussle, No. 00-853 (June 4, 2001), that "particularized instances
of excessive force directed at an inmate are not 'brought with respect to
prison conditions' and therefore are not subject to the exhaustion requirement
of the PLRA." App., infra, 4a. It further noted that, in Lawrence v.
Goord, 238 F.3d 182, 186 (2d Cir. 2001), cert. pending, No. 00-1619, it
had "extended the logic of Nussle to hold that the PLRA's exhaustion
requirement is similarly inapplicable to cases alleging individualized retaliation
against prisoners." App., infra, 4a. The court concluded that, in light
of Nussle and Lawrence, the district court had erred in holding that the
PLRA's exhaustion requirement applies without regard to whether the inmate
challenges a systemic problem or an isolated incident directed at an individual.
Id. at 5a. The court explained that Nussle and Lawrence "make clear
that whether or not the exhaustion requirement applies to [respondent's]
claim will be substantially affected by whether the denial of access to
documents [respondent] alleges occurred idiosyncratically or pursuant to
some prison policy." Ibid. The court of appeals concluded that the
question whether respondent's claim is best viewed as a claim challenging
prison policy or a claim challenging an individualized action should be
resolved by the district court in the first instance. Ibid. The court therefore
"vacate[d] the district court's dismissal insofar as it was based on
the PLRA's exhaustion requirement and remand[ed] the case to that court
for reconsideration in light of Nussle and Lawrence." Ibid.*
ARGUMENT
This case presents the question whether an action alleging that prison officials
were involved in an isolated incident of unlawful conduct directed at a
particular inmate constitutes an action "with respect to prison conditions"
within the meaning of the PLRA's exhaustion provision, 42 U.S.C. 1997e (Supp.
V 1999). That question is currently before the Court in Porter v. Nussle,
cert. granted, No. 00-853 (June 4, 2001). In Nussle, the Second Circuit
held that the exhaustion requirement in the PLRA does not apply to excessive
force claims. Nussle v. Willette, 224 F.3d at 106. The court reasoned that
the phrase "prison conditions" refers to "circumstances affecting
everyone in the area affected by them, rather than single or momentary matters,
such as beatings or assaults, that are directed at particular individuals."
Id. at 101 (citation and internal quotation marks omitted). Relying on Nussle
(and a subsequent Second Circuit case applying Nussle to retaliation claims),
the Second Circuit in this case held that a claim alleging that prison officials
unlawfully seized legal materials is an action "with respect to prison
conditions" subject to the exhaustion requirement if it was done "pursuant
to some prison policy," but not if it "occurred idiosyncratically."
App., infra, 5a.
The precise question before this Court in Porter v. Nussle is whether the
Second Circuit "erroneously conclude[d], contrary to other courts of
appeals, that an inmate bringing a claim for excessive force need not have
exhausted available administrative remedies pursuant to the Prison [Litigation]
Reform Act's mandatory exhaustion requirement." Pet. (i). As the court
of appeals' decision in this case illustrates, the resolution of the exhaustion
question in Nussle implicates not just excessive force claims, but all claims
involving isolated incidents, rather than broad, recurring practices. Accordingly,
the resolution of the question presented in Nussle will likely control the
resolution of the question presented in this case.
CONCLUSION
The petition for a writ of certiorari should be held pending the Court's
decision in Porter v. Nussle, No. 00-853, and then disposed of as appropriate
in light of the decision in that case.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
JULY 2001
* We have since asked the district court to
stay further proceedings pending this Court's decision in Nussle. We have
also conceded that, under the statutory holding of Nussle, respondent is
not required to exhaust his claim against petitioners.
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY
NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY
BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE
OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL
ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the United States Courthouse, Foley Square, in the City of New York,
on the 17th day of April, two thousand and one.
PRESENT:
HON. JOSEPH M. MCLAUGHLIN,
HON. GUIDO CALABRESI, AND
HON. ROSEMARY S. POOLER,
Circuit Judges
No. 00-0185
JOHN P. ROYSTER, SR., PLAINTIFF-APPELLANT
v.
UNITED STATES OF AMERICA; THE SUPREME
COURT OF NEW YORK STATE; THE NEW YORK
DISTRICT ATTORNEY'S OFFICE; THE METROPOLITAN
CORRECTIONAL FACILITY; THE UNITED STATES
JUSTICE DEPARTMENT; THE NEW YORK
STATE DEPARTMENT OF CORRECTIONAL SERVICES;
CHRISTOPHER ARTUZ; LIEUTENANT LOPEZ OF MCC;
C.O. BAILEY OF GH; C.O. BICKFORD OF GH;
C.O. DEMMARIS OF GH; C.O.K. TORRES;
SGT. OVERBY OF GH; DANIEL GOTLIN, AN 18B ATTORNEY, DEFENDANTS-APPELLEES
Appeal from the United States District Court
for the Southern District of New York
Jed S. Rakoff, Judge
[Filed: Apr. 17, 2001]
UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the judgment
of the district court be and it hereby is AFFIRMED in part and VACATED in
part, and that the case be and hereby it is REMANDED to the district court.
_________________________________________________
I. BACKGROUND
On June 11, 1998, John Royster, Sr. ("Royster") filed a complaint
in federal court asserting myriad claims of constitutional violations against
prison officials who had been in charge of his confinement in federal and
state prison. Following several rounds of judicial proceedings, Royster's
case was narrowed to the claim that in December 1997, while Royster was
held at the Metropolitan Correctional Center ("MCC"), Lieutenant
Michael Lopez ("Lopez") and six other MCC employees-named Sterner,
DeRoso, Shu, Freschette, Dellamarco, and Stroble-denied him access to five
boxes of legal documents that were critical to a civil suit that Royster
had brought against the Department of Corrections in federal court._ Royster
claims that this denial violated his federal due process rights.
The district court (Rokoff, J.) dismissed with prejudice Royster's complaint
against Lopez pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that Royster
had not alleged any facts indicating that Lopez was personally involved
in denying him access to the legal documents, a necessary element of Royster's
constitutional tort claim. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997). In addition, the district court dismissed without prejudice Royster's
complaint against the remaining defendants on the ground that the Prison
Litigation Reform Act (the "PLRA"), 42 U.S.C.
§ 1997e(a), requires Royster to exhaust his administrative remedies
prior to seeking relief in the courts in actions "brought with respect
to prison conditions," and that Royster had not done so.
Royster now appeals.
II. DISCUSSION
Since the district court's March 30, 2000 Memorandum and Order in this case,
two opinions of our Court have been issued which require reconsideration
of the decision of the court below. First, in Nussle v. Willette, 224 F.3d
95, 105-6 (2d Cir. 2000), we held that claims of particularized instances
of excessive force directed at an inmate are not "brought with respect
to prison conditions" and therefore are not subject to the exhaustion
requirement of the PLRA. And second, in Lawrence v. Goord, 238 F.3d 182,
186 (2d Cir. 2001) (per curiam), we extended the logic of Nussle to hold
that the PLRA's exhaustion requirement is similarly inapplicable to cases
alleging individualized retaliation against prisoners. Importantly, we noted
in Lawrence that "[t]he underlying principles requiring exhaustion
-giving notice to administrators and allowing policy makers to change their
behavior-are not served when a practice is aimed at one specific inmate
rather than the prison population as a whole." Id. at 186. See also
Nussle, 224 F.3d at 106 (noting in a related context that there is no reason
to extend the exhaustion requirement to cases "that do not contemplate
ongoing judicial supervision or some other form of 'prospective relief'
affecting large numbers of inmates-let alone individual claims that complain
of past, wholly completed conduct").
The PLRA's exhaustion requirement has thus been substantially clarified
since the district court issued its Memorandum and Order. In particular,
the district court's conclusion that "[i]t . . . . does not matter
[to the applicability of the exhaustion requirement] whether the prisoner's
challenge is to a systematic problem or to one that is individual, or, for
that matter, to whether the alleged misconduct is pursuant to a prison policy
or ultra vires," does not, in light of Nussle and Lawrence, reflect
the law of our Circuit. These opinions make clear that whether or not the
exhaustion requirement applies to Royster's claim will be substantially
affected by whether the denial of access to documents Royster alleges occurred
idiosyncratically or pursuant to some prison policy. This question was understandably
not addressed below, and is not properly decided on appeal without the benefit
of a district court record and decision. Accordingly, we vacate the district
court's dismissal insofar as it was based on the PLRA's exhaustion requirement
and remand the case to that court for re-consideration in light of Nussle
and Lawrence._
Finally, because none of the preceding considerations affects the district
court's dismissal with prejudice of Royster's claim against Lopez, we affirm
this dismissal for substantially the reasons given by that court.
III. CONCLUSION
We have reviewed all Royster's remaining claims and find them to be without
merit. Accordingly, the district court's dismissal with prejudice of the
case against Lopez is AFFIRMED; the district court's dismissal without prejudice
of the case against the remaining defendants is VACATED; and the case is
REMANDED to the district court for further consideration consistent with
this order.
For the Court,
ROSEANN B. MACKECHNIE
Clerk of Court
by: /s/ LUCILLE CARR
_ Royster alleges that he had been commanded,
by MCC personnel, to surrender these boxes of documents on December 4, 1997.
_ In light of this remand, we do not now consider the question -which remains
unsettled in this Circuit, see Nussle, 224 F.3d at 100 n. 5-of whether the
PLRA requires the exhaustion of administrative remedies even when prisoners
seek relief, in this case monetary damages, not available through administrative
channels.
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
98 Civ. 4109 (JSR)
JOHN P. ROYSTER, SR., PLAINTIFF
v.
UNITED STATES OF AMERICA, THE SUPREME COURT OF NEW YORK STATE; THE NEW YORK
DISTRICT
ATTORNEY'S OFFICE, THE METROPOLITAN CORRECTIONAL FACILITY; LIEUTENANT LOPEZ
OF
MCC, C.O. BAILEY OF GH, C.O. BICKFORD GH, C.O. DEMMARIS OF GH, C.O. K. TORRES,
SGT. OVERBY OF
GH, AND DANIEL GOTLIN, AN 18B ATTORNEY,
DEFENDANTS
[Filed: Mar. 31, 2000]
MEMORANDUM ORDER
JED S. RAKOFF, U.S.D.J.
On June 11, 1998, then-Chief Judge Griesa, to whom the case was previously
assigned, dismissed the complaint with leave to plaintiff to re-plead only
the claim that officials of the Metropolitan Correctional Center ("MCC")
intentionally delayed plaintiff's access to certain legal materials during
the course of his then-pending civil suit against the New York Department
of Corrections. See Order dated June 11, 1998. Following re-pleading, Magistrate
Judge Ellis, on November 24, 1999, filed a Report and Recommendation (the
"Report") recommending that the Court dismiss the complaint on
the ground that plaintiff had failed to allege any personal involvement
by defendant Michael Lopez, who, according to the Report, was the only defendant
Judge Griesa's June 11 Order permitted plaintiff to name in his re-pleaded
complaint.
This Court, having now reviewed de novo the parties' timely objections to
the Report,§ concludes that the claims against defendant Lopez should
be dismissed for the reasons stated in the Report (which to this extent
the Court adopts by reference) but that the Report erred in interpreting
Judge Griesa's Order to preclude the naming of other defendants. Specifically,
the Court does not read Judge Griesa's June 11 Order as precluding plaintiff,
in his re-pleaded complaint, from naming defendants other than Lopez if
they are alleged to be directly involved in the assertedly unlawful seizure
of plaintiff's legal materials at the MCC. Accordingly, plaintiff's motion
dated January 21, 1999 to amend the re-pleaded complaint to add other defendants
besides Lopez who were allegedly involved in such seizure-a motion not directly
addressed in the Report but implicitly denied-must instead be granted.
Given the putative addition of these other defendants, it becomes necessary
for this Court to consider the other prong of defendant Lopez's motion to
dismiss -i.e., the claim that plaintiff failed to exhaust his administrative
remedies under the Prison Litigation Reform Act (the "PLRA"),
42 U.S.C. § 1997e(a)-since that contention, if valid, would automatically
mandate dismissal as to the putatively-added defendants as well. The PLRA
provides, in relevant part, 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 correctional facility
until such administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). Judge Ellis, however, determined that plaintiff's
claim was not subject to the PLRA's exhaustion requirement because, first,
it did not involve an action "with respect to prison conditions"
and, second, there was no "available" administrative remedy. The
Court disagrees with both points.
As to the first point, Judge Ellis chiefly relied on those cases that have
held that the "action[s] . . . with respect to prison conditions"
to which the PLRA's exhaustion requirement pertains do not include claims
of excessive force involving no prison policy. See, e.g., Carter v. Kiernan,
No. 98 Civ. 2664 (JGK), 1999 WL 14014, at *5 (S.D.N.Y. Jan. 14, 1999) (PLRA's
exhaustion requirement does not apply to claims of excessive force); Wright
v. Dee, 54 F. Supp. 2d 199, 205-06 (S.D.N.Y. 1999) (same). This view is
far from uniformly held, see, e.g., Beeson v. Fishkill Correctional Facility,
28 F. Supp. 2d 884, 888 (S.D.N.Y. 1998) (PLRA's exhaustion requirement applies
even to such claims); Diezcabeza v. Lynch, 75 F. Supp. 2d 250, 255 (S.D.N.Y.
1999) (same), and the Second Circuit has not yet directly addressed the
issue, see Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) ("The law
concerning the PLRA's exhaustion requirement is in great flux."). But
the controversy is here irrelevant because, in contradistinction to the
public policy and constitutional considerations implicit in any exception
for claims of excessive force, the mere fact that the alleged seizure of
plaintiff's legal materials was an isolated, unlawful incident does not
preclude application of the PLRA's exhaustion requirement.
In enacting the PLRA, Congress sought both to reduce the increasing number
of frivolous prisoner lawsuits and to end alleged judicial micromanagement
of prisons. See, e.g., Beeson, 28 F. Supp. 2d at 891 (citing legislative
history). The PLRA's exhaustion requirement seeks to implement these goals
by giving prison officials and administrators the initial opportunity to
evaluate challenges to how a prisoner is being treated and to correct mistakes
in this treatment prior to any judicial involvement in the particular controversy.
It therefore does not matter whether the prisoner's challenge is to a systemic
problem or to one that is individual, or, for that matter, to whether the
alleged misconduct is pursuant to a prison policy or ultra vires. Thus,
contrary to Judge Ellis's belief, plaintiff was still required to exhaust
his administrative remedies regardless of whether the prison officials confiscated
his legal materials pursuant to a particular prison policy or whether they
took them without any apparent legal authority whatever.
As to the second point, Judge Ellis believed that plaintiff was not required
to exhaust administrative remedies because the relief that plaintiff sought,
i.e., monetary damages, was not available through the administrative remedy
scheme. While this argument might make sense in certain contexts, here,
however, its effect would be to seriously jeopardize the aforementioned
purposes of the PLRA. See, e.g., Funches v. Reish, No. 97 Civ. 7611 (LBS),
1998 WL 695904, at *8 (S.D.N.Y. Oct. 5, 1998); see also Diezcabeza, 75 F.
Supp. 2d at 252. "If an inmate may avoid administrative review procedures
simply by limiting the complaint to a request for monetary damages, Congress's
intent in creating a broad exhaustion requirement in § 1997e will be
thwarted." Funches, 1998 WL 695904, at *9. By contrast, requiring that
prisoners first seek review through administrative process even when their
requested remedy is damages serves the beneficial purpose not only of administrative
review of allegedly unlawful conduct but also of creating an administrative
record that may be useful to a court. See Beeson, 28 F. Supp. 2d at 895.
Indeed, the potential utility of such a record is well illustrated here,
since the current record, as Judge Ellis recognized, provides the Court
with virtually no information about the alleged seizure of plaintiff's legal
materials. Accordingly, for the foregoing reasons, the Court dismisses with
prejudice plaintiff's claims against defendant Lopez, grants plaintiff's
motion to add other defendants, and, having done so, dismisses without prejudice
plaintiff's claims against these other defendants. Clerk to enter judgment.
SO ORDERED.
/s/ JED S. RAKOFF________
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
March 30, 2000
§ Plaintiff's claim that defendant's objections to the Report were
untimely, see Pl.'s Letter dated December 16, 1999, is without merit. See
28 U.S.C. § 636(b)(1)(C); Rule 72, Fed. R. Civ. P.; see also Rule 6,
Fed. R. Civ. P.