Dan S. Hessbrook, Plaintiff-appellant, v. M.c. Lennon, Jr., D.a. French, and J. Saxman, Defendants-appellees, 777 F.2d 999 (5th Cir. 1986)

Appellant is a federal prisoner. His Bivens¹  action seeking monetary damages, and no other relief, for an alleged violation of his Eighth Amendment rights was dismissed without prejudice by the federal district court for his failure to exhaust administrative remedies. We affirm the holding that exhaustion is required, but remand for consideration of whether the suit should be held in abeyance, with jurisdiction retained, pending exhaustion, rather than being presently dismissed.

Facts and Proceedings Below

Appellant Dan S. Hessbrook is a federal prisoner incarcerated in the Federal Correction Institution (FCI) at Bastrop, Texas. On June 17, 1982, acting pro se, he filed this civil suit in the court below alleging violations of his Eighth Amendment rights. He asserted that he had been denied adequate medical attention, and that he had been provided with an inadequate and ill-suited pair of shoes, which aggravated a prior foot injury and a tendency, caused by diabetes, for his feet to swell.²  The complaint alleges "medical and mental damage being to the extent of $1,500,000 all being a severe deprivation of Plaintiff's Right to protection under the 8th Amendment to the U.S. Constitution." The only relief sought is that the "Court find Defendants ... at fault; and thereby grant Plaintiff Judgment in the amount of $1,500,000; to be paid in equal shares by said Defendants herein." The court referred the matter to a magistrate.

On August 30, 1982, appellees filed a motion to dismiss, alleging Hessbrook's failure to exhaust administrative remedies, and his failure to file a Federal Tort Claims Act (FTCA) claim. On March 8, 1983, the district court directed appellant to show cause why his suit should not be dismissed for nonexhaustion. Appellant responded by arguing that he should be excused from the exhaustion requirement because the administrative remedies available to him were inadequate. He predicated this assertion primarily on the contention that prison officials had no authority to award money damages for constitutional torts. Appellant did acknowledge that he might be able to obtain compensatory damages under the FTCA, but not punitive damages. The magistrate recommended dismissal for appellant's failure to exhaust, basing his recommendation in part upon a determination that a federal prisoner "challenging the conditions of his confinement" must first seek redress through the Federal Bureau of Prisons, which has been charged with primary responsibility for the supervision of prisoners. The magistrate also found that Hessbrook had failed to show that he had no effective means other than through the judiciary to remedy the alleged infringement of his constitutional rights, a prerequisite for a Bivens action. Over appellant's objections to the magistrate's recommendations, the district court, on December 6, 1983, dismissed appellant's suit without prejudice. This appeal followed.

Exhaustion of Administrative Remedies

Federal Tort Claims Act and Bivens claims are not mutually exclusive. Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). The district court dismissed the case without prejudice over appellant's contention that, by asserting a Bivens action for money damages, he was not required to exhaust administrative remedies. We must determine whether the legal independence of FTCA- and Bivens-type claims suffices to excuse a federal prisoner from a requirement that he exhaust available administrative remedies before asserting his Bivens claim for money damages in the federal courts.³  We conclude that, even where only money damages are sought, maintenance of a Bivens claim by a federal prisoner, at least where he complains of his treatment as a prisoner by the prison authorities and the allegedly tortious conduct is not clearly wholly outside the FTCA, does not alone suffice to excuse the requirement that the prisoner exhaust possibly available administrative remedies.

The Nature of the Cause of Action

Bivens actions are "premised on the theory that victims of a constitutional violation by a federal agent have an implied right of action to recover damages against the official absent any statute conferring such a right." Muhammad v. Carlson, 739 F.2d 122, 124 (3d Cir. 1984) (citation omitted).

The FTCA provides a remedy for a "negligent or wrongful act or omission" by an officer or employee of the federal government acting within the scope of his employment. 28 U.S.C. § 2672. Certain specific kinds of tort claims, however, are expressly excluded from the FTCA. 28 U.S.C. § 2680(h). Thus, broadly speaking, the FTCA provides a waiver of the sovereign immunity of the United States for negligence actions, but not for certain intentional torts,⁴  which, if they violated a constitutional right, would often be actionable instead by a Bivens-type suit. Congress amended the FTCA exclusions section in 1974 to expressly retain a subset of the otherwise excluded torts, when committed by federal "investigative or law enforcement officers."⁵ 

Appellant's complaint does not expressly predicate his suit upon the FTCA. Instead it asserts a violation of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated. But the FTCA exclusions in section 2680 do not obviously and clearly preclude an FTCA cause of action by appellant, and on brief appellant suggests that he "probably does have a valid tort claim within the scope of the FTCA." Appellant recites further that he "firmly believes he also has a valid claim arising directly under the Constitution and has chosen that implied cause of action to address the wrongs done him. He may not be relegated to FTCA with its attendant [exhaustion] requirements.... His failure to file an administrative claim ... is irrelevant." (Emphasis added.) Reading the complaint broadly and as a whole, it is by no means wholly clear that only an intentional tort of the kind excluded from the FTCA is alleged.⁶  We cannot find, therefore, as a matter of law, even accepting all the allegations of appellant's complaint as true, that appellant's claim necessarily falls outside actions covered by the FTCA, even if it might also be properly maintained as a Bivens-type action.

The Exhaustion Requirement

The exhaustion of administrative remedies doctrine requires not that only administrative remedies selected by the complainant be first exhausted, but instead that all those prescribed administrative remedies which might provide appropriate relief be pursued prior to seeking relief in the federal courts. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 463, 82 L. Ed. 638 (1938); see also McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 1662-63, 1664, 23 L. Ed. 2d 194 (1969); Patsy v. Florida International University, 634 F.2d 900, 903-04 (5th Cir. 1981) (en banc), rev'd and remanded on other grounds sub nom. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982). Such a policy is echoed by the FTCA itself, which requires that claims asserted under that Act be first submitted to the relevant agency. 28 U.S.C. § 2675(a); see also 28 C.F.R. Sec. 14.2(b) (1). We perceive no reason, in a case where, as here, the FTCA appears to hold open the possibility of providing some relief, why the mere election to proceed under a substantially similar, if independent, cause of action should permit a federal prisoner to circumvent a clearly enunciated congressional policy favoring administrative settlement of tort claims against the United States or its employees or officers, see S.Rep. No. 1327, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 2515, 2518 ("Another objective ... is to reduce unnecessary congestion in the courts."), and so to artificially avoid the procedural prerequisites to maintaining such a suit in the federal courts.

Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action. See, e.g., Patsy v. Florida International University, 634 F.2d at 903-04.

Appellant asserts that the Bureau's own regulations preclude the administrative consideration of tort claims. He points to language respecting the Bureau's "Administrative Remedy Procedure"⁷  contained in Subpart B of 28 C.F.R. Part 542: "Filings will not be accepted under the Administrative Remedy Procedure for tort claims ..." 28 C.F.R. Sec. 542.12. We think, however, that appellant misconstrues the scope of this prohibition. In particular, we note that Subpart C of Part 543--a provision wholly distinct from Subpart B of Part 542--provides expressly for Bureau consideration of FTCA claims, including a mandate that " [t]he Bureau of Prisons shall consider administrative claims asserted under the Federal Tort Claims Act in accordance with the provisions of 28 CFR 14.1 et seq." 28 C.F.R. Sec. 543.30.⁸  We think it clear, therefore, that the tort claim prohibition contained in 28 C.F.R. Sec. 542.12 is not applicable to FTCA claims.⁹  We reject appellant's assertion that to require him to exhaust administrative remedies is to require him to seek remedies unavailable to him through the administrative process, that is, to engage in a patently futile course of action.

Nor, contrary to appellant's assertions, is it clear that the FTCA will not afford him adequate relief for his claim. The FTCA provides that up to $25,000 in monetary damages may ultimately be obtained, in proper circumstances and with the authorization of the Attorney General, through administrative channels prior to the recourse to the courts; this includes up to $2,500 as an administrative settlement by the Director of the Bureau without the need for the Attorney General's approval. See 28 U.S.C. § 2672; 28 C.F.R. Secs. 0.96(1), 0.172; cf. id. Sec. 14.6(a). The regulations additionally appear to admit of the possibility that the Attorney General might, in a proper case, grant settlement exceeding even the $25,000 limitation. See 28 C.F.R. Sec. 0.172(b) ("Assistant Attorney General shall have authority to adjust, determine, compromise, and settle any other claim involving the Department [of Justice] under Section 2672 of Title 28." (Emphasis added.)); see also 28 C.F.R. Secs. 14.6, 0.160-0.170.

The amount limitations sections nowhere expressly preclude the entertainment by the Bureau of a claim alleging an amount in excess of the maximums specified; they simply preclude an "amount of settlement," 28 C.F.R. Sec. 0.96(1) (emphasis added), or an "amount of proposed adjustment, compromise, settlement, or award," 28 C.F.R. Sec. 0.172(a) (emphasis added), which exceeds the $2,500 limitation applicable to the Bureau without Attorney General authorization. The mere allegation of a larger amount of money damages on the face of a complaint does not of necessity preclude the possibility, were an administrative remedy first pursued, that a satisfactory settlement within the limitations amounts would be reached. This possibility is precisely of the kind which supports the policy favoring imposition of an exhaustion requirement. Cf. McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 1662-63, 23 L. Ed. 2d 194 (1969); Miller v. Stanmore, 636 F.2d 986, 991 & n. 5 (5th Cir. 1981).

We point out that there is always the possibility of recourse to the courts in the event that an administrative determination concludes that liability is lacking, or if the award proposed is insufficient or otherwise unacceptable. The statute and regulations provide only that, if accepted, an administrative settlement relieves the United States and its employees of further liability. See 28 U.S.C. § 2672; cf. 28 C.F.R. Sec. 0.172(a) ("proposed adjustment, compromise, settlement, or award") (emphasis added); id., Sec. 543.30 (same); id., Sec. 543.31(e) ("Regional Counsel of Bureau authorized to proposed [sic ] to the claimant a settlement") (emphasis added); id., Sec. 543.31(f) (same, for General Counsel of Bureau); id., Sec. 543.31(h) ("An individual whose claim is denied may elect to institute suit."). The FTCA nowhere provides that exhaustion is not required for claims in excess of the statutory limits on administrative awards. We therefore reject appellant's contention that available administrative remedies are wholly inadequate, and that requiring exhaustion is consequently inappropriate.¹⁰ 

Perhaps more problematical is that appellant arguably seeks punitive damages. Punitive damages are not available under the FTCA. See 28 U.S.C. § 2674. They may,¹¹  however, be available in Bivens actions. Carlson v. Green, 100 S. Ct. at 1473. Appellant's complaint does not specifically pray for punitive damages, but it does ask for $1.5 million in money damages. These are, in effect, claimed as actual damages, since the complaint asserts "medical and mental damage being to the extent of $1,500,000." However, appellant, in his "Motion to Proceed Without Exhaustion of Administrative Procedures," asserted below that this "implies he is seeking punitive as well as compensatory damages." Hence, appellant asserted that he "should not be relegated to a remedy under the FTCA." The allegations of the complaint are not affirmatively inconsistent with entitlement to punitive damages, were such properly requested. However, it is not necessarily true that an inability to administratively award punitive damages would, in any event, preclude the achievement of a satisfactory administrative settlement. Cf. Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420 (1981). We think that the mere fact that punitive damages are requested, therefore, should not suffice to excuse a prisoner from the administrative exhaustion requirement. Thus, for the same reasons that we determine prevent the mere assertion of money damages in excess of the statutory and regulatory limits on proposed administrative awards from precluding the exhaustion requirement, we think that its application is not excused merely by virtue of a prayer for punitive damages.

Questionable Bivens Allegations

" [A] plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated." Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 2278, 60 L. Ed. 2d 846 (1979). It is by no means clear that appellant has here alleged facts sufficient to reflect that he has been the victim of cruel or unusual punishment in contravention of the Eighth Amendment. The criteria outlined in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), are instructive. In that case, the Supreme Court considered whether certain local pre-trial detention conditions and practices offended the constitutional rights of detainees:

"A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.... Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' " 99 S. Ct. at 1873-74 (emphasis added).

The factual allegations of appellant's complaint are amenable to the interpretation that mere negligent acts or omissions by FCI employees are charged, as we have indicated (see notes 2 & 6, supra) . Thus, the requirement that the defendant's actions be intentional is not necessarily and plainly satisfied on the face of appellant's complaint.¹²  Should appellant's conclusory allegation that he received constitutionally prescribed "punishment" fail on the merits, his characterization of his complaint as a Bivens action necessarily fails also. A court entertaining this suit, and subject to the rule that original pro se complaints are to be liberally construed, would then be left with only ordinary negligence claims, cognizable only under the FTCA. This observation, and considerations of judicial economy, reinforce our conclusion that appellant here should be required to exhaust available administrative remedies before seeking redress in the courts.

Other Considerations

In Carlson v. Green, the Supreme Court determined that nothing in the FTCA or its legislative history showed that Congress meant to preempt Bivens actions or to create an equally effective remedy for such tortious constitutional violations. 100 S. Ct. at 1472. That Congress has not designated the FTCA as an "explicitly declared ... substitute for recovery under the Constitution" (which would serve to defeat the Bivens action in particular cases, see 100 S. Ct. at 1471 (emphasis in original)), is, however, no impediment to a decision not to excuse the exhaustion requirement. None of the Court's primary concerns respecting the advantages of a Bivens action over an FTCA claim--as an effective deterrent, the availability of punitive damages, the option to have a jury trial, and the independence of the action from state law--are implicated directly here. We do not by requiring exhaustion effectively preclude the ultimate judicial assertion of a Bivens action, which was the Court's explicit concern in Carlson v. Green. We merely delay that assertion. If a disposition satisfactory to appellant is not reached administratively, he may then pursue the matter in the federal courts.

We note also that the Congress has, in a similar context--that of federal prisoners' assertions of section 1983 actions--provided an exception to the usual "no exhaustion rule" applicable to section 1983 claims. See 42 U.S.C. § 1997e; cf. Patsy v. Board of Regents, 102 S. Ct. at 2563-65. Unlike the situation which obtains for section 1983, there is no long-standing judicial or statutory rule against imposing a requirement for exhaustion of federal administrative remedies in constitutional tort cases. To the contrary, and in contrast to the character of the legislative history regarding exhaustion for section 1983, both the legislative history of the FTCA and the language of the Act itself indicate Congress' intention that administrative relief be a prerequisite to suit in the courts for tort claims. Section 2674 is an explicit example. We perceive no reason to depart from this policy, especially where, as here, it is only the claimant's own characterization of his claim which forms the basis for the asserted excuse from the exhaustion requirement. The exhaustion requirement reflects a judicial recognition of the separation of powers in our federal system, and should not be so lightly disregarded.

In addition, we have on previous occasions in a variety of circumstances required that federal prisoners exhaust their administrative remedies before asserting a Bivens claim in the courts respecting their treatment as prisoners. See, e.g., Miller v. Stanmore, 636 F.2d at 991 & n. 5. In particular, we have required that federal prisoners' Bivens actions seeking injunctive relief and damages first exhaust administrative remedies. Miller v. Stanmore, 636 F.2d at 991 (injunctive and declaratory relief and damages; due process violations). See also Paden v. United States, 430 F.2d 882, 883 (5th Cir. 1970) (injunctive relief against First Amendment deprivation by prison authorities); Hess v. Blackwell, 409 F.2d 362, 363 (5th Cir. 1969) (injunctive relief against invasion of Eighth Amendment rights). There is the possibility of anomalous results should we decline to extend the exhaustion requirement to such Bivens actions which seek only monetary damages. For example, in a "mixed" case (i.e., seeking both injunctive relief and monetary damages) where the request for injunctive relief is mooted, or determined to be frivolously asserted, or otherwise withdrawn,¹³  would the exhaustion requirement also then be mooted? Would the addition to an FTCA claim of a prayer for punitive damages similarly relieve the prisoner--even where the claim is later revealed to have been frivolous and included solely to avoid the exhaustion requirement?

We can thus perceive of no statutory, constitutional or persuasive policy reason to excuse appellant from the application of an administrative exhaustion requirement in his self-styled Bivens action. Accord, Brice v. Day, 604 F.2d 664 (10th Cir. 1979).¹⁴  We respectfully disagree with the contrary position of Muhammad v. Carlson, 739 F.2d 122 (3d Cir. 1984) and Goar v. Civiletti, 688 F.2d 27 (6th Cir. 1982). Generally for the reasons stated in Brice v. Day, supra, we believe that a broad exhaustion requirement is particularly appropriate in cases involving federal prisoner complaints against prison officials relating to their conditions of or treatment during confinement.

Conclusion

For the reasons stated, we sustain the district court's determination that appellant was required to exhaust his federal administrative remedies as a condition of pursuing his Bivens suit in federal court. However, the district court apparently did not give consideration to holding the Bivens suit in abeyance, pending exhaustion, as opposed to dismissing it. The distinction may impact relevant limitations concerns. As we have not previously considered the necessity for exhaustion where damages only are sought, and as two other Circuits have held that exhaustion is not required, an outright dismissal might be inequitable in the present case. That is a matter for the district court to consider in the first instance. See Hayes v. Secretary of Defense, 515 F.2d 668, 675 (D.C. Cir. 1975). Accordingly, though we hold that the district court did not err in determining that appellant had not exhausted his administrative remedies as required, the case is nevertheless remanded to consider whether a stay of the action pending exhaustion of remedies, as opposed to a dismissal, is more appropriate.

REMANDED