Florence v. Booker

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 6, 1998
• Docket: 98-3153
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 6 1998 TENTH CIRCUIT PATRICK FISHER Clerk

GEORGE EDWIN FLORENCE,

Plaintiff-Appellant,

v. No. 98-3153 (D.C. No. 97-CV-3480) J.W. BOOKER, JR., Warden, USP- (D. Kan.) Leavenworth; SARA MCKEE, Mail Room Supervisor, USP-Leavenworth, both individually and in their official capacity,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. George Edwin Florence appeals the district court’s dismissal of his Bivens

claim for failure to exhaust administrative remedies. We affirm in part, reverse in

part, and remand for further proceedings.

Florence, a federal inmate, brought this action alleging officials at the

facility violated his constitutional rights by opening legal mail outside his

presence. Both facility policy and 28 C.F.R. § 540.18 direct that such “Special

mail,” if properly designated, be opened only in the presence of the inmate. The

district court dismissed the action on the ground that Florence had not complied

with The Prison Litigation Reform Act, 42 U.S.C. § 1997e, which provides: “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

exhausted.” It is not disputed that Florence, who seeks both injunctive relief and

monetary damages, did not seek administrative relief before filing his complaint.

On appeal, Florence contends the district court erred in ignoring Garrett v.

Hawk , 127 F.3d 1263 (10th Cir. 1997). He is correct in part. In Garrett , this

court held a plaintiff bringing a Bivens claim against prison officials for monetary

damages was not required to exhaust administrative remedies because no such

remedies were available via the prison grievance system. See id. at 1266-67. The

court did not adopt the broader proposition urged by Florence that all Bivens

-2- claims are excluded from the exhaustion requirement of § 1997e. Instead, the

court’s limited opinion turned on the fact that while Congress intended § 1997e to

encompass Bivens claims for monetary damages, it had “to date failed to provide

any administrative remedies that must or even could be exhausted before a Bivens

suit may be brought by prisoners against prison officials.” Id. at 1267.

Here, the district court did not distinguish between Florence’s monetary

and injunctive claims. It is apparent from Garrett , however, that the court erred

in dismissing Florence’s Bivens claim for monetary damages as there are

currently no available administrative remedies to be exhausted. In contrast,

appropriate administrative remedies are available to Florence with respect to his

claim for injunctive relief. See 28 C.F.R. § 542; see also Russo v. Palmer , 990 F.

Supp. 1047, 1050 (N.D. Ill. 1998). As such, that claim was properly dismissed

pursuant to § 1997e for failure to exhaust administrative remedies.

We REVERSE the district court’s dismissal of Florence’s Bivens claim for

monetary damages, AFFIRM the dismissal of Florence’s claim for injunctive

relief, and remand for further proceedings. Florence’s motion for a temporary

restraining order filed September 15, 1998, is DENIED as moot.

Entered for the Court

Mary Beck Briscoe Circuit Judge

-3-