Higginbottom v. Gardner , 223 F.3d 1259 ( 2000 )

[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 21, 2000
________________________
THOMAS K. KAHN
CLERK
No. 99-8055
Non-Argument Calendar
________________________
D.C. Docket No. 97-03080-CV-GET-1
GREG HIGGINBOTTOM,
Plaintiff-Appellant,
versus
ALAN CARTER,
DEPARTMENT OF CORRECTIONS, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(August 21, 2000)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
I.
Appellant Greg Higginbottom (“Higginbottom”) appeals from the district
court’s order dismissing his civil rights complaint for failure to exhaust his state
administrative remedies pursuant to 42 U.S.C. § 1997e(a). Higginbottom filed his
complaint after April 26, 1996; therefore, the requirements of the Prison Litigation
Reform Act of 1995 (“PLRA”) (effective April 26, 1996), apply to his complaint.
On appeal, Higginbottom raises an issue of first impression in our circuit:
whether his excessive-use-of-force claim is subject to the PLRA’s exhaustion
requirements. Higginbottom also raises several other challenges on appeal: (1) that
there are no administrative remedies available to him, because he challenged
actions of the Commissioner of the Department of Corrections, Wayne Gardner;
(2) that the administrative remedies are not “available” to provide the monetary
damages that he seeks in this lawsuit; (3) that 42 U.S.C. § 1997e(a) is “complex,”
“not clear,” and “vague,” as evidenced by interpretive splits among the circuits and
district courts; (4) that the claims asserted in his brief “are not grievable”; and (5)
that the district court erred by vacating a four-month-old order. For the first time
on appeal, Higginbottom contends that the prison’s grievance procedures are
unconstitutionally “vague,” and that the attorney general’s office should not
represent defendants accused of a “known . . . constitutional wrong.”
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II.
We review de novo the district court’s interpretation of section 1997e(a)’s
exhaustion requirements and application of that section to Higginbottom’s claims.
See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998). Issues raised for
the first time on appeal are not properly before this court unless one of five
exceptions applies. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).
None of these five exceptions applies in this case.
III.
Higginbottom argues that the PLRA’s exhaustion requirements do not apply
to his excessive-use-of-force claim because the claim did not challenge “prison
conditions” as defined in the PLRA. See 18 U.S.C. § 3626(g)(2). Title 18 U.S.C.
§ 3626(g)(2), which was amended as part of the same legislation as § 1997e,
provides that the term “civil action with respect to prison conditions” means any
civil action arising under federal law “with respect to the conditions of
confinement or the effects of actions by government officials on the lives of
persons confined in prison.” Thus, the plain language of the statute does include
claims alleging excessive force. See Freeman v. Francis, 196 F.3d 641, 643-44
(6th Cir. 1999). See also Booth v. Churner, C.O., 206 F.3d 289 (3rd Cir. 2000),
petition for cert. filed, (U.S. June 5, 2000) (No. 99-1964). Furthermore, reading
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the term “prison conditions” to include excessive-use-of-force claims is supported
by the purpose and legislative history of the Act. Congress passed the PLRA to
reduce frivolous prisoner lawsuits. See Freeman, 196 F.3d at 644. “A broad
exhaustion requirement that includes excessive force claims effectuates this
purpose and maximizes the benefits of requiring prisoners to use prison grievance
procedures before coming to federal court.” Id.Moreover, the exhaustion requirement cannot be waived based upon the
prisoner’s belief that pursuing administrative procedures would be futile. See
Alexander, 159 F.3d at 1323. “The plain language of the statute makes exhaustion
a precondition to filing an action in federal court.” Freeman, 196 F.3d at 645.
Accordingly, since the PLRA’s exhaustion requirements encompass excessive-use-
of-force claims, Higginbottom was required to exhaust his administrative remedies
before filing suit.
We see no merit to any of Higginbottom’s remaining arguments. A review
of the record demonstrates that the district court did not err by vacating its order
denying dismissal, despite the fact that the order was four months old, because the
vacatur occurred only six weeks after new, binding case law was issued. In
addition, we hold that § 1997e(a) is not unconstitutionally “vague” because the
plain language of the statute adequately puts prisoners on notice that they must
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exhaust their administrative remedies before pursuing prison-related civil actions
in federal court. Finally, Higginbottom offers no arguments supporting his
assertion that his claims were “not grievable.”
For the foregoing reasons, we affirm the district court’s judgment of
dismissal.
AFFIRMED.
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