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    John J. McCarthy v. Mr. Maddigan, Dr. Perry Dr. Walter, Dr. Delmuro, 914 F.2d 1411, 10th Cir. (1990)

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    The U.S. Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of John McCarthy's civil rights claim and denial of his motion for relief from judgment. The district court had dismissed the claim because McCarthy failed to demonstrate that he exhausted the administrative review process provided by the Bureau of Prisons, as required by the Tenth Circuit's precedent in Brice v. Day. The Court of Appeals held that under Brice, federal prisoners are required to exhaust administrative remedies before filing Bivens actions in order to develop a factual record and assist the court, even when only monetary damages are sought.

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    John J. McCarthy v. Mr. Maddigan, Dr. Perry Dr. Walter, Dr. Delmuro, 914 F.2d 1411, 10th Cir. (1990)

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    The U.S. Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of John McCarthy's civil rights claim and denial of his motion for relief from judgment. The district court had dismissed the claim because McCarthy failed to demonstrate that he exhausted the administrative review process provided by the Bureau of Prisons, as required by the Tenth Circuit's precedent in Brice v. Day. The Court of Appeals held that under Brice, federal prisoners are required to exhaust administrative remedies before filing Bivens actions in order to develop a factual record and assist the court, even when only monetary damages are sought.

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    Filed: 1990-09-20 Precedential Status: Precedential Citations: 914 F.2d 1411 Docket: 90-3112

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    The U.S. Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of John McCarthy's civil rights claim and denial of his motion for relief from judgment. The district court had dismissed the claim because McCarthy failed to demonstrate that he exhausted the administrative review process provided by the Bureau of Prisons, as required by the Tenth Circuit's precedent in Brice v. Day. The Court of Appeals held that under Brice, federal prisoners are required to exhaust administrative remedies before filing Bivens actions in order to develop a factual record and assist the court, even when only monetary damages are sought.

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    9 views3 pages

    John J. McCarthy v. Mr. Maddigan, Dr. Perry Dr. Walter, Dr. Delmuro, 914 F.2d 1411, 10th Cir. (1990)

    Uploaded by

    Scribd Government Docs
    The U.S. Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of John McCarthy's civil rights claim and denial of his motion for relief from judgment. The district court had dismissed the claim because McCarthy failed to demonstrate that he exhausted the administrative review process provided by the Bureau of Prisons, as required by the Tenth Circuit's precedent in Brice v. Day. The Court of Appeals held that under Brice, federal prisoners are required to exhaust administrative remedies before filing Bivens actions in order to develop a factual record and assist the court, even when only monetary damages are sought.

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    of 3

    914 F.

    2d 1411

    John J. McCARTHY, Plaintiff-Appellant,


    v.
    Mr. MADDIGAN, Dr. Perry; Dr. Walter, Dr. Delmuro,
    Defendants-Appellees.
    No. 90-3112.

    United States Court of Appeals,


    Tenth Circuit.
    Sept. 20, 1990.

    John J. McCarthy, pro se.


    Before McKAY, MOORE, and BRORBY, Circuit Judges.
    BRORBY, Circuit Judge.

    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)(1); 10th Cir.R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.

    Appellant John J. McCarthy appeals the district court's dismissal of his civil
    rights claim filed pursuant to 28 U.S.C. Sec. 1331 and the court's denial of his
    motion for relief from judgment made pursuant to Fed.R.Civ.P. 60(b).
    Appellant alleges that the deliberate indifference to his serious medical needs of
    officials of the federal penitentiary in Leavenworth, Kansas, violates his Eighth
    Amendment rights, and he seeks damages. The district court dismissed the
    claim without prejudice because Mr. McCarthy failed to demonstrate he had
    made use of the administrative review process provided by the Bureau of
    Prisons, as required by Brice v. Day, 604 F.2d 664, 666-68 (10th Cir.1979),
    cert. denied, 444 U.S. 1086, 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980). District
    Court Order of April 6, 1990. For the reasons cited in its first order, and
    because appellant failed to present any new evidence, the district court also
    denied appellant's motion for relief from judgment. District Court Order of
    April 19, 1990.

    Appellant argues that the law in this circuit is unsettled as to whether


    exhaustion of administrative remedies is required in a Bivens -type action,
    Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29
    L.Ed.2d 619 (1971), where a federal prisoner seeks only money damages to
    redress an alleged constitutional violation. He urges us to follow certain cases
    from the Third and Sixth Circuits rejecting such a requirement.

    The appellants in Brice v. Day argued, as does Mr. McCarthy, that the
    exhaustion of administrative remedies requirement does not apply where
    damages are sought for a violation of a constitutional right. 604 F.2d at 665.
    One of the appellants in Brice sought monetary damages and "what other relief
    the court deems fair." Id. This court held that "preliminary fact-finding would
    be necessary to determine whether there is a possible Bivens cause of action....
    Thus, if we assume that the petitions before us could indicate a Bivens cause of
    action as the appellants argue, we must ... require an initial administrative
    inquiry." Id. at 666. Brice made clear that "this administrative consideration is
    not to resolve constitutional issues nor to consider damages," id. at 667, but
    simply to develop a factual record to assist the district court in its review.

    Appellant relies principally on Muhammad v. Carlson, 739 F.2d 122 (3d


    Cir.1984), and Goar v. Civiletti, 688 F.2d 27 (6th Cir.1982), both of which hold
    that a federal prisoner seeking only money damages in a Bivens -type action
    need not first exhaust administrative remedies. Muhammad and Goar, however,
    do not state the law in this circuit. Moreover, these cases mischaracterize this
    circuit's holding in Brice. According to the Third Circuit, Brice held that a
    "federal prisoner seeking damages and other relief for overcrowded conditions
    must exhaust administrative remedies." 739 F.2d at 125 n. 1; cf. 688 F.2d at 29.
    The rule of Brice, however, is not keyed to the type of relief sought, but to the
    need for preliminary fact-finding. Brice does not except cases involving claims
    for monetary damages only.

    We also disagree with the Third Circuit's assumption that the courts "may not
    take it upon ourselves to impose a judicially-created exhaustion requirement
    directed at federal prisoners." 739 at 125. Given that Bivens actions are "a
    creation of the judiciary," id. at 124; accord Brice, 604 F.2d at 665, it follows
    that the courts may, and indeed must, establish reasonable requirements for
    bringing such actions. Furthermore, as the Sixth Circuit recognized in Goar, "
    [a]lthough the administrative apparatus could not award money damages ...,
    administrative consideration of the possibility of corrective action and a record
    would have aided a court in measuring liability and determining the extent of
    the damages." 688 F.2d at 29 (emphasis in original).

    We further note that in Hessbrook v. Lennon, 777 F.2d 999, 1007 n. 14 (1985),
    the Fifth Circuit correctly construed our holding in Brice and declined to adopt
    the Third and Sixth Circuits' view on this issue. We agree with the Hessbrook
    panel that "a broad exhaustion requirement is particularly appropriate in cases
    involving federal prisoner complaints against prison officials relating to their ...
    treatment during confinement." 777 F.2d at 1007.

    We find no merit in the other cases cited by appellant, Appellant's Opening


    Brief at 3, nor do they alter our conclusion that preliminary fact-finding is
    necessary in this case, as it was in Brice, to determine whether appellant has a
    possible Bivens cause of action. See 604 F.2d at 666; cf. Hatcher v. Office of
    Comptroller of Currency, 631 F.2d 985, 989 n. 6 (D.C.Cir.1980) (citing Brice ).
    Furthermore, although appellant alleged in his complaint that he had invoked
    the prison grievance procedure prior to filing this suit, he does not challenge on
    appeal the district court's finding that he "failed to demonstrate his use of the
    [available] administrative remedy process." Order of April 6, 1990, at 1.

    Accordingly, we grant permission to proceed in forma pauperis, and the order


    of the district court is AFFIRMED.

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