880 F. 2d 415 - Warthen v. O Strubeck Fci

Before KENNEDY and KRUPANSKY, Circuit Judges and WENDELL A. MILES, Senior District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

DeWayne Warthen appeals the district court's judgment dismissing without prejudice his action filed under the doctrine enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). While incarcerated at the Federal Correctional Institution at Ashland, Kentucky, Warthen filed his complaint alleging that the defendant prison Chief Medical Officer was deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). The district court dismissed the complaint without prejudice because plaintiff had not exhausted available administrative remedies through the Bureau of Prisons.

Upon consideration, we conclude that the complaint was properly dismissed.

Generally, federal prisoners must exhaust administrative remedies before bringing a Bivens action. See Davis v. Keohane, 835 F.2d 1147, 1148-49 (6th Cir.1987) (per curiam). Plaintiff's contention that exhaustion is futile is merely a conclusion which does not excuse exhaustion. See Davis, 835 F.2d at 1149. Under the circumstances of this case, we conclude that exhaustion is required.

Therefore, the judgment of the district court dismissing plaintiff's complaint without prejudice to plaintiff's right to refile after exhaustion is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.