United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-1759
                                  ___________

Ronald L. Chelette,                       *
                                          *
              Plaintiff/Appellee,         *
                                          *
       v.                                 *
                                          *
Grant Harris, Warden, Official and        *
Individual Capacity, Jefferson County *
Jail Correctional Facility,               *
                                          * Appeal from the United States
              Defendant/Appellant,        * District Court for the
                                          * Eastern District of Arkansas.
Brenda Spears, Ombudsman, Official        *
and Individual Capacity; Candy Reeves, *
Nurse RN-CN, Official and Individual *
Capacity, Jefferson County Jail           *
Correctional Facility (originally sued as *
C. Reeves); Christine Turntine, Nurse, *
Official and Individual Capacity,         *
Jefferson County Jail Correctional        *
Facility (originally sued as Chris        *
Turntine),                                *
                                          *
              Defendants.                 *
                                     ___________

                            Submitted: June 13, 2000

                                Filed: October 10, 2000
                                 ___________
Before WOLLMAN, Chief Judge, McMILLIAN, Circuit Judge, and PANNER,1
      District Judge.
                           ___________

WOLLMAN, Chief Judge.

       Ronald Chelette, a prisoner at the Jefferson County, Arkansas, Jail Correctional
Facility, filed a 42 U.S.C. § 1983 action against the facility and three of the facility’s
employees personally and in their official capacities (collectively, the defendants) for
failing to provide him with adequate medical care. The defendants take this
interlocutory appeal from the denial by the magistrate judge (presiding by consent of
the parties under 28 U.S.C. § 636(c)) of their motion to dismiss on the ground that
Chelette had failed to exhaust his administrative remedies as required by 42 U.S.C. §
1997e(a). We reverse and remand.

                                            I.

        The Jefferson County Jail Correctional facility is operated by the Arkansas
Department of Corrections. Proceeding pro se, Chelette filed a complaint alleging that,
after injuring his wrist in an altercation with another inmate, he experienced continuing
pain and alerted prison warden Grant Harris to the problem. The complaint alleges that
despite Harris’s assurance that the problem would be taken care of, Chelette received
inadequate medical care. The complaint requests damages and injunctive relief.

      The standardized form used by Chelette in filing the complaint contains the
question “Did you present the facts relating to your complaint in the state prisoner
grievance procedure?” Chelette placed a check next to “No.” On the lines provided
for explanation, he wrote, “Because Warden Harris stated he would take care of the


      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.

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matter.” In denying the defendants’ Rule 12(b)(1) motion to dismiss, the district court
found that although Chelette “likely could have filed a separate grievance over the
alleged lack of medical care,” it was logical for Chelette to believe that he had pursued
such administrative remedies as were available to him. Accordingly, the district court
concluded that Chelette had adequately exhausted his administrative remedies.

                                           II.

      Chelette asserts that the defendants’ appeal is not properly before this court
because the magistrate judge lacked the authority to certify defendant’s interlocutory
appeal. We do not agree.

      Generally, only a final order may be appealed. Section 1292(b) creates an
exception to this rule:

      When a district judge, in making in a civil action an order not otherwise
      appealable under this section, shall be of the opinion that such order
      involves a controlling question of law as to which there is substantial
      ground for difference of opinion and that an immediate appeal from the
      order may materially advance the ultimate termination of the litigation, he
      shall so state in writing in such order.

28 U.S.C. § 1292(b) (1994). Chelette argues that since the statute specifically
mentions “a district judge,” a magistrate judge lacks the authority to certify an
interlocutory appeal. The two cases he cites , however, conclude that 28 U.S.C. §
636(c)(1) and (c)(3) give magistrates that authority in cases where all parties have
consented to have their case heard by a magistrate. See LeVick v. Skaggs Cos., 

, 778 (9th Cir. 1983); Central Soya Co. v. Voktas, Inc., 

, 81 (7th
Cir. 1981) (per curiam); see also Vitols v. Citizens Banking, 

, 169 (6th
Cir. 1993) (per curiam). Chelette argues that, because section 1292 has been amended
multiple times since Central Soya without changing the “district judge” language to

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conform with the judicial interpretation, Congress must disagree with that
interpretation. In our view, this observation supports quite the opposite conclusion.
See Costello v. United States R.R. Retirement Bd., 

, 1355 (8th Cir.
1985) (holding that amendment of some portions of a statute evidenced congressional
intent to leave unamended portions intact). When Congress repeatedly amends only
some portions of a statute, we infer that it intends no change to the law of unamended
portions. Accordingly, we conclude that the magistrate judge had the authority to
certify the defendants’ interlocutory appeal and that this matter is thus properly before
us.

                                           III.

                                            A.

         We turn, then, to the question whether the district court properly denied the Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Although section
1997e(a) mandates the exhaustion of administrative remedies, a plaintiff’s failure to
fulfill a statutory requirement does not necessarily deprive the federal courts of subject
matter jurisdiction. In Weinberger v. Salfi, the Supreme Court distinguished between
provisions that merely codify the requirement that administrative remedies must be
exhausted and those that impose jurisdictional requirements. 

, 757
(1975). The latter must contain “sweeping and direct” statutory language indicating
that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement
is treated as an element of the underlying claim. See id.; Wright v. Morris, 

, 420-21 (6th Cir. 1997) (applying Salfi to section 1997e(a)). An administrative
exhaustion requirement is jurisdictional only if it goes beyond the language necessary
to codify an exhaustion requirement. See 

.

     The Prison Litigation Reform Act of 1996 (“PLRA”) amended 42 U.S.C. §
1997e(a). Pub. L. 104-134, § 101, 110 Stat. 1321 (1996). Prior to that amendment,

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prisoners filing claims under 42 U.S.C. § 1983 were not generally required to exhaust
their administrative remedies. See 

. The PLRA amendment
of section 1997e(a) altered the statute, mandating exhaustion: “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.” 42 U.S.C. § 1997e(a).

        The language of section 1997e(a) does not contain the sort of “sweeping and
direct” language necessary to impose a jurisdictional requirement. 

. Rather, the language “[n]o action shall be brought . . . until such administrative
remedies as are available are exhausted” governs the timing of the action, indicating
“‘merely that only those actions shall be brought in which administrative remedies have
been exhausted.’” 

422 U.S. at 757). To interpret section 1997e(a)
as jurisdictional would collapse the Supreme Court’s distinction between jurisdictional
prerequisites and mere codifications of administrative exhaustion requirements. See

subsections of section 1997e indicate that exhaustion is not a
jurisdictional requirement. See Nyhuis v. Reno, 

, 69 n.4 (3d Cir. 2000).
The PLRA also included section 1997e(c)(2), which gives district courts the power to
dismiss some claims on their merits even when administrative remedies have not been
exhausted:

       In the event that a claim is, on its face, frivolous, malicious, fails to state
       a claim upon which relief can be granted, or seeks monetary relief from
       a defendant who is immune from such relief, the court may dismiss the
       underlying claim without first requiring the exhaustion of administrative
       remedies.

42 U.S.C. § 1997e(c)(2). Because the existence of jurisdiction is a prerequisite to the
evaluation and dismissal of a claim on its merits, it follows that that jurisdiction is not

                                            -5-
divested by the failure to exhaust administrative remedies. See 

n.4 (“If exhaustion under the PLRA were jurisdictional, [section 1997(c)(2)] . . . and
the power it gives district courts would make no sense.”); Underwood v. Wilson, 

, 295 (5th Cir. 1998).

       Those circuits that have considered the issue have concluded that the exhaustion
requirement is not jurisdictional. See 

n.4 (“[W]e agree with the
clear majority of courts that section 1997e(a) is not a jurisdictional requirement, such
that failure to comply with the section would deprive federal courts of subject matter
jurisdiction.”); Rumbles v. Hill, 

, 1066 (9th Cir. 1999) (holding that
failure to exhaust administrative remedies under section 1997e(a) does not deprive a
federal court of subject matter jurisdiction where money damages are the sole relief
sought and are not available through prison grievance procedures); Perez v. Wisconsin
Dep’t. of Corrections, 

, 535 (7th Cir. 1999) (“Failure to exhaust
administrative remedies does not deprive a court of jurisdiction.”); Basham v. Uphoff,
No. 98-8013, 

at *3 (10th Cir. Dec. 8, 1998) (table); 

(holding that the language of § 1997e(a) “. . . is exactly the kind of
language held in Weinberger v. Salfi not to limit federal jurisdiction”); 

(applying 

). Agreeing with these decisions, we
conclude that failure to exhaust administrative remedies under section 1997e(a) does
not deprive a federal court of jurisdiction, both because the statutory language is
insufficient to create a jurisdictional requirement and because other portions of the
PLRA indicate that federal courts do have jurisdiction in cases where administrative
remedies remain.

                                            B.

      That the district court did not lack subject matter jurisdiction is not the end of the
matter, however, for once the defendants filed their motion to dismiss the court was


                                            -6-
obligated to proceed to determine whether in fact Chelette had exhausted his
administrative remedies. See 

.

      In making its finding that Chelette could logically have believed that he had
exhausted such administrative remedies as were available to him, the district court had
before it the affidavit of the Department of Corrections Inmate Grievance Coordinator,
as well as Chelette’s response to the motion to dismiss. The court thus treated the
motion, as it was entitled to do, as one requiring it to make findings of fact on the
question of exhaustion. See Osborn v. United States, 

, 729-30 (8th Cir.
1990); Crawford v. United States, 

, 927-29 (7th Cir. 1986).

       We conclude that the district court erred in finding that Chelette had exhausted
his administrative remedies. If it is “likely” that Chelette could have filed a grievance
over the alleged lack of medical care, it can hardly be said that he exhausted such
administrative remedies as were available to him. Section 1997e(a) says nothing about
a prisoner’s subjective beliefs, logical or otherwise, about the administrative remedies
that might be available to him. The statute’s requirements are clear: If administrative
remedies are available, the prisoner must exhaust them. Chelette failed to do so, and
so his complaint must be dismissed, for “we are not free to engraft upon the statute an
exception that Congress did not place there.” Castano v. Nebraska Dep’t of
Corrections, 

, 1025 (8th Cir. 2000).

       The judgment is reversed, and the case is remanded to the district court with
directions to dismiss the complaint without prejudice.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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