Opinion
NO. C 03-0808 CRB (PR)
March 5, 2003
ORDER OF DISMISSAL
Plaintiff, a state prisoner currently incarcerated at San Quentin State Prison, has filed a civil rights complaint under 42 U.S.C. § 1983 alleging that prison officials have ignored his requests to see a doctor. Plaintiff concedes that he has not exhausted available administrate remedies because he is still "waiting on a decision from the third level appeal."
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], 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). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 122 S.Ct. 983, 988 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'"Id. (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit., Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 122 S.Ct. at 992.
The State of California provides its prisoners and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). They may even file appeals alleging misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a).Id. at 1237-38.
"A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). Here, plaintiff concedes nonexhaustion and sets forth no extraordinary circumstance which might compel that he be excused from exhausting under § 1997e(a).Cf. Booth, 532 U.S. at 741 n. 6 (courts should not read "futility or other exceptions" into § 1997e(a)). The complaint must be dismissed without prejudice. See Wyatt, 3 15 F.3d at 1120 (if district court, concludes that prisoner has not exhausted, proper remedy is dismissal without prejudice); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (action must be dismissed unless prisoner exhausted his available administrative remedies before he filed suit, even if he fully exhausts while suit is pending).
Accordingly, plaintiffs request to proceed in forma pauperis (doc #2) is DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process through the Director's level of review
The clerk shall close the file and terminate all pending motions as moot.
SO ORDERED.