Opinion
No. C 04-4005 CW (PR), Docket nos. 2, 5.
May 20, 2005
ORDER OF DISMISSAL FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
INTRODUCTION
Plaintiff Bobby Lee, a prisoner of the State of California who is incarcerated at Folsom State Prison, has filed a civil rights action pursuant to 42 U.S.C. § 1983 in which he seeks leave to proceed in forma pauperis. Venue is proper in this district because the acts complained of occurred, and the named Defendants reside, in Monterey County. 28 U.S.C. §§ 84(a), 1391(b).
BACKGROUND
On June 23, 2003, Plaintiff was incarcerated at Salinas Valley State Prison (SVSP). On that date he was being transferred to a new cell. While moving his property to his new cell he heard gunshots and immediately threw himself down on the floor in a prone position. After several minutes he was removed from his cell by correctional officers and handcuffed. He was informed that a correctional officer had been assaulted and that he was being placed in administrative segregation. After questioning, Plaintiff and two other inmates were transferred that day to Corcoran State Prison and placed in administrative segregation. Plaintiff was held in administrative segregation for more than a year while charges of conspiring in the attempted murder of a correctional officer were referred to the District Attorney's office, despite Plaintiff's protestations that he knew nothing about the attack. In September, 2004, Plaintiff was transferred back to SVSP, and in November, 2004, he was transferred to Folsom State Prison. In his complaint, he seeks injunctive relief and damages for the filing of false charges against him, his alleged unlawful retention in administrative segregation and the confiscation of his property.
STANDARD OF REVIEW
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins, 487 U.S. 42, 48 (1988). "`[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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). The exhaustion requirement is mandatory. Wyatt v. Terhune, 315 F.3d 1108, 1117 n. 9 (9th Cir.), cert. denied, 124 S. Ct. 50 (2003). While nonexhaustion under § 1997e(a) is an affirmative defense, a prisoner's concession to nonexhaustion is a valid ground for dismissal.Id. at 119-20. Accordingly, the court may dismiss a claim without prejudice if it is clear from the record that the prisoner has conceded that he did not exhaust administrative remedies. See id.
The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative 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. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.
Plaintiff concedes in his complaint that he did not exhaust his administrative remedies. He states that he was unable to do so because "appeal form has no appeal or log number," "officers intentionally stagnate appeal forms," "the original appeal from was not returned to plaintiff," and "the last time plaintiff saw appeal was on 6-9-04." Compl. at 2. He refers the Court to Exhibit O to his complaint, the first page of which is a notification to Plaintiff by the prison of his right to make a complaint against a correctional officer by way of the prison grievance procedure. At the bottom of the page is Plaintiff's signature, dated April 20, 2004, which acknowledges his receipt of the notice. The second page of Exhibit O is an administrative appeal form submitted for informal review on April 4, 2004, in which Plaintiff writes that he is making a "Citizens Complaint" pursuant to various sections of the California Penal Code and under the Eighth, First and Fourteenth Amendments to the United States Constitution. In the section titled "Action Requested" Plaintiff writes: "I demand to receive my legal transcripts from my property immediately. And I demand to be released to general population immediately. And to be issued my RX eyeglasses from property. `Civil suit follows.'" The informal level response is dated June 8, 2004, and states "Granted" and explains that Plaintiff's property was returned to him on June 4, 2004. On June 9, 2004, Plaintiff filled out the section of the form for the first formal level of review, stating his dissatisfaction with the response because he did not receive all of his legal property. No evidence of receipt of the appeal or a response by prison officials is noted.
Plaintiff concedes that he did not seek administrative review of the claims he raises in this action through the third level of appeal to the Director of Corrections. He says he was unable to do so because his appeal at the first formal level of review was not answered. Even if this statement is true, however, Plaintiff's allegation does not lead to the conclusion that he could not exhaust his administrative remedies. He was not unambiguously told, for example, that no further appeal could be taken. See, e.g., Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (prisoner placed on grievance restriction who was also told by guards that they would not deliver his grievance to the prison grievance office has no "available" administrative remedies); Freeman v. Snyder, No. Civ. A. 98-636-GMS, 2001 WL 515258, at *6 (D. Del. April 10, 2001) (despite written grievance policy that appeared to apply to the prisoner's claims, statements by correctional officers that issue was not grievable established that no administrative remedies were available). In fact, Plaintiff never states that in the two months between submitting his first formal level appeal and initiating the present lawsuit he attempted further follow-up to determine what had happened to his appeal, or that he attempted to exhaust his administrative remedies further upon being returned to SVSP. Although Plaintiff is not required to allege that he resorted to extraordinary measures in order to exhaust his administrative remedies, conclusory allegations that the administrative remedies process is inadequate are insufficient to defeat dismissal for failure to exhaust. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997).
Here, the type of claims raised by Plaintiff — especially those pertaining to his retention in administrative segregation — are particularly suited to factual development and initial review through the Department of Corrections' administrative grievance procedures. Accordingly, because it is clear from the face of the complaint and the documents attached thereto that Plaintiff did not exhaust his administrative remedies and no exception to exhaustion applies, the action must be dismissed.
CONCLUSION
For the foregoing reasons, this action is DISMISSED without prejudice as unexhausted. Leave to proceed in forma pauperis is GRANTED. (Docket nos. 2, 5.) All other pending motions are TERMINATED. The Clerk of the Court shall enter judgment and close the file.
IT IS SO ORDERED.